Ithaca College, Criminal Charges, and Administrative Hearings

Sometimes as part of my representation of IC (Ithaca College) students they will request my attending their administrative hearings. Violations on campus and usually many of the dorms/apartments are part and parcel of campus property will often result in a separate college board hearing/review to determine what consequences/punishments/reprimands/suspensions/expulsion the student may face for their criminal charges.

Under the IC policy ANY attorney involvement in these is forbidden. This is a "one on one" meeting.

See highlighted code under (5.) below:

7.1.2.4 Administrative Hearing Process [IV]

As amended by the Ithaca College Board of Trustees April 14, 2000, October 13, 2006, and May 17, 2009.

When a nonacademic incident occurs involving an Ithaca College student's alleged violation of any rule or regulation outlined in the "Statement of Responsibilities," policies provided in section 7.1.2.3 or in the residential life rules and regulations, the matter will be handled according to the following procedures unless the incident occurs at the end of an academic year and involves a graduating senior. For an incident involving a graduating senior, the College shall be permitted to modify the steps in the hearing procedure to allow for resolution of the matter prior to commencement:

1.	The incident is documented.
2.	The documentation is then forwarded to the director of judicial affairs or other appropriate administrative hearing officer, who will determine if the student will be charged for the alleged violation(s) of the student conduct code.
3.	When a student is charged, the student will be notified in writing by the director of judicial affairs or other appropriate administrative hearing officer. This written notice will include the section(s) of the residential life rules and regulations and/or the student conduct code allegedly violated; a brief description of the incident; the date, time, and location of occurrence, if available; and an appointed time to meet with the designated hearing officer. The letter will include instructions for rescheduling the meeting should the student have a conflict with the scheduled time. The letter will include a statement indicating that if the student fails to appear for the meeting, that student waives the student's right to this administrative hearing process and a decision regarding responsibility and sanction will be assessed based on the available evidence. This judicial charge notice must be received by the student at least 72 hoursbefore an administrative hearing is convened to consider the matter.
4.	Students who fail to appear at the appointed time or fail to reschedule prior to the time of the original appointment waive their right to a hearing and may be assessed an appropriate sanction by the judicial hearing officer if responsibility is determined based on the evidence available.
5.	The administrative hearing is a one on one meeting between the student and the judicial hearing officer. The presence of an attorney and/or written materials submitted by an attorney in representation of his/her student client is prohibited. In the administrative hearing with the judicial hearing officer, the administrative procedures and charges will be explained, documentation and evidence will be reviewed, and the student will be provided the opportunity to have all pertinent questions answered. At the hearing the student and the judicial hearing officer will discuss the relevant information from the incident as well as any other information that the student or the judicial hearing officer deems appropriate.
6.	This hearing will result in one of the following possible outcomes:
	The hearing officer may dismiss the charge(s). The student may accept responsibility for the violation or may be found responsible by the hearing officer based on a preponderance of the evidence. A sanction (see section 7.1.2.8) will be verbally indicated by the hearing officer within 24 hours of the hearing, with written notification to follow within ten (10) College business days. In the event that a judicial hearing officer determines that additional information or further investigation is required in order to reach a decision, the outcome of the hearing will be delayed pending this investigation. The judicial hearing officer will follow up with the student to arrange any additional needed meeting(s) and/or to apprise the student of the investigations in progress. The process will conclude with a final decision regarding the hearing.
7.	The student who has been charged under the student conduct code may at the conclusion of the administrative hearing process choose to accept the decision/sanction or choose to have the case heard before the conduct review board. (See section 7.1.2.5.) If a case involves a graduating senior, the decision of the judicial hearing officer is final unless the decision/sanction involves withholding of a transcript or diploma, suspension, or expulsion. A decision/sanction involving withholding of a transcript or diploma, suspension, or expulsion may be appealed to the vice president for student affairs and campus life or designee.
8.	In cases of Sexual Misconduct or Domestic Violence the following additional procedures will be incorporated in the administrative hearing process: a. The primary witness and accused student will have the right to select an adviser from a specially trained pool of students, faculty and staff trained in the areas of domestic violence and sexual misconduct. The special adviser will help guide the primary witness/accused student through the judicial process., b. The administrative hearing will be conducted by both a male and female hearing officer. c. The primary witness will be given the opportunity to meet with the hearing officers to provide information about the case prior to the hearing. If a primary witness elects NOT to attend this meeting, the alternative options are handwritten, audio taped, or video- taped statements submitted 24 hours in advance of the hearing.

The student may also choose to have a conduct review board hear the student's case if the student has been charged under the residential life rules and regulations and the hearing officer has imposed a sanction of residence hall reassignment, residence hall restriction, and/or termination of the student's housing contract. No other sanctions imposed by a hearing officer regarding the residential life rules and regulations carry with them the option of a conduct review board hearing.

A written request for a conduct review board hearing must be received by the director of judicial affairs within 72 hours of the written notification of the sanction(s) from the administrative hearing.

In the event that a student is eligible to have the student's case heard before a conduct review board and chooses to do so, the decision rendered in the administrative hearing becomes null and void, and the student continues without sanction until the conduct review board hearing process is completed.

Takeaway: So I think it best to talk to an attorney before your proceeding, to discuss the impact of the criminal proceeding, and how it's outcome may be followed by resolving academic issues later on. Sometimes it also helps to let the College know you are accepting responsibility for your conduct, and being proactive about getting help. These things can go a long way to assist your long term college goals.

Defending Marijuana Possession Charges

As part of my practice of the defense of DWI and other traffic related matters I often have to deal with other drug offenses. It is all too common that a bong, pipe, and/or other paraphernalia (vaporizers, spoons, hammers, chillums, bubblers, sidecars, sherlocks, raydiators, tubes, bats, headies) are found inside the car. All the police have to do is scrape together enough resin/residue, and another criminal charge is added to the fray.

Over the course of my years of practicing in the Fingerlakes I have defended many college students from SUNY Cortland, SUNY Binghamton, Cornell University, Ithaca College, Keuka College, etc. Marijuana use seems to go with college like cereal goes with milk. Some people think that New York State has decriminalized marijuana, sometimes it is only charged as a violation, but even in relatively small quantities it can be charged as a misdemeanor or even as a felony (if sold to minors).

There were 92,800 arrests for Marijuana in New York during 2007. Males aged 15 to 24 made up 56% of those arrested, and 70% of those males were white.

NOTE: After any lawful arrest in an automobile in NYS the entire car is subject to search top to bottom, inside and out. So much for your 4th amendment rights in New York State.

Outside, in a public park or on the street we have a different story. Police will sometimes make a false statement ie. lie to get an arrest. I know, as unbelieveable as that may sound Virginia, it happens. Law enforcement will tell college kids that they "have to" make a search. That if they want to avoid an arrest they should empty their pockets, and to show them what they have or else? Legally they could only pat you down for weapons, but to go into your pockets requires permission or probable cause, but once the marijuana is exposed to public view we have a full blown misdemeanor.

Here is a ranking of the New York State Pot Laws from least severe to more severe (in terms of penalties and consequences):

1. UPM under Penal Law 221.05: Unlawful Possession of Marijuana is not a crime it is merely a violation BUT since marijuana is a controlled substance under Federal Law a plea of guilty will make you ineligible for Federal Financial Aid (thank you President Clinton) for one year. Side note: Marijuana is not considered a controlled substance under New York State Law but we are discussing Federal Student Loans, Federal Work Study Monies, Federal Grants, and the Federal Hope College Credit.

UPM is possession of less than 25 grams of marijuana. In the majority of these cases (with first time offenders) your attorney can move for an ACD (adjournment in contemplation of dismissal) or a straight dismissal of the charge. The judge will set the term of staying out of trouble (no new criminal charges) FOR EITHER 6 MONTHS OR ONE YEAR. It is in his discretion. Also in his discretion is whether there is a substance abuse evaluation. Some judges also require community service.

The next level up of Marijuana offense is:

2. CPM under Penal Law 221.10: Criminal Possession of Marijuana in the 5th degree. This where the marijuana is either open to public view, burning, or where the amount is over 25 grams but less than 2 ounces. CPM is a crime. It is class B misdemeanor.

The next level up of Marijuana offense is:

3. CPM under Penal Law 221.15: Criminal Possession of Marijuana in the 4th degree. This is where you have more than 2 ounces but less than 8 ounces. Now that's what the District Attorney will say is real weight, and they are thinking at this point you are dealing drugs and not just possessing them for personal use. CPM in the 4th is a class A misdemeanor.

4. Penal Law 221.35 is for the Sale of Marijuana. All that is necessary is less than 2 grams or one joint/blunt. It is a Class B misdemeanor. Sale is a very loose term under the statute. Sale also includes gifting or an exchange of anything, as no "consideration" is needed under the statute to consider it a sale.

5. Penal Law 221.40 is for the Sale of Marijuana. Less than one ounce. It is a Class A misdemeanor.

The next two levels are where we move from misdemeanor level offenses (less than a year in jail) to felony level offenses (more than one year in jail). Misdemeanor offenses can be handled by City, Town, or Village Courts. Felony charges are only handled at the County Court level.

* Beware that Sale of More than ONE OUNCE moves the offense to Class E FELONY Status in New York State (punishable by up to 3 years in State Prison).

* Beware of New York State Penal Law 221.50. Sale of Marijuana to a minor (a person less than 18 years old). It is a Class D Felony Status. Which is punishable by a term of 4 to 7 years in State Prison, that's not county jail.

I would like to end off with the GOOD NEWS about number 1 through 5 above:

That Penal Law 221.05 UPM (Unlawful Possession of Marijuana), Penal Law 221.10 CPM (Criminal Possession of Marijuana) in the 5th degree, Penal Law 221.15 CPM (Criminal Possession of Marijuana) in the 4th degree, Penal Law 221.35 Sale of Marijuana, and Penal Law 221.40 Sale of Marijuana are all covered under the First Time Offender ACD statute.

New York Criminal Procedure Law Section 170.56.

Captioned as "Adjournment in contemplation of dismissal in cases in involving marijuana."

If a person qualifies under the statute a motion can be made by his attorney, and then his marijuana charges may be dismissed in the future, and all his official records and papers relating to his arrest and prosecution, whether on file with the Court, the police, or the New York State Division of criminal justice services will be sealed and not made available to the public or private agencies.

Upon the granting of such an order by the Court, the arrest and prosecution can be considered and deemed a nullity (as if they never happened) and the person shall be restored to his or her pre-arrest status.

If of course someone has has other prior charges (relating to marijuana and/or other drugs) then his attorney can potentially negotiate to some other non-criminal disposition, such as disorderly conduct. This is a violation and all the records of the arrest and prosecution would be sealed at the local level.