The Legalities of A Home Based Business

Home based businesses can be an exciting new endeavor that bring in significant profits. Of course, before you get started, you should know that home based businesses are still required to conform to some strict rules and regulations. Before you decide to open your own home based business, here are a few points you should carefully review.

1. There are restrictions on the sale of certain goods and these vary from state-to-state.
There are a variety of items that you cannot produce or sell in your home. Potentially dangerous products such as medications and sanitary products are illegal to manufacture and/or sell from home.

2. You need to register and obtain certain licenses to be legally able to do business.
Before you open up shop, make sure you register your business's name in the state that you're conducting business in. Additionally, you will also need to register for a sales tax number, since every business is required to collect sales tax.

3. You may need a Home Occupation Permit and Check Your Zoning Laws!
In some states, you will need to have a Home Occupation Permit in order to legally do business. You will need to check whether or not your home is zoned for the type of commercial activity you plan to do in your home.

4. There are additional health and safety measures you may have to take.
Certain industries require extra health and safety precautions to ensure that both the working environment and final product are safe for consumption. You should check with your State Environmental Protection Agency to ensure that your home based business is up to date with all safety standards.

5. You may want to look into sign permits.
If you have a business such as a home based daycare, you may want to place a sign in front of your home in order to advertise. If this is the case, you may want to look into whether or not you need a sign permit, since certain towns will restrict the size, type and/or location of signs.

Its important to be informed before you start any kind of business. If you have any questions or concerns about the legalities of starting your own business, its best to consult an attorney. This will ensure that your business is up to code in all areas and help you understand your legal responsibilities so that your business will get off to a great and productive start. Good luck with your new business!

Traffic Tickets in New York

We all know that traffic tickets can be pain, especially for busy New Yorkers. Getting a traffic ticket can be both costly and time consuming. If you wish to fight your ticket, the process can be arudous and paper work intensive.

The first and most important thing you can when you get a ticket in New York is to know your options. The first option is you can plead "Guilty" or "No Contest" to the ticket, which means you will have to pay the fine and/or the Driver's Responsibility Program. The consequences of this option include receiving a certain numbers of "points" on your license (which could led to the suspension/revocation of your license) and a possible increase in your insurance premiums. The second option is to fight the ticket and plead not guilty. If you choose this option, you will have to contest the ticket during a hearing. The potential consequences of pleading "Not Guilty" is that if you lose, you might not be offered a plea bargain for a lesser penalty.

An important thing to remember is you should absolutely respond to your ticket within the allotted time. If you do not turn your response in by the scheduled date, you will forfeit your chance to plead Not Guilty.

If you have multiple tickets, or tickets that could rack you up enough points to suspend or revoke your license, it's wise to hire an experienced traffic lawyer. There are several advantages to hiring a traffic lawyer. The primary advantage is that these attorneys handle these types of cases on a daily basis, so they have most likely dealt with a situation similar to yours, no matter how unusual or difficult your particular case seems. They should be familiar with the types of defenses work best with individual judges and any paperwork or "red tape" that you will need to get through. Another major benefit associated with hiring an attorney is that you may not have to appear in Court.

If you or a loved one is in need of a traffic attorney, feel free to contact the office at 718-317-5007.

What You Need to Know (Legally) About Co-Parenting

The goal of Family Court judges is always to advocate for the best interest of the child or children in question. Traditionally, this meant that mothers had primarily physical custody, often with the fathers sharing joint legal custody. This meant that children physically lived at their mother's residence most of the time, both parents had an equal say in the child's upbringing, medical decisions, and schooling. Today, especially in New York, many judges have moved away from this system.

Family Courts are now finding new ways to split parenting. Instead of "all-or-nothing" decisions about custody, Judges may now chose to delegate several different areas of parenting to either the mother or father of the child(ren). For example, a recent case in Kings County resulted in a judge awarding the mother care of the medical and educational decision-making while the father was awarded joint decision authority on all other custodial matters. Judges may favor this system because it encourages cooperation and mutual agreement while co-parenting.

Remember, the Court's goal will always be to rule for what it is the best interest of the child(ren), therefore showing a willingness to amicably co-parent with your ex-spouse can go a long way. Judges who observe one of both parents openly showing hostility or antagonism towards the other may find it is better to delegate decision-making authority to one parent in certain areas instead of taking on the difficult task of co-parenting.

Judge Rules Fiancee Dumped via Text Keeps Her Ring!

Last week a New York Supreme Court judge made a controversial ruling in a matrimonial case in which an upstate man decided to call off his wedding with his fiancée by text message. The judge ruled that the woman would get to keep her 2.97 carat diamond engagement ring, valued at over $50,000, despite New York's established legal precedent that grooms have a right to the ring back if the wedding does not place, regardless of which party got cold feet (you can find more information about that in my Love and Warfare blogpost found here.

In this particular case, the groom texted the bride to call off the wedding. When the bride protested about the method of the breakup, the groom replied by saying "Plus you get a $50,000 parting ring. Enough for a down payment on a house." This statement came back to haunt the groom when the Judge ruled that his statement counted as a formal acknowledgement that the ring was a parting gift intended for the bride to keep.

Stories like this drive home the potential dangers of technology when dealing with legal matters. You should keep in mind that things that you say in text messages, Facebook updates, tweets and an array of other forms of instant communication can and potentially will be used against you in Court. You can read the letter I give to clients about smart social media usage here and find more information on how social media can affect your divorce here.

Starting a Business? Here's Some Tips That Will Help

If you are contemplating starting a small business in New York, you are not alone. According to NYS, 98% of all businesses in New York are small businesses, and together these businesses employ more than half than the private sector workforce. Starting your very own business is very different than buying a business, which we discussed here. Unlike buying a business, when you start your own business you are in total control from the very beginning. You get to select everything, from the business name, to the location, to its employees. One of the advantages of starting your own business is that, according to NYS Department of Taxation and Finance, it is one of the least expensive ways of starting a business. One of the major disadvantages, on the other hand, is that by starting from scratch you must build your clientele and reputation from the ground up. Before you make any major decisions, you should carefully consider all your options and evaluate your financial situation. If possible, you may want to consult with other small business owners in your area so you have a first hand account of what a similar business should expect.

If you have decided on beginning your own business, congratulations! Here are few steps you should take before you open the doors:

• Decide what legal organization your business will be. The most common forms are the sole proprietorship, the partnership, the corporation and the LLC. You can find a “Pros and Cons” list of these organizations here.

• Sketch out a business plan outlining your product ideas and market strategy. Your business plan should include a description of your products and/or services, a list of your business goals and a timeframe in which you expect to achieve them, such as “Sell X amount of product in Y amount of time”, your plans for targeting your customer base and current trends in the market, and your financial situation, such as cash flow and profit and cost projections.

• Begin the employment process. First, you will need to obtain two vital types of insurance: unemployment and worker’s compensation insurance. These can be found either on your own through a private company or through NYS. You will also need to set up your payroll. It is recommended have payroll set up at least a week before you hire your first employee.

• Get an employee handbook. While not necessary, most new business owners find having a professional and comprehensive employee handbook makes managing people a lot easier. The handbook should explain company policy and include things such as vacation time, holidays, cellphone and/or computer usage, and behavioral guidelines.

I hope these tips help you out as you start your new and exciting foray into small business. If you have any questions or need assistance with beginning your business, don't hesitate to call the office at 718-317-5007. Remember, when in doubt, it's always better to contact a legal professional!

There Are Three New DUI Bills Pending In New York State Legislature

The New York State legislature is currently considering three new bills concerning driving while impaired. If passed, the three new bills will once again increase the penalties associated with DUIs. These bills are part of what has become a trend of harsher penalties and longer sentences for those convicted of DUI.

The first bill concerns offenders with multiple DUI convictions. The main purpose of the bill is to increase the severity of the charges that multiple DUI offenders will face. In this case, offenders with three previous DUI convictions who are involved a fatal crash can now be charged with vehicular homicide, a step up from the standard charge of vehicle manslaughter. Offenders charged with vehicular homicide can face up to 25 years in prison.

The second bill involves leaving the scene of an accident which is currently a felony whenever human injury or death is involved. A common defense for impaired drivers who left the scene of the accident is that they were too intoxicated to realize that they left. The New York legislature is now attempting to remove an offender's ability to use that defense.

The third bill aims to legally redefine "intoxication." Legally, when the word intoxication is used, it applies to being impaired by alcohol. The New York State legislature now wants to broaden that definition so that any substance that causes an impairment on someone's ability to drive. If passed, this bill would widely expand the criteria of what a DUI is. For example, drivers who are impaired by prescription pain medication could be charged with a DUI.

These new bills do not simply increase the penalties associated with DUI, but increase the need for offenders to have an attorney. A good attorney is essential to the outcome of your DUI case. Don't let a DUI conviction change your life forever.

For assistance with a DUI, you can contact my office at 718-313-7563.

- Kevin P. McKernan

What to Do When You Get a DUI

In my experience, the typical DUI client is an average person who made a mistake and now is facing enormous consequences which will affect their ability to get jobs, pay their bills, and even keep their freedom. Defending a DUI client, especially in New York and New Jersey, involves a very particular type of law since in these cases the prosecutors usually already have substantial physical evidence such as blood and urine results. For most clients, the majority of our defense will come down to pinpointing discrepancies and/or outright mistakes law enforcement made during your arrest. This involves meticulous review of your case - every detail counts in a DUI case.

Many peoples' first instinct is to consult their family or local attorney when they get a DUI. These attorneys do not often deal with DUI cases and all too often will look at the surface of the case and then advise their client to take a plea. Unfortunately, many clients do not realize that taking a plea in a DUI case has long term and serious consequences. When you plea to a DUI, you are admitting guilt and you will now have a (possibly felony) criminal record for the rest of your life. This means you will now be required to check "yes" when asked if you have ever been convicted of a crime on both job and college applications, may get your driving privileges suspended or even revoked, and your car insurance will undoubtedly be higher.

The best thing you can do if you are arrested for a DUI is hire a Criminal Defense lawyer. The more experienced your attorney is in DUI cases, the better off you will be. When looking for an attorney, remember that a DUI case is one where close and meticulous attention to detail is needed, so this is an attribute you should be looking for in your attorney. Another important thing to remember is that a skilled attorney often can make a real difference in the outcome of your case, so don't panic! Remember, in a DUI case, the surface facts of the case like your breathalyzer results are just the beginning. A good attorney will be able to build a solid defense from these facts.

If you or a loved one has been arrested on a DUI, feel free to contact my office at (718) 317 - 5007.

- Kevin McKernan

The Hidden Cost of Speeding Tickets

Some people get speeding tickets, pay the fines, and shrug it off. However, speeding tickets can cost you way more than just the face value of the fine. In New York, speeding tickets are associated with points, whose accumulation on your license can lead to suspension. Many people simply don't realize how much money simply accepting a speeding ticket will actually cost them.

First, you must pay the ticket itself, which depending on the speed you were pulled over at, could be anywhere from $45-$600. Then you must pay the associated surcharges. In New York, many speeding tickets come with surcharges of up to $100.

After you have paid all the fines and surcharges surrounding your ticket, you must accept the points that will be added to your license. If you have been ticketed with other driving violations in the past and have accumulated 11 points in the past 18 months, your driver's license may be suspended. Furthermore, if you have had three speeding incidents in the past 18 months, even without them adding up to 11 points, your driver's license may be suspended.

Finally, your insurance may increase as a result of a bad driving record. This results in you paying more each year for the same insurance!

The best way to avoid the consequences surrounding a ticket is to get an attorney. Experienced attorneys have handled hundreds of these matters and know how to make you walk out with the least possible amount of points and/or fees. A traffic attorney will help you navigate the situation to the best possible outcome.

If you received a traffic ticket in New York or New Jersey and need assistance, feel free to call the office at (718) 317-5007.

- Kevin McKernan

Felony Convictions

There are few things as stressful as getting charged with a felony. In New York and New Jersey, felonies are highly serious crimes that come with a multitude of consequences. For example, if you are convicted of a felony, you may no longer vote, sit on a jury, obtain a firearm, or use welfare. Additionally, many companies are in the practice of performing extensive background checks before they take on new employees and a felony conviction may hamper your changes of obtaining jobs in certain fields.

In New York there are five classes of felonies, ranging from A-E. There are hundreds of crimes that fit into each class, but I've put together a quick guide to what crimes correlate to each class of felonies.

Class A is the most seriously class of felonies.
Class A Felonies include: murder, treason, arson, kidnapping (all in the first degrees)
Violent Felony Sentence: Life, 20-25 years

Class B Felonies include: Aggravated Assault of a Police Officer, Burglary 1, Criminal Possession of a Weapon 1, Rape 1, Bribery 1, Grand Larceny 1, Insurance Fraud 1
Violent Felony Sentence: 5-25 years
Non Violent Felony Sentence: 1-3, max 25 years

Class C Felonies include: Aggravated Sexual Abuse 2, Burglary 2, Robbery 2, Bribery 2, Manslaughter 2, Vehicle Manslaughter 2
Violent Felony Sentence: 3.5-15 years
Non Violent Felony Sentence: probation, 1-15 years


Class D Felonies include: Assault 2, Criminal Sale of a Firearm 3, Sexual Abuse 1, Bail jumping 1, Criminal Sale of Marijuana 2, Stalking 1
Violent Felony Sentence: 2-7 years
Non Violent Felony Sentence: probation, 1-7 years

Class E Felonies include: Abandonment of a Child, Arson 4, Defrauding the government, Stalking 2, Computer Tampering 2, Criminally Negligent Homicide
Violent Felony: Probation, 1.5-4 years
Non Violent Felony: Probation, 1-4 years

Please remember that this information is taken from New York Penal Law Article 70, Sentences of Imprisonment. It does not mean that you can calculate your prison or probation time from this guide. You can receive jail time for Class C, D, and E felonies, however, jail time isn't mandatory like it is with Class A and B felonies. Prior Convictions often have a big impact on sentencing.

If you have been convicted of a felony, you should hire an attorney as soon as possible. An experienced attorney will be able to give you a more accurate estimate of what your sentencing will be. They can also advise and guide you through the process. If you are in need of a Criminal Defense attorney, you can call my office at 718-317-5007 or contact me at www.kmckernanlaw.com

Amendment to the NYS Ignition Interlock Device Law

Recently, some new amendments to New York State Ignition Interlock Device Law were signed into law. The amendments change several key points of the procedure:

1. It is now a class E felony to drive while intoxicated on a conditional license. You will be charged with first degree aggravated unlicensed operation of a motor vehicle.
2. Youthful (under 18) DUI offenders will now be treated just like their adult counterparts. Before the amendment, it was not mandated that youth offenders get an ignition interlock device installed like it was for adult offenders.
3. The minimum period that an interlock ignition device will be installed was increased to one year. Before the amendment, the minimum was only 6 months.
4. The period of time that the interlock is on now begins from the date of sentencing, or the date that the device was installed if it was done in advance. Prior to the amendment, no “time served” was credited if the interlock was put on before sentencing.
5. In order to avoid the installation of the interlock device, an offender must swear under oath that they do not own a vehicle.

Updates to Leandra's Law Makes Driving Intoxicated with a Conditional License a Felony

Today I wanted to let you know about a new and very important change in New York State Law amending the law currently known as "Leandra's Law" or the Child Passenger Protection Act.

As you should be aware, Leandra's Law imposed strict penalties on the operation of a vehicle with children in the car while intoxicated. It mandated that an ignition interlock device, or IID, be installed in the vehicle of anyone convicted of driving while intoxicated. Furthermore, if a person is convicted under the law, they will be reported to The Statewide Central Registry of Child Abuse and Mistreatment.

Recently, Governor Cuomo signed legislation to make Leandra's Law even tougher. The new law makes it a class "E" felony to drive intoxicated on a conditional license rather than just a traffic infraction, which is not a crime. Driving while intoxicated with a revoked license will remain a felony.

The law also limits the circumstances when Court can waive the installation of the IID. Now the installation can only be waived when the person swears under oath they are not the owner of any motor vehicle and will not drive during the period of the interlock restriction. If the person lies under oath, it is considered perjury, which is a felony.

Obviously, every driver should drive safely and responsibly, but contact an experienced DUI attorney in the event that you are charged with a DWI or any traffic offense.

Kevin P. McKernan is a member of the National College of DWI Attorneys. 

Drug Tests at Work & Your Rights

Drug testing for employees has became standard in many industries. This has left many people wondering about the legalities of this process. Unfortunately, it is hard to find a universal answer since laws and regulations vary widely from state to state.

Common DWI/DUI Defenses

I recently received a NHTSA packet titled “Challenges and Defenses II: Claims and Responses to Common Challenges and Defenses in Driving While Impaired Cases”. I thought it would be useful to share this information to those who are or have a loved one who is facing driving while impaired charges.

Aggravated Assault Becomes Class "E" Felony

A law concerning aggravated assault was recently amended by Governor Cuomo. Penal Law 120.12 originally made it a Class E felony for a defendant who was 18 years or older to have committed assault in the third degree against a child if the defendant had been previously convicted of such a crime within the past three years. Governor Cuomo has signed an amendment into law that mandates that the look back period be extended to ten years instead of just three. This means more offenders who commit assault on a child can be prosecuted.

In New York, there are five types, or classes, of felonies. A Class E Felony is the lowest category, associated with the shortest jail sentences. However, being convicted of a felony is considered much more serious than being convicted of a misdemeanor or violation. Felonies are associated with longer jail time and limitation of your employment prospects. Felony sentences can be particularly harsh if you are a multiple time offender like those who will be affected by Governor Cuomo's amendment.

If you are charged with a felony, you should absolutely contact an attorney. An attorney can advise you of your options and work with the court for a lesser sentencing. If you are in need of an attorney, please contact my office at 718-317-5007.

- Kevin P. McKernan

How to Create an Effective Non-Compete Agreement

A Non-Compete Agreement is a legal document used by business owners to restrict their employees from doing things that will damage the business, such as trying to convert customers or using inside knowledge or trade secrets, after they leave the company.

In New York, Non-Compete Agreements have been historically hard to enforce. The New York Court of Appeals has set strict guidelines that Non-Compete Agreements must follow in order to be considered valid in a court of law. The most important factor in whether or not a Non-Compete is enforceable is whether it is considered reasonable. The agreement must neither place undue hardship on the employee nor place any restrictions on the employee that are greater than needed to protect the company's legitimate interest. Despite the difficulty in enforcing Non-Compete Agreements, it is wise for small business owners to look into drawing up a valid agreement in order to protect their business. Below are some tips that can make your Non-Compete agreements more likely to be enforced in court.

VTL 516: How Your Driving Violations Will Affect You

It is important for all drivers to be aware of the vehicle and traffic laws in their state. If you live in New York or New Jersey, you should be informed about VTL 516, which is commonly known as the "Driver License Compact".

VTL 516 states that because "the safety of streets and highway is materially affected by a driver's degree of compliance with state driving ordinances and that violation of those laws by a driver is evidence that the driver regularly engages in unsafe behavior while operating a motor vehicle", states in agreement with the VTL 516 Compact will report driving convictions that occur in other states to the driving authority of the person's home state. For example, if a New York driver is convicted of a DUI in New Jersey, it will affect his license at home in New York just as if it had occurred in New York.

Other convictions that are mandatory to report in VTL 516 States include manslaughter or negligent homicide, DWI, any felony in the commission of which a motor vehicle is used, and failure to stop and render aid in the event of a motor vehicle accident which results in the death of personal injury of another.

Shoplifting in NYC: Consequences and Outcomes

Shoplifting is often mistakenly thought of as an embarrassing offense committed by unthinking teenagers in department stores. In reality, however, shoplifting is one of the most common criminal offenses in New York City.

Click below for some of the potential consequences and outcomes of shoplifting cases.

What You Should Know About Drugs and DUIs

When people are accused of a "DUI", most people's minds automatically go to "drinking while driving". However, just because alcohol related DUI's are more commonly seen in the media, doesn't mean drug related DUI's aren't just as common and dangerous. In fact, a study by the Substance Abuse and Mental Health Services Administration found that over ten million Americans drove while under the influence of drugs in 2010.

If an officer believes that you are impaired enough to be a danger on the roads, you can and will get charged with a DUI no matter what the substance you have consumed is. But although the charge is the same, there are some differences in drug and alcohol based DUI cases.

The Facts on Reverse Mortgages

If you or your spouse recently turned 62 or older and own your home, you may be reciving offers from lenders about obtaining a Reverse Mortgage. A Reverse Mortgage is aptly named - it is the exact opposite of a traditional mortgage.

In a traditional mortgage, a lender offers you a loan in order for you to obtain your house and you, in turn, agree to pay that loan down in manageable monthly increments. Since the lender is putting himself as risk by allowing you to borrow such a large sum of money, interest is added on to every month's payment. When you pay your mortgage for the month, you are paying down on your mortgage loan and essentially becoming a step closer to owning your home.

In a reverse mortgage, you already own your home but are older, retired, and would like extra funds each month. When you enter a reverse mortgage, your lender will send you monthly checks. These funds are being taken out of the equity of the house, so the amount of you owe will grow over time. Interest will also be charged to the total balance of your loan. Additionally, most reverse mortgages have variable rates instead of fixed, which means the rate of interest you will be charged will change depending on market conditions. As with any mortgage, a reverse mortgage is a major financial agreement that should not be entered into without careful examination of all contracts and financial documents by an attorney.

Five Reasons Why You Should Stop Talking and Driving - New DMV Regulations

Have you read about the new DMV legislation? Well here are five reasons why you should.

Governor Cuomo recently announced changes to the number of points that will be imposed on all licenses for violating regulations VTL 1225-c (Use of a Mobile Telephone While Driving) and 122-5d (Use of Portable Electronic Devices). Talking on your phone while driving, or even simply reaching down for a second to turn on the new Kanye album on your iPod, has become common practice for many drivers who do not realize they can face serious consequences for even a moment's distraction. Starting June 1, 2013, Use of a Mobile Telephone and Portable Electronic Device while operating a vehicle will incur a five point penalty instead of a three.

What does a change of two points matter? Click below to find out.