Case of the Week: People v Oliveras

The case of People v. Oliveras is a ruling that may have an effect on the definition of what constitutes "ineffective assistance of counsel". According to the present law, ineffective assistance of counsel occurs when a convicted client proves that their attorney was negligent in a way that badly impacted the case, and therefore the client's constitutional right to counsel has been violated (as per the Sixth Amendment). In People v Oliveras, the defendant's mental health was in question, and his lawyer attempted to argue that his client's confessions to the police were not completely voluntary, in part because of his questionable mental health. However, the attorney made a fundamental misstep that ultimately impacted the case: he never subpoenaed his client's psychiatric records.

My Experience at the National College of DUI Defense - Summer Session 2013

Hello everybody!

I've been away from the office all week since I was lucky enough to be able to travel to Cambridge, Massachusetts, to attend the 2013 Summer Session of the National College of DUI Defense.

There I got to participate in several events, which I'm going to list below:


• The Cross Examination: The Lawyers Opportunity to Testify
• Cross Demo of the Arresting Officer
• Preparing for Hearings & Trials: Approaches, Organization & Tools
• Lawyer Ethics and the Code of the West: Lessons Learned Over the Last 40 Years
• Presenting Your Expert
• A Closing for Every Case
• Changing the Jury’s Presumption
• Reflections on Forty Years of Forensic Alcohol and Drug Research
• Creative Opening Statements: Getting to Not Guilty Right Out of the Gate

Events like the Summer Session at the NCDD are a great opportunity since they allow Criminal Defense lawyers to really hone their skills, refresh their knowledge, and get updated on any new laws or regulations that could affect their cases. When selecting a lawyer to represent you, I believe its important to choose one who understands that law is not a static profession but one that continually evolves and improves. I place a lot of importance on keeping up to speed on my profession and I was happy I had the time to do just that up in Massachusetts!

If you are interested in learning more about DUI/DWI, click here to learn about your rights at DUI Checkpoint or here to learn about recent DMV Regulations that can affect you.

- Kevin McKernan

The Importance of a Will: Protect your Life Savings!

Throughout my years as a lawyer, I've noticed one commonality. Here’s the scenario: A beloved parent dies after a long illness. After a few days, the smoke clears and the children are suddenly left to deal with Mom or Dad’s Estate. Unfortunately, Mom and Dad never thought about making a will because they always thought that their possessions would just pass to their children automatically, but everyone is now realizing that that isn't necessarily true.

Cue the calls to my office.

I don’t mean to make light of such a difficult situation, but simply point out the importance of having a Will drawn up. The fact is, without a Will, when you pass away you are legally known as “intestate”. This means the fate of your estate depends entirely on the Court’s decision. What will occur is that the Court will hold a hearing to decide who the rightful heirs to your estate are and then decide accordingly. Unfortunately, this sometimes results in your estate not being split the way you intended.

How can you avoid this?

Social Media Reminder: How Facebook, Twitter and Instagram Can Hurt Your Legal Case

Today I would like to share a letter I send to all my clients regarding SOCIAL MEDIA. While we all enjoy some time on Facebook, Twitter and Instagram, we must also be cautious in our use of it when we have on-going legal matters!

Below is my letter.


Dear [Client]:

I am writing to give you some advice regarding your use of social media as you progress through the legal matter you have placed in our hands. As I am sure you are aware, social networking in the form of Facebook, Twitter, MySpace, blogs and the like has become an almost ever-present part of our lives. Often we post a thought, feeling, or photo without a second thought. In the context of a legal issue though, these actions can come back to cause you headache and hurt your case. I must advise you to use extreme caution when making any sort of post, update, or upload to any social networking outlet.

It is becoming a common practice for attorneys to request copies of any and all posts any interested party, including you, have made online. While we can object to these requests based on their relevancy, the courts have nonetheless been agreeing with defendant’s requests and allowing them access. In fact, District Attorneys Offices and other government agencies have successfully subpoenaed these accounts.

• Do not mention anything about your case online.
• If you absolutely must post something about your case online, do not enter anything detrimental to your case.
• You can’t delete it! Once you post something to a social networking site, it is there forever. If you go into your accont and delete anything, it still exists as the social networking site’s administrator keeps archives of all the material ever on their site. The information or photos still exist and parties can ask for, and usually get it.
• Review your “privacy settings” to make sure they are set at the tighest restraint possible. You can change them back once your case is over but while your matter is pending, it is in your best interest that your “friends” not be aware of your every move.

Please keep in mind that these warnings are not to make your life more difficult, but rather they are for your own protection, as well as to help make your case as solid as possible. Being cautious and making smart choices will help your case in the long run.

Please feel free to call our office at (718) 317-5007 if you have any questions at all or need additional information. Also, I ask that you contact us immediately if you feel you have any sort of social networking post that might be detrimental to your case so we may assess how to deal with it, and what action to take.

- Kevin McKernan

What Happens to Lassie After the Divorce? Pets and Custody Agreements

Today more than ever Americans are making sure that they make arrangements for their pets during a divorce. In fact, the American Academy of Matrimonial Lawyers reports they have experienced a 23% increase in the amount of “pet custody” cases. So what happens when both you and your partner want to keep the family dog after the split?

I've handled matrimonial cases my entire career, and I've personally dealt with clients who have disagreed over who will keep the family pet. Here are some tips to keep in mind if you or a family member is going through this difficult situation:

The Dangers of Prescription Drug Abuse: How Xanax, Oxycodone, and Percocet Can Change Your Life Forever

Prescription drug abuse has become an epidemic all across the country. Every week you can flip on the television or open a newspaper and find new stories of arrests and convictions related to prescription drug crime. According to NY Senator Kemp Hannon, over the last year over 22 million prescriptions for painkillers were written in New York, yet only about 19.5 million people actually live in the state. In fact, prescription drug abuse has reached such high levels that Mayor Bloomberg of New York launched a Prescription Drug Abuse Task Force in an attempt to stop the use of these dangerous drugs in NYC. New York and New Jersey law enforcement agencies take prescription drug abuse crimes extremely seriously and are vested in prosecuting these cases to the fullest extent the law allows.

New Jersey Law Part 1: Expungement

       One of the reasons why it is vital to consult a seasoned litigator when you are facing criminal charges is that experienced criminal attorneys such as myself know all the ins-and-outs of the court system and how you utilize that system to your benefit. One of the lesser known options that the New Jersey Court system offers is called expungement.

        When a person is arrested in New Jersey, regardless of whether or not they are convicted of the crime, a criminal record is created in order to document that arrest. Even criminal matters that may seem trivial, like matters that result in a summons or fine, may be recorded as arrests on your criminal record. These “arrests” can show up when a potential landlord, employer, or creditor checks your record and could have a detrimental effect on your livelihood!

New DMV Regulations That Can Affect Your Life!

          I recently had the opportunity to attend a NYS seminar concerning New York’s new DUI and DMV (Department of Motor Vehicles) legislation. Regulations concerning Alcohol and Drugged Driving Related Offenses change all the time and these cases tend to be some of the most emotionally-charged and stressful in the entire legal system. Therefore it is vital that you contact an experienced attorney as soon as possible if you have been charged with one of these offenses.      

         At the conference, I was apprised that as of September 25, 2012, the DMV has begun enforcing new and even more stringent regulations concerning impaired driving.

            The NYS DMV website lists these new regulations as follows: