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The Future Can Be Better Than The Present


Outcome: Saved Our Client From Going To Jail.

“Almost every successful person starts with two beliefs: the future can be better than the present and I have the power to make it so.” – Theo Rossi

Our client –in the midst of a battle with leukemia– was facing a fourth offense of driving while intoxicated and a mandatory six-month jail sentence. He would likely die in jail. Most firms would realize there was nothing that could be done with facts such as this and accept a plea. Fortunately, we do not operate that way and set out to change the facts. First, we reviewed the client’s record and determined that procedural errors had occurred in one of the client’s prior convictions. Mr. Abate sought a judicial Order that this prior conviction could not be used to impose jail time. The Judge was adamant against issuing such an Order and Mr. Abate traveled to Southern New Jersey and ultimately persuaded the Court to issue such an Order.

The result was the client was now facing a third offence, which still would still expose the client to mandatory incarceration and a death sentence. In reviewing the client’s history, Mr. Abate noticed that there was now a 10-year gap between the second and third offenses. Mr. Abate convinced the prosecutor that the client was entitled to a “step down” and that the client should be considered a second time offender, which would remove the mandatory incarceration. Unfortunately, the Judge did not believe that such a result was legally permissible under the circumstances. Mr. Abate requested the opportunity to file a brief explaining why the “step down” was legally permissible.” Mr. Portanova set out to research the issue and wrote an extensive brief which eventually convinced the Judge that the client was to be considered a second offender, with no mandatory incarceration.

Nonetheless, the Judge sentenced the client to jail time –even though it was no longer mandatory– based on the client’s prior criminal record. At this point, we withdrew the guilty plea and sought to transfer the case to another Court as the sentencing judge now had knowledge of the client’s record, which could prejudice a fair trial. Upon transfer, the client was finally able to enter a plea which would not include incarceration. There were a number of opportunities where the firm and client were under pressure to just give up and let the client go to jail, where he would likely die, rather than get treatment for his leukemia. We used our extensive knowledge of the law and procedure to save our client from going to jail. More importantly, we never considered giving up.

We are extremely proud of this result. This was an effort of the entire firm and great thanks go to Mr. Portanova, paralegals Megan Brault and Allison Frederick for their skill, zeal and perseverance.

The Law Offices of James A. Abate LLC

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