Home: Alice in Legaland

Alice in Legaland:

Alice K. Berke, Esq. was nicknamed "Alice in Legaland" by the disc jockeys on WGNA radio, who would frequently put her on the air to provide off the cuff answers to legal questions raised by callers. Her informative answers were delivered in an entertaining, lighthearted fashion. The nickname carried over to become the name of the legal question and answer column she has been writing for years.

ALICE IN LEGALAND ANSWERS A TRAFFIC QUESTION Question: Today I was driving to work when I was stopped for speeding. I was speeding (albeit not by as much as the officer claims). Should I just plead guilty to the ticket and get it over with? Answer: It almost never makes sense to plead guilty to a speeding ticket. Likelihood is, the cost of your insurance will increase with the conviction. (A guilty plea has the same effect as a conviction.) If you have prior speeding convictions, your driver's license may be in jeopardy. If you do not really have any issues that warrant a trial, it is in your best interest to attempt to obtain a reduction of the charge to a non-speeding violation, or better yet, a no point violation. In addition to keeping your insurance lower and possibly saving your license, this should also result in a lower fine. If the ticket was issued by a NYS Trooper, s/he will usually prosecute the ticket alone and require you or your attorney to appear in order to negotiate. If the ticket was issued by an officer of the locality, a Town Attorney or Assistant District Attorney will prosecute the ticket and a resolution may be reached by your attorney via mail or telephone (which makes it possible for the attorney to charge less than you may think). In some courts, the prosecutor or Trooper will only negotiate with an attorney.

ALICE IN LEGALAND ANSWERS AN EVICTION QUESTION Question: As a landlord, I am constantly faced with the duty of evicting tenants due to their failure to pay rent. However, the timing requirements which determine when I am permitted to evict a tenant seem quite ambiguous. For instance. is a three day notice always legally required or can the Petition and Notice of Petition ever be served before the three day period ends? What would be the most efficient procedure for me to use to evict a tenant? Answer: In New York State, a landlord is required to either present an oral and personal demand for the rent or a three day notice (which is a written document informing the tenant s/he of the eviction). For the oral and personal demand, there is no requirement determining the specific date or "date certain" by which the rent is to be paid. Also, it is not a mandatory that all demands be submitted in writing or delivered by mail. It is preferable to use the method in which the statutory three day written notice is used as the means of informing a tenant of their eviction because the three day notice is a physical and a more credible form of proof than an oral and personal demand and will be more convincing and tangible evidence in a court of law.

ALICE IN LEGALAND ANSWERS A DIVORCE QUESTION Question: My spouse and I would like to divorce but are still friends. We do not live together anymore and would like to obtain a friendly no-fault divorce. I always read in the tabloids about the movie stars in California obtaining divorces based on irreconcilable differences. Can we do this in New York State? Answer: Unfortunately, New York State does not present the option of a "no-fault" divorce. All divorces must have grounds. Sufficient grounds for divorce are adultery, actual or constructive (withholding sex) abandonment, imprisonment, separation plus a year living apart, and cruel and inhuman treatment. Lawyers, being the clever people we are, have devised two ways to get a divorce when both parties want one. The first option is known as a conversion divorce and is based upon the parties living separate and apart for one year after a separation agreement is signed. (No matter how long you have lived apart, the period does not begin running until a separation agreement is executed.). After one year, either Party may ask the Court to "convert" the separation into a divorce. If the both spouses have substantially complied with the terms of the separation agreement, the request will be granted. This method is usually used when the parties have children or own property together to make sure any resulting issues have been resolved. The second option is known as a default or uncontested divorce. One Party sues the other asserting a grounds and the other Party agrees in advance not to respond, thus defaulting in the action and allowing the court to grant a divorce to the petitioning spouse. These divorces are usually pursued on the grounds of cruel and inhuman treatment because it is the most generic, easiest to prove and requires no third Party involvement. However, the complaint must contain actual allegations of cruel and inhuman treatment which may offend the spouse with whom you wish to remain friends. If s/he has tough skin and you have no children or property together, this is the fastest and least expensive way to divorce in New York State.

ALICE IN LEGALAND ANSWERS A CRIMINAL QUESTION Question: I was arrested for staying in a store after closing time to take money from the cash register and charged with burglary. I thought burglary only referred to "breaking and entering" crimes. Also, the arresting officer did not read me my Miranda rights. Can I get the charges dismissed for that reason? Answer: The definition of burglary used to be breaking and entering a dwelling in the nighttime with the intent to commit a felony therein. Now breaking and entering is no longer required. It is enough to remain unlawfully on the premises. The location need no longer be a dwelling, the time of day is irrelevant and the intention to commit any crime therein is sufficient. The officer's failure to read you your rights did not invalidate your arrest. It simply prevents the prosecutor from using any statements you made after your arrest against you at your trial. You will be entitled to a suppression hearing at which your attorney should argue against the admission of those statements into evidence. Therefore, your arrest was valid and the charges will not be dismissed on the grounds about which you inquire.

ALICE IN LEGALAND ANSWERS AN ESTATE QUESTION Question: I am seventy five years old and have been diagnosed with Alzheimer's disease. Since I expect to that I will become incompetent prior to my death, I decided it is time to plan for the period of time during which I may be unable to make my own decisions. Should I be executing a living will or a heath care proxy? Answer: A living will can set forth in detail what you would and would not want done by any treating physician if you were unable to express your wishes (i.e. intravenous feeding and hydration, pain medicines that may hasten death, respirator). This document can be as detailed or general as you like. If you have strong opinions on the foregoing subjects, a living will is your opportunity to make them heard. If you are undecided about your wishes, then you may prefer a health care proxy which appoints a third Party to make decisions for you at the time they are necessary. It is important you appoint a proxy with the same beliefs as you. You may also consider executing a Durable Power of Attorney along with either of those documents. This document is the same as a regular Power of Attorney but it survives incompetancy. Thus you would have someone making medical decisions for you and someone making financial decisions for you.