Frye Law - November 2019


It began like any other hunting excursion. Neil Jacobs was walking softly through the bushes, looking for a spot to hunker down and watch for a flock of turkeys. The only problem was that someone beat him to that neck of the woods. James Kent had established a hunting spot for himself, and, when he heard rustling and gobbling in some nearby bushes and saw a flash of red, he took aim and fired. Unfortunately, the movement in the bushes was not a turkey. Kent was horrified to find that he had shot Jacobs. Jacobs promptly moved for a partial summary judgment against Kent on the basis that he had failed to determine that Jacobs was not a turkey but, in fact, a human being. Kent cross-moved for summary judgment, saying Jacobs should have expected risks when he stepped into a popular hunting environment. When their case came before the Supreme Court of the 4th District of New York, the courts denied both the motion and the cross-motion. They agreed that Jacobs had assumed the inherent risks of hunting — just not the risks it would be unreasonable to assume, like getting shot by another hunter who thought you were a turkey. Beyond that, the courts did not pronounce judgment because they did not have enough verifiable facts. Jacobs asserted that turkey hunters should not shoot unless they can see the turkey and verify its gender. The court could not determine whether Kent had failed to follow this rule when he shot Jacobs. They also could not determine whether the

doctrine of primary assumption of risk, which Kent pointed to in his defense, was even applicable. The court also called into question whether Jacobs had also been negligent. Ultimately, the case didn’t move forward.

Maybe next time, they should just try getting a turkey from the supermarket.



POSSESSION OF MARIJUANA If you’ve been charged with possessing a small amount of marijuana, you are looking at a misdemeanor case. When we’ve met with first-time offenders in this predicament, we look to diversion and drug-court programs as a way to allow for a charge dismissal. Keep in mind that the requirements for these programs vary from courthouse to courthouse, so it’s important to have a knowledgeable attorney advocating for you.

The state may consider misdemeanors minor offenses, but in reality, the accused may face severe consequences depending on the circumstances. While many cases result in sentences that include mandatory counseling, fines, or probation, there are some that include up to a year of jail time. If you’ve been charged with a misdemeanor, it’s important that you seek help from a knowledgeable attorney; one who can determine what resolution best suits each person’s needs and goals whether that is a reduced sentence, the pre-trial Diversion program, or a trial. Because some people who have been charged aren’t sure if what they’re being accused of qualifies as a misdemeanor, our team here at Frye Law Group wanted to offer some examples of the most common misdemeanor cases we take on. DUI While there are some circumstances that can increase this offense from a misdemeanor to a felony, generally speaking, a DUI is a misdemeanor. If you are stopped by police and asked to perform a field sobriety test, keep in mind that you have the right to refuse to complete the exercises with no adverse consequences. We tell clients that field sobriety tests only serve as a way for officers to gather evidence to prove what they’ve already concluded: the driver has been drinking.

BATTERY Similar to a DUI, there are circumstances that can increase this offense to a felony, but, for first-time offenders, a battery charge is a misdemeanor. Dealing with battery charges is complex because they can encapsulate a wide range of conduct. If you or someone you know has been charged with battery, it’s important to realize there are numerous defenses, the most important being self-defense. Just because the court views these charges as minor offenses doesn’t mean they can’t negatively impact your life for several years. If you’ve been accused of crime, be sure to gather all the information you need to fight your case by talking to an attorney who can help!


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