New York Criminal Lawyer Blog

The ease by which the police can arrest and Assistant District Attorneys can prosecute denizens of New York City (or any municipality in New York State) for drug crimes can be greatly concerning. Merely because one is a New York drug lawyer or a New York criminal defense attorney should not give one permission to be blind to the serious consequences of the drug trade and use. With that in mind, however, more than one person has been accused of a narcotics crime such as Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03), based on weak or wrong evidence.

For better or worse (which need not be debated here), the law formerly required that a prosecutor provide a laboratory test result or a field test from the police to move forward with a narcotics or drug criminal case beyond the initial arrest. Without this corroboration, the complaint against an accused drug user or seller would contain hearsay. Now, as a result of People v. Kalin, "the sworn allegations by the arresting officer [that the substance in question was a drug are] sufficient to satisfy the requirements of an information." Simply, an officer, while not compliant with the "old law," may state that based on his observations, training and experience, the substance in question is a particular contraband. Upon doing so, the complaint becomes an information without any scientific analysis of the alleged drugs. Again, while we need not debate the merits of this case and law, it is clear to even the untrained eye that an officer can be completely wrong as to the nature or presence of a controlled substance, but an accused will still be arrested and prosecuted for a crime he or she did not commit.

In People v. Gilbert Irizarry, 2012BX052381, NYLJ 1202599401178, at *1 (Crim., BX, Decided May 6, 2013), a court was confronted with whether or not an officer's assertion based on his training or experience satisfied the Kalin rule. In Irizarry, the police arrested the defendant for "smoking a lit cigarette containing alleged Phencyclidine (PCP) which he dropped to the floor by his left foot as the arresting officer approached him." The police concluded the substance was PCP based on his training and experience including training on the "packaging and prescribed controlled substances based upon the label on the container."

Despite the police officer's assertion that the substance contained PCP, the court ultimately dismissed the complaint for facial insufficiency. Yes, an officer can base his claim on training and experience, but here there was much lacking. Citing Kalin, the court noted that "standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement." Further, although the officer was trained in the packaging of controlled substances in arrests for NY PL 220.03, "a 'lit cigarette' is not 'packaging' which, in and of itself, would commonly indicate to anyone, trained or otherwise, the presence of Phencyclidine (PCP). There is also no allegation that said lit cigarette included any 'label on the container' by which the officer could ascertain the presence of the alleged controlled substance." As a result, these bold faced, but fairly unsubstantiated conclusions on the part of the officer, the court dismissed the complaint for facial insufficiency. Although a tremendous victory, it was arguably hollow. Dismissing with one hand, the court extended the other and permitted the prosecution to supersede (redraft) the complaint with a new accusatory instrument.

To learn more about NYC arrests for PL 220.03, Desk Appearance Tickets (a common means by which first time offenders in New York are prosecuted and arrested for misdemeanor drug crimes) and other felony narcotics offenses, review the links found throughout this entry or go directly to the New York Drug and Narcotic Crimes section of CrottySaland.Com. Further reading on statutes, laws and legal decisions relating to drug offenses in New York can be found throughout the NewYorkCriminalLawyerBlog.Com.

Established by two former Manhattan prosecutors who served and trained under Robert Morgenthau, the New York criminal lawyers at Crotty Saland PC represent clients for all criminal investigations, arrests and indictments throughout the New York City region.

With the amount of blog entries I have recently drafted relating to New York weapon crimes including those involving New York firearm laws and knife arrests, one would think that the criminal lawyers at Crotty Saland PC spend their days solely defending clients against misdemeanor (New York Penal Law 265.01) and felony (New York Penal Law 265.02 and 265.03) weapon arrests. While we certainly do our best to keep ourselves up to date on the ever changing laws and regulations involving New York weapon crimes, this area of law is remains a significant piece of our criminal defense practice. Irrespective of how often we represent clients accused of possessing legally owned firearms at JFK or LaGuardia airports or gravity knives on the streets of NYC, there can be little dispute that many weapon statutes in New York are enforced with greatest of intentions, but often against honest, "clean" and law abiding people.

In a recent example of a "regular Joe" being ensnared in a New York weapon crime, Crotty Saland PC represented an attorney accused of possessing a knife with a blade exceeding four inches. Further, when arrested with possessing this knife, both the police and prosecutors at the District Attorney's Office charged our client with violating New York Penal Law 265.01(2). Not the "per se" section of the New York Penal Law, this subsection of Fourth Degree Criminal Possession of a Weapon makes it a crime (in substance) to possess any dangerous instrument (it has a very liberal definition) unlawfully against another person. Keep in mind...under the right circumstances a can of Red Bull or your backpack could be considered a dangerous instrument.

The police arrested our client after stopping the vehicle in which he was a passenger. In the back of the vehicle, our client had his camping gear and the knife in question. According to the police, the knife was in plain view (our client disputed this claim). Not on his person, the police arrested our client for possessing the knife with intent that he was using it unlawfully against another. Although prosecutors drafted the complaint, our attorneys argued that a knife in the backseat area of a car and outside the reachable area of a defendant (with no other indicia of possession or use) did not satisfy the minimum requirement for facial sufficiency where prosecutors must establish an intent to use the knife unlawfully. Further, even though the knife blade exceeded four inches and violated NYC Administrative Code 10-133, in the spirit of fairness, the knife clearly was one used for camping (the knife was amongst all sorts of camping gear).

Upon investigating the case further and speaking with the arresting police officer, the District Attorney's Office did the "right thing." Not only did they dismiss the arrest charge of NYC Administrative Code 10-133, but they also dismissed the arrest charge of Criminal Possession of a Weapon in Fourth Degree. While prosecutors were not legally bound to dismiss the former charge, they simply did not have the legal standing to prosecute or prove beyond a reasonable doubt NY PL 265.01(2).

While our client was certainly ecstatic that the case was ultimately dismissed, the New York criminal lawyers at Crotty Saland PC can in no way guarantee the same result for future clients. More importantly, however, the critical thing to recognize is that merely because you are charged with a weapon crime, whether it be for possessing a gravity knife or even a firearm, does not in fact mean the arrest or charge is a legal or viable one. The critical importance of fighting cases on procedural, legal or factual grounds in addition to or apart from mitigating conduct, cannot be ignored.

To learn more about the different weapon crimes in New York and their respective statutes, follow the links in this entry as well as those listed below. Further, a search of the NewYorkCriminalLawyerBlog.Com's "Weapon Possession" section will reveal additional analysis and case results.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients throughout the New York City region.

New York State is on tough place to face a criminal charge. Yea, there are always concerns with New York's "strict liability" crimes where knowledge, as opposed to intent to commit a crime, is a sufficient basis for an arrest and conviction, but in the realm of New York City and the greater New York State, there are other seemingly innocent actions or items that can form the basis of a criminal arrest. Unlike possessing a gravity knife or switchblade knife where it matters not whether the knife was to be used to cut cardboard or human flesh (see New York Penal Law 265.01(1) - Fourth Degree Criminal Possession of a Weapon), other weapon offenses relate specifically to how you used the item or object in question. So...that pillow, iphone or sneaker may be just as dangerous in the eyes of the law as a set of brass knuckles. Simply stated, you are guilty of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2), if you possess a dangerous or deadly instrument with the intent to use that instrument against another person in an unlawful manner.

To help better understand the misdemeanor weapon crime of NY PL 265.01(2), the following case is a good place to start. While no criminal lawyer would expect that you, as an accused person charged with a misdemeanor offense and given a Desk Appearance Ticket (which does qualify as an arrest, by the way), will read all the relevant statutes and cases, educating yourself prior to speaking to a criminal defense attorney will certainly land you in a better place.

In People v. Greenberg, 2013 NY Slip Op 50405 - NY: Appellate Term, 2nd Dept. 2013, a judge convicted the defendant for Attempted Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 110/265.01(2). The trial testimony established that the defendant made threatening statements to his neighbor and then threw a pigeon spike (whatever that is), onto the complainant's balcony. The spike landed near the complainant, but did not strike her.

Finding the conviction of PL 110/265.01(2) to be against the weight of the evidence, the court first recognized that the plastic spike had to have been found to be a dangerous instrument which, according to section 10.00 of the New York Penal Law, is "any instrument, article, or substance, no matter how innocuous it may appear to be when used for its legitimate purpose, that is used in a manner which renders it readily capable of causing serious physical injury." Analyzing this further, serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

Without going into detail, the court did not believe the record supported the crime of Attempted Fourth Degree Criminal Possession of a Weapon. Did the defendant's actions come within a dangerous proximity of using a dangerous instrument to cause an injury? Would the outcome be different if the same plastic spike struck the complainant in the eye (without an injury) or was driven through the complainant's shirt? The answer to these last two questions is likely yes. Here, without stating specifically, the plastic pigeon was apparently not thrown at the complainant, but on the porch, did not come within any relative proximity of harming the complainant and the pigeon was not described in greater detail as to its sharpness, size, etc. Does this legal decision mean that a plastic pigeon cannot be a weapon? No, but this decision emphasizes that manner in which an object is used and how it may cause a physical injury is critically important.

To learn about misdemeanor weapon crimes in New York, whether the offense or arrest is a violation of the New York Penal Law or New York City Administrative Code, follow the links above and below. Further, you can search the NewYorkCriminalLawyerBlog.Com for specific crimes or terms.

The New York criminal lawyers at Crotty Saland PC represent clients in all New York weapon crimes throughout the New York City region. Established by two former Manhattan prosecutors, Crotty Saland PC is located in lower Manhattan by both the State and Federal courts.

Among many concerns that someone arrested for possessing a loaded (or unloaded) firearm, pistol, revolver or similar gun at a New York City airport may face, is how, if at all, the firearm can be returned subsequent to a resolution of the criminal case. Whether you are charged with a misdemeanor gun possession charge at New York's JFK Airport for possessing an unloaded firearm without any ammunition (New York Penal Law 265.01 - Criminal Possession of a Weapon in the Fourth Degree) or you are arrested for a felony gun possession at LaGuardia Airport for possessing a loaded firearm (the bullets need not actually be in the gun) and charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), the likely answer to this questions is fairly clear. As part of the potential plea, offer or even non-criminal disposition, the Queens County District Attorney's Office is not going to return that firearm back to you even if it was lawfully owned, registered and permitted in your home state. A case directly on point is the Matter of the Application of Shahin Khoshneviss v. the Property Clerk of the New York City Police Department, 2010 NY Slip Op 30299(U).

In Khoshneviss, the former defendant sought the return of his .45 caliber firearm and magazine clip that the New York City Police Department vouchered. The NYPD came into possession of the firearm after Port Authority Police Officers arrested him at LaGuardia Airport. Like many "regular" and law abiding citizens, Khoshenviss had declared his firearm for transportation on his flight to California from New York City. Ultimately, prosecutors charged Khoshneviss with Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The former felony is punishable by a minimum of three and one half years in prison while the latter misdemeanor is punishable by no more than one year on Rikers Island. Fortunately, Khoshneviss was not convicted of either a misdemeanor or felony, but pleaded instead to a non criminal violation of Disorderly Conduct.

With this non criminal plea, Khoshneviss sought the return of his firearm. However, the NYPD advised Khoshveniss' criminal lawyer that the firearm was considered contraband because the defendant did not have the legal permits and licenses to possess the weapon within the borders of NYC. As such, the weapon would be destroyed. In response, Khoshveniss' attorney sent an original invoice for the gun and asserted its legal ownership outside New York and that the firearm is not contraband and is protected under 18 USC § 926A (Interstate Transportation of Firearms).

In finding against the return of the firearm, the court made the following determination:

"Here, the rules governing the return of property by the Property Clerk define the term contraband as 'property the mere possession of which is prohibited under federal, state or local law. Property shall not be deemed to be contraband merely because it has been held as evidence or for custodial safe-keeping, or because it may be suspected or believed to be unlawfully obtained, stolen or the proceeds or instrumentality of a crime' (38 RCNY § 12-31). In New York, possession of a firearm is a criminal act, unless one holds a license to so possess, pursuant to Penal Law § 265.20(a)(3) and Article 400 (see People v Abdullah, 23 Misc 3d 232 [2008]; People v Zabar Lynch, 2008 NY Misc LEXIS 4587, 240 NYLJ 15 (July 15, 2008). It is undisputed that Mr. Khoshneviss is not licensed to possess a firearm in New York. Therefore, the subject firearm constitutes contraband, and its return would be improper (see Sea Lar Trading Co. v Michael, 94 AD2d 309, 315-316 [1983]; People v Didonna 124 Misc 872 [1925])."

While a return of your legally owned firearm is likely an important and personal issue to anyone accused of a weapon crime, it certainly pales in comparison to ensuring their criminal case is resolved appropriately. Is this case going to provide your New York criminal lawyer or New York firearm and gun attorney the guidance as to how to "beat" a airport gun case? No. However, it is one worth keeping in your legal arsenal.

To learn about New York weapon and firearm laws and crimes, please review Crotty Saland PC's New York Weapon Crimes section where information is broken down by statute and type of weapon possession. Further, a review of the NewYorkCriminalLawyerBlog.Com (also linked through the weapon section of the website) also provides ample information ranging from analysis of statutes and legal decisions.

Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys and firearm possession lawyers at Crotty Saland PC represent clients in all weapon related offenses and charges in the New York City region.

An arrest in New York for Endangering the Welfare of a Child is one of the more serious misdemeanor crimes in the New York Penal Law. Generally speaking, its not that one "A" misdemeanor is more serious than another (all "A" misdemeanor crimes are punishable by as much as one year in jail), but when an crime, charge or arrest involves children, both courts and prosecutors pay much closer attention. Add this practical reality to Endangering the Welfare of a Child prosecutions and you will quickly realize that the police (NYPD and others), may be inclined to make an arrest for New York Penal Law 260.10 first and then ask the deeper and more relevant questions later. Whether this is the situation for your NY PL 260.10 arrest, a New York criminal lawyer is likely a necessity not only to get you limited bail or released from custody, but to ascertain whether the allegations against you form a legally sound complaint of a Child Endangerment crime.

In terms of your own New York Child Endangerment lawyer or NYC criminal defense attorney implementing the best defense, he or she must have a firm grasp on the law. Certainly, it would help if you, the accused, had the same comprehension. Boiled down to its basic elements, Endangering the Welfare of a Child occurs under the first subsection (NY PL 260.10(1)) when you act knowingly in a way that is likely to be injurious to a child (who is less than 16 years old) in terms of their physical, mental or moral welfare. Alternatively, you direct or authorize that child to engage in an occupation where a substantial risk or danger to that child's life or health is exists.

Now having read the general language of Endangering the Welfare of a Child in New York, to better understand NY PL 260.10 one should also examine how far must one's actions go before one has crossed the line from a non-criminal to a criminal act. At what point is one's actions not merely criminal, but do those actions legally form the basis of an Attempted Endangering the Welfare of a Child (if not the entire crime)? Fortunately for all of us, People v. Lakhram Omwathath, 2011-2874 Q CR, NYLJ 1202594053272, at *1 (App. Div. 2nd, 11th and 13th, Decided March 19, 2013), answers that and more.

Omwathath, a school bus driver, arrived at school and reported to work in what appeared to be an intoxicated state. Upon going to the principal's office, the testimony at trial established that he had the tell-tale signs of drunkenness including the watery and blood shot eyes, alcohol on his breath and some slurred speech. Upon police arriving, the defendant took field sobriety tests and blew a .037 when he submitted to a chemical test. Despite this reading, the machine indicated that the breath sample was inadequate for an accurate finding. Ultimately, a judge found the defendant guilty of Attempted Endangering the Welfare of a Child. The defendant appealed the conviction.

On appeal, as was the case at trial, defendant challenges the legal sufficiency of the proof that he attempted to endanger the welfare of a child. We agree that the trial evidence was legally insufficient to support the conviction.

Even assuming the defendant had been driving the bus while he was guilty of Driving While Ability Impaired (Vehicle and Traffic Law 1192.1), guilt beyond a reasonable doubt of DWAI alone, even with kids in the vehicle, would not be enough to establish the crime of NY PL 260.10. (People v. Chase, 186 Misc 2d 487, 488 [App Term, 9th & 10th Jud Dists 2000]). Therefore, if having some level of impairment (not intoxication as defined by the more serious Driving While Intoxicated - Vehicle and Traffic Law 1192.2 or 1192.3) alone is not enough to establish the endangerment conduct, then logically, the defendant could not be found guilty of an attempt to commit Endangering the Welfare of a Child. (People v. Grennon, 36 Misc 3d 33, 35 [App Term, 9th & 10th Jud Dists 2011]).

In examining how far the defendant need to proceed in his potential criminal conduct to satisfy the element of "Attempt," New York Penal Law 110.00), the court recognized that there must be a showing "that [the] defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained" (People v. Warren, 66 NY2d 831, 832 [1985]; see also People v. Gajadhar, 38 AD3d 127, 135 [2007].

Here, while the defendant did show up to work to drive a bus that would ultimately be filled with children, the defendant never entered that bus. Further, the children did not enter the bus. At no point did the defendant start the engine, put the key in the ignition or engage these children. Simply, he was not close enough for even an attempt to commit a crime. Bad judgement? No doubt. Criminal? That's another matter.

To read the numerous blog entries dissecting Endangering the Welfare of a Child pursuant to New York Penal Law 260.10, search for this statute in the NewYorkCriminalLawyerBlog.Com. Further, the CrottySaland.Com website has additional analysis of this misdemeanor offense.

Crotty Saland PC is a New York criminal defense firm. The two founding New York Criminal lawyers at Crotty Saland PC bother worked as prosecutors in the Manhattan District Attorney's Office before starting the criminal practice. Crotty Saland PC represents clients in criminal matter throughout New York City and the surrounding municipalities.

Most people are familiar with New York DWI laws and crimes on a general level. That is, if you drive drunk in Manhattan, drive under the influence in Brooklyn or drive while intoxicated in White Plains, the potential crimes that you face are only one of a few set forth in New York's Vehicle and Traffic Law. If you "blow" a .08 or higher you will likely be arrested and charged with DWI pursuant to VTL 1192(2) or VTL 1192.2 and if you refuse to give a BAC sample in an intoxilyzer or you display the characteristics of intoxication such as blood shot eyes and slurred speech, you will be arrested for DUI pursuant to VTL 1192(3) or VTL 1192.3. Regardless, each of these crimes are misdemeanors punishable by jail, probation, the Drunk Driver's Program (DDP) a fine and license suspension.

What is less known by many people including those legal professionals who are not New York DWI lawyers or DUI attorneys, is that a second DWI arrest (actually a conviction) is punishable as a felony offense with a sentence of up to four years in prison. This second drunk driving arrest in New York must be within ten years of the previous arrest and conviction. It is important to recognize that an arrest for VTL 1192.2 or VTL 1192.3 is not enough to establish the basis of the felony DWI crime. Further, if a lesser plea offer is accepted to the violation of Driving While Ability Impaired is accepted (VTL 1192.1 or VTL 1192.(1)), this non criminal disposition will also not be form the foundation of a felony DUI conviction.

Keeping all of these statutes and drunk driving laws in mind, if you plead to a misdemeanor DWI crime such as VTL 1192(2) or VTL 1192(3), must the court advise you that a future arrest for the same otherwise misdemeanor DWI crime within the statutorily recognized period will result in a new felony DWI arrest? If , for example, you are not advised of immigration consequences of your plea, you may have a ground to appeal your conviction? Logically then, if the court fails to advise you of a future potential felony, were your due process rights compromised? Did you knowingly enter a proper plea? For better or worse, the answer to these questions is that your plea, even without the information of potential future felonious acts, is legal and proper.

In People v. Seth Lofton, 12088C-2012, NYLJ 1202593900024, at *1 (Sup., BX, Decided March 21, 2013), the defendant faced the exact same circumstances and questions addressed above. Less than one year after his conviction for DWI, Lofton was again arrested for the same offense and charged with VTL 1192.3 and VTL 1192.2. Obviously within ten years of his first conviction, the second misdemeanor arrest was then bumped up to a felony crime. Arguing he was stripped of his due process rights and did not voluntarily plea because he was unaware of the future and potential collateral consequences of that plea, Lofton sought to vacate his plea.

As decided by the court:

"Certainly, a defendant is entitled to an explanation by the court of a plea's direct consequences, meaning those that have definite, immediate, and largely automatic effects on his punishment. He is not, however, entitled to an explanation of potential collateral consequences of a conviction (People v. Catu, 4 NY3d 242, 244 [2005]). The reason is that collateral consequences are peculiar to the defendant, and generally result from actions that the court does not control (Ford, 86 NY2d at 403). Requiring otherwise would place an impractical and unjustified burden on the courts (see People v. Wilson, 81 Misc 2d 739, 741 [Dist Ct, Nassau County 1975, Fertig, J.])....As such, the court's failure to disclose that he may be subject to a felony prosecution and sentence enhancement for a second DWI offense does not render his plea involuntary, or entitle him to vacatur of his conviction."

Unfortunately, for Lofton, a second DWI arrest within ten years of one's first arrest is grounds for a felony DUI charge. Lofton's ignorance of the law is of no consequence to his earlier misdemeanor plea. There is no substitute for knowing the law.

To read about the intricacies of New York DWI laws and DUI crimes, including Hardship Hearings, Refusal Hearings, VTL 1192(3), VTL 1192(2), VTL 1192(1), Leandra's Law, felonies, misdemeanors, legal decisions and cases in the news, review the DWI & DUI crimes section of CrottySaland.Com. There you will find links and other content related to the NewYorkCriminalLawyerBlog.Com as well.

Founded by two former Manhattan Assistant District Attorneys who served in the DUI Unit, Crotty Saland PC is a New York criminal defense firm located in lower Manhattan. The New York criminal lawyers and New York DWI attorneys at Crotty Saland PC represents clients in all drunk driving related matters throughout the New York City and suburban region.

There are countless means in which a non-weapon, if used in a particular way, becomes a weapon in the eyes of the law. In New York, a tree branch, spoon, pair of shoes or just about anything else, if used in violent and assaultive way, can be the basis of an arrest for Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2). Beyond the offense of PL 265.01(2), there are specifically identified items or objects that are automatically weapons irrespective of the manner in which they are used. The two most common weapons outside of firearms are gravity knives and switchblade knives. Possession of these weapons in New York City, Westchester County or, for that matter, Lake Placid, all constitute a violation of Criminal Possession of a Weapon in the Fourth Degree pursuant to subsection one of PL 265.01. Whether your arrest is for NY PL 265.01(1) or NY PL 265.01(2), the crime is punishable by a year in jail. Whether your best defense to a weapon arrest is to mitigate your conduct, attack the search or challenge whether the object in question is in fact a weapon, is something critically important to address at the earliest stage possible with your own New York criminal lawyer or New York weapon attorney.

When deciding how to defend against an arrest for PL 265.01(1), if you are immediately processed or receive a New York City Desk Appearance Ticket is really not that important. If the police or prosecutors are wrong on the law, the vehicle or manner of your arrest and prosecution is of no significance. Instead, an examination of the evidence is critical. While the following case does not identify when a knife, for example, qualifies as a gravity knife, it does address one of the enumerated weapons of Fourth Degree Criminal Possession of a Weapon. Therefore, the message of the case, if not the actual weapon in question, is important to understand.

In People vl. Lin Lu and Shu Lin, 2012KN081120, the defendants were arrested and charged with PL 265.01(1) for possessing a "per se" weapon. The criminal court information (complaint) stated that the defendants were each observed carrying a bludgeon and that said bludgeons were recovered from the ground where the police observed the defendants drop them. Accompanying the complaint, the police provided a supporting deposition that identified the bludgeons as metal pipes. The defendants moved for dismissal of the information against them.

The defendants argued that the complaint (1) asserts a legal conclusion that defendants possessed bludgeons without supplying facts to support this conclusion and (2) that a metal pipe is not a bludgeon. In response, the prosecution argued not that a metal pipe is or is not a bludgeon, but that whether it is should be left to a jury as a finder of facts.

In deciding this case, the court first recognized that the statute does not define "bludgeon." Therefore, the court did what any grade schooler would do. That is, the court reviewed went to the dictionary (actually, the court looked at some older cases that defined bludgeon and were aided by dictionaries). Some of the relevant cases defining bludgeon were as follows:

People v Visarities: Defendant's conviction reversed for possessing a 20" iron bar 3/8-1/2 in diameter bludgeon.

People v Kennedy, 164 NY 449 (1900): Court found that a weapon was a bludgeon where it was an iron rod was inserted inside a metal pipe. The pipe was wound on one end with tape.

People v Braunhut, 101 Misc 2d 684, 687 (Crim Ct, Queens County, 1979): A "spring whip" was not a bludgeon as a matter of law where it was not weighted, was flexible and was used defensively.

People v Phillips, 7 Misc 3d 1004 (County Ct, Lawrence County 2005): The defendant did not possess a "billy" when he was found to have a "collapsible baton."

Examining the older cases with the current arrest for Fourth Degree Criminal Possession of a Weapon, the court recognized that the bludgeons in the instant matter were only described as metal pipes without anything further. The court then stated:

"...[G]uided by every definition of bludgeon reviewed in cases spanning the past century, it seems clear that while metal pipes may be used as dangerous weapons, possession of a metal pipe is not per se prohibited" even when examined in the totality of the circumstances.

Although the prosecution was given the opportunity to amend the complaint (there is no record that I have seen indicating either way), the theme or importance of this case cannot be understated. An accusation, arrest or allegation of a per se weapon violation pursuant to PL 265.01(1) is not proof of actual guilt. Police officers routinely make mistakes. This is not to say it is malicious, but does your alleged gravity knife truly open with the force of gravity? Similarly, a metal pipe certainly is not a bludgeon and many other "weapons" may be equally non-criminal and innocent as well. Fighting a case based on a wrong conclusion unsupported by facts and evidence may be your best defense of all.

To read materials on felony and misdemeanor New York weapon crimes, follow the links or go directly to CrottySaland.Com. Case reviews, statutory analysis, and results of weapons arrests can also be found on the NewYorkCriminalLawyerBlog.Com in an easily readable and informative format.

The New York weapon crimes lawyers and criminal defense attorneys at Crotty Saland PC routinely represent clients in 4th Degree Criminal Possession of a Weapon arrests and more serious felony gun possession and firearm possession arrests in New York City and area airports. Prior to establishing the criminal defense firm, the two founding criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney's Office.

Being charged with and arrested for any misdemeanor crime in New York is no walk in the park. A New York criminal defense attorney need not advise you of this obvious fact. The reality is, any accusation has significant and collateral consequences. When the crimes involve some alleged form of fraud or dishonesty involving the government, the offense looks even uglier. Two crimes that fit in this mold are Official Misconduct, New York Penal Law 195.00 and Obstructing Governmental Administration in the Second Degree, New York Penal Law 195.05. As ugly as the crimes may be, however, an arrest for either PL 195.00 or PL 195.05 does not equate to guilt beyond a reasonable doubt.

Although I have blogged and drafted materials on both of these crimes, before addressing a recent court decision it is worth briefly explaining the parameters and definitions of these offenses. To be guilty of Official Misconduct pursuant to NY PL 195.00, one first must be a public servant. Further, one must have the intent to obtain a benefit or deprive another person of a benefit. In addition to these elements, as charged in the case discussed below and according to subsection two of this crime, one must knowingly refrain from performing a duty that one is imposed by law or clearly inherent in the nature of one's office.

An obviously different crime, Obstructing Governmental Administration in the Second Degree, in violation of NY PL 195.05, is defined differently than Official Misconduct. Here, one is guilty of this crime if one intentionally obstructs, impairs or perverts the administration of law. This must be done by means of intimidation, physical force or interference, or by means of any independently unlawful act. Now that we have addressed these two offenses, lets review a recent legal decisions that will give us a better understanding of these crimes.

In People v. Nicholas Lemma, 2010NA026090, NYLJ 1202590033334, at *1 (Dist., NA, Decided February 11, 2013), the defendant was arrested for Official Misconduct and Obstructing Governmental Administration in the Second Degree. At the time of his arrest, Lemma was a police officer and detective in Nassau County. One of his investigations involved an alleged robbery by Raheem Crews. Despite having direct knowledge that Mr. Crews was incarcerated at the time of the alleged robbery, and therefore Crews could not have committed the crime, Lemma did not share this information with prosecutors or other law enforcement agents at the time of Crews' arrest. For multiple months, Crews was charged with varying degrees of robbery for the his alleged conduct before the case against him was ultimately dismissed.

It is clear from the nature of Lemma's employment that as a police officer, Lemma was a public servant. Not as obvious was whether by keeping the fact of Crews' incarceration to himself, Lemma violated a duty imposed by law or clearly inherent in the nature of his office as a police officer. According to the court (a review of the actual case goes into much greater detail of when this duty arises in general):

"While the People [prosecution] are correct that police officers have an obligation to disclose exculpatory information in their possession, See: People v. Russo, 109 A.D.2d 855, 486 N.Y.S.2d 769 (2nd Dept. 1985), the People's reliance on this principle is misplaced. The Defendant's failure to disclose the fact that Raheem Crews was incarcerated on March 26, 2005 simply was not a violation of such a duty."

While withholding the above information is certainly concerning and seems ethically corrupt, the court examined the officer's "duty" in the context of the Brady rule which dictates that exculpatory evidence must be provided to the defense, but not necessarily at the point it is discovered. Although one can violate their Brady obligation, doing so is not necessarily criminal.

The court then turned to whether the defendant intend to obtain a benefit or deprived another person of a benefit. Here, the defendant argued he obtained no benefit by withholding the information and his failure to disclose "'was anything other than 'the product of inadvertence, incompetence, blunder, neglect or dereliction of duty [which] no matter how egregious [should] more properly be considered in a disciplinary rather than criminal forum.'" The benefit the defendant did intend to deprive the accused of, according to the People was "to deprive Crews of a benefit, namely to be exonerated, and have is liberty restored...." This intent could be inferred from the defendant's failure to provide the exculpatory information.

Despite the People's assertion, the court disagreed and noted that there is a very real difference between "knowledge" and "intent." "'Intent is the actor's conscious aim or objective in performing certain acts, while knowledge is an awareness that a particular element of a crime is satisfied (citation omitted).'" People v. Cabassa, 79 N.Y.2d 722, 586 N.Y.S.2d 234 (1992); See also: Penal Law 15.05(1) and 15.05(2).

In short, "[i]t may appear upon the record that the defendant[] [was] guilty of stupidity and veniality and [was] unreasonable in what [he] did. But these qualities are not criminal. And we cannot substitute a reasonable man test for the essential requirement of criminal intent. Without criminal intent there is not a crime here." People v. Mackell, 47 A.D.2d 209, 366 N.Y.S.2d 173 (2nd Dept. 1975) [conviction of District Attorney of Official Misconduct for failing to disclose knowledge of scheme to defraud reversed].

Just like the insufficiency of the Official Misconduct arrest charges as contained in the complaint, elements of Obstructing Governmental Administration in the Second Degree elements were missing as well. First, the complaint did not establish the defendant's intent to "obstruct, impair or pervert the administration of law, or prevent or attempt to prevent the performance of that function by failing to advise anyone that [the defendant] was incarcerated....While his silence is demonstrated to have been the result of neglect, carelessness, callousness or indifference, this is not the same thing as a 'conscious objective or purpose' to affect the administration of justice in any way." Further, the criminal court complaint did not establish any intimidation or related actions or interference. In fact, the information establishes the defendant failed to take any action at all. Without an independent unlawful act, the Obstructing charge failed as well.

An interesting case that walks the line between an ethical and criminal violation, Lemma is certainly a "good read." From what the case outlines, "good" and Lemma, however, may not go hand in hand. Whether or not Crews was a jerk, condescending, a punk or a convicted criminal, all members of law enforcement have a moral and ethical obligation.

To read about the crimes is New York Penal Law 195.05 or New York Penal Law 195.00, follow the links above to CrottySaland.Com or search for those terms in the NewYorkCriminalLawyerBlog.Com. There you will find not only the analysis of particular statutes, but a review of legal decisions that further define New York's criminal code.

Representing clients in all criminal arrests, indictments, investigations and trials, the founding New York criminal lawyers at Crotty Saland PC both served as Assistant District Attorneys in the Manhattan District Attorney prior to starting the criminal defense firm.

The extent and amount of fraud that is perpetrated by Identity Theft is staggering. As a prosecutor in the Manhattan District Attorney's Office who spearheaded many multi-million dollar Identity Theft, Forgery and Criminal Possession of a Forged Instrument investigations, arrests and indictments, I have certainly dealt with the underbelly of these financial crimes. As a New York criminal defense lawyer and IdentityTheft defense attorney, I have also represented numerous individuals accused of the same allegations that I prosecuted for years. While I have yet to be shocked by the means in which these crimes are committed or the extent of the alleged criminal networks involved, it seems clear to me that Identity Theft will be the central or greatest crime of our generation.

Along these lines, according to New York City newspapers, the NYPD has arrested four men in another alleged large scale Identity Theft ring. It is alleged that at least four Los Angeles and Las Vegas men (Garegin Spartalyan, Aram Martirosian, Hayk Dzhandzhapanyan and David Kudugulyan) and possible other accomplices, stole hundreds of thousands of dollars from Manhattan banks by utilizing bogus or fraudulent credit cards to withdraw money and cash. More specifically, its is claimed by the NYPD that the accused were caught after one or more of the men attempted to withdraw money from "flagged" bank accounts. Further, upon investigation and the execution of search warrants, $198,000 in money orders as well as $16,000 in cash with 200 fake credit cards were recovered from a hotel room. This was on top of the $5,000 and 92 debit cards and $16,000 and 82 debit cards allegedly recovered from two of the defendants.

Although there is no press release as of yet from Cyrus Vance's Manhattan District Attorney's Office, there is no doubt in my mind that the Cybercrime and Identity Theft Bureau is chomping at the bit to make a big splash with this case. In fact, if true, the felony complaint alleges well in excess of 350 felony offenses. Once prosecutors present these cases to the Grand Jury, which they very likely will, it would not be shocking if the number of crimes increases.

If prosecutors can aggregate the thefts and stolen property or tie each of the defendants' to possession of stolen funds in excess of $50,000, the defendants will face Grand Larceny in the Second Degree (New York Penal Law 155.40) and Criminal Possession of Stolen Property in the Second Degree (New York Penal Law 165.52) charges. In doing so, prosecutors would need to tie the men to the $198,000 worth of money orders retrieved from a hotel room or aggregate other stolen funds. A "C" felony, each defendant would face up to fifteen years in prison.

Irrespective of the monies recovered in excess of $50,000, the defendants will face Second Degree Criminal Possession of a Forged Instrument (New York Penal Law 170.25) charges for each fraudulent debit card. Similarly, any possession or theft of more than $3,000, but no more than $50,000, that is not aggregated will result in a charge of Grand Larceny in the Third Degree (New York Penal Law 155.35). Lastly, each defendant will face charges of Identity Theft in the First Degree (New York Penal Law 190.80) if and when prosecutors can proved that the defendants used the personal identifying information (the debit card and bank accounts, for example) to either obtains more than $2,000 of money or perpetrated this crime while also possessing the Forged Instruments. All of these crimes are "D" felonies punishable by up to seven years in prison.

As I noted above, I served as a Manhattan Assistant District Attorney. In fact, I served as one of the first members of the Identity Theft Unit Major Case Section that the current Cybrercime and Identity Theft Bureau is based. I am a criminal defense attorney in New York City and I am well versed in these crimes. With this experience I am comfortable asserting that the Manhattan DA's Office will come down firmly and with tremendous force against these men. DA Vance does not tolerate these crimes in NYC. In fact, a man who was involved in an Identity Theft scheme at numerous high end steakhouses was just sentenced to up to twelve years in prison. Waiting to identify their defense and set that defense into motion is something these men cannot afford to do.

To learn about the crimes listed above, legal decisions impacting the statutes and cases in the area news, review the links above or below. The Crotty Saland PC blogs and websites have extensive information on these subjects.

A New York criminal defense firm representing clients accused of Identity Theft, Grand Larceny, Criminal Possession of Stolen Property and Criminal Possession of a Forged Instrument, the founding New York criminal defense attorneys at Crotty Saland PC dedicate their practice to NYC area criminal defense.

Not all of New York's weapon crimes are located or found in the New York Penal Law. Certainly, a review of Article 265 of the New York Penal Law will reveal the most serious gun and firearm crimes such as Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03) and the "gravity knife crime" of Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01), but the New York Administrative Code houses many other weapon offenses. Once such misdemeanor crime, an offense that will leave you with a permanent criminal record upon conviction, is AC 10.131(g)(1). According to AC 10.131(g)(1), you are guilty of Unlawful Sale, Possession, or Use of an Imitation Pistol when if and when you "sell(s) or offers to sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived to be an actual firearm." This crime carries a possible and potential sentence of up to one year in jail on the world class, Starwood resort of Rikers Island.

This blog entry will assess and briefly address the crime of AC 10.131(g)(1) in the context of possessing an imitation pistol. In People v. Ronald Johnson, 2012BX068528, NYLJ 1202591137115, at *1 (Crim., BX, Decided February 19, 2013), an officer from the New York City Police Department in possession of a "black power drill." The officer observed the "weapon" in the defendant's waistband. According to the complaint, the officer stated that "said power drill resembled a real .9mm semi-automatic pistol, in that, it was all black in color, and the barrel was not closed with any material."

Attacking the sufficiency or legal ground of the complaint, the defendant stated the obvious. That is, if the officer recognizes the "imitation pistol" as a power drill, then it certainly is not a toy firearm or an imitation firearm.

Despite the above argument, the court zeroed in on the language of the statute that an imitation pistol is one that can "reasonably be perceived to be an actual firearm." Even though the alleged imitation firearm was known to be a drill, could it be reasonably perceived to be a gun? The court further stated that "[t]his issue is a matter of fact, best left to the trier of fact, regarding whether "the item in question 'substantially duplicate(d) or (could) reasonably (have been) perceived to be an actual firearm' especially from the point of view of an observer with no opportunity to examine it more closely." See, In re Timothy L., 29 AD3d 492, 493, 815 NYS2d 550 (1st Dept, 2006) (citation omitted).

Although the court denied dismissal and found that the information was legally sufficient, the court also recognized that a fact finder would make the ultimate decision as to whether the prosecution would prove this case beyond a reasonable doubt. Was the case legally acceptable? Yes. Would a judge or jury who determined facts agree? That would have to wait to be seen.

Regardless of the outcome in this case, there is a message that any defendant or would be weapon carrier must recognize. Prosecutors and District Attorneys in each county of New York City and beyond take weapon crimes seriously. An arrest for violating any degree of Criminal Possession of a Weapon or similar offense can result in not merely a criminal record, but a stint in "lockup." Educate yourself on the laws of New York. Remember, what may be legal in one state may not be legal here.

To learn more about New York weapon crimes, follow any of the links above or go to the blogs and websites below where you will find extensive information, case law and statutes.

A New York criminal defense firm that represents clients in firearm, gun, knife and other weapon investigations, arrests and trials, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney's Office prior to establishing the criminal defense practice.

In the best of all scenarios, the New York criminal defense attorneys and former Manhattan Assistant District Attorneys at Crotty Saland PC are proud to announce the granting of an Adjournment in Contemplation of Dismissal (commonly called an ACD) on behalf of a client arrested for Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). In a not so atypical set of circumstances, Port Authority Police Officers arrested our client as he attempted to check his legally owned and licensed out-of-state handgun with airline ticket agents at JFK airport (the same would have occurred at LaGuardia Airport). Assuming he was compliant with the law prior to his arrest for NY PL 265.03, our client secured the firearm in a hard side case, removed the ammunition from the pistol and voluntarily advised the airline representatives of his possession. Unfortunately for our client, ignorance of the law is no defense for a Weapon Possession crime and our client faced the wrath of New York's strict firearm laws.

Whether or not you agree with New York's gun laws and possession statutes, compliance in one state does not mean compliance in New York. Where your possession would be non criminal elsewhere, your possession of a legally owned and registered out of state firearm in New York City or an airport in Queens becomes a class "C" felony if the gun is loaded. Remember, loaded in the eyes of the law is much more liberal and does not require bullets or ammunition actually in a chamber, cylinder, cartridge, etc.

Despite our client's sincere belief that he was following the law in New York, our client was able to dodge the figurative bullet. There have been many occasions that individuals arrested in New York City - Manhattan, Brooklyn, Queens and the Bronx - have been convicted of misdemeanors and felonies even where the firearm was licensed out of state. Although a more extreme, but not necessarily atypical example, former New York Giant wide receiver served two years in prison. One night in the "tombs," central booking or Rikers Island is likely too much for most people.

While Crotty Saland has had tremendous success representing people from all walks of life in Criminal Possession of a Weapon in the Second Degree cases, each case is unique. Yes, our New York criminal attorneys have obtained dismissals through ACDs and Disorderly Conducts (non criminal violations), but the results in one case by no means guarantee future results. Whomever your counsel may be, identify your best defense and implement that defense.

To read about New York gun laws, weapon crimes and other offenses, follow the links throughout this blog entry. There you will not only find a review of the New York Penal Law, but cases and legal decisions interpreting these crimes.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent clients throughout the New York City region.

One of the more common ways the police and prosecutors can amplify an otherwise insignificant event is by alleging, and ultimately arresting a person for, Resisting Arrest (New York Penal Law 205.30) or Obstructing Governmental Administration in the Second Degree (New York Penal Law 195.05). That is not to say that these crimes are not legitimate offenses and prosecutions are not warranted, but that the conduct for which a person is accused may not based on sound law. To be clear, an arrest for NY PL 205.30, for example, can be established with an accused merely pushing away and refusing to place his or her hands where they can be handcuffed. Despite what an "average" person may believe, to commit Resisting Arrest, one need not become violent or cause injury to an officer. However, before the crime of Resisting Arrest can happen, the reason for that arrest must be lawful. Simply, you cannot be convicted of Resisting Arrest if your underlying conduct is lawful. It is black letter law that "[i]f force is necessary to prevent an unlawful arrest, then force may be employed..." See People v. Cherry, 307 NY 308, 311, (1954) (Having said that, one should not violently or physically oppose the police because one believes one's conduct is lawful. The courts, not the accused or the police, ultimately make the decision as to the legality of an arrest).

Although I have written on this topic multiple times (a search for "Resisting Arrest," "205.30" and following the link above will reveal more content), a recent decision once again affirms the above rule. In People v. Coley 2013 NY Slip Op 50167 - NY: County Court, Criminal Court 2013, the defendant was accused of Disorderly Conduct in violation of New York Penal Law 240.20 by standing "in the middle of the above location, a public sidewalk, impeding the flow of pedestrian traffic." After attempting to issue the defendant a summons for his failure to leave the location, the defendant could not produce any identification. The police attempted to handcuff the defendant who "flailed his arms and twisted his body."

In attacking the misdemeanor criminal charges of NY PL 205.30 and NY PL 195.05, the accused first moved to dismiss the basis of these crimes. Remember, if the Disorderly Conduct falls, the entire criminal case will join it like a house of cards. Here, the argument for dismissal stemmed from the fact that the allegations merely made in a conlusory manner. Instead of stating how the defendant impeded the flow of traffic, what people had to do to avoid him or how vehicles maneuvered, the complaint simply made a conclusion.

As the court recognized:

"Here, as to the allegations brought under subdivision (5), 'something more than a mere inconvenience of pedestrians is required to support the charge.' See, People v. Jones, 9 NY3d 259, 262, 848 NYS2d 600 (2007), citing People v. Cancel, 3 NY2d 327, 331, 165 NYS2d 113 (1957). 'Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions, or simply to regain one's bearings -- would be subject to prosecution' for disorderly conduct. 9 NY3d at 262. See, also, People v. Reed, 19 Misc 3d 217, 219, 851 NYS2d 331 (Crim Ct, Kings Cty, 2008)."

"The temporary inconvenience of pedestrians being required to walk around defendant and the apprehended others, without more, is insufficient to sustain the charge. See, People v. Pearl, 66 Misc 2d 502, 502-503, 321 NYS2d 986 (App Term, 1st Dept, 1971)."

Because the Disorderly Conduct was not facially sufficient, there was no need for the court to examine the charges of PL 205.30 or PL 195.05. After all, without a valid arrest, there can be no resisting.

To educate yourself about any of the crimes or violations listed above, follow the respective links, review the NewYorkCriminalLawyerBlog.Com or go directly to CrottySaland.Com. All of these resources collectively have information on New York's Penal and Criminal Code as well as the review of legal decisions and cases.

Started by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent clients from investigation and arrest through hearing and trial in the criminal courts of New York City and the surrounding suburban region.

There is no denying that armed offenses and mere weapon possession are some of the most serious crimes in the New York Penal Law. Its equally clear that police officers in New York should be able to protect themselves from potential danger when they stop a person who committed a crime or may be perpetrating a New York gun crime. An interesting question, however, is when a police officer can make an inquiry and ask a passenger or driver of a vehicle if he or she has a weapon such as a firearm, revolver, gun, gravity knife or switchblade. A recent decision by the top court in New York, the Court of Appeals, clearly explains the rule when this question can be asked. Whether you are a New York criminal lawyer, Assistant District Attorney or judge in a county, criminal or local court, People v. Garcia, No. 205, NYLJ 1202581900488, at *1 (Ct. of App., Decided December 18, 2012), is a critical case to read and fully understand.

In the words of the Court, Garcia's appeal asked the judges to "determine whether a police officer may, without founded suspicion for the inquiry, ask the occupants of a lawfully stopped vehicle if they possess any weapons.." There, the police pulled over the defendants' vehicle because of a nonworking headlight. In addition to Garcia, the driver, four other people were in the car. The three backseat passengers looked nervous, "were a little furtive," kept "looking behind," and "stiffened up." Asked for his license and registration, Garcia complied. Shortly thereafter, the officers asked if anyone possessed a weapon at which time one of the passengers admitted to possessing a knife. After ordering everyone from the vehicle, what appeared to be a firearm (it was an air pistol) was found wedged between a seat (it was visible with a flashlight). After waiving his rights to an attorney, Garcia admitted the air gun was his pistol.

The trial court initially ruled (only later to change) that the police improperly searched the vehicle. The court then suppressed the pistol because officers had no basis for searching the car after it was stopped. Further, the trial court ruled that the "question as to whether the occupants possessed any weapons required founded suspicion of criminality and that mere nervousness on the part of the occupants did not give rise to such suspicion."

In ultimately finding for suppression of the air pistol, the Court of Appeals first recognized that a "police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car. (see People v. Robinson, 74 NY2d 773, 775 [1989]). In determining that the police cannot merely ask if a passenger or driver has a weapon, as opposed to having those individuals exit the vehicle, the Court further stated that "by sanctioning, in the interest of safety, a suspicionless inquiry into whether the occupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot."

The Garcia case is a potentially tremendous tool in defense to crimes involving weapons possession in vehicles. While the law is now more clear, the facts (or admissible evidence) is equally important. Did the police stop you for a traffic infraction and then make this inquiry? Alternatively, will the police articulate that they observed you while outside your vehicle place what appeared to be a firearm under the seat? Every case and set of circumstances is unique, but Garcia cannot be overlooked.

To learn about New York weapon crimes, New York gun and firearm crimes and New York knife crimes, follow the general and specific links for content ranging from analysis of statutes to reviews of legal decisions such as Garcia.

Established by two former Manhattan Assistant District Attorneys, Crotty Saland PC is a New York criminal defense firm that represents clients in criminal arrests, investigations, indictments and trials throughout the New York City area.

Every year New York DWI attorneys and DUI lawyers find themselves representing clients accused of drunk driving and Vehicle and Traffic Law 1192 crimes that are re-defined by new criminal statutes or legal decisions. For example, Aggravated DWI in New York State is a crime that enhances penalties and did not exist years ago. Further, while portable "brathalyzer" tests were often not admissible at trial years ago, many courts are allowing prosecutors from New York City and Westchester County to municipalities and jurisdictions in Western New York and Upstate to introduce the field test BAC results with proper foundation.

One of the areas of law that always seems to expand with renewed analysis by local, county and appellate courts concerns the "operation" or "operating" terminology in VTL 1192 arrests. First, courts often address whether one must be actually driving to be operating (one does not) and second, if a defendant is not seen operating the vehicle how prosecutors can establish a drunk driving or driving while intoxicated crime circumstantially. A case right on point, and a very recent appellate decision, People v. Shaffer, 943 NYS2d 672 [3rd Dept. 2012], examined these issues. In Shaffer, a State Trooper observed the defendant sitting on his motorcycle. Although the motorcycle was not running, the defendant was wearing a helmet and facing the wrong way down a one way street. Ultimately arresting the defendant for violating VTL 1192.2 and VTL 1192.3, the Appellate Court found that there was both probable cause to arrest the defendant and it was of nominal consequence that the officers did not actually observe the defendant driving or operating the bike.

Testimony at trial revealed, as mentioned above, that the defendant sat upon his motorcycle facing the wrong way, helmet on his head, kick stand up and keys in the ignition. Although the defendant's motorcycle was not running, the defendant admitted to driving it moments before. More specifically, he stated he travelled about fifty yards down the one way road (the correct direct), realized he had gone the wrong way and turned around to figure things out. When taking into consideration that the officers observed the "standard" indicia of intoxication - watery and blood shot eyes, slurred speech and the smell of alcohol - along with the fact that the defendant was astride his motorcycle with the key in the ignition and kickstand up, admitted to driving and failed field sobriety tests, probable cause was certainly in place to arrest the defendant. The greater (or at least equally important) question was whether this evidence, if credible, was enough to prove the case beyond a reasonable doubt. Simply, the answer here was yes. Even without direct knowledge of operation, the circumstantial evidence was very strong and by itself can form the basis of a DWI or DUI conviction.

While the Appellate Court did not address the circumstantial evidence in great detail, there are some interesting things to think about. Would the outcome have been different if the defendant did not admit to riding the motorcycle? What if the key was not in the ignition or the defendant sat next to the bike? I have not seen the trial minutes, but did the prosecutor inquire as to whether the motorcycle was registered to the defendant, other people were around or the engine was throwing off any heat as if it had just been driven? All of this circumstantial evidence could be used to bolster or attack the DWI case in terms of "operation."

I think about each and every time I draft a blog entry on New York DWI crimes and New York DUI laws, I state the same thing. VTL 1192 crimes are as potentially deadly as they are avoidable. Nobody likes to hear it from their mother or their criminal defense attorney, but the best defense to a DWI arrest is to just not drive while intoxicated. If, however, you are accused of DUI - whether it is based in fact and evidence, a jump to a conclusion or the product of an illegal stop by the police - you have a right to defense yourself and identify and implement the best defense. Educate yourself on the law, consult with your attorney and begin the defense process to protect your DMV driving privileges and otherwise clean criminal record.

To learn about New York Refusal Hearings, Hardship Hearings, DWI Felonies, DUI misdemeanors and the collateral consequences of a New York drunk driving arrest, follow any of the links to the general information page for New York DWI laws where you will find all relevant and pertinent content including other blog entries and reviews of specific statutes and procedures.

Established by two former Manhattan prosecutors who trained and served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm representing clients in all DUI and intoxicated driving offenses throughout the New York City area.

While nobody wants to find themselves as the subject of a New York DWI or DUI arrest, I don't think anyone could legitimately argue that New York drunk driving laws are firm, serious and potentially devastating for a good reason. As a New York DWI lawyer and DUI attorney as well as a former Manhattan prosecutor assigned to the DWI Unit, I have seen some ugly cases where terrible accidents resulted from driving while intoxicated. Simply, New York VTL 1192 and its various subsections serve a very legitimate purpose in protecting the public.

With the understanding that the laws to protect our roads serve a tremendous purpose, one should not ignore or disregard the fact that people are accused of driving drunk when they may not be remotely intoxicate or impaired. Even assuming there is consumption of alcohol, that consumption may not rise to a criminal level. Regardless of your reason to challenge an arrest for DWI, police must act properly and you have the ability to exercise your rights and protect the same. Was there sufficient probable cause for the police to stop you? Was the intoxilizer or chemical test conducted wrongfully or was the machine not in proper working order? Despite the contention of the police that you failed a field sobriety test, was his or her opinion skewed or is there a non-alcohol related reason why you could not keep your balance? While the following case did not end up favorable to the defendant, can an argument be made that where the police do not find you in your vehicle or your vehicle is not moving (driving), there is not enough sufficient evidence to find you guilty of DWI?

In People v. Hryckowian, 2013 NY Slip Op 50008, a County Court in Sullivan County was confronted with the last question posed above. Can a person be convicted of DWI or another VTL 1192 crime even if that person was not in or driving a vehicle? Here, the defendant was arrested and ultimately convicted of Aggravated Driving While Intoxicated and Driving While Intoxicated after police found him in a parking lot at 2:30 am. According to the defendant (for the sake of this legal decision the court even accepted the defendant's story as true because the ultimate finding would be the same), the vehicle he was accused of operating was not running, there was no key in the ignition and he was outside the vehicle when the police approached. Further, according to the defendant, the vehicle was merely parked in a parking lot and the defendant had been sleeping there for some time. The defendant stated that he had not had a drink since 11:00 pm when he fell asleep in the parking lot. Unfortunately for the defendant, however, a State Trooper testified that the defendant's vehicle was not in the parking lot when he drove past it at 2:15 am, but was there at 2:30 am. At that time the defendant failed his sobriety tests, blew a .19 and had no explanation as to why his vehicle was not seen in the parking lot fifteen minutes earlier or how his BAC was so hight four hours after he last allegedly drank alcohol.

Again, even assuming the defendant was not in the vehicle or operating the vehicle, the Court found that the evidence against him was legally sufficient. Not only can direct evidence be used to find guilt, but circumstantial evidence as well. Further, the defendant's assertion that he was "not pulled over" is not relevant. One can be found guilty of operating a vehicle even without driving the car, truck or other automobile. See People v. Collins, 70 AD 2d 986 (3d. Dept. 1979) (Even though officers did not observe the defendant driving, the defendant was slumped over "sleeping" in a parked and running car in the driveway of another person's home he did not know. He had to get there somehow!). Here, the questions and answer is clear. Assuming the BAC was in excess of .08, there is recognition that one not actually be driving a car to "operate" it, could it be circumstantially established that the defendant (whose vehicle was not parked in the lot as he stated fifteen minutes earlier) drove and "operated" the vehicle while intoxicated? As the standard is "in the light most favorable to the People (prosecution)," in this particular case the answer was "yes."

Although this particular defendant was unsuccessful in challenging his conviction, if the facts or evidence varied would it be possible that the resolution would have been different? It certainly could be, but this case is one that will likely be more hurtful than helpful for your defense. Distinguishing your case may be critical.

To find out more about New York DWI crimes and laws found under section 1192 of the Vehicle and Traffic Law, please follow the links above, search for "DWI" in the NewYorkCriminalLawyerBlog.Com or review the DUI and Drunk Driving section of the CrottySaland.Com website.

The New York DWI lawyers who established Crotty Saland PC represent clients throughout the New York City area. Prior to starting the criminal defense firm, both Elizabeth Crotty and Jeremy Saland served as DWI prosecutors in the Manhattan District Attorney's Office.