I am not a free lawyer, but that does not mean I do not handle pro bono work or represent individuals who do not have the means to retain an experienced New York criminal lawyer. Simply, everyone needs and should be entitled to quality representation by an attorney especially in the context of a life altering arrest. After meeting with a woman who was unquestionably the victim of domestic violence in both criminal and “merely” mentally abusive form, Crotty Saland PC took her case in New York City Criminal Court. Despite the public lawyer assigned to her case advising that she had a difficult path ahead, our client maintained her innocence in the face of charges including Third Degree Assault (NY PL 120.00) and Second Degree Aggravated Harassment (NY PL 240.30). While it was unlikely she would see any jail time even though the law allows up to one year in prison, any finding of wrongdoing or assertion that she assaulted and harassed her partner was unacceptable. Fortunately, through diligence, time and effort, Crotty Saland PC secured a complete dismissal of all charges.
A somewhat infrequently used section of the New York Penal Law, First Degree Falsifying Business Records is nonetheless not only a serious crime, but on where an arrest can land you in prison and with a felony record. Is Falsifying Business Records in the First Degree as serious as Second Degree Grand Larceny or, for that matter, Second Degree Criminal Possession of a Forged Instrument? The short answer is no. These two crimes, PL 155.40 and PL 170.25, are class “C” and “D” felonies respectively while PL 175.10 is a class “E” felony? What does this all mean you ask? Grand Larceny in the Second Degree is punishable by as much as fifteen years in prison, Criminal Possession of a Forged Instrument in the Second Degree is punishable by as much as seven years in prison and First Degree Falsifying Business Records is “merely” punishable by up to four years in prison. That said, unlike the aforementioned crimes, PL 175.10 is often associated with more significant crimes and each time there is a falsification a new criminally chargeable offense has occurred.
With your general grasp on the significance and severity of Falsifying Business Records in the First Degree, this blog entry will further address this crime while also addressing the elements of PL 175.10.
It almost seems as if every day we read in the papers or see in the news that a person used a firearm to kill innocent victims. Simply, such acts are horrendous and deplorable. Law enforcement should be commended for their efforts to protect all of us. With this in mind, it is also important that the courts and criminal defense lawyers make sure that prosecutors and the police respect and maintain their burden to follow the law as well whether a violation or wrongful arrest is malicious or unintentional. While most people would argue that knives are not guns in terms of potential dangers, both have the ability to be devastating weapons. In part, this is likely why District Attorney’s Offices in New York City and elsewhere take a hard stance against gravity knife and other weapon crimes in violation of Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01. Whether you were issued a Desk Appearance Ticket or you have an extensive criminal history, do not expect to be offered any deal at your arraignment. More often than not, a charge of PL 265.01 remains in place until and if your criminal lawyer can articulate why prosecutors should deviate from their guidelines.
Why is all of the above relevant? The law in New York doesn’t distinguish between certain knives illegally purchased that are “blatantly” dangerous and those that were purchased as a tool at a hardware store. At bottom, a gravity knife is a gravity knife no matter where you purchase it. As a misdemeanor, this crime is punishable by as much as one year in jail and will stick you with a permanent criminal record upon conviction. Knowing all of this and reading through a bit of my rant, let’s now address the Penal Law and the crime of Fourth Degree Criminal Possession of a Weapon where the arrest charge of PL 265.01(2). Does the strict liability standard apply to all knives and if not, when is a “regular” knife possessed in violation of the New York Penal Law?
The difference between possessing certain drugs in New York for personal use and possessing those same drugs with the intent to sell them is drastic. In fact, drastic would be an understatement. Ask any criminal lawyer in New York who handles narcotics or drug crimes and he or she will tell you the exact same thing. Whether the drug is molly, cocaine, heroin, ecstasy or whatever the drug du jour might be, Criminal Possession of a Controlled Substance in the Seventh Degree is a misdemeanor with a potential sentence of up to one year in jail while Criminal Possession of a Controlled Substance in the Third Degree is a felony with a mandatory presumptive term of imprisonment of one year and as much as nine years. Simply, the misdemeanor, New York Penal Law 220.03, is not even in the same arena as the felony charge of New York Penal Law 220.16. For the purpose of this blog entry and for a general understanding of the elements of these crimes, PL 220.03 occurs where a person possesses a controlled substance while PL 220.16(1) is possession but also requires an intent to sell the cocaine, crack, heroin, molly, ecstasy or any other drug. A distinct crime, if you possess ketamine or oxycontin or Mesc, you will violate New York Penal Law 220.06(1), Fifth Degree Criminal Possession of a Controlled Substance. Before reading further, it is important to note that the possession of certain weights of drugs are automatically felonious. The relevant statutes and comparison here, as well as the review of a recent legal decision analyzing the difference, merely addresses the intent to sell element that enhances possession from a misdemeanor to a felony crime.
Criminal lawyers or not, we can all argue and address the intentions and practical applications of the Second Amendment. Further, there are many of us who would agree that an AR-15 is not a reasonable weapon to have in your home or for hunting. That said, most weapon and gun crimes in New York are not of the assault rifle variety and tied to a complex Second Amendment issue. Each and every illegal firearm case prosecuted in New York may share certain traits, such as the potential for violating Second Degree Criminal Possession of a Firearm, but they are all far from the same. In the eyes of the law, however, while facts may be different, whether you possessed a revolver with the serial numbers scratched off, a glock in an ankle holster you purchased in cash from a guy you met on the street, or you are a licensed firearm owner visiting New York from Alabama, Texas, Ohio, Florida or another state, pistol, gun and weapon crimes pursuant to New York Penal 265.03 are offenses that carry a minimum of 3.5 year in prison upon conviction. Make no mistake. New York means business when it comes to illegal firearm possession and on its face an arrest for PL 265.03 is one of the most serious offenses in the New York criminal code. While everyone is entitled to a defense, police must follow proper procedure and prosecutors maintain the burden of proof, if you are an otherwise legal firearm owner arrested for a felony relating to that weapon, ensuring that you are not lumped into the same category as blatant abusers of the law who may possesses their guns for malicious purposes is critical. In the arena of a firearm arrest at JFK Airport or LaGuardia Airport in New York City’s Queens County, this could not be more true.
Just as different facts and evidence can result in different arrests, charges and outcomes, different courts can analyze similarly charged cases and reach different conclusions as to legal sufficiency. In the realm of fake identification cases in New York, this could not be more accurate. Very briefly, you are guilty of Criminal Possession of a Forged Instrument in the Third Degree, New York Penal Law 170.20, if you know that the instrument you possess is fake and fraudulent, it is fake and fraudulent and that you possess it with the intent to deceive another (review PL 170.20 for the actually legal language). The lowest of the Criminal Possession of a Forged Instrument crimes, PL 170.20 is nonetheless a misdemeanor that is both punishable by as much as one year in jail and is not expunged from your criminal record upon conviction. That is correct. Having a fake ID or drivers license whether its to buy beer or something much more serious such as possessing a fraudulent passport, the crime is at minimum a misdemeanor and can be prosecuted as a felony Second Degree Criminal Possession of a Forged Instrument.
An issue that often pops up in arrests for fake IDs, drivers licenses and passports, is how the prosecution can prove each of these elements beyond a reasonable doubt from the knowledge to the intent to deceive another person where the acts or statements by themselves do not reflect this knowledge or intent. In a recent blog entry I addressed People v. Hightower where the court concluded that by the nature of the particular fake military ID that had the defendant’s picture and depicted a computer chip instead of an actual one, the People satisfied their burden in establishing the defendant’s knowledge and intent to deceive another. Why else would one have such an identification? Fortunately, however, not all “hope” is lost. A similar case and decision ended up on the other side of the issue in finding that a fake international drivers license by itself did not satisfy the legally sufficient threshold.
A fake identification is grounds for arrest whether you’re a college student at Columbia or NYU, a high school kid visiting New York City or you are a foreign national in need of some form of ID to work. Simply, there is nothing found in New York Penal Law 170.20 or New York Penal Law 170.25 that mandates an evil intent to perpetrate a terroristic or immigration fraud crime. While prosecutors in a respective District Attorney’s Office and the NYPD or local police department may pursue a criminal case however they deem fit, as a preliminary matter whenever you have a fake passport or drivers license the crime technically is a class D felony pursuant to PL 170.25. As such, a conviction not only allows for up to two and one third to seven years in prison, but a felony conviction is life altering. Fortunately (relatively speaking), in the scenario of a young man or woman who may have that ID for the purpose of going to a club or bar, as opposed to some other nefarious reason, the crime is often prosecuted through a Desk Appearance Ticket in New York City whereby the accused must return at a later date to face arraignment with their criminal lawyer on the charge of PL 170.20, a misdemeanor.
Putting aside whether a Criminal Possession of a Forged Instrument arrest is prosecuted as a felony for a second degree crime or as a misdemeanor for a third degree offense, what are the elements that must first be established with probable cause and ultimately beyond a reasonable doubt? Following the language of the misdemeanor PL 170.20 that is the baseline of these crimes prior to any felony enhancements, the language is as follows: You are guilty of Third Degree Criminal Possession of a Forged Instrument when you have knowledge that it is forged and you have the intent to defraud, deceive or injury another person, you possess or utter that particular forged instrument.
This blog entry will further analyze the crime of PL 170.20 in the context of a fake identification and the thresholds that much be reached by the District Attorney’s Office to secure a conviction.
Most arrests involving Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01, likely involve subsection one of this crime. This offense, PL 265.01(1) is the strict liability crime. That is, if you knowingly possess any weapon and it is of the type identified in this subsection – the most common is a gravity knife or switchblade knife, but others are set forth – then you are guilty of a class “A” misdemeanor. Distinct from subsection one, but an equally serious misdemeanor crime punishable by one year in jail, Fourth Degree Criminal Possession of a Weapon, PL 265.01(2), involves the possession of any weapon or dangerous instrument with the intent to use it unlawfully against another person. So, if your possession is not automatically a crime due to the nature of the weapon and the law requires that you have the intent to use it unlawfully against another person, how do the police establish a violation of PL 265.01(2)? More importantly, even with probably cause to arrest, how do prosecutors in the Manhattan District Attorney’s Office, Queens District Attorney’s Office, Brooklyn District Attorney’s Office or any other office throughout New York City and the State prove such a case beyond a reasonable doubt? This blog entry addresses the issue in conjunction with a recent and relevant criminal court decision.
It is painfully clear that New York State does a poor job in communicating to residents of neighboring states that merely because they legally own or possess their firearm – handgun, revolver, pistol – at home, when that same firearm is brought to New York it is a crime. Not just any crime, when the weapon is loaded with the ammunition and bullets capable of being fired from the gun (they need not be physically in it), the offense in New York is a class “C” violent felony. How do I know this as a criminal defense attorney in New York who represents clients arrested at LaGuardia or JFK Airport for New York Penal Law 265.03? I know this because I routinely am asked by defendants, “I was arrested for having a loaded gun in New York at the airport, but I legally own it and I followed the TSA guidelines. What did I do wrong and what is a violent felony and mandatory prison?”
“Hate” is a relative term in this context, but its fairly reasonable to assert the NYPD (or any police department), District Attorneys and local, city and Supreme Court criminal judges hate Identity Theft. Its not such a great leap for a New York Identity Theft attorney, an accused or a bail bondsman to make. What is there to like about it? It costs New York City, New York State and the United States, both privately and governmentally, hundreds of millions or billions of dollars? And no, merely because you are accused of a New York Identity Theft crime amounting to merely a few hundred or a few thousand dollars will not give you a pass. To that end, one recent Crotty Saland PC client is likely ecstatic that multiple stupid mistake did not land the client in prison for a minimum of two to four years. Not only was this client arrested in Brooklyn (Kings County) and facing indictment for multiple counts of Second Degree Identity Theft (New York Penal Law 190.79), Second Degree Forgery (New York Penal Law 170.10) and a handful of misdemeanors including Petit Larceny (New York Penal Law 155.25), Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40) and Third Degree Identity Theft (New York Penal Law 190.78), but this client was previously convicted of Third Degree Grand Larceny (New York Penal Law 155.35) thirteen months earlier in Manhattan (New York County). While the New York criminal lawyers and Identity Theft attorneys at Crotty Saland PC did not represent the client on prior the felony conviction, due to this conviction any new felony plea would require a minimum of two to four years in prison and a potential maximum of three and one half to seven years in prison. Due to the diligence and advocacy of Crotty Saland PC, the crash and burn finality as mandated by law upon a conviction was completely avoided.