Its widely known by New York DWI lawyers, prosecutors, judges and regular every day people that the legal limit for a BAC in a drunk driving, DWI or DUI case is .08. If your BAC is.08 or greater, regardless of where you may reside in New York from the City to the suburbs, you will be charged with violating New York Vehicle and Traffic Law 1192.2. Unlike the common law variety of New York Vehicle and Traffic Law 1192.3 that relies on certain indicia of intoxication (water blood shot eyes, slurred speech, unsteady gate), VTL 1192.2 relies solely on scientific reading from DWI equipment such as an intoxilyzer. The question posed in this particular NY DWI blog entry is if you in fact blow below a .08 can you still be charged with DUI or DWI based on a VTL 1192.3 Offense. That is, even if scientifically your are well below the legal threshold, can the police still arrest and prosecutors still charge you a DWI misdemeanor?
New York Penal Law 215.50, Second Degree Criminal Contempt, is a crime that prosecutors are quick to charge and often for good cause. However, regardless of the subjective view of an Assistant District Attorney or a police officer with the NYPD or any police department outside New York City, cases must still be proven beyond a reasonable doubt whether you’re in Westchester, Rockland or Gotham. At earlier stages of litigation, the accusatory information – the complaint – must be legally sufficient or your case should not “pass go.” Therefore, mere allegations must be supported by some form of evidence or alleged facts. Tying this back to Second Degree Contempt, an “A” misdemeanor punishable by as much as one year in the county jail (can you say “Rikers Island?!”), the four corners of the accusatory instrument must legally support that there was a valid order of protection, the parameters of that order and how you violated the order. In a recent case out of White Plains, New York, the a court rendered a decision giving a broad interpretation of an order of protection and a defendant’s conduct that is worth reviewing and directly on point with the title of this blog entry.
Whether its in the context of a Domestic Violence case with a former partner or lover or a co-worker in Manhattan, Queens or Brooklyn, those nasty, threatening or plain ugly and uninvited texts, emails or phone calls may be more than a mere annoyance. In fact, depending on the conduct, you will be arrested, you will see a judge and you will need a New York criminal defense lawyer experienced in and knowledgable about Aggravated Harassment in the Second Degree, New York Penal Law 240.30. Let’s be very clear. Second Degree Aggravated Harassment is a serious crime. The NYPD will arrest you based on an allegation. If there is corroboration or you make an admission, things can go from bad to worse. A class “A” misdemeanor, NY PL 240.30, although unlikely, could land you in a jail for up to one year even if you receive a Desk Appearance Ticket. Because of the severity and seriousness PL 240.30, this blog entry will attempt to further explain what conduct rises to criminal activity.
Whether its an unapproved mural or a small tag, in order for a judge or jury to convict you of Possession of a Graffiti Instrument, New York Penal Law 145.65, an Assistant District Attorney must prove beyond a reasonable doubt: (1) your intent to damage property (2) your possession of any tool, instrument or compound designed to etch, paint, cover… or otherwise place a mark upon a piece of property and (3) you knew you had no permission or authority to do so. Although this definition seems fairly straight forward, the question presented in this blog entry is whether or not the prosecution can circumvent the third element of PL 145.65 and prove the crime of Possession of Graffiti Instruments where the intent to damage property is clear and the tools in question are those for actually making graffiti.
If there are drugs found in your Manhattan apartment and you are inside that apartment, you are guilty of possessing those drugs, correct? If the police execute a search warrant and you reside in the in the Brooklyn home where drugs, such as cocaine, heroin or marijuana are found, you are guilty of possessing those controlled substances, right? After all, the police found the contraband in your apartment so you must be responsible. If the amount is fairly small of a controlled substance then there is no reason why the police should not arrest you for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03. If the police believe you had the intent to sell the cocaine, heroin or other drug then they should arrest you for intending to sell those drugs pursuant to Criminal Possession of a Controlled Substance in the Second Degree, New York Penal Law 220.16. To give you some perspective on these crimes, PL 220.03 is an “A” misdemeanor punishable by a year in jail and PL 220.16 is a “B” felony punishable by one to nine years in a New York State prison. For good measure, let’s add some more perspective to the questions asked above. Your mere presence, without actual possession, may not be enough for the prosecution to sustain any criminal charge against you. Obviously you should consult with your own New York criminal lawyer or criminal defense attorney versed in drug crimes, but the following analysis of a recent court decision is right on point.
In the City of New York there are cabs, livery cars, Uber services, buses and subways. All of these modes of transportation make it a difficult sell to prosecutors that a drunk driving, DWI or DUI arrest was due to an inability of an accused to get home. Not that such a defense would be a viable or strong one, but these facts explain why prosecutors are often unsympathetic to the plight of an individual accused of VTL 1192.2 or VTL 1192.3. Couple this with the fact that drunk driving crimes in New York (or anywhere) can have significant collateral and direct consequences to other drivers and pedestrians, don’t be shocked if the District Attorney does not want to budge on a good offer. Remember, if you are convicted not only can you face a year in jail, the suspension or revocation of your license, a $1,000 fine and the requirement that you install an ignition interlock, but a DWI will remain on your record forever. While I may be a New York DWI attorney and criminal lawyer, I would tell you the same thing I would tell a family member. While I certainly zealously advocate for my clients in every case, if you are concerned you might be intoxicated call a cab or give your friend the keys.
When those not familiar with New York’s criminal justice system and the New York Penal Law think of Stalking and Stalking related crimes, the picture that comes to mind is often of a man who follows a woman around a public place, sends unwanted solicitations by text, phone or email and even threatens violence with knives, guns or other weapons. While this may be true in many circumstances, there are different “varieties” of Stalking. New York Criminal defense attorneys see or defend Stalking not merely as misdemeanors and felonies, but in wide variety of forms across varying types of conduct. In a recent case of first impression by a New York City Court Judge sitting in Manhattan (New York County), the Court had to render a decision as to whether or not a person’s work email address constituted their place of employment or business for the purpose of Stalking in the Fourth Degree. Although New York Penal Law 120.45(3) is the lowest level Stalking charge in New York’s criminal code, it is nonetheless a class “B” misdemeanor punishable by a term of incarceration. A conviction for this crime does note go away and is never sealed. In other words, all defenses must be explored.
Prostitution is a polarizing word. There are some who look at the very real horrors of human trafficking and there are others that believe if regulated by the government there could be tax revenues generated as a result of actions between consenting adults. Fortunately, neither this blog entry nor I will deal with any of the theoretical angles of prostitution. Simply, the bottom line is that in New York State, prostitution is a crime. Depending on one’s involvement, offenses range from misdemeanors to felonies. Regardless of the crime, you and your criminal lawyer would need to identify and formulate your best defense to avoid the embarrassment and stigma of a prostitution related arrest in New York City or elsewhere in the Empire State.
While this blog entry will not serve as an answer or legal advice for your particular arrest, it will review the crime of Promoting Prostitution in the Fourth Degree pursuant to New York Penal Law 230.20(1) . This particular degree of Promoting Prostitution is a class “A” misdemeanor punishable by up to one year in jail. As noted above, there are other more serious degrees of Promoting Prostitution in New York that are felonies and carry terms of incarceration in prison. Just as you should in all cases, consult with your own criminal defense attorney as to the nature of these and related charges should you be arrested or investigated for such crimes.
To leave your child unattended or not. That is the question. Whether the child is three months, three years or thirteen years old, does it matter? If the child is left alone for five minutes, fifteen minutes or two hours, is it relevant? Does it make a difference if the child is left in a car, a home or public location? What if drugs, alcohol or dangerous instruments are nearby? While not specified in the Endangering The Welfare of a Child statute statute, New York Penal Law 260.10 is the crime that encapsulates these types of actions and behaviors involving and toward children. A serious crime, Endangering the Welfare of a Child is an “A” misdemeanor with a punishment that can be as great as one year in jail. Compounding matters, the Administration for Children Service (ACS) or Children Protective Services (CPS) may conduct their own investigation, the child could be removed from the home and a criminal court will likely issue an order of protection either limiting or preventing certain contact with your child.
Although each of the questions addressed above will not be reviewed in this particular blog entry as they have been discussed in numerous other entries found throughout the NewYorkCriminalLawyerBlog.Com (you can search this blog or follow the links), this entry will confront the issue of length of time a child is left unattended and when it rises to criminal conduct.
Certain crimes, whether ultimately proven by prosecutors beyond a reasonable doubt or successfully defended by New York criminal defense attorneys before or during trial, have a significant stigma associated with them. Crimes involving children rank high on this list of offenses, but those involving animals are not that far behind. Nobody, from New York judges to the Assistant District Attorneys who prosecute cases, has much sympathy where the allegations of an arrest or indictment involve animals. New York City may be the “concrete jungle,” but preying on animals will likely leave you locked up and facing a judge for your alleged indiscretions – willful or not. While each crime is unique, one statute that prosecutors use in their arsenal and that criminal defense lawyers find them selves challenging is Agriculture and Markets Law 353. This “A” misdemeanor, punishable with a permanent record by up to one year in jail, makes it a crime to deprive any animal of necessary sustenance, food or dink, or neglect or refuse to furnish that animal with such sustenance or drink. This blog entry will deal with the crime of AML 353 and the analysis of AML 353 in the context of case in New York City Criminal Court.