New York Criminal Lawyer Blog

Although legal case decisions establish precedents that New York criminal defense attorneys can sink their proverbial teeth into when attacking a criminal case in New York City or elsewhere, sometimes the practical value of that decision is limited. After all, if the facts or evidence do not establish the point your criminal lawyer is seeking to exploit, the particular legal decisions has limited value. In the arena of New York Desk Appearance Tickets and arrests for gravity knives, pursuant to New York Penal Law 265.01, a decision relating to two companion cases will hopefully be valuable in both the legal and practical context.

The issue raised before the Court of Appeals in the context of a gravity knife arrest or Desk Appearance Ticket was what is necessary to establish an officer's reasonable cause to believe that the accused possessed a gravity knife as opposed to some other knife or blade? In the two cases, People v. Fernandez and People v. Brannon, the Court of Appeals held (in my own words of course) that in order to establish the reasonable suspicion, there must be articulable factors, but not absolute certainty, allowing the officer to believe that the item in question was an illegal gravity knife as opposed to some other type of blade.

Generally speaking, and as noted by the Court in the Fernandez / Brannon decisions, "before a police officer may stop and frisk a person in a public place, he must have 'reasonable suspicion' that such person is committing, has committed or is about to commit a crime." Citing People v. Cantor, the Court further stated that "[a] stop based on reasonable suspicion will be upheld so long as the intruding officer can point to 'specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion.'"

In the arena of New York gravity knife crimes and laws, the Court in Brannon applied its holding and found that the gravity knife in question should have be suppressed as a result of an illegal search. There, the officer could not assert that he believed the object in question was an illegal gravity knife, but could have been a pocket knife. In Fernandez, however, the Court found that the search was reasonable and legal. There, the officer testified as to his training and experience, the object in question and why he believed that the knife was a gravity knife.

While the decisions in the two companion cases seem reasonable and distinct from one another (one an officer can articulate his basis for believing the knife was a gravity knife while in the other he cannot), there is a real reason for concern. As noted by Judge Jones in the dissenting opinion:

"Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger."

Whether this decision changes the landscape of arrest and searches for gravity knives and other unique weapons set forth in Criminal Possession of a Weapon in the Fourth Degree is unknown. However, it is clear, and concerning, as noted by Judge Jones, that the danger is exists that "allows" an officer to throw in some key terms and language about his or her experience as a means to get over this small legal hurdle. Regardless, should this case, and those that will likely follow, be of value to you, consult with your own gravity knife lawyer to see how its implementation may help.

For a wealth of information on New York criminal laws and crimes relating to gravity knives and Criminal Possession of a Weapon, please follow the highlighted link.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm. The New York criminal lawyers at Crotty Saland PC represent those accused of weapon crimes throughout the New York City region.

* In addition to the Crotty Saland PC website and the New York Criminal Lawyer Blog, please review NYDeskAppearanceTicket.Com for information on Desk Appearance Tickets in New York City.

The most commonly prosecuted Grand Larceny cases in New York revolve around the value of the property in question. Whether there is a theft by embezzlement, trick or extortion, the degree of the Grand Larceny often relates directly to that value. For example, should you steal $2,000 from an employer by embezzlement or trick someone into giving you $2,000 in exchange for a item with no value, your arrest charge would likely be Grand Larceny in the Fourth Degree pursuant to New York Penal Law 155.30(1) because the value of the theft exceeded $1,000, but was less than or equal to $3,000. In such a case,

In 2010, however, the New York State legislature added a new charge that New York criminal defense attorneys must fight against. Now, should you steal that same $2,000 your crime may be raised a degree to the more serious Grand Larceny in the Third Degree. According to New York Penal Law 155.35(2), one is guilty of Grand Larceny in the Third Degree if the property one steals is an automated teller machine (ATM) or the contents of an automated teller machine. Examining this statute further, regardless of the value of the physical ATM, if you hijack that ATM from a convenient store, bodega, or any other establishment, your crime automatically is a "D" felony even if the value of that ATM is $750 or $2,000 dollars. Furthermore, the contents of the ATM are also subject to this statute. Therefore, it appears that if you withdraw funds from an ATM, let's say $750 for the purpose of this hypothetical, and you are stealing these funds from another person, you would also be guilty of Grand Larceny in the Third Degree based on this statute. Compounding matters, if you perpetrate this crime a second time in a five year period or this is merely your second Grand Larceny, you would also face the elevated offense New York Penal Law 155.43, Aggravated Grand Larceny of an Automated Teller Machine. A "C" felony, Aggravated Grand Larceny is punishable by up to fifteen years in state prison while the "D" felony is punishable by up to seven years in state prison .

It is important to note that this crime does not supersede or prevent law enforcement in New York to prosecute you with additional offenses. That is, if you use another person's debit card to steal $750 from an ATM you would likely face the felony crimes of Criminal Possession of Stolen Property in the Fourth Degree for possessing a stolen debit card and Identity Theft in the Second Degree for using the personal identifying information of that person (their debit card number) to steal their $750. Depending on your conduct, there could also be additional offenses charged in your arrest.

The criminal laws and statutes relating to Grand Larceny, Identity Theft and other fraud related crimes is constantly evolving in New York. What is construed as a minor or non-criminal offense today may become a serious felony in the future. Whether you are a criminal lawyer in New York or not, staying apprised of these statutes is imperative.

For a wealth of information on the degrees and types of felony theft crimes and Grand Larceny in New York, please follow the highlighted link to the Grand Larceny information page. On that page you will not only find analysis of statutes, but numerous blog entries from the New York Criminal Lawyer Blog which further review legal decisions and cases pending in the news.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York City and metropolitan criminal defense practice representing those accused of Grand Larceny and other white collar crimes throughout the region.

Attorney General Eric T. Schneiderman has a long way to go to fill his predecessor Andrew Cuomo's shoes, but he announced an indictment today that will certainly keep a crew of criminal defense attorneys busy over the next few months. The indictment, the culmination of a significant investigation where undercover investigators posed as potential nursing students, accuses eleven defendants of operating a fraudulent nursing school and college scheme. The defendants are charged with Grand Larceny in the Third Degree (NY PL 155.35) as well as Scheme to Defraud in the First Degree (NY PL 190.65). A "D" felony, Grand Larceny in the Third Degree is punishable by up to seven years in state prison while Scheme to Defraud in the First Degree is an "E" felony punishable by up to four years in state prison.

It is alleged that the defendants, Robinson Akenami (owner and operator of Helping Angels Foundation of America (HAFA)), Jocelyn Allrich (owner and operator of Hope-VTEC Hope-VTEC a/k/a J. Allrich Productions, Inc., Hope Nursing Tutorial Services, and Tutorial Nursing Prep), Nadege Auguste (owner and operator of VTEC-NY, Inc. a/k/a Life-VTEC), Andre Castage (an Administrator and Admissions Director at International Language and Professional Network, Inc. (ILPN)), Carline D'Haiti (operator of Envision Review Center), Salavatrice Gaston (a second operator of Envision Review Center), Anthony Myers (an administrator and ILPN's Admissions Director), Rodye Paquiot (an executive at ILPN), Carl Lee Sellers (the Administrator of Hope-VTEC), Frantz Simeon (owner and Executive Director of ILPN) and Jude Valles (established the VTEC franchise) each perpetrated various frauds on unsuspecting students. It is claimed that these men and women lied to students about critical educational issues such as the schools accreditations and that students would be eligible to sit for the New York State Nursing Board Exam (NCLEX).

As a result of this alleged deception, AG Schneiderman's troops claim that the defendants and their schools snookered $6 million from students in Brooklyn, Queens and Long Island. Individually, some students paid up to $20,000 for the valueless degrees and were not eligible to take the Nursing Board Exam or become LPNs or RNs.

Extensive information on New York Grand Larceny crimes can be found through the hyperlink. Additional information on this crime as well as Scheme to Defraud and other criminal offenses can be found on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) or the Crotty Saland PC website.

Founded by two former Manhattan prosecutors who served under Robert Morgenthau, the New York criminal lawyers at Crotty Saland PC represent those accused of and arrested for crimes throughout the New York City region.

Although not arrested by Detective Frank Drebin, for seventeen individuals indicted in Brooklyn because of their alleged involvement in High Class NY, a New York City escort ring, this certainly is “some kind of a bust.” Unfortunately for them, however, there is nothing funny about the predicament they face. According to Charles Hynes, Kings County’s top prosecutor, "[th]ere is no such thing as a high-class pimp, and as we do with all other pimps, my office will prosecute these defendants and seek the maximum sentences available under the law.” Charged in the 144 count indictment, seventeen individuals, including Mikhail Yampolsky; his wife, Bronislava Yampolsky; his son, Alexander Yampolsky; his step-son, Jonathan Yampolskaya and alleged investors Efim Gorelik and Yakov Maystrovich, face some of the highest degree felonies in the New York Penal Code. In addition to these defendants, detectives also arrested Valerii Loboda, Irina Pobukovsky, Ilya Olshansky, Angelo Pascacello, Meredith Harford, Boris Ratovsky, Yury Gorelik, Pinia Ashkinadze, Alexey Senenov and Oleg Lechko. These men and women, as well as five corporations, face a multitude of crimes such as Enterprise Corruption, Promoting Prostitution, Money Laundering, and Criminal Sale of a Controlled Substance.

If it is not overwhelming clear through DA Hynes’ statement, the Brooklyn District Attorney’s Office firmly believes that this alleged crew of pimps and prostitutes, who also dabbled in narcotics and drug trafficking, is being treated not merely as individuals, but as an organized criminal institution. Enterprise Corruption, a “B” felony punishable by a mandatory minimum of one to three years in prison and a maximum of eight and one third to twenty five years in state prison for a first time offender, is New York’s version of the federal RICO statute. In charging this crime and arresting these individuals, prosecutors believe and must prove beyond a reasonable doubt that High Class NY operated with a structure that was both ascertainable in nature, ie, different levels of workers, with a common goal or purpose.

What is likely concerning to many johns (men who solicit prostitutes) and the defendants already indicted, is that credit cards were allegedly used to procure the services of prostitutes from High Class NY through websites such as HighClassNY.Com, DiscreteClub.Com, NY AdultDating.com, CupidDirect.Com, and AngelofYourChoice.com. These alleged escorts charged between $400 to as much as $3,600 an hour. It is further claimed by law enforcement that men paid up to $10,000 in one night. Whether or not these johns are contacted and questioned by law enforcement is yet to be seen, but the defendants may have created an easy trail of criminality in terms of ascertaining dates of “transactions,” monies spent and the names of these johns. Combine this with the ability of law enforcement to obtain records of login information, IP addresses and hosting information, this alleged evidence gives law enforcement the ability to more easily prosecute the charge of Money Laundering and Promoting Prostitution.

In addition to these crimes, prosecutors allege that when some of the johns booked the “models,” they were also supplied with drugs. In an attempt to allegedly cover up the Sheepshead Bay’s escort and prostitution service, contracts were created whereby “models” signed agreements not to engage in sexual activity with clients. Assuming this is accurate, the alleged ring members would have some difficulty solely using these contracts as a defense if evidence can show that they benefited financially or were involved in the sexual activity or drug trade.

According to the indictment, High Class NY made more than $7 million between September 2007 and November 2010. Moreover, both Gorelik and Maystrovich each invested $700,000 in the company. It is likely that this corroboration came through a variety of sources such as records from High Class NY as well as search warrants and wire taps.

I can only speculate (I only have information supplied through media outlets and the Brooklyn District Attorney’s Office press release), but clearly some individuals will have stronger defenses than others. In part, this is because they operated outside of the structure or did not have their hands in narcotics trafficking. Moreover, the District Attorney’s Office will likely come down harder on different individuals due to their particular roles in the ring. What defense is set forth by the defendants and what defenses are viable will slowly and undoubtedly come to light over the next few weeks.

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 those who are accused or crimes throughout the New York City region.

For extensive information on New York Prostitution crimes and related offenses follow the highlighted link. Additionally, a wealth of information on other crimes, including Enterprise Corruption, Criminal Sale of a Controlled Substance and Money Laundering can be found on the Crotty Saland PC website as well as the New York Criminal Lawyer Blog.

From shoplifting and drug possession to assault and possessing forged instruments, the New York Desk Appearance Ticket lawyers and former Manhattan prosecutors at Crotty Saland PC routinely handle Desk Appearance Tickets (D.A.T.s) issued in New York City arrests. While Desk Appearance Tickets are routinely issued to those with verifiable addresses in the New York City area, that is not always the case. Fortunately, the police will occasionally give a D.A.T. to a foreign national with a temporary local address. While this courtesy prevents those arrested from being forced into "the system" for up to 24 hours, it also often creates a future issue that requires the assistance of NYC criminal attorney.

The End of Vacation and Expiring Visas

Because a Desk Appearance Ticket requires your attendance in court approximately a month after your arrest, law enforcement has given you a golden opportunity to plan your defense before ever stepping foot in court. Unfortunately, if you are a foreign national from Australia, Britain, India, France or any other nation, your vacation may be over or your visa may expire before ever having your day in court.

Failure to Appear

The equation is fairly simple. If you fail to appear in court on the stipulated date, a warrant will be issued for your arrest. While it is highly unlikely that you will be pursued overseas, if and when you return to the United States the warrant will still be outstanding. Whether it is ten months or ten years later, upon your return it is very like that the warrant will "pop" and you will be arrested upon entering the United States. For example, should you fly into John F. Kennedy (JFK) Airport, you could be taken into custody and brought to central booking or court where you would then wait to see a judge.

What Steps can be Taken to Avoid a Warrant

Because you were arrested, merely calling the District Attorney's Office where your case will be pending will likely not do much. In other words, merely because you have to leave the country will not convince prosecutors to dismiss your case. If the position of law enforcement was that your case was not worthy of prosecution, then you would not have been arrested in the first place. It is likely that the best you would be able to do would be to have the matter adjourned a month or so into the future. At that time you would have to return back to the United States at your own cost.

An alternative method of handling your absence would be to retain local counsel in New York City. A New York criminal defense attorney could appear in your absence and likely avoid a warrant. Moreover, he or she can potentially resolve your case in your absence depending on the nature or the crime(s) and allegation(s).

What is Needed

While there is no specific rule or law that sets forth when or how (or if) it can be done, generally the judges in New York City are amenable to working through the problem faced by foreign nationals. In Manhattan Criminal Court, for example, judges often times want proof of travel (plane confirmation), a copy of a passport from the accused's home country and a notarized affidavit that the attorney has explained the law and is authorized to appear on the case in the defendant's absence.

Proof the Case is Resolved

Regardless of the ultimate disposition in the case, your criminal defense attorney in New York can likely get you proof from the court that the case is closed. The court clerk issues a Certificate of Disposition that costs $10. This certificate will set forth the outcome of your case. If, for example, your counsel is able to obtain an adjournment in contemplation of dismissal (ACD) whereby your case is dismissed and sealed after six months, your attorney would ultimately get a certificate that would state in substance that there is no longer a public record of your arrest and prosecution. Obviously what is set forth on the certificate is directly related to the ultimate outcome.

For a wealth of information on New York Desk Appearance Tickets as well as the countless crimes that can be charged through these arrests, please follow the highlighted link or review either the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) and the Crotty Saland PC website.

Established by two New York criminal lawyers who previously served as Manhattan prosecutors, Crotty Saland PC represents those accused of crimes throughout the New York City region.

* In addition to the Crotty Saland PC website and the New York Criminal Lawyer Blog, please review NYDeskAppearanceTicket.Com for information on Desk Appearance Tickets in New York City.

Jeremy Saland, a New York criminal defense attorney and former Manhattan prosecutor, was interviewed for a Wall Street Journal article published today addressing the intersection of modern day lawyering and social media. An interesting article, one of the main themes of the piece was how social media - blogs, twitter and facebook - can help an attorney's marketing and client generation.

Make no mistake. If done the right way, utilizing social media can certainly help drive business to your law practice. The article made this very clear. However, equally important in generating business over time is not only getting the phone to ring, but to be able to service your clients and to do so ethically and diligently. After all, establishing a career that will span decades is not about merely getting a high profile case or one "big fish" client, but in assisting all clients in all matters with the highest degree of professionalism.

Although not detailed in the Wall Street Journal, today's internet often dupes consumers into believing perception is reality (how many "experts" are out there today?!?!). It is often difficult to find substance in a website or blog, and sometimes with the actual attorney, through all of the nonsense and exaggeration. If your use of social media is strictly the fluff of client generation and you cannot demonstrate your legal knowledge while achieving satisfactory results, the buzz you have created about your firm - as well as your clients - will ultimately fade away.

At the end of the day, there is nothing wrong with using social media as vehicle for client development and marketing. Don't let other attorneys who may not be as experienced in this area tell you otherwise. Yet, don't become a victim of your own hype. The rules of law school 101 will dictate your success. That is, there is no substitute for true lawyering.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Beyond the website, the New York Criminal Lawyer Blog contains a wealth of information ranging from commentary on criminal statutes and cases to analysis of criminal matters in the New York area news.

Oscar Fuller, the man accused by prosecutors of obliterating the petite Lana Rosa with one punch, was arraigned on an indictment charging Assault in the Second Degree in Manhattan Supreme Court earlier this April. According to District Attorney Cyrus Vance, Jr., what began as a dispute over a "trivial matter - a parking spot - turned into a vicious and senseless act of violence with dire consequences.”

While I do not believe anyone can credibly argue that Ms. Rosa, who recently awoke from a coma after fracturing her skull, was not hurt catastrophically, legal minds can certainly debate whether or not DA Vance made the wrong (or right) charging decision in this case. Make no mistake, DA Vance had "no choice" but to present this matter to a Grand Jury. If he did not present the case to the Grand Jury, the jury of public opinion would not embrace the top prosecutor well. If the case was presented to the Grand Jury and they did not indict, then DA Vance could always explain that he must respect the process whether he agreed or not with the outcome. Regardless, the Manahttan District Attorney's Office is now saddled with proving a one punch felony that may not merit such a prosecution based on the actions of the accused as opposed to the end result.

For the sake of argument, let's assume that Fuller did in fact punch Rosa in the face. Moreover, let's assume that the young lady fell to the ground and struck her head causing her to lose consciousness. Let's further assume that Fuller had the intent to cause physical injury. After all, if true, there are few, if any, reasons why one person would punch another person in the face. The next, and critical, issue, however, is the hurdle that the prosecution must jump. When Fuller punched Rosa did he do so with the intent not to merely cause "physical injury," but "serious physical injury."

"Physical injury" means impairment of physical condition or substantial pain. "Serious physical injury," however, means 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. As you can see, there is a vast difference between the two. Again, the end result is not the issue, but whether or not Fuller struck Rosa with the intent to cause "physical injury" or "serious physical injury."

As I understand the evidence, Fuller struck Rosa once. Furthermore, Fuller's attorney claims that video supports that Rosa approached his client first. After the one punch, Ms. Rosa, who is not even five feet tall, was knocked back and her head struck the sidewalk causing the catastrophic injuries. Objectively (beyond a reasonable doubt), was it Fuller's intent to fracture her skull or cause potential brain damage when he struck her and she struck the sidewalk? If that were the case and the prosecution believes Fuller intended to use the sidewalk as the weapon to perpetrate the crime, then prosecutors would have charged a different subsection of the felony Assault (the weapon and dangerous instrument "bump up"). Instead, they chose the theory and subsection as described above.

Assuming the evidence is close to what is described, did Fuller want to hurt Rosa and cause her pain? The objective answer, self defense argument aside, is probably "yes." Maybe he wanted to even teach Rosa a "lesson" and give her a fat lip, black eye or swollen nose. But, when he struck her, was it his intent to cause her such an injury that there was a substantial risk of death or protracted impairment of her health or functioning of a bodily organ? Is the evidence going to establish beyond a reasonable doubt that with one punch it was his intent to hurt Rosa this horrifically? Despite prosecutors' apparent claims, the fact that Rosa is a small woman does not equate to a different intent in the mind of Fuller. Is their argument that if Rosa weighed more or was a bigger man, who absorbed the punch better, then Fuller's intent would have been different? The smaller woman may have made his actions more reckless, but, without more - threats, multiple swings, hovering over her, etc. - the one punch doesn't add up to an intent to cause "serious physical injury."

What all of us tend to do is confuse or combine our emotions with the law. While the two are no mutually exclusive, the issue is not whether you like Fuller or if you grieve for Rosa and her family. One would be terribly insensitive not to feel for the pain Rosa and her family has and will continue to go through. No man or woman should strike another over such an insignificant argument. Having said that, emotions aside, the law is still the law. While there may be civil remedies and a misdemeanor crime, the facts as I know them do not warrant an indictment - or conviction - for Assault in the Second Degree. Fortunately, I am neither judge nor jury. Come later this month when Mr. Fuller is next in court, we will certainly begin to see whether or not my assessment has any merit.

For in depth information as to the general crimes of Assault in New York as well as the difference between Assault in the Second and Third Degrees, please review the Assault section of the Crotty Saland PC website listed under Violent Crimes. Beyond the Crotty Saland PC website, additional information on these and other crimes, including criminal statutes, legal decisions and analysis of press related cases, can be found on the New York Criminal Lawyer Blog.

Crotty Saland PC is a criminal based New York City criminal defense law firm. The two founding partners both served in the Manhattan District Attorney's Office before starting the law practice.

James Whittemore, the twenty-something Manhattan man arrested for an alleged drunken rampage at the fabled Ed Sullivan Theatre in New York City, is going to a get a sobering reality check when he sees a criminal court judge for the first time. It is alleged by police that Mr. Whittemore trashed the Ed Sullivan Theatre be smashing out windows and tossing garbage pails and other items around David Lettermen's home stage. While not as disturbing as the crimes perpetrated by Robert Halderman, the actions of Whittemore certainly have left the gapped toothed comedian unhappy to say the least.

Assuming the reports are true, what are the potential crimes that young James may face? As I note in most of my blog entries, I am only privy to the facts set forth in the media, but the following are some of the more serious criminal offenses I believe may be charged based on the limited information that I have:

Burglary in the Third Degree: New York Penal Law 140.20

In short, if you trespass and do so with the intent to commit a crime in the location you are trespassing, then you have committed the crime of New York Burglary in the Third Degree. Despite what we read or see in the news, you need not intend to steal when you commit a Burglary. As long as you enter, for example, a building without permission or authority and you do so with the intent to commit any crime (the prosecution need not prove a specific crime), then a Burglary has been committed. If that building also houses units or areas where people sleep at night such as an apartment, then the offense level increases to a violent felony under the law of Burglary in the Second Degree (New York Penal Law 140.25). A "D" felony, Burglary in the Third Degree is punishable by up to even years in state prison with no mandatory minimum for a first time offender. In the event the building had apartments, for example, then there is a possibility that the Second Degree offense could be charged. A "C" felony, Burglary in the Second Degree is punishable by a mandatory minimum of three and one half years in state prison and a maximum of fifteen years.

Here, it appears that Whittemore did not have permission or authority to enter the Ed Sullivan Theater. After all, it is clear one is trespassing when one forces one's way into a locked building where one does not work. Assuming this is what the evidence will establish, Whittemore trespassed when he allegedly "crashed the gates."

Once inside, the argument is going to be made that he then smashed the place up thereby perpetrating the offense of Criminal Mischief. Now, as I noted above, the prosecution need not specifically allege or prove that Whittemore intended to cause damage to property in the building. Whether Whittemore decided to damage the building, steal or burn it down is relatively irrelevant as long a Manhattan Assistant District Attorney in Cyrus Vance's brigade can establish he intended to commit any crime.

Criminal Mischief in the Third Degree: New York Penal Law 145.05

Generally speaking, if you intentionally damage the property of another person, you are guilty of some degree of New York Criminal Mischief. Whether the property is an antique radio, clothing or the glass doors to the Ed Sullivan Theatre makes no difference. The relevant factor in ascertaining the degree of the crime is the amount of the damage. In the event that damage exceeds $250, but is equal to or less than $5,000, then the crime is a violation of New York Penal Law 145.05. An "E" felony, Criminal Mischief in the Third Degree is punishable with no mandatory minimum for a first time offender, but up to four years in state prison.

Examing the case against Whittemore, it is likely that if true, the damage caused was greater than $250, but not greater than $5,000. Therefore, this felony version of Criminal Mischief will be charged.

Potential Defenses to the Allegations

It is awfully difficult to formulate a defense without knowing the evidence and "facts" beyond a few articles in the tabloids. While Whittemore could certainly argue (although it might be difficult) that he had no criminal intent when he trespassed into the Ed Sullivan Theatre (maybe he merely wanted to see memerobelia in his drunken state whe he entered the building), that would still leave him with the felony Criminal Mischief that was likely caught on video. Alternatively, a mitigation approach might be much better. In other words, Whittemore is a good guy who made a bad mistake. But for the premises being the Ed Sullivan Theater and the incident playing out in the news, the Manhattan District Attorney's Office should not treat this case any differently than any other case. Does this young man have any mental health or substance abuse issues? Is he remorseful and willing to take financial responsibility for what he did? Has he shown that but for this incident, he has been and can continue to be a valued member of society? These are many of the questions that must be addressed if and when he and his criminal lawyer attempt to mitigate his conduct. Whatever the defense may be, Whittemore likely has a long road ahead of him.

Extensive information on the crimes of Burglary and Criminal Mischief is located through the links above. Additional information on these and other crimes as well as analysis of cases in the news can be found on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) as well as the Crotty Saland PC website.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent those investigated for and accused of crimes throughout the New York City region.

As a prosecutor in the Manhattan District Attorney's Office for over seven years, I supervised and led investigations, arrests, indictments into complex identity theft and fraud related crimes and schemes. One of those investigations and indictments resulted in the conviction of numerous individuals who posed as professional graduate school entrance examination test-takers. These defendants created fake passports and use the identification information of the legitimate prospective student to sit for the GMAT, GRE, TOEFL and other examinations. Indicted for the crimes of Criminal Possession of a Forged Instrument, Falsifying Business Records and Identity Theft, none of the attorneys who represented the accused challenged the crime of Identity Theft based on the theory that their respective client was given permission and authority by the legitimate student to use that student's personal information to cheat the colleges and universities. If nothing else, the idea that one cannot commit identity theft because one was given permission to use the personal information, albeit to defraud a third party, was worth pursuing in a court of law in light of the other overwhelming evidence. While other crimes may have been perpetrated, an argument could have been made that Identity Theft was not one of them.

Generally, you are guilty of Identity Theft in New York (New York Penal Law 190.78) in New York when, with the intent to defraud, you present yourself as another person by using that person's personal identifying information. In doing so, also obtain goods, money or some other form of property. This crime is enhanced through the value of the property or goods, as well as through other means to the crimes of New York Penal law 190.79 and New York Penal Law 190.80.

Addressing the issue hinted to in the first paragraph, nothing in the statute directly states whether you can commit identity theft if the "owner" of the identifying information gives you the authority to us it even if that information is being given to you for the purpose of deceiving another. Although a lower court decisions and not 100% on point, a Brooklyn court has finally grappled with this issue in part.

The People of the State of New York v. [M.]1, 2010KN014909, the defendant and the complainant shared a child in common. At some point the defendant, who had bad credit, allegedly received permission from the complainant to open up a credit card account with the personal identifying information of the victim. Upon doing so, the defendant utilized the credit, but also maintained her responsibility to pay the associated bills. Only after an unrelated dispute between the parties did the defendant stop paying the credit card bills. The question before the court was whether or not the conduct described above constituted the crime of Identity Theft in New York. That is, if you once had permission to use another person's information, could you still be perpetrating identity theft once that person revoked that right or because even with that right, a third party is being deceived or defrauded.

Answering the former question, the court found that once the complainant revoked the right of the defendant to utilize the personal information, using that information going forward would ultimately violate the crimes of Identity Theft. The latter question, while not in and of itself the basis of the decision, was analyzed as well. There the court noted that even if the complainant was not being defrauded when permission was granted to use personal identifying information, the creditor was. According to the court:

"It is basic law, leaving aside exceptions not relevant here, that a vendor may choose its customers, and a creditor may choose its debtors. It was not disputed that Dell [the creditor] was entitled to turn down Defendant as a customer worthy of being extended credit, as long as it did not do so for some legally impermissible reason. Nor may a potential customer legally circumvent the vendor's refusal to extend credit by surreptitiously opening an account in the name of some other party who has not consented and agreed to be liable to the vendor, even if the vendor would have extended credit to the nominee, had he applied for credit."

Extensive information the crimes of Identity Theft in New York as well as associated fraud crimes is located through the highlighted link. Beyond these crimes, substantive information on New York white collar crimes may be found on both the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) as well as the Crotty Saland PC website.

Representing those accused of or arrested for crimes in the New York City region, Crotty Saland PC was founded by two New York criminal lawyers who previously served as Manhattan prosecutors.

Dominque Strauss-Kahn, the French national and former head of the IMF, may be celebrating his own Independence Day accompanied with a display of fireworks that would revival any July 4th celebration. According to the New York Post, DSK could "walk" as early as his next court date after Manhattan prosecutors have come to realize there are major credibility issues with the maid from the Sofitel. Not only would a dismissal call into questions the zealousness of prosecutors who rushed into the Grand Jury to obtain an indictment, but the grand finale could have both political and financial ramifications for many parties involved. The encore to this international spectacle would be the consequences of a perceived gaffe on public confidence.

According to the New York Post, a source familiar with the investigation by the Manhattan District Attorney's Office stated that "[W]e all know this case is not sustainable. Her credibility is so bad now, we know we cannot sustain a case with her." If recent stories and articles can be believed, this revelation by DA Cyrus Vance's team seems reasonable. There have been reports in various media sources that the maid's conversations with an inmate on Rikers were recorded where it was learned that she was seeking to benefit financially from the arrest. Furthermore, allegations that the maid was "servicing" DSK voluntarily and has done so or has tried to to so with other customers recently came to light. If these claims were not enough, reports have further asserted that the maid had numerous accounts with significant deposits that could be tied to "improper" activities. Should have or could have prosecutors known this before heading into the Grand Jury? I do not know the answer, but this may only be the beginning of what appears to be an exoneration and vindication for DSK and a significant blemish for the fabled Manhattan District Attorney's Office.

Assuming the case against DSK is dismissed, there are a few story lines that can be cobbled together from what would be a significant mistake. First, prosecutors should not rush into the Grand Jury. Barring an acquittal or an error such as this, indictments "last forever" and can reek havoc on one's life, family and livelihood. Couple this with the "perp walk" of shame, an innocent man or woman can be maimed in every sense of the word. While DSK may or may not be a egotistical womanizer who cheated on his wife, because of this "perp walk" and indictment, he may forever wrongfully be labeled as some sex offender or "rapist."

Having stated the above, it is easy to play Monday Morning Quarterback. While guilt and innocence are determined by a jury of our peers, we want prosecutors to make hard decisions. Not every case is "easy" with evidence and answers at their fingertips. Prosecutors have the functional equivalent of six days (to the minute) from an arrest to vote an indictment against a defendant who is in custody. There is immense pressure to gather, assess and present that evidence. For example, if an accused is arrested on a Tuesday at 9:00 am, the practical reality is that the Grand Jury must vote an indictment by that Friday at 5:00 pm (There would be no Grand Jury ready to vote an indictment at 9:00 am six days later on Monday morning). If the prosecution fails to do so, a violent criminal or sexual predator could be out on the street even if he or she could not post the bail. If there is no indictment the accused is released. The public outcry, in many cases correctly, would be deafening.

In terms of the DSK case, if the Grand Jury had not voted an indictment, Manhattan prosecutors risked DSK fleeing back to France where he would never return to face the allegations. In their eyes, a sexual predator would avoid responsibility for his acts. Could the Manhattan District Attorney's Office have "forced" DSK's attorneys to waive this speedy indictment right by withholding any potential offer? After all, in Queens, District Attorney Brown routinely demands all defendants - big or small - do this or his office refuses to make any offer (those threats are worthy for another day's blog entry). Frankly, this tactic likely would have failed if it was ever addressed since DSK did not appear to personify a defendant looking to take a plea. Even assuming prosecutors could not force DSK to waive this time, were the parties agreeable to a bail package or was time taken to discuss the possibility of such in order to secure DSK in the United States? In short, outside of an indictment, was there a better method for DA Vance's team to vet this case while keeping DSK in the United States? As much as I would have loved to have been a fly on the wall for those conversations, I was not, and, like all of you, can merely speculate.

While neither the defense nor the prosecution can jump back in time, mistakes, if they were in fact made, can be rectified within reason. Even Robert Morgenthau, an unparalleled attorney who was arguably the most ethical and skilled chief prosecutor in the history of New York State, made mistakes. Just look at his actions in the Central Park Jogger case years later. One cannot expect the prosecution to turn over every stone in a matter of days or predict how a witness or complainant may behave in the future, but it is incumbent upon them to ensure the integrity of the process. There should be no doubt that prosecutors want to do the "right thing," but this experience will undoubtedly display how prosecutors have the power to wear the "white hat," while also serving as judge, jury and executioner.

At bottom, I do not know if DSK is innocent or, alternatively, not guilty (they are not one in the same). What seems to be evolving, however, is that legally the case is weakening. Will prosecutors ultimately dismiss the case against him as it is being reported this morning? It seems reasonable, but again I certainly do not know. What is for sure, however, is the upcoming fireworks - lawsuits, political commentary and media soundbites - will be one heck of a spectacle.

Crotty Saland PC, a New York criminal defense firm representing the accused through the New York city region, was founded by two former Manhattan prosecutors. Criminal statutes, legal decisions and commentary on cases in the news can be found on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog) as well as the Crotty Saland PC website.

Related Blog Entries:

Potential Charges Against Dominque Strauss Kahn

Comparing the DSK Ahmoud Abdel-Salam Omar "Sex" Cases

While not as commonly seen by DWI lawyers in the New York City area, Vehicle and Traffic Law 1192(4), Driving While Ability Impaired Drugs, is no less serious than an arrest for any other DWI or DUI crime. Having said that, those attorneys not experienced in New York's drunk driving and drinking and driving laws can further the misinformation about this offense. The following blog entry will address some of the issues and elements of this crime. As always, please remember that this blog entry is no substitute with an in depth consultation with your own New York criminal lawyer.

The Elements of VTL 1192(4) - Driving While Ability Impaired Drugs

While not a legal decision from New York's highest court, People v. Kahn, 160 Misc.2d 594 (Dist.Ct., Nassau Cty. 1994), gives a good outline of what prosecutors in New York must prove at trial against those accused of this DWAI based on drugs. There, the court set forth four elements. First, prosecutors must prove beyond a reasonable doubt (this is always the legal standard at a criminal trial) that the accused ingested a drug or drugs. Second, the drug alleged to have been ingested must be one of those substances set forth in Public Health Law 3306. Assuming both of these two elements are met, the prosecution must obviously prove that the accused then operated a motor vehicle. As noted in earlier entries and on the Crotty Saland PC website, this operation need not be actual driving with the car in motion. Finally, it must also be established that the accused's ability to operate the motor vehicle was impaired by his or her use the drug. If these elements are all found and proven beyond a reasonable doubt, then the accused is guilty of VTL 1192(4).

Can Any Drug be the Basis for Violating VTL 1192(4) - Driving While Ability Impaired Drugs

The short answer to this question is "no." That is, the ingestion or consumption of only certain drugs can be the basis of a DWAI crime as it relates to drugs. Despite this, the list is fairly exhaustive and is found under New York Public Health Law 3306. There, the New York State legislature set forth numerous categories and specific drugs too long to list in this entry. Generally, however, these drugs include hallucinogens, stimulants, opiates, narcotics and other controlled substances. The most common of these drugs are cocaine, heroin and marijuana (marihuana). It is interesting to note that "personal use" possession of almost all of these drugs, excluding marijuana, is a violation of New York Penal Law 220.03. Possession of marijuana is violation of New York Penal Law 221.10 or 221.05. This is relevant because NY PL 220.03 is an misdemeanor crime similar to DWI while NY PL 221.10 is a lesser misdemeanor and 221.05 is not a crime at all. Should you actually possess any of these substances at the time of your arrest, keep in mind that not only can you face equally serious crimes, but the case against you will likely be stronger.

Other Issues Involving VTL 1192(4) - Driving While Ability Impaired Drugs

With extensive case law addressing the statutes of New York's Vehicle and Traffic Law, there are countless issues that routinely appear in DWI prosecutions. One issue that those accused of any DWI crime should keep in mind is that "impairment" and "intoxication" are not the same thing. While intoxication may require more proof at trial, ones's impaired condition is established when the prosecution proves beyond a reasonable doubt that the accused was impaired to any extent - even if slight. In impairment cases, the burden on the prosecution is much less although all elements must still be proven beyond a reasonable doubt.

For a wealth of information on New York DWI crimes as well as those relating specifically to VTL 1192(4), review Crotty Saland PC's website. There you will find detailed analysis as well as links to numerous DWI blog entries on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Founded by two former Manhattan prosecutors, the New York DWI attorneys and criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.