New York Criminal Lawyer Blog

A critical element of numerous fraud crimes in New York is one's "intent to defraud." This specific language is often in the criminal statute itself and is an essential part of numerous crimes prosecutors must prove beyond a reasonable doubt including the crimes of Forgery (New York Penal Law sections 170.05 through 170.15), Criminal Possession of a Forged Instrument (New York Penal Law sections 170.20 through 170.30) and Falsifying Business Records (New York Penal Law sections 175.05 through 170.10). More times than not, "intent to defraud" is associated with some form of theft or stealing. While larceny is often the criminal act or motivation behind the "intent to defraud," the law is much more broad. In fact, "intent to defraud" is not defined in the New York Penal Law. Instead, it is defined through case law.

According to Black's Law Dictionary (not the New York Penal Law), "intent to defraud" means an "an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power..." The Court of Appeals, New York's highest level court, has made it overwhelming clear that "intent to defraud" does not require an intent to steal, but can be formulated "for the purpose of leading another into error or disadvantage." People v. Briggins 50 N.Y.2d 302, 309 (1980) (concurring opinion)(Jones, J.). Taking this even further, other legal decisions have fortified that "intent to defraud" need not be tied to an underlying Grand Larceny (Article 155 of the New York Penal Law) type scheme. In fact, in People v. Kase 53 N.Y.2d 989 (1981), "intent to defraud" was found where a defendant filed a false statement with a public agency. In that case, there was no desire or attempt to steal or obtain any amount of wealth. Instead, the defendant sought to interfere and disrupt the State's ability to carry out the law.

Prior to serving my clients as a New York criminal defense attorney, I served as a prosecutor under Robert Morgenthau in the Manhattan District Attorney's Office. As a prosecutor, I first dealt with the issue of "intent to defraud" after a year long investigation where hundreds of students had multiple individual take their GRE, GMAT, TOEFL and other examinations on their behalf so they could gain admission to graduate schools throughout New York, the United States and Canada. Charged with crimes including Identity Theft (New York Penal Law sections 190.78 through 190.80), Forgery and Criminal Possession of a Forged Instrument, one criminal defense attorney argued in his motion to dismiss the indictment that there was no "intent to defraud" because there was no tangible property of any kind that the "victim" universities were being defrauded of. Citing the cases mentioned above along with others, the court held that although there was no financial or property gain, the defendants still exhibited an "intent to defraud."

The jury is still out on what "intent to defraud" encompasses, but it is clear that it is not limited to financial and property gain.

For extensive information on the crimes of Criminal Possession of a Forged Instrument, Grand Larceny, Identity Theft and other New York Fraud Crimes (including Forgery and Falsifying Business Records), please follow the highlighted links. Further information on other crimes, judicial decisions and interesting cases in the news, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

A New York criminal defense firm representing clients throughout New York City and the region, Crotty Saland PC is conveniently located in lower Manhattan by the State and Federal Courts.

In an earlier entry relating to Extortion, a subset of Grand Larceny, I identified and differentiated the difference between the Grand Larceny Extortion statutes found in New York Penal Law sections 155.05(2)(e) and 155.40(2). This entry will deal with the criminal defense to the crime of Extortion in NY that is established by statute. Whether this affirmative defense is relevant or applicable to the Grand Larceny and Extortion allegation in your particular case, that is something to identify and asses with your New York criminal defense attorney and Extortion lawyer.

Pursuant to New York Penal Law section 155.15(2):

In any prosecution for larceny by Extortion that is perpetrated by instilling fear in the target of the Extortion that the target or another person will be charged with a criminal offense, it is an affirmative defense that the extorter reasonably believed the alleged charge was accurate. Beyond this belief that the alleged criminal conduct of the extortee, the single purpose of the extorter must solely be to compel the extortee to take "reasonable action to make good the wrong which was the subject of such threatened charge."

Dissecting this defense, it is critical that an extorter truly and genuinely believe that the crime committed by the extortee be true. Obviously, this will be an issue of fact. Additionally, even if the belief is true and even if the extortee actually committed a crime, the only purpose permitted by this defense for the actions of the extorter is to rectify and fix the "wrong" that the extortee allegedly perpetrated. In other words, the extorter cannot utilize the extortee's criminal act to gain financially in an unrelated matter.

An additional defense to an accusation of Extortion is not found in a statute but is one that the watchful eye of an experienced New York criminal lawyer or Extortion attorney. In the voluminous case law that has evolved around the crime of Grand Larceny by Extortion in New York, the courts have made it overwhelmingly clear that certain terms and words must be set forth in the indictment charging this crime. Unlike common law Grand Larceny where it is sufficient to merely state a Grand Larceny was perpetrated, the prosecution must set forth in an indictment for Grand Larceny by Extortion that the Grand Larceny was in fact not merely a Grand Larceny, but one committed through Extortion. If the prosecution fails to do so, then the indictment should be dismissed.

As a hypothetical, if you stole $5,000 from a woman by taking the money from her account without her permission, the prosecution would not have to set forth with any additional specificity that the crime was anything other than "regular" Grand Larceny in the Third Degree. However, if you stole $5,000 from that same woman by committing the crime of Extortion, the indictment language would have to plead the means by which the theft took place, i.e., Extortion. Although this may seem minor, if the prosecution overlooks this fact your criminal defense attorney should be able to argue that the indictment is not correct or proper. If the indictment is not pleaded properly within its "four corners," you may be looking at a dismissal. Whether the prosecution can or will re-present to the Grand Jury, you certainly will have at least won one significant battle in your criminal case and re-asssess the next phase of your defense.

For detailed analysis of New York Grand Larceny statutes and the subset of Extortion, follow the highlighted link. A wealth of information is also available on the NewYorkCriminalLawyerBlog.Com. For further information on other larceny and theft crimes in New York, Crotty Saland PC will be publishing the NewYorkTheftAndLarcenyLawyersBlog.Com as well as the sister website, NewYorkTheftAndLarcenyLawyers.Com during the month of October, 2011.

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

In the end, the Dominique Strauss Kahn case ended where it all began…the gutter. Detectives with the New York City Police Department arrested the former IMF leader and paraded him before the media. Manhattan District Attorney Cyrus Vance, Jr. obtained an indictment only to dismiss it months later. The press published their "gotch-ya'" photographs while tarring and feathering the accused Frenchman. A sixty-two year old French presidential candidate was exposed as an apparent womanizer possessing an overactive libido and a lifestyle that skirted criminality. A sympathetic immigrant woman who cried rape, but was caught in a web of half-truths and inconsistencies, may be more of a perjurer and victimizer than an actual victim. And lastly, an attorney, who stood to personify the protector of the voiceless victims of sex crime while simultaneously pocketing millions in a civil suit, looked at best ill prepared to manage the intensity of what may be the most sensational criminal case of the decade. At worst, this same attorney may have been a co-conspirator in his clients now debunked claims.

It is likely that one could ask fifty criminal lawyers their respective opinions about whether or not prosecutors rushed into the Grand Jury. It is equally likely that you would, or at least could, get fifty differing and reasonable responses. When asked by various news reporting agencies, I have always maintained that the case should not have been presented to the Grand Jury. Instead, prosecutors should have sought a bail package to avoid having their legal hand forced (it is interesting to note in the extensive Dismissal on Recommendation (DOR) filed by the Manhattan District Attorney's Office, a detailed analysis of the complainant's failings is given, but no reference whatsoever to the bail discussions). A bail package, similar to the one agreed to post-indictment, would have absolutely circumvented this P.T. Barnum affair that will forever scar a man with a wrongful indictment. Moreover, at no point in the DOR, or to my knowledge in any statement, did prosecutors assert that they believed the witness or the evidence in the case beyond a reasonable doubt prior to stepping into the Grand Jury. Clearly this is now the case, but the omission from the time of the indictment is concerning. Prosecutors should not be presenting evidence before that body in any case unless they subjectively and objectively believe the evidence will reach this level of certainty.

Whether or not Cyrus Vance correctly or incorrectly altered the potential course of world history by obtaining an indictment of a presidential candidate only to later dismiss it, will likely be debated for years. However, nobody can blame the Manhattan District Attorney and his staff for the shortcomings of the DSK case and its ultimate dismissal. In fact, over the course of the case, prosecutors acted ethically and upheld their duty as required by law. If blame is to be placed on anyone, and I believe that it should be, Nafissatou Diallo and her attorney, Kenneth Thompson, need only look in a mirror to see why the case was tossed back into the gutter. Ms. Diallo, according to prosecutors, did not just fabricate one story, she did it so many times even when given the opportunity to come clean. Her inconsistencies and misrepresentations of the case apparently grew in rhythm with the media frenzy. These falsifications and distortions – multiple mobile numbers where Diallo claimed only one, a recorded conversation with an incarcerated fiance regarding capitalizing on DSK’s wealth, an account with $60,000, fabrications made to immigration authorities and, quite significantly, about past rapes – would likely be enough for prosecutors to drop any “regular” case. Truly, as allegedly and correctly noted by ADA Joan Illuzzi-Orbon, “[n]o one with half a brain would ever put [Ms. Diallo] on the stand."

Equally concerning, in lieu of shielding her from further damage and concentrating on explaining away the problems with his client and her multiple stories (assuming he believed she was truly being honest), Mr. Thompson did quite the opposite. Although Mr. Thompson blames the prosecution for sabotaging his client’s credibility, he, not the prosecution, arranged for an interview on prime time television. This mistake to generate more press further created a pirate's booty of impeachment and cross examination materials. While slightly more advance than Criminal law 101, basic lawyering dictates that you insulate, not expose, your client and her case to further degradation. Protesting to the media and filing a request for a special prosecutor further doomed his client’s case. Instead of merely dismissing the indictment with a general DOR, DA Vance filed an extensive DOR. This twenty five page document can and will easily substitute for a defense team’s road map on how to tear Ms. Diallo apart at a civil deposition or trial. Whether Mr. Thompson had dollar signs in his eyes when the case commenced, I can only speculate. But if he did, those dollar signs are now ghoulish whammies.

There are many criminal attorneys and prosecutors who have “been around the block” equal to or more times than I have. I certainly have my opinions, but cannot profess to have all of the answers. DA Vance may have prematurely presented a case to a Grand Jury that he would take back if he could. Fortunately, however, DA Vance cannot be questioned as to his post-indictment ethical and legal steps. DA Vance, faced with a difficult decision and stepped back to dismiss an indictment, ensured that legal justice was ultimately done.

Out of fear of opining too much, there are two last issues or comments that need addressing in a general context. First, claims by individuals, regardless of how horrific they are, are merely claims. We, as the general public, should not rush to condemn until we know the facts. This is true even if the accused is someone we would never befriend or find personally appalling. Second, and of greater importance, prosecutors must fully recognize the power they wield and the complete destruction and decimation they can cause if they incorrectly exercise this power. While DSK was exonerated, few of us have tens of thousands or millions of dollars to fight back against the storm of law enforcement.

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 the accused throughout the New York City region.

On a daily basis, tourists and everyday denizens of New York City are either arrested or given Desk Appearance Tickets for violating New York Penal Law 165.15, Theft of Services. An "A" misdemeanor punishable by up to one year in jail, Theft of Services arrests and Desk Appearance Tickets routinely involve a passenger in a cab or a diner at a restaurant who fails to pay his or her tab or bill. While any arrest is concerning, and often requires the assistance of a criminal attorney to navigate the process, what exacerbates a Theft of Service arrest is that it can have a significant impact on professional licenses, certifications and immigration.

Putting aside the potential consequences of a Theft of Services arrest in New York City, there is a small (very small) body of cases that question whether or not it is a violation of New York Penal Law 165.15(2) if you drink at a bar and fail to pay your bill. In pertinent part, subsection two of NY PL 165.15 states that you are guilty of a crime if you intend to avoid payment for restaurant services and actually do not pay for those services. Well, according to People v Sei Young Choi, 170 Misc.2d 598 (Queens Cty Crim. Ct 1996), this may not always be the case in the alcohol and pub/tavern context.

In Choi, a defendant consumed over $200 worth of alcoholic beverages at a New York City bar and refused to pay for those beverages. In fact, the complaint stated that the defendant did not have permission or authority to drink the spirits without paying for them. In dismissing the case as facially insufficient, the court did not rule on the factual issues of whether or not the defendant did drink or did not pay. Instead, the court recognized that nothing in the complaint (information) established that the bar was a restaurant or that that the consumption of alcohol was a restaurant service. In other word, the court took a strict reading of the statute and determined that "[i]t appear[ed] from the defendant's arguments and a reading of the statute that the alcoholic beverages are not restaurant services in that a bar is not necessarily a restaurant." See also People v Klas, 79 Misc 452 (Onondaga Cty Ct 1913). ("[t]he [old] statute, which it is claimed the defendant violated, only protects a hotel keeper for lodging, food and accommodations furnished, and in so far as the bar bill is for liquors no recovery can be had therefore.")

Despite the decision from 1913 that addressed the predecessor to the Theft of Service Statute as well as the Choi case, the reading of these decisions from the perspective of an experienced New York criminal lawyer reveals something different. That is, Choi does not say that alcohol and bars are never covered under New York Penal Law 165.15(2) provisions addressing restaurant services. Instead, Choi makes it clear the prosecution must establish in an information or complaint that the bar is part of (or is) a restaurant and the serving of alcohol is one of those services. To that end, a review of People v. McDonald, 179 Misc.2d 479 (New York Cty Crim. Ct. 1999) exemplifies the type and degree of corroboration necessary. There a sufficient nexus was established linking a hotel bar and services of alcohol with a restaurant and associated restaurant services.

Whether the issues and cases briefly mentioned above, ie, whether or not a complaint against you establishes more than a "drink and dash" from a bar, is something that you and your own counsel should discuss and analyze.

Extensive information on New York Theft of Services (as well as collateral consequences), Desk Appearance Tickets and other crimes can be found through the highlighted links above. Additional resources beyond the Crotty Saland PC website include the New York Criminal Lawyer Blog (analysis of legal decisions, statues and cases in the news) as well as NYDeskAppearanceTicket.Com.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent those accused of crimes throughout New York City and beyond.

On its face, the Grand Larceny statutes in New York are relatively straightforward. That is, a simple review of various sections of the New York Penal Law may not require the assistance of a New York theft attorney or grand larceny lawyer. Although the statutes may seem clear, what becomes confusing are the various legal decisions that may impact an arrest, indictment or conviction for crimes including New York Penal Law section 155.30 or 155.35. It is theses decisions that may make a non-defense a viable one or a seemingly easy defense one that will not assist you in your case.

In a relatively unique fact pattern, what if you are alleged to have stolen from a bank by depositing bogus checks directly with a teller or empty envelopes into an ATM machine? As a result of your fraud, the bank credits your account the amount of the deposit you claim you made. Therefore, until the bank recognizes that you falsely inflated your account with these valueless deposits, you have access to money that is not truly in the account or even in existance. Knowing you have access to fraudulently obtained funds, you withdraw money from the account. In such a situation, the issue is fairly simple. Is the value of the theft, and as a result the degree or level of your crime, determined by the amount you fraudulently deposited without actual financial backing or the amount withdrawn by you in excess of your legitimate balance? Fortunately, People v. Esquilin, 37 A.D.3d 197 (1st Dept. 2007) addresses just that.

In Esquilin, the defendant was accused of making in excess $3000 worth of deposits in an ATM machine. However, instead of depositing cash or valid checks, the defendant deposited empty envelopes. When doing so, the defendant made a record that the deposits actually contained this money. As a result, he had an illegitimately inflated balance until the bank finally caught on to the scheme. Before they realized what had happened the defendant successfully withdrew nearly $2,000. The question before the court was whether or not a conviction for Grand Larceny in the Third Degree (NY PL 155.35) was proper or Grand Larceny in the Fourth Degree (NY PL 155.30). In the event the theft exceeded $3,000, then the former offense would be a proper charge while the latter offense would be correct if the theft was greater than $1,000, but $3,000 or less.

While finding the defendant certainly intended to steal money from the bank, the appellate court found that evidence for a conviction for Third Degree Grand Larceny was insufficient. Although in excess of $3,000 of was alleged to have been deposited by the defendant when he deposited blank envelopes, he was successful in only withdrawing just under $2,000. Therefore his completed offense or the actual taking was this lesser amount. Unfortunately, the defendant's attorney did not preserve this argument for appeal, but should he have done so the degree of the crime would have been the significantly less Fourth Degree offense.

Keep in mind that the above scenario is a unique one. This analysis could, and likely would, change in the event that the money improperly deposited into the account was stolen funds or from forged checks. Not only would the accused be liable for withdrawing the ill-gotten gains, he or she would also be charged with stealing from the actual account holder where the check was taken from and / or Criminal Possession of a Forged Instrument for possessing a fake check.

For extensive information on theft crimes and Grand Larceny in New York, please click through the link to the Crotty Saland PC Grand Larceny Information Page. There you will find links to the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) and a detailed analysis of the varying degrees and theories of Grand Larceny.

The New York Grand Larceny lawyers at Crotty Saland PC represent those accused of or investigated for Grand Larceny and related fraud crimes in the New York City area. Before starting the criminal defense practice, both founding attorneys served as prosecutors in the Manhattan District Attorney's Office.

After a string of high profile defeats, Manhattan District Attorney Cyrus Vance is going back to the well with the hope that a tested formula will deliver a conviction to public eyes. Like its predecessors, Testwell Laboratories and V. Reddy Kancharla, American Standard Testing and Consulting Laboratories Inc. (ATSC), along with its president Alan Fortich, was indicted by a New York Grand Jury and charged with Enterprise Corruption, Scheme to Defraud in the First Degree, Offering a False Instrument for Filing in the First Degree, and Falsifying Business Records in the First Degree. Additionally, professional engineers Michael Rabkin, Shamim Akond, Richard Kasparian and Bruce Pumo were also charged in the extensive indictment. A "B" felony, Enterprise Corruption is punishable by up to 25 years in state prison for a first time offender while each of the other crimes are "E" felonies punishable by up to four years in prison.

Replicating the factual allegations and ultimate conviction against the Testwell group, Manhattan prosecutors claim that ATSC fudged, altered and manipulated lab results concerning concrete used in numerous public and private jobs. In fact, the indictment alleges that the defendants “regularly skipped vital safety tests and created false reports to create the impression that the tests were performed." Of great concern for prosecutors is that the buildings where the concrete was poured include such iconic and critical New York venues and structures such as Yankee Stadium, Memorial Sloan-Kettering Cancer Center, the Javits Center, the Port Authority Bus Terminal, the Intrepid Sea, Air & Space Museum and even sections of the Second Avenue Subway. Additionally, ATSC, Fortich and others are alleged to have filed false documents not only associated with testing procedures, but also with government agencies as to eligibility for certain programs. According to DA Vance, Fortich defrauded the "MTA through the Disadvantaged Business Enterprise (“DBE”) program...designed to help businesses owned by women or a member of a designated minority group" by falsifying the paperwork that was the foundation of eligibility.

Whether ATSC and the individual defendants are convicted or end up in state prison like the construction defendants before them, time will tell. Regardless, it is clear that the construction industry, and the alleged fraud that surrounds it, has drawn the ire of Manhattan's top prosecutor.

To learn more about the crimes of Enterprise Corruption, Falsifying Business Records and Offering a False Instrument for Filing, please follow the highlighted links. Moreover, a review of the New York Criminal Lawyer BlogTe and search for these crimes will reveal legal analysis of these statutes as well as court decisions and other cases in the news.

Founded by two former Manhattan prosecutors who served under Robert Morgenthau, Crotty Saland PC is a New York criminal defense firm representing those accused of crimes throughout the New York City region.

There are few crimes in New York that are more serious than the crime of Burglary. Whether the allegation is that you perpetrated Burglary in the Third, Second or First Degree, there is potential for significant state prison. In fact, Burglary in the Second and First Degree have a mandatory minimum term of incarceration for first time offenders of three and one half and five years respectively. Make no mistake. Whomever your criminal lawyer may be, he or she must be both a skilled advocate and an attorney versed in the laws and procedures of New York criminal practice to successfully combat a Burglary arrest.

Briefly, you are guilty of Burglary when you trespass into a building and have the intent to commit a crime. Although any crime is included in this intent, prosecutors need not prove a specific intent to perpetrate a specific crime. Moreover, the degrees of Burglary are enhanced to violent felonies if, for example, the structure entered is a dwelling, you possessed a weapon or someone was injured while you committed the offense.

In a recent case handled by the New York criminal lawyers at Crotty Saland PC, our experience and guidance paid off tremendously for a client charged with Burglary in the Second Degree pursuant to New York Penal Law 140.25. It was alleged that our client burglarized a Brooklyn store attached to apartment buildings. Not only was our client facing a mandatory minimum term of jail, the evidence appeared "solid" against him at first glance. In fact, two separate witnesses identified our client in a lineup procedure at a nearby police precinct at the time of his arrest. These "hits" by the two witnesses put our client at the scene of the crime and allowed prosecutors to hang their proverbial "hats" on this evidence.

Not deterred by this evidence, Crotty Saland PC argued that both identifications were actually misidentifications. That is, we argued that the wrong person was identified. Upon investigating the case, it was not merely our assertion that convinced the prosecution, but concrete evidence. After speaking with at least one person who could place our client at another location near the time of the alleged crime, we were able to gain further evidence to support our contention. Approximately 45 minutes after the alleged Burglary in the Second Degree, video surveillance caught our client in another office building in Manhattan where he worked. Although the argument and analysis was much further in depth than mentioned here, we argued that it was physically impossible for anyone to perpetrate a crime this far away and to be back at work within 45 minutes. Again, the two witnesses were mistaken and identified the wrong person.

A short synopsis of one case, and not a guarantee of a future result, the example above illustrates that what appears to be powerful evidence in the hands of the prosecution may in fact be quite the opposite. Because anyone can be wrongly accused, diligence, perseverance and timely action are all critical in each and every case.

A significant amount of information on the crime of Burglary in New York can be located through the links above. Additional information on violent crimes, legal case decisions, statues and newsworthy cases can be found on Crotty Saland's NewYorkCriminalLawyerBlog.Com.

Established by two former Manhattan prosecutors, Crotty Saland PC represents the accused in all criminal arrests, investigations and trials throughout the New York City area.