New York Criminal Lawyer Blog

The pressure and drive to exceed in school never ends. Instead of studying a little longer and a little harder, however, the answer for some students is figuring out the best shortcut. According to the Kathleen Rice and the Nassau County District Attorney's Office, Sam Eshaghoff, a former University of Michigan and current Emory student, was arrested after sitting for the SAT on behalf of at least a half a dozen high school students in exchange for thousands of dollars. Not a full fledged criminal enterprise, but more than an amateur operation, its further alleged that Eshaghoff sat for the SAT on Long Island at schools where administrators would not know the real students. Further, it is claimed that Eshagoff was armed with fake and phony New York State drivers licenses.

As interesting and as appealing as this case is, I have witnessed these types of scams on a much larger and even an international scale. As a Manhattan prosecutor, I led the investigation and prosecution of approximately two dozen individuals for either fraudulently taking or paying another person to take the GRE, GMAT and TOEFL. Education Testing Service (ETS) administers these examinations as well as the SAT. The Manhattan criminal enterprise, which extended well beyond the borders of New York and the United States, was extensive. Using faking passports at examinations centers and providing fraudulent diplomas, recommendation letters, transcripts, bank statements and other materials to universities and colleges throughout the United States, hundreds of students began their studies not on merit, but on fraud. In fact, the investigation revealed these students enrolled at NYU Stern School of Business, Columbia University Teachers College, Baruch College, UCLA, University of Michigan, Tulane Medical School, Canada's McGill University and many other prestigious institutions.

Although DA Rice has already announced in her press release that she only charged and arrested Eshaghoff, a Great Neck, Long Island High School graduate, for Scheme to Defraud in the First Degree, Falsifying Business Records in the Second Degree and Criminal Impersonation in the Second Degree, much more serious charges could have been brought if prosecutors did a little more homework. Other than Scheme to Defraud in the First Degree, an "E" felony punishable by up to four years in prison, the other offenses charged by Ms. Rice are misdemeanors. If prosecutors had subpoenaed ETS and obtained the correct documents and properly applied the law to the alleged conduct, other charges would be viable including higher "D" felonies. Moreover, the students who paid for the services could be charged as accomplices for such crimes as possessing a forged drivers license and falsification of records at ETS used prior to and as part of the SAT. More specifically, all parties could face Criminal Possession of a Forged Instrument in the Second Degree (false drivers license) and Falsifying Business Records in the First Degree (causing a false entry to be made while furthering a Scheme to Defraud, Criminal Possession of a Forged Instrument or even Identity Theft).

In the Manhattan District Attorney's Office prosecution of the professional test taking ring, we went as far as charging Identity Theft in the First Degree although no actual "theft" occurred. Briefly, the theory of that charge was that the test takers utilized personal identification of the students with the intent to defraud ETS and various colleges or make a fraudulent passport (in the current case against Eshaghoff the identification is a drivers license). Although there was no theft because students voluntarily gave their information, the Identity Theft statute does not contain the "permission and authority language." This theory of Identity Theft where one permits the use of his or her personal information by another to defraud was cutting edge. To combat the charges, some of the criminal defense lawyers argued that there was no "intent to defraud" because good will, a potential position at a school, or the integrity of the testing process, unlike cash or property, was not the type of fraud intended by the statute. Unfortunately for those defendants, that defense failed.

Make no mistake. There are hard working, honest, diligent students who strive to better themselves and their education. Most of them do not have the means to pay others to do their work. Even if prosecutors can "throw the book" at these teens, what happens to their futures should be more important than a press release and a "tough on crime" stance. If true, all of their actions were unquestionably wrong. A desire to get ahead in life cannot be substituted with the intent to scam and cheat. Hopefully, however, prosecutors give these students the opportunity to learn from their mistakes, pay back society, and show that they have the ability to become valuable members of their communities.

For a wealth of information about Identity Theft, Criminal Possession of a Forged Instrument, Falsifying Business Records and Criminal Impersonation please follow the respective links. Additionally, the NewYorkCriminalLawyerBlog.Com has extensive information on these and other crimes as well as analysis of legal decisions, statutes and cases in the news. Coming in the end of October, Crotty Saland PC's new website and blog - NewYorkTheftAndLarcenyLawyers.Com and NewYorkTheftAndLarcenyLawyersBog.Com - will be another resource for material on New York theft and larceny crimes.

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

In common parlance, if someone stole from you, you would likely say that you had been robbed. However, under New York law, "Robbery" is more than just taking property from another (generally defined as larceny); Robbery is forcible stealing. To be convicted of Robbery (New York Penal Law Sections 160.05, 160.10, and 160.15) throughout the New York City area, the prosecution must prove that the defendant used physical force, or threatened the use of immediate force. This is true whether you are arrested for Robbery on the glitzy streets of Manhattan's Upper East Side or the gritty streets of Brooklyn. In other words, if someone leaves their pocketbook on a coat hanger at a bar and you snatch it up, you have not committed robbery. On the contrary, if you punch that same person in the face at a bar and grab the pocketbook, then you have committed Robbery. Unlike larceny, all Robbery charges (Robbery in the First, Second, or Third Degree) are felony charges (classes "B", "C", and "D" respectively) with terms of prison ranging up to 25 years.

Of course, in the examples above determining whether force was used is as simple as determining whether the defendant's fist struck the victim's face. But what kind of evidence is sufficient to establish the element of "immediate threat of force" in a New York criminal court. This is an important distinction because an experienced New York criminal lawyer may be able to reduce a robbery charge to a lesser petit larceny charge, if they can show that, in fact, no threat of harm was used. This is precisely what the criminal attorney in People v. Spencer, 255 A.D.2d 167 tried to do. Spencer was charged with Robbery in the Second Degree (NY Penal Law section 160.10), but his attorney claimed that no threat of force was used and therefore Petit Larceny (NY Penal Law Section 155.25) was the only legally viable charge. The court found that the evidence showed that the defendant intimidated the victim standing "chest to chest" with the victim, and backing him up against a subway pole. The court found that the defendant's actions amounted to an "immediate threat of physical force." The Spencer case demonstrates that an immediate threat of force will be inferred from threatening behavior. A defendant does not necessarily have to make an actual verbal threat or perform an overt threatening action (like a threatening fist pump). Instead, the court will analyze the circumstances as a whole and determine, as it did in Spencer, whether a normal person would fear for immediate physical danger from the actions taken by the defendant.

Moreover, if while fleeing the scene of the crime a person threatens the use of immediate physical force (see NY Penal Law Section 160.00, which defines Robbery in general) to escape, then a jury may conclude that a robbery has been committed. Thus, if a person steals property without any threat of force (larceny), but then uses a threat of immediate physical force to retain control of the property while escaping, he will still be guilty of Robbery. People v. Bynum, 2009 NY Slip Op 9318, is a great illustration of this standard. In Bynum the defendant was pocketing watches in a drug store- an offense that would likely amount only to a misdemeanor Petit Larceny (drug store watches were not in total more than $1000). Nonetheless, a security guard noticed the defendant and ordered him to stop and empty his pockets. The defendant refused and attempted/threatened to strike the security guard with a fist. Feeling threatened the guard let the defendant escape. The appellate court upheld the jury's conclusion that by using the threat of force in order to retain control of the watches, the defendant had thus committed a Robbery in the Third Degree. Because the defendant was in possession of the stolen property, his threats toward the security guard legally equated to "forcible stealing."

The difference between being convicted of Robbery in the Third Degree and Petit Larceny is significant. In fact, it could mean the difference between no jail at all and seven years in state prison. As this blog has established "forcible stealing," the essential element of Robbery, does not simply mean that one commits violence while taking the property of another. The threat of immediate physical force constitutes Robbery under NY Penal Law 160.00, and can be established without any overt act, or statement. The threat of force to retain stolen property while fleeing the scene of the crime can also lead to a Robbery conviction.

For further information on violent offenses and New York Robbery laws, follow the highlighted links. In addition to this resource, review the NewYorkCriminalLawyerBlog.Com for analysis of other legal decisions, statutes and cases in the news. Starting sometime in October 2011, the NewYorkTheftAndLarcenyLawyers.Com website and associated blog at NewYorkTheftAndLarcenyLawyersBlog.Com will be "live" and become a tremendous resource for New York theft crimes.

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.

The New York Penal Law provides for in excess of ten different subsections of felony Assault in the Second Degree pursuant to section 120.05. While the most common felony Assault crimes handled by New York criminal lawyers are those involving the intent and actual causing of serous physical injury or the use of a dangerous instrument to cause a physical injury (NY PL 120.05(1) and NY PL 120.05(2) respectively), there are many more equally serious crimes set forth in this section. Unfortunately for those attorneys who are not regular practitioners of criminal law or focused in the criminal courts of New York, these offenses may "unexpectedly" pop up in a case before he or she is prepared to represent the client in an Assault arrest or indictment.

New York Penal Law 120.05(6) is one of these less common, but equally serious, subsections of Assault in the Second Degree. According to NY PL 120.05(6), you are guilty of Assault in the Second Degree if either during the course of committing, furtherance of or immediate flight from a felony, you cause physical injury to another person. Additionally, if another participant in the felony causes physical injury to another person, then you are also guilty of Assault in the Second Degree.

There are a few relevant and important factors that an untrained legal eye might miss. First, the statute does not indicate if you cause physical injury to another person your actions need to be knowing, intentional or even reckless. Second, although serious physical injury is generally the standard that is used to differentiate felony Assault from misdemeanor Assault in the Third Degree, because this subsection applies to incidents that occur during the commission of a felony, the injury standard is no different than that of a misdemeanor. Generally, misdemeanor Assault only requires substantial pain and nothing too significant that would be life altering. For example, a deep, yet superficial, laceration or a "shiner" to your eye would qualify as physical injury. Serious physical injury, on the other hand, ratchets the degree of pain and suffering up a few notches to injuries that may result in disfigurement, impairment of a bodily function or even death. this could be something as serious as loss of eyesight or a laceration that leaves a large scar on your face. Third, your liability for this subsection of Assault in the Second Degree extends to fellow participants in the crime. In other words, if your "partner in crime" flees a felony Forgery crime at Manhattan Duane Reade or a Burglary from a home in White Plains and while in the process of that flight he knocks a pedestrian down and fractures that man's ribs, then you would also be guilty of this crime. An easy way to look at this dynamic is that it is a lesser legal standard than accomplice liability. Having said that, prosecutors would still have to establish you and the other accused were acting in concert for the underlying felony. Lastly, the types of felonies that you must be fleeing from or involved in are all of the felonies listed in the New York Penal Law except any felony crime listed under Article 130. Article 130 constitutes the sex crime offenses such as Rape.

Obviously, the above synopsis is vague and generalized. In fact, there are many cases that have been heard by courts over the years that further establish and define NY PL 120.05(6). However, the picture should be relatively clear. If your conduct is similar to that described above, then you would face a "D" felony punishable by up to seven years in state prison. unfortunately for those accused of this crime, even if the "real" underlying felony you were involved in or your partner was fleeing from was a lesser "E" felony offense.

For legal analysis and information on New York Assault crimes, follow the highlighted link. There you will also find links to the Assault section of the NewYorkCriminalLawyerBlog.Com that contains significant material ranging from reviews of legal decisions, cases in the news and criminal statutes.

Established by two New York criminal lawyers who each served in the Manhattan District Attorney's Office, Crotty Saland PC represents those accused of Assault and other violent crimes in the New York City area.

The New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC are pleased to announce that one of our clients pleaded guilty to a violation of Disorderly Conduct after being charged with two felonies of Grand Larceny in the the Third Degree (NY PL 155.35) and Identity Theft in the First Degree (NY PL 190.80) as well as three misdemeanor counts of Forgery in the Third Degree (NY PL 170.05). If convicted, not only would our client have a felony record, but he would have faced up to two and one third to seven years in prison.

It was alleged that our client had perpetrated "credit card fraud" after he randomly received a pre-approved credit card application in his mailbox addressed to another person. Upon completing the application, our client allegedly opened a secondary credit card account under his name. Upon doing so, prosecutors claimed that our client purchased a Honda Accord and filled out a loan application for that vehicle in the amount of $25,000. Using the credit card he allegedly obtained fraudulently, our client charged $7,000 as payment to Honda. As a result of these alleged actions and upon recognition by the creditor bank that there were issues with the use of the credit card, detectives from the New York City Police Department arrested our client. Shortly thereafter, prosecutors charged our client with these felonies in Manhattan.

The charges our client faced stemmed directly from his alleged conduct. Although additional charges could have been brought, the prosecution's apparent theories were that our client committed Identity Theft when he signed for and opened an account with another individual's name and account information. The Grand Larceny charge was a result of the use of a credit card and the "theft" of the vehicle. In total, the value of the losses were in excess of $3,000 but not more than $50,000. Lastly, the Forgery counts were tied to his alleged actions of filling out certain paperwork including loan and credit card applications falsely with the intent to defraud.

Unfortunately for our client, the evidence against him was powerful. In fact, our client was in possession of the Honda. Fortunately, however, the New York criminal lawyers at Crotty Saland PC took the appropriate steps not to challenge the evidence head on, but to mitigate our client's conduct. In doing so, we impressed upon prosecutors that our client not only came from nominal means to graduate from a top college, but he used this arrest to get his life back on track. With ongoing proof of his graduate studies, documentation as to other issues and treatment our client was dealing with, full restitution and other steps taken by our criminal lawyers including a "Queen for a Day," our client was offered a non-criminal disposition. This non criminal violation will afford our client the opportunity to grow from a lapse in judgment and still have a productive life upon his graduation from graduate school.

While this disposition was hard fought and represents one of many successful criminal case results we have achieved for our clients throughout New York, it was also a unique one. As much as any attorney may wish that he or she can guarantee a particular result for a client because of past results, this is not the case. What is more important is that our client recognized the legal predicament he faced. Upon doing so, he and our attorneys formulated a plan to best defend him against the allegations. Our diligence and efforts certainly paid off tremendously. Obviously, all of the details of this defense are not set forth here, but our defense ultimately was the best one for our client.

For a wealth of information on the crimes of Grand Larceny, Identity Theft and Forgery, please follow the highlighted links. There you will not only find practical analysis of the criminal statutes, but associated legal decisions and commentary on cases in the news. For additional information on New York theft and larceny crimes, please visit the NewYorkTheftAndLarcenyLawyers.Com website as well as the NewYorkTheftAndLarcenyLawyersBlog.Com.

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

As both a New York criminal lawyer and as a Manhattan prosecutor, I have faced the issue of determining the legal value of property in a Grand Larceny case that was not readily apparent. While a theft of cash or certain property is easily ascertainable based on market value or the actual value of the currency, some items are not as clear. Fortunately, for prosecutors, criminal attorneys, victims and the accused, New York's theft statutes set forth a guideline to follow. More specifically, certain written instruments, not including such items as some public and corporate bonds, have a value as calculated as established in New York Penal Law 155.20(2).

Regardless of whether or not a written instrument has actually been issued or delivered, a value has to be placed on those items to determine not only the degree of the Grand Larceny charged in a New York court, but to also come up with a restitution number should "payback" be part of any disposition. Accordingly, NY PL 155.20(2) deciphers the calculations as follows:

NY PL 155.20(2)(a)

If the written instrument in question establishes a debt such as a promissory note ore a personal check, the value of that check or promissory note is the value that is due. Ordinarily, according to the statute, this amount is a combination of the face value, ie, the amount drafted or written on the check, less what has been already paid back or satisfied. An interesting question, and one which will be addressed in another blog entry, is if the stolen check is drafted in an amount that exceeds funds available, does the amount drafted still the bar for determining value? Furthermore, if there never were proper funds to back the amount indicated, is the crime a factually impossible crime to commit, and, if so, is it possible to merely attempt that crime as opposed to actually complete it? If the answer is the latter, then the crime, as an attempt, would be a full degree less than the completed offense.

NY PL 155.20(2)(b)

The value of a ticket or similar document that gives an individual the right to obtain transportation (flight, bus, train, etc.) or to obtain some form of entertainment (movie, concert, football game, etc.), is fairly straight forward. Whatever the price listed on the ticket is, that is the value for the purpose of a larceny or theft crime in New York. If that value is $1,000 or less, then the crime would be a Petit Larceny (NY PL 155.25). If the value exceeds $1,000, then the theft crime would be a degree of Grand Larceny. A more complex question is how to determine the value when it is not drafted on the ticket. In such circumstances, the price paid for the ticket or an equivalent ticket would be utilized to ascertain value.

NY PL 155.20(2)(c)

In more complicated cases involving thefts of written instruments that may impact a legal right or obligation of value, the value of that particular written instrument is established by determining first whether or not the owner of the instruments might reasonably suffer due to the loss of the instrument. If he or she would suffer a loss, the value is the economic loss he or she would reasonably expect as a result of the loss. Clearly, these cases are much more speculative in nature.

It is worth noting that even the brightest of judges, prosecutors and criminal attorneys cannot agree on value. Grand Larceny and the valuation of property is far from easy outside a straight forward Embezzlement scheme. Fortunately, the burden, however, always rests with an assistant district attorney and not the defendant. If the value cannot be specifically established or proven by any party, there is still something for prosecutors to fall back on. In cases where the value is inconclusive, NY PL 155.20(4) allows for a legal finding that the value of the property is less than $250.

For a wealth of practical and easily digestible materials on New York Grand Larceny, please follow the hyperlinks above to the Crotty Saland website's Grand Larceny location. Alternatively, the NewYorkCriminalLawyerBlog.Com as well as NewYorkTheftAndLarcenyLawyers.Com are both tremendous resources on usable information pertaining to theft and larceny statutes, crimes and legal decisions.

Founded by two former Manahttan prosecutors, the attorneys at Crotty Salan PC represent the accused throughout the New York City region.

According to the New York Post, Jason Itzler, the self described "King of All Pimps" behind New York Confidential, was arrested again after prosecutors picked up the convicted felon for Promoting Prostitution, Money Laundering and Criminal Sale of a Controlled Substance. Itzler had previously been convicted in New York County upon a plea of guilty to Money Laundering and Promoting Prostitution. Ultimately, Itzler served less than two years in state prison. Because he is a predicate felon, should prosecutors be successful the second time around, prison is mandatory for itzler. In an interesting side story at the time and currently worth noting, Itzler's counsel, Paul Bergrin, pleaded guilty to a misdemeanor. It was alleged that the attorney took over his client's business and ran the escort service after his client was incarcerated. Bergrin is currently facing trial in New Jersey Federal Court on other matters.

It is alleged that Itzler re-created an online escort service in Manhattan. At some point he also is alleged to have sold cocaine.

Because of the past convictions and current allegations, the former pimp has many difficulties ahead. Due to the nature of these cases and the use of the internet for this type of commerce, it is likely that prosecutors have been investigating Itzler for some time while also taking a more pro-active approach in obtaining evidence and strengthening their case. Couple these circumstances with Itzler's MySpace page, where he last logged in September 8, 2011, that indicates his income is north of $250,000, there is little doubt prosecutors believe they have a strong argument for significant bail.

Should Itzler be convicted of these crimes, as noted above, he must go to prison. The likely degree of Promoting Prostitution he is charged with is a "D" felony punishable by a minimum of two to four years in prison and a maximum of three and one half to seven. If he is convicted of selling cocaine, he faces two to twelve years in prison. Lastly, Money Laundering can enhance his term of incarceration even higher. Assuming (it is merely an assumption) that the offense involved in excess of $50,000 but equal to or less than $1,000,000, Itzler would face three to six years minimum and up to seven and one half to fifteen years in prison.

For a wealth of information on New York Escort and New York Prostitution crimes, follow the highlighted link. A review of the Crotty Saland website will reveal practical and legal analysis of various statutes, legal decisions and cases in the news. There you will also find links to the NewYorkCriminalLawyerBlog.Com where various areas of criminal law are broken down into relevant sections.

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 in all criminal investigations, arrests and trials throughout the New York City region.

Drunk Driving in New York - whether called DWI or DUI - is such a serious crime in New York City and throughout the State of New York that specific court rooms are set up solely to prosecute alleged drunk drivers. Many of these defendants wondered at the time of their arrest whether or not they should "blow" into a breathalyzer or intoxylizer. When I first started my career as a Manhattan prosecutor I heard this question asked and I routinely hear it asked to me today as a criminal lawyer. In fact, New York DWI lawyers and DUI attorneys constantly are bombarded with the question of whether or not a person should "blow" or refuse to take the breathalyzer when arrested for DWI. So what is the answer? Should you or should you refuse or blow when arrested for VTL 1192?

Background on New York City DWI Arrests

First, it is imperative to understand that when you are initially arrested for Driving While Intoxicated in New York, police officers often have a machine in their vehicle. The result from this breathalyzer is not admissible in a New York criminal court. Therefore, whether you blow a .16 or .06, it will not be used against you in a court proceeding. However, the reading obtained will assist in forming the basis or probable cause for your ultimate VTL 1192 or DWI arrest.

DWI Procedure at the Precinct

Once you are arrested and taken into custody, the police will (or should) read you your Refusal Warnings and then ask you to blow into an intoxilyzer. When being read these rights, the police should also be videotaping you. Like the breathalyzer, this machine will read your BAC. Now, the question likely is in your head...should you blow or not?

Negative Consequences of a DWI Refusal

New York law is very strict on refusals. If you refuse to blow, your license in New York will be revoked for a year (subject to a Refusal Hearing with the Department of Motor Vehicles). It is critically important to recognize that even if you are ultimately acquitted of the DWI, your refusal is not dismissed. Additionally, many District Attorney's Offices will not make an offer to a defendant who refuses. Therefore, if you are close to or slightly above the legal limit in a case where there would normally be a non-criminal offer, refusing could hinder your ability to get such an offer.

Benefits of a DWI Refusal

If you ultimately refuse to blow into the intoxylizer at the precinct, there are serious ramifications, but also potential benefits. Because you are being videotaped, if you appear sober in your words, mannerism and conduct, you may have a stronger defense. If you blow into the machine and get a reading of .12, for example, your conduct and mannerism will certainly be valuable, but prosecutors will have this scientific reading as a sword to use against you at your trial. If you do not provide a sample, then the evidence of your intoxication will be the video of you and the testimony of the officers without scientific evidence. It does not take a criminal defense attorney to explain that the lack of scientific evidence, coupled with a "good" video of you at the precinct, will give you a leg up on a trial should you decide to pursue that route. Here, of course, the caveat is that the video is actually supportive of your sobriety. If you are stumbling, vomiting, or slurring your speech, then your failure to blow will be less valuable.

The Answer: Refusal or Blow

Unfortunately, there is no correct answer. If you are extremely intoxicated and you might blow a .16, .18 (Aggravated DWI) or even higher, then maybe you should not blow. If you cannot afford to have your license revoked because you must have it for work, maybe you should blow (there will be a temporary suspension regardless). Make no mistake, if you are not a stumbling drunk, failing to blow may strengthen your case at trial by not providing any scientific evidence to prosecutors. At the same time, however, not blowing may also make obtaining an offer much more difficult.

The answer to this age old questions is that there is no general answer. Neither this blog entry nor any DWI website will have the answer for you in your particular case. While it may not be easy, if you have counsel, the police should permit you to make a phone call before determining whether to blow into an intoxylizer. Use this opportunity to call your attorney so he or she can quickly get some information to answer this question specifically in your case. Regardless, the answer to this question will likely be an on the spot judgment call.

Crotty Saland PC is a New York criminal defense firm representing clients in Driving While Intoxicated and drunk driving related crimes in New York City and the region. Prior to starting the law firm, our two founding New York criminal lawyers served as prosecutors in the Manhattan District Attorney's Office.

For a wealth of information on New York DWI crimes and New York DWI laws, please follow the highlighted links to our website. There you will find legal analysis of recent DWI case decisions, DWI statutes and other relevant information. Moreover, a review of the NewYorkCriminalLawyerBlog.Com will also reveal this information.