New York Criminal Lawyer Blog

To do the "right thing" almost always takes courage. The path of least resistance it is not. In New York City, where gun crime seems to have been relatively rampant over the past year recently culminating in the tragic death of New York City Police Officer Peter Figoski, District Attorneys are frothing at the mouth with every new firearm arrest. While often time zealous prosecution is more than reasonable in gun and violent crime cases, other times law enforcement in New York City can't see the forest from the trees. For the sake of Meredith Graves, a nurse from Tennessee who "checked" her legally owned handgun with the police at Ground Zero, let's hope that Manhattan District Attorney Cyrus Vance, Jr. not only can see this recent gun possession arrest for what it truly is - an honest mistake about New York laws - but also ignores the general guidelines he and his office have imposed on weapon cases.

Before addressing the allegations against Ms. Graves, one must understand and have a grasp on New York's criminal statutes involving the possession of firearms without a permit. According to New York Penal Law 265.03(3), you are guilty of Criminal Possession of a Weapon in the Second Degree (CPW 2) if and when you possess a loaded firearm (a pistol, revolver, handgun, etc.) that is both loaded and outside your home or place of business and you do so without a permit. There are two critical concepts or rules that apply to these cases. First, you need not possess any intent to use that firearm unlawfully or against another person. Second, case law establishes that "loaded," in the eyes of the court, is far more liberal than its literal meaning. In fact, if the firearm is capable of being loaded and the ammunition is locked in a carrying case with your gun (but not physically in it), then that gun is considered loaded for prosecution purposes. One last, but unavoidable point. As a "C" violent felony, NY PL 265.03 is punishable by a mandatory minimum of three and one half years in prison for a person without absolutely no criminal history. Compounding matters, a judge could sentence a defendant to as many as fifteen years in custody.

According to the New York Post, it appears as if Ms. Graves inadvertently violated Criminal Possession of a Weapon in the Second Degree when she drove from Tennessee with a loaded pistol and entered New York. Although she possessed the proper permit for her .32 pistol from her home state, New York requires anyone within her borders to possess a valid New York permit. Once here, and recognizing that firearms were not allowed at Ground Zero where she was visiting the 911 Memorial, Ms. Graves wrongly believed she could check the weapon without any reprucssions. Not realizing what was in store, Ms. Graves attempted to turn the gun over to security who then brought her to the police. In their presence, Ms. Graves handed the gun into the police. If all of the allegations are true, Ms. Graves perpetrated one of the most serious felonies in the New York Penal Law.

The denizens of Manhattan elected Mr. Vance to serve as District Attorney after decades of honorable and "no nonsense" service by his predecessor, Robert Morgenthau. Whether the tabloids agreed or the political winds blew in a particular direction made no difference to "the Boss." Subjectively, and we certainly can agree to disagree, Robert Morgenthau attempted to always do the "right thing." District Attorneys do not prosecute alleged offenders merely because they can, but because they should. If all of the facts as alleged by the New York Post are true - Ms. Graves was licensed in Tennesse to carry the firearm, she did not initially realize she possessed the weapon at Ground Zero, Ms. Graves attempted to turn in the weapon - and Ms. Graves is a registered nurse with no criminal history who was applying for a position at Brookhaven Memorial Hospital, this case is not one to hang a prosecutorial hat. No greater good would be served to slap down the accused with a criminal conviction whether it be for a misdemeanor or felony. Justice would not demand that a lapse of judgment should prevent a registered nurse from maintaining her license to practice or from coming to New York where her skills would be a much needed asset (frankly, property taxes might scare her and other skilled professionals away anyway). While the decisions to do the "right thing" may not be a popular one in this understandingly hostile firearm climate, Ms. Grave's weapon was not stolen or part of the illegal firearm trade.

Despite what law enforcement might think about sending a message to would be illegal firearm possessors in New York, a flexing of "District Attorney muscle" would arguably send the wrong message in this limited type of case. That is, if you possess a weapon in New York not realizing the law and that firearm is properly registered with a permit elsewhere, hide it and conceal it. Under no circumstance should you bring it to law enforcement. While not doing so could endanger the lives of police officers and regular residents, prosecutors will punish you for doing the "right thing" while they are unwilling to do the same.

If any of the above information or assumptions is incorrect, then a different analysis may very well be necessary when deciding how to prosecute this case. It could be, in fact, that a thorough and full prosecution is necessary. Otherwise, our leaders in law enforcement and elsewhere are elected and appointed to have courage and do the "right thing." Whether the appropriate outcome in this case occurs, and I am not insinuating that it will not, time will certainly tell.

To educate yourself extensively on New York's weapon possession laws including Criminal Possession of a Weapon in in the Second Degree, follow the highlighted links above. There you will find analysis of the various Article 265 statutes as well as links to the NewYorkCriminalLawyerBlog.Com where there is further review of legal decisions and cases in the local New York City area news.

Established by two New York criminal lawyers, the former Manhattan prosecutors at Crotty Saland PC represent individuals accused of weapon crimes throughout the New York City region.

New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous "types" of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer's arrest.

In an all too common scenario, maybe you were speeding up the FDR on Manhattan's East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it's already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial "couple of drinks." While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to "blow" up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.

People v. Scott J. Grennon, 2009-2125 OR CR, NYLJ 1202510870265, at*1 (App. Tm., Decided July 27, 2011) involved a motorist who was arrested for Aggravated Driving While Intoxicated Per Se (VTL 1192.2(a)), Driving While Intoxicated Per Se (VTL 1192.2), Common Law Driving While Intoxicated (VTL 1192.3), and speeding (VTL 1180(d)). However, and extremely crucial to our analysis, the jury acquitted the defendant of Aggravated Driving While Intoxicated Per Se and Driving While Intoxicated Per Se, BUT convicted the defendant of Common Law Driving While Intoxicated and speeding. Grennon appealed on the grounds that there was not enough evidence to sustain the conviction of Common Law DWI.

Now before getting further into the facts of the case it is essential to note the difference between these types of DWI charges. Under the DWI "per se" statutes (VTL 1192.2 and 1192.2a), a person is guilty if he/she drives with a blood alcohol content (BAC) of .08% or higher or .18 or higher respectively. Both of these crimes are misdemeanors, but the latter Aggravated DWI offense carries stiffer penalties. On the other hand, a person can be prosecuted for "Common Law" DWI (VTL 1192.3) if based on the totality of the circumstances, and evidence gathered in the course of the arrest/incident, the officer observes (and the prosecution can establish beyond a reasonable doubt) that the driver was "intoxicated.

Applying the criminal law to this case, if there was enough evidence for the officer to establish that Grennon was intoxicated in the course of pulling Mr. Grennon over and observing him (but without a BAC reading), then the Common Law DWI conviction would be upheld. What evidence did the People have to support the Common Law DWI conviction, you ask? Well a state trooper saw Mr. Grennon speeding (estimated 95 MPH in a 65 MPH zone) on the New York State Thruway in Woodbury, Orange County (upstate NY). The trooper "spotlighted" the defendant and began to follow the Mr. Grennon for a considerable distance. [Note that in New York if an officer has training and considerable experience in estimating the speeds of vehicles, then the officer's testimony- even without a radar gun- can uphold a speeding conviction]. While obtaining the defendant's driver's documentation, the trooper detected the odor of an alcoholic beverage on Mr. Grennon's breath. Grennon admitted that he was driving home from a Yankees game, where he had consumed beer. The trooper testified that Mr. Grennon's eyes were "glassy" and arrested the defendant.

The Appellate Court ruled that the evidence against the defendant was insufficient to sustain a DWI conviction. Speeding, exhibiting glassy eyes, an odor of an alcoholic beverage, and an admission of consuming beer at some point earlier did not provide significant indicia of actual impairment of motor coordination. Since the officer did not conduct any field sobriety tests the court felt that there was not enough evidence to support the conviction of Common Law Driving While Intoxicated. While the People concentrated on the speeding aspect of the case, the Court stated as follows:

"Although speeding might be taken to reveal a diminishment of the 'mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver' (People v Cruz, 48 NY2d 419, 427 [1979]; e.g. People v Barger, 78 AD3d 1191, 1192 [2010]), absent any other evidence tending to prove defendant's inability physically to operate his vehicle as a reasonable and prudent person, the proof of speeding is too equivocal to be given significant weight as to defendant's state of intoxication."

The big takeaway from this New York DWI case is that the Common Law DWI conviction standard--that the officer must observe actual impairment of motor coordination--may be a higher standard than one might expect. An officer cannot just smell alcohol and look at your eyes to determine that you are impaired. Moreover, while speeding might show that the motorist is not a reasonable or prudent driver, absent any other evidence tending to prove the defendant's inability physically to operate his vehicle, the proof of speeding may not give the necessary legal weight to the contention that the defendant is intoxicated. Keep one last (and critical) thing in mind...While this case resulted in a successful outcome for the accused and furthered a legal standard as to what satisfies proof beyond a reasonable doubt in a DWI case, each set of facts may be interpreted differently by a court. What if, for example, there was one or two other factors? What if the defendant stumbled as he exited the vehicle or fumbled his license and registration? Maybe then, not only would a new legal precedent be set, but Mr. Grennon might have spent time behind bars saddled with a criminal record.

To educate yourself about New York DWI laws and New York DWI crimes, please follow either of the highlighted links. On Crotty Saland PC's DWI information page you will find links to the numerous types of DWI offenses, information on punishment and sentencing for DUI convictions, and analysis of legal decisions interpreting New York DWI laws and crimes.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors who served in the New York County District Attorney's Office and its DWI Unit. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

New York State laws are tough when it comes to Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Police, prosecutors, and judges strictly enforce these types of drunk driving offenses, which are listed under NY Vehicle and Traffic Law (VTL) 1192. Most New York criminal defense attorneys, when representing clients facing DWI crimes in Manhattan, the Bronx, Brooklyn, Queens, or Westchester County, will often try to broker a plea agreement with the respective District Attorney's Office. The hope is to lessen the potential punishment and fines, avoid jail time and/or a long-term loss of the defendant's driver's license. Further, because of the recent changes in New York DWI law (see Leandra's Law) that require the installation of an ignition interlock device, it is always critical to identify the best defense to a DWI or DUI arrest to mitigate collateral consequences. While pleading a case to a lower offense may be the best defense, there are other viable options to consider when mounting a defense to a New York DWI or DUI charge. For instance, what if the entire police stop was deemed unconstitutional as an illegal search and seizure? A recent case from the criminal court in Geneva, New York brought to light this very interesting - and case specific - legal question.

The case, People v. Palermo, NYLJ 1202519418737, at *1 (City of Geneva, Decided September 28, 2011), involved a man who was arrested after failing a series of sobriety field tests. Employing a savvy tactic, the defense requested a Probable Cause and Suppression Hearing, contending that the police officer lacked probable cause to arrest the defendant. Let's pause from the case for a moment for a Constitutional Law refresher. The Fourth Amendment of the United States Constitution guards citizens against any unreasonable search and seizure. Over the years the Supreme Court has outlined the parameters of what is reasonable and what is unreasonable. Generally, a police officer must have much more than a "hunch" to stop a driver on the road, and, obviously, an officer must have probable cause to ultimately arrest the driver. Though probable cause can be a fuzzy legal standard, the basic idea is that the officer possessed a reasonable belief that a person has committed a crime. Now because the United States likes to protect its citizens' rights (as does New York!), the judicial system employs what is called the Exclusionary Rule: evidence collected in violation of a defendant's constitutional rights, or any "fruits" of the illegal search or seizure, will be inadmissible (excluded) from a prosecution in a criminal court.

Now back to the DWI case...If the defense lawyer could show that the officer lacked probable cause, then the results of the series of sobriety tests would be inadmissible. Without the results from the sobriety tests, which established probable cause for the arrest and charge of Driving While Intoxicated, the arrest would be illegal and all charges would have to be dismissed.

After the criminal defense lawyer moved for a dismissal of the DWI charges, the People asserted that the arresting officer had reasonable suspicion to believe that Mr. Palermo violated a couple of vehicle and traffic laws. More specifically, that Mr. Palermo made an illegal u-turn and was speeding. However, while the arresting officer in Palermo revealed that he saw the defendant make a U-turn while pacing behind, the defense showed that the particular U-turn made, was not illegal. Furthermore, the officer admitted that he "didn't necessarily use radar" to measure the speed at which Mr. Palermo was traveling. Now, it's important to note that pursuant to New York State case law an officer is allowed to estimate the speed of a moving vehicle if the he/she shows experience observing the rate of speed of moving vehicles or some other satisfactory reason or basis for his opinion. Nevertheless, in this case the arresting officer did not have any such training. Lastly, the court found that the officer could not have established speeding by pacing Mr. Palermo's car because he did not pace Mr. Palermo long enough before Mr. Palermo made the proper U-turn.

More important than the particular facts, however, we must examine how the court reached their conclusion for suppression. The court laid out and reiterated three guidelines for the police to have probable cause to stop a vehicle: (1) The motor vehicle must be used in connection with criminal activity; (2) there must be reasonable suspicion of a violation of the vehicle and traffic law (VTL) based on articulable reasons that are not the product of mere whim, caprice or idle curiosity; and (3) when conducting a traffic check to determine whether or not a vehicle is being operated in compliance with the VTL, it must be done according to non-arbitrary and non-discriminatory, uniform procedures for detecting violations. Following these points, the court indeed found that the officer lacked the legal standing to stop the defendant's vehicle for any traffic violation and the stop was therefore an illegal seizure. The evidence was suppressed and the charges were dismissed.

This very recent case is extremely telling and important. If you are arrested for DWI anywhere in New York, if an officer does not establish probable cause, and makes an illegal search or seizure, then any evidence she/he collects thereafter will be inadmissible in a court of law (remember, you still have to convince a judge of the facts in question and applicable law!). Even if you fail the sobriety tests like Mr. Palermo, if the officer didn't have probable cause in the first place than you cannot be convicted of a DUI or DWI. Again, while the law is clear, if your New York DWI lawyer is unable to establish that the officer acted beyond the scope of the law, this suppression defense will fail.

For a wealth of information on New York DWI crimes and New York DWI laws, visit CrottySaland.Com's DWI information page. There you will also find links to the NewYorkCriminalLawyerBlog.Com where you will find relevant and practical analysis of DWI legal case decisions, DWI criminal statutes and DWI cases in the news.
Founded by two former Manhattan prosecutors who served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm representing those arrested for DWI crimes and DUI offenses throughout New York.

Stealing more than mere shekels, multiple alleged Identity Theft and check fraud rings pilfered $2 million from high worth individuals including the accounts of UJA-Federation donors. Although Hank Greenberg may not have noticed a few thousand dollars here or there, the alleged fraudsters are getting more than an "Oy Vey" from Manhattan District Attorney Cyrus Vance, Jr. for their alleged identity thieving. In fact, some of the nearly sixty defendants arrested or accused of various crimes are facing charges including Grand Larceny in the First Degree, a "B" felony punishable by a mandatory minimum of one to three years in prison. The maximum for this crime is eight and one third to twenty five years, but these numbers are all skewed should any of these men or women have prior felony records from the past ten years. While alleged gang association does not necessarily mean a criminal past, prosecutors further claim the many of those arrested in New York were members of the Bloods and Crips.

According to the New York County press release as well as numerous media outlets, the scheme (like many involving Identity Theft) was fairly east to perpetrate. For Example, Tracy Nelson, an employee of the UJA Federation, processed donor checks. This access to sensitive and financial information gave her the opportunity to allegedly take pictures and copy account information of donor checks. It is further claimed by DANY prosecutors that Nelson then sold the copies to other thieves who would open fraudulent checking accounts or credit cards with this information.

Although UJA Federation may be the highest profile organization to have a lapse in its security, it certainly is not the only one. Nelson's boyfriend, Roberto Millar, sold cars at Brooklyn's Open Road Audi. It is there, Assistant District Attorneys assert, the defendant mimicked his live-in girlfriend to steal and sell customer financial account information. Beyond these two alleged co-conspirators, Nicola Bennett, the compliance officer at AKAM Associates, Inc., and Karen Chance, a teller at Chase Bank, are alleged to have either accessed, stolen or reproduced customer and client information as well. All told, the defendants collectively are believed to trafficked in social security numbers, dates of birth and bank account information for a solid one thousand people. In doing so, some members of these groups allegedly took over credit card accounts, recruited individuals to get them access to legitimate accounts, and even created fake checks. If nothing else, the crews (if true) where certainly full service providers.

Giving himself a shout out to his prosecutions previously spearheaded by his merry band, Manhattan District Attorney Vance proclaimed: "From ATM skimmers, to waiters stealing credit card info, to the exploitation of systemic weaknesses in bank systems, we are attacking cybercrime and identity theft head on." Sadly, despite his and other law enforcement efforts, the volume and amount of financial loss associated with Identity Theft appears to be exploding in magnitude in New York and well beyond. Prosecutors can and will continue to pursue and investigate these and other fraud schemes, but until they get more support from banks and other institutions they will continually fight an uphill battle.

Founded by two former Manhattan prosecutors, Crotty Saland PC represents the accused through the New York City area. One of our criminal attorneys, Jeremy Saland, served in the predecessor to the Cybercrime and Identity Theft Bureau.

To learn more about Grand Larceny, Identity Theft and Criminal Possession of a Forged Instrument, please review the CrottySaland.Com website and this blog as well as the NewYorkTheftAndLarcenyLawyers.Com website and associated blog at NewYorkTheftAndLarcenyLawyersBlog.Com

PROSECUTORIAL AGENCY

Manhattan District Attorney's Office

CRIMES CHARGED

Grand Larceny in the First Degree (NY PL 155.45): Theft of property valued in excess of $1 million. This offense is a "B" felony.

Grand Larceny in the Second (NY PL 155.40): Theft of property valued in excess of $50,000, but not greater than $1 million. This offense is a "C" felony.

Grand Larceny in the Third (NY PL 155.35): Theft of property valued in excess of $3,000, but not greater than $50,000. This offense is a "D" felony.

Grand Larceny in the Fourth Degree (NY PL 155.30): Theft of property valued in excess of $1,000, but not greater than $3,000. This offense is a "E" felony.

Criminal Possession of Stolen Property in the Fourth Degree (NY PL 165.45): Possession of stolen property valued in excess of $1,000, but not greater than $3,000. This offense is a "D" felony.

Identity Theft in the First Degree (NY PL 190.80): Depending on the particular theory or subsection, this crime occurs when there is a use of personal identifying information of another while perpetrating a "D" felony or where services or property is obtained valued in excess of $2,000. This offense is a "D" felony.

Criminal Possession of a Forged Instrument in the Second Degree (NY PL 170.25): The possession of a fake or fraudulent document, credit card, check or other object that is possessed with the intent to defraud. This offense is a "D" felony.

"B," "C," "D," and "E" felonies are punishable by up to twenty-five, fifteen, seven and four years respectively.

* The above definitions are limited and are not a complete translation of the law. For a complete verbatim reference, review the New York State Penal Law.

THE ACCUSED

YOUNES ABIDAR, MERCY ADEBANDJO, KARRONE ALFRED, JAMEL ANNUZIATA, JAMAAL ANTHONY, NICOLA BENNET, JOSIAH BOATSWAIN, ERICA BROWN, MARK CAMPBELL, KAREN CHANCE, KINO CHARLES,UMAR CREDLE, DIOR KYLE DUMOY, CORNELIUS GARY, CLAUDE GASKIN, JOANNA GIERCZACK, TAFARIE GLASGOW, AJIRE GOLDEN, LIANA GUISCHARD, DAN HAZAN, ALDORAY IRVING, ALTON JAMIESON, ELLORA SMITH JULIUS, CHARLES KELLY, ALRICK CARMEN KOFFI, DEAN MAPP, MOISE, SHAHEIRA MOODY, TRACEY NELSON, ANTHONY PARKER, ANDY PETTITHOME, HANSEY JEAN PIERRE, RICHARD RAMOS, DARRYL RIELY, JESSICA RODRIGUEZ, KURT RUSSELL, LAQUASHIA SEABERRY, DARRYL SYNCON, CHRISTOPER TENN, JONATHAN TUCKER, NICOLE LEACH VITALIS, EVELYN WALKER, JETANE WEBSTER, BRANDON WHITE, CARLOS WHITE, SHAUN WILLIAMS

According to New York City's top prosecutor, a Manhattan Chase Bank teller's passion for the Benjamins may have cost him much more than the $240,000 he is alleged to have swindled from his employer. Unfortunately for Sephoen Tsang, a Chinatown branch worker, Manhattan District Attorney Cyrus Vance, Jr. has escalated the "war" on white collar crimes in recent months with equal passion to Tsang's alleged thieving ways.

It is claimed by prosecutors that Tsang made numerous fake and false entries into the computer system at Chase Bank regarding the movement of $243,000 in funds. Although prosecutors claim that internal computer systems records from November 29, 2011 appear as if Tsang moved $243,000 from his teller drawer to the bank vault and and then again to the ATM machines, these transactions never transpired. Instead, the money was allegedly stolen outright.

Upon learning of the possible theft, the New York City police department, along with the Manhattan District Attorney's Office, began their investigation. Not only did a search warrant executed at the Tsang's home result in the recovery of $26,000 in cash, a flat screen television, and an Apple MacBook Air computer, but Tsang was located miles away in Atlantic City playing baccarat at the Borgata Casino.

According to the indictment charging Tsang with multiple crimes, the defendant faces multiple felonies including Grand Larceny in the Second Degree (New York Penal Law 155.40) and Falsifying Business Records in the First Degree (New York Penal Law 175.10). Second Degree Grand Larceny is a "C" felony punishable by up to five to fifteen years in prison while First Degree Falsifying Business Records is an "E" felony punishable by as much as one and one third to four years in prison.

The Grand Larceny charge that Tsang faces simply stems from the alleged theft of property, here it is cash, with a value exceeding $50,000, but not more than $1 million. Falsifying Business Records, on the other hand, could have occurred in many ways. Generally speaking if you make a false entry or cause a false entry to be made in the business records of an enterprise (inputing false transaction records into the Chase computer and banking records) with the intent to defraud and you do so to hide or assist in the carrying out of another crime (Grand Larceny), you have perpetrated this offense. Although it likely is not applicable in Tsang's case based on my brief reading of the press release, there is an affirmative defense to Falsifying Business Records. New York Penal Law 175.15 states that if you falsify any type of business record at the direction of a supervisor and you did so as an employee without any benefit, then you would have a defense to any degree of Falsifying Business Records.

There may be many factors in determining the strengths and weakness of this case. Is there a means by which the entries made in the Chase system is traceable to Tsang? If there is a login is it shared? Is there an answer as to why a teller, who likely does not make that much money, had in excess of $25,000 in cash in his apartment? Prosecutors likely have determined or are attempting to ascertain how much money Tsang gambled with and how he had access to those funds. Does Tsang have a reasonable answer?

Unfortunately for Tsang, prosecutors throughout New York City have become more strict and aggressive in their prosecution of theft and fraud crimes in New York. Will Tsang beat the case? Will he end up behind bars? One thing is for sure. This coming Christmas Tsang's stocking will be filled not with gifts and goodies, but anxiety and grief.

To educate yourself on the Grand Larceny and Falsifying Business Records in New York, please follow the highlighted links above. Additionally, Crotty Saland PC's NewYorkTheftAndLarcenyLawyers.Com website has significant information on Grand Larceny crimes in New York ranging from collateral consequences, potential punishment and analysis of criminal statutes.

Established by two New York criminal lawyers who served together as Assistant District Attorneys in Robert Morgenthau's Manhattan District Attorney's Office, the criminal attorneys at Crotty Saland PC represent the accused throughout the New York City region.

"Go get 'em, Cy!" That was likely the cheer that echoed through the halls of TD Bank corporate headquarters after the Manhattan District Attorney and his troops announced the indictment and arrest of 94 individuals in an alleged check fraud and Grand Larceny ring that pilfered approximately $450,000 from the global bank. While the loss of $450,000 has absolutely no impact on the bottom line of such a large institution, and is likely viewed merely as one of the many costs of doing business in the 21st century, such a theft is significant in terms of consumer and banker confidence and security. The alleged fraudsters may have believed they were in a real life Staples commercial when they allegedly looted approximately 90 accounts and spent the ill gotten gains on cards and dice at area casinos (Hey, "That was easy."), but they were certainly wrong. The sad reality for the accused is that many of those arrested now face up to fifteen years in state prison. Reminiscent of the Queens District Attorney's Office 16 million dollar and 100 plus person indictments charging Enterprise Corruption, Grand Larceny and other crimes, Manhattan prosecutors, like District Attorney Brown's crew, are poised to to send a strong message to would be identity, cyber and check fraud thieves. In fact, taking a page out of the book of his predecessor, Robert Morgenthau, for fighting crimes in the streets and in the suites, DA Cyrus Vance, Jr. stated:

"Our job is to protect New Yorkers, whether on the streets, online, or in the banking system. The most recent cases brought by my Office's Cybercrime and Identity Theft Bureau show how pervasive cyberfraud schemes are, and how they depend on individuals willing to play various criminal roles. Whether you are a ring-leader or a small player, if you are caught committing fraud, you will be prosecuted."

Frankly, DA Vance is right and he is assertive in his position. Although any indictment is merely an accusation, whether the theft amount is large or small, involves a few individuals or is a criminal enterprise, no organized act of Grand Larceny is insignificant in the eyes of law enforcement.

According to reports and the Manhattan District Attorney's Office press release (check out the piggy bank symbolizing bank accounts...it brings a touch of "fun" to an otherwise serious situation) prosecutors claim that the alleged band of thieves was run by men and recruiters who payed a couple of hundred dollars to individuals who would open up bank accounts. Once open, bad checks, wire transfers or other monies were deposited into the accounts. Although the alleged bad guys knew the money would ultimately not clear and checks would bounce, the defendants accessed and withdrew the money before the banks waited for the checks to clear. With the money in hand, nearly half a million dollars, the ring leaders allegedly lived like high rollers at Foxwoods Casino and other casinos throughout Atlantic City.

If true, the sad reality of a case like this is that but for the diligence and efforts of prosecutors and law enforcement agents, banks, like TD Bank, would probably not connect the fraud together. While missing the forrest from the trees, the banks would certainly catch a customer who failed to make a timely mortgage payment, but not the alleged large scale fraud rooted out by the Manhattan District Attorney's Office. Although they would certainly never publicly admit it, the cost to a bank for similar fraud (dollar wise this case involves the same amount of money as a lower end jumbo mortgage default) is not worth internal bank enforcement. Although my commentary may seem cynical or a little "tongue and cheek," with the relatively weakness in the penal law for crimes relating to Criminal Possession of a Forged Instrument, Identity Theft and in some cases Grand Larceny, the acceptance by banks of fraud as a cost of doing business, and the overwhelming amount of time it takes to "connect the dots" in a large scale fraud ring, it is clear to see why these types of schemes are the crimes of the future.

As I note in many of my entries assessing alleged large scale scams, what each defendant will set forth as his or her defense will likely play out, like a hand of poker or black jack, over the next few weeks and months. Whether the defendants fold or hit 21... we will all soon find out.

Crotty Saland PC is a New York criminal defense firm representing those accused of all crimes throughout New York City and the region. Jeremy Saland, one of our two founding New York criminal lawyers, served in the Manhattan District Attorney's Office for over seven years. During that time, Jeremy served in the Identity Theft Unit Major Case section, the predecessor to the Cybercrime and Identity Theft Bureau.

To learn more about the crimes listed above and below, please follow the highlighted links to CrottySaland.Com as well as the NewYorkCriminalLawyerBlog.Com. Additional information is available on Crotty Saland PC's new website and blog, NewYorkTheftAndLarcenyLawyers.Com and NewYorkTheftAndLarcenyLawyersBlog.Com respectively.

Crimes Alleged & Offenses Charged

Grand Larceny in the Second, Third & Fourth Degrees: New York Penal Law 155.40, 155.35 & 155.30

"C," "D," and "E," felonies respectively, these crimes are punishable by up to fifteen, seven and four years. If any of the individuals are predicate felons, mandatory state prison is required. These charges may have been aggregated on an individual basis, but not collectively across defendants as each defendant is not charged with the same degree crime.

Criminal Possession of a Forged Instrument in the Second Degree: New York Penal Law 170.25

A "D" felony punishable by up to seven years in prison. This offense likely relates to the fake checks or debit cards recovered from an individual. Alternatively, it is possible that he or she had a fake identification of some kind. Without more information, it is difficult to determine.

Conspiracy in the Fourth Degree: New York Penal Law 105.10

An "E" felony, this crime is punishable by up to four years in prison. The crime is tied to the defendants alleged "in cahoots" actions and activities to perpetrate the Grand Larceny criminal scheme. For prosecutors, it enables law enforcement to tie the defendants together into this alleged common fraud. It is important to recognize, however, Enterprise Corruption, a "B" felony with mandatory state prison for even a first time offender, was not charged.

Prosecutorial Agency

Manhattan District Attorneys Office - New York County, New York

Defendants Arrested & Accused

STEVEN ADDISON, TREVOR O. ALLEN, ALEXANDER ANDUJAR, FREDDIE AUSTIN, MADELEINE BALAGUER, JASMIN BARRAGAN, JOHN PAUL BAZIGNAN, TRAVIS BELL, LAURA BERRIOS, DAMIEN BLANKS, JAMALA BLY, DANNY CARDONA, IRIS CARRASQUILLO, VIVIANA CHAPARRO, FRANK CLARK, ISRAEL COLON, LOURDES COLON, CARLOS E. CORTIJO, JOSE CRUZ, JOSE M. CRUZ, VERONICA CRUZ, XOCHEEL CRUZ, SHANE DANIELS, JOANN DEBRO, MILTON DELACRUZ, ERIK DIAZ, JUSTIN DOUGHERTY, SEAN EDWARDS, RICHARD FARGAS, JENNIFER FELDMETH, JONAS FERNANDEZDIOSA D. FIGUEROA, JOSEPH FIGUEROA, NELSON FLORES-ESCOBAR, JOANNA GONZALEZ, CARLTON GOODWIN, TERRENCE M. GUY, ORLANDO GUZMAN, DANIEL HEADLY, JR., HECTOR HERNANDEZ, RAYMOND IRIZARRY, JONATHAN JAIMAN, JEAN JAYSURA, LAVONE KELLY, ERIC LANDRON, JONATHAN LASANTA, ROSA LEON, JAMES LEONARD, LUIS LOPEZ, JOEL LUCIANO a/k/a JOEL TORRES, EMIL MANZANO, JARELISSE MARTINEZ, JOSE MARTIR, CRYSTAL MCAULEY, ANGEL MEDINA, HERMINIA MEDINA, FREDDIE MERCADO a/k/a FREDDIE MERCADO JOUBERT, DAVID MORALES, CARLOS MORENO, DAYNA NIEVES, RAUL PADILLA, JR. JOSE PENA,RAFAEL PEREZ, XIOMARA PEREZ, JEREMIAH PETERSON, ILIANET PONCE, SCOTT RABA, AMADO RIVERA, ANTONIO RIVERA, JORGE RIVERA, JEFFREY RODRIGUEZ, D.O.B., RICARDO RODRIGUEZ, JUAN LUIS ROMAN, STEPHANIE ROMAN, JENNIFER ROSARIO, SABRINA ROSARIO, FRANCY SANCHEZ, GREGORIA SANCHEZ, JOSHUA SANDS, NEREIDA SANTIAGO, PANAMA SMALLS, JEFFREY W. STILL, EDWINA TAYLOR, ALBERTO TORRES, CHRISTOPHER TORRES, JUAN VEGA, ERNESTO VITAL, TOYIA WHITE, SANFORD WILLIAMS, LAKIESHA YOUNG, TAMIKA YOUNG

As I have addressed in the past, theft of a credit card or debit card in New York City, and in any of the surrounding boroughs or counties, will result in (at least) the felony charge of Grand Larceny in the Fourth Degree, NY Penal Law 155.30(4). Certainly anyone facing such a charge should consult with New York criminal defense attorney experienced in credit card crimes as the felony they would face is punishable by up to four years in prison. But what about credit card fraud (whatever that actually means!)? Will a perpetrator of credit card fraud be charged with a felony? Are there other charges that may accompany a credit card fraud charge? What evidence does the State of New York have to bring to prove credit card fraud? Let's briefly address these questions here. After all, it is important to understand the seriousness of the charges a New Yorker can face if they perpetrate one of these crimes.

In New York, one of the crimes credit card fraud will result in is a charge of New York Penal Law 170.10(1) Forgery in the Second Degree. A "D" felony punishable by up to seven years in state prison, Forgery in the Second Degree is a relatively common crime. You are guilty of Forgery in the Second Degree if you fraudulently sign the name of the actual holder of the credit card or debit card on a written instrument (i.e. the transaction receipt). Similar to theft of a credit or debit card, forgery in the second degree does not turn on the value of goods stolen (i.e. the items you purchased by signing the false name on the receipt). If you forged a signature without authority and with the intent to defraud the credit card company and/or the store (or the cardholder for that matter), then you are guilty of Forgery in the Second Degree. It is fairly scary that this one bogus signature has enormous criminal ramifications.

Moreover, such a Second Degree Forgery charge involving credit or debit card use is rarely prosecuted alone. If you have signed a false name (or scribbled what appeared to be a name) on the credit card you will also likely face the charge of Criminal Possession of a Forged Instrument in the Second Degree NY Penal Law 170.25, also a "D" felony punishable by up to seven years in state prison. According to the New York Penal Law, "[a]person is guilty of [C]riminal [P]ossession of a [F]orged [I]nstrument in the [S]econd [D]egree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument." Because that definition is not very helpful, the following will better illustrate this crime. Once you sign the credit card receipt, thereby committing Forgery in the Second Degree, you have created a completed forged instrument- the receipt with the forged signature. The key for the prosecution is to show that you intended to defraud the parties on the other end of the transaction- the store and the credit card company.

Does this sound a little confusing? Well, let's examine a case that will serve as a good illustration of these two charges: People v. Lewandowski, 255 A.D.2d 902. The defendant used a corporate credit card from her former employer to purchase gasoline and food. The defendant signed the name of her brother, the vice-president of the corporation, although she no longer was working for the company and did not have the authorization to use that card. There were two credit card receipts with a forged signature (she possessed the forged instrument!). Therefore, the defendant was convicted of Forgery in the Second Degree pursuant to NY P.L. 170.10(1) and Criminal Possession of a Forged Instrument in the Second Degree pursuant to NY P.L. 170.25. Although the value of the gasoline and food was low, Ms. Lewandowski still faced a felony charge because forged the theft involved credit card fraud. The only issue on appeal was whether the defendant's confession was a complete statement of guilt, and because it was corroborated with the brother's testimony the appellate division ruled that there was sufficient evidence to uphold the conviction.

This case is a standard example of credit card fraud that occurs in New York, which can result in a conviction of Forgery in the Second Degree and Criminal Possession of a Forged Instrument. If you sign a false name on a receipt with a credit card or debit card purchase you have committed a felony (regardless of the value of property taken!) under New York law. As much as I wish I could say we are all done, there are two more points that are worth noting. Frist, if you criminal attorney is knowledgeable about these statutes, ask him or her whether or not you can be convicted of forging the same forged instrument you are also alleged to possess. Second, it's important to understand that often time the type of Forgery mentioned above is the basis of another serious felony. Identity Theft in the First Degree (NY P.L. 190.80), also a "D" felony, is that offense.

To better educate, and defend, yourself against credit card fraud related crimes, follow the highlighted links above. Further New York criminal law and criminal defense resources maintained by Crotty Saland PC include:

CrottySaland.Com: A complete New York criminal defense website addressing countless criminal statutes in the white collar, street crime, violent crime, weapon crimes, vehicular crime, property crime and desk appearance tickets arena. Content also addresses the arrest process.

NYDeskAppearanceTicket.Com: A website a dedicated to misdemeanor offenses and desk appearance tickets in New York City.
NewYorkTheftAndLarcenyLawyers.Com: A website with substantial materials on New York's theft and larceny crimes from shoplifting and embezzlement to extortion and credit card theft.

NewYorkCriminalLawyerBlog.Com: A blog containing insight and analysis not only on criminal statutes found in the New York Penal Law, but legal decisions interpreting those crimes and cases playing out in the New York City area media.

NewYorkTheftAndLarcenyLawyersBlog.Com: Similar to the blog above that exclusively addresses white-collar theft crimes.

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

Queens District Attorney Richard Brown keeps motoring on obtaining one Enterprise Corruption indictment after another. Whether the top prosecutor in Queens is chasing down identity thieves, gamblers or other alleged fraudsters, when he finally catches them he brings out the "big guns" found in the New York Penal Law. According to a press release from earlier today, DA Brown has done it again. Eighteen individuals, arrested for and charged with Enterprise Corruption, Grand Larceny, Criminal Possession of Stolen Property, Falsifying Business Records, Criminal Possession of a Forged Instrument and Conspiracy, are all alleged to be part of an auto loan fraud scheme. It appears that obtaining indictments against these individuals was not enough to satisfy DA Brown's voracious appetite for justice as he also obtained indictments for three separate corporations.

According to prosecutors, eighteen individuals and three corporations have been
indicted for their alleged roles in two massive automobile loan fraud schemes that resulted in nearly two million dollars in losses to 18 financial institutions on 47 loans. A fairly basic, yet lucrative, scheme it is alleged that the defendants were involved in obtaining loans to purchase high end automobiles - BMWs, Mercedes, Porsches - with the assistance of "straw borrowers." These borrowers had good credit that enable them to allegedly purchase vehicles that were later resold or rented on the black market and used in criminal activities.

The scheme is alleged to have been perpetrated as follows: (1) A "straw borrower" would obtain bank loan through the use of their good credit. (2) The "straw borrower" would share his/her personal information so that a "straw purchaser" could buy a vehicle with that loan. (3) After a few payment periods, the "straw buyer" or whoever was in charge of payment, would default on the loan. (4) Because of the agreement between the automobile dealerships and the banks, after a few payments were made, the "straw buyer" or the bank would be liable for the loan and not the car dealership. As a result, the car dealership, which may have been in cahoots, would get the money free and clear. (5) During some of the purchases, it is alleged that cars were not actually bought even though the car dealerships received the loan money from the victim banks.

It is alleged that recruiters for this scheme approached "straw borrowers" by promising them kickbacks when the vehicles were either sold or the money for the fraudulent loan obtained for the vehicle was dispensed. Further, it is claimed by prosecutors that "straw borrowers" were told payments would be made and the borrower's credit would increase as a result. Despite these alleged promises, the loans went into default.

As a result of this investigation, prosecutors believe that not only were individual fraudsters involved in the nearly two million dollar scheme, but that loan companies and car dealerships aided in the fraud.

The Criminal Charges

Briefly, the charges against the defendants and the companies are as follows:

Enterprise Corruption: A "B" felony requiring mandatory prison for a first time offender up to twenty five years. Likely tied to the allegations that the crew had a structure and common purpose to make money for the criminal enterprise.

Grand Larceny in the Second and Third Degrees & Criminal Possession of Stolen Property in the Second and Third Degrees: "C" and "D" felonies punishable by up to fifteen and seven years in prison respectively. These charges appear to be associated with the individual loan thefts from the bank as well as the possession of the stolen funds. Because there were numerous victims, the crimes of Grand Larceny were not aggregated into one single offense of Grand Larceny in the First Degree for a theft in excess of one million dollars.

Criminal Possession of a Forged Instrument in the Second Degree: A "D" felony punishable by up to seven years in prison. This crime likely relates to fraudulently completed loan paperwork and other documents.

Falsifying Business Records in the First Degree: An "E" felony punishable by up to four years in state prison. This crime is associated with the falsely drafting, writing and completing information on loan applications and other documents that were used in the course of the bank's business.

Conspiracy in the Fifth Degree: An "A" misdemeanor punishable by up to one year. While this crime is not "heavy," it is used to tie together other acts that may not be admissible and to give prosecutors jurisdiction where they may not have it otherwise.

The Defendants

DICKENSON ENTERPRISE (12 defendants)

Duane Box, Danien Brown, Ernest Butler, Andre Dickenson, Alain Galette, Natasha Green, Maurice Hayes, Marvin Jackson, Christopher Lewis, Adrian Sylvester, Carl Tappin, Christopher Vincent

NDAULA ENTERPRISE (9 defendants)

Quate Alexander, Yusekbek Makhamadaliev, Alexander Ndaula, Quiet Money Realty LLC (a.k.a. EZ Approval Auto Sales and Leasing LLC), Rear Guard Enterprises, Ronda Richardson, Luis Santiago, Alain Saint Phard, Silver Arrow Auto Sales,

Where

Queens County Supreme Court Criminal Term

Whether prosecutors' allegations hold water and what defenses the accused will pursue in the next few weeks will certainly be seen. Make no mistake. Assistant District Attorneys and their adversaries representing the defendants have significant work ahead of them.

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.

To learn more about the crimes listed above including Enterprise Corruption, Grand Larceny, Criminal Possession of a Forged Instrument and Falsifying Business Records, please follow the highlighted links.

Additional information on these crimes ranging from analysis of legal decisions, criminal statutes and newsworthy cases, is also available on the NewYorkCriminalLawyerBlog.Com. Within the next week, Crotty Saland PC's new website and blog, NewYorkTheftAndLarcenyLawyers.com and NewYorkTheftAndLarcenyLawyersBlog.Com will be "live" with significant information on New York's theft and larceny laws.