New York Criminal Lawyer Blog

Depending on the facts and circumstances, gambling in New York, outside of Native American Reservations and the horse tracks, is an illegal enterprise. Unlike Las Vegas, gambling in New York City or elsewhere in the State of New York can land you in jail and the winner of a criminal record. New York is no stranger to organized gambling schemes, illegal "bookies" taking bets, or underground gambling enterprises. As a New York criminal lawyer representing clients in Manhattan, Queens, Westchester and the surrounding boroughs and counties, I know that while gambling offenses are not as common as many other crimes, prosecutors and police are constantly on the lookout for and target gambling offenders. Today I want to examine a recent Bronx County criminal case involving the violation of New York gambling laws: Possession of Gambling Records in the Second Degree, pursuant to New York Penal Law 225.15(2).

Under NY PL 225.15(2) a person is guilty of Possession of Gambling Records in the Second Degree when, with knowledge of the contents or nature thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise. Possession of Gambling Records is a class "A" misdemeanor, punishable by up to one year in jail and a fine. Remember, even without ever stepping into jail as a part of a sentence, Possession of Gambling Records is a crime that will stay on your permanent. Now, if the records are of the kind used in a bookmaking scheme or enterprise and total more than five thousand dollars the charge escalates to a much more dire case. That is, Possession of Gambling Records in the First Degree, pursuant to New York Penal Law 225.20, is a felony. While the misdemeanor variety of gambling crimes is punishable by up to one year in jail, the felony variety is punishable by up to one and one third to four years in state prison.

With the background and foundation of New York gambling crimes out of the way, let's address the recent court decision from the Bronx. In People v. Jose Garcia, 2011BX063385, NYLJ 1202541704022, at *1 (Crim., BX, Decided January 30, 2012), the defendant was charged with the Possession of Gambling Records in the Second Degree, in violation of Penal Law 225.15(2). The arresting officer found a Dominican wager scheme slip in the defendants front pants pocket, and she stated that based on her training and experience in the recognition of gambling records etc., the items taken from Mr. Garcia were wagers for a Dominican lottery that are commonly used in the playing of a lottery or policy scheme or enterprise. Interestingly, within NY P.L. 225.15(2) there is an affirmative defense if "the writing, paper, instrument or article possessed by the defendant constituted, reflected or represented plays, bets or chances of the defendant himself in a number not exceeding ten." In other words, if the gambling records are for your own bets/games than you cannot be prosecuted for this particular crime.

Mr. Garcia argued that the accusatory instrument was insufficient and thus the case should be dismissed. [Legal Note: The accusatory instrument lays out what the charges are with the facts (as alleged by the People) of the incident that are usually confirmed by a victim or arresting officer. Essentially it is the document containing the basics which are presented at arraignment. The facts alleged must show each and every element of the crime.] Garcia's lawyer contended that the factual allegations in the accusatory instrument did not negate the exception/defense written in the statute. That is, the allegations did not indicate that the one wager slip Mr. Garcia possessed represented something more than his own "plays, bets or chances."

The Garcia court found for the defendant and dismissed the charges. They ruled that because the exception/defense is clearly written in the language of the statute the accusatory instrument used at arraignment must state facts that tend to disprove the exception. In other words, the prosecution needed to present more information/details in the complaint that addressed why the wager slip was not just for Mr. Garcia's bets.
It is important to note the main, unique fact here that made all the difference for Jose Garcia. Most defenses are not written into a statute. In those instances the accusatory instrument must only present factual allegations which may tend to prove each and every element of the crime. However, Possession of Gambling Records in the Second Degree is fairly unique, because the statute- NY PL 225.15(2)- actually lays out an exception to the law itself. Therefore, the exception- that the gambling records were for personal use- is sort of like another element which the People themselves must prove. Luckily for Mr. Garcia the arresting officer's "factual allegations" did not address whether the bets were for Garcia's use only.

Whether the case above is applicable in your arrest for Second Degree Possession of Gambling Records is something to discuss with your criminal lawyer. Did prosecutors satisfy each element of the crime as set forth in the statue? Do you have a basis for dismissal? An educated review of the complaint or information will likely answer this question.

To further educate yourself on New York crimes and laws involving gambling and other statutes, review the Crotty Saland PC websites and blogs below.

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 clients in gambling crimes and related offenses in New York City and the region.

Any New York criminal lawyer can tell you an allegation is merely an allegation. It is not proof beyond a reasonable doubt, or, for that matter, proof of much at all. Whether you are arrested for a fight involving a neighbor or a stranger, the burden on the prosecution is to not only establish the probable cause that legitimized a police arrest for Assault, but also they burden is on the People to prove a case beyond a reasonable doubt. Despite this legal requirement and the recognition that an arrest is not proof of any guilt, allegations are often devastating. For a client of Crotty Saland PC, this pain was overwhelming until our New York criminal lawyers were able to secure a dismissal in his felony Assault case.

Prosecutors charged our client with Assault in the Third Degree (New York Penal Law 120.00) after our client allegedly struck another man and opened up a laceration on his forehead. Normally a misdemeanor crime, this Third Degree Assault was prosecuted as a felony due to the allegation that the barrages of punches were part of a verbal tirade against the complainant because of the alleged victim's perceived homosexuality. Under New York State law, a misdemeanor crime can be elevated to a felony offense if it is classified as a "hate crime."

From the onset of the prosecution, our client denied he initiated the confrontation or that he attacked the complainant because of his perceived homosexuality. Unfortunately, a supervisor from the District Attorney's Office believed our client had said some horrendous things as he allegedly pummeled the complainant. In fact, it appeared prosecutors had made up their mind as to our client's guilt solely on the nature of the allegation instead of the actual evidence and facts. After all, why would a complainant lie!??!

Although it took some time, an investigation found a witness unrelated to either party who saw what occurred. This witness stated that the complainant kicked and spit on our client to initiate a confrontation. The complainant was likely intoxicated. The complainant was advised multiple times to stop. It was not after being kicked multiple times did our client protect himself. Even then, however, the injury sustained by the complainant was a result of his own actions after walking into scaffolding or a similar structure. Further, the witness informed our investigators, and ultimately prosecutors, that he had seen the complainant act aggressively in the past with both men and women.

Not willing to dismiss on the grounds of the independent eyewitness testimony, an ATM video revealed a recording of the complainant confronting our client and attacking him. The alleged victim's conduct was prior to our client interacting with the complainant in a defensive way or aggressive way. Despite our initial assertion of innocence being rebuked, the prosecution dismissed the charges against our client with the video and witness statement in hand.

Remember, each case is unique. Past results in no way guarantee a future outcome. In fact, videos and witnesses to criminal acts are not part of most cases prosecuted in New York criminal court. What is important to take from this case, however, is that regardless of an allegation and irrespective how "ugly" the accusation is, a claim of wrongdoing is merely a claim. Just because a complainant makes an assertion and the prosecution (understandingly) desires to protect a victim from an alleged bias attack does not mean there will ultimately be corroboration beyond a reasonable doubt. Better yet, it does not mean the crime ever even happened. Fortunately, not only did our client have two friends who witnessed the incident, but a good Samaritan corroborated our client and discredited anything the complainant stated. Here, the "icing on the cake" was the video from the ATM machine showing the self proclaimed "victim" striking at our client multiple times before our client defended himself. This case exemplifies that knowledge of the law, diligence in gathering evidence and skill in presenting that evidence to prosecutors are all key to a viable defense. Fortunately for our client, all of these factors taken together ultimately led to his exoneration.

To learn about New York Assault crimes as well as other violent and non-violent crimes, please link through the content above or below.

Crotty Saland PC is a New York criminal defense firm. The founding New York criminal defense attorneys at Crotty Saland PC served as Manhattan prosecutors before establishing the defense practice.

From gravity knives to switchblade knives, whether in Manhattan, Brooklyn, Queens or out in Westchester County, as an experienced New York criminal lawyer I have frequently seed defendants charged with Criminal Possession of a Weapon in the Fourth Degree. A misdemeanor, CPW 4, pursuant to New York Penal Law 265.01, is punishable by up to a year in jail. Often times, the alleged offenders are not taken into full custody (traditional arrest, spending a night in jail), but instead are issued a Desk Appearance Ticket (largely issued to NY residents to make it easier on the police, who can issue the ticket and release the 'defendant' from their custody without having to send the offender to central booking). More important than procedure, however, is the fact that District Attorney's Offices in the New York City area consider Criminal Possession of a Weapon one of the most serious types of misdemeanor offenses. This fact is reflected in tough and limited offers and plea deals at arraignment (the first time one sees a judge) regardless of whether a DAT was issued or not.

Briefly, a person is guilty of NY PL 265.01, if that person possesses a weapon specified in the statute (such as a gravity knife or switchblade knife). An individual's intended used of the "weapon" is not a factor in their guilt. That is, even if you don't intend to harm anyone, if you have a knife that is deemed a weapon in your possession, you are guilty of the crime. Logically then, mounting a defense against Criminal Possession of a Weapon in the Fourth Degree rests largely on showing that the search and recovery of the weapon was improper, the weapon was not in your possession or showing that in fact the item is not a weapon.

In this blog post, I will examine a recent New York criminal case, People v. Paul Mathis, 2010RI005220, NYLJ 1202499472471, at *1 (Crim., RI, Decided June 24, 2011), where the defendant was charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to NY PL 265.01 for possessing a "gravity knife." As I have explained in previous posts, in New York an Assistant District Attorney must present non-hearsay factual allegations (for example, an arresting officer's corroborated statements) that provide reasonable cause to believe that the defendant committed each element of the offense being charged. In People v. Paul Mathis, the defendant moved to dismiss the charges prior to trial, claiming that the factual allegations presented by the People were "facially insufficient under statute and case law."

The accusatory instrument indicated that the arresting officer stated that when he retrieved the knife from the defendant's possession the knife's blade "released from the handle by the force of gravity or centrifugal force and locked in place by means of a button, spring, lever or other device." The defense argued first, that these words copy verbatim the statutory definition of a gravity knife, and thus are conclusory and second, that the allegations lacked any reference to the officer's training and experience.

The court denied the defendant's motion to dismiss concluding that the factual allegations were sufficient to establish a prima facie case against the defendant (the level of proof to bring charges is minimal, as opposed to the reasonable doubt standard required for a conviction). The court believed that although the allegations did not refer to the officer's prior experience or training, the conclusion that the knife in question was a gravity knife was based on the officer personally testing to determine that the knife operated according to the statutory definition. In other words, the actual test that the officer performed--dropping the knife blade down-- was enough to bring charges against the defendant for Criminal Possession of a Weapon in the Fourth Degree.

Applying this case more broadly, it is clear that some courts are lenient when determining whether the proper foundation for establishing the crime of Criminal Possession of a Weapon is satisfactorily set forth. Even if the criminal complaint is facially sufficient, however, by no means are your potential defenses eradicated. As noted above, was your stop and search legal? Even if the police officer concludes you possess a particular weapon, is it in fact operable? Assuming your search was proper and the weapon meets the legal standards, can you mitigate your conduct as to obtain a non-criminal disposition as opposed to being crippled with a criminal record? The answers to these questions may not be easy, but vetting them with your counsel and analyzing the information against you is critical in any criminal case.

To learn more about Criminal Possession of a Weapon and Desk Appearance Tickets, review any of the links above or below. Founded by two New York criminal lawyers who served as Manhattan Assistant District Attorneys, Crotty Saland PC represents the accused throught the New York City region.

Although the New York City Police (NYPD) can easily arrest you and send you to Central Booking for any misdemeanor or "E" felony, in certain circumstances they can, and will, give you a Desk Appearance Ticket (often called a "DAT" or "Appearance Ticket") instead. While you have still been arrested, whether your criminal lawyer secured this DAT for you or the police were just being reasonable in light of the allegations, you will be sent home after your fingerprints are taken. This blog entry addresses the "white paper" or "white ticket" that you were given and some routinely asked questions about what is contained therein.

What is the Physical Desk Appearance Ticket

Before breaking down your DAT or Desk Appearance Ticket, it is critical to understand that it is NOT the complaint or criminal papers that will ultimately be filed against you. Instead, the DAT is a note or document that merely informs you that you must appear in a particular court on a particular date. Should your name, address or even the offense charged be incorrect, it in no way invalidates your DAT. In fact, if you lose the Appearance Ticket it would not adversely impact the prosecution's case in any way. If you appear in New York City Criminal Court without this DAT, the court staff will locate the official criminal complaint against you. If you do not appear, on the other hand, a judge will likely order a bench warrant for your immediate arrest.

Understanding the Terms and Content of a Desk Appearance Ticket

There is an abundant amount of information that thrown into a New York Desk Appearance Ticket. Practically, speaking, much of it is not relevant to you, but is necessary for the court. One critically important piece information is the "OLBS Arrest-ID" which is found in the top right corner of a DAT just below the title of the document. This number starts with a letter. In Manhattan, for example, it starts with an "M." The significance of this number is that it is uniquely assigned to your case. If you lose your DAT, but have this number, your case can easily be tracked even if the spelling of your name is incorrect. Further, if there is an issue that you would like your criminal lawyer to address prior to your court date, he or she will need that arrest number when contacting the District Attorney's Office. Ultimately, once you appear in court, this arrest number is replaced or superseded by a docket number.

Another important piece of information is found on the left side. This is "Top Offense Charged." As noted above, the crime placed here will be for an "E" felony or a misdemeanor. Keep in mind that there is only a space for one offense. When you go to court, however, prosecutors can and may add additional crimes to the complaint. One of the more common examples is in the shoplifting context where NY PL 165.40 and NY PL 155.25 are usually charged together even though only one crime is placed on the Desk Appearance Ticket.

"At LOC," located just below the crime you are charged with, indicates the physical court building where you are required to appear. If you are retaining counsel you should make the court building clear. While this seems fairly obvious, some counties, such as Manhattan (New York County) and Brooklyn (Kings County), have community courts in different locations than their larger counterparts. In Manhattan that court is on West 54th Street and in Brooklyn it is located in Red Hook.

What Should You Do With Your Desk Appearance Ticket

If you decide you do not wish to retain counsel, bring your Desk Appearance Ticket to court with you on your appearance date. Usually, the court staff has set up a bin for you to drop off your DAT. Ultimately, if you do not have the means, a legal-aid attorney or other public defender-type counsel will be assigned your case. Because there may be dozens or over even over a hundred cases on in a given day, getting to court early is crucial. If you have assigned counsel, he or she will have an enormous amount of clients to speak with for the first time immediately before seeing the judge.

In the event you retain a New York criminal lawyer, speak with him or her about the process. However, your criminal attorney will likely tell you to wait for him or her to appear and your attorney will hand the DAT in to the court. By doing so you will not be placed with the other defendants waiting to be assigned an attorney. Again, speak to your own counsel about this process.

Do You Need an Attorney for a DAT

That decision is yours to make. Educate yourself on the law. Educate yourself on the crime you are charged with. What are the the collateral consequences of any type of disposition? Will your "public defender" have the time to explain this and have a full understanding of your case in the moments before you see the judge? If you later learn your deal was "bad," is there any real likelihood that you can withdraw your plea or disposition? Again, educate yourself thoroughly and consider vetting your case with counsel before walking into any courtroom alone.

To learn about the New York Desk Appearance Ticket process in great detail as well as the crimes commonly associated with DATs, please follow the links above or below.

Founded by two former Manhattan Assistant District Attorneys, the New York criminal lawyers at Crotty Saland PC represent those accused of misdemeanors and felonies throughout New York City and the neighboring counties.

Generally speaking, the practice of criminal law is neither scientific nor mathematical. While a New York criminal lawyer may be methodical in his or her dissection of legal issues and the use of prior cases decisions to prove a particular point of law, criminal law in New York is constantly morphing and growing. Whenever advocating for a particular point of law, having the most recent court rulings on the particular issue at hand is critical. It can make the difference between being charged "as is" or obtaining a dismissal or reduction of your case from a felony to a misdemeanor.

One area of New York criminal law where the principles above are illustrated is in the arena of New York Assault crimes. Essential to any New York Assault case, whether it be Assault in the Third Degree (New York Penal Law 120.00), Assault in the Second Degree (New York Penal Law 120.05) or Assault in the First Degree (New York Penal Law 120.10), is the existence of some form of injury. The threshold for this injury is "physical injury" in misdemeanor NY PL 120.00 crimes and "serious physical injury" for crimes involving the felony offense of NY PL 120.05. Whether or not the prosecution is able to prove "serious physical injury" as opposed to the lesser "physical injury" makes the difference between facing up to seven years in state prison or one year in a local or county jail such as Rikers Island (not that any institution is where you would want to be).

Before discussing a recent court decision addressing the prosecution's failure to meet its burden of establishing "serious physical injury," I want to take a moment to briefly define the two types of injuries.

Get kicked in the ribs resulting in a big purple welt that makes its painful to bend? That type of injury is of the lesser type. A fist to the face leaves you with a shattered eye socket that impairs your vision? That type of injury is felonious in nature. Simply put, a "physical injury" is one that causes substantial pain. "Serious physical injury," on the other hand, is an injury that is defined as a "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Obviously, the difference is tremendous.

In People v. Darryl G. Tucker, 103569, NYLJ 1202538370913, at *1 (App. Div., 3rd, Decided January 12, 2012), the defendant and his accomplices were convicted after trial of numerous Assault related offenses including those that required the victim to sustain a "serious physical injury." To that end, prosecutors established that the complainant had been stabbed eight times in addition to being punched and kicked. Clearly, prosecutors had an easy time proving their case because being stabbed must be "serious physical injury." How could a puncture wound merely be "physical injury?"

In its review, the Appellate court determined that despite the bloody stab wounds, these injuries did not rise to the level of "serious physical injury." At trial, a physician testified that at least seven of the stab wounds were "superficial." As further addressed by the Third Department Appellate Court:

"The most serious wound was approximately four inches long and 2½ inches deep and transected the victim's rectus abdominis muscle, but the bleeding was stopped with a few sutures. At the hospital, the victim was alert, never lost consciousness, was not in shock, no internal organs were punctured, his blood loss was not massive and his vital signs were essentially normal throughout his time in the hospital. The treating emergency room physician testified that the wounds collectively 'could have caused substantial risk of death,' but he did not further explain that opinion or state that the wounds actually did create such a substantial risk. The surgeon who sutured the wounds testified that it was 'possible' that the victim's collective wounds would have been fatal if the injuries had all gone untreated. But he also testified that had the most serious wound and the nearest wound to it been left untreated, they probably would not have been fatal. Considering the victim's actual injuries, rather than mere possibilities or what could have happened, the evidence was insufficient to establish that the victim's injuries created a substantial risk of death."

The Court further found that:

"The other categories of serious physical injury were also not established. The victim displayed his chest scars to the jury, and he also had scars on his back, but the record does not contain any pictures or descriptions of what the jury saw so as to prove that these scars constitute serious or protracted disfigurement (see People v. McKinnon, 15 NY3d 311, 316 [2010]). The victim testified that he took pain medication for a few weeks and continued to feel some pain thereafter, but that he was completely pain free about 2½ months after the incident. He testified that his injuries have affected his ability to throw a ball and swing a baseball bat, but he did not elaborate on these effects and he still intended to try out for his college baseball team. No medical evidence was submitted to link his diminished baseball skills to his injuries, as opposed to his reduced ability to practice after receiving his injuries. There was no proof of protracted impairment of health or function of bodily organs. Thus, the People failed to prove that the victim suffered a serious physical injury."

The above case is one which may be extremely valuable in an Assault allegation that may appear gruesome or nasty, but in reality is something far less. Here, the defendants were successful in challenging their convictions for non-misdemeanor Assaults. While your criminal lawyer may be able to apply the same legal argument to reduce Assault charges against you, keep the following in mind. A savvy prosecutor or Assistant District Attorney will often charge more than one theory of Assault or one crime in an indictment or arrest for an offense like this. For example, some of these crimes, which are equal to or even greater than a Second Degree Assault include, Attempted Murder and Criminal Possession of a Weapon. Even if an injury is merely "physical injury," in the right circumstances (or one might argue the wrong circumstances), an Assault charge is only one of many allegations an accused might face.

To educate yourself about the degrees of Assault and the elements of the crime, either follow the highlighted links above or search for content through the sites and blogs listed below.

New York criminal lawyers representing defendants accused of, arrested for or facing trial in violent crime cases, the former Manhattan prosecutors who founded Crotty Saland PC serve clients throughout New York City and the region.