New York Criminal Lawyer Blog

As a New York criminal attorney who works on behalf of clients in the criminal trial courts throughout the New York City area--from the boroughs of Brooklyn, Queens and Manhattan into the counties of Westchester and Rockland-- I pick up on the strategies employed by the respective District Attorney's Office. Equally important, having served as a Manhattan prosecutor for over seven years, I witnessed first hand Assistant District Attorneys pursuing these strategies. As I also saw them, I've noticed a trend amongst Assistant District Attorney's trying to corroborate the allegations in a complaint and further cases even where a complainant is not cooperative. A recent case, The People v. Joseph Valentine, 2009KN083896, NYLJ 1202516492758, at *1(Criml, KI. Decided September 8, 2011) is a great illustration of this trend and thus is a case worth examining in this blog.

Mr. Valentine was charged with Assault in the Third Degree pursuant to NY PL 120.00(1), Menacing in the Third Degree pursuant to NY PL 120.15, Criminal Obstruction of Breathing or Blood Circulation (choking) pursuant to NY PL 121.11(a), and Harassment in the Second Degree pursuant to NY PL 240.26(1). The arresting officer had responded to a "radio-run" (911 call) for a family dispute. The complainant, Ms. Ingram, who is the defendant's girlfriend, was outside of the house hysterically crying and explained to the officer that Mr. Valentine had choked her.

As you may suspect, domestic violence Assault cases, such as this one, can often be difficult to bring to trial because the victim/complainant will become uncooperative. The personal relationship between the victim and the defendant often leads to the victim changing their mind and not wanting charges to be "pressed." The ADA's (prosecutors) may still want to pursue the criminal charges, especially if they believe the defendant is a threat to continue the abuse. Nevertheless, in order to bring the case to trial the People must convert the initial complaint (in this case, the charges Ms. Ingram laid on Mr. Valentine in hysterics to the arresting officer) into an "information, which is a formal written accusation listing the offenses charged supported by non-hearsay allegations, which if true, establish every element of each of the offenses charged.

In Valentine the ADA did not have the cooperation of Ms. Ingram. All they had was the statements by the arresting officer retelling Ms. Ingram's initial verbal complaints. On its face, this would appear to be hearsay and thus not enough to support the allegations. [Remember, Hearsay is an out of court statement by a person, offered to prove the truth of the matter asserted.] However, as I mentioned at the outset, there is a strategic trend amongst the ADA's in the New York City area criminal courts, which was employed in this case. In Valentine, the People made a motion "to retain the charges on the ground of an excited utterance exception to the hearsay rule." That is, the prosecution argued that while the testimony of the officer reiterating the statements of the victim, Ms. Ingram, are hearsay, they should be allowed because they actually were "excited utterances."

Hearsay rests on the premise of allowing the opposition an opportunity to cross-examine the speaker so the jury can weigh the truth of a statement. The logic behind the excited utterance exception is that if someone blurts something out in the heat of a moment ("contemporaneously with the event") that statement can be trusted because the speaker did not have an opportunity to reflect enough to make up a lie.

Despite the prosecutor's contention, the defense argued that the statements in this case are not an excited utterance and moreover, even if the statement about being choked was accepted it would not corroborate all of the elements of all the charges [the choking statement would only corroborate Obstruction of Breathing or Blood Circulation- NY PL 121.11. The court felt that in this Valentine case, the excited utterance could not apply. The court assessed the nature of the event, the amount of time that elapsed between the occurrence and the statement and the activities of the declarant between the event and the statement. Here there was no real proof of how much time elapsed between the radio run of domestic violence and the officer's arrival at the scene. Moreover, just because the complainant was "crying, upset, afraid and hysterical" did not necessarily mean that she had no time to reflect or had no opportunity to fabricate a story. Therefore the People failed to show that the statements were not the product of studied reflection or fabrication, and the charges could not be supported.

It is important to note that the court here correctly recognized that prosecutors can use the excited utterance in lieu of a supporting deposition in order to convert a complaint to an "information." However, the court wisely used restraint in applying this principle. The prosecution must show that they statement was truly an "excited utterance."

To learn more about any of the crimes mentioned in this blog entry, follow the highlighted links above or below.

Crotty Saland PC is a New York City criminal defense firm representing those target or arrested for crimes throughout the region.

In a previous entry, I addressed the crime of Assault in the Third Degree pursuant to New York Penal Law 120.00 as well potential deals or offers one could expect in New York City courts (as well as elsewhere in the state). Once again, if you intentionally (or recklessly) cause physical injury to another individual and thereby cause substantial pain, you have perpetrated this misdemeanor crime. Although there are very important nuances to this statute that can and should be addressed by an experienced New York criminal lawyer, the purpose of this blog entry is not to address the crime itself, but deals one might expect from the prosecution.

Outside of an outright dismissal, procedural dismissal ("speedy trial" and CPL 30.30), or acquittal at trial, there are few options other possible dispositions beyond what was previously addressed. The three remaining dispositions are as follows:

Disorderly Conduct (New York Penal Law 240.20)

Like Harassment in the Second Degree, Disorderly Conduct (NY PL 240.20), is a violation punishable by up to 15 days in jail. A plea to this violation will not result in a criminal record. The advantage of this plea over a Harassment plea is that a plea to Disorderly Conduct will require that you admit that you were disorderly as opposed to harassing and aggressive in nature. In short, there is not admission that you ever threatened or touched anyone or that there was a particular target of your actions. Even more relevant, however, a plea to Disorderly Conduct will seal (barring the plea agreement to waive sealing). Therefore, the record of the plea should not remain public. Unfortunately, this is not always the case. Sadly, as observed from personal experiences dealing with clients and from anecdotal evidence from those who inquire about our services as criminal attorneys in New York, often time (I cannot say a particular percentage), a Disorderly Conduct and the underlying arrest will not seal fully. As a result, an employer, for example, may learn about this non-criminal conviction and underlying arrest after a background check. Having said that, if an ACD (as will be described below) is not available, a trial is not a viable option and there is no procedural defense, then a Disorderly Conduct will end the case without a criminal conviction.

Adjournment in Contemplation of Dismissal (ACD)

Barring an outright dismissal, a procedural speedy trial dismissal or an acquittal at trial where you are exonerated, an Adjournment in Contemplation of Dismissal is the best deal one can get in a New York Assault case. I don't believe many, if any, criminal lawyers would dispute this. Not only is there no admission of wrongdoing in any capacity, but if you stay out of trouble for six months your case will not just be dismissed, but sealed as well. In the event the charge of Assault is domestic in nature, the ACD will run for one year. Keep in mind, that an ACD, granted pursuant to New York Criminal Procedure Law 170.55, results in your underlying arrest becoming a "nullity." While in no way should this blog entry be construed as advice in your particular case, you could arguably answer "no" to the question of whether you had ever been arrested. Clearly, before answering such a question in this manner, discuss your answer with you own criminal attorney.

The above synopsis, as well as the previous blog entry, on potential offers in a New York Third Degree Assault case (NY PL 120.00) is a general guideline to potential deals. Which offer, if any, is made in your case is likely a combination of the facts and evidence, your criminal history and your criminal defense lawyer's strategy for your defense. Whatever offer is made to you, it is important to educate yourself and consult with your attorney on the ramifications in terms of careers, licenses, immigration, etc., before agreeing to anything.

To read further practical information on Assault crimes in New York including statutes, legal decisions and cases in the news, please follow the highlighted link above to the CrottySaland.Com website and NewYorkCriminalLawyerBlog.com. Additional information on the NewYorkCriminalLawyerBlog.Com is available to further address and define Disorderly Conduct and NY CPL 170.55.

Two other excellent resources for those who received New York City Desk Appearance Tickets for NY PL 120.00 are the NYDeskAppearanceTicket.Com website as well as the Desk Appearance Ticket section of CrottySaland.Com.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing those accused of Assault and other crimes in the New York City region.

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

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

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

"Physical injury" means impairment of physical condition or substantial pain. "Serious physical injury," however, means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. As you can see, there is a vast difference between the two. Again, the end result is not the issue, but whether or not Fuller struck Rosa with the intent to cause "physical injury" or "serious physical injury."

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

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

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

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

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

The New York criminal lawyers at Crotty Saland PC are pleased to announce the dismissal of all charges against a client in a New York County (Manhattan) Criminal Court. Our client had been arrested for and charged with Assault in the Third Degree (New York Penal Law 120.00), Endangering the Welfare of a Child (New York Penal Law 260.10) and Harassment in the Second Degree (New York Penal Law 240.26). Unquestionably, this dismissal was the best result our client could have hoped for.

Police arrested our client after the father of her child claimed she attacked him in a hospital room where the child was receiving medical treatment. Unfortunately, the child suffers from a serious physical issue. The complaint against our client alleged that she struck the "victim" with her closed fist and elbow in his face while also scratching his face and neck. Because the six month old child was in the hospital room at the time of the alleged altercation, our client was also charged with Endangering the Welfare of the Child.

From the onset of the case, the New York criminal defense attorneys at Crotty Saland PC aggressively denied the charges against our client in their entirety. We not only informed the District Attorney's Office that the complainant was trained in martial arts, but he had also left numerous voice messages on our client's mobile phone prior to the alleged incident. One of those messages stated in substance that our client would get what was coming to her. Although not directly relevant to the incident, we established through other records and evidence that our client was almost the exclusive care provider for their daughter. Prosecutors were willing to move for an adjournment in contemplation of dismissal (ACD) whereby the case would be dismissed in one year (this was a "domestic" case). After denying that offer, we asked for a trial. Not only was our client willing to testify that she never did what was alleged, we knew that the only "evidence" prosecutors had was the word, or lack thereof, of the complainant. This lack of strong evidence on the part of prosecutors and corroboration that the complainant had recently "threatened" and harassed our client through emails and phone calls, was convincing enough for prosecutors to move to dismiss the entire case against our client.

As always noted in each case result achieved by Crotty Saland PC, whether an allegation is violent or white collar in nature, each case is unique. How you decide to proceed in your specific case is something you should thoroughly vet with your own criminal attorney. A past result by one attorney in one case cannot guarantee a similar outcome in the future. Whether your defense is mitigation, challenging the admissible evidence, trial or some other approach, work with your attorney to put yourself in the best position possible.

For comprehensive information on the crimes of Assault and Endangering the Welfare of a Child as well as information on the violation of Harassment, please select the highlighted links above. Additional information on these and other crimes, as well as analysis of newsworthy cases and legal decisions, can be found through a search on the New York Criminal Lawyer Blog.

Founded by former Manhattan prosecutors who served in the New York County District Attorney's Office, Crotty Saland PC represents the accused throughout the New York City region.

Manhattan District Attorney Cyrus Vance, Jr. is in an unenviable predicament. One one hand he has Oscar Fuller, a man with a criminal record who is not a particularly sympathetic fellow, and in the other, Lana Rosas, a petite woman potentially on the edge of death or a vegetative life. Politically, "throwing the book" at Fuller is a no-brainer. Yet, is the charge of felony Assault in the Second Degree, New York Penal Law section 120.05(1), truly the right charge in this case or is it really just a reach? In DA Vance's defense, because of the extent and nature of the injury to Ms. Rosas, he likely had no other choice but to present the matter to a Grand Jury to make the charging decision - and it did just that. The Grand Jury indicted the defendant on the charge of Assault in the Second Degree, a felony. The question that now has reared its head is whether the sadness and despair of this case played too great a role in the grand jury's decision making process or did an objective view of the evidence dictate that Mr. Fuller's actions were felonious?

Before proceeding any further, there are a few statements I must make. First and foremost, I do not think many people can grasp the pain that has fallen upon Ms. Rosas and her family. Regardless of the criminal charges, they have all suffered and we all hope that she can recover to live a normal life. Second, none of us, outside of those intimately involved in the case, know the evidence and facts beyond what we read or see in the local media. Because of this, in assessing this case, I will address the blog entry in a more vague approach while trying to tie it back to Mr. Fuller's case. That is, if a person strikes another person once with his fist, and as a result, the victim suffers a horrific injury such as as swelling in the brain and a resulting coma, is the appropriate charge a felony or misdemeanor Assault?

In analyzing any Assault case, It is critically important to understand the intent element of the varying degrees of this offense even assuming the injury is extensive. Assault in the Third Degree, New York Penal Law 120.00(1), occurs when one has the intent to cause physical injury and actually causes physical injury to the person he strikes. Assault in the Second Degree, New York Penal Law 120.05(1), occurs when one has the intent to cause serious physical injury and actually causes serious physical injury to the person he strikes. The difference between the "A" misdemeanor crime punishable by up to a year in jail and the "D" felony offense punishable by up to seven years in state prison hinges on the word "serious."

Generally, "physical injury" is often defined as substantial pain or an impairment of one's physical condition. This type of injury can be as insignificant as a bloody fat lip that hurts pretty badly for a couple of days. "Serious physical injury" on the other hand 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, these definitions are drastically different.

Keeping the above definitions in mind, if person one, in this case a man, punches a much smaller person two, in this case a woman, only once, what is the appropriate charge? Since more facts are needed, let's say this one punch causes the women to fall to the ground, as in the Fuller case, and strike her head on the concrete resulting in a coma and life long brain damage. Alternatively, let's say the woman never struck her head on the ground, but the one punch to the nose or head caused the same result. Again, what is the appropriate charge?

Clearly, the end result is "serious physical injury." But as we noted earlier, one's intent is critically important and an element of this crime. Did the man who threw one punch have the intent to "merely" cause physical injury such as a black eye or a fractured nose or did he have something much more devious in mind such as shattering an eye socket causing blindness or, as in our facts, brain trauma and a coma?

Fortunately, there is no machine that can read all of our minds and ascertain what we are thinking on a regular basis. Unfortunately, intent is often hard to determine. Can one punch in the heat of the moment be the basis of the intent to cause "serious physical injury?" Objectively, in your average street altercations (if there is such a thing as "average"), are combatants looking to disfigure or destroy the organ of their adversary? Regardless of the answer to these questions, intent can be formed in a moment and should not be confused with pre-mediation. But without more than one punch, proving someone had the intent to cause serious physical injury with that life altering strike is a difficult task (that is not to say it should not be pursued).

Some ground level questions that should be asked might be as follows:

What, if anything, did the defendant say before and after he threw the punch?
Did the defendant strike the complainant after she was on the ground"
What was the defendant's posture after? Did he stand over her, mock her or get down in her face and curse her?
Was the punch a full on swing or a smaller jab?
Was the woman standing up when she was struck or was her head close to a wall or ground where the argument can be made that he knew it would "crash" into the concrete?

Looking at this case from the outside, we all feel for the complainant and her family. Subjectively, we all probably would agree as sons and daughters and mother ad fathers that potentially one year in jail on a Third Degree Assault in exchange for putting someone in a coma is "not enough." However, for better or for worse, the law is the law. If Mr. Fuller intended only to punch Ms. Rosas once and giver her a black eye or big welt on her head, but instead she suffered this horrific injury, the answer is clear. Without intending to cause this "serious physical injury " he is only liable for misdemeanor Assault in the Third Degree. Whether the evidence before a jury will establish otherwise or whether that same jury is swayed by the extent of the injuries is something that only time will tell.

Extensive information on the varying degrees of Assault in New York can be found on the Crotty Saland website as well as the New York Criminal Lawyer Blog (review the section for Assault in both).

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 in all states of criminal cases from investigation through trial.

Whether you were arrested for Third Degree Assault (New York Penal Law 120.00) or you were given an Assault Desk Appearance Ticket (DAT) in the New York City area, the potential offers or deals are ultimately the same. Certainly, one New York criminal defense attorney may have a different approach to get the best deal over another lawyer, but the potential crimes and violations you may obtain are all found in the New York Penal Law.

Generally, Assault in the Third Degree (NY PL 120.00) is a misdemeanor punishable by up to one year in jail. In New York City (Manhattan, Brooklyn, Queens and the Bronx), that year for an Assault arrest and conviction would be served on Rikers Island. Obviously, your New York criminal lawyer will advocate fiercely to prevent that from happening. So, assuming that you cannot beat the case on factual, legal or procedural grounds, what are the potential offers you can expect to discuss with your New York criminal defense attorney? The following is a list of those dispositions:

Attempted Assault in the Third Degree (New York Penal Law 110/120.00)

By way of background, whenever 110 appears before a criminal statute, that signifies the crime is an attempted crime. Generally, an attempted crime is a lesser included offense of the actual crime. In the realm of Assault, Attempted Assault is a lesser crime that is automatically a lower crime of the completed crime of Assault. In practical terms, an Attempted Assault is a "B" misdemeanor and is punishable by up to 90 days in jail. While it is obviously a lesser crime compared to Assault, a plea to this offense would still give you a criminal record that is and will remain public. It is very rare that an Attempted Assault is a "good deal" where you are charged with Assault in the Third Degree as the most serious offense. Having said that, each case is unique and needs to be thoroughly discussed with your own counsel.

Harassment in the Second Degree (New York Penal Law 240.26)

Harassment in the Second Degree (NY PL 240.26) is violation and not a crime. This means that if you were convicted of this offense and nothing else, you would not have a criminal record. Clearly, this type of plea is exponentially better than a plea to an Attempted Assault. While you will admit on the record that you struck or subjected another person to physical contact, part of your allocution (admission to the elements of the crime) will not include any language that you intended to cause that person and in fact caused that other person physical injury or substantial pain. To sum up, this type of plea avoids a criminal record and admission of the criminal intent as described. Harassment in the Second Degree is punishable by up to 15 days in jail.

The major drawback to Harassment in the Second Degree is that it does not seal like some other violations. This means that the record of your plea and the conviction may be available to those seeking information about your background.

The potential disposition or offers in an Assault case as listed above do not stand alone. A prosecutor could require that you take an anger management program, serve probation or complete community service. Even worse, jail could be part of that plea. All of this can be negotiated in some capacity. The stronger your potential case is and weaker the prosecution's, the more favorable the outcome will be as long as your New York criminal defense attorney has the ability to negotiate and advocate on your behalf. If you are arrested and charged with any degree of Assault in New York, including Assault in the Third Degree, consult with a New York criminal lawyer who can address your specific evidence and determine if fighting the case through trial, working out a deal or some other defense is the best thing for you.

A second entry dealing with other potential offers found in the New York Penal Law will be posted shortly. This second entry will deal with the more favorable and non-criminal dispositions including Disorderly Conduct, the Adjournment in Contemplation of Dismissal (ACD) and the Family Adjournment in Contemplation of Dismissal (ACD in the domestic context).

Crotty Saland PC represents the accused in Assault allegations and arrests throughout the New York City area, The former Manhattan prosecutors who started the criminal defense firm have successfully defended clients charged with Assault throughout the region (prior results do not guarantee future outcomes).

Extensive information on Assault crimes in New York can be found through the highlighted links. Moreover, extensive information on these an other crimes can be found on the website as well as the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) where you can find commentary on cases in the news, legal decisions and statutes found in the New York Penal Law.

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be "bumped up" to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a "dangerous instrument." As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as "dangerous instruments" where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a "deadly weapon" or a "dangerous instrument," then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a "deadly weapon" or "dangerous instrument."

Defining Dangerous Instrument

The law defines "dangerous instrument" as any type of object or substance. "Dangerous instrument" means any instrument, article or substance, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing a serious physical injury or even death.

A question that New York criminal defense lawyers, prosecutors and judges often face, however, is for practical purposes, what type of instrument fits this definition? A shoe? A garbage pail? A knife? How about a Sony Playstation?

While it might seem comical to ask such a hypothetical, a Richmand County (Staten Island) Criminal Court Judge just ruled on this exact issue. In People v. Jermaine Scott, 2010RI002291, the defendant was alleged to have intentionally struck a woman on her head with the Sony Playstation gaming console during a fight. After reviewing the law, the court found that the Playstation console was a dangerous instrument in this context. The court reasoned:

"It is...the manner in which the instrument is used, not its inherent nature, which makes an object a dangerous instrument. People v. Carter, 53 N.Y.2d 113 (1981); People v. Wilkerson, 184 Misc.2d 949 (Crim. Ct. New York Co. 2000). An innocuous object intentionally used to injure or kill is, therefore, a dangerous instrument pursuant to statute. People v. Krotoszynski, 43 A.D.3d 450 (2nd Dept. 2007) (television remote control used as a dangerous instrument)."

Obviously, the law is clear. The instrument in question need not be a gun or a knife, but something less threatening in nature as long as it is capable of and threatened to be used in a manner to cause serious physical injury or death.

For additional information on the laws regarding New York Assault crimes and New York Weapon laws, please follow the highlighted links. Additional information ranging from legal decisions to statutes can be found on the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com

Founded by two New York criminal defense lawyers and former Manhattan prosecutors, Crotty Saland PC represents clients from criminal investigations and arrests through hearings and trials in New York City and the suburban counties.

It is unquestionably the best outcome or as close as one can get. Crotty Saland PC, a Manhattan based criminal defense firm founded by two New York criminal defense attorneys and former Manhattan prosecutors, obtained a dismissal of all charges against a client accused of Assault in the Third Degree (New York Penal Law 120.00). Our client, a doctor, was alleged to have "pummeled" another man in a dog run after a dispute involving their dogs. The complainant had two alleged "witnesses," actually friends, who claimed they saw the entire incident. Although the complainant had no visible injuries (we requested picture numerous times to no avail) and was seen in fine health the following day by witnesses not tied to either party, the prosecution was bent on going forward. Compounding matters, the complainant's personal injury attorney called our client within days to see if our client wanted to settle to avoid a lawsuit (he received a resounding "no").

Fortunately, at least three or four independent witnesses (not friends with either party) saw the incident and asserted that our client never struck anyone. Despite providing these witnesses to the prosecution, the District Attorney's Office only offered a Harassment violation. Because our client did no wrong and the complainant saw him as a deep pocket for his lawsuit (not only did the "victim" fail to tell the prosecution he was suing, our investigation revealed this was not the first time he sued someone else or was involved in litigation), our client refused this offer.

As the case proceeded in its regular course, Crotty Saland PC filed motions to challenge the facial sufficiency of the Assault charges against our client as well as to challenge certain evidence. Although the prosecution dug their heals in an amateur fashion, we believed there were legal grounds for this dismissal...and we were right. Despite the prosecutions inability to see the real facts from independent witnesses and to have the courage to dismiss the case, the court found the legal basis for what we firmly believed should have been the outcome all along - the dismissal of the entire criminal case.

While each case is unique and Crotty Saland PC cannot guarantee future results based on this case, one thing is clear. The New York criminal defense lawyers at Crotty Saland PC strive to provide our clients with top results and will aggressively fight within the bounds of the law to do so.

For further information about Crotty Saland PC, please go to our website at new-york-lawyers.org. Additional information about Assault in the Third Degree and violent crimes can be found there as well or on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) where extensive information about the New York Penal Law, legal decision and newsworthy cases can be found.

The New York criminal lawyers at Crotty Saland PC represent clients in Manhattan, Brooklyn, Queens and throughout the rest of New York City and the region.

One of the most common crimes prosecuted by Assistant District Attorneys in New York (Manhattan, Brooklyn, Queens, Bronx and beyond) is the offense of Assault in the Third Degree pursuant to New York Penal Law 120.00. When one is accused of Assault in the Third Degree, the prosecution must set forth certain elements. One critical element is that the complainant or victim must have suffered physical injury. Generally, "physical injury," as defined under section 10.00(9) of the New York Penal Law, is an "impairment of physical condition or substantial pain." Having presented this definition, is a complaint sufficient accusing you of Assault in the Third Degree if it merely states that the complainant suffered "substantial pain" as a result of your actions, but without "fleshing out" the "substantial pain?" Is more needed for the prosecution's case to survive a motion to dismiss from your New York criminal defense attorney?

According to a Manhattan Criminal Court Judge, merely asserting that a complainant suffered "substantial pain" without more is not sufficient. In People v. A. S., decided May 11, 2010, the complaint against the accused alleged as follows:

"Deponent [a police officer] is informed by a person known to the District Attorney's Office [the complainant] that said defendant approached said informant and shoved and hit said informant about the body with his fist, causing substantial pain."

In analyzing whether or not to dismiss the complaint, the Court noted that "'petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' are not acts that constitute assault. (See Philip A., 49 N.Y.2d at 200 (quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330); People v. Chiddick, 8 N.Y.3d 445, 448 [2007].)"

Upon reviewing the complaint and applicable case law, the Court stated:

"In the instant matter, the court must consider whether the allegations and all reasonable inferences therefrom are sufficient to establish that the complaining witness experienced substantial pain and therefore suffered physical injury. 'Substantial pain' is 'more than slight or trivial pain' but 'need not...be severe or intense.' (Chiddick, 8 N.Y.3d at 447.) The Court in Chiddick identified 'several factual aspects...that can be examined to decide whether enough pain was shown to support a finding of substantiality[,]' including: (1) the injury that the defendant inflicted, viewed objectively, (2) the complaining witness's subjective description of what he or she felt, (3) whether the complaining witness sought medical attention, and (4) the motive of the offender. (Id. at 447-48.)

Here, the only allegation as to the alleged assault is that the defendant shoved and hit the complainant about the body with his fist. The accusatory instrument alleges that this caused the complaining witness substantial pain. The court concludes that the utter absence of any description of the injuries allegedly experienced by the informant/complainant renders this accusatory instrument defective, the element of physical injury not being sufficiently alleged."

The above decision by the court to dismiss the complaint against the defendant in this matter was based in both law and facts as set forth in that particular complaint. Whether this decision as well as the Chiddick case are applicable in your criminal matter is something that cannot be addressed through a blog entry, but an issue that you should consider discussing with your own legal counsel.

For more information on the crime of Assault in New York, please follow the highlighted link. Additional information can be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland PC is a New York criminal defense firm. Founded by former Manhattan prosecutors, the New York criminal defense lawyers at Crotty Saland PC represent the accused throughout the New York Cit region.

Criminal defense attorneys and lawyers throughout New York City regularly deal with the various crimes relating to and degrees of Assault found in Article 120 of the Penal Law. The most common, Assault in the Third Degree ( New York Penal Law 120.00), is a misdemeanor offense punishable by up to one year in jail. A more serious crime, Assault in the Second Degree (New York Penal Law 120.05), is a felony offense punishable by up to seven years in state prison. Although it will be discussed further below, one of the more common reasons why an intentional misdemeanor Assault in the Third Degree is "elevated" to a felony Assault in the Second Degree is because a "dangerous instrument" is used during the commission of the lesser crime. While there are various legal reasons to raise the level of the crime, where that basis is the use of a "dangerous instrument," the actual injury inflicted for the misdemeanor and felony level crime is no different. As will be explained below, if you punch someone in the eye and give him a black eye that swells shut you may face the misdemeanor crime. If you do the same thing, but use the heel of your shoe, a baseball bat or even the door of your car, your crime may be elevated to a felony because your use of a "dangerous instrument." With this in mind, I will first deal with the applicable definitions of the crimes of Assault in the Third and Second Degrees as well as what constitutes a "dangerous instrument." Once that is done, I will address a few court decisions that have addressed when an instrument is considered "dangerous" under the law and, as a result, and individual had his or her misdemeanor Assault charge raised to a felony offense.

NY PL 120.00(1) - Assault in the Third Degree

"A person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person."

NY PL 120.00(2) - Assault in the Second Degree

"A person is guilty of Assault in the Second Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument."

NY PL 10.00(13) - Definition of Dangerous Instrument

"'Dangerous instrument'" means any instrument, article or substance, including a "'vehicle'" as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury."

Now that you have the definitions, continue reading for the analysis...

Continue reading "New York's Assault in the Second Degree & Your Criminal Defense: How Prosecutors Can "Bump Up" Assault in the Third Degree (NY PL120.00) to a Felony of Assault in the Second Degree (NY PL120.05(2))" »

A Queens County Supreme Court Judge acquitted Hiram Monserrate of felony Assault and convicted the embattled state senator of Assault in the Third Degree, a misdemeanor. More specifically, the judge found him guilty of New York Penal Law 120.00(2). According to the New York Penal Law, an individual is guilty of 120.00(2) when he or she recklessly causes physical injury to another person. This offense differs greatly from 120.00(1) which requires that a person intentionally causes physical injury to another person. Regardless of the theory of the case, anyone convicted of a misdemeanor Assault faces up to one year in jail. However, a judge has the discretion to sentence that person to no jail at all. While the court has not sentenced Senator Monserrate, a full order or protection was issued thereby preventing him to have any contact with the victim of his crime.

While I did not sit in the courtroom listening to the testimony, the decision rendered by the court does not surprise me. If Senator Monserrate had been convicted of the felony, the state would have been thrust into terrible turmoil and a horrendous stalemate. Removing Senator Monseratte from his seat would have resulted in 31-30 standoff in the state senate. Did this fact impact the court's decision? Did the judge "split the baby" by finding Mr. Monserrate guilty of a crime, but a significantly lesser offense? Are we over analyzing his decision and, at bottom, the facts just did not support the People's case?

What is slightly confusing, and in my opinion gives credence to the political and legislative implications having an impact on the court's decision is the following. If the court truly believed that the People did not prove the intentional Assault beyond a reasonable doubt, then why did the court issue a full order of protection preventing Senator Monserrate from having contact with the victim? If his actions were reckless, as opposed to intentional, then shouldn't the court permit the two, as consenting adults, to continue their relationship? If a person intentionally assaults another it is clearly understandable that a judge would want to make sure a victim, domestic or not, is safe. An order of protection or restraining order may be necessary in those situations. However, if the judge in the Monserrate trial found that the defendant acted recklessly, i.e., it was an accident, then there is an argument to be made that there is no real reason to issue an order of protection. Was there evidence presented that indicates he is a dangerous man who has hurt her in the past? Was there evidence that Senator Monserrate has injured her intentionally or did so in this case? If there was, then why was he not convicted of the intentional Assault crime?

Taking this theory further, one must understand that under New York law, if one perpetrates an intentional misdemeanor Assault, but uses a dangerous instrument (here a glass), then the crime is technically "bumped up" to a felony offense. Following this out further, if the judge found that Monserratte acted intentionally, then as a matter of law he would have to find him guilty of the felony Assault as a "bump up." One step further would lead us to the legislative implications in New York State as discussed above.

It is interesting to note that the judge found that Senator Monserrate did not act recklessly in slicing the victim, but acted reckless and caused physical injury when pulling her away from the railing and to the hospital. Hmmm....how is it that the court found that his actions cutting the victim were not criminal at all, but his alleged attempt to help her by dragging her to the hospital was criminal? Not only does that appear to be inconsistent, but how did his dragging her away cause her substantial pain or a physical injury? Wasn't that sustained by the fact that a glass cut up her face?

Despite my conclusions, It is very easy to be an arm chair quarterback of the criminal justice system after the fact. We all like to draw our own conclusions even though the vast majority of us were not in that courtroom. Certainly none of us were there the night Senator Monseratte assaulted his victim. All of us, regardless of the crime, should be afforded the benefit of the doubt. After all, it is the People who have the burden to prove their case and we are all safely wrapped in a blanket of innocence until they establish otherwise. All of us, including Senator Monserratte, rightfully deserved that same inference. Unfortunately for Senator Monserratte, however, a judge has stripped him of that presumption of innocence where he now awaits his fate at sentencing for recklessly assaulting a woman.

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

Another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the "serious physical injury." Unlike mere "physical injury" such as a black eye or bloody cut lip, "serious physical injury" requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause "serious physical injury," but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused "serious physical injury," then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

The nuances of each and every Assault charge in the New York Penal Law are extensive. It would take hours of discussion to go through each. That being said, it is imperative that the time is spent analyzing the specific charges levied against you or a loved one to make sure that the elements of each crime charged are satisfied. The skilled criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC will take the time to conduct this thorough examination and take you through the process in order to present the strongest defense and set forth the most compelling arguments to preserve your rights, liberty and integrity. We know that each case requires this attention and our results speak for themselves.

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Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone's lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it...accomplice liability.

Under New York law, one is liable for the acts of another when:

"When one person engages in conduct which constitutes an offense [Assault in the third Degree in our hypo], another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

To flesh this out a little, I will address this statute and concept in practical terms and in connection with a recent Manhattan Criminal Court decision. In People v. Sean Everson, 2009NY005871, decided, July 21, 2009, an information alleged that the defendant and others surrounded the complainant preventing him from leaving the location of the incident. Another individual, not the defendant, then struck the complainant in the stomach causing substantial pain. The defendant, however, did not strike the complainant.

The criminal defense attorney in Everson argued that the information or complaint was facially insufficient because it did not identify the defendant as the person who intentionally struck and injured the alleged victim. More specifically, the defendant claimed that there was "no causal connection between the alleged assault and the defendant's conduct of surrounding" the complainant. Furthermore, the attorney argued that the information was not facially sufficient because it did not set forth that "the defendant surrounded the informant with the intent of causing physical injury, or that the defendant's actions enabled or encouraged the unapprehended individual to assault" the complainant. Unfortunately for Mr. Everson, the court disagreed.

The courts reasoning after the jump...

Continue reading "Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00)" »

Crotty Saland PC, one of the top New York City and Manhattan based criminal defense firms, is pleased to announce the dismissal of the criminal charge of Assault in the Third Degree, pursuant to NY Penal Law 120.00(1), against our client. The case, a difficult one to defeat, involved an alleged altercation between our client during a "road rage" type incident.

After our client's car was struck by the complainant's vehicle, our client, driving a mini-cooper, confronted the complainant over the incident. Our client exited the mini-cooper and approached the other vehicle. To the "big" surprise of the complainant, the man who stepped out of the mini-cooper was 6'10 and 320 pounds (I can't speculate how he got into that mini-cooper). As the incident unfolded, the police claimed they observed our client strike the complainant through the window of the car. Ultimately, our client was arrested.

Despite the "big" issues in the case, the case in its entirety was dismissed after almost eight months of legal wrangling. Although it took some time, the client and his family were more than pleased with the outcome.

If you or a loved one is in need of an experienced criminal defense lawyer for a violent or white collar crime, contact the criminal defense attorneys and former prosecutors at Crotty Saland PC.

NY criminal defense lawyers and attorneys who handle Assault cases in New York City should take notice. In People v. Sergio Garcia, 2009NY017018, a Manhattan Criminal Court Judge recently upheld the facial sufficiency of a complaint alleging Assault in the Third Degree, pursuant to Penal Law 120.00(1), where the defendant "punched [an officer] in the chest, thereby causing [that officer] to appear to lose his breath momentarily."

According to Penal Law 120.00(1), a person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person. Additionally, physical injury requires impairment of physical condition or substantial pain.

In finding the complaint against the defendant sufficient, the court stated that:

"Causing someone to be unable to breath, albeit momentarily, clearly supports an impairment of a person's physical condition, i.e. - breathing, which in the case at bar is directly attributable to the defendant's alleged actions. In the medical field (and as every First Class Boy Scout is trained) it is well settled that among the three most exigent medical "hurry cases" for first aid purposes are 1) heart attack, 2) severe bleeding and 3) impairment of breathing. Such conditions are considered to be potentially life threatening as they relate to fundamental systems necessary to the continuation of bodily function. The even momentary compromise of any such function, is of great concern to the overall integrity of the human body. Such compromise therefore clearly fits within the meaning of the statue."

It is important to note that although this case extends the definition of "impairment of physical condition," it is not a case that is controlling on other courts in Manhattan or other jurisdictions such as Brooklyn or the Bronx. In other words, this decision is not an appellate decision that binds lower courts in any New York City court. Nonetheless, it is an important decision that at a minimum sets forth the idea that one must not suffer a broken nose, bloody lip or black eye to be the victim of Assault in the Third Degree under the law in New York. Clearly, the bar dictating injury may be much lower.

Because courts can view facts and the law differently even within the same building, it is imperative to be represented by experienced criminal defense attorneys who, like the former prosecutors at Crotty Saland PC, are able to assess the facts before them, develop a plan of attack and implement a strong and viable criminal defense.

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