New York Penal Law 120.00 is New York’s misdemeanor Assault crime. As a result, any time a complainant or alleged victim makes an claim that another person struck, hit, punched, etc., him or her, prosecutors will routinely add Third Degree Assault to the list of crimes on a criminal court complaint. Similarly, Second Degree Harassment, New York Penal Law 240.26, is a violation that is not a legal “lesser offense,” but an offense nonetheless that Assistant District Attorneys will throw at the accused. Because PL 120.00, a misdemeanor carrying a sentence of up to one year in jail, is a gravely concerning charge whether by Desk Appearance Ticket or full on arrest and processing, it is imperative to do your best to challenge your arrest at every stage of the criminal process well before you on trial. One of the means to do so at the earliest stage is for your criminal defense attorney to file a motion arguing that the complaint against you is legally of facially insufficient to support the elements and crime of Assault in the Third Degree. On avenue your criminal lawyer may pursue is arguing that on the face of the complaint the prosecution failed to establish that as a result of your alleged actions, even if true, you caused the “victim” to suffer a physical injury and substantial pain.
I am not a free lawyer, but that does not mean I do not handle pro bono work or represent individuals who do not have the means to retain an experienced New York criminal lawyer. Simply, everyone needs and should be entitled to quality representation by an attorney especially in the context of a life altering arrest. After meeting with a woman who was unquestionably the victim of domestic violence in both criminal and “merely” mentally abusive form, Crotty Saland PC took her case in New York City Criminal Court. Despite the public lawyer assigned to her case advising that she had a difficult path ahead, our client maintained her innocence in the face of charges including Third Degree Assault (NY PL 120.00) and Second Degree Aggravated Harassment (NY PL 240.30). While it was unlikely she would see any jail time even though the law allows up to one year in prison, any finding of wrongdoing or assertion that she assaulted and harassed her partner was unacceptable. Fortunately, through diligence, time and effort, Crotty Saland PC secured a complete dismissal of all charges.
Sometimes bad things happen to good people. When that bad thing is being accused of a crime, arrested, hauled into a precinct, fingerprinted, and thrown before a judge, the consequences to your mental state, career and outlook on life can be devastating. If a misdemeanor accusation is horrendous, a felony arrest is exponentially worse. It doesn’t matter if this happens to you in Manhattan, Brooklyn, Westchester, or any city, county or municipality in New York State (or elsewhere for that matter). Sadly, this exact scenario happened to a Crotty Saland PC client after our client was charged with numerous crimes including felony Second Degree Assault (New York Penal Law 120.05(1)), Leaving the Scene of an Incident without Reporting (Vehicle and Traffic Law 600), Second Degree Reckless Endangerment (New York Penal Law 120.20) and other offenses. It was alleged that our client, a college instructor and professional, struck the complainant’s car at a stop light and drove off through the following red light. After catching up to our client, it was claimed by the District Attorney’s Office that there was a second accident between the vehicles driven by the parties. Finally, after pulling into a parking lot, the complainants’ (a passenger and driver) alleged that after a brief conversation outside the vehicles our client got back into the car, drove at one of the complainants and struck her. This complainant alleged that our client then drove off with her on the hood through the parking lot until she fell off. At that time, the complainant contended she suffered and injury to her nose area requiring multiple stitches. Despite these claims, the severity of the arrest and nature or the crimes, our client stood firm and adamantly denied that the events of the evening in question occurred as set forth by the prosecution and complainants. After much hard work from our criminal defense attorneys, our client’s strength and perseverance was rewarded with a non-criminal resolution.
I have discussed it many times on the NewYorkCriminalLawyerBlog.Com. Endangering the Welfare of a Child, New York Penal Law 260.10, may not be the most serious offense in New York’s criminal code, but it is a crime that is horrifically stigmatizing and one that carries up to one year in jail upon conviction. There is no way around it. An accusation of Endangering the Welfare of a Child cannot be ignored or brushed aside. It is bad enough if the child is not your own, but if the minor is your son or daughter you should expect that either the Administration for Children Service (ACS) or Children Protective Services (CPS) will be knocking on your door to open their own parallel investigation. Simply, when an allegation is untrue or there is a misunderstanding, the consequences of an Endangering the Welfare arrest will not merely go away. Law enforcement is always overly cautions and often for the right reasons even if the accused has done nothing wrong.
A recent example of the above scenario, a client of Crotty Saland PC not only fought through the embarrassment of a PL 260.10 arrest, but a felony charge of Second Degree Assault, New York Penal Law 120.05, as well. This latter offense carries a sentence of up to seven years in prison, dwarfing the one year of jail a defendant faces on an Endangering the Welfare of a Child conviction. Although the allegations were serious – the NYPD arrested our client for striking the client’s child with a knife in the eye requiring hospital treatment – prosecutors dismissed the all of the charges.
Third Degree Assault, New York Penal Law 120.00, is a relatively straight forward offense. Although the application and interpretation of the law always has its wrinkles, one is guilty of Assault in the Third Degree when one intentionally, or recklessly, causes physical injury to another. Physically injury is generally identified as some form of substantial pain. A class “A” misdemeanor with a sentence of up to one year in jail, PL 120.00 is the lowest of the violent New York Assault type crimes. A much more serious offense handled by prosecutors and criminal attorneys that is punishable by as many as seven years in prison, Second Degree Strangulation, New York Penal Law 121.12, occurs when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11, and thereby causes stupor, loss of consciousness or any physical injury.
I the realm of criminal prosecutions in New York City’s Criminal Courts and New York State’s local Town and Village Courts, one of the most common offenses that are pursued by police and prosecutors is the crime of Third Degree Assault pursuant to New York Penal Law 120.00. This crime can be quite a serious offense even where the degree of an injury is well below the felony threshold. For example, one can punch another person square in the face and break that person’s nose or strike someone hard enough to cause an ugly laceration and welt, but the crime will remain a misdemeanor Assault int the Third Degree. Whether that injury sustained causes a bloody hemorrhage or only a small bruise, as long as there is physical injury and substantial pain the accused will face up to one year in jail on an NY PL 120.00 arrest or conviction (NOTE: In New York City – Manhattan, Brooklyn, Queens, etc., first time offenders may be issued a NYC Desk Appearance Ticket (DAT) when arrested, but the charge and potential punishment is no less grave).
Due to the direct and collateral consequences to an arrest for PL 120.00 even without a conviction, it is critical to collect evidence and move forward with your defense at the beginning of the process. While one way your criminal lawyer will pursue your defense may be through speaking with witnesses (even the complainant) or securing videos or photographs, another means of attack is through the charging document (called the criminal court complaint or criminal court information). The following legal decision addresses one such attempt to challenge the legal sufficiency of an information while also shedding some light on how prosecutors can pursue criminal cases without the assistance of the victim him or herself.
On numerous occasions I have addressed how prosecutors can overcharge crimes or think out of the box to get to a particular result. Sometimes it is warranted and other times it is not. Similarly, sometimes the end result is proper while other times it is a violation of the law. One of the areas where prosecutors get creative is in the arena of New York weapon crimes. More specifically, when an accused uses a dangerous instrument. Not necessarily unique to this area of law, one of the reason why New York criminal lawyers often see Assistant District Attorneys handling cases in this way is because if a defendant commits a misdemeanor Assault (Third Degree Assault pursuant to New York Penal Law 120.00) and does so with a dangerous instrument, the crime can be kicked up to a felony assault (Second Degree Assault pursuant to New York Penal Law 120.05). Similarly, even if a defendant acts recklessly and causes a serious physical injury with a dangerous instrument (not intentionally) felony conduct could be prosecuted. Why does all of this matter? Not only is a felony a more serious crime in terms of a criminal record, but a misdemeanor offense is punishable by as much one year in jail while the felony crime is punishable by up to seven years in prison.
In People v. McElroy, 55-2013, NYLJ 1202644557795 (Sup., Kings Ct’y Decided February 20, 2014) the defendant, who was intoxicated at the time, got into a fare dispute with a taxicab driver. The defendant paid the fare with a credit card, then exited the vehicle without signing the credit card receipt. The driver also exited and blocked defendant’s movement with outstretched arms insisting that defendant sign the receipt. Evidence at trial showed that defendant refused to sign and instead punched the driver in the head once or twice. The driver fell backwards, hit his head on the concrete sidewalk, and sustained fractures and severe brain injury. At the time of this decision, the driver was on life support and unresponsive. The jury convicted defendant of Assault in the Second Degree, by recklessly causing serious physical injury by means of a dangerous instrument (Penal Law §120.05(4)). The defendant appealed.
Prosecutors routinely (for better or worse) throw every charge they can at a defendant with the hope that something sticks. Maybe the evidence is overwhelming. Maybe…not so much. Whatever the charges or allegations may, if one count cannot be proven beyond a reasonable doubt, maybe another can. It is one thing for a prosecutor to charge different crimes (for example, charging an individual for possessing a weapon and using it or stealing money and possessing the same). However, can prosecutors charge different theories of one’s mental state? More specifically, can a defendant be charged with both intentional and reckless acts in the same complaint, for the same act? In People v. Alejo, NYLJ 1202644557857 (Crim., BX, Decided February 19, 2014), the Supreme Court answered that question with a resounding “yes.”
The evidence in Alejo case established that Police Officer Gelband observed the defendant, who was driving a motor bike, weaving in and out of traffic and around pedestrians, driving the wrong way, and ignoring stop signs. The facts also showed that pedestrians ceased walking on the street whenever the defendant drove near them. Finally, when the officer instructed the defendant to stop driving, the defendant ran over the officer’s foot causing injury to his foot, as well as causing the officer to experience annoyance, alarm and fear. As a result of his actions, defendant was charged with two counts of Assault in the Third Degree (PL Sec. 120.00(1) and (2)), and one count each of Reckless Endangerment in the Second Degree (PL Sec. 120.20), Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), Harassment in the Second Degree (PL Sec. 240.26(1)), and Disorderly Conduct (PL Sec. 240.20(7)).
Every New York criminal lawyer, from the “best” to the those who lag behind him or her, have one basic goal when representing their respective clients in an arrest for any crime. Certainly service is key, but most clients would be satisfied, if not elated, if his or her criminal attorney could obtained a dismissal of an indictment or misdemeanor information regardless of the service the attorney provided (I am not advocating poor service!). There are often numerous grounds for which a New York criminal defense attorney may seek dismissal. The Grand Jury presentation was not sufficient or the proceeding was tainted. Alternatively, the information or complaint contained hearsay or was not facially sufficient. If the case cannot be dismissed in its totality, the defense may seek to have the crime charged reduced to an attempt. The reason this is pursued is because an attempt to commit a particular crime in New York reduces the level or degree of the crime from what it would be if successfully completed.
In People v. Zacatenco-Romano, 10869-12, NYLJ 1202640266754, at *1 (Sup., KI, Decided January 22, 2014), the defendant motioned for dismissal of Attempted Assault in the First Degree (PL 110/120.10) on the grounds that the Grand Jury evidence was insufficient. Seeking a dismissal as opposed to a reduction (you can’t attempt an a crime that you are accused of attempting), Zacatenco-Romano is still valuable in identifying what constitutes an attempt to commit an offense and what is sufficient before a Grand Jury in New York.
Harassment in the Second Degree, New York Penal Law 240.26, is routinely an offense that is tacked onto a complaint alleging Third Degree Assault. While Assault in the Third Degree (New York Penal Law 120.00) is one of the most serious misdemeanor crimes, Harassment in the Second Degree has significant consequences, but is far less significant. Having said that, “less” significant” does not mean “insignificant.” In fact, a conviction for violating NY PL 240.26 not only carries a possible jail sentence, but on the more practical side of things there are sealing issues that permit this offense to linger on your “criminal record” for employers and government agencies to later see.
Briefly, you are guilty of Harassment in the Second Degree when you intentionally harass, annoy or alarm another person and you (1) strike, shove, kick or otherwise subject that person to physical contact or threaten to do the same. Alternatively, you (2) follow that person around public places or (3) you engage in a course of conduct or repeatedly commit acts that alarm or annoy that other person without any legitimate purpose. The purpose and issue that will be addressed in this blog entry is what kind of contact constitutes a violation of the first subsection of New York Penal Law 240.26(1), Harassment in the Second Degree?