Some times the best legal advice a criminal lawyer can give is not legal advice at all. In fact, it can be more parental than lawyer-like. Unfortunately, just as we don’t always listen to our parents we don’t always listen to our criminal defense attorneys either. With that little life lesson behind us, try listening to this. The best way to avoid an arrest or conviction for a New York Stalking crime, whether or not it is one of the two misdemeanor Stalking offenses of Stalking in the Fourth Degree (New York Penal Law 120.45) or Stalking in the Third Degree (New York Penal Law 120.50), is to steer clear of following, threatening or harassing other people. Sounds easy enough, right? Well, maybe it is and maybe it isn’t, but what if you are arrested for merely following a person without any allegations of physical or verbal threats? Is that sufficient grounds for the prosecution to sustain a viable complaint for Fourth Degree Stalking, NY PL 120.45? The following blog entry will address this very question.
Heroin. Cocaine. Ecstasy. Adderall. Molly. MDMA. New York’s list is long and vast. If you possess certain drugs, narcotics and controlled substances (including certain prescription drugs that you are not prescribed by a doctor), you can face a wide variety of crimes found in New York Penal Law Article 220. Even if you did not have the intent to sell those drugs (New York Penal Law 220.16(1) or New York Penal Law 220.06(1)) or actually sell the drugs (New York Penal Law 220.39(1) or New York Penal Law 220.31), possession for personal use is still a crime. New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance, is the catch all “personal use” offense in New York State whereby the police and the District Attorney can charge you with a misdemeanor punishable by up to a year in jail for possessing small amounts of a controlled substance.
In the above scenarios, whether you find yourself arrested and hauled into Manhattan Central Booking or are given a NYC Desk Appearance Ticket in Brooklyn, the law actually permits an officer with the NYPD to claim the substance in your possession is a narcotic or controlled substance without ever testing the substance to confirm its an illegal drug. That is right, if the officer can examine the white powder, pill or anything else and claim his experience and training tells him it is a drug, then at the preliminary stage he has just bought you at least a temporary rap sheet, arrest, criminal complaint and date with the court for an arraignment on PL 220.03. The question posed in this blog is whether the same can be said for amounts that are significantly smaller and not so clear to the eye.
While nobody is asserting that financial services professionals, investment advisers, registered representatives or others regulated by the Financial Industry Regulatory Authority (FINRA) are more prone to using, selling or possessing drugs, the reality is that an arrest in New York City or elsewhere for possession of cocaine, heroin, molly, MDMA, or even some prescription drugs can have dire consequences. Sale of these drugs (there need not be money exchanged) can magnify an arrest to a felony regardless of the amount. Simply, if you have a Series 3, Series 6, Series 7, Series 10, Series 11, Series 63, Series 65, Series 66, Series 79, Series 86 or any other securities license, your exposure is more than merely what you will face in a courtroom. Even when you close out your case there may be far reaching implications to your career. Although this blog entry will address the potential crimes and touch on the U4 reporting requirements, in no way is this article a substitute for a consultation with and the retention of a NY criminal defense attorney or criminal defense lawyer. Instead, the content contained here should solely be used as a launch pad to put yourself in the right place and to ask the right questions from your own counsel.
What is Molly? Why do the police arrest you in New York for even the smallest amount? Why do prosecutors care if you have some drugs for “personal use”? Is the Manhattan District Attorney’s Office, or for that matter any District Attorney’s Office in New York City or a neighboring county, going to waste time and money prosecuting a first time offender for simple drug possession? Simply, the answer to this last question is “yes” and the answers to the prior questions should be equally clear. Whether you are given a Desk Appearance Ticket or you find yourself locked up waiting overnight to see a judge in criminal court the following morning, possession or sale of Molly, MDMA and Ecstasy is without a doubt a serious crime in New York. Certainly, possession of a one or two tablets or capsules recovered from your car or your pocket at a concert or club is a not as serious as having ten, twenty or thirty pills of Molly, but both are crimes. Likewise, possession of a couple tablets of Ecstasy is no where nearly as significant criminally when compared to the sale of even a single capsule of MDMA. The latter is a felony out of the gate. There is no passing “Go”. You are going directly to jail.
So, what are the crimes in New York that one will face upon arrest for possessing or selling MDMA, Molly or Ecstasy? Will you merely get a slap on the wrist? Can a misdemeanor or felony “stick”? Are there any consequences beyond your criminal exposure?
In New York State, especially in New York City, arrests for Second Degree Aggravated Harassment, New York Penal Law 240.30, are fairly routine. Routine doesn’t mean the crimes are taken lightly by the NYPD or the District Attorney of Manhattan, Brooklyn, Queens or the Bronx. In fact, it is quite the opposite. Whenever there are threats of violence the NYPD will make the arrest and often let prosecutors figure out later what to do with the case. That is not to say the NYPD is not diligent, but all branches of law enforcement are overly cautious and seemingly would rather make an arrest that is later challenged or voided, then leave a threat of violence alone that ultimately festers into an actual act of violence. This line of thinking by law enforcement begs the following question. What is the legal standard that must be crossed for a threat to rise to the level of a valid arrest and prosecution? The following helps answer this question.
Although not a firm rule, New York City Desk Appearance Tickets (commonly called a DAT or Appearance Ticket) are generally issued to individuals who have little or no prior arrest history and are charge with misdemeanor crimes. These crimes include many serious offenses – Criminal Possession of a Weapon in the Fourth Degree (NY PL 265.01), Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03), Petit Larceny (NY PL 155.25), Criminal Possession of Stolen Property in the Fifth Degree (165.40), Assault in the Third Degree (NY PL 120.00) – and are punishable by as long as one year in jail upon conviction. Even if you never step into Central Booking or Rikers Island, a conviction for shoplifting, possession of cocaine, having a gravity knife or getting into a drunken fistfight can and likely will adversely impact your career, professional licensing or immigration status. Although there are numerous blog entries and extensive content on the CrottySaland.Com website that address these crimes, this entry will address what “Top Offense Charged” means and how it may impact your case.
Sometimes with good cause and other times without, the NYPD charges individuals with violating New York Penal Law 195.05, Obstructing Governmental Administration. In fact, during my years as a Manhattan prosecutor and currently as a New York criminal defense lawyer, I have seen and currently see both police and Assistant District Attorney’s charge PL 195.05 where the law is interpreted either way too broadly or it is confused with other offenses such as Resisting Arrest. An “A” misdemeanor punishable by as much as one year in a local county jail such as Rikers Island, “OGA” is not a crime that should be taken lightly. Not only is incarceration an ugly thing, but the hint or accusation of criminal conduct can have significant collateral consequences even if an accused never steps on foot in jail. Due to the above reasons, this blog entry will address the crime of Obstructing Governmental Administration and a recent NYC court decision from the Queens Criminal Court review the offense.
Second Degree Aggravated Harassment, New York Penal Law 240.30, is one of the most widely charge crimes that often teeters between a violent and non violent offense. Not only are the alleged threats made in an NY PL 240.30 investigation relevant down to the exact words used and the context of declaration, but this offense is just as likely to involve a Desk Appearance Ticket based arrest as it is a Domestic Violence crime or charge. Just as local courts and attorneys have grappled with Second Degree Aggravated Harassment crimes, so has New York State’s highest court, the Court of Appeals. While the following is not an analysis of a Court of Appeals decision, this blog entry does address what constitutes a “true threat” and, pursuant to a different subsection of the crime, “no legitimate purpose” when establishing Aggravated Harassment in the Second Degree at the pleading stage of New York Penal Law 240.30 arrest.
Not necessarily relevant to every criminal offense found in the New York Penal Law, many arrests and crimes stem from what the police see in public or plain view. Whether officers with the NYPD or other local police agency stop your car and see a knife inside the vehicle from their vantage point or you’re walking down the street with a marijuana in your hand, the location of your criminal possession of cocaine, marijuana, or a firearm is often relevant not merely to the legality of your stop, arrest and search, but the crime itself. The following case involving an arrest for Fifth Degree Marijuana Possession, NY PL 221.10, is an example of this element and how a criminal complaint against you must be drafted in order to survive (or not survive) a motion to dismiss by your criminal defense attorney.
Per se crimes are dangerous offenses in New York. These crimes, and the arrests that result, are based not on malicious or intentional violations of the law, but often on otherwise harmless and ignorant actions. One of the most common strict liability and per se crime in the New York Penal Law is that of Criminal Possession of a Weapon in the Fourth Degree, pursuant to NY PL 265.01. Although there are many different types of items or objects that are “automatic” weapons (by automatic we are not speaking of a firearm, but automatic in the sense that their mere possession is a crime regardless of how the object is being used), the most common involve possession of gravity knives. In its simplest terms, these knives open with the force of gravity when flicked from the wrist. It is fairly routine that tourists to New York City or even residents of Manhattan, Brooklyn or Queens are arrested and either fully processed before a judge or given a Desk Appearance Ticket (DAT) after a police officer observes a clip on the accused’s pocket or or sees the blade during a car stop. Sadly, most of these individuals legally purchased these knives online or at a chain store outside of New York City or New York State.
While gravity knife arrests according to New York Penal Law 265.01(1) rank the highest by volume, other per se weapons are the subject of the same prosecutions. Arguably, though less common, switchblade knives pose a more serious risk. The reason for this is obvious. Still a violation of PL 265.01(1), Fourth Degree Criminal Possession of a Weapon, switchblade knives are not sold by Home Depot, a fishing store or other similar establishments. Gravity knives are. Right or wrong, many prosecutors, judges and police officers perceive switchblade knives are evidence of some potential criminal act. Because of the seriousness of the allegation and the potential long term implications of a criminal conviction beyond spending time in jail, it is critical to examine the many defenses that may be available for an arrestee. One such defense is to review the complaint against you to determine whether the allegations as set forth in the accusatory instrument (the paper charging you is called an information) is legally sufficient.