New York Criminal Lawyer Blog

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are "searched incident to your lawful arrest" where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple "nothing" case evolve into something so serious...

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

In trying to convince the court to permit the evidence against the defendant, prosecutors correctly asserted that warrantless searches are permissible in circumstance such as these because the police may lawfully arrest a person for violating an ordinance. In other words, if the police see you drinking an open container of beer and a law says you are not permitted to do so, then they can arrest you. Because the defendant's actions were "arrestable," prosecutors claimed that the police could then conduct a search incident to that arrest. While technically correct, the Court noted that the record from the lower court (the trial court as opposed to the appellate court), made it clear that the defendant was not arrested, but instead issued a summons (called an appearance ticket, but it appears as if this was more akin to a summons as opposed to a Desk Appearance Ticket in New York City). Further, the Court recognized the police had no intention of arresting the defendant but searched him anyway. In the words of the Court, "[i]f there is no arrest, however, there can be no search incident thereto."

Kalikow should make one thing clear. Merely because a defendant can be arrested, but is in fact not, does not give the police the authority to conduct a post arrest search. Despite the clear ruling from the Court, Kalikow is clearly fact specific, meaning, it is only applicable to limited cases. If, for example, you are issued a summons and the police notice a big bulge in your waist area that they can articulate appears to be a firearm, then the police can investigate further irrespective of that summons. Maybe they pat you down or maybe they make some inquires. Ultimately, if you are searched in a legal manner or during their investigation you state that you have a gun, the case addressed here may not help your cause, but your attorney should still seek to challenge the police and preserve your rights through a Huntley or Mapp Hearing.

To educate yourself further about criminal statutes found in the New York Penal Law, Desk Appearance Tickets, and the crimes of Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Possession of a Weapon in the Fourth Degree (as well as many others), please review the content found through the links above and below.

Established in 2008 by two former Manhattan prosecutors, the founding New York criminal lawyers at Crotty Saland PC utilize the wealth of knowledge and experience they have gained in their collective 24 years of criminal practice to represent clients throughout the New York City region.

The common perception is that most of the work of a New York criminal attorney comes in zealously representing their clients at trial while trying to enter a reasonable doubt in the mind of a jury or a judge. While that is certainly a role played by criminal attorneys in New York, the truth is that many times experienced New York criminal lawyers raise challenges to a case at a much earlier stage. For instance, a criminal attorney may challenge the arrest itself as improper, or the sufficiency of the charges brought by the Assistant District Attorney. As most of you know, the police standard for making a proper arrest is probable cause. Furthermore, in New York an Assistant District Attorney (the prosecutor) must present non-hearsay factual allegations (e.g. a victim's account, or a witness' statement, or an arresting officers' observations) that provide reasonable cause to believe that the defendant committed each element of the offense being charged. It is important to note that the level of proof required at a stage prior to trial (to properly charge a defendant) is much lower than the reasonable doubt standard required to convict a defendant.

I presented the above background because I want to examine a recent New York criminal case, People v. Jamel Harris, 2011QN011459, NYLJ 1202503770549 at *1 (Crim., QU, Decided July 13, 2011), in which the defendant challenged the sufficiency of the charges brought against him because he believed they were based on uncorroborated hearsay. Mr. Harris, the defendant, was charged with Assault in the Third Degree, pursuant to NY PL 120.00(1), Harassment in the Second Degree pursuant to NY PL 240.26(1), Petit Larceny pursuant to NY PL 155.25 and Criminal Possession of Stolen Property in the Fifth Degree NY PL 165.40. A person is guilty of Assault in the Third Degree if he intended to, and did cause, physical injury to another person. Petit Larceny is when you steal property worth $1000 or less. Harassment in the Second Degree is established if the prosecution could show that the defendant was intending to annoy, alarm, or harass the victim by subjecting that person to physical conduct. And lastly, a person is guilty of Criminal Possession of Stolen Property if he/she knowingly possesses stolen property with the intent to benefit him/herself.

The People brought their charges based on factual the observations of responding Officer Adam Gonzalez (he responded to the 9-1-1 call by the victim/complainant). When he arrived to the house the complainant, Lanique Reaves, was yelling and breathing erratically. Officer Gonzalez noticed she had a scratch under her eye with bruising and swelling. The officer asked Lanique what happened and she said that her boyfriend, the defendant, hit her across the face (Assault and Harassment) and took her cell phone (Petit Larceny and Criminal Possession of Stolen Property). Now, if Lanique later confirmed this report with an affidavit filed in court accompanying the charges (called a "supporting deposition" or "corrob"), there would be no question that the People had satisfied their burden of presenting non-hearsay factual allegations showing that the defendant committed each element of each offense charged. However, like in many "domestic abuse" cases the victim/complainant may not cooperate with the police and the ADA prosecuting the case. As a result, these supporting papers are more difficult to obtain.

Thus, Mr. Harris challenged the charges as insufficient arguing that the statements made by the complainant were uncorroborated hearsay. Hearsay is an out of court statement by a person, offered to prove the truth of the matter asserted. In this case Lanique's statement was made out of court to Officer Gonzalez, offered to prove that the defendant did hit her in the face and took her cell phone. So the statements offered by Officer Gonzalez are hearsay. However, there are many exceptions to the hearsay rule that allow statements to be presented as evidence in court. One such exception is an "excited utterance"--if the speaker was still under the stress caused by a startling event, the statement is thought to have inherent truth and thus is allowed. For example, after a witness rushes over to a injured person who was just shot and they say "Oh my God! I can't believe Mary shot me."

The court rejected Mr. Harris' argument stating that the statements made by Lanique to the Officer, qualified as an "excited utterance." The court believed that such a confrontation qualified as a "startling event," arguing that getting hit by an intimate partner is traumatic. The court also addressed the fact that the statements were made in response to an Officer's questions, because traditionally an "excited utterance" is a statement provided spontaneously by the speaker to show that the declarant is not capable of reflection and thus not capable of fabrication. However, the court argued that due to the nervous and fearful behavior exhibited by the speaker (flailing of her arms, yelling, crying, breathing heavy) the statements were clearly not made after "studied reflection."

So the takeaway from the decision in People v. Jamel Harris is that, particularly in domestic abuse cases, the prosecution may be able to bring charges solely based on an officer's affidavit recalling statements made by the victim to the officer, even if the officer asked the questions and the victim later did not corroborate the statements.

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 an earlier entry relating to Extortion, a subset of Grand Larceny, I identified and differentiated the difference between the Grand Larceny Extortion statutes found in New York Penal Law sections 155.05(2)(e) and 155.40(2). This entry will deal with the criminal defense to the crime of Extortion in NY that is established by statute. Whether this affirmative defense is relevant or applicable to the Grand Larceny and Extortion allegation in your particular case, that is something to identify and asses with your New York criminal defense attorney and Extortion lawyer.

Pursuant to New York Penal Law section 155.15(2):

In any prosecution for larceny by Extortion that is perpetrated by instilling fear in the target of the Extortion that the target or another person will be charged with a criminal offense, it is an affirmative defense that the extorter reasonably believed the alleged charge was accurate. Beyond this belief that the alleged criminal conduct of the extortee, the single purpose of the extorter must solely be to compel the extortee to take "reasonable action to make good the wrong which was the subject of such threatened charge."

Dissecting this defense, it is critical that an extorter truly and genuinely believe that the crime committed by the extortee be true. Obviously, this will be an issue of fact. Additionally, even if the belief is true and even if the extortee actually committed a crime, the only purpose permitted by this defense for the actions of the extorter is to rectify and fix the "wrong" that the extortee allegedly perpetrated. In other words, the extorter cannot utilize the extortee's criminal act to gain financially in an unrelated matter.

An additional defense to an accusation of Extortion is not found in a statute but is one that the watchful eye of an experienced New York criminal lawyer or Extortion attorney. In the voluminous case law that has evolved around the crime of Grand Larceny by Extortion in New York, the courts have made it overwhelmingly clear that certain terms and words must be set forth in the indictment charging this crime. Unlike common law Grand Larceny where it is sufficient to merely state a Grand Larceny was perpetrated, the prosecution must set forth in an indictment for Grand Larceny by Extortion that the Grand Larceny was in fact not merely a Grand Larceny, but one committed through Extortion. If the prosecution fails to do so, then the indictment should be dismissed.

As a hypothetical, if you stole $5,000 from a woman by taking the money from her account without her permission, the prosecution would not have to set forth with any additional specificity that the crime was anything other than "regular" Grand Larceny in the Third Degree. However, if you stole $5,000 from that same woman by committing the crime of Extortion, the indictment language would have to plead the means by which the theft took place, i.e., Extortion. Although this may seem minor, if the prosecution overlooks this fact your criminal defense attorney should be able to argue that the indictment is not correct or proper. If the indictment is not pleaded properly within its "four corners," you may be looking at a dismissal. Whether the prosecution can or will re-present to the Grand Jury, you certainly will have at least won one significant battle in your criminal case and re-asssess the next phase of your defense.

For detailed analysis of New York Grand Larceny statutes and the subset of Extortion, follow the highlighted link. A wealth of information is also available on the NewYorkCriminalLawyerBlog.Com. For further information on other larceny and theft crimes in New York, Crotty Saland PC will be publishing the NewYorkTheftAndLarcenyLawyersBlog.Com as well as the sister website, NewYorkTheftAndLarcenyLawyers.Com during the month of October, 2011.

Crotty Saland PC is New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland represent the accused throughout the New York City region.

In New York State, if you knowingly possess property and that property is held by you for your benefit or to impede its recovery by the rightful owner, then the crime of Criminal Possession of Stolen Property has been perpetrated. This is true whether the possession of the property is in the context of taking a wallet off of a bar in White Plains, taking cash from a table at a restaurant in Brooklyn or shoplifting from a department store anywhere in New York City. Having said that, there is an interesting and critically important fact that can downgrade your offense. In other words, if you are charged with the "A" misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), the crime may be knocked down to a lesser "B" misdemeanor of Attempted Criminal Possession of Stolen Property (New York Penal Law 110/165.40). The legal concept that forms the basis of this downgrade is known as legal impossibility. Often times this legal concept occurs in the area of sting operations set up by the police, but is not exclusive to sting operations.

The Court of Appeals, the highest level court in the State of New York, has grappled with the issue of legal impossibility in the past and has done so specifically in the context of Criminal Possession of Stolen Property. In People v. Zaborski, 59 N.Y.2d 863 (1983), the Court upheld or re-affirmed a lower appellate court's decision that where police set up a sting involving the fencing of stolen property by supplying the property that was previously stolen, the completed crime of Criminal Possession of Stolen Property was not perpetrated and could not be perpetrated. The Court stated that "[a]t common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods." Simply put, you cannot steal property that is not in fact stolen even though at one point it may have been. The Court further elaborated on the issue of legal impossibility and stated that "[a]lthough the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf."

Obviously, a careful reading of this case is important. Equally important, the Court noted, as should you, that New York Penal Law 110.10 sets forth an important rule regarding legal and factual impossibility. It is no defense to any attempted crime charge, despite the old common law, that it was or is factually or legally impossible to commit that particular crime. Again, although the property in this case was no longer stolen and, thus, the accused could not possesses stolen property, because the requisite intent and physical actions existed, New York Penal Law 110.10 clearly states that the accused can still be liable for an attempt to commit the crime of Criminal Possession of Stolen Property.

Is it impossible in each and every circumstance for a sting operation to result in a completed theft crime? Is that assertion too broad? What if, for example, the property in question is never actually recovered by the police, but involved in a theft? There, the taint does not appear to have dissipated. Whether this legal theory is applicable in your case is something that should be examined by your own legal counsel. However, the relevancy and importance of this theory cannot be understated as it can make the difference, in certain circumstances, between an "E" felony and a lower "A" misdemeanor.

Crotty Saland PC is a New York criminal defense law firm representing those charged with and investigated for theft and larceny related crimes in New York City. Founded by two former Manhattan Assistant District Attorneys, our criminal lawyers represent the accused throughout the New York City region.

For additional materials on Grand Larceny and Stolen Property crimes, please review either the New York Criminal Lawyer Blog or the Crotty Saland PC website. The former also contains extensive information on criminal statues as well as analysis of legal decisions and cases in the news.

It is common throughout New York City and the region for judges to grant prosecutors' requests for orders of protection whereby no contact between a complainant and defendant is permitted. These "full" orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don't even know each other and are complete strangers. What is concerning for the accused, however, is where a "full" order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, "full" orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?

Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your "personal or property rights will be directly and specifically affected," by a "full" order of protection, your attorney can request a "Forman Hearing." Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused's burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).

Certainly, an accusation that requires the issuance of an order of protection is a serious matter. However, just as in all cases, an accusation is not a finding of guilt and the ramifications of loosing one's rights to their property is significant while prosecutors sort out the criminal allegations. Not only may a Forman Hearing be a means to protect your property rights, but it is also a potential tool for your New York criminal defense attorney to get an early chance to cross examine witnesses.

For further information on New York criminal statutes, newsworthy cases and legal decisions, please review Crotty Saland PC's New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Representing clients throughout the New York City region, the New York criminal defense lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney's Office before founding the law firm.

Reckless Endangerment, New York Penal Law sections 120.20 and 120.25, is either an "A" misdemeanor punishable by up to one year in jail or a "D" felony punishable by up to seven years in state prison. While I have defined Reckless Endangerment in the First and Second Degrees in other entries, if one acts reckless and causes a substantial risk of serious physical injury or death (or they act with a depraved indifference to human life), they are setting themselves up for this charge. Having said that, merely acting stupid does not mean one acted reckless in the eyes of the law. For example, speeding in a car after consuming alcohol may not be "reckless" in the eyes of the law even though you may ultimately be convicted of DWI. Other elements should be present and "fleshed out" in the accusation. In the scenario above, one may be driving dangerously, but where there other cars or pedestrians in the street? Did the accused almost hit them? How fast was he or she speeding? What were the road conditions? There are other important facts before one's actions give rise to at least a "substantial risk" of not merely a small injury, but serious physical injury or a grave risk of death.

Keeping with the theme of what constitutes a the crime of Reckless Endangerment in New York, a question that is often addressed is whether or not factual impossibility is a defense to the crime in New York of Reckless Endangerment in the Second or First Degree. That answer is generally yes. A great non-legal way to look at this is as follows:

Person "A" fires a gun into a room. He actually believe that room is crowded full of people at a meeting. However, it is an empty room. Nobody is there. Certainly ill advised, his actions would not necessarily be reckless as there is no "substantial risk" or "depraved indifference" for human life where there is no risk of either "serious physical injury" or death. If nobody is there, there can be no risk and no injury. This is a very base definition of the legal concept of "Factual Impossibility."

According to the Court of Appeals, New York's top court, "Factual Impossibility" is a defense to Reckless Endangerment in the First and Second Degrees. See People v. Galatro, 84 N.Y.2d 160 (1994). Because the level of the risk on the part of the accused determines the level of the offense, if factually there can be no risk because it is impossible, then there can be no crime. See People v. Davis 72 N.Y.2d 32 (1988). As addressed in Davis, if a gun is inoperable and cannot fire a bullet, pointing that gun at someone cannot establish the requisite risk (although, other crimes may be perpetrated, ie, if the weapon is brandished in a robbery it can still raise the level of the felony offense even if the gun is ultimately found to be inoperable.).

The above cases merely touch on this concept of "Factual Impossibility." Even if there is this impossibility as to Reckless Endangerment, it does not meant that other crimes cannot be established by the prosecution. Moreover, even though you may deem something factually impossible, a court, prosecutor or jury may disagree.

For further information on the crime of Reckless Endangerment in the First Degree (New York Penal Law 120.25) and Reckless Endangerment in the Second Degree (New York Penal Law 120.20), please follow the highlighted links. A brief factual/legal Reckless Endangerment case analysis regarding the charges against JetBlue's Steven Slater can be found on the respective link as well. Additional information on different statutes of the New York Penal Law, legal decisions and cases in the news can be found on Crotty Saland PC's New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Representing those investigated and accused through the New York City area, the partners at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys office prior to serving their clients as New York criminal defense attorneys.

Although it rears its head in other areas of New York criminal law, violations of a defendant's right to counsel (right to remain silent) seem disproportionately greater in the area of New York graffiti crimes including Making Graffiti (New York Penal Law 145.60), Criminal Mischief (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). While I cannot base my opinion on any scientific data, as a New York graffiti crimes criminal defense lawyer, I have litigated and addressed the issues regarding right to counsel numerous times in this specific arena. In fact, one of the New York City District Attorney's Offices recently dropped five of six cases against our client after I successfully argued that the client's right to counsel was violated by the New York City Police Department's Vandalism (Vandal) Squad. The argument was based in the doctrine of "Related Matters."

In the case mentioned above, our client had been arrested by police after he was allegedly observed with a spray paint can. A person had called indicating someone was in the process of spray painting. Our client was alleged to have made a particular tag at that location. Weeks later, after he was arraigned and had been assigned counsel, but had yet to retain Crotty Saland PC, the Vandal Squad stopped our client on the street and confronted him with photographs. These photographs were of the same alleged tag at other locations. During his street interrogation by about six officers and detectives from the Vandal Squad, our client "admitted" to spraying the tag at the other locations. As a result, he was once again arrested and charged with five new cases regarding the same tag as the first arrest that was currently pending in criminal court.

Beyond our client's assertion that he was threatened into admitting that he had made the tags (there was corroboration by a witness as to part of the stop and interrogation), the argument used to successfully defeat these cases was not necessarily a factual one, but a legal one.

Continue reading "Graffiti Crimes & Making Graffiti in New York: The "Related Matters" Criminal Defense & Right To Counsel" »

Make no mistake about it. If you "dine and dash," leave a Manhattan cab driver high and dry without paying, jump a turnstile in Brooklyn or even use cable without permission, you will be either arrested or issued a NY Desk Appearance Ticket (DAT) for Theft of Services pursuant to New York Penal Law 165.15. If you are a New York City teacher or or any other person using a student or senior MetroCard, you will will face the same charge as well. Assuming you did not have permission to receive the services without paying, the conversation you have regarding Theft of Services (NY PL 165.15) with your New York criminal defense attorney or lawyer will be fairly simple. Not a DNA case, this crime is often summed up as either a misunderstanding between you and the victim or the result of a plainly stupid move on your part. The problem is, regardless of whether you were issued a New York Desk Appearance Ticket or arrested, if you are convicted of Theft of Services you will have a criminal record that will not be expunged or merely go away.

Potential Punishment & Collateral Consequences of Theft of Services (NY Penal Law 165.15)

An "A" misdemeanor, a conviction for Theft of Services or any crime will result in a criminal record. Compounding matters, a conviction for this offense is punishable by up to one year in prison. Having said that, practical punishment and potential punishment are not one in the same. Assuming the Theft of Services allegations does not include other crimes such as New York Grand Larceny, for example, defrauding the cab driver out of $10 or the restaurant out of $30 will not likely land you behind bars. Without other compounding factors, jail is not a usual outcome in New York City.

The greater issue, and one which often compels people to consult with experienced criminal defense attorneys in New York, is what will happen if you plea to a violation and thereby avoid a criminal record. In other words, if the District Attorney's Office makes you an offer of a violation such as a Disorderly Conduct, is this a type of disposition that you should accept and, if so, are there any collateral consequences?

While each case is as unique as the individual accused of perpetrating the particular crime, collateral consequences can be devastating whether you are charged with Theft of Services (NY PL 165.15) in Queens, Shoplifting / Petit Larceny (NY PL 155.25) in Manhattan, Criminal Possession of a Forged Instrument (NY PL 170.20) in Brooklyn or any other offense. For example, are you required to report an arrest or a plea, of any type, to your employer? If so, what are the grounds for your dismissal? Must a conviction be that of a crime or will a violation also terminate your employment? Beyond your direct employer, are there certification or licensing requirements that require you to report a plea even if it is non criminal? If so, what, if anything, should you do?

Beyond the above mentioned issues, what will happen to your "record?" Will it remain blemish free and clean? While a plea to a Disorderly Conduct should be sealed, it is far from atypical to have these non criminal dispositions pop up on background checks. Not only is it possible that the violation will be revealed, but the underlying or original arrest charge of Theft of Services, Petit Larceny, Criminal Possession of a Forged Instrument or any other crime. The last thing anyone wants is to believe that the case has been resolved to later find out that their potential employer or licensing agency has found out about it and is questioning an arrest from years before.

While this blog entry is not a substitute for an in depth discussion with your New York criminal defense attorney, it should give you the foundation to have that conversation. Not only may you decide to discuss potential dispositions such as Disorderly Conduct, but the better option of an Adjournment in Contemplation of Dismissal. Moreover, there may be both legal and procedural ways to beat the case and a plea is not something you should consider pursuing.

For further information such as criminal statutes and the New York Penal Law, legal decisions, legal analysis and newsworthy cases dealing with the crimes of Theft of Services (NY PL 165.15), Petit Larceny (NY PL 155.25), Criminal Possession of a Forged Instrument (NY PL 170.20) and Desk Appearance Tickets, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com and more specifically the topic areas of New York Theft Offenses, New York Fraud Related Offenses and New York Desk Appearance Tickets. Additional information can be found on the respective links for New York Desk Appearance Tickets and Criminal Possession of a Forged Instrument on the Crotty Saland PC webpage and new-york-lawyers.org.

The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland PC represent individuals accused or and arrested for all crimes from Manhattan to Brooklyn, Queens to Westchester and the New York City region.

It is extremely atypical to hear of a case where the accused has waived his right to remain silent, told his story to the police or the prosecutor without legal counsel and later walked away unscathed. Although a generalization, this type of behavior often assists law enforcement in making an arrest, or in worse scenarios, obtaining an indictment or conviction. Certainly, your statement may be valuable and be exculpatory (shows your innocence). However, a simple inconsistancy, inadvertant misrepresentation or otther error that you lock yourself into can cause tremendous trouble down the road. If you are able, talking to your New York criminal defense lawyer is something you should do before taking matters into your own hands.

Generally, you must be read your "rights" where the police or a prosecutor have you in custody and are interrogating you. Seems fairly simple, right? Unfortunately, there are a litany of cases determining what "custody" and "interrogation" means. Unfortunately, for one individual, his chatter with a police officer while he was arrested in a precinct did not render his damming statement illegal.

In People v. Huang, indictment 6119/09, a Kings County (Brooklyn) Supreme Court Judge ruled against a defendant who sought to have his inculpatory statement suppressed as a result of the police officer's failure to advise him of his "Miranda Warnings." In Huang, the defendant had been in custody for multiple hours after he was arrested and charged with assaulting his wife with a cleaver. While in the precinct, the defendant asked a police officer about his wife's condition. The police officer responded by asking if the defendant actually cared how his wife was doing. Thereafter, the defendant admitted to striking his wife multiple times with the cleaver.

Although the Brooklyn District Attorney's Office stated at the defendant's arraignment (where he saw the judge for the first time) that the statement made by the defendant was a result of questioning, the Court determined otherwise and found that:

"In this case, the conversation was brief, initiated by the defendant, and the officer's off-the-cuff remark, 'do you care' is not one designed to elicit an incriminating response; certainly not the response given by the defendant. In some ways, [the police officer's] response can be viewed as designed to stop the conversation short. As such, defendant's statement was spontaneous and not the result of police questioning in violation of the defendant's constitutional rights and will not be suppressed (People v. Lynes, 49 NY2d 286)."

The lesson here is clear. First, you are not required to talk to the police when you arrested. Two, if you are questioned, you have the right to ask for an attorney and the questioning must immediately stop. Three, if you talk or volunteer information without counsel present, you should make sure that what you say will not strengthen the prosecution's case. Once it is said, if it can be it will be used against you. Although these lessons seem obvious and clear, this individual was not the first, nor will he be the last, to help sink his own ship.

Crotty Saland PC is a criminal defense firm located in lower Manhattan. Prior to starting the criminal defense firm, our founding New York criminal defense attorneys served as prosecutors in the Manhattan (NY County) District Attorney's Office.

New York criminal defense attorneys routinely hear it from their clients. "I was framed" or "I was entrapped." While often times a New York criminal defense lawyer can dissect and locate errors in the investigation, arrest procedure or paperwork of a criminal case, establishing that a client is the victim of entrapment, as a matter of law, is not as easy. In fact, entrapment is specifically defined in the New York Penal Law (NY PL 40.05) and is far more complex than the "they made me do it" or "they pushed me into it" defense. That beings said, if you can establish that you violated a particular criminal statute in New York due to this entrapment, an affirmative defense to the charges exists.

What is Entrapment - New York Penal Law 40.05

Although not a verbatim cut and paste of the actual statute and not a substitute for a reading of it and discussion with your legal counsel, entrapment is defined as follows:

If you were induced or encouraged by a public servant (for example, the police), or a person cooperating with them, to engage in particular conduct AND it was done to obtain evidence against you in a criminal prosecution AND the method used to obtain that evidence created a substantial risk that you would commit the particular offense even though you were not generally disposed to committing such an offense, you may have an entrapment defense.

Other critical points in this statute are that the inducement and encouragement must be active and merely affording you the opportunity to commit a particular crime or offense is not sufficient to raise to the level of entrapment.

What is Encouragement and Inducement

"The testimony of the undercover officers demonstrates that they merely afforded defendant an opportunity to commit the offense, which standing alone is insufficient to warrant an entrapment charge ( see, Penal Law § 40.05; People v. Thompson, 47 N.Y.2d 940, 941, 419 N.Y.S.2d 948, 393 N.E.2d 1021; see also, Mathews v. United States, supra, 485 U.S. at 66, 108 S.Ct. at 888). Merely asking a defendant to commit a crime [of Patronizing a Prostitute by asking if he wanted to receive oral sex] is not such inducement or encouragement as to constitute entrapment." See People v. Brown, 82 N.Y.2d 869 (1993)

Being "duped" into committing an offense is not necessarily entrapment due to encouragement or inducement. See People v. Skervin, 17 A.D.3d 771 (3rd Dept. 2005)

Who Has to Prove the Entrapment

Because it is an affirmative defense, the burden of proving that you were entrapped rests on your shoulders (it is the defendant's burden).

The above description of the entrapment defense is very brief and far from detailed. Do not rely on this blog entry to ascertain if entrapment exists and is applicable in your case. Instead, discus this matter with your criminal defense counsel.

Crotty Saland PC is a New York criminal defense firm located in New York City. Representing clients throughout the New York region, both partners previously served as prosecutors in the Manhattan District Attorney's Office.

As a former prosecutor in the Manhattan District Attorneys Office and as a criminal defense attorney in New York City, I could probably write a book on the stupid things people say when confronted by the police. Maybe they think they are going to talk themselves out of trouble or maybe they are just nervous, but the end result is often the same....they get themselves in deeper water and often end up being placed under arrest. A defendant in Queens County charged with Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03(1) and 265.03(3)), learned this lesson the hard way.

In People v. Virgilio Rodriguez, 2632/08, decided June 23, 2009, police responded to "shots fired." When they arrived at the location the officers asked what happened and some individuals pointed to the defendant and stated that the officers should ask him. Upon asking the defendant what happened the defendant admitted that he shot off his gun and then voluntarily brought the officers to his office a few feet away and retrieved his gun from the desk drawer. The police placed the defendant under arrest and brought him to the precinct and ultimately central booking. During this time, the family obtained a criminal defense attorney for the defendant and the attorney filed a notice with the court (a letter indicating that the defendant has counsel). Despite this, the police questioned the defendant on video. Ultimately, the defendant's attorney challenged both the statement at the scene as well as the video statement. Unfortunately for the defendant, the court ruled that his statement was admissible as it was made at the scene voluntarily and while the police where investigating. In a close to literal sense, the defendant shot himself in his foot for opening his mouth at the scene.

What is more interesting is what the court noted about the second statement:

"Regarding the admissibility of the video statement, I believe this case illustrates the inequities between court appointed counsel and retained counsel. The District Attorney of Queens County has instituted a procedure wherein they select certain individuals to be questioned regarding the alleged crime and potential alibis. The protocol in Queens County is that prior to arraignment in criminal court, defendants who have not retained counsel are given assigned counsel from either Queens Law Associates, the Legal Aid Society, or the 18b attorney on call. Therefore, it is only in the rare situation where defendant has retained counsel could a notice of appearance on behalf of that defendant be filed before the case is docketed. Clearly, the importance of the notice filing by retained counsel is that 'once an attorney has entered the proceeding...a defendant in custody may not be further interrogated in the absence of counsel' People v. Rogers, 48 N.Y.2d 167 (1979). In the present situation, the defendant, Mr. Rodriguez, was questioned when the district attorney knew or should have known retained counsel had filed a notice. Accordingly, the video taped statements Mr. Rodriguez made at central booking must be suppressed."

Clearly, there are a lessons and issues that we can take from this case. First, it is often not in your interest to try to talk yourself out of a situation by admitting to a crime or lying about your actions. These statements certainly can damage your likelihood of successfully challenging any case. You risk either giving law enforcement evidence or the ability to obtain evidence that they would not have had but for your admission or you can "lock" yourself into a statement that may not be accurate. Therefore, whether you retain criminal counsel or work with a court assigned attorney, it is advisable to have an in depth conversation with your lawyer prior to any interaction with law enforcement if possible. This is blog entry is in no way advice as to how you should pursue your own criminal case, but the potential ramifications of your actions or statements is something you should consider.

A second issue that is also concerning deals with the court's assertion that defendants who do not retain counsel are more often spoken to by prosecutors with the intent to obtain admissions. This is due in part because "right to counsel" triggers on the filing of a notice by an attorney that he or she is representing the accused. In cases where a person is indigent, a defense attorney is often not assigned until way after the point were a statement from a defendant would be taken. While I certainly have my own ideas on how to rectify this, defendants should not be treated differently due to their means to hire criminal counsel. In fact, some defendants who are assigned counsel, albeit not at there choosing, get a free attorney who is heads and shoulders above some of their private practice colleagues. Regardless, each of us, affluent, middle class indigent or anything in between, should be afforded the same treatment, respect and rights whether we hire our own attorney or provided one by the courts.

Crotty Saland PC is a New York based criminal defense firm. Founded by two former Manhattan prosecutrs, Crotty Saland PC represents individuals accused of crimes throughout the New York City region.

Whether you were arrested or issued a New York Desk Appearance Ticket (DAT) for Shoplifting pursuant to New York Penal Law sections 155.25 (Petit Larceny) or 165.40 (Criminal Possession of Stolen Property), the legal standard is the same. Regardless of the crime, police officers in New York City and throughout the state, must have probable cause to arrest you. If not, your criminal defense attorney or lawyer must file a motion for the dismissal and to request a Dunaway hearing (other hearings might be applicable as well). Beyond this basic legal right that you have to prevent unlawful arrests, there are other factors that should be addressed by your criminal defense attorney. The following is a brief analysis of one of such factor.

According to People v. Olivo, 52 N.Y.2d 309, 310 (1981), the Court of Appeals, New York's highest court, has found that in order to sustain a conviction for shoplifting, one's actions must be "wholly inconsistent with the rights of the owner." Taken further, the Court of Appeals found that "[i]f a customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and other elements of the crime are present, a larceny has occurred."

Although the above case seems relatively straight forward, there numerous ways to interpret that ruling. For example, what is "wholly inconsistent?" Would placing two sweaters in your large purse be "wholly inconsistent?" What about placing those same sweaters inside your jacket? continuing with the "what if game," what if the store provides bags or carts to carry items before you purchase them and what if they do not? Does this alter whether placing sweaters or even food from a supermarket in your personal bag or jacket is "wholly inconsistent?" If you were still shopping when you were stopped would the case be different then if you walked passed a register, but you had not exited the store?

More analysis after the jump...

Continue reading "New York's "Wholly Inconsistent" Shoplifting Standard: NY Case Law & Applicability to Your Criminal Defense" »

I have routinely advised my clients that if they are questioned by the police they should always call me first. What may seem like innocent questioning may actually be the final steps of a law enforcement investigation that will leave them incarcerated for the foreseeable future. As former Manhattan prosecutors trained under Robert Morgenthau, my partner and I at Crotty Saland PC know how an admission by an accused can often be a nail hammered by a defendant into their own coffin.

We routinely file motions for our clients to obtain hearings to challenge the voluntariness of their statement to the police (this is called a Huntley Hearing). Yet, what role, if any, does sleeplessness or intoxication have on ones ability to voluntarily give a statement to the police even if you, the accused, believe you are giving a voluntary statement (did I lose you?!!?)? In other words, does sleeplessness or intoxication negate an otherwise voluntary admission?

Well, a Supreme Court judge sitting in the Criminal Term in Brooklyn (Kings County) New York just dealt with this particular issue as to whether drug use and a lack of sleep could render an otherwise voluntary statement involuntary. In People v. Jeanine Harrington, decided in July 2009, the court found that "[t]he mere fact that a confession is made under such circumstances...does not necessarily render the admission inadmissible. It is a factor to be considered in determining whether the confession was, in fact, the product of a rational intellect and a free will."

In this particular case the defendant admitted to smoking crack and being up all night. Even during the interview the defendant fell asleep. That being said, the defendant may have been "strung out," but was consistent in her answers, did not request that questions be repeated and appeared aware at the time of her questioning.

Although the decision rendered by the court was not analyzed extensively from a legal perspective, it did give genuine insight into the fact that intoxication and sleep deprivation may not render your statement involuntary. The lesson any accused person should take from this case is that instead of regretting what you said and trying to legitimately fight the admissibility of your admission after the fact, it is a "wiser" move to consult with an attorney beforehand. In the event you are unable to do so, asking to speak with an attorney will legally prevent the prosecution or police from questioning you further.

While each case requires its own unique analysis as the best way to protect an accused's rights and liberty, one thing is consistent across all cases. Retaining experienced and knowledgeable criminal defense lawyers, such as the former prosecutors at Crotty Saland PC, may mean the difference between maintaining your freedom or compounding the already terrible situation you find yourself in.

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Just about every NY criminal defense attorney has either represented a client charged with Disorderly Conduct or worked out a disposition where Disorderly Conduct was offered in lieu of a top count plea. In the criminal courts of New York City, "Disorderly Conduct" can be heard throughout the hallways and courtrooms before the judge bangs his gavel to start the day until the last cases are called in the evening.

Recently, a NY County Criminal Court judge addressed Disorderly Conduct in denying a defendant's motion to dismiss. In People v. Derrick Diaz, 2008NY062928, the complaint alleged that the police "observed the defendants yelling and screaming and behaving in a violent, tumultuous, and threatening manner, as follows: pushing at police officers and causing a disturbance. Defendant's [sic] conduct created a public disturbance/inconvenience in that it caused a crowd to gather, disruption of the normal flow of traffic, and people to express alarm."

Pursuant to subsection one of Disorderly Conduct, a person is guilty of this offense when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he engages in fighting or in violent, tumultuous or threatening behavior.

The defendant argued that the alleged facts set forth in the complaint were insufficient to establish either that he intended to breach the peace or that he recklessly created such breach.

In denying the defendant's motion to dismiss the judge noted that "[e]ven if the defendant's conduct as alleged failed to establish his intent to create a breach of the peace, the complaint would be sufficient to the extent that it established that the defendant recklessly created a risk of such result. 'A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustified risk that such result will occur or that such circumstance exists.' PL ､15.05(3). It is reasonable to infer from the facts alleged in the accusatory instrument that the defendant knew that his verbal outbursts and pushing of the officers created a risk that others would be drawn to the scene. As the court noted in People v. Tichenor, 89 NY2d 769 (1997), the statute in question 'applies to words and conduct reinforced by a culpable mental state to create a public disturbance.' Id at 775. A loud and violent confrontation with the police in a residential neighborhood late at night carries the potential of such a result. Whether or not the defendant's conduct actually caused a public inconvenience is irrelevant to a Disorderly Conduct charge." People v. Todaro, 26 NY2d 325, 328 (1970)

Clearly, the Court recognized that it is not the intent that matters, but whether an individual acted reckless with respect to Disorderly Conduct. Although a challenge to this, or any charge, may fail after one particular legal attack, that does not mean that your case is insurmountable. Let the experienced criminal defense attorneys at Crotty Saland PC examine your case and explore every legal avenue to mount a stronger or different challenge on your behalf.

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