New York Criminal Lawyer Blog

It is almost as if he is shooting fish in a barrel. Manhattan District Attorney, Cyrus Vance, Jr., has made another big splash announcing the arrest and indictment of a New York State Department of Motor Vehicle's ("DMV") clerk who is alleged to have unlawfully processed at least three drivers license applications. It is claimed by prosecutors, who are understandably concerned about this type of conduct, that one of the individuals who fraudulently obtained a license had previously been convicted of a felony and deported from the United States. Clarence Jenkins, the DMV clerk indicted for the alleged scheme, is charged with three counts each of Criminal Possession of a Forged Instrument in the Second Degree, a class D felony, Issuing a False Certificate, a class E felony, and Official Misconduct, a class A misdemeanor. If convicted, the accused faces up to seven, four and one year in custody on each respective offense.

In acknowledging the danger of illegally issuing New York State drivers licenses to those who are not entitled to them, DA Vance stated "... [Jenkins] may have jeopardized public safety." Whether as a New York criminal lawyer I agree with the prosecution's ultimate determination as to how to handle the case and seek a potential plea or sentence, DA Vance is certainly correct in his assertion. Unlike a minor attempting to get a license for the purpose of going to a bar or purchasing alcohol, fraud such as that alleged here has the potential for grave danger. Fortunately, it does not appear from the press release that this is the case.

In working with New York State Inspector General Ellen N. Biben, a former Manhattan prosecutor herself, the New York County District Attorney's Office alleges that Jenkins turned a tidy profit for his criminal conduct. In fact, Jenkins is accused of accepting forged driver licenses purportedly issued by the Commonwealth of Puerto Rico from at least three individuals who paid money to obtain the illegally-issued New York State driver licenses. The amount of money he is believed to received totaled almost $15,000. It is claimed that Jenkins became immersed in this criminal scheme as early as 2009 when he instructed one of the individual to go to the DMV at 125th Street, wear a Yankees hat, sit in front of his window, and then wait for a signal.

As noted above, Jenkins faces a term of state prison should he be convicted of these crimes. Briefly, one is guilty of Criminal Possession of a Forged Instrument in the Second Degree (New York Penal Law 170.25) when he possesses a written instrument with the intent to defraud that is fake or false and that object purports to be issued from a governmental agency such as the DMV. One is guilty of Issuing a False Certificate (New York Penal Law 175.40) when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, one issues such an instrument (such as a drivers license) or makes the same with intent that it be issued, knowing that it contains a false statement or false information. Lastly, one is guilty of Official Misconduct (New York Penal Law 195.00(1)) when one is a public servant and with the intent to obtain a benefit one commits an act relating to one's office but constituting an unauthorized exercise of one's official functions, knowing that such act is unauthorized.

As I routinely note in cases such as these, it will be interesting to see how prosecutors proceed with the case. Because Jenkins is already indicted, he is starting off in a more precarious position than if he was merely arrested. Additionally, do prosecutors believe or does evidence establish that Jenkins had created or permitted the issuance of many more drivers licenses? Did Jenkins make admissions or is there independent evidence of these cash transactions? What evidence (computer records, for example) implicate Jenkins in the creation of each drivers license? These factors will certainly play out in where this indictment heads and how long it takes to achieve a disposition.

To further understand the fraud crimes listed above, either follow the links or review the websites and blogs below.

Established in 2008 by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent defendants who are the target of or have been arrested in any white collar and fraud case throughout the New York City and suburban area.

Rookie term Manhattan District Attorney, Cyrus Vance, Jr., has found himself in a position that is anything but envious. According to multiple reports, DA Vance's main referral source for business, New York City Police Department Commissioner Ray Kelly, is also the father of an accused rapist. Greg Kelly, the co-host of Fox 5's "Good Day New York," is alleged to have raped a woman this past October in Manhattan. Although it is claimed that the alleged victim's boyfriend initially confronted Commissioner Kelly about his son's unwanted sexual conduct with his roughly thirty-year old girlfriend, the investigation was properly turned over to the District Attorney's Office to ensure a fair and honest investigation by an agency with no ties to Greg Kelly. Far from atypical and likely the best decision for the investigation into the newsman's guilt or innocence, Assistant District Attorney's in the Sex Crimes Bureau will determine how and if the case will proceed to an arrest or indictment.

Obviously, Greg Kelly, through his counsel, strenuously denies the wrongdoing. Although any allegation of a sex crime is potentially debilitating and an embarrassing stigma, should the accused be convicted of a rape crime in New York the actual punishment is much worse than any public shame. While the manner in which Greg Kelly is accused of raping the complainant is not yet clear, there are generally three degrees of this crime. Regardless of the degree, rape must include penetration, aka "sexual intercourse," even if slight.

Third Degree Rape (New York Penal Law 130.25) comes in three distinct subsections. An "E" felony punishably by up to four years in prison, one is guilty of this crime if he engages in sexual intercourse with a person who is unable to consent due to any reason other than being less that seventeen. The second subsection would occur if a defendant is twenty-one or older and the complainant is less than seventeen years old. Lastly, the third subsection occurs where the victim does not consent due to a reason other than incapacity to do so.

Second Degree Rape (New York Penal Law 130.30) is perpetrated through two distinct subsections. In the first scenarios, a defendant is guilty of this crime if and when he engages in sexual intercourse with a person less than fifteen years of age. The second subsection occurs when an accused engages in sexual intercourse with a person who is incapable of consent by a reason of being either mentally disabled or mentally incapacitated. According to the New York Penal Law, "mentally disabled" means that an individual has a mental disease that renders her incapable of appraising the nature of her conduct. "Mentally incapacitated," however, means that a person is temporarily incapable of controlling or appraising her conduct due to the influence of drugs or alcohol that was given without consent. A "D" felony, Second Degree Rape is punishable by up to seven years in prison and as little as two years.

The last and most serious degree, First Degree Rape (New York Penal Law 130.35), is a "B" felony punishable by five to twenty-five years in state prison. A person is guilty of this crime if and when he has sexual intercourse with another person by forcible compulsion (the use of physical force or a threat of immediate death or physical injury). Alternatively, the complainant is incapable of consent because they are physically helpless (unconscious or is physically unable to communicate unwillingness to an act). The third subsection of this degree transpires when the sexual intercourse involves a child less than eleven years old. Finally, this crime is also committed if the victim is less than thirteen and the accused is eighteen years old or more.

Due to the nature of the allegations and the ages of Mr. Kelly and the complainant, many of the degrees and subsections above would not be applicable. However, reports are not clear as to whether force was used or the complainant could not consent due to intoxication. If and when such information is released or Mr. Kelly is charged, we will have a full understanding of the allegations, criminal charges and potential sentences. Until that time, Mr. Kelly is merely a man who is accused of a crime he may or may not have committed.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent those accused of crimes throughout New York City and the surrounding suburbs.

Facing a Drunk Driving, DUI or DWI criminal arrest in New York can be an extremely frightening experience for any individual especially for an accused who does not have an experienced New York DWI lawyer at their side. Whether one is arrested and charged with Driving While Intoxicated in Manhattan, Queens, Brooklyn, the Bronx or out in the counties of Westchester or Rockland, the consequences of a conviction can be severe and life-changing. Therefore, when facing any of the DWI crimes found under NY Vehicle and Traffic Law (VTL) 1192, it is extremely important to understand your legal rights so that you can mount the best possible defense. In this blog post I want to explore whether a New York court will allow the prosecution to utilize the results from a portable breathalyzer or intoxilyzer administered by the arresting officer during an initial stop at a DWI trial.

A recently decided New York County (Manhattan) criminal case, took up this exact legal issue. In People v. Jones, 2010NY061507, NYLJ 1202504258080, at *1 (Crim., NY Decided July 18, 2011) the defendant, Kareem Jones, was tried before a jury on charges of Driving While Intoxicated (DWI) pursuant to NY VTL1192(3) (also called "Common Law DWI") and Driving While Ability Impaired (DWAI) pursuant to NY VTL 1192(1). As you might expect, one is guilty of DWI when they operate a motor vehicle in an intoxicated condition. If convicted the defendant can face up to one year in jail, a suspension of their license, fines, and probation for three years. Further, the law requires that an interlock device be placed on the convicted's vehicle. On the other hand, one is guilty of DWAI if they operate a motor vehicle while impaired by the consumption of alcohol. DWAI is an infraction and is often charged as a lesser offense of the other DWI crimes listed under VTL 1192.

In this case, prior to the commencement of trial, the People moved to introduce evidence that at the time of his arrest, Mr. Jones had .09 of one percent by weight of alcohol in his blood (the legal limit is .08). The defendant objected to the introduction of the evidence because it was established by a "portable breath test" (PBT) administered by the officer at the scene (in the street as opposed to at the precinct). Based on some relevant case law, the defendant argued that "portable breath tests," as opposed to stationary breathalyzer tests maintained at police precinct houses, are not admissible evidence and are inherently unreliable. Furthermore, if the prosecution wanted to admit the results, the defendant argued that they had to submit expert testimony showing the reliability of the PBT. Obviously, the crux of the People's case was based on the blood alcohol content (BAC) reading; if the evidence is not admissible or deemed unreliable then the defendant could "beat the rap" or face only the lesser charge of DWAI.

Unfortunately for the defendant, the Court ruled against the him stating: "the results of an otherwise reliable chemical test are not rendered inadmissible at an intoxicated-driving trial just because the device used to perform the test is capable of being moved." The court went on to explain that the portability of a breath testing device is not a factor relevant to the admissibility of the results. Rather, evidence of a defendant's BAC is admissible if obtained by a chemical test that meet the following two foundational requirements for admissibility: (i) that the device, when operated correctly, ordinarily produces scientifically reliable results and (ii) that the device was in good working condition and was properly used.

The court went on to explain that the type of PBT utilized by the arresting officer was an accepted scientific device. The US Department of Transportation/National Highway Traffic Safety Administration (NHTSA) lists the PBT on the Conforming Products List of Evidential Breath Alcohol Measurement Devices, and the device was approved by the Commissioner of Health for use in New York. Therefore, there was no need for expert testimony to affirm the reliability of this scientifically approved device. Moreover, the People offered evidence (two certified maintenance reports) demonstrating that the PBT was properly calibrated and in working order. Also, the People established that the officer who administered the test was qualified to properly operate the test.

In short, People v. Jones is a very dangerous case for New York DWI lawyers and DUI defendants. The case very clearly illustrates that New York criminal courts will allow the prosecution to introduce evidence of the defendant's blood alcohol content even when obtained by a portable breath test device by an officer at the scene. This scientific data, as opposed to just an officer's observations is far more difficult to overcome. Should you, an individual arrested for DWI or DUI "blow" at the scene of an arrest? The answer to that questions is well beyond the four corners of this blog entry.

For a wealth of relevant and practical information about New York DWI laws and DWI crimes ranging for statutes, sentencing guidelines and collateral consequences, follow the links above. Further information is also available below through CrottySaland.Com.

The two founding New York DWI lawyers at Crotty Saland PC served as Manhattan prosecutors prior to establishing the criminal defense firm. The New York criminal lawyers at Crotty Saland PC represent individuals arrested for DWI, DUI and Drunk Driving arrests throughout New York City and beyond.

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.

In criminal trials in the state of New York, the People (a.k.a. the prosecution) bear the burden of proving that the defendant has committed the charged offense beyond any reasonable doubt. Obviously, the role of the criminal lawyer in New York is to controvert, challenge and poke holes in People's case. Many times in criminal trials the strongest evidence of guilt in the prosecution's arsenal is the direct testimony of a witness. Therefore the District Attorney's Offices, whether it be one of the five borough/counties-- Manhattan, Brooklyn/Kings, the Bronx, Staten Island/Richmond, or Queens-- or surrounding counties-- Westchester or Rockland -- must be empowered to compel these "material witnesses" to testify. A subpoena is that legal tool, which empowers the State of New York to compel testimony by a witness. Of course, even if you've been subpoenaed to testify in a New York criminal trial, you don't necessarily have to testify.

Most of us don't need a NY criminal defense attorney to tell us what the Fifth Amendment is, but many times people do confuse the scope of the Amendment. The Fifth Amendment only protects individuals from self-incrimination. That is, if your boyfriend was charged with burglary and you are subpoenaed to testify as to his whereabouts on the night in question, but you had nothing to do with the burglary and your truthful testimony will in no way incriminate (admit guilt of a crime) you, then you can potentially be compelled to testify.

So what if you get up to the stand and still don't cooperate? The answer to this question is what I want to highlight in this blog post. The court may hold you in Contempt. This is the strongest power a judge has to impose sanctions for acts which disrupt the court's normal process and proper functioning. Criminal Contempt is an offense against judicial authority. The court will hold a hearing, called a contempt proceeding (where the individual in contempt can defend him/herself), if "the contemptuous behavior is primarily an offense to the court." The primary purpose of a Criminal Contempt proceeding is to "protect the integrity of judicial process and compel respect for its mandates."

A recent criminal case from Westchester County, People v. Selwyn Days, 01-0469, NYLJ 1202520880499, at *1 (Co., WE, Decided October 11, 2011) is a perfect illustration of the type of behavior by a witness that will result in that witness being held in contempt. Cherlyn Mayhew was a material witness in the Murder trial of Selwyn Days. Mayhew had testified in 2003 before the grand jury and also in the first trial, which ended in a hung jury. Mayhew did not testify in the second trial because she was unavailable due to sever illness, but Days was convicted. That conviction was overturned and in the third trial Mayhew refused to testify (although now healthy), so the prosecution compelled Mayhew to testify pursuant to a Material Witness Order. Yet again there was a mistrial, and in the fourth trial Mayhew again was compelled to testify. The Westchester County District Attorney's Office flew her in to New York and paid for all travel expenses. However, on the stand Mayhew responded "I don't remember" or "I don't know" to every single question. She even claimed not remembering even testifying before the grand jury and in the first trial back in 2003. She claimed that her memory loss was due to Reflex Sympathetic Dystrophy (RSD)- the illness from which she suffered back in the second trial. Frustrated with the inconsistencies in the many testimonies especially after making so many accommodations for Ms. Mayhew, the court held a Criminal Contempt proceeding. After inquiring into the effects of the RSD illness and examining the evidence, the court found sufficient proof that Mayhew was "willful and contumacious in her failure to answer legal and proper questions posed and that she did not obey the mandate of the Material Witness Order." In other words, Mayhew was held in Contempt because she completely feigned the memory loss so as to avoid answering the lawfully posed questions. The court found her guilty and punished her to 5 days in the Westchester County jail.

Though it may not seem like much (considering the small jail sentence), a judge has the power to hold a witness, who is attempting to obstruct the proper orders of the court, in Contempt. In Mayhew's case, the court only gave her 5 days in jail. However, this Contempt does not merely go away and stays on your record for life.

To educate yourself about the criminal process and judicial system in New York, a review of this blog as well as following the links below will provide a strong starting point. Crotty Saland PC, a New York criminal defense firm founded by two former Manhattan prosecutors, represents witnesses and targets of arrest, indictments and criminal investigations throughout the New York City area.

Sometimes, as a criminal defense attorney in New York, the best way to zealously represent your client against criminal charges is to challenge the admissibility of evidence before the trial begins. This strategy can be particularly effective when a defendant faces any one of the Driving While Intoxicated (DWI) charges listed under NY Vehicle and Traffic Law (VTL) 1192. It is important to remember that no matter its weight or strength, if the evidence (whether it be contraband found on a defendant or statements made by him/her) was not obtained by legal means by the police, then it will not be admissible in a criminal court. That is, if an individual's Constitutional rights were violated in the apprehension of evidence, whether it be during a New York DWI, DUI or other criminal arrest, then it will be excluded. A recent case in the Kings (Brooklyn) County Criminal Court, People v. Licelle Lovelle, 2010 KN068463 NYLJ 1202516648515, at *1 (Sup., KI, Decided September 14, 2011) raised some very interesting legal issues regarding the admissibility of evidence in a DWI case. Whether or not this case is useful in your tool box when defending against a drunk driving arrest is something worth exploring with your criminal lawyer.

Ms. Lovelle was charged with Operating a Motor Vehicle While Under the Influence of Alcohol Or Drugs and other DWI charges pursuant to VTL 1192 including Driving While Impaired - VTL 1192.1, Driving While Intoxicated Per Se - VTL 1192.2, and "Common Law DWI" - VTL 1192.3. The defendant's criminal lawyer called for a suppression hearing arguing that the arresting officer violated the defendant's Constitutional rights while obtaining evidence. Specifically the defense argued that Lovelle's 5th Amendment rights were violated because the officer took statements without issuing proper Miranda warnings.

A quick legal refresher: The Fifth Amendment protects individuals against self-incrimination. Stemming from this right, and pursuant to Supreme Court case law, whenever the police take someone into custody that individual must be informed of their right not to make any self-incriminating statements (this is embodied in the Miranda rights, which most of us know or at least have seen on countless "Law and Order" episodes). Furthermore, the defense argued that the arresting officer lacked probable cause to arrest the defendant in the first place. The Fourth Amendment of the Constitution guards against any unreasonable search and seizure, and case law has established that in order for the police to make a search and seizure (for example arrest you and search your person) they need to have probable cause (basically a belief that you committed the crime supported by some facts/observations etc.).

In Lovelle the officer observed the defendant's car parked partially in a crosswalk with the defendant sleeping at the passenger wheel. The defense argued that the officer lacked probable cause to approach the defendant, to make a stop (a seizure) and ask to questions. However, the court pointed out that under VTL § 1202(1)(d) it is illegal to park on a crosswalk; therefore the officer had an "objective credible reason for approaching the defendant's parked car" and to make a stop to request information. After smelling alcohol on the defendant and noticing the defendant's bloodshot eyes, unsteady balance, flushed face, and disheveled clothing, the officer had more than enough probable cause to administer a sobriety test. Naturally, when the defendant failed the sobriety test the officer had enough evidence to make a lawful arrest (however, do not be confused with probable cause to make an arrest and guilt at trial beyond a reasonable doubt).

Moreover, the Court would not suppress the statements that the defendant had made to the officer at the scene. Ms. Lovelle was asleep in her vehicle when the officer approached. The court argued that this routine check by the police- inquiring into the suspiciousness and illegal behavior of the defendant (i.e. parking in a crosswalk)- did not require that the officer give the defendant her Miranda rights. Miranda rights are required only when the police take an individual into their custody. The court argued that the officer was merely making a general basic request for information. In New York, police are allowed to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. The police need an articulable reason for the questioning, but the reason does not need to be indicative of criminality.

Based on the circumstances of the officer's inquiry, the defendant could not have reasonably considered herself in custody during the routine questioning by the police for information. In other words, since Ms. Lovelle was not in custody (the officer was merely making a general inquiry as to why she was parked in a crosswalk and asleep at the wheel at 4:15AM) there was no legal requirement that Miranda warnings be administered to the defendant at the scene. Ms. Lovelle'd answers- that she had been drinking at a restaurant and thus fell asleep here- were admissible evidence against her in the DWI case.

Lovelle demonstrates that police officers in New York have a right to request information based on circumstances that may not amount to criminal behavior. In other words, while an officer needs probable cause to make an arrest, they need only an rticulable reason for questioning. Furthermore, an officer is entitled to make a stop of a vehicle and driver if that individual is in violation of any VTL statute. Having said that, just as an officer may have the right to make an inquiry, you have a right to refuse to answer. Certainly, admitting you had a few drinks at a bar or restaurant is only going to make your case that more difficult to overcome. Remember, while an arrest for DWI or any other offense is traumatizing at best and life altering at worst, exercising your right to remain silent and to seek criminal counsel may be the best steps you can take to protect your future.
To learn more about New York DWI laws and New York DWI crimes, follow any of the highlighted links above. Additionally, information on these and other crimes can be found throughout the NewYorkCriminalLawyerBlog.Com and the CrottySaland.Com DWI information page.

Founded by two former Manhattan prosecutors who served in the Trial Division's DWI Unit, Crotty Saland PC's New York criminal attorneys and New York DWI lawyers represent those arrested for DUI and drunk driving charges throughout the New York City area.

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.

Getting caught with illegal drugs in New York can be a frightening affair and one which certainly requires the assistance of an experienced criminal lawyer. Whether in the Bronx, Manhattan, Queens or Brooklyn, Assistant District Attorneys and judges can (and often do) stick to the book. Sometimes defending yourself against a misdemeanor or felony charged of Criminal Possession of a Controlled Substance can seem like an uphill battle. If you had the drugs - heroin, cocaine, etc., on your person or in your car, then there is nothing you can do right? Well, not exactly. In fact, not at all. Remember that the New York Constitution has strict guidelines regarding the ways in which NYPD officers can obtain evidence. New York has adopted standards arguably at least equal to and if not more protective of individual liberty then the standards set by federal cases. In this blog post, through the examination of a recent Bronx criminal case- People v. Sincere Pinckney, 75334C-10, NYLJ 1202514446063, at *1 (Sup., BX, Decided September 9, 2011)- I will elucidate (great word, huh?) some of the basic framework for measuring the legality of the intrusiveness of a police action in New York. The case provides a great illustration of circumstances under which evidence will be suppressed because it was unlawfully obtained in violation of the NY Constitution and the 4th Amendment.

In People v. Sincere Pinckney, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to VTL 511.1(a), Operating a Motor Vehicle Without a License pursuant to VTL 509.1, and Unlawful Possession of Marijuana pursuant to NY PL 221.05. It should be noted that in New York marijuana related offenses are specifically carved out from and identified as separate from Controlled Substances crimes (possession of cocaine or heroin, for example) found in Article 220. Unlawful Possession of Marijuana is actually not even a "crime," (Criminal Possession of Marijuana is a crime) but rather a violation. Nonetheless, although Pinckney involves a marijuana charge, the standard for what constitutes an unreasonable police intrusion resulting in the suppression of evidence will apply to more serious contraband cases (e.g. possession of cocaine or ecstacy).

So, let's get to the facts of Pinckney. Officer Gomez arrived to the scene of car accident in the Bronx. He observed the defendant, Sincere Pinckney, speaking with another male by the cars and when he approached heard the defendant say "I'm sorry, I just moved the car." Gomez spoke with other witnesses who identified the defendant as the person responsible for the accident--swiping three vehicles parked beside the curb. Therefore, Officer Gomez went back to question the defendant, and saw that the defendant had his hands in his pockets and asked him to remove them. When the defendant removed his hands two bags of marijuana fell out and then Officer Gomez patted down the defendant and asked for defendant's license. The defendant did not have a valid license.

Now People v. De Bour, 40NY2d 210, establishes the basic framework for measuring the intrusiveness of a police action in New York. The first level of intrusion permits an officer to approach a citizen and request information provided there is an objective, credible and articulable reason to do so. The second level permits a momentary stop when there is a "founded suspicion that criminal activity is afoot." Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor. Lastly, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime. Here, Officer Gomez asked if the defendant had a license--a permissible level-one inquiry. The officer had the basis for requesting this information because of the accident and the witnesses who saw the defendant swipe the other cars. However, the court in Pickney believed that asking the defendant to take his hands out of his pockets was a level-two inquiry. There was no indication that Officer Gomez suspected the defendant of any criminal activity upon approaching him; Gomez knew that there was a minor auto accident and that the defendant may have caused it, but as the court put it "a fender-bender, however, by itself, does not on its own suggest criminality and discretion is required."

As a result of the court's analysis above, the intrusion by Officer Gomez was illegal and the marijuana bags that fell to the ground were ruled inadmissible evidence. The recovery of all three bags containing marijuana was a direct result of unlawful police conduct, and therefore the Unlawful Possession of Marijuana charge was entirely dropped.

This case is a great illustration of the framework for police intrusions and something to be discussed with your own New York criminal lawyer should it be applicable to the allegations in your case. It is important to know your rights when dealing with the NYPD as well as prosecutors. Although it is not as easy as merely asserting a violation, of those individual rights are violated and/or guidelines ignored, the fruit of such an intrusion- the evidence- will not be admissible in a criminal trial.

Representing those accused of drug, narcotics and marijuana crimes throughout New York City as well as the suburbs, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys Office before establishing the defense firm. To educate yourself further about New York criminal laws, including those involving marijuana or controlled substances, please follow the highlighted links above or below.

To do the "right thing" almost always takes courage. The path of least resistance it is not. In New York City, where gun crime seems to have been relatively rampant over the past year recently culminating in the tragic death of New York City Police Officer Peter Figoski, District Attorneys are frothing at the mouth with every new firearm arrest. While often time zealous prosecution is more than reasonable in gun and violent crime cases, other times law enforcement in New York City can't see the forest from the trees. For the sake of Meredith Graves, a nurse from Tennessee who "checked" her legally owned handgun with the police at Ground Zero, let's hope that Manhattan District Attorney Cyrus Vance, Jr. not only can see this recent gun possession arrest for what it truly is - an honest mistake about New York laws - but also ignores the general guidelines he and his office have imposed on weapon cases.

Before addressing the allegations against Ms. Graves, one must understand and have a grasp on New York's criminal statutes involving the possession of firearms without a permit. According to New York Penal Law 265.03(3), you are guilty of Criminal Possession of a Weapon in the Second Degree (CPW 2) if and when you possess a loaded firearm (a pistol, revolver, handgun, etc.) that is both loaded and outside your home or place of business and you do so without a permit. There are two critical concepts or rules that apply to these cases. First, you need not possess any intent to use that firearm unlawfully or against another person. Second, case law establishes that "loaded," in the eyes of the court, is far more liberal than its literal meaning. In fact, if the firearm is capable of being loaded and the ammunition is locked in a carrying case with your gun (but not physically in it), then that gun is considered loaded for prosecution purposes. One last, but unavoidable point. As a "C" violent felony, NY PL 265.03 is punishable by a mandatory minimum of three and one half years in prison for a person without absolutely no criminal history. Compounding matters, a judge could sentence a defendant to as many as fifteen years in custody.

According to the New York Post, it appears as if Ms. Graves inadvertently violated Criminal Possession of a Weapon in the Second Degree when she drove from Tennessee with a loaded pistol and entered New York. Although she possessed the proper permit for her .32 pistol from her home state, New York requires anyone within her borders to possess a valid New York permit. Once here, and recognizing that firearms were not allowed at Ground Zero where she was visiting the 911 Memorial, Ms. Graves wrongly believed she could check the weapon without any reprucssions. Not realizing what was in store, Ms. Graves attempted to turn the gun over to security who then brought her to the police. In their presence, Ms. Graves handed the gun into the police. If all of the allegations are true, Ms. Graves perpetrated one of the most serious felonies in the New York Penal Law.

The denizens of Manhattan elected Mr. Vance to serve as District Attorney after decades of honorable and "no nonsense" service by his predecessor, Robert Morgenthau. Whether the tabloids agreed or the political winds blew in a particular direction made no difference to "the Boss." Subjectively, and we certainly can agree to disagree, Robert Morgenthau attempted to always do the "right thing." District Attorneys do not prosecute alleged offenders merely because they can, but because they should. If all of the facts as alleged by the New York Post are true - Ms. Graves was licensed in Tennesse to carry the firearm, she did not initially realize she possessed the weapon at Ground Zero, Ms. Graves attempted to turn in the weapon - and Ms. Graves is a registered nurse with no criminal history who was applying for a position at Brookhaven Memorial Hospital, this case is not one to hang a prosecutorial hat. No greater good would be served to slap down the accused with a criminal conviction whether it be for a misdemeanor or felony. Justice would not demand that a lapse of judgment should prevent a registered nurse from maintaining her license to practice or from coming to New York where her skills would be a much needed asset (frankly, property taxes might scare her and other skilled professionals away anyway). While the decisions to do the "right thing" may not be a popular one in this understandingly hostile firearm climate, Ms. Grave's weapon was not stolen or part of the illegal firearm trade.

Despite what law enforcement might think about sending a message to would be illegal firearm possessors in New York, a flexing of "District Attorney muscle" would arguably send the wrong message in this limited type of case. That is, if you possess a weapon in New York not realizing the law and that firearm is properly registered with a permit elsewhere, hide it and conceal it. Under no circumstance should you bring it to law enforcement. While not doing so could endanger the lives of police officers and regular residents, prosecutors will punish you for doing the "right thing" while they are unwilling to do the same.

If any of the above information or assumptions is incorrect, then a different analysis may very well be necessary when deciding how to prosecute this case. It could be, in fact, that a thorough and full prosecution is necessary. Otherwise, our leaders in law enforcement and elsewhere are elected and appointed to have courage and do the "right thing." Whether the appropriate outcome in this case occurs, and I am not insinuating that it will not, time will certainly tell.

To educate yourself extensively on New York's weapon possession laws including Criminal Possession of a Weapon in in the Second Degree, follow the highlighted links above. There you will find analysis of the various Article 265 statutes as well as links to the NewYorkCriminalLawyerBlog.Com where there is further review of legal decisions and cases in the local New York City area news.

Established by two New York criminal lawyers, the former Manhattan prosecutors at Crotty Saland PC represent individuals accused of weapon crimes throughout the New York City region.

New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous "types" of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer's arrest.

In an all too common scenario, maybe you were speeding up the FDR on Manhattan's East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it's already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial "couple of drinks." While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to "blow" up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.

People v. Scott J. Grennon, 2009-2125 OR CR, NYLJ 1202510870265, at*1 (App. Tm., Decided July 27, 2011) involved a motorist who was arrested for Aggravated Driving While Intoxicated Per Se (VTL 1192.2(a)), Driving While Intoxicated Per Se (VTL 1192.2), Common Law Driving While Intoxicated (VTL 1192.3), and speeding (VTL 1180(d)). However, and extremely crucial to our analysis, the jury acquitted the defendant of Aggravated Driving While Intoxicated Per Se and Driving While Intoxicated Per Se, BUT convicted the defendant of Common Law Driving While Intoxicated and speeding. Grennon appealed on the grounds that there was not enough evidence to sustain the conviction of Common Law DWI.

Now before getting further into the facts of the case it is essential to note the difference between these types of DWI charges. Under the DWI "per se" statutes (VTL 1192.2 and 1192.2a), a person is guilty if he/she drives with a blood alcohol content (BAC) of .08% or higher or .18 or higher respectively. Both of these crimes are misdemeanors, but the latter Aggravated DWI offense carries stiffer penalties. On the other hand, a person can be prosecuted for "Common Law" DWI (VTL 1192.3) if based on the totality of the circumstances, and evidence gathered in the course of the arrest/incident, the officer observes (and the prosecution can establish beyond a reasonable doubt) that the driver was "intoxicated.

Applying the criminal law to this case, if there was enough evidence for the officer to establish that Grennon was intoxicated in the course of pulling Mr. Grennon over and observing him (but without a BAC reading), then the Common Law DWI conviction would be upheld. What evidence did the People have to support the Common Law DWI conviction, you ask? Well a state trooper saw Mr. Grennon speeding (estimated 95 MPH in a 65 MPH zone) on the New York State Thruway in Woodbury, Orange County (upstate NY). The trooper "spotlighted" the defendant and began to follow the Mr. Grennon for a considerable distance. [Note that in New York if an officer has training and considerable experience in estimating the speeds of vehicles, then the officer's testimony- even without a radar gun- can uphold a speeding conviction]. While obtaining the defendant's driver's documentation, the trooper detected the odor of an alcoholic beverage on Mr. Grennon's breath. Grennon admitted that he was driving home from a Yankees game, where he had consumed beer. The trooper testified that Mr. Grennon's eyes were "glassy" and arrested the defendant.

The Appellate Court ruled that the evidence against the defendant was insufficient to sustain a DWI conviction. Speeding, exhibiting glassy eyes, an odor of an alcoholic beverage, and an admission of consuming beer at some point earlier did not provide significant indicia of actual impairment of motor coordination. Since the officer did not conduct any field sobriety tests the court felt that there was not enough evidence to support the conviction of Common Law Driving While Intoxicated. While the People concentrated on the speeding aspect of the case, the Court stated as follows:

"Although speeding might be taken to reveal a diminishment of the 'mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver' (People v Cruz, 48 NY2d 419, 427 [1979]; e.g. People v Barger, 78 AD3d 1191, 1192 [2010]), absent any other evidence tending to prove defendant's inability physically to operate his vehicle as a reasonable and prudent person, the proof of speeding is too equivocal to be given significant weight as to defendant's state of intoxication."

The big takeaway from this New York DWI case is that the Common Law DWI conviction standard--that the officer must observe actual impairment of motor coordination--may be a higher standard than one might expect. An officer cannot just smell alcohol and look at your eyes to determine that you are impaired. Moreover, while speeding might show that the motorist is not a reasonable or prudent driver, absent any other evidence tending to prove the defendant's inability physically to operate his vehicle, the proof of speeding may not give the necessary legal weight to the contention that the defendant is intoxicated. Keep one last (and critical) thing in mind...While this case resulted in a successful outcome for the accused and furthered a legal standard as to what satisfies proof beyond a reasonable doubt in a DWI case, each set of facts may be interpreted differently by a court. What if, for example, there was one or two other factors? What if the defendant stumbled as he exited the vehicle or fumbled his license and registration? Maybe then, not only would a new legal precedent be set, but Mr. Grennon might have spent time behind bars saddled with a criminal record.

To educate yourself about New York DWI laws and New York DWI crimes, please follow either of the highlighted links. On Crotty Saland PC's DWI information page you will find links to the numerous types of DWI offenses, information on punishment and sentencing for DUI convictions, and analysis of legal decisions interpreting New York DWI laws and crimes.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors who served in the New York County District Attorney's Office and its DWI Unit. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

New York State laws are tough when it comes to Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Police, prosecutors, and judges strictly enforce these types of drunk driving offenses, which are listed under NY Vehicle and Traffic Law (VTL) 1192. Most New York criminal defense attorneys, when representing clients facing DWI crimes in Manhattan, the Bronx, Brooklyn, Queens, or Westchester County, will often try to broker a plea agreement with the respective District Attorney's Office. The hope is to lessen the potential punishment and fines, avoid jail time and/or a long-term loss of the defendant's driver's license. Further, because of the recent changes in New York DWI law (see Leandra's Law) that require the installation of an ignition interlock device, it is always critical to identify the best defense to a DWI or DUI arrest to mitigate collateral consequences. While pleading a case to a lower offense may be the best defense, there are other viable options to consider when mounting a defense to a New York DWI or DUI charge. For instance, what if the entire police stop was deemed unconstitutional as an illegal search and seizure? A recent case from the criminal court in Geneva, New York brought to light this very interesting - and case specific - legal question.

The case, People v. Palermo, NYLJ 1202519418737, at *1 (City of Geneva, Decided September 28, 2011), involved a man who was arrested after failing a series of sobriety field tests. Employing a savvy tactic, the defense requested a Probable Cause and Suppression Hearing, contending that the police officer lacked probable cause to arrest the defendant. Let's pause from the case for a moment for a Constitutional Law refresher. The Fourth Amendment of the United States Constitution guards citizens against any unreasonable search and seizure. Over the years the Supreme Court has outlined the parameters of what is reasonable and what is unreasonable. Generally, a police officer must have much more than a "hunch" to stop a driver on the road, and, obviously, an officer must have probable cause to ultimately arrest the driver. Though probable cause can be a fuzzy legal standard, the basic idea is that the officer possessed a reasonable belief that a person has committed a crime. Now because the United States likes to protect its citizens' rights (as does New York!), the judicial system employs what is called the Exclusionary Rule: evidence collected in violation of a defendant's constitutional rights, or any "fruits" of the illegal search or seizure, will be inadmissible (excluded) from a prosecution in a criminal court.

Now back to the DWI case...If the defense lawyer could show that the officer lacked probable cause, then the results of the series of sobriety tests would be inadmissible. Without the results from the sobriety tests, which established probable cause for the arrest and charge of Driving While Intoxicated, the arrest would be illegal and all charges would have to be dismissed.

After the criminal defense lawyer moved for a dismissal of the DWI charges, the People asserted that the arresting officer had reasonable suspicion to believe that Mr. Palermo violated a couple of vehicle and traffic laws. More specifically, that Mr. Palermo made an illegal u-turn and was speeding. However, while the arresting officer in Palermo revealed that he saw the defendant make a U-turn while pacing behind, the defense showed that the particular U-turn made, was not illegal. Furthermore, the officer admitted that he "didn't necessarily use radar" to measure the speed at which Mr. Palermo was traveling. Now, it's important to note that pursuant to New York State case law an officer is allowed to estimate the speed of a moving vehicle if the he/she shows experience observing the rate of speed of moving vehicles or some other satisfactory reason or basis for his opinion. Nevertheless, in this case the arresting officer did not have any such training. Lastly, the court found that the officer could not have established speeding by pacing Mr. Palermo's car because he did not pace Mr. Palermo long enough before Mr. Palermo made the proper U-turn.

More important than the particular facts, however, we must examine how the court reached their conclusion for suppression. The court laid out and reiterated three guidelines for the police to have probable cause to stop a vehicle: (1) The motor vehicle must be used in connection with criminal activity; (2) there must be reasonable suspicion of a violation of the vehicle and traffic law (VTL) based on articulable reasons that are not the product of mere whim, caprice or idle curiosity; and (3) when conducting a traffic check to determine whether or not a vehicle is being operated in compliance with the VTL, it must be done according to non-arbitrary and non-discriminatory, uniform procedures for detecting violations. Following these points, the court indeed found that the officer lacked the legal standing to stop the defendant's vehicle for any traffic violation and the stop was therefore an illegal seizure. The evidence was suppressed and the charges were dismissed.

This very recent case is extremely telling and important. If you are arrested for DWI anywhere in New York, if an officer does not establish probable cause, and makes an illegal search or seizure, then any evidence she/he collects thereafter will be inadmissible in a court of law (remember, you still have to convince a judge of the facts in question and applicable law!). Even if you fail the sobriety tests like Mr. Palermo, if the officer didn't have probable cause in the first place than you cannot be convicted of a DUI or DWI. Again, while the law is clear, if your New York DWI lawyer is unable to establish that the officer acted beyond the scope of the law, this suppression defense will fail.

For a wealth of information on New York DWI crimes and New York DWI laws, visit CrottySaland.Com's DWI information page. There you will also find links to the NewYorkCriminalLawyerBlog.Com where you will find relevant and practical analysis of DWI legal case decisions, DWI criminal statutes and DWI cases in the news.
Founded by two former Manhattan prosecutors who served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm representing those arrested for DWI crimes and DUI offenses throughout New York.

Stealing more than mere shekels, multiple alleged Identity Theft and check fraud rings pilfered $2 million from high worth individuals including the accounts of UJA-Federation donors. Although Hank Greenberg may not have noticed a few thousand dollars here or there, the alleged fraudsters are getting more than an "Oy Vey" from Manhattan District Attorney Cyrus Vance, Jr. for their alleged identity thieving. In fact, some of the nearly sixty defendants arrested or accused of various crimes are facing charges including Grand Larceny in the First Degree, a "B" felony punishable by a mandatory minimum of one to three years in prison. The maximum for this crime is eight and one third to twenty five years, but these numbers are all skewed should any of these men or women have prior felony records from the past ten years. While alleged gang association does not necessarily mean a criminal past, prosecutors further claim the many of those arrested in New York were members of the Bloods and Crips.

According to the New York County press release as well as numerous media outlets, the scheme (like many involving Identity Theft) was fairly east to perpetrate. For Example, Tracy Nelson, an employee of the UJA Federation, processed donor checks. This access to sensitive and financial information gave her the opportunity to allegedly take pictures and copy account information of donor checks. It is further claimed by DANY prosecutors that Nelson then sold the copies to other thieves who would open fraudulent checking accounts or credit cards with this information.

Although UJA Federation may be the highest profile organization to have a lapse in its security, it certainly is not the only one. Nelson's boyfriend, Roberto Millar, sold cars at Brooklyn's Open Road Audi. It is there, Assistant District Attorneys assert, the defendant mimicked his live-in girlfriend to steal and sell customer financial account information. Beyond these two alleged co-conspirators, Nicola Bennett, the compliance officer at AKAM Associates, Inc., and Karen Chance, a teller at Chase Bank, are alleged to have either accessed, stolen or reproduced customer and client information as well. All told, the defendants collectively are believed to trafficked in social security numbers, dates of birth and bank account information for a solid one thousand people. In doing so, some members of these groups allegedly took over credit card accounts, recruited individuals to get them access to legitimate accounts, and even created fake checks. If nothing else, the crews (if true) where certainly full service providers.

Giving himself a shout out to his prosecutions previously spearheaded by his merry band, Manhattan District Attorney Vance proclaimed: "From ATM skimmers, to waiters stealing credit card info, to the exploitation of systemic weaknesses in bank systems, we are attacking cybercrime and identity theft head on." Sadly, despite his and other law enforcement efforts, the volume and amount of financial loss associated with Identity Theft appears to be exploding in magnitude in New York and well beyond. Prosecutors can and will continue to pursue and investigate these and other fraud schemes, but until they get more support from banks and other institutions they will continually fight an uphill battle.

Founded by two former Manhattan prosecutors, Crotty Saland PC represents the accused through the New York City area. One of our criminal attorneys, Jeremy Saland, served in the predecessor to the Cybercrime and Identity Theft Bureau.

To learn more about Grand Larceny, Identity Theft and Criminal Possession of a Forged Instrument, please review the CrottySaland.Com website and this blog as well as the NewYorkTheftAndLarcenyLawyers.Com website and associated blog at NewYorkTheftAndLarcenyLawyersBlog.Com

PROSECUTORIAL AGENCY

Manhattan District Attorney's Office

CRIMES CHARGED

Grand Larceny in the First Degree (NY PL 155.45): Theft of property valued in excess of $1 million. This offense is a "B" felony.

Grand Larceny in the Second (NY PL 155.40): Theft of property valued in excess of $50,000, but not greater than $1 million. This offense is a "C" felony.

Grand Larceny in the Third (NY PL 155.35): Theft of property valued in excess of $3,000, but not greater than $50,000. This offense is a "D" felony.

Grand Larceny in the Fourth Degree (NY PL 155.30): Theft of property valued in excess of $1,000, but not greater than $3,000. This offense is a "E" felony.

Criminal Possession of Stolen Property in the Fourth Degree (NY PL 165.45): Possession of stolen property valued in excess of $1,000, but not greater than $3,000. This offense is a "D" felony.

Identity Theft in the First Degree (NY PL 190.80): Depending on the particular theory or subsection, this crime occurs when there is a use of personal identifying information of another while perpetrating a "D" felony or where services or property is obtained valued in excess of $2,000. This offense is a "D" felony.

Criminal Possession of a Forged Instrument in the Second Degree (NY PL 170.25): The possession of a fake or fraudulent document, credit card, check or other object that is possessed with the intent to defraud. This offense is a "D" felony.

"B," "C," "D," and "E" felonies are punishable by up to twenty-five, fifteen, seven and four years respectively.

* The above definitions are limited and are not a complete translation of the law. For a complete verbatim reference, review the New York State Penal Law.

THE ACCUSED

YOUNES ABIDAR, MERCY ADEBANDJO, KARRONE ALFRED, JAMEL ANNUZIATA, JAMAAL ANTHONY, NICOLA BENNET, JOSIAH BOATSWAIN, ERICA BROWN, MARK CAMPBELL, KAREN CHANCE, KINO CHARLES,UMAR CREDLE, DIOR KYLE DUMOY, CORNELIUS GARY, CLAUDE GASKIN, JOANNA GIERCZACK, TAFARIE GLASGOW, AJIRE GOLDEN, LIANA GUISCHARD, DAN HAZAN, ALDORAY IRVING, ALTON JAMIESON, ELLORA SMITH JULIUS, CHARLES KELLY, ALRICK CARMEN KOFFI, DEAN MAPP, MOISE, SHAHEIRA MOODY, TRACEY NELSON, ANTHONY PARKER, ANDY PETTITHOME, HANSEY JEAN PIERRE, RICHARD RAMOS, DARRYL RIELY, JESSICA RODRIGUEZ, KURT RUSSELL, LAQUASHIA SEABERRY, DARRYL SYNCON, CHRISTOPER TENN, JONATHAN TUCKER, NICOLE LEACH VITALIS, EVELYN WALKER, JETANE WEBSTER, BRANDON WHITE, CARLOS WHITE, SHAUN WILLIAMS

According to New York City's top prosecutor, a Manhattan Chase Bank teller's passion for the Benjamins may have cost him much more than the $240,000 he is alleged to have swindled from his employer. Unfortunately for Sephoen Tsang, a Chinatown branch worker, Manhattan District Attorney Cyrus Vance, Jr. has escalated the "war" on white collar crimes in recent months with equal passion to Tsang's alleged thieving ways.

It is claimed by prosecutors that Tsang made numerous fake and false entries into the computer system at Chase Bank regarding the movement of $243,000 in funds. Although prosecutors claim that internal computer systems records from November 29, 2011 appear as if Tsang moved $243,000 from his teller drawer to the bank vault and and then again to the ATM machines, these transactions never transpired. Instead, the money was allegedly stolen outright.

Upon learning of the possible theft, the New York City police department, along with the Manhattan District Attorney's Office, began their investigation. Not only did a search warrant executed at the Tsang's home result in the recovery of $26,000 in cash, a flat screen television, and an Apple MacBook Air computer, but Tsang was located miles away in Atlantic City playing baccarat at the Borgata Casino.

According to the indictment charging Tsang with multiple crimes, the defendant faces multiple felonies including Grand Larceny in the Second Degree (New York Penal Law 155.40) and Falsifying Business Records in the First Degree (New York Penal Law 175.10). Second Degree Grand Larceny is a "C" felony punishable by up to five to fifteen years in prison while First Degree Falsifying Business Records is an "E" felony punishable by as much as one and one third to four years in prison.

The Grand Larceny charge that Tsang faces simply stems from the alleged theft of property, here it is cash, with a value exceeding $50,000, but not more than $1 million. Falsifying Business Records, on the other hand, could have occurred in many ways. Generally speaking if you make a false entry or cause a false entry to be made in the business records of an enterprise (inputing false transaction records into the Chase computer and banking records) with the intent to defraud and you do so to hide or assist in the carrying out of another crime (Grand Larceny), you have perpetrated this offense. Although it likely is not applicable in Tsang's case based on my brief reading of the press release, there is an affirmative defense to Falsifying Business Records. New York Penal Law 175.15 states that if you falsify any type of business record at the direction of a supervisor and you did so as an employee without any benefit, then you would have a defense to any degree of Falsifying Business Records.

There may be many factors in determining the strengths and weakness of this case. Is there a means by which the entries made in the Chase system is traceable to Tsang? If there is a login is it shared? Is there an answer as to why a teller, who likely does not make that much money, had in excess of $25,000 in cash in his apartment? Prosecutors likely have determined or are attempting to ascertain how much money Tsang gambled with and how he had access to those funds. Does Tsang have a reasonable answer?

Unfortunately for Tsang, prosecutors throughout New York City have become more strict and aggressive in their prosecution of theft and fraud crimes in New York. Will Tsang beat the case? Will he end up behind bars? One thing is for sure. This coming Christmas Tsang's stocking will be filled not with gifts and goodies, but anxiety and grief.

To educate yourself on the Grand Larceny and Falsifying Business Records in New York, please follow the highlighted links above. Additionally, Crotty Saland PC's NewYorkTheftAndLarcenyLawyers.Com website has significant information on Grand Larceny crimes in New York ranging from collateral consequences, potential punishment and analysis of criminal statutes.

Established by two New York criminal lawyers who served together as Assistant District Attorneys in Robert Morgenthau's Manhattan District Attorney's Office, the criminal attorneys at Crotty Saland PC represent the accused throughout the New York City region.

"Go get 'em, Cy!" That was likely the cheer that echoed through the halls of TD Bank corporate headquarters after the Manhattan District Attorney and his troops announced the indictment and arrest of 94 individuals in an alleged check fraud and Grand Larceny ring that pilfered approximately $450,000 from the global bank. While the loss of $450,000 has absolutely no impact on the bottom line of such a large institution, and is likely viewed merely as one of the many costs of doing business in the 21st century, such a theft is significant in terms of consumer and banker confidence and security. The alleged fraudsters may have believed they were in a real life Staples commercial when they allegedly looted approximately 90 accounts and spent the ill gotten gains on cards and dice at area casinos (Hey, "That was easy."), but they were certainly wrong. The sad reality for the accused is that many of those arrested now face up to fifteen years in state prison. Reminiscent of the Queens District Attorney's Office 16 million dollar and 100 plus person indictments charging Enterprise Corruption, Grand Larceny and other crimes, Manhattan prosecutors, like District Attorney Brown's crew, are poised to to send a strong message to would be identity, cyber and check fraud thieves. In fact, taking a page out of the book of his predecessor, Robert Morgenthau, for fighting crimes in the streets and in the suites, DA Cyrus Vance, Jr. stated:

"Our job is to protect New Yorkers, whether on the streets, online, or in the banking system. The most recent cases brought by my Office's Cybercrime and Identity Theft Bureau show how pervasive cyberfraud schemes are, and how they depend on individuals willing to play various criminal roles. Whether you are a ring-leader or a small player, if you are caught committing fraud, you will be prosecuted."

Frankly, DA Vance is right and he is assertive in his position. Although any indictment is merely an accusation, whether the theft amount is large or small, involves a few individuals or is a criminal enterprise, no organized act of Grand Larceny is insignificant in the eyes of law enforcement.

According to reports and the Manhattan District Attorney's Office press release (check out the piggy bank symbolizing bank accounts...it brings a touch of "fun" to an otherwise serious situation) prosecutors claim that the alleged band of thieves was run by men and recruiters who payed a couple of hundred dollars to individuals who would open up bank accounts. Once open, bad checks, wire transfers or other monies were deposited into the accounts. Although the alleged bad guys knew the money would ultimately not clear and checks would bounce, the defendants accessed and withdrew the money before the banks waited for the checks to clear. With the money in hand, nearly half a million dollars, the ring leaders allegedly lived like high rollers at Foxwoods Casino and other casinos throughout Atlantic City.

If true, the sad reality of a case like this is that but for the diligence and efforts of prosecutors and law enforcement agents, banks, like TD Bank, would probably not connect the fraud together. While missing the forrest from the trees, the banks would certainly catch a customer who failed to make a timely mortgage payment, but not the alleged large scale fraud rooted out by the Manhattan District Attorney's Office. Although they would certainly never publicly admit it, the cost to a bank for similar fraud (dollar wise this case involves the same amount of money as a lower end jumbo mortgage default) is not worth internal bank enforcement. Although my commentary may seem cynical or a little "tongue and cheek," with the relatively weakness in the penal law for crimes relating to Criminal Possession of a Forged Instrument, Identity Theft and in some cases Grand Larceny, the acceptance by banks of fraud as a cost of doing business, and the overwhelming amount of time it takes to "connect the dots" in a large scale fraud ring, it is clear to see why these types of schemes are the crimes of the future.

As I note in many of my entries assessing alleged large scale scams, what each defendant will set forth as his or her defense will likely play out, like a hand of poker or black jack, over the next few weeks and months. Whether the defendants fold or hit 21... we will all soon find out.

Crotty Saland PC is a New York criminal defense firm representing those accused of all crimes throughout New York City and the region. Jeremy Saland, one of our two founding New York criminal lawyers, served in the Manhattan District Attorney's Office for over seven years. During that time, Jeremy served in the Identity Theft Unit Major Case section, the predecessor to the Cybercrime and Identity Theft Bureau.

To learn more about the crimes listed above and below, please follow the highlighted links to CrottySaland.Com as well as the NewYorkCriminalLawyerBlog.Com. Additional information is available on Crotty Saland PC's new website and blog, NewYorkTheftAndLarcenyLawyers.Com and NewYorkTheftAndLarcenyLawyersBlog.Com respectively.

Crimes Alleged & Offenses Charged

Grand Larceny in the Second, Third & Fourth Degrees: New York Penal Law 155.40, 155.35 & 155.30

"C," "D," and "E," felonies respectively, these crimes are punishable by up to fifteen, seven and four years. If any of the individuals are predicate felons, mandatory state prison is required. These charges may have been aggregated on an individual basis, but not collectively across defendants as each defendant is not charged with the same degree crime.

Criminal Possession of a Forged Instrument in the Second Degree: New York Penal Law 170.25

A "D" felony punishable by up to seven years in prison. This offense likely relates to the fake checks or debit cards recovered from an individual. Alternatively, it is possible that he or she had a fake identification of some kind. Without more information, it is difficult to determine.

Conspiracy in the Fourth Degree: New York Penal Law 105.10

An "E" felony, this crime is punishable by up to four years in prison. The crime is tied to the defendants alleged "in cahoots" actions and activities to perpetrate the Grand Larceny criminal scheme. For prosecutors, it enables law enforcement to tie the defendants together into this alleged common fraud. It is important to recognize, however, Enterprise Corruption, a "B" felony with mandatory state prison for even a first time offender, was not charged.

Prosecutorial Agency

Manhattan District Attorneys Office - New York County, New York

Defendants Arrested & Accused

STEVEN ADDISON, TREVOR O. ALLEN, ALEXANDER ANDUJAR, FREDDIE AUSTIN, MADELEINE BALAGUER, JASMIN BARRAGAN, JOHN PAUL BAZIGNAN, TRAVIS BELL, LAURA BERRIOS, DAMIEN BLANKS, JAMALA BLY, DANNY CARDONA, IRIS CARRASQUILLO, VIVIANA CHAPARRO, FRANK CLARK, ISRAEL COLON, LOURDES COLON, CARLOS E. CORTIJO, JOSE CRUZ, JOSE M. CRUZ, VERONICA CRUZ, XOCHEEL CRUZ, SHANE DANIELS, JOANN DEBRO, MILTON DELACRUZ, ERIK DIAZ, JUSTIN DOUGHERTY, SEAN EDWARDS, RICHARD FARGAS, JENNIFER FELDMETH, JONAS FERNANDEZDIOSA D. FIGUEROA, JOSEPH FIGUEROA, NELSON FLORES-ESCOBAR, JOANNA GONZALEZ, CARLTON GOODWIN, TERRENCE M. GUY, ORLANDO GUZMAN, DANIEL HEADLY, JR., HECTOR HERNANDEZ, RAYMOND IRIZARRY, JONATHAN JAIMAN, JEAN JAYSURA, LAVONE KELLY, ERIC LANDRON, JONATHAN LASANTA, ROSA LEON, JAMES LEONARD, LUIS LOPEZ, JOEL LUCIANO a/k/a JOEL TORRES, EMIL MANZANO, JARELISSE MARTINEZ, JOSE MARTIR, CRYSTAL MCAULEY, ANGEL MEDINA, HERMINIA MEDINA, FREDDIE MERCADO a/k/a FREDDIE MERCADO JOUBERT, DAVID MORALES, CARLOS MORENO, DAYNA NIEVES, RAUL PADILLA, JR. JOSE PENA,RAFAEL PEREZ, XIOMARA PEREZ, JEREMIAH PETERSON, ILIANET PONCE, SCOTT RABA, AMADO RIVERA, ANTONIO RIVERA, JORGE RIVERA, JEFFREY RODRIGUEZ, D.O.B., RICARDO RODRIGUEZ, JUAN LUIS ROMAN, STEPHANIE ROMAN, JENNIFER ROSARIO, SABRINA ROSARIO, FRANCY SANCHEZ, GREGORIA SANCHEZ, JOSHUA SANDS, NEREIDA SANTIAGO, PANAMA SMALLS, JEFFREY W. STILL, EDWINA TAYLOR, ALBERTO TORRES, CHRISTOPHER TORRES, JUAN VEGA, ERNESTO VITAL, TOYIA WHITE, SANFORD WILLIAMS, LAKIESHA YOUNG, TAMIKA YOUNG