New York Criminal Lawyer Blog

The New York criminal lawyers at Crotty Saland PC are pleased to announce a top disposition for a client charged with Criminal Mischief in the Third Degree (New York Penal Law 145.05), Auto Stripping in the Third Degree (New York Penal Law 165.09) and Attempted Petit Larceny (New York Penal Law 110/155.25). The most serious offense, NY PL 145.05, is an "E" felony punishable by up to four years in state prison.

Prosecutors alleged that our client, an individual who had previously been convicted of violating New York Penal Law 265.03 for possessing a loaded firearm, took a brick and smashed it through the back trunk window of a vehicle parked in Manhattan. After allegedly smashing out the window, our client is further alleged to have reached inside the vehicle in the presence of a plain clothes officer and an independent eyewitness. Ultimately, the police arrested our client and the owner of the vehicle assessed the damage at $1,000. Charged with a felony, and previously convicted of a violent felony, prosecutors offered our client a "sweetheart" deal of a misdemeanor plea and restitution. Unhappy with the offer, our client, who was represented by a "public defender," consulted with and retained Crotty Saland PC.

Upon reviewing the case, our criminal attorneys determined that significant issues existed that fortified our client's defense despite the police officer and independent witnesses' observations. Although much was on the line should prosecutors present the case against our client to the Grand Jury and a misdemeanor offer was rejected, we advised our client to pursue a better disposition than the one offered.

Fairly straight forward, one is guilty of Criminal Mischief in the Third Degree if he or she, without permission, intentionally causes damage to another person's property in an amount that exceeds $250. While the facts and allegations against our client seemed equally clear, when we dissected the matter further we learned that our client obtained a prescription for ambien (a drug used to aid in sleeping) earlier that day. Using that medication to sleep, our client asserted that he had no recollection of the incident for which he was arrested. Research revealed that one of the side effects of ambien is "sleepwalking." Not merely relying on the possibility that our client could have suffered from "sleepwalking" when the incident occurred, we further corroborated our client's lack of intent to cause damage to the vehicle or steal from it. To that end, we were able to establish that at the time of the incident our client was wearing nothing other than shorts (no tee shirt, shoes, etc.). Moreover, our client had resided in a family owned building three doors down from where the vehicle was parked and served as a superintendant for over ten years at that location. Objectively, it made little to no sense that an individual who had no trouble with the law since a conviction in the 1990s would smash a vehicle window and attempt to steal from that vehicle in a location doors down from where our client owned a building. Moreover, if an individual would in fact attempt to steal from a car parked in a neighborhood where he or she is likely known to many residents, it is probable that the person would wear sneakers and a shirt so he or she could flee as quickly as possible.

Combining all of these factors together, the prosecution ultimately agreed to offer a better deal than the original misdemeanor offer. Avoiding a new criminal conviction, probation, community service or incarceration, our criminal attorneys convinced the District Attorney's Office to permit our client to plead to a violation of Disorderly Conduct. While an argument could have been made that our client should have sought a complete dismissal, the risk-reward analysis dictated that a non-criminal plea was the best possible disposition. At a minimum, it was exponentially better than either a misdemeanor or felony conviction.

To further educate yourself on any of the crimes listed above, including Criminal Mischief in the Third Degree, please follow the highlighted links above. To learn more about other crimes, please review the CrottySaland.Com website or the NewYorkCriminalLawyerBlog.Com.

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

Note: Although this disposition is one of many tremendous results for a Crotty Saland PC client, past results do not guarantee future outcomes. Each and every case is unique.

We can all agree to disagree on the merits, impact and value of Occupy Wall Street sit-ins, protests and mere presence in lower Manhattan. Whether protesters blocking the Brooklyn Bridge hurt the blue collar and regular working class person trying to get to and from work or their actions truly intensified the light on certain Wall Street practices is certainly up to debate. However, one thing we can all likely agree on is that any arrest, whether it be for Disorderly Conduct (NY PL 240.20), Resisting Arrest (NY PL 205.30) or Obstructing Governmental Administration (NY PL 190.05), can have serious impacts to the futures of those arrested years after they have left the streets of New York City behind. While a summons for Disorderly Conduct is probably the least of their concerns, Resisting Arrest and Obstruction of Governmental Administration are both misdemeanors. How Manhattan District Attorney Cyrus Vance decides what to do with these cases is yet to be seen, but the potential for these men and women to damage their futures is great.

Disorderly Conduct: New York Penal Law 240.20

Although not a precise legal definition, if you are disorderly and cause public inconvenience or alarm, obstruct the flow of traffic or act in a violent manner, the NYPD and prosecutors can charge you with Disorderly Conduct. Not a crime, a conviction for this offense would not give you a criminal record. What is concerning, however, is if you are printed for Disorderly Conduct or any crime and you ultimately plea to this violation, there is a real possibility that it will show up on future background checks. While a Disorderly Conduct seals (or should seal), there has been litigation over arrest charges and pleas to Disorderly Conduct showing up months and years after the cases are resolved. No New York criminal lawyer can tell you whether your case will properly seal or seal in a manner as to prevent the public from learning of your arrest charges. Regardless, before taking a plea to a violation of Disorderly Conduct have a long and in depth conversation with your counsel as to the ramifications and collateral consequences of such a plea.

Resisting Arrest: New York Penal Law 205.30

If you intentionally prevent or attempt to prevent a police officer with the NYPD from making a lawful arrest, then you can be charged with Resting Arrest. Simply put, if you waive your arms, refuse to put them behind your back or pull your arms away, the police and prosecutors can charge you with this crime. It is imperative to recognize that this offense is a crime and a misdemeanor. While NY PL 205.30 is punishable by up to one year in jail, jail is generally not an issue for first or second time offenders in New York City. The greater issues is whether you will end up saddled with a criminal record if convicted. Alternatively, if prosecutors only offer you a Disorderly Conduct plea deal, there are issues (as discussed above) with sealing. Remember, if you are in a situation where tempers have been elevated it is critical that you remain calm. If you are going to be arrested there is likely little you can do at that immediate time. By flailing around and pulling away, you are giving law enforcement the tools to take your non-criminal actions and make them criminal.

Obstructing Governmental Administration: New York Penal Law 190.05

If you prevent or attempt to prevent the police or other governmental agency from performing an official or governmental function by interference or physical force, then the District Attorney's Office can charge you with this misdemeanor crime. Like Resisting Arrest, a charge of NY PL 190.05 is not likely to land a first or second time offender a stretch on Rikers Island. More concerning is the risk of a criminal record or a Disorderly Conduct offer. While not a catch all, to avoid being charged with this crime, do not interfere by, for example, blocking the police from a friend who is to be arrested or refusing to walk or move upon being arrested. Do not give law enforcement the tools to charge you with a crime where your conduct was otherwise not criminal in nature.

Occupy Wall Street Protestors: What to Do if Arrest for These Offenses

If you are given a summons, Desk Appearance Ticket or are arrested for Disorderly Conduct, Resisting Arrest or Obstructing Governmental Administration, there is no catch all defining what your next step should be. Having said that, there are a few critical things to discuss with your legal counsel. What impact will a violation or non-criminal Disorderly Conduct plea have on your future? Are you eligible or able to get an Adjournment in Contemplation of Dismissal (ACD) whereby your case is dismissed and sealed in six months. In that regard, how and why is New York Criminal Procedure Law 170.55 important to you? Was your underlying arrest lawful? If it was not, should the charge of Resisting Arrest be dismissed? Assuming you are not interested in working out a disposition, what are your chances of beating the case at trial or utilizing "speedy trial" laws to dispose of the charges? Whatever your discussions may incorporate, make sure you and your criminal attorney vet the charges. That last thing you need is a Scarlet Letter to wear well after the protest has ended.

For practical and legal analysis of Disorderly Conduct, Resisting Arrest and Obstructing Governmental Administration, please either follow the highlighted links above or search for these offenses on the NewYorkCriminalLawyerBlog.Com. A review of NewYorkCriminalLawyerBlog.Com will reveal extensive information on these and other crimes, statutes, valuable cases and commentary on cases in the news.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represents the accused in New York City and 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.

District Attorneys and prosecutors through New York City - Manhattan, Brooklyn, Queens, Bronx and Staten Island - routinely utilize their "long arms" to attack criminal schemes and grab targets of crime well beyond the borders of Gotham. Often times, New York criminal lawyers represent those accused of frauds and criminal transactions even though they never set foot in New York. Whether the crime is Enterprise Corruption, Grand Larceny or Money Laundering, theses defendants are prosecuted as if they had perpetrated their conduct right here in New York.

Beyond the crimes listed above, one of the more common crimes prosecuted beyond the borders of New York are crimes involving gambling. Of these gambling crimes, the felony of Promoting Gambling in the First Degree (NY PL 225.10) is one of the most typical. Generally, you are guilty of Promoting Gambling in the First Degree when you profit or knowingly advance from unlawful gambling activity. In addition to these elements, you must also be involved in bookmaking where you receive more than five bets valued in excess of $5,000 over the course of any given day. Not only is NY PL 225.10 a felony, but it is punishable by up to four years in state prison.

One of the issues that can arise in a large scheme involving gambling crimes is that even if you did not specifically accept or receive the necessary level of bets, you may be charged with acting in concert with others who did so. In other words, the woman who resided and worked in Florida can be charged as an accomplice for the crime committed in New York if her activities, intent and efforts assisted her "partner" in committing a gambling crime.

While there is not guaranteed means by which to best defend against a criminal charge of Promoting Gambling, sometimes the best defense is a good offense. It could be that the prosecution lacks direct or circumstantial evidence against you. It could be that a search of an apartment was illegal even though records where recovered there. Maybe the $5,000 cannot be properly established. Alternatively, your best defense may not be challenging the evidence if it is overwhelming, but mitigating your conduct. Obviously, this mitigation and the extent of its value in helping your case is something that you and your counsel will ascertain.

Utilizing the former defensive approach of mitigation, the criminal lawyers at Crotty Saland PC pursued a successful strategy as a defense to a New York felony gambling arrest. Our client, a lessee of a Manhattan apartment, was allegedly permitting illegal and unauthorized poker games to take place in her apartment. Even though she was a player in the alleged games, it was further alleged that she, acting in concert with others including dealers, accepted in excess of five bets and $5,000 a day in proceeds. Armed with search warrants, the New York City Police Department shut down the "crew." Although the sophistication and level of the scheme was a far cry from an offshore betting operation, our client was charged with felony Promoting Gambling in the First Degree as well as the misdemeanor crime of Possession of a Gambling Device (NY PL 225.30). In all, approximately a dozen people were arrested and charged with felonies and misdemeanors. Two unauthorized poker tables were shut down and proceeds were confiscated.

In face of a search warrant, an undercover police officer who posed as a "player," the fact that our client was the lessee of the apartment and that at the time of the arrest the defendants were alleged to have been engaged in playing poker, the decision was made not to push the case to trial, but to work out a favorable disposition. Without going into detail here, the criminal defense attorneys at Crotty Saland PC were able to convince the prosecutors to offer our client an alternative plea. That is, our client pleaded to the misdemeanor level crime of Promoting Gambling in the Second Degree, followed conditions of her plea and then returned to court. Upon doing so, the prosecution and court permitted our client to vacate her misdemeanor plea and then the District Attorneys Office moved for an adjournment in contemplation of dismissal (ACD). As a result,the case was both dismissed and sealed. Fortunately, our client, a business professional in the financial arena, was able to move forward with her life without a criminal record after being charged with a felony offense as part of an alleged illegal poker crew.

The above client's case result is by no way a guarantee of future case results, but is illustrative of how easily your conduct can be wrapped up into a felony scheme. You need not be involved in organized crime overseas or running an illegal sports book in New Jersey. The long arm of the law has the ability to grab and prosecute almost anywhere.

For a wealth of information on Promoting Gambling and gambling related crimes in New York, please review either the Crotty Saland PC website or the New York Criminal Lawyer Blog. Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing the accused throughout the New York City region.

Often times confused with Resisting Arrest (New York Penal Law 205.30), Obstructing Governmental Administration in the Second Degree (New York Penal Law 195.05), occurs when a person intentionally obstructs the administration of law or attempts to prevent a public servant, such as a police officer, from performing an official function. This obstruction can be through intimidation, physical force or any independent unlawful act. In other words, if the police are trying to make a lawful arrest of another person and you prevent them from doing so by blocking the police or pushing them away, this charge would likely be applicable. If the police were trying t make an arrest of you and you conducted yourself in the same manner, the likely charge would be Resisting Arrest. Both crimes are "A" misdemeanors punishable by up to one year in jail. In Manhattan, Brooklyn or any other location in New York City, the one year in jail would be served on Rikers Island.

An interesting question that will be addressed in this blog entry is whether or not words alone can create a sufficient obstruction to sustain the charges of Obstructing Governmental Administration in the Second Degree. Fortunately, a recent decision may help shed light on this issue.

In People v. Theo Knight (2010NY052516), a Manhattan Criminal Court Judge found a criminal court complaint facially sufficient (meaning that the charging complaint would not be dismissed and made out all the elements of the crime) where the prosecution had charged the defendant with Obstructing Governmental Administration in the Second Degree. In the Knight case, the prosecution alleged that the defendant was at the location where marijuana was being sold by an individual who was ultimately not apprehended. As the detectives approached, the complaint stated that the defendant received a phone call and then yelled to the un-apprehended individual to "go in the building." As a result, the un-apprehended man who was allegedly selling marijuana was not arrested. Instead, the police arrested Mr. Knight. The question raised before the court was whether or not the words by themselves were sufficient to establish the elements of New York Penal Law 195.05.

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

"In the instant case, the accusatory instrument alleges facts showing that defendant was present at a place where police activity was apparent: another individual was being arrested; defendant acknowledges that an officer was approaching. Defendant yelled a warning to the un-apprehended person, frustrating the arresting officer's efforts. These facts allege a prima facie case of obstructing governmental administration...While defendant's words may have been innocuous at another location under other circumstances, his geographical presence at a place where an arrest was imminent change the nature of his utterance to a criminal act."

The answer is clear. Words alone may form the basis and satisfy the elements of the charge of Obstructing Governmental Administration in the Second Degree as long as other factors are present. Whether those factors are present in your particular case is something you should discuss with an experienced New York criminal defense attorney.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region. For extensive information on New York criminal law as well as legal decisions and cases in the news, please review the Crotty Saland PC website and the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

The New York criminal defense attorneys at Crotty Saland PC have created an "information page" for those people charged with or seeking information on the crime of Criminal Mischief in New York. Not merely a regurgitation of New York Penal Law sections 140.00, 145.05, 145.10 or 145.12, the resource page is a starting point to educate yourself about this crime. While the page is no substitute for an in depth review of your particular facts with an experienced New York criminal lawyer, this tool does discuss potential areas where you may find your defense.

Generally, Criminal Mischief in the Fourth Degree (NY Penal Law 145.00), a relatively common misdemeanor involving the damaging of another person's property, is the basis of all of the other felony crimes involving Criminal Mischief. From Manhattan to Queens and Brooklyn to Westchester County, the crime of Criminal Mischief involves the same premise. That is, if you intentionally damage another person's property, regardless of how significant, you can be charged with a crime. The misdemeanor offense even permits a reckless damaging to be the basis of this charge. What bumps the crime up to a felony is the amount of the damage. Once the damage exceeds $250 and $5,000, the crime becomes an "E" and "D" felony respectively.

As with any crime, there are terms in the statute and areas where legal decisions are pertinent. For example, how is the value of the damaged property determined? Is it legally sufficient to merely state in a conclusory manner that the property was damaged without specifying how? These are just some of the relevant issues to any Criminal Mischief case.

Beyond the Crotty Saland PC Criminal Mischief information page, the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) has extensive information on numerous criminal statues, legal decisions and newsworthy cases. By submitting a crime or words in the search engine, readers will find information as to that particular request. This includes the crime of Criminal Mischief.

Representing the accused throughout New York City, Westchester County and beyond, the founding New York criminal defense attorneys at Crotty Saland PC not only advocate for their clients in all matters, but have additional experience serving as prosecutors in the Manhattan District Attorney's Office prior to starting the 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" »

Reckless Endangerment in the Second Degree (New York Penal Law 120.20) is a misdemeanor crime routinely handled by both prosecutors and criminal defense lawyers in New York City and the region. Although seemingly straight forward, the law not only has terms that have their own meaning, but cases that have decided how and when the law is applied. This entry will be the first in a series of "primers" on Reckless Endangerment in the Second Degree (NY PL 120.20). Future entries will address the law as well as the "felony version" of Reckless Endangerment pursuant to New York Penal Law 120.25.

Reckless Endangerment in the Second Degree - NY PL 120.20

Simply put, if one engages in conduct that is reckless and that conduct creates a substantial risk of serious physical injury, then one is guilty of Reckless Endangerment in the Second Degree.

It is critical to note that the statute requires not only a "substantial risk," but that the injury that may occur be "serious physical injury." A black eye, split lip or similar injury is not enough to meet the requirements and elements of Reckless Endangerment. The New York Penal Law defines "serious physical injury" as the type of injury that "creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

In addition to the level of injury as addressed above, the potential serious physical injury must be both foreseeable and the defendant's conduct must actually create a risk of that injury. Although there are plenty of legal decisions addressing when one's conduct amounts to Reckless Endangerment in the Second Degree, a recent decision by a Manhattan Criminal Court Judge highlights what is required. In People v. Beam, 2 Misc.3d 306 (N.Y. Crim. Ct. 2008), an information (complaint) alleged that the defendant ran into traffic to avoid the police while cars were in motion. In dismissing the information as insufficient, the court stated:

"It is certainly possible, and possibly even somewhat likely, that defendant or another person might have experienced some sort of injury from an automobile accident caused by defendant's sudden and swift entry in to the roadway. Nevertheless, on the facts alleged, this court can neither find nor infer that a substantial and unjustifiable risk of serious physical injury was created by defendant's hasty jay-walking. In order to establish that defendant engaged in reckless endangerment, the risk created by a defendant's conduct must be foreseeable ( see People v. Reagan, 256 A.D.2d 487, 683 N.Y.S.2d 543 [2d Dept.1998] ) and the conduct must actually create a risk of serious physical injury ( see In re Kysean D.S., 285 A.D.2d 994, 728 N.Y.S.2d 323 [4th Dept.2001] ). Accordingly, the count is dismissed."

This initial "primer" for the New York crime of Reckless Endangerment in the Second Degree should be just enough for a general understanding of the crime. In the event you are charged with this offense (it is punishable by up to one year in jail) you should consult with legal counsel to ascertain whether the elements have been established by the prosecution and what your best defense may be.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Based in lower Manhattan, Crotty Saland PC represents clients throughout the New York City region. For further information on the New York Penal Law, recent legal decisions and newsworthy cases, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com or the Crotty Saland PC website.

Although not often litigated by New York criminal defense lawyers where a client is charged with Possession of Graffiti Instruments, pursuant to New York Penal Law section 145.65, it is important to understand or identify what constitutes a "graffiti instrument." Certainly, some tools are obvious. Cans of spray paint, markers, etc. are obvious "graffiti instruments" in the right circumstances. Yet, why are those objects "graffiti instruments" and what is the basis of that definition?

New York Penal Law 145.65 sets forth that one is guilty of Possession of Graffiti Instruments when one possess any instrument (even a substance or solution) designed or commonly used to etch, paint, cover or draw upon property. The definition is further expanded to address permission or authority to make such marks and circumstances evincing the intent to damage the property of another. These terms put together establish graffiti instruments.

In People v. Torres, 184 Misc.2d 429 (NY Cty Crim. Ct. 2000), a Manhattan criminal court judge found that glue and posters were in fact instruments of graffiti as set forth in NY PL 145.65. In determining as such, the court reasoned that "If it is in fact the case that the Legislature intended that any 'covering' of property-such as covering property with glue and paper-with the intent to damage it constitutes graffiti, then any tools or substances commonly used to cover property with glue or paper would obviously be within the statute." Therefore, while not commonly thought of as a "graffiti instrument" similar to a can of spray paint, if one has the intent to damage property and cover that property, the tools or means to do so, such as glue and posters, are the "instruments" to perpetrate the crime.

What should be taken away from this entry is that if you are charged with, arrested for or accused of Possession of Graffiti Instruments in New York, don't think that the "instrument" must be an obvious tool of the trade. If it is used, to etch, cover, paint, etc., there is an intent to damage and you do not have the permission or authority to do so, then this charge is a likely and potential offense that you will face.

For further information on New York graffiti crimes please follow the link to the appropriate section of the Crotty Saland PC website. Further information on New York graffiti crimes as well as legal decisions and newsworthy cases on these an other offenses can be be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland PC is a New York criminal defense firm. Representing the accused throughout New York City and the region, the New York criminal defense attorneys at Crotty Saland PC have extensive experience on both sides of the law having served as Manhattan prosecutors prior to starting the firm.

In the first entry in the New York Gambling Crimes series, I addressed the crime of Promoting Gambling in New York (Manhattan, Brooklyn, Queens, Bronx, Westchester or any other County in New York State) as well as the dry, yet important, definitions underlying this and other gambling statutes. Today's entry addresses some cases that will help you further understand this offense and understand Promoting Gambling and related crimes from the perspective of a New York criminal defense attorney. More specifically, this entry will address who can be charged with Promoting Gambling pursuant to New York Penal Law sections 225.05 and 225.10.

To start things off, one cannot be charged with the crime of Promoting Gambling if one is merely a participant in that gambling. The Court of Appeals, New York's highest court, recently affirmed that position in the Matter of Victor M., 9 N.Y.3d 84, 845 N.Y.S.2d 771, 876 N.E.2d 1187 (2007). In that case, the Court found that a player in a game of dice (it could have been any other game for the purpose of this conclusion) could not be charged with this offense because merely as a player, that person did not advance or profit from the unlawful gambling activity. One has to look no further than New York Penal Law 225.00(4) and (5) for corroboration in the statute itself to support the Court of Appeals' determination. Keep in mind, that the terms "advance" and "profit" are both specifically defined in the statute.

Although a fact specific analysis is required to ascertain whether one is liable for Promoting Gambling, the following cases are good guides to assist one in determining criminal liability:

Ordinary betting as opposed to professional is generally not the type of gambling punishable under the statute (old gambling statute). See People v. Stedeker, 175 N.Y. 57 (1903)

Courts seem to disagree if games such as "Three Card Monte" and "Majhong" are games of "skill" and therefore are not considered gambling offenses. A bigger issues is which characteristic is greater, i.e., "skill" or "chance." See People v. Denson, 192 Misc.2d 48 (NY Cty Crim. Ct. 2002) and People v. Li Ai Hua, 24 Misc.3d 1142 (NY Cty. Crim. Ct. 2009)

The New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC have successfully represented defendants investigated for and charged with gambling felonies involving search warrants and/or wire taps. For further information on the crime of Promoting Gambling in New York, contact one of our New York criminal defense lawyers for a consultation and review the prior NewYorkCriminalLawyerBlog.Com entry for a general understanding of Promoting Gambling in New York.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland PC represents clients throughout the New York City region.

If you have ever been arrested for Making Graffiti (New York Penal Law 145.60) or Possession of Graffiti Instruments (New York Penal Law 145.65) in Manhattan, Brooklyn, Queens or anywhere in New York City, you know that the Graffiti / Vandal Squad detectives are aggressive in their pursuit of alleged offenders. The bottom line is that Making Graffiti and Possession of Graffiti instruments is a serious offense in the eyes of law enforcement. If the damage is significant, prosecutors may seek restitution in addition to whatever the disposition might be.

Often times, the gravity of the alleged damage is tied to the ultimate deal in the case. This assumes, of course, that you have explored with your New York criminal defense attorney whether or not the prosecution can prove the case beyond a reasonable doubt or whether there are any legal, factual or procedural defenses to the allegations. Regardless, the question addressed in this entry is clear. What if it was not your intent to cause the damage? What if you were expressing yourself through your art? In other words, is it a defense to the crimes of Making Graffiti and Possession of a Graffiti instrument if you did not have the intent to cause damage when you painted, etched, or drew on another person's property, or in the alternative, that the property was not damaged?

To be clear, the short answer is that the statutes and underlying definitions involving graffiti offenses in New York require an intent to damage the property of another without their permission. Moreover, whether or not there was actual damage is of no consequence. The statutes merely require an intent to damage whether or not that the alleged offender was successful. As set forth in People v. Vinolas, 174 Misc.2d 740 (NY Crim. Ct. 1997):

"The intentional, rather than inadvertent, nature of defendant's actions...tend to show that the defendant intended to damage complainant's property. The culpable mental state is not that the defendant intended to cause actual damage, as required by [New York Penal Law section 145.00 - Criminal Mischief], but rather, 'that the actor acted intentionally in placing a mark upon the property which the actor had no right to mark and no reasonable ground to believe that he/she had such right.' Whether the defendant actually caused damage is irrelevant for purposes of these charges; and whether the defendant intended to cause such damage is a question of fact for the trier of fact and not a consideration for the instant motion [to dismiss for facial insufficiency]."

Although this is the short answer and one that needs far more vetting, the above case makes it clear that it is one's intent to damage as opposed to the ultimate results that are important.

For further information on the crimes of Making Graffiti (New York Penal Law 145.60) and Possession of Graffiti Instruments (New York Penal Law 145.60), please follow the appropriate links or contact the New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC to arrange for a consultation.

Before the dawn of identity theft laws, the crime of Criminal Impersonation, pursuant to New York Penal Law sections 190.25 and 190.26, was the weapon of the assistant district attorney to prosecute fraud crimes related to one's identification or persona in New York. This entry will address the crime of Criminal Impersonation in Second Degree (NY PL 190.25) and Criminal Impersonation in the First Degree (NY PL 190.26). A second entry will address legal decisions applicable to these laws.

Criminal Impersonation in the Second Degree - New York Penal Law 190.25

A person is guilty of Criminal Impersonation in the Second Degree when he:

(1) Impersonates another person. This impersonation must be accompanied by an intent to obtain a particular benefit or, in the alternative, to defraud another person. Although often charged as Theft of Services, pursuant to New York Penal Law 165.15, if one uses a metrocard, for example, of a student or senior citizen, the crime of NY PL 190.25 may be charged.

2. Again, with the intent to benefit or defraud another person, a person pretends to be a representative of a particular organization and acts in that capacity. The type and size of that organization does not matter.

3. (a) A person acts and pretends to be a public servant and, without authority, wears that particular uniform or shield, etc. of that public servant. In the alternative, that person, wrongfully expresses by action or words that he or she is the public servant or acting o their behalf; and (b) acts with intent to induce that person to submit to such pretended or false official authority for the purpose of obtaining funds or to cause the targeted person to act under the fraudulent authority or reliance on the fake public servant.

4. Impersonates another person online with the intent to defraud or obtain a benefit. In the alternative, that person pretends to be a public servant through electronic or online communication to induce that person to follow the authority of the fake public servant or to act in reliance on this pretense.

Criminal Impersonation in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

Criminal Impersonation in the First Degree - New York Penal Law 190.26

A person is guilty of Criminal Impersonation in the First Degree when:

1. He or she acts similar to NY PL 190.25(3) except that the person pretends to be a police officer or a federal law enforcement officer or wears or displays without authority, any uniform, badge or other insignia; and

2. That person acts with the intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon said pretense and in the course of such pretense commits or attempts to commit a felony; or

3. Pretending to be a licensed doctor, physician or other person authorized to issue a prescription, he or she communicates to a pharmacist an oral prescription which is required to be reduced to writing.

Criminal Impersonation in the First Degree is a class E felony punishable by up to four years in state prison.

For further information on the crimes of Criminal Impersonation, please read the second installment of this "primer." Not a direct transcription of the law, a reading of the actual statute and consultation with an experienced New York criminal defense lawyer is necessary to understand the nuances of the statutes as well as the potential criminal defenses that may be available to you.

Founded by former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing clients throughout the New York City region.

That secret video recorder you installed capturing someone undressing in a hotel bedroom, the changing room or in your tenant's apartment may land you in serious trouble. While you may think it is funny to show your friends images of a person you filmed while you were intimate without that person knowing, it will be far from humorous when you find yourself charged with either Unlawful Surveillance in the Second Degree pursuant to New York Penal Law section 250.45 or Unlawful Surveillance in the First Degree pursuant to New York Penal Law 250.50.

Although a serious offense, there may be numerous defenses to the crimes of Unlawful Surveillance pursuant to New York Penal Law sections 250.45 and 250.50. For example, did the subject of the surveillance or video consent to the recordings and is there any corroboration of that? Obviously, making such an argument where the installation is in a fitting room, bathroom or other "personal space" may be difficult. That being said, was the search of the location or computer used in the alleged crime conducted with probable cause and with a search warrant? Do you have standing to challenge that search? Whatever the facts, discuss the them with your New York criminal defense attorney to ascertain and implement the best defense you deem appropriate. Having briefly glossed over the severity of the crime and potential defenses, the follow are the definitions involving Unlawful Surveillance in New York:

A person is guilty of Unlawful Surveillance in the Second Degree when:

1. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

2. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

3. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person's knowledge or consent.

(b) For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

4. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

Unlawful Surveillance in the Second Degree is a class E felony punishable by up to four years in state prison.

If you have perpetrated this offense in the previous ten years and you are again charged with this crime, you may face the crime of Unlawful Surveillance in the First Degree, New York Penal Law section 250.50, a "D" felony, punishable by up to seven years in state prison.

Crotty Saland PC is a criminal defense firm located in New York. Founded by two former Manhattan prosecutors, Crotty Saland PC represents clients throughout the New York City region.

Whether a vehicle is stolen or being driven without permission of the owner, one particular crime that may be charged in New York is Unauthorized Use of a Vehicle in the Second and Third Degrees pursuant to New York Penal Law sections 165.06 and 165.05 respectively. While other crimes may have been perpetrated, such as Grand Larceny in the Fourth Degree, an "E" felony punishable by up to four years in state prison, Unauthorized Used of a Vehicle, the "joyriding statute," is defined as follows:

NY PL 165.05(1) - Unauthorized Use of a Vehicle in the Third Degree

A person is guilty of Unauthorized Use of a Vehicle in the Third Degree when knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent

Unauthorized Use of a Vehicle in the Third Degree is a class "A" misdemeanor punishable by up to one year in jail.

NY PL 165.06 - Unauthorized Use of a Vehicle in the Second Degree

A person is guilty of Unauthorized Use of a Vehicle in the Second Degree when he commits the crime of Unauthorized Use of a Vehicle in the Third Degree as defined in subdivision one of section 165.05 of this article (above) and has been previously convicted of the crime of Unauthorized Use of a Vehicle in the Third Degree as defined in subdivision one of section 165.05 or Second Degree within the preceding ten years.

Unauthorized use of a vehicle in the second degree is a class E felony punishable by up to four years in prison.

Now that you have a basic understanding of the crime(s) of Unauthorized Use of a Vehicle, I will address an interesting issue that recently played out before a New York Supreme Court Criminal Term.

Continue reading "New York Penal Law 165.05 & 165.06: Unauthorized Use of a Vehicle & Your NY Criminal Defense" »