New York Criminal Lawyer Blog

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.

Most experienced New York criminal lawyers will be able to tell you potential incarceratory punishments for felonies, misdemeanors and violations without hesitation. For example, in New York, an "E" felony is punishable by up to four years in state prison while and "A" misdemeanor is punishable by up to one year in a county or city jail (in New York City such as Manhattan or Brooklyn, county "time" is served on Rikers). Aside from a term of imprisonment, however, what are the potential fines associated with pleas or convictions for particular crimes? This entry will address those fines that may be levied for misdemeanor and violation convictions as set forth pursuant to New York Penal Law section 80.05.

Fines for Class A Misdemeanors Convictions in New York

For class "A" misdemeanors, the highest misdemeanor degree, a court can fine a defendant in an amount not to exceed one thousand dollars ($1,000.00). Although limited to violations of section 215.80 of the New York Penal Law, the court may impose a fine double the value or amount of the property that was disposed of by the defendant in an unlawful manner.

Fines for Class B Misdemeanors Convictions in New York

Not as serious a class A misdemeanors, class B misdemeanors are still crimes that will give you a criminal record. The maximum fine a court can levy upon a defendant for a class B misdemeanor is five hundred dollars ($500.00).

Fines for Unclassified Misdemeanors Convictions in New York

Certain crimes in New York are misdemeanors that are neither A nor B misdemeanors. These crimes may be treated similar in their scope of punishment as A or B misdemeanors, but are considered unclassified. An example of an unclassified misdemeanor is Aggravated Unlicensed Operation of a Vehicle found in New York's Vehicle and Traffic Law. For these crimes, the court my set a fine not as established under the guidelines for A or B misdemeanors, but as established in the specific statute dealing with that crime. In other words, if the particular crimes permits a fine of only one hundred dollars or two thousand dollars, then that is the amount the court may levy.

Fines for Violation Convictions in New York

Not a crime, a violation is often a good way to resolve criminal charges in the event an outright dismissal or acquittal is not likely. The maximum fine the court can fine a person for this type of conviction in New York is two hundred fifty dollars ($250). Like unclassified misdemeanors, there are violations that do not fall under the New York Penal Law. Those violations specify in the language of the statute the amount of the permissible fine.

Other Possible Fines for Convictions in New York

In the event a person is convicted for a crime and as a result of their criminal activity they obtained property, including money, the New York Penal law permits courts to fine that person in an amount double to their gain even if that exceeds the statutory limits outlined above.

Additional information on New York Sentencing Guidelines, including terms of incarceration for both felonies and misdemeanors, can be found through the link. Beyond this information, both the Crotty Saland PC website and the New York Criminal Lawyer Blog contain significant educational information about New York Penal Law statutes, legal decisions and interesting commentary about cases in the news.

Crotty Saland PC, a New York criminal law firm, represents individuals charged with or investigated for crimes throughout the New York City area. Both founding partners previously served as prosecutors in the Manhattan District Attorney's Office.

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).

Any crime or offense in New York where violence is perceived or carried out is a serious offense. Experienced New York criminal defense lawyers who handle violent felonies and misdemeanors often represent clients in Criminal Possession of a Weapon and Assault cases. Not seen as often, but potentially as serious, is the crime of Stalking. Briefly, Stalking in New York ranges from a "B" misdemeanor (New York Penal Law 120.45) punishable by up to 90 days jail to a "D" felony (New York Penal Law 120.60) punishable by up to seven years in prison. Between these two crimes are Stalking in the Third Degree (New York Penal Law 120.50) and Stalking in the Second Degree (New York Penal Law 120.55). The following entry will define and address Stalking in the Fourth Degree as it relates to "reasonable fear." Although addressing "reasonable fear" in the context of Stalking in the Fourth Degree, this entry is relevant to the other degrees as well.

Generally, one is guilty of Stalking in the Fourth Degree when one intentionally and without a legitimate purpose, engages in a course of conduct directed towards an individual person and knows, or reasonably should know, that his or her actions:

(1) is likely to cause reasonable fear of real harm to that person's safety or health (or to that of a third person); or

(2) actually causes material harm to the mental or emotional health of the person through the use of a telephone or initiating communications; or

(3) is likely to cause such person to reasonably fear that their employment or business is threatened when the "stalker" appears or calls the place of business and has been clearly informed to stop.

As noted above, assuming each and every other element is met under the first subsection, one's conduct must still cause "reasonable fear" in the complainant. Addressing this issue, a Manhattan Criminal Court judge recently dismissed a charge of Stalking in the Fourth Degree where the other elements of the crime where met, but prosecutors failed to establish a "reasonable fear" in the complainant.

Continue reading "Stalking in the Fourth Degree: New York Penal Law 120.45 & "Reasonable Fear"" »

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.

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.

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" »

The NY criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC have handled a significant number of Desk Appearance Tickets (DATs) and "pink" summonses for our clients. In Manhattan, these cases are often dealt with at 100 Centre Street, 346 Broadway ("pink" ticket / summons court) or at Midtown Community Court. Whether the summons or Desk Appearance Ticket (DAT) charges you with Shoplifting Petit Larceny (NY PL 155.25 or NY PL 165.40), Marijuana (NY PL 221.10), Drug Possession (NY PL 220.03), Theft of Services (NY PL 165.15), Assault (NY PL 120.00), Trespass (NY PL 140.10), or even Disorderly Conduct (NY PL 240.20), the ramifications of mishandling the Desk Appearance Ticket (DAT) is no different than if you were arrested, booked and put through the criminal justice system. That means, you can still end up with a criminal record even though you were merely given a "ticket" for a criminal act.

For the purpose of today's entry, I will discuss the differences between the potential Manhattan courts that deal with these charges. Again, a Desk Appearance Ticket (DAT) or "pink ticket" summons in Manhattan is returnable to 100 Centre Street, Midtown Community Court or 346 Broadway.

100 Centre Street

The criminal court building houses the majority of the criminal courts in Manhattan. This building is where cases are generally arraigned (where the judge informs you of the charges) and where an accused sees the judges over the course of their pending cases. Desk Appearance Tickets (DAT) in Manhattan are returnable here as well. On the first floor of 100 Centre Street are the arraignment courts. On the date you are to go to court to deal with your desk appearance ticket you should arrive no later than 9:00 am. After going through security, you will wait in the court or outside the courtroom if it is filled to capacity. Sometimes, due to the number of cases being arraigned, the wait can be hours before you see an attorney or the judge. For this reason, and others as well, it is important to retain an attorney ahead of time. Generally, this expedites the process significantly. For more information on 100 Centre Street, follow this link for earlier blog entry.

Midtown Community Court

Located at 314 West 54th Street between 8th and 9th Avenue, Midtown Community Court often handles quality of life crimes in the area of midtown such as Times Square. The closest subway station to Midtown Community Court is the 7th Avenue, B, D or E as well as the 50th Street C or E trains. The offenses prosecuted here are misdemeanors or violations and very often deal with non-violent crimes. Although not felonies, these crimes are still punishable by up to one year jail. Make no mistake, merely because you are being prosecuted in community court by no means make the case less significant. In fact, if the case is not resolved at your arraignment, it may be adjourned to 100 Centre Street. It is important to note that crimes involving Prostitution and Escort Services often remain in Midtown Community Court and are not transferred to 100 Centre Street.

Unlike 100 Centre Street, Midtown Community Court has one court room. Although just as formal, there are significantly less cases prosecuted here and the atmosphere is not as overwhelming. That being said, if your Desk Appearance Ticket (DAT) requires your appearance at 9:30 am, get to court by 9 am because the line to get in often extends outside the building. Moreover, once inside, you will be screened and walk through a metal detector.

In addition to misdemeanors, Midtown Community Court also handles "pink ticket" summonses. Often times these cases are resolved with a fine, community service, a quality of life program or a combination of these sentences.

346 Broadway

Located at - you guessed it - 346 Broadway, the summons court handles most "pink ticket" summonses issued by the police. This court is located between Lafayette Street and Broadway. The entrance is on Leonard Street. The closest subway station is the 6 at Canal Street and the 4,5 or 6 train at Brooklyn Bridge / City Hall. Additionally, the 1 train at Franklin Street, the A or C at Chambers Street or the R or W at City Hall are relatively close. As noted above, if your case is scheduled for 9:30 am, get online by 9:00 am. Not only can the line to go through security extend around the side of the building, once inside, you must go to the second floor and wait on another line. This line is often 25 to 50 people long. When you are done waiting, you turn in your ticket to a clerk who will advise you which court room on the second floor to go to. Because these courtrooms are small, if you are not there early there is a chance you will have to wait in the hallway as there will be no seating.

Like all of the other courts, if you cannot afford counsel one will be provided for you. Having your own counsel, however, often significantly expedites the process. Regardless, each case is handled the same at 346 Broadway as there is no prosecutor, but a retired judge who presides over the cases. These judges are judicial hearing officers who do not necessarily follow the guidelines for similar prosecutions at 100 Centre Street or Midtown Community Court. However, if you and your criminal defense attorney believe your criminal case is being treated unfairly or differently, a request can be made to have that case transferred to 100 Centre Street. This can be discussed with your counsel and may be advisable if the case cannot be resolved appropriately at 346 Broadway.

Although merely a snapshot into the different Manhattan courts, this entry addresses questions often raised by those unfamiliar with the courts. For further information or to educate yourself on Desk Appearance Tickets (DAT) or a summons, check new-york-lawyers.org regularly for updates to the blog.

Founded by two criminal defense attorneys who previously served as prosecutors in the Manhattan District Attorney's Office, Crotty Saland PC represents clients throughout the New York City region.

It is fairly common in the courts throughout New York City (Manhattan, Brooklyn, Queens and the Bronx) for criminal defense attorneys to represent clients charged with Resisting Arrest, pursuant to NY Penal Law 205.30. While it certainly can be a legitimate charge, very often the police will add this charge on top of the original offense if a defendant merely "resists" by backing away, swinging his or her arms up and not complying with an officers demands. Do not be mistaken that the law in NY requires a fist fight or shoving to satisfy the elements of Resisting Arrest. No physical violence or injury is necessary.

According to Penal Law 205.30:

A person is guilty of Resisting Arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

As addressed above, this resistance need not be violent. In fact, as long as one intends to prevent an officer from making an authorized arrest by engaging in particular conduct, resisting arrest may be charged. See People v. Blandford, 37 A.D.2d 1003 (3 Dept. 1971). Lifting an individual from a seated position who refused to be placed under arrest and carrying that person to a patrol car has been found to be sufficient to establish the crime of Resisting Arrest even though the defendant did not behave in a violent or aggressive manner. See People v. Bauer, 161 Misc.2d 58 (Watertown Cty Ct. 1994).

Another important factor one must consider when defending against the charge of Resisting Arrest is that the underlying arrest must be an "authorized arrest." In other words, the arrest must be based on probable cause either by observations by the officer, for example, or in connection to a warrant. People v. Jensen, 86 N.Y.2d 248 (1995).

Regardless of the set of circumstances, if you are confronted by the police it is usually, if not always, in your best interest to be orderly and "compliant." This does not mean you should merely let the police take advantage of a particular situation. At the same time, you do not want to escalate a potentially dangerous situation. In the event you are wrongly arrested or charged with certain crimes, your criminal defense attorney cannot only make the applicable motions to challenge the legality and sufficiency of the arrest and charged offenses, but he or she can explain to you the available civil remedies as well.

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

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

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

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

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

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

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

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

Any NY criminal defense attorney experienced in New York criminal law should be able to explain to you that if you are a predicate felon in New York State and charged with a non-controlled substance offense, a second felony conviction will land you in state prison even if your offense is "merely" and "E" Felony. In other words, if you are a predicate felon, as will be explained below, a sentence of state prison is mandatory on felony plea.

Pursuant to New York Penal Law Section 70.06, for one to be deemed a predicate felon or second felony offender, one must have a prior felony conviction in the past ten years. In the event you were incarcerated or on probation, the ten years starts from the completion of your incarceration. This only applies to felonies and not prior misdemeanors. Therefore, while a judge or prosecutor might take the prior misdemeanors into consideration when arranging for a disposition or determining a sentence, from a technical standpoint, the prior misdemeanors will not impact your sentence on a new felony (from a practical standpoint it often does).

An issue that comes up in the realm of the predicate felon statute is whether or not the first felony offense must be a felony in New York State. Instead of New York, what if your conviction was from a state such as Florida, Connecticut or Pennsylvania?

According to New York Penal Law Section 70.06(1)(a)(i): "the [previous felony] conviction must have been in [NY] of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed."

Put into other terms, merely because a crime is called a felony in Arizona does not meant that the crime would be a felony here. Was a term of imprisonment in excess of one year possible (not necessarily imposed) and are the elements of the crime felonious here? The Arizona conviction on your record may be called Burglary, but the elements of that crime in Arizona and the potential sentence may be similar to a misdemeanor in New York.

Obviously, it is imperative to ascertain whether your prior conviction is a felony in New York State so that you don't end up in prison when you never should have gone in the first place. To put this in perspective, as addressed above with the "E" felony, the lowest of all felonies, if you are not a predicate felon jail is not mandatory. If you are a predicate felon, then a minimum term of incarceration of 1.5 to 3 years in state prison is required and the court must adjudicate you a "Predicate Felon." Certainly, going to prison without answering this question is unacceptable.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Follow Crotty Saland PC on the NewYorkCriminalLawyerBlog or on Twitter at DefenseLawyerNY.