New York Criminal Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

There is little doubt that if your home is the target of a search warrant in New York, you, as the homeowner or tenant who resides there, would have the standing or ability to challenge a search warrant executed at that premises. However, one factor that may change the dynamic of this equation is where you (again, as the homeowner who resides there or tenant who lives there) are prevented from temporarily entering or living in the premises due to an order of protection or restraining order. The obvious question then becomes, what rights or standing, if any, do you have to challenge a search of that premises pursuant to a search warrant where there is an existing order of protection keeping your from that location?

Regardless of the fruits of that search, i.e, whether the police find drugs, guns, etc, decisions have not been favorable to those who are barred from a particular premises even if they are the owners. In fact, in a recent decision from October 20, 2009 in Kings County (Brooklyn) Supreme Court, a judge found that "the defendant has no standing to challenge the validity of the search warrant since the court issued a full Order of Protection for the victim and her son." People v. Dorcinvil

This decision certainly is not the first to come down in this manner. In People v. Robinson 205 A.D.2d 836 (Third Dept. 1994), the Appellate Division found that the search of the defendant's home where he was barred due to an order of protection was valid and legal. The court further noted that the defendant "had neither a legitimate expectation of privacy therein nor standing to challenge the police entry into the house" because of that order of protection.

While every case requires an analysis to ascertain whether a defendant has standing and an expectation of privacy (part of the foundation of any challenge to a search warrant), it is clear that an order of protection may become an impediment.

Crotty Saland PC is New York criminal defense firm founded by lawyers who previously served as prosecutors in the Manhattan District Attorney's Office.

Your car was stopped in Manhattan after the police accused you of DWI. The police pulled you over in Brooklyn for Forgery or Criminal Possession of a Forged Instrument because you had a fake registration or license. Maybe you were stopped in the Yonkers and charged with Criminal Possession of a Weapon because the police claim they thought you had a gun. Regardless of the reason, the police now want to search your car.

The police can search your car in varying degrees depending on the circumstances. Without going into details as to each of those circumstances and degrees, a search can be made if there is an exigent (emergency) circumstance, the police have a search warrant, the driver consents, or there is contraband such as drugs or a gun in plain view. Even assuming one of these reasons are applicable, a search may be limited in its scope such as to you reachable area.

While each of the above searches are worthy of their own analysis, the one way the police search a car that will be discussed in more detail is by bring the vehicle back to the precinct and conducting an Inventory Search. These searches are not searches based on probable cause, a search warrant or an emergency situation. Instead, the argument or basis for these searches are that the police need to safe guard the vehicle for some reason and account for all property in the vehicle. In other words, the police are not seeking contraband, but are protecting themselves and the owner from any future problems relating to theft, damage, and security of property.

The unfortunate reality is that these Inventory Searches are often merely a means to conduct a full blow search of a vehicle for contraband where there is no exigent circumstance or search warrant. Therefore, in order to make sure your rights are not violated and that illegally obtained evidence is not used against you, it is in your best interest to retain an experienced criminal defense attorney.

In order for the courts to uphold an Inventory Search the following must have occurred:

1) The car must have been stopped lawfully.

2) The objective or purpose of the Inventory Search must be to make a list of the items in the car and not be an excuse or attempt to find contraband.

3) There must be established and written police procedures that were followed. According to People v. Galek, those procedures must be "rationally designed to meet the objectives that justify the search in the first place and limit the discretion of the officer in the field."

4) An actual inventory must be made of the items recovered (after all, the police are claiming their search was an Inventory Search!).

In the event that your vehicle was searched and you believe it was done in this manner, contact a skilled criminal defense attorney who can fight to protect your rights and seek to suppress unlawfully obtained evidence.