New York Criminal Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

In a fairly atypical prosecution by the Manhattan District Attorney's Office, Cyrus Vance, Jr. and Company are spearheading a case in Manhattan Criminal Court against alleged "lone wolf" terrorist, Jose Pimentel. It is alleged that Pimentel was a step or two away from detonating a shrapnel filled pipe bomb somewhere in New York City in retaliation against the military's success against certain Muslim extremists. Pimentel faces up to twenty-five years in state prison if convicted not of the terrorism related offense that has galvanized the media, but for possessing an explosive type weapon.

According to reports, The New York City Police Department had been watching Pimentel for sometime after they learned of his alleged terroristic desires. In fact, it appears that Pimentel was the subject of NYPD scrutiny for well north of a year or two. While the story behind the investigation and ultimate arrest of Pimentel is fascinating, this blog entry will not address that investigation. Instead, the focus of this article is dissecting the offenses for which a Grand Jury may indict the accused.

Conspiracy in the Fourth Degree: NY PL 105.10(1)

An "E" felony, Conspiracy in the Fourth Degree, pursuant to New York Penal Law 105.10(1), is punishable by up to one and one third to four years in state prison. The basic premise of this crime is that a person is guilty of this crime if he or she has the intent that an "B" or "C" felony transpire or take place. Assuming this intent exists, the accused must also agree with at least one other person to engage or cause the performance of the intended act.

Applying the statutory language to the allegations against Pimentel, there are critical factors that one must first understand. First, Mr. Pimentel is also charged with violating New York Penal Law 265.04(1), Criminal Possession of a Weapon in the First Degree. Although this offense will be addressed further below, NY PL 265.04 satisfies one element of the Conspiracy charge as it is a "B" felony.

Another essential element to Conspiracy is that the accused not act alone. Although reports describe Pimentel as a "lone wolf," he is still charged with Conspiracy. Practically speaking, how can Pimentel be a "lone wolf" yet also be seeking to "join forces" with other co-conspirators? To answer this question, one must dig a little deeper.

According to New York Penal Law 105.30, it is no defense to a prosecution for Conspiracy that due to legal incapacity, unawareness, or to other factors precluding the mental state required for the commission of Conspiracy or the actual crime, the alleged co-conspirator or conspirators could not be guilty of the Conspiracy or the intended crime. That made no sense, did it? Let's try that again below...

In non-legal jargon, it makes no difference if you sought to detonate a bomb, as a conspirator with another person, but ultimately did so alone because there was no other party that shared your intent or desires. You could still be guilty of Conspiracy if you believed you had co-conspirators in your plot. It would make no difference in the eyes of New York State whether your co-conspirators had no intent in following through or were undercover police officers. In fact, even if your alleged co-conspirators were acquitted at trial, it would still be possible for a jury to unilaterally convict you of Conspiracy.

Although the Conspiracy charge against Pimentel is certainly interesting in terms of how the crime is prosecuted in this particular scenario, it is by no means close to the most serious offense for which the defendant faces.

Soliciting Providing Support for an Act of Terrorism in the Second Degree: NY PL 490.10(1)

A "D" felony, Soliciting or Providing Support for an Act of Terrorism in the Second Degree, pursuant to New York Penal Law 490.10(1), is punishable by up to seven years in state prison. Pimentel would be guilty of this crime if he intended that material support or resources would be used to plan, prepare, carry our or aid in either an act of terrorism or the concealment of the same. Additionally Pimentel must have raised, solicited, collected or provided material support or resources.

To better understand this statute, one must review all of the underlying definitions of this crime. One of those terms is "act of terrorism." An "act of terrorism" includes any act that is intended to intimidate or coerce a civilian population. Certainly, if true, prosecutors could make a powerful argument that detonating a pipe bomb filled with shrapnel in New York City would be an act of intimidation.

A second legal term, "material support or resources," also needs defining. This term is extremely broad and includes, but is not limited to, weapons, lethal substances and explosives.

Again, in non-legal jargon, in order for the Manhattan District Attorney's Office to successfully prosecute Pimentel they would have to prove beyond a reasonable doubt that the defendant had the intent that a weapon or explosive be used to carry out an act to intimidate a civilian population and that Pimentel collected or provided these explosives or weapons in order to do so.

Criminal Possession of a Weapon in the First Degree: NY PL 265.04(1)

Although a crime that has no legal element that involves terrorism, Criminal Possession of a Weapon in the First Degree is the most serious offense facing Pimentel. In fact, should the alleged terrorist be convicted of New York Penal Law 265.04(1), he would face a minimum of five years and maximum of twenty-five years in state prison. It is not unlikely that a judge would sentence Pimentel closer to the latter should he be convicted after trial.

The easiest crime to understand, one is guilty of CPW 1 if one possesses an explosive substance with the intent to use it unlawfully against another person.

As brief and concise as possible, theses are the main charges that prosecutors will likely present to the Grand Jury in the case against Pimentel. Whether there are other crimes, the defendant's attorney seeks to have his client testify or examined for mental stability, or some other interesting storyline plays out, Vance and his gaggle of prosecutors will have much to chat about beyond ATM machines and steakhouse waiters as they gobble on turkey, stuffing and a sides of cranberry later this week.

To learn more about the crimes listed above, including Criminal Possession of a Weapon, follow the highlighted links to the particular offense or to CrottySaland.Com.

Crotty Saland PC is a New York City criminal defense firm representing those accused of crimes throughout the metropolitan area. The New York criminal lawyers who founded Crotty Saland PC both served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office.

In a previous entry, I addressed the crime of Assault in the Third Degree pursuant to New York Penal Law 120.00 as well potential deals or offers one could expect in New York City courts (as well as elsewhere in the state). Once again, if you intentionally (or recklessly) cause physical injury to another individual and thereby cause substantial pain, you have perpetrated this misdemeanor crime. Although there are very important nuances to this statute that can and should be addressed by an experienced New York criminal lawyer, the purpose of this blog entry is not to address the crime itself, but deals one might expect from the prosecution.

Outside of an outright dismissal, procedural dismissal ("speedy trial" and CPL 30.30), or acquittal at trial, there are few options other possible dispositions beyond what was previously addressed. The three remaining dispositions are as follows:

Disorderly Conduct (New York Penal Law 240.20)

Like Harassment in the Second Degree, Disorderly Conduct (NY PL 240.20), is a violation punishable by up to 15 days in jail. A plea to this violation will not result in a criminal record. The advantage of this plea over a Harassment plea is that a plea to Disorderly Conduct will require that you admit that you were disorderly as opposed to harassing and aggressive in nature. In short, there is not admission that you ever threatened or touched anyone or that there was a particular target of your actions. Even more relevant, however, a plea to Disorderly Conduct will seal (barring the plea agreement to waive sealing). Therefore, the record of the plea should not remain public. Unfortunately, this is not always the case. Sadly, as observed from personal experiences dealing with clients and from anecdotal evidence from those who inquire about our services as criminal attorneys in New York, often time (I cannot say a particular percentage), a Disorderly Conduct and the underlying arrest will not seal fully. As a result, an employer, for example, may learn about this non-criminal conviction and underlying arrest after a background check. Having said that, if an ACD (as will be described below) is not available, a trial is not a viable option and there is no procedural defense, then a Disorderly Conduct will end the case without a criminal conviction.

Adjournment in Contemplation of Dismissal (ACD)

Barring an outright dismissal, a procedural speedy trial dismissal or an acquittal at trial where you are exonerated, an Adjournment in Contemplation of Dismissal is the best deal one can get in a New York Assault case. I don't believe many, if any, criminal lawyers would dispute this. Not only is there no admission of wrongdoing in any capacity, but if you stay out of trouble for six months your case will not just be dismissed, but sealed as well. In the event the charge of Assault is domestic in nature, the ACD will run for one year. Keep in mind, that an ACD, granted pursuant to New York Criminal Procedure Law 170.55, results in your underlying arrest becoming a "nullity." While in no way should this blog entry be construed as advice in your particular case, you could arguably answer "no" to the question of whether you had ever been arrested. Clearly, before answering such a question in this manner, discuss your answer with you own criminal attorney.

The above synopsis, as well as the previous blog entry, on potential offers in a New York Third Degree Assault case (NY PL 120.00) is a general guideline to potential deals. Which offer, if any, is made in your case is likely a combination of the facts and evidence, your criminal history and your criminal defense lawyer's strategy for your defense. Whatever offer is made to you, it is important to educate yourself and consult with your attorney on the ramifications in terms of careers, licenses, immigration, etc., before agreeing to anything.

To read further practical information on Assault crimes in New York including statutes, legal decisions and cases in the news, please follow the highlighted link above to the CrottySaland.Com website and NewYorkCriminalLawyerBlog.com. Additional information on the NewYorkCriminalLawyerBlog.Com is available to further address and define Disorderly Conduct and NY CPL 170.55.

Two other excellent resources for those who received New York City Desk Appearance Tickets for NY PL 120.00 are the NYDeskAppearanceTicket.Com website as well as the Desk Appearance Ticket section of CrottySaland.Com.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing those accused of Assault and other crimes in the New York City region.

As discussed previously on this blog site, Robbery, under NY Penal Law section 160.00, is defined as "forcible stealing." Thus it differs from other theft crimes for which force is not an element. In this legal context, "forcible" means threatening or using physical force. The force element can be satisfied in any number of ways: from a simple threatening fist pump and pushing a victim repeatedly into a corner to waiving a box cutter and brandishing a weapon in the victim's face. Of course, if an alleged thief brandishes a "firearm" [i.e. a gun; for specific legal definition see: NY Penal Law 265.00(2)] at a Robbery in the New York City area or Westchester County, the severity of the crime is heightened. Any experienced New York criminal attorney knows that prosecutors in New York are tougher on defendants who perpetrate felonies while carrying firearms, guns, pistols or any type of weapon. If you brandish a weapon in New York during a forcible theft (i.e, a "Robbery") you will, at the very least, face charges of Robbery in the Second Degree (NY Penal Law Section 160.10) - a class C felony with a possible sentence ranging from three and one half to fifteen years in prison - and you may face charges of Robbery in the First Degree (NY Penal Law Section 160.15) - a class B felony punishable from five to twenty five years in state prison. These terms of imprisonment are for first time offenders.

A critical component with regards to carrying a firearm during a Robbery, is whether that gun is loaded. Under NY Penal Law 160.10(2)(b) if a robber "displays what appears to be...a firearm" then that alleged robber will be convicted of Robbery in the Second degree. On the other hand, a defendant can only be convicted of Robbery in the First Degree if that firearm was loaded and "a shot readily capable of producing death or other serious physical injury could be discharged" (NY Penal Law 160.15(4)). Therefore, if what appears to be a gun is brandished during a Robbery and the defendant is charged with Robbery in the First Degree, a New York criminal lawyer will always raise the affirmative defense that the gun was not loaded (or not a gun at all) and thus not a deadly weapon. If it can not be proven beyond a reasonable doubt that the firearm was indeed a loaded and deadly weapon, then the defendant may only be convicted of Robbery in the Second Degree. As noted above, this can mean significantly less time on a prison sentence especially when multiple counts/charges are levied against the defendant (as will almost always be the case).

So maybe we shouldn't make fun of those crafty thieves who only bring toy guns to commit a Robbery. While a victim of any crime certainly will not chuckle, a toy gun can completely change the dynamics of a Robbery case. In People v. Lyde, 98 A.D.2d 650 (1983) the First Department Appellate Division of New York reduced a conviction of four counts of Robbery to two counts of Robbery in the Second Degree and two counts of Robbery in the Third Degree. Lyde's original conviction for Robbery in the First Degree was predicated upon the fact that he had "displayed what appeared to be a pistol" during the commission of several robberies. However, Lyde was arrested in possession of a toy gun, and it was shown that he perpetrated the robberies only with that toy and not a real pistol. Convincing as it may have appeared to the victims, it was not a deadly weapon. Therefore, the court correctly reduced the First Degree Robbery conviction. Similarly, the Appellate Court in People v. Wilcox, 53 A.D.2d 738 (1976) ruled that the lower court had erred when submitting to the jury the crime of Robbery in the First Degree. Wilcox had used a starter's pistol during the commission of the Robbery. The court reasoned that the starter pistol was not a firearm capable of causing death or serious physical injury. Arguably, while a starter pistol looks no different than a real one, it merely makes a "bang" to signal the beginning or a race. It cannot be used in a more violent or deadly fashion. Therefore, Wilcox, like Lyde, was convicted of Robbery in the Second Degree not first.

It is interesting to note that there is some case law which suggests that one does not have to show an actual weapon to be convicted of Robbery in the Second Degree. Confusing? Yes, but in People v. Knowles, A.D.2d 116 (1979), the defendant was convicted of Robbery in the Second Degree after he coerced the victim into surrendering property by holding his hand in his pocket in such a way as to give the victim the impression that he had a gun. Gullibility of the victim aside, the court reasoned that in this situation of making the impression of a gun was no different than holding an inoperable gun for purposes of the statute. In other words, putting your finger or a stick in your jacket pocket and poking it out may look as if you are possessing a gun of some kind. This case may be a bit of an outlier, but it shows how severe the New York criminal courts can be when a firearm, or even the impression of a firearm, is involved in any Robbery offense found in Article 165 of the New York Penal Law.

To better understand the crimes of Robbery and Criminal Possession of a Weapon, follow the highlighted links. Additional materials on these and other crimes is available through the NewYorkCriminalLawyerBlog.Com where you can find analysis of cases in the New York City media, criminal statutes and legal decisions.

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

Additional Crotty Saland PC websites and bogs:

NYDeskAppearanceTicket.Com - Misdemeanor and Desk Appearance Ticket Crimes
NewYorkTheftAndLarcenyLawyers.Com - Felony & Misdemeanor Theft Crimes (November 2011)
NewYorkTheftAndLarcenyLawyersBlog.Com - Felony & Misdemeanor Theft Crime Statute & Case Analysis (November 2011)

There are few crimes in New York that are more serious than the crime of Burglary. Whether the allegation is that you perpetrated Burglary in the Third, Second or First Degree, there is potential for significant state prison. In fact, Burglary in the Second and First Degree have a mandatory minimum term of incarceration for first time offenders of three and one half and five years respectively. Make no mistake. Whomever your criminal lawyer may be, he or she must be both a skilled advocate and an attorney versed in the laws and procedures of New York criminal practice to successfully combat a Burglary arrest.

Briefly, you are guilty of Burglary when you trespass into a building and have the intent to commit a crime. Although any crime is included in this intent, prosecutors need not prove a specific intent to perpetrate a specific crime. Moreover, the degrees of Burglary are enhanced to violent felonies if, for example, the structure entered is a dwelling, you possessed a weapon or someone was injured while you committed the offense.

In a recent case handled by the New York criminal lawyers at Crotty Saland PC, our experience and guidance paid off tremendously for a client charged with Burglary in the Second Degree pursuant to New York Penal Law 140.25. It was alleged that our client burglarized a Brooklyn store attached to apartment buildings. Not only was our client facing a mandatory minimum term of jail, the evidence appeared "solid" against him at first glance. In fact, two separate witnesses identified our client in a lineup procedure at a nearby police precinct at the time of his arrest. These "hits" by the two witnesses put our client at the scene of the crime and allowed prosecutors to hang their proverbial "hats" on this evidence.

Not deterred by this evidence, Crotty Saland PC argued that both identifications were actually misidentifications. That is, we argued that the wrong person was identified. Upon investigating the case, it was not merely our assertion that convinced the prosecution, but concrete evidence. After speaking with at least one person who could place our client at another location near the time of the alleged crime, we were able to gain further evidence to support our contention. Approximately 45 minutes after the alleged Burglary in the Second Degree, video surveillance caught our client in another office building in Manhattan where he worked. Although the argument and analysis was much further in depth than mentioned here, we argued that it was physically impossible for anyone to perpetrate a crime this far away and to be back at work within 45 minutes. Again, the two witnesses were mistaken and identified the wrong person.

A short synopsis of one case, and not a guarantee of a future result, the example above illustrates that what appears to be powerful evidence in the hands of the prosecution may in fact be quite the opposite. Because anyone can be wrongly accused, diligence, perseverance and timely action are all critical in each and every case.

A significant amount of information on the crime of Burglary in New York can be located through the links above. Additional information on violent crimes, legal case decisions, statues and newsworthy cases can be found on Crotty Saland's NewYorkCriminalLawyerBlog.Com.

Established by two former Manhattan prosecutors, Crotty Saland PC represents the accused in all criminal arrests, investigations and trials throughout the New York City area.

One of the most common weapon crimes prosecuted in New York City is the misdemeanor offense of Criminal Possession of a Weapon in the Fourth Degree. This crime, New York Penal Law 265.01(1), sets forth and establishes certain objects that are automatically considered weapons regardless of whether or not you had the intent to use that object unlawfully against another person. In other words, if you possess any of these specified weapons, including the infamous "metal knuckle," the police in New York City can arrest you or issue you a Desk Appearance Ticket for innocently possessing the object. Compounding matters, guidelines at District Attorney's Offices may not permit an offer for even a first time offender.

In the realm of weapons set forth under NY PL 265.01(1), the most frequent weapon crime or arrest prosecuted by Assistant District Attorneys in New York City is probably an offense related to a switchblade knife or gravity knife. Often times, an individual is arrested or given a Desk Appearance Ticket after an undercover police officer observes the knife clip on the outside of the pocket. Once they stop and frisk that person, police officers confirm the knife opens with the force of gravity or springs open (your New York criminal lawyer should confirm this). Having said that, other weapons are also vigorously prosecuted including the "metal knuckle."

Unlike switchblade knives, gravity knives and even lesser known chucka sticks, the New York State legislature did not define metal knuckle in the New York Penal Law. This fact makes it more difficult for individuals to know what they are permitted and not permitted to possess. In an attempt to rectify any ambiguity, courts must define the objects that the statutes do not. Recently, a Rockland County Supreme Court Justice did just that in addressing whether or not an object constituted a "metal knuckle."

In People v. Laurore, 10-252, NYLJ 1202483040232, at *1 (Sup Ct. Rockland Decided February 15, 2011), the defendant was charged with numerous crimes including New York Penal Law 265.01(1) for possessing an alleged "metal knuckle." In finding that the item was a metal knuckle, the Court examined the following:

People v. Singleton, 127 Misc. 2d 735 (Crim. Ct. New York 1985.)

The New York Criminal Court found that an instrument worn on the hand that had leather straps and metal spikes was a "metal knuckle." In determining that the leather strapped and metal spike instrument was in fact a "metal knuckle," the court established a three prong test (the following test is directly quoted from the case).

1. Whether a blow by a fist wearing the instrument in question causes metal to come into contact with the victim's body.

2. Whether the instrument is designed so that it readily can be used offensively against the human body and

3. Whether the design is such that it cannot reasonably be put to any use other than to enable the wearer to inflict a blow with a fist covered by metal or pieces of metal.

Applying the above test to the object recovered from the defendant, the court determined that the item was in fact a weapon and a "metal knuckle." Here, the item had two holes that a person could slide their fingers into and two metal pointed spikes. When worn, these "metal knuckles" sit on the hand so that the metal spikes point forward from the front of the hand where they would strike another person if used by the defendant when he threw a punch. Although "metal knuckles" may come in different sizes and shapes, if their characteristics meet the requirements as set forth above, the object will likely qualify as a weapon.

For in depth information regarding New York weapon crimes including Criminal Possession of a Weapon in the Fourth Degree, please follow the associated link to Crotty Saland PC's New York Weapon Information Page. At the bottom of that page are related blog entries and a link to the New York Weapon section of the New York Criminal Lawyer Blog. The New York Criminal Lawyer Blog contains additional information on criminal statutes, legal decisions and analysis of interesting cases in the news.

The New York criminal defense lawyers at Crotty Saland PC served as Manhattan prosecutors before starting the criminal defense firm. Crotty Saland PC represents defendants throughout the New York City region in all stages of criminal litigation.

Sometimes prosecutors can be all "bark" and no "bite." In the case of two clients charged with Burglary in the Second Degree (New York Penal Law 140.25), this was precisely the situation. Prosecutors claimed that our clients committed the crime of Burglary in the Second Degree after they allegedly went to a neighbor's home, got into a physical altercation and broke out a window. If convicted, the clients each faced a minimum of 3.5 years and a maximum of 15 years in state prison. Despite the allegations, our clients adamantly denied going into the complainant's home, attacking the complainant or breaking a window in the home. In fact, one of our clients sustained a much more significant injury than the alleged victim and suffered a deep laceration requiring sutures as well as various other lacerations inconsistent with the breaking of window glass. Further investigation revealed that although they were present at the location of the incident, another person was initially arrested and released.

At arraignment, the New York criminal lawyers at Crotty Saland PC convinced the judge to release our clients. Upon their release, Crotty Saland PC argued with prosecutors over the merits of the case as well as the evidence. After some time, prosecutors offered an "A" misdemeanor and probation to each of our clients. They even claimed it was a "one time offer." Upon rejecting that offer because of the strong evidence in our clients' favor, prosecutors stated they would proceed on a felony and scheduled a date for a felony hearing.

As expected, on the date of the felony hearing, prosecutors reduced the case against our clients to the "A" misdemeanor previously offered. Then, prosecutors offered a lesser "B" misdemeanor. Upon rejecting the "B" misdemeanor (in this case it was our opinion that offering a misdemeanor where the top count was already a misdemeanor was not a real offer), we explained that we would demand a trial on the case unless a violation (not a crime) was offered. Upon consulting with a supervisor, the prosecutor returned and offered our clients the violation of Harassment in the Second Degree (New York Penal Law 240.26). This was rejected as this type of plea does not seal in the same manner as other violations and may be visible to those who might want information about our clients' past.

Ultimately, after negotiating further, prosecutors offered both of our clients a Disorderly Conduct (New York Penal Law 240.20). After discussing the evidence and probability of a complete acquittal of all charges at trial, our clients accepted the violation as opposed to risking a possible conviction on other charges. In the end, our clients avoided any criminal record, jail and probation.

Sometimes the best way a New York criminal lawyer can defend a client is to try to mitigate conduct by displaying the client's character and worthiness of an offer. Other times, when the evidence is more favorable, the approach may be exponentially more aggressive and confrontational. This may even include fighting the case through trial. Because no two cases are alike and the result in one case does not guarantee similar results in another, the defense you implement must be thoroughly vetted with your own legal counsel. Fortunately for these two particular clients, the best defense was identified and implemented to avoid a criminal record.

Comprehensive information on New York Burglary laws can be found through the respective links above. Additional information about the types of cases handled by Crotty Saland PC, as well as some case results, can be found on the respective link as well. Extensive information on various criminal statutes, cases in the news and criminal court decisions is also located on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Crotty Saland PC, a New York law firm focused on representing clients in criminal investigations, arrests and trials, was founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

While Assault, Burglary, Robbery and Weapon Possession are the more common violent crimes prosecuted by Assistant District Attorneys in Manhattan, Brooklyn, Queens and other offices in the New York City region, crimes relating to strangulation are also "on the books." In fact, pursuant to Article 121 of the New York Penal Law, Strangulation and Related Offenses includes three crimes. These crimes are Criminal Obstruction of Breathing or Blood Circulation (NY PL 121.11), Strangulation in the Second Degree (NY PL 121.12) and Strangulation in the First Degree (NY PL 121.13).

Because these crimes are relatively new and there is not a significant amount of information about them, Crotty Saland PC has created an educational website page not for advice purposes, but to educate readers on the law in this area. Obviously, should you be accused of or arrested for this or any other crime, contact a New York criminal lawyer to address the evidence against you as well as the applicable criminal law that you may face.

For additional information on Strangulation and Related Offenses as well as other crimes, please review the Crotty Saland PC website and the New York Criminal Lawyer Blog.

A law practice dedicated to criminal defense, the founding New York criminal defense attorneys at Crotty Saland PC both served as prosecutors in the Manhattan District Attorney's Office prior to starting the law firm.

Whether you were arrested for Third Degree Assault (New York Penal Law 120.00) or you were given an Assault Desk Appearance Ticket (DAT) in the New York City area, the potential offers or deals are ultimately the same. Certainly, one New York criminal defense attorney may have a different approach to get the best deal over another lawyer, but the potential crimes and violations you may obtain are all found in the New York Penal Law.

Generally, Assault in the Third Degree (NY PL 120.00) is a misdemeanor punishable by up to one year in jail. In New York City (Manhattan, Brooklyn, Queens and the Bronx), that year for an Assault arrest and conviction would be served on Rikers Island. Obviously, your New York criminal lawyer will advocate fiercely to prevent that from happening. So, assuming that you cannot beat the case on factual, legal or procedural grounds, what are the potential offers you can expect to discuss with your New York criminal defense attorney? The following is a list of those dispositions:

Attempted Assault in the Third Degree (New York Penal Law 110/120.00)

By way of background, whenever 110 appears before a criminal statute, that signifies the crime is an attempted crime. Generally, an attempted crime is a lesser included offense of the actual crime. In the realm of Assault, Attempted Assault is a lesser crime that is automatically a lower crime of the completed crime of Assault. In practical terms, an Attempted Assault is a "B" misdemeanor and is punishable by up to 90 days in jail. While it is obviously a lesser crime compared to Assault, a plea to this offense would still give you a criminal record that is and will remain public. It is very rare that an Attempted Assault is a "good deal" where you are charged with Assault in the Third Degree as the most serious offense. Having said that, each case is unique and needs to be thoroughly discussed with your own counsel.

Harassment in the Second Degree (New York Penal Law 240.26)

Harassment in the Second Degree (NY PL 240.26) is violation and not a crime. This means that if you were convicted of this offense and nothing else, you would not have a criminal record. Clearly, this type of plea is exponentially better than a plea to an Attempted Assault. While you will admit on the record that you struck or subjected another person to physical contact, part of your allocution (admission to the elements of the crime) will not include any language that you intended to cause that person and in fact caused that other person physical injury or substantial pain. To sum up, this type of plea avoids a criminal record and admission of the criminal intent as described. Harassment in the Second Degree is punishable by up to 15 days in jail.

The major drawback to Harassment in the Second Degree is that it does not seal like some other violations. This means that the record of your plea and the conviction may be available to those seeking information about your background.

The potential disposition or offers in an Assault case as listed above do not stand alone. A prosecutor could require that you take an anger management program, serve probation or complete community service. Even worse, jail could be part of that plea. All of this can be negotiated in some capacity. The stronger your potential case is and weaker the prosecution's, the more favorable the outcome will be as long as your New York criminal defense attorney has the ability to negotiate and advocate on your behalf. If you are arrested and charged with any degree of Assault in New York, including Assault in the Third Degree, consult with a New York criminal lawyer who can address your specific evidence and determine if fighting the case through trial, working out a deal or some other defense is the best thing for you.

A second entry dealing with other potential offers found in the New York Penal Law will be posted shortly. This second entry will deal with the more favorable and non-criminal dispositions including Disorderly Conduct, the Adjournment in Contemplation of Dismissal (ACD) and the Family Adjournment in Contemplation of Dismissal (ACD in the domestic context).

Crotty Saland PC represents the accused in Assault allegations and arrests throughout the New York City area, The former Manhattan prosecutors who started the criminal defense firm have successfully defended clients charged with Assault throughout the region (prior results do not guarantee future outcomes).

Extensive information on Assault crimes in New York can be found through the highlighted links. Moreover, extensive information on these an other crimes can be found on the website as well as the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) where you can find commentary on cases in the news, legal decisions and statutes found in the New York Penal Law.

Tampering with a Witness, a crime in New York State punishable by as "little" as up to one year in jail and as much as up to twenty five years in state prison, is an offense the prosecutors and the courts take extremely seriously. From New York criminal lawyers to prosecutors, all parties recognize the importance of protecting witnesses whether it be for the defense or law enforcement.

Because of the significance of the crime of Tampering with a Witness, the New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC have taken the time to create an educational Tampering with a Witness information page. The Tampering with a Witness legal page can assist you in understanding the degrees of the crime while also giving you a jumping point to start the in depth consultation that you will ultimately have with the attorney you determine will represent you. Again, while it is not an "advice" page, the Tampering with a Witness criminal law information page will give you the tools to take the next step in the event you are investigated, arrested or indicted for this crime.

Briefly, New York Tampering with a Witness is prosecuted as four separate degrees (NY PL 215.10, NY PL 215.11, NY PL 215.12 and NY PL 215.13). The crimes are punishable by up to one year in jail or four, seven or twenty five years in state prison respectively. It is important to note that this crime is not the same crime as Intimidating a Victim or a Witness and has distinct elements. Generally, you tamper with a witness when you attempt to or prevent that person from testifying or going to a court proceeding. The crime can be enhanced by the nature of the threats or if injury actually occurs.

Regardless of the degree of Tampering with a Witness you are charged with, it is important to understand how the law differentiates "physical injury" and "serious physical injury" as it directly corresponds with your potential punishment in the event you are convicted.

For extensive information on the New York crimes of Tampering with a Witness, please follow the highlighted link. Information on other criminal statutes, including commentary on cases in the media and legal court decisions, can be found on the New York Criminal Lawyer Blog.

Crotty Saland PC is a New York criminal defense firm representing clients in New York City as well as the suburban counties.

Robbery in the First Degree is one of the most serious and violent crimes in the New York Penal Law handled by both prosecutors and New York criminal lawyers. In fact, if you threaten the use of force to take property and you possess a firearm or gun, then your crime is a "B" felony punishable by a minimum of five years in state prison and a maximum of twenty five years for a first time offender. It is important to note that to be convicted of this crime you need not actually possess this firearm. Instead, you need only to "display[] what appears to be...a firearm" to be convicted of New York Penal Law 160.15(4). This entry will address a recent New York State First Department Appellate Division decision addressing what actions constitute and are sufficient to establish "display[ing] what appears to be...a firearm."

In People v. Douglas Welsh, indictment number 2963/2008, the defendant was convicted after testimony from a restaurant employee that the defendant entered the premises and demanded money from the cash register or he would shoot the employee in the face. Further testimony revealed that the defendant collected money and gestured with one hand while the other hand was bent at the elbow and stayed in the same position as if something (a gun) was being held waist level. Moreover, the employee could not see that hand at waist level because it was behind the counter. After trial, the defendant was convicted of Robbery in the First Degree under the subsection above for displaying what appeared to be a firearm. The defendant appealed from that conviction arguing that the evidence was not sufficient to establish that he displayed what appeared to be a firearm.

Continue to the second page for the relevant portion of the Court's decision.

Continue reading "New York Robbery in the First Degree: What Constitutes "Displaying" a Firearm or Gun Under New York Criminal Law" »

The New York criminal defense lawyers at Crotty Saland PC, a New York City criminal defense firm founded by two former Manhattan prosecutors, recently drafted a criminal law information page for the crimes of Unlawful Imprisonment in the First Degree (New York Penal Law 135.10) and Unlawful Imprisonment in the Second Degree (New York Penal Law 135.05). While not a substitute for a consultation with your own criminal defense attorney or an "advice" page, the Unlawful Imprisonment criminal law page is a good educational starting point for anyone accused of or arrested for this crime. Armed with the basic information as to how the degrees of the crime differ as well the critical difference between the legal terms of "restrain" and "abduct," the information page can give you the basis to have an educated conversation with your attorney regarding the degrees of Unlawful Imprisonment and how they compare to the more serious offense of Kidnapping. Armed with this knowledge, you and your New York criminal defense attorney can the ascertain and implement the appropriate defense in your case.

The New York criminal defense attorneys at Crotty Saland PC represent the accused throughout New York City and the region. Commentary on cases in the news as well as legal analysis of court decisions and criminal statutes can be found on the New York Criminal Lawyer Blog.

Regardless of the degree, Burglary in New York (NY Penal Law sections 140.20, 140.25 and 140.30) requires that at the time you unlawfully enter or remain in a building you also have a simultaneous intent to commit a particular crime. Well, not really...This entry deals with the question of what the prosecution must prove regarding an accused burglar's criminal intent and whether or not they must prove the intent to commit a specific crime.

The Court of Appeals, New York's highest court, has addressed this issue in the past and answered it in a clear and decisive way. Prosecutors do not need to establish the particular crime that the accused intended to commit when he or she either unlawfully entered or remained in the building. The Court went as far as asserting that "[h]ad the Legislature intended [that the prosecution prove a specific crime] it could easily in revising the Penal Law have inserted the word 'specified' or the word 'particular' between 'a"' and 'crime.'" People v. Mackey, 49 N.Y.2d 274 (1980)

Simply put, while the prosecution can circumstantially or directly establish that the accused intended to commit a particular crime (maybe you were caught with jewelry of a home owner and, therefore, it is clear that you intended to commit a larceny inside the home), it need not do so. If they were required to do so on each and every case, "the trial of a [B]urglary indictment becomes an exercise in hairsplitting." People v. Mackey

For additional information on the crime and laws governing Burglary in New York, please follow the highlighted link to Crotty Saland PC's website and Burglary section. Further information as to the definition of "dwelling" in the context of Burglary in the Second and First Degrees may be found on the respective link. Other penal law statutes, legal decisions and cases in the news can be found on the New York Criminal Lawyer Blog.

A New York based criminal defense practice, the criminal defense lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients throughout New York City and the suburbs.

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be "bumped up" to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a "dangerous instrument." As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as "dangerous instruments" where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a "deadly weapon" or a "dangerous instrument," then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a "deadly weapon" or "dangerous instrument."

Defining Dangerous Instrument

The law defines "dangerous instrument" as any type of object or substance. "Dangerous instrument" means any instrument, article or substance, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing a serious physical injury or even death.

A question that New York criminal defense lawyers, prosecutors and judges often face, however, is for practical purposes, what type of instrument fits this definition? A shoe? A garbage pail? A knife? How about a Sony Playstation?

While it might seem comical to ask such a hypothetical, a Richmand County (Staten Island) Criminal Court Judge just ruled on this exact issue. In People v. Jermaine Scott, 2010RI002291, the defendant was alleged to have intentionally struck a woman on her head with the Sony Playstation gaming console during a fight. After reviewing the law, the court found that the Playstation console was a dangerous instrument in this context. The court reasoned:

"It is...the manner in which the instrument is used, not its inherent nature, which makes an object a dangerous instrument. People v. Carter, 53 N.Y.2d 113 (1981); People v. Wilkerson, 184 Misc.2d 949 (Crim. Ct. New York Co. 2000). An innocuous object intentionally used to injure or kill is, therefore, a dangerous instrument pursuant to statute. People v. Krotoszynski, 43 A.D.3d 450 (2nd Dept. 2007) (television remote control used as a dangerous instrument)."

Obviously, the law is clear. The instrument in question need not be a gun or a knife, but something less threatening in nature as long as it is capable of and threatened to be used in a manner to cause serious physical injury or death.

For additional information on the laws regarding New York Assault crimes and New York Weapon laws, please follow the highlighted links. Additional information ranging from legal decisions to statutes can be found on the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com

Founded by two New York criminal defense lawyers and former Manhattan prosecutors, Crotty Saland PC represents clients from criminal investigations and arrests through hearings and trials in New York City and the suburban counties.