New York State has numerous laws and crimes regulating the use and possession of firearms and other weapons. Whether one is supportive of these statutes such as the Safe Act or not, these laws are some of the most rigid and strict in the nation. While they are all codified in New York Penal Law Article 265, the crimes vary from class “A” misdemeanors to class “B” felonies. There is little dispute that the most common of these offenses is Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(1). However, the types of per se objects that qualify as weapons, including gravity and switchblade knives, may be serious, but not as significant as their firearm related brethren. Of these crimes, those likely prosecuted the most in New York City and at both LaGuardia and JFK Airport in Queens are Second Degree Criminal Possession of a Weapon, New York Penal Law 265.03, and Criminal Possession of a Firearm, New York Penal Law 265.01-b. With that in mind, this blog entry addresses some of the most significant differences between two crimes that are somewhat similar and regularly prosecuted, but drastically different in their potential sentence and punishment upon a conviction.
In the State of New York, a DWI arrest and conviction can be based on different theories of the law. One such DUI or drunk driving crime is found in New York Vehicle and Traffic Law 1192.3. Often referred to as either Common Law DWI or Refusal DWI, this Driving While Intoxicated crime is based not on a “blow” of .08 or higher, but merely on a police officer’s experience and observations of, for example, a flushed face, watery-bloodshot eyes and the smell of alcohol on your breath. No, this blog entry does not address the legality of a refusal to provide a breath sample or the legal sufficiency of a DWI complaint charging VTL 1192, but a set of question asked by countless individuals convicted of DWI in New York: Can I seal my criminal conviction for a Common Law or Refusal DWI or DUI and, if so, how do I seal and remove the DWI arrest from my rap sheet or criminal record?
People often ask how as a former prosecutor I can now defend people who committed crimes or are guilty of criminal conduct. While I do have the advantage of representing whomever I choose and sending a client to seek a criminal lawyer elsewhere, there are few things in life that are so black and white. Simply, even good, honest and kind people make mistakes that are criminal. Otherwise hardworking people make poor decisions at a moment in their lives that are clearly wrong, but not indicative of the person they are or can become. For that matter, and arguably of greatest import, a criminal defense attorney should not be the first person to tell you that an accusation is nothing more than an accusation. Whether exaggerated or simply untrue, history proves that we all have a presumption of innocence for a reason that prosecutors must overcome by proof beyond a reasonable doubt.
Fortunately for an army veteran who served our country in combat overseas, Crotty Saland PC poked enough holes and mitigated enough alleged conduct to knock down an arrest for Third Degree Grand Larceny, New York Penal Law 155.35, to a Disorderly Conduct non-criminal violation.
Although Title IX and its affiliated policies and procedures governs sexual misconduct and relationship violence related to college and university campuses, it is critical to recognize that an action commenced under Title IX is separate from the criminal justice system. Yes, crimes or harassment, for example, committed at Columbia University, New York University, Pace University, CUNY, Fordham University or any institution can also lead to an arrest and prosecution in Criminal Court as well as a petition for an order of protection in Family Court, each respective university will conduct its own investigation outside of these bodies. Parallel or not, upon completing their due diligence and following the Title IX investigation process, a decision will be rendered, a potential hearing held to ascertain what, if any violation, occurred and the appropriate punishment will be handed down.
This Title IX blog entry will provide a basic understanding of Title IX as it relates to sexual misconduct and relationship violence in the collegiate realm. Significantly more information with greater detail is available on Crotty Saland PC’s Title IX information page.
Not every criminal lawyer in New York is an Extortion lawyer or Blackmail attorney. You can be well versed in the New York Penal Law, but not be familiar or have experience with the numerous subsections and theories of a Grand Larceny Extortion case. Fortunately for a Crotty Saland PC client, knowledge, experience and advocacy paid off in what on its face appeared to be a clear-cut violation of New York Penal Law 155.30(6) and other crimes.
After a night of consuming alcohol, our client was alleged to have demanded thousands of dollar from a fellow reveler encountered the night before. More than a mere inconsequential meeting, our client woke in the bed of this man having no recollection of coming home with him. Upon learning that the two had intercourse, our client became extremely alarmed and insisted any sex was without consent. While it was likely indisputable that our client lacked the ability to consent, our client allegedly made a grave mistake and demanded multiple thousands of dollars from the man or our client would report the crime to the NYPD. Ultimately cutting our client a check, our client left and only reported the incident after the check did not clear. At the same time, the man filed a complaint for Extortion.
Can a judge seal my conviction for Marijuana Possession? Is misdemeanor possession of marijuana an eligible crime for sealing purposes under New York Criminal Procedure Law 160.59? Specifically, I was convicted of New York Penal Law 22.10, Criminal Possession of Marihuana in the Fifth Degree, after the police arrested me for smoking marijuana in public. What about my conviction for Fourth Degree Criminal Possession of Marijuana, New York Penal Law 221.15, after the police arrested me with more than two ounces of the green leafy stuff?
Before diving into the answers to your questions, proceed with some degree of confidence. Whether or not a judge ultimately grants your sealing application and motion, know that arguably NY CPL 160.59 became the law of New York State to help people just like you.
As embarrassing a Drunk Driving, DWI or DUI arrest in New York may be, a conviction for any VTL 1192 crime is exponentially worse. Not only is there potential for incarceration and jail as well as significant fines and fees, a plea or post trial conviction for VTL 1192 also will result in a suspension of your license to drive and an installation of an ignition interlock device on your vehicle. In some situations it is not merely the suspension you will have to contend with, but a revocation of your drivers license in New York by the New York State Department of Motor Vehicles or DMV.
Revocation of your license for a first time offender for a DWI crime usually involves the offense of VTL 1192.3, sometimes known as either Common Law DWI or a Refusal DWI. The latter of these “types” of DWI, and the subject of this blog entry, addresses those crimes where you, after being advised of your rights and the consequences of failing to comply with a request to “blow,” refuse to provide a breath sample. More specifically, this blog addresses how, if all, your refusal can be used against you in a criminal prosecution.
Though the topic of drug crimes often conjures thoughts of sales, trafficking, or even mere possession of illegal substances, there is another important category of offense that is regularly prosecuted in New York courts. In fact, you may have been arrested an issued a Desk Appearance Ticket, or DAT, for this crime in addition to possessing a controlled substance or marijuana. What is this offense you ask? Second Degree Criminally Using Drug Paraphernalia, New York Penal Law 220.50.
Second Degree Criminally Using Drug Paraphernalia is classified as an “A” misdemeanor and is capable of producing serious consequences for those convicted of doing so, but understanding the law and the statute is your first step in protecting your future.
Am I the victim of Extortion? Am I being Blackmailed? How are these crimes different than Coercion? I know someone is preying on me and making demands, but what, if any, crime has this person committed? To answer these questions lets examine the following scenarios.
I’m being threatened over some pictures my ex got a hold of. If I don’t pay him he will send them to my employer, landlord and friends on Instagram. I’m being threatened over a compromising video my ex secured without my permission, but instead of wanting money she says that if I don’t tell my family that I’ve done something wrong or admit to my boss I’ve used drugs, she will share it with these same people.
While the above hypotheticals may seem very similar, very similar and the same are quite different. In the eyes of the New York Penal Law, criminal defense lawyers, prosecutors and judges, the above two scenarios are the foundation of two distinct and separate crimes – Grand Larceny Extortion (Blackmail) and Coercion respectively.
A common question that is repeatedly asked is whether or not a judge must hold a hearing before granting or denying a sealing motion according to New York Criminal Procedure Law 160.59. In other words, if you want your criminal conviction erased from the public domain can a judge do so without giving the prosecution both an opportunity to respond in a public forum outside of a motion seeking to preclude sealing?
Because I have addressed New York’s criminal conviction sealing statute in great detail throughout this blog and on our website by breaking down the relevant procedures, benefits and eligibility requirements of NY CPL 160.59, I will not do so again here. However, for those with criminal records and convictions in New York beyond ten years old, if you were not aware let this blog serve as notice that as long as you have no more than two total convictions, of only one can be a felony, and those convictions are not sexual or violent crimes, you are potentially able to have your conviction sealed and “removed” from public view. In terms of process, however, beyond filing a motion for sealing, can a judge require more materials and evidence in the form of a hearing before rendering his or her decision?