Criminal Defense

November 4, 2013

Unlawful Surveillance – PL 250.45: From “Up Skirts” to Bathroom Recorders – Must All Defendants Register as Sex Offenders Upon Conviction

Every criminal arrest or conviction has a collateral consequence. Obviously, some are more severe than others. While an arrest can be humiliating, a conviction can strip us of many rights we take for granted, destroy our ability to continue in our career or set a chain of events into action that ultimately result in our deportation. One crime that often has these secondary consequences is the New York felony crime of Second Degree Unlawful Surveillance. Unlawful Surveillance in the Second Degree, New York Penal Law 250.45, is routinely viewed by prosecutors in an extremely different light than the accused (as noted by the intensity of these prosecutions). While a defendant may argue this was a crime of opportunity by an otherwise “good” person, a police officer, detective or Assistant District Attorney, is more likely to view this crime as a premeditated and malicious act. Yes, your criminal lawyer or Unlawful Surveillance defense attorney may seek to convince a prosecutor that the recording was one act, a prosecutor may counter that it was many acts. In fact, it is fairly common for prosecutors to execute search warrants on mobile phones and other recording devices. When or if they find evidence of the current arrest charge or past acts, its is equally common for prosecutors to stand firm with a felony charge.

Irrespective of the above arguments in an Unlawful Surveillance case by either your criminal lawyer or the prosecutor, avoiding a felony conviction is critical. Yes, a felony can land in prison, but long after your case is over, NY PL 250.45 has significant ramifications. New York State Correction Law § 168-a[2][e] establishes that a person convicted of subdivision two (2), three (3) or four (4) of New York Penal Law 250.45 is a “sex offender.” As such, if you are convicted, like a rapist or child molester, you must comply with the New York State Sex Offender Registration Act (“SORA”). While your level may not be as high as those individuals convicted of the crimes I just mentioned, to a certain extent, registration is registration. The level wont matter to your neighbors, employer, etc. You are deemed a sexual predator by society.

September 17, 2013

If the Police Fail to Establish their Training and Experience in Your Gravity Knife Arrest is it Grounds for Dismissal: Facial Sufficiency & PL 265.01

by Jeremy Saland

If you are reading this blog entry regarding a gravity knife arrest in New York City or any other jurisdiction or municipality, there is a good chance you were stopped innocently walking down the street or driving your car and the police saw the knife’s clip outside your pocket. After stopping you, the police flipped the knife around, flicked their wrists and tried as hard as they could (it may have been fairly easy or awfully difficult) to open the knife with the use of gravity. Whether they did it on their first attempt or the police were only successful after numerous tries, the officers placed you under arrest, finger printed you and charged you with possessing a gravity knife in violation of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(1). If it was your first offense and you have no criminal record (and you can provide a local address in the New York City area), the police may have given you a NYC Desk Appearance Ticket with the top offense charge of PL 265.01.

Assuming you consult with a criminal attorney or New York City weapon defense lawyer for the Fourth Degree Criminal Possession of a Weapon DAT, you will likely be asked numerous questions about the legal basis of your stop as well as what transpired when the police tested the knife. Ultimately, however, when you go before a judge for your arraignment (this is where you are formally accused and advised of your criminal arrest charges), the legal work of your attorney will really begin. Certainly your lawyer may want to ask to see the actual knife (it will take some time), but within the four corners of the complaint against you there may be fertile ground for dismissal. One potential basis is how the actual complaint is drafted. It must sufficiently establish a “knife which has a blade [that] is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” For the purpose of this blog entry we will briefly address how the police establish that a knife in question is in fact a gravity knife as defined by the New York Penal Law. More specifically, if the police merely test the knife, but do not establish their training and experience in identifying these weapons, will the complaint be facially sufficient? After all, how can you affirmatively test something that you have no training or experience in identifying or handling?

January 22, 2013

Long Island Dentist Arrested for Reckless Endangerment: Is Intoxication Automatic Proof of Recklessness during any Medical Type Procedure

by Jeremy Saland

While the Suffolk County District Attorney’s Office will not be resolving the age old question of whether a dentist is in fact a “doctor” (I do not want to be accused of being an antidentite by-the-way), DA Thomas J. Spota’s Herculoids (a little homage to Hana Barbara, folks), will soon be addressing whether a dentist can be criminally reckless if he or she performs procedures on a patient while intoxicated. According to reports, police arrested Robert B. Garelick, a Lindenhurst dentist, for Second Degree Reckless Endangerment (New York Penal Law 120.20) after he was accused of this exact conduct.

An “A” misdemeanor, Reckless Endangerment in the Second Degree is punishable by a year in jail. You are guilty of NY PL 120.20 if you recklessly engage in conduct which creates a substantial risk of serious physical injury to another person. To be clear, your conduct is not sufficient if it “may” or can “possibly” cause any type of injury, but creates a substantial risk of a physical injury that is legally classified as serious.

December 17, 2012

Resisting Arrest: The Necessity of an Authorized Arrest & the Right to Object to Unlawful Police Conduct

by Jeremy Saland

One of the most frustrating crimes that New York criminal lawyers must defend against is the crime of Resisting Arrest. Although New York Penal Law 205.30 is not as serious a crime as a felony offense, it is frustrating because for every legitimate Resisting Arrest charge that is prosecuted, there are also many violations of NY PL 205.30 that do no not warrant prosecution. For example, if someone is being disorderly or even legally confrontational with the police, a police officer may attempt to arrest that person. Should that person pull his or her arm away while the police try to handcuff him or her, the officer may decide to elevate a “non-case” into a misdemeanor. To be clear, I am in no way insinuating that the police charge this crime wrongfully with regularity, but one would be naive to think that violations of NY PL 205.30 are always based in legal arrests or based upon the spirit of the statute.

What each and every defendant and criminal lawyer must understand about the crime of Resisting Arrest is that a person is guilty of this crime only if he or she intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person. A critical component of any Resisting Arrest arrest (that sounds kind of funny, doesn’t it?!) is that the actions not only be intentional and as a means to prevent a police officer from making an arrest, but the arrest must be an authorized one. If it is not authorized, then the arrest for violating New York Penal Law 205.30 is not valid.

November 26, 2012

New York Penal Law 190.23: False Personation & Legally Sufficient Criminal Complaints

by Jeremy Saland

Sometimes, when we are frustrated, we tend to get “cute” or “fresh.” While talking back to your mother or a friend may get you further into an argument, doing the same with the police can make a bad situation exponentially worse. Its not just a bad attitude that can aggravate a legal situation, but should you give false information to the police in New York upon your arrest, you may find yourself charged with False Personation. A “B” misdemeanor crime punishable by jail, False Personation (New York Penal Law 190.23) is a potentially serious offense.

Fortunately, as serious a crime that False Personation may be, not all bogus answers can lead to a criminal prosecution. You are guilty of NY PL 190.23 if you are advised of the consequences of misrepresenting your name, date of birth or address to the police, you actually misrepresent that information with the intent of preventing the officer from ultimately obtaining the accurate information. While the type of behavior that is criminal seems fairly straight forward, a recent New York Criminal Court decision out of Brooklyn sheds some light on the issue of how prosecutors prove this crime.

October 2, 2012

Self Defense in a New York Assault Case: Justification & Initial Aggressor

by Jeremy Saland

New York Assault arrests easily make up the majority of violence related crimes in New York as a singular group of offenses. Whether the crime is a Domestic Violence offense, a bar fight constituting Third Degree Assault, a misdemeanor Desk Appearance Ticket or a more serious Second or First Degree Assault where either a weapon is used or an alleged victim suffered a serious physical injury, Assault crimes expose those accused to potentially long terms of incarceration. Because of this, it is critical for your New York Assault lawyer or criminal defense attorney to identify potential defenses and pursue the same as soon as he or she is retained. After all, witnesses may forget what happened, defensive injuries may heal over time and other evidence may just be lost.

Before addressing the affirmative defense of “self defense,” also called the defense of “justification,” in a New York Assault arrest, I want to briefly address New York Assault law. Generally, the basic idea or concept of a New York Assault case is that you intentionally (there are reckless crimes as well) cause physical injury to another person. These actions are the elements of Assault in the Third Degree (New York Penal Law 120.00). What enhances the misdemeanor offense to the felony crimes of Second Degree Assault (New York Penal Law 120.05) or First Degree Assault (New York Penal Law 120.10) are such factors as the nature of an injury being classified as “serious physical injury” or the use of a dangerous instrument or weapon during the crime.

September 14, 2012

Arrested for Domestic Violence in New York: Understanding the Process, Crimes and Procedures

by Jeremy Saland

New York Domestic Violence crimes are some of the most serious offenses found anywhere in the criminal law (and rightfully so). Well beyond allegations of Assault, these crimes cover a wide spectrum of conduct. Regardless of the offense charged, the significance of a New York Domestic Violence arrest or accusations is evident in its handling by the branches of law enforcement. For example, the New York City Police Department (NYPD) has specially trained Domestic Violence officers that work in their respective precincts directly with those who are victims of Domestic Violence crimes. In the City’s District Attorney’s Offices (Manhattan, Brooklyn, Queens, etc.), prosecutors are either specially trained to manage Domestic Violence cases or they may be assigned to a Domestic Violence unit.

As important as it is for law enforcement to investigate, arrest and prosecute offenders of abuse, an allegation against a “family member” does not mean the believed crime actually occurred. As much as we are all quick to judge what we may read in the news and assume that an accused is a batterer of a spouse, child, etc., it is imperative to recognize one is innocent until proven otherwise. Regardless of the crime, sometimes it takes your wrongful arrest or a false accusation against a family member before this principle hits home.

August 31, 2012

When Remaining Silent May be Your Best Criminal Defense: Making Graffiti & the New York Police Department’s Vandal Squad

by Jeremy Saland

Every so often there is a story that is worth repeating when it comes to criminal defense in New York. As I have noted countless times in my blog entries and directly to clients, speaking to a detective or police officer with the NYPD or an Assistant District Attorney without a criminal defense attorney is usually a terrible mistake. Remember, you always have a right to request a lawyer. Whatever you say, if it can be construed as damaging in any way, will be used against you. Again, not only do I know this from my experience representing clients throughout New York City, Westchester County and other jurisdictions, but many cases that I prosecuted as an Assistant District Attorney in Manhattan were enhanced because targets of investigations or those arrested either thought they were smart enough to talk themselves out of a situation, minimized their actions through half-truths or just made admission. If you take home anything from this New York criminal law blog entry, remember to think before you speak.

The anecdote worth sharing recently occurred in a Manhattan precinct where our client was arrested in NYC for his alleged involvement in making graffiti. The crimes associated with this offense and common arrest charges for graffiti include the obvious, Making Graffiti (New York Penal Law 145.60), Criminal Mischief in the Fourth Degree (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). Alternatively, if the graffiti arrest involves a felony a higher degree of Criminal Mischief in the Fourth Degree may be charged.

March 29, 2012

New York Gravity Knife Arrests & DATs: When a Search May be Illegal

by Jeremy Saland

What is a Gravity Knife? Is it illegal to have a gravity knife on my person under New York Law? Under what circumstances can the New York Police search me on a Manhattan Street or a Queens subway station? Once I am arrested for possessing a gravity knife is it possible to get a Desk Appearance Ticket or will I be processed through the system? As an experienced New York criminal lawyer, I often hear these types of questions and answer the same. In this blog post I hope to address at least one of these issues by examining a Brooklyn criminal case involving Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01).

Criminal Possession of a Weapon in the Fourth Degree is a Class “A” misdemeanor. Sure it’s not a felony, but it is punishable by up to one year in jail and will stay on your permanent record. Further, it is rare that an offer of any kind is made at a defendant’s arraignment in most jurisdictions. Because it is highly that a “slap on the wrist” will make a knife case go away – gravity knife or switchblade knife – it is critical to have a basic understanding of the law. There are eight sections under NY P.L. 265.01, which specify the circumstances under which an individual will be found guilty for possessing certain weapons. Without getting into the details here, you are guilty of Criminal Possession of a Weapon in the Fourth Degree if you possess certain weapons that are classified by statute as automatically criminal regardless of your intent. These weapons include a stun gun, gravity knife, switchblade, bludgeon, metal knuckle and dagger.

March 4, 2012

New York Penal Law 205.30: Is Dismissal of Other Arrest Charges a Criminal Defense to Resisting Arrest

by Jeremy Saland

Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.

In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.