Criminal Defense

February 28, 2012

New York Gambling Record Crimes: Must Prosecutors Allege in an NY PL 225.15 Complaint that You Did Not Possess the Records for Personal Use?

Depending on the facts and circumstances, gambling in New York, outside of Native American Reservations and the horse tracks, is an illegal enterprise. Unlike Las Vegas, gambling in New York City or elsewhere in the State of New York can land you in jail and the winner of a criminal record. New York is no stranger to organized gambling schemes, illegal “bookies” taking bets, or underground gambling enterprises. As a New York criminal lawyer representing clients in Manhattan, Queens, Westchester and the surrounding boroughs and counties, I know that while gambling offenses are not as common as many other crimes, prosecutors and police are constantly on the lookout for and target gambling offenders. Today I want to examine a recent Bronx County criminal case involving the violation of New York gambling laws: Possession of Gambling Records in the Second Degree, pursuant to New York Penal Law 225.15(2).

Under NY PL 225.15(2) a person is guilty of Possession of Gambling Records in the Second Degree when, with knowledge of the contents or nature thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise. Possession of Gambling Records is a class “A” misdemeanor, punishable by up to one year in jail and a fine. Remember, even without ever stepping into jail as a part of a sentence, Possession of Gambling Records is a crime that will stay on your permanent. Now, if the records are of the kind used in a bookmaking scheme or enterprise and total more than five thousand dollars the charge escalates to a much more dire case. That is, Possession of Gambling Records in the First Degree, pursuant to New York Penal Law 225.20, is a felony. While the misdemeanor variety of gambling crimes is punishable by up to one year in jail, the felony variety is punishable by up to one and one third to four years in state prison.

January 20, 2012

When Police Conduct a Post Arrest Search Without an Arrest: Challenging Illegal Searches in New York

by Jeremy Saland

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.

January 19, 2012

Prosecuting a Domestic Assault Case without a Victim: The Excited Utterance Rule in New York

by Jeremy Saland

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.

January 6, 2012

Prosecuting a Case of Third Degree Assault (NY PL 120.00) without a Victim: The Excited Utterance Rule in New York

by Jeremy Saland

As a New York criminal attorney who works on behalf of clients in the criminal trial courts throughout the New York City area–from the boroughs of Brooklyn, Queens and Manhattan into the counties of Westchester and Rockland– I pick up on the strategies employed by the respective District Attorney’s Office. Equally important, having served as a Manhattan prosecutor for over seven years, I witnessed first hand Assistant District Attorneys pursuing these strategies. As I also saw them, I’ve noticed a trend amongst Assistant District Attorney’s trying to corroborate the allegations in a complaint and further cases even where a complainant is not cooperative. A recent case, The People v. Joseph Valentine, 2009KN083896, NYLJ 1202516492758, at *1(Criml, KI. Decided September 8, 2011) is a great illustration of this trend and thus is a case worth examining in this blog.

Mr. Valentine was charged with Assault in the Third Degree pursuant to NY PL 120.00(1), Menacing in the Third Degree pursuant to NY PL 120.15, Criminal Obstruction of Breathing or Blood Circulation (choking) pursuant to NY PL 121.11(a), and Harassment in the Second Degree pursuant to NY PL 240.26(1). The arresting officer had responded to a “radio-run” (911 call) for a family dispute. The complainant, Ms. Ingram, who is the defendant’s girlfriend, was outside of the house hysterically crying and explained to the officer that Mr. Valentine had choked her.

August 27, 2011

Extortion in New York State: An Affirmative Defense to NY Penal Law 155.05(2)(e) and 155.40(2)

by Jeremy Saland

In an earlier entry relating to Extortion, a subset of Grand Larceny, I identified and differentiated the difference between the Grand Larceny Extortion statutes found in New York Penal Law sections 155.05(2)(e) and 155.40(2). This entry will deal with the criminal defense to the crime of Extortion in NY that is established by statute. Whether this affirmative defense is relevant or applicable to the Grand Larceny and Extortion allegation in your particular case, that is something to identify and asses with your New York criminal defense attorney and Extortion lawyer.

Pursuant to New York Penal Law section 155.15(2):

June 6, 2011

Legal Impossibility: Can a Conviction Stand for Possessing Stolen Property if the Property is Part of a Police Sting

by Jeremy Saland

In New York State, if you knowingly possess property and that property is held by you for your benefit or to impede its recovery by the rightful owner, then the crime of Criminal Possession of Stolen Property has been perpetrated. This is true whether the possession of the property is in the context of taking a wallet off of a bar in White Plains, taking cash from a table at a restaurant in Brooklyn or shoplifting from a department store anywhere in New York City. Having said that, there is an interesting and critically important fact that can downgrade your offense. In other words, if you are charged with the “A” misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), the crime may be knocked down to a lesser “B” misdemeanor of Attempted Criminal Possession of Stolen Property (New York Penal Law 110/165.40). The legal concept that forms the basis of this downgrade is known as legal impossibility. Often times this legal concept occurs in the area of sting operations set up by the police, but is not exclusive to sting operations.

The Court of Appeals, the highest level court in the State of New York, has grappled with the issue of legal impossibility in the past and has done so specifically in the context of Criminal Possession of Stolen Property. In People v. Zaborski, 59 N.Y.2d 863 (1983), the Court upheld or re-affirmed a lower appellate court’s decision that where police set up a sting involving the fencing of stolen property by supplying the property that was previously stolen, the completed crime of Criminal Possession of Stolen Property was not perpetrated and could not be perpetrated. The Court stated that “[a]t common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods.” Simply put, you cannot steal property that is not in fact stolen even though at one point it may have been. The Court further elaborated on the issue of legal impossibility and stated that “[a]lthough the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf.”

October 3, 2010

Rights to Your Property Affected Because of a New York Order of Protection: The “Forman Hearing” & Your Criminal Defense

by Jeremy Saland

It is common throughout New York City and the region for judges to grant prosecutors’ requests for orders of protection whereby no contact between a complainant and defendant is permitted. These “full” orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don’t even know each other and are complete strangers. What is concerning for the accused, however, is where a “full” order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, “full” orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?

Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your “personal or property rights will be directly and specifically affected,” by a “full” order of protection, your attorney can request a “Forman Hearing.” Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused’s burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).

September 14, 2010

A Criminal Defense to Reckless Endangerment: Factual Impossibility and New York Penal Law Sections 120.20 & 120.25

by Jeremy Saland

Reckless Endangerment, New York Penal Law sections 120.20 and 120.25, is either an “A” misdemeanor punishable by up to one year in jail or a “D” felony punishable by up to seven years in state prison. While I have defined Reckless Endangerment in the First and Second Degrees in other entries, if one acts reckless and causes a substantial risk of serious physical injury or death (or they act with a depraved indifference to human life), they are setting themselves up for this charge. Having said that, merely acting stupid does not mean one acted reckless in the eyes of the law. For example, speeding in a car after consuming alcohol may not be “reckless” in the eyes of the law even though you may ultimately be convicted of DWI. Other elements should be present and “fleshed out” in the accusation. In the scenario above, one may be driving dangerously, but where there other cars or pedestrians in the street? Did the accused almost hit them? How fast was he or she speeding? What were the road conditions? There are other important facts before one’s actions give rise to at least a “substantial risk” of not merely a small injury, but serious physical injury or a grave risk of death.

Keeping with the theme of what constitutes a the crime of Reckless Endangerment in New York, a question that is often addressed is whether or not factual impossibility is a defense to the crime in New York of Reckless Endangerment in the Second or First Degree. That answer is generally yes. A great non-legal way to look at this is as follows:

September 10, 2010

Graffiti Crimes & Making Graffiti in New York: The “Related Matters” Criminal Defense & Right To Counsel

by Jeremy Saland

Although it rears its head in other areas of New York criminal law, violations of a defendant’s right to counsel (right to remain silent) seem disproportionately greater in the area of New York graffiti crimes including Making Graffiti (New York Penal Law 145.60), Criminal Mischief (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). While I cannot base my opinion on any scientific data, as a New York graffiti crimes criminal defense lawyer, I have litigated and addressed the issues regarding right to counsel numerous times in this specific arena. In fact, one of the New York City District Attorney’s Offices recently dropped five of six cases against our client after I successfully argued that the client’s right to counsel was violated by the New York City Police Department’s Vandalism (Vandal) Squad. The argument was based in the doctrine of “Related Matters.”

In the case mentioned above, our client had been arrested by police after he was allegedly observed with a spray paint can. A person had called indicating someone was in the process of spray painting. Our client was alleged to have made a particular tag at that location. Weeks later, after he was arraigned and had been assigned counsel, but had yet to retain Saland Law PC, the Vandal Squad stopped our client on the street and confronted him with photographs. These photographs were of the same alleged tag at other locations. During his street interrogation by about six officers and detectives from the Vandal Squad, our client “admitted” to spraying the tag at the other locations. As a result, he was once again arrested and charged with five new cases regarding the same tag as the first arrest that was currently pending in criminal court.

September 6, 2010

New York Penal Law 165.15 – Theft of Services: Potential Punishment & Collateral Consequences

by Jeremy Saland

Make no mistake about it. If you “dine and dash,” leave a Manhattan cab driver high and dry without paying, jump a turnstile in Brooklyn or even use cable without permission, you will be either arrested or issued a NY Desk Appearance Ticket (DAT) for Theft of Services pursuant to New York Penal Law 165.15. If you are a New York City teacher or or any other person using a student or senior MetroCard, you will will face the same charge as well. Assuming you did not have permission to receive the services without paying, the conversation you have regarding Theft of Services (NY PL 165.15) with your New York criminal defense attorney or lawyer will be fairly simple. Not a DNA case, this crime is often summed up as either a misunderstanding between you and the victim or the result of a plainly stupid move on your part. The problem is, regardless of whether you were issued a New York Desk Appearance Ticket or arrested, if you are convicted of Theft of Services you will have a criminal record that will not be expunged or merely go away.

Potential Punishment & Collateral Consequences of Theft of Services (NY Penal Law 165.15)