Criminal Defense

August 7, 2010

Exercising Your Miranda Rights in New York & Your Right to Remain Silent: Don’t Be Your Own Worst Enemy

It is extremely atypical to hear of a case where the accused has waived his right to remain silent, told his story to the police or the prosecutor without legal counsel and later walked away unscathed. Although a generalization, this type of behavior often assists law enforcement in making an arrest, or in worse scenarios, obtaining an indictment or conviction. Certainly, your statement may be valuable and be exculpatory (shows your innocence). However, a simple inconsistancy, inadvertant misrepresentation or otther error that you lock yourself into can cause tremendous trouble down the road. If you are able, talking to your New York criminal defense lawyer is something you should do before taking matters into your own hands.

Generally, you must be read your “rights” where the police or a prosecutor have you in custody and are interrogating you. Seems fairly simple, right? Unfortunately, there are a litany of cases determining what “custody” and “interrogation” means. Unfortunately, for one individual, his chatter with a police officer while he was arrested in a precinct did not render his damming statement illegal.

May 28, 2010

Entrapment in New York: NY Penal Law Section 40.05 & Your Criminal Defense

by Jeremy Saland

New York criminal defense attorneys routinely hear it from their clients. “I was framed” or “I was entrapped.” While often times a New York criminal defense lawyer can dissect and locate errors in the investigation, arrest procedure or paperwork of a criminal case, establishing that a client is the victim of entrapment, as a matter of law, is not as easy. In fact, entrapment is specifically defined in the New York Penal Law (NY PL 40.05) and is far more complex than the “they made me do it” or “they pushed me into it” defense. That beings said, if you can establish that you violated a particular criminal statute in New York due to this entrapment, an affirmative defense to the charges exists. What is Entrapment – New York Penal Law 40.05

Although not a verbatim cut and paste of the actual statute and not a substitute for a reading of it and discussion with your legal counsel, entrapment is defined as follows:

December 31, 2009

Exercising Your Miranda Rights in New York: Why it is Important to Consider Consulting with Your Criminal Defense Attorney Before Speaking to the Police

by Jeremy Saland

As a former prosecutor in the Manhattan District Attorneys Office and as a criminal defense attorney in New York City, I could probably write a book on the stupid things people say when confronted by the police. Maybe they think they are going to talk themselves out of trouble or maybe they are just nervous, but the end result is often the same….they get themselves in deeper water and often end up being placed under arrest. A defendant in Queens County charged with Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03(1) and 265.03(3)), learned this lesson the hard way.

In People v. Virgilio Rodriguez, 2632/08, decided June 23, 2009, police responded to “shots fired.” When they arrived at the location the officers asked what happened and some individuals pointed to the defendant and stated that the officers should ask him. Upon asking the defendant what happened the defendant admitted that he shot off his gun and then voluntarily brought the officers to his office a few feet away and retrieved his gun from the desk drawer. The police placed the defendant under arrest and brought him to the precinct and ultimately central booking. During this time, the family obtained a criminal defense attorney for the defendant and the attorney filed a notice with the court (a letter indicating that the defendant has counsel). Despite this, the police questioned the defendant on video. Ultimately, the defendant’s attorney challenged both the statement at the scene as well as the video statement. Unfortunately for the defendant, the court ruled that his statement was admissible as it was made at the scene voluntarily and while the police where investigating. In a close to literal sense, the defendant shot himself in his foot for opening his mouth at the scene.

November 28, 2009

New York’s “Wholly Inconsistent” Shoplifting Standard: NY Case Law & Applicability to Your Criminal Defense

by Jeremy Saland

Whether you were arrested or issued a New York Desk Appearance Ticket (DAT) for Shoplifting pursuant to New York Penal Law sections 155.25 (Petit Larceny) or 165.40 (Criminal Possession of Stolen Property), the legal standard is the same. Regardless of the crime, police officers in New York City and throughout the state, must have probable cause to arrest you. If not, your criminal defense attorney or lawyer must file a motion for the dismissal and to request a Dunaway hearing (other hearings might be applicable as well). Beyond this basic legal right that you have to prevent unlawful arrests, there are other factors that should be addressed by your criminal defense attorney. The following is a brief analysis of one of such factor.

According to People v. Olivo, 52 N.Y.2d 309, 310 (1981), the Court of Appeals, New York’s highest court, has found that in order to sustain a conviction for shoplifting, one’s actions must be “wholly inconsistent with the rights of the owner.” Taken further, the Court of Appeals found that “[i]f a customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and other elements of the crime are present, a larceny has occurred.”

October 23, 2009

Your Right to Remain Silent and Your New York Criminal Defense: When Asking for an Attorney or Lawyer May be the Smartest Thing

by Jeremy Saland

I have routinely advised my clients that if they are questioned by the police they should always call me first. What may seem like innocent questioning may actually be the final steps of a law enforcement investigation that will leave them incarcerated for the foreseeable future. As former Manhattan prosecutors trained under Robert Morgenthau, my partner and I at Saland Law PC know how an admission by an accused can often be a nail hammered by a defendant into their own coffin.

We routinely file motions for our clients to obtain hearings to challenge the voluntariness of their statement to the police (this is called a Huntley Hearing). Yet, what role, if any, does sleeplessness or intoxication have on ones ability to voluntarily give a statement to the police even if you, the accused, believe you are giving a voluntary statement (did I lose you?!!?)? In other words, does sleeplessness or intoxication negate an otherwise voluntary admission?

October 5, 2009

Disorderly Conduct in NY: Reckless Behavior Sufficient to Establish Violation

by Jeremy Saland

Just about every NY criminal defense attorney has either represented a client charged with Disorderly Conduct or worked out a disposition where Disorderly Conduct was offered in lieu of a top count plea. In the criminal courts of New York City, “Disorderly Conduct” can be heard throughout the hallways and courtrooms before the judge bangs his gavel to start the day until the last cases are called in the evening.

Recently, a NY County Criminal Court judge addressed Disorderly Conduct in denying a defendant’s motion to dismiss. In People v. Derrick Diaz, 2008NY062928, the complaint alleged that the police “observed the defendants yelling and screaming and behaving in a violent, tumultuous, and threatening manner, as follows: pushing at police officers and causing a disturbance. Defendant’s [sic] conduct created a public disturbance/inconvenience in that it caused a crowd to gather, disruption of the normal flow of traffic, and people to express alarm.”

October 2, 2009

Extortion and Grand Larceny in New York: Your Criminal Defense & an Analysis of NY Penal Law 155.05(2)(e), 155.30(6) and 155.40(2)

by Jeremy Saland

With the recent Extortion attempt of David Letterman by Robert “Joe” Halderman fresh in our minds, now would be a good time to share with my readers what constitutes Extortion under New York State law. As a New York criminal defense attorney and former Manhattan prosecutor who supervised the investigation and prosecution of multiple individuals charged with the Extortion of an NBA All Star, I am intimately familiar with Extortion as it is defined under New York Penal Law section 155.05(2)(e) and under Grand Larceny in the Fourth and Second Degree pursuant to New York Penal Law sections 155.30(6) and 155.40(2) respectively.

Before proceeding with an analysis of the Extortion statute, it is important to note that Extortion is specifically defined under section 155.05(2)(e) of the New York Penal Law. Like larceny by trick, false promise and common law larceny, Extortion is a means by which a larceny is perpetrated. According to NY Penal Law 155.05(2):

August 13, 2009

Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00)

by Jeremy Saland

Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone’s lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it…accomplice liability.

Under New York law, one is liable for the acts of another when:

August 3, 2009

NY Criminal Defense Law Update: New Court Decision May Help Those Arrested for Shoplifting (Petit Larceny – 155.25) in New York City

by Jeremy Saland

Whether you are arrested and charged with Petit Larceny (NY Penal Law 155.25) or Criminal Possession of Stolen Property (NY Penal Law 165.40) for shoplifting, you need to consult with a New York criminal defense attorney about People v. Lai Lee. It does not matter if you have been issued a Desk Appearance Ticket (DAT) or you have already been arraigned by a judge. Moreover, it does not matter where in New York City your case is pending from Manhattan Criminal Court at 100 Centre Street to Brooklyn Criminal Court at 120 Schermerhorn Street. What matters is that you put yourself in the best position possible to protect your rights and integrity by consulting with an experienced criminal defense lawyer about your case and whether certain legal decisions, such as ruling in People v. Lai Lee, may be used in your defense.

In a recent decision dated July 2, 2009, a Manhattan Criminal Court judge dismissed the shoplifting, Petit Larceny and Criminal Possession of Stolen Property charges that the defendant faced. The complaint alleged that a store investigator observed the defendant remove a handbag, tights and other clothing by “placing said items inside the defendant’s bag.” The defendant then walked past multiple open registers and moved to another floor of the store without paying for the items. The defendant was stopped and investigator recovered just under $1000 worth of clothing from the defendant’s handbag.

July 29, 2009

The New York Grand Jury, Plaxico Burress and Any Person Accused of a Crime: Beyond a Possible Indictment What Happens Behind Closed Doors

by Jeremy Saland

As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many New York criminal defense attorneys do not. The following entry will address some of what happens in this “secret proceeding.”

What is the Grand Jury