I was given a Pink Summons for Disorderly Conduct, is that considered an arrest? A police officer gave me a white Desk Appearance Ticket after being held at Century 21 for shoplifting, was I arrested? Reasonable questions associated with what may be a once in a lifetime mistake, “white tickets” and “pink tickets” are distinct mechanisms to land you, an accused offender, before the criminal courts of New York City. While a pink summons is returnable to 1 Centre Street or 314 West 54th Street for Manhattan infractions, 1 Centre Street for Brooklyn violations and 120-55 Queens Blvd. for Queens offenses, they are quite different than their white Desk Appearance Ticket counterpart. Yes, you might find yourself at Midtown Community Court at 314 West 54th Street along with someone issued a pink summons, but Desk Appearance Tickets, a/k/a, DATs, are generally prosecuted in the criminal courts of 100 Centre Street for Manhattan, 120 Schermerhorn for Brooklyn and 125-01 Queens Blvd. for Queens cases. Although the location you appear is telling, the question remains. Is being issued a New York City summons or DAT considered an arrest?
During summer 2017, a New York man, David Hedeen, was arrested and charged with Criminal Mischief when he vandalized four statues outside of a church in SoHo. The case highlights how seriously New York State and her prosecutors deal with crimes of vandalism. Simply, no statue, or any property of another person, should ever be tampered with or destroyed.
Criminal Mischief charges in New York are separated into four different classifications. Reverend Mario Julian, who is the priest at the church, stated that the damage done equaled close to $10,000. If that turns out to be true, and as now reflected in the indictment, Hedeen faces charges of Second Degree Criminal Mischief. This charge, New York Penal Law 145.10, includes intent to, and actually causing damage that is greater than $1,500. If convicted, Hedeen could face up to seven years in prison on a class “D” felony.
Whether you are at the Electric Zoo Festival on New York’s Randall Island, rolling with Phish at Manhattan’s Madison Square Garden, or you are merely out and about in New York City, Westchester County, Rockland County, or anywhere in the State, if you possess or sell MDMA, Molly or Ecstasy you potentially face an arrest for either a misdemeanor or felony crime. As your criminal lawyer will explain, mere possession of Ecstasy, even one pill, violates New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. Depending on the quantity in your possession and whether you have the subjective intent to sell the Ecstasy, you could also face felony crimes including Third Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.16. Complicating matters, when you actually sell Molly, MDMA or Ecstasy in New York, the crime you face is by default a felony. Assuming the weight of the controlled substance is less than one gram, meaning just one pill, then you would be charged with New York Penal Law 220.31, Fifth Degree Criminal Sale of a Controlled Substance. If the weight of the Ecstasy, MDMA or Molly exceeds one gram, then the applicable arrest charge is New York Penal Law 220.39 assuming this sale did not occur on school grounds. This crime is Third Degree Criminal Sale of a Controlled Substance. When the weights exceed those here and as outlined in the New York Penal Law, the criminal offenses for criminal possession or sale are significantly more serious.
Because of the above exposure, any arrest, whether by Desk Appearance Ticket or felony complaint, requires immediate and professional attention. Sometimes, investigation and advocacy from the onset of an arrest can provide tremendous benefits as the matter makes its way through the criminal justice system. Fortunately for three recent clients of Saland Law PC, despite their arrests for selling Molly to undercover police officers at the Electric Zoo, they took immediate action to retain a criminal lawyer and fight their respective arrests for PL 220.31 head on as they worked their way towards an ultimate dismissal on the merits.
The state of the New York Penal and Criminal Procedure laws as practiced in New York courts is overly restrictive and burdensome. What says you? According to whom? The state of the New York Penal Law and Criminal Procedure Law as practiced in New York courts is overly lenient and broad!
The beauty of asking two different people the same question, especially in New York, is that you will get two different answers. Irrespective of one’s personal view, any spectator or active participant in the criminal justice system will likely tell you that on any given day you can likely see both of these perspectives play out in courtrooms from New York City to Buffalo. Without addressing the validity of the above conclusions or what might happen from day to day, there is one area of law that, right or wrong, that is stacked against the accused. Merit and reasoning aside, law enforcement can charge you, the accused, with the most minimal amount of evidence and corroboration while prosecutors can draft a legally sufficient complaint or information charging you with a drug crime in New York such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, based on nominal evidence. How can law enforcement sustain a charge of PL 220.03 so easily you ask? Because if the police say you possessed drugs and explain their reasoning in boilerplate language as to why they believe it’s a controlled substance, then barring any other infirmities the information (complaint) against you is legally sufficient and will likely overcome a motion to dismiss.
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.
Is a New York City Desk Appearance Ticket, or DAT, an arrest? What does “Top Offense Charged” mean? Do I need to keep the appearance ticket? If I lose my DAT is that a problem? What if there is a mistake in my name or date of birth, does the Desk Appearance Ticket become invalid? Do I need an attorney or criminal lawyer at my “trial” or “hearing” when I see the judge?
Briefly, the answers to some of your questions are as follows: If you were given a Desk Appearance Ticket you have been arrested. It does not matter if you lose the ticket or there is incorrect information on the paper. A Desk Appearance Ticket merely is a way the NYPD processes lower level arrests, but crimes nonetheless. Read that twice….You have been arrested. You are charged with a crime. Whether you need a lawyer is subjective, but proceed at your own risk. Retaining counsel experienced in these matters has tremendous value. With all of that said, your first appearance is neither a hearing nor trial, but an arraignment where you are formally charged with a crime. Whether you ultimately have a trial will depend on the allegations, evidence and even your criminal defense attorney.
While extensive information relating to DATs, the DAT process, and other relevant materials is available on the websites below, the links herein, and throughout this blog, this entry will breakdown the important information contained on the face of a DAT and what it all means to you.
The types of drugs that routinely flow through New York City and throughout other New York municipalities range from unlawfully possessed prescription drugs such as Oxy and Adderall to the more common cocaine, heroin, MDAM, Ecstasy and Molly. The law is generally clear and a criminal defense attorney you need not when determining what controlled substances you can (or cannot) possess. For that matter, you neither need a drug lawyer nor your mother to advise you that you can’t have any of these narcotics barring a prescription (or at all) unless your goal is trying to violate a New York drug crime.
You may enjoy getting hopped up, rolling, taking a bump or just getting annihilated and, by all means, that is your decision. It is not my job, as a criminal lawyer, to be your father and lecture you on the ills of drug use and abuse. Its my job to help you when you call me panicked after your arrest. That said, before doing so, just hear me out. Know that there are very real consequences to your actions well beyond those that may land you in handcuffs and before a judge.
Brief pseudo-lecture aside, the purpose of this blog entry is not to address the direct and collateral consequences to drug use and arrests in New York, but to make it clear how low the threshold is for prosecutors to proceed on criminal charges when you are accused of violating New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. In fact, as this blog will make clear, neither Assistant District Attorneys nor police officers need to actually test the drug in any capacity to draft a legally sufficient complaint charging you with this drug crime. What does this mean to you? The law can take you right past Go and directly to Jail in the game of Monopoly that has unfortunately become your life.
During the day you are a lawyer, work in finance, a licensed real estate broker, or a school teacher. Maybe you’re a stay-at-home mom or you’re just figuring out what the heck you want to do with your life with your BA in History from Generic State University. Reliving your glory days in college pretending the babysitter isn’t at home with your kids or just trying your hardest to ignore the fact that you have a mortgage or rent payment coming up after the encore, what could be better than getting lost in the moment to Phish’s “Fluffhead” and “Harry Hood?” The real question, however, is not what could be better, but what could be worse? The answer? An arrest for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03.
On its face, going to see Phish certainly could be a release and even a religious experience, but you’re not a reckless college kid anymore (or maybe you are) and you weren’t fooling anyone “hiding” a baggie of cocaine, Molly, MDMA, ecstasy, marijuana or any other drug in your sock. It’s just like telling your parents you only had two beers. You didn’t. They knew that.
Second Degree Aggravated Harassment, New York Penal Law 240.30, is a fairly common misdemeanor crime charged by the NYPD and prosecuted by Assistant District Attorneys throughout the City of New York. A common Domestic Violence crime, but not always a “DV” offense, an arrestee can be prosecuted by means of a trip to Central Booking for up to 24 hours or a Desk Appearance Ticket whereby the accused merely spends a few ours in custody at the precinct of arrest. Simply, none of these scenarios is appealing.
Not a full analysis of all legal challenges and issues associated with NY PL 240.30, the question addressed by this blog entry briefly touches on what constitutes free speech and whether one communication can be grounds for committing Second Degree Aggravated Harassment if it is not a “true threat” of physical harm.
My case was dismissed in New York criminal court. Does that mean the record is expunged? I received an Adjournment in Contemplation of Dismissal (ACD), is that also considered an actual dismissal? What happens to my criminal record? What about my fingerprints? Even though I was charged with a crime, how do I get my record wiped clean and my fingerprints out of the system and destroyed?
The above questions are all reasonable questions that are often asked to New York criminal lawyers, but not always answered in the most simple way. In fact, there are multiple answers to these questions and issues. Whether you were initially charged with and arrested for a felony Grand Larceny in the Second Degree, a misdemeanor Assault in the Third Degree, issued a Desk Appearance Ticket in Manhattan or you were indicted in Brooklyn, there really is no engagement in New York State. That’s correct. Other states may have a process to expunge criminal convictions, but New York is not one of them. There is, however, a means by which you – a person accused of a crime and later exonerated, found not guilty, acquitted or merely the rightful recipient of a dismissal – can clean up the records of your arrest including those related to fingerprints so that your personal and professional exposure of a criminal past does not exist.