While I certainly do not condone violence, if you punch someone two or three times in the face with a clenched fist, bloody up their mouth and cause them to go to the hospital for a stitch or two, an allegation of Third Degree Assault would likely survive a criminal defense attorney’s motion to dismiss the charge of New York Penal Law 120.00(1). No, it doesn’t mean you will not or cannot have defense at trial (self defense for example), but from a legal perspective your conduct satisfies the elements of the crime almost on its face. Again, you may still try, but seeking a dismissal for legal sufficiency will likely be quite difficult. Despite this, not all crimes or criminal conduct is so clear. When a court has to examine words used, the intent of those words and the reasonable implications of your speech, the court has much more to juggle than determining your intent when you balled up your fist. This more difficult type of review happens with a greater degree of regularity in cases involving Second Degree Aggravated Harassment pursuant to New York Penal Law 240.30. A class “A” misdemeanor, Aggravated Harassment in the Second Degree is a crime often seen, but is not exclusive to, New York Domestic Violence cases. Where an arrest or allegation does not involve a familial or intimate relationship, the police will consider issuing the accused a Desk Appearance Ticket. Regardless of how a PL 240.30 case is prosecuted, words, and how they are reflected in a criminal court complaint, matter. This blog entry will address how words and statements that may seem threatening on their face may not in fact violate certain sections of the New York criminal law.
A few years ago the New York State Legislature tightened up the Second Degree Aggravated Harassment crime found in the New York Penal Law. Whether by Desk Appearance Ticket in Manhattan or by Domestic Violence Arrest in Brooklyn, the law was no longer vague. More specifically, addressing solely subsection (1)(b) or New York Penal Law 240.30, it is a class “A” misdemeanor if you have an intent to harass another person and you cause a communication to be initiated by telephone, email, or any electronic means. This communication must be a threat to cause physical injury or unlawful harm to the person or property of that person or a member of his or her family or household. Moreover, when making your communication you should reasonably know that it will cause a reasonable fear of such an injury or harm.
Well, if that isn’t wordy enough, let’s try to get right to the point of this blog. Simply, what type of speech or statements violate PL 240.30(1)(b) and when does your language necessitate the assistance of a criminal defense attorney to challenge the legal sufficiency of a complaint you face in a New York criminal court?
New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon, delineates the type of weapons that are per se, aka, automatically, weapons in New York based on the law no matter how you intended on using them. If you knowingly possess the weapon, then you are guilty. No, you are not merely walking into a courtroom with your criminal lawyer and pleading guilty to a misdemeanor crime that is accompanied by a sentence of up to one year in jail, but you are guilty barring certain defenses, such as challenging the probable cause for your arrest and how you were searched. This is because there is a strict liability standard at trial assuming the prosecution proves their case beyond a reasonable doubt. Looking at it slightly differently, you always have the ability to challenge an arrest on legal, factual, evidentiary, and mitigation grounds, but without any defense, a jury or judge can find you guilty if the People meet their burden.
Putting aside this strict liability standard and whether or not the NYPD and District Attorney should be prosecuting honest, hard working, regular people who legally purchase one of these gravity knifes at Home Depot, Amazon, a local sporting goods store or any other retailer having no reason to believe that in New York it is a crime to possess such a “weapon,” other types of blades and objects can be considered dangerous instruments and weapons depending on the matter they are possessed or used. The statutory authority to prosecute these crimes is also Fourth Degree Criminal Possession of a Weapon, but is found in New York Penal Law 265.01(2). This entry will address a recent court decision examining the legal sufficiency of a PL 265.01(2) arrest and prosecution in connection to the possession of a box cutter.
Whether you are a high school teacher, elementary school nurse, administrative staff or a paraprofessional, if you are employed by the New York City Department of Education (DOE) an arrest and prosecution raises numerous flags in both the criminal court and with the City of New York. Simply, any arrest – misdemeanor or felony, through a Desk Appearance Ticket (DAT) or being hauled before a judge in criminal court – involves numerous moving pieces that you must address to preserve your career. Certainly, any arrest for any person is compromising. A shoplifting arrest in Manhattan where you are given a DAT for PL 155.25 or PL 165.40, a cocaine or other drug possession charging PL 220.03 in Brooklyn or even a turnstile jump or failure to pay a cab resulting in an arrest for PL 165.15 in Queens may not seem to be the most serious crime in the spectrum of New York City prosecutions, but to a DOE teacher or other employee, the concerns are real. Again, any arrest is compromising, but even if there is a limited likelihood for incarceration and you are not charged with an Assault, Grand Larceny or DWI, there are steps you must take in addition to those you are pursuing before the criminal court where you and your criminal defense attorney are fighting the allegations. To start, you should examine and review Chancellor’s Regulation C-105 that dictates the policy and management for arrests involving DOE employees.
While I am not in possession of any statistics, there is little doubt that over my years as a Manhattan prosecutors and criminal defense attorney, a significant amount of crimes involving New York Penal Law 170.20 and New York Penal Law 170.25 relate to some form of a fake identification or ID. Sometimes these arrests involve large scale rings where fake passports, drivers licenses and other IDs are created for nefarious reasons to perpetrate greater frauds involving credit card scams, identity theft related crimes or other schemes. Although still criminal, other times arrests merely involve college and high school aged kids under 21 who are looking to get into a bar, club or other event, but are under 21 years of age. On their respective faces, no matter what your purpose, as long as you have the intent to defraud, possessing a fake passport, drivers license or other fraudulent state or federally issued identification is a felony. Yes, Criminal Possession of a Forged Instrument in the Second Degree is a Felony. If there is any good news, many times where the accused is clearly a “kid” with a fake identification at a bar or similar scenario, the NYPD at least will issue a Desk Appearance Ticket for the misdemeanor offense of Third Degree Criminal Possession of a Forged Instrument. Whether you are issued a Desk Appearance Ticket (DAT) or you are held in jail to see a judge for your arraignment, the degree or level of the crime does not change.
Now that you have spent thirty seconds to a minute reading about fake ID arrests in New York, if you want more information on these crimes I encourage you to read through this blog or on the websites below. This entry, however, will deal with Criminal Possession of a Forged Instrument but address the ease by which prosecutors and police can establish the minimum threshold necessary to draft a viable and legally sufficient complaint. Why does this entry address legal sufficiency? The answer is that before you pocket your fake ID or any fraudulent instrument you should be fully aware the ease by which the District Attorney can prosecute you with a minimal degree of evidence. If nothing else, you have now been warned.
While there may be some people on the extreme side of the Second Amendment that believe there should be zero regulation in any capacity of firearm possession and use by our government, it is likely most people agree that the laws of New York and other states serve a significant purpose and are of great value to our safety. Similarly, the New York State legislature codified crimes as they relate to certain knives and other objects they deemed “weapons” worthy of criminal prosecution by their mere possession. Again, the purpose is noble and clear. Neither a judge nor a criminal lawyer, or for that matter a prosecutor, needs to tell you that knives and firearms in the hands of wrongdoers or those who seek to perpetrate crimes demands our collective attention. That said, however, countless visitors to New York City and residents of New York and other regions of the state are arrested, prosecuted, or indicted for violations of Article 265 of the New York Penal Law when they had zero reason to believe or know the possession of their “weapon” constituted a misdemeanor or felony in New York State. This blog entry will not address legally owned firearms transported by out of state residents through LaGuardia or JKF Airports presumably pursuant to TSA guidelines in violation of New York Penal Law 265.03, Second Degree Criminal Possession of a Weapon, but crimes involving certain knives that are defacto violations of New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon. Continue reading
Years ago, when a detective or police officer signed off on a criminal court or misdemeanor complaint alleging misdemeanor drug or marijuana possession, PL 220.03 and PL 221.10 respectively, the law mandated that an Assistant District Attorney also secure a laboratory analysis or field test of the substance to proceed on that complaint so it become a legally sufficient information. In practical terms, if prosecutors failed to obtain a lab or field test, then ultimately the court would be required to dismiss the drug or marijuana possession charges against a defendant. Whether you agree that this was a necessity or not, criminal defense attorneys routinely used this law in the defense and exoneration of clients. Just as time stands still for no one, the law changes, shrinks, grows and adapts too. Simply, with some level of corroboration beyond a conclusion as to training and experience in the identification of drugs, controlled substances, narcotics and related “things” such as heroin, Ecstasy, cocaine, Xanax and marijuana, police officers can swear out complaints without a chemical test (it is ultimately needed in the event there is a trial). This became the “new” law that governed prosecutions after the Court of Appeals decision in People v. Kalin, 12 NY3d 225, 229 (2009).
The following blog entry addresses Kalin and the “training and experience” language not in the specific context of a drug arrest, but the possession of K2 in violation of Promoting Prison Contraband in the Second Degree pursuant to New York Penal Law 205.20(1). Although not dealing with the crime of Seventh Degree Criminal Possession of a Controlled Substance or Criminal Possession of Marijuana, People v. Enelus, 2016 NY Slip Op 51093 (NY City Crim Ct. 2016) has real value to cases involving these crimes because it examines the sufficiency of language contained in a criminal court complaint and information that enables or prevents a District Attorney from prosecuting a drug related crime at the initial pleading stage.
Its the same two nights every year throughout New York State. Mischief Night followed by the main event, Halloween. For preteens in costumes of all shapes and sizes, Halloween is about trick-or-treating and scarfing down way too much candy. For parents of little boys and girls, it is about dressing up their children for their own gratification and pleasure. For high schoolers, teenagers and college aged men and women, Mischief and Halloween nights are potentially a lot more than costumes and candy. In fact, throwing an egg at a car, spray painting a street sign, or knocking over that little yellow scooter that has always annoyed you because it managed to squeeze into the smallest parking spot on your crowded Manhattan or Brooklyn street can land you in jail facing a misdemeanor or felony crime.
What says you?! When did fun become criminal? Better ask this question now instead of getting an answer from your criminal defense attorney as you await arraignment in a New York City courtroom or a courthouse in a neighboring suburban municipality. The short answer is as follows: If you damage another person’s property, even in the most nominal way, you can face arrest in New York for Criminal Mischief in the Fourth Degree. Cause at least $250 in damage? You will be wishing you get a bag of pennies instead of candy because you momentary stupidity could result in your arrest for Criminal Mischief in the Third Degree, a felony. This blog entry will briefly address why you should leave the Criminal Mischief out of Mischief Night and Halloween unless, of course, you have a penchant for facing criminal charges and paying money for a criminal lawyer to get you out of jail or the hot water of a witch’s cauldron.
Challenging the legal or facial sufficiency of a complaint against an accused is a common if not routine motion made by criminal defense lawyers. When a prosecutor proceeds on a complaint it becomes was is termed an information. The information must be legally sufficient to provide for the elements of the crime charged and notice to the accused. However, the evidence or allegations contained within the four corners of the document need not reach the “beyond a reasonable doubt” threshold. While the standard may be fairly low, a defendant who is wrongfully arrested without the bare level of evidence should not be forced into the criminal justice system whether he is from New York City, White Plains, or New York’s Southern Tier. Simply, it is critically important to examine any complaint or information to see whether or not there are grounds to make a challenge.
This particular blog entry will address a recent decision dismissing one count of Resisting Arrest pursuant to New York Penal Law 205.30 and one count of Second Degree Obstructing Governmental Administration pursuant to New York Penal Law 195.05.
Although I couldn’t tell you the exact number, there are millions of people who come to New York City – its boroughs of Manhattan, Queens, Bronx and Brooklyn (technically Kings County) – on any given day. Whether they are commuters, tourists or here solely for a brief business stay, some of these people find themselves in hot water, aka, under arrest by the NYPD. If the crime charged is, for example, PL 155.25 or PL 165.40 for a shoplifting arrest at Macys or Century 21, PL 220.03 for getting busted doing a “bump” of cocaine outside a bar, PL 120.00 for a fist fight with some random stranger, or something of the felony variety which is quite more serious, they will have a date with a judge in criminal court. By Desk Appearance Ticket (D.A.T. or Appearance Ticket) or as a result of an all out arrest cooling their heals in the “Tombs”, if a criminal case is not resolved immediately a defendant will be required to return to court. Live in California, Texas, England, Australia or China? No, you don’t get a pass. Without prior agreement, failure to return will result in the issuance of a Bench Warrant.
So, what can you do? If you are asking yourself “Do I have to come back to court or can it be resolved in my absence,” then this blog may good place to start to understand the legal issues and process so that you can make an informed decision with your criminal defense attorney when assessing your options. Continue reading