New York Criminal Lawyer BlogWhile nobody is asserting that financial services professionals, investment advisers, registered representatives or others regulated by the Financial Industry Regulatory Authority (FINRA) are more prone to using, selling or possessing drugs, the reality is that an arrest in New York City or elsewhere for possession of cocaine, heroin, molly, MDMA, or even some prescription drugs can have dire consequences. Sale of these drugs (there need not be money exchanged) can magnify an arrest to a felony regardless of the amount. Simply, if you have a Series 3, Series 6, Series 7, Series 10, Series 11, Series 63, Series 65, Series 66, Series 79, Series 86 or any other securities license, your exposure is more than merely what you will face in a courtroom. Even when you close out your case there may be far reaching implications to your career. Although this blog entry will address the potential crimes and touch on the U4 reporting requirements, in no way is this article a substitute for a consultation with and the retention of a NY criminal defense attorney or criminal defense lawyer. Instead, the content contained here should solely be used as a launch pad to put yourself in the right place and to ask the right questions from your own counsel.
Articles Posted in Desk Appearance Ticket
New York Crimes Involving the Possession and Sale of Molly, Ecstasy or MDMA: NY PL Article 220 Arrests and What it Means to You
What is Molly? Why do the police arrest you in New York for even the smallest amount? Why do prosecutors care if you have some drugs for “personal use”? Is the Manhattan District Attorney’s Office, or for that matter any District Attorney’s Office in New York City or a neighboring county, going to waste time and money prosecuting a first time offender for simple drug possession? Simply, the answer to this last question is “yes” and the answers to the prior questions should be equally clear. Whether you are given a Desk Appearance Ticket or you find yourself locked up waiting overnight to see a judge in criminal court the following morning, possession or sale of Molly, MDMA and Ecstasy is without a doubt a serious crime in New York. Certainly, possession of a one or two tablets or capsules recovered from your car or your pocket at a concert or club is a not as serious as having ten, twenty or thirty pills of Molly, but both are crimes. Likewise, possession of a couple tablets of Ecstasy is no where nearly as significant criminally when compared to the sale of even a single capsule of MDMA. The latter is a felony out of the gate. There is no passing “Go”. You are going directly to jail.
So, what are the crimes in New York that one will face upon arrest for possessing or selling MDMA, Molly or Ecstasy? Will you merely get a slap on the wrist? Can a misdemeanor or felony “stick”? Are there any consequences beyond your criminal exposure?
Is it too Ambiguous for an Arrest or Conviction: The Standard for Second Degree Aggravated Harassment Complaints
In New York State, especially in New York City, arrests for Second Degree Aggravated Harassment, New York Penal Law 240.30, are fairly routine. Routine doesn’t mean the crimes are taken lightly by the NYPD or the District Attorney of Manhattan, Brooklyn, Queens or the Bronx. In fact, it is quite the opposite. Whenever there are threats of violence the NYPD will make the arrest and often let prosecutors figure out later what to do with the case. That is not to say the NYPD is not diligent, but all branches of law enforcement are overly cautious and seemingly would rather make an arrest that is later challenged or voided, then leave a threat of violence alone that ultimately festers into an actual act of violence. This line of thinking by law enforcement begs the following question. What is the legal standard that must be crossed for a threat to rise to the level of a valid arrest and prosecution? The following helps answer this question.
Understanding Your NYC Desk Appearance Ticket or DAT: Top Offense Charged
Although not a firm rule, New York City Desk Appearance Tickets (commonly called a DAT or Appearance Ticket) are generally issued to individuals who have little or no prior arrest history and are charge with misdemeanor crimes. These crimes include many serious offenses – Criminal Possession of a Weapon in the Fourth Degree (NY PL 265.01), Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03), Petit Larceny (NY PL 155.25), Criminal Possession of Stolen Property in the Fifth Degree (165.40), Assault in the Third Degree (NY PL 120.00) – and are punishable by as long as one year in jail upon conviction. Even if you never step into Central Booking or Rikers Island, a conviction for shoplifting, possession of cocaine, having a gravity knife or getting into a drunken fistfight can and likely will adversely impact your career, professional licensing or immigration status. Although there are numerous blog entries and extensive content on the New-York-Lawyers.org website that address these crimes, this entry will address what “Top Offense Charged” means and how it may impact your case.
Obstructing Governmental Administration: Is Blocking Traffic During a Criminal Investigation Sufficient to Establish NY PL 195.05
Sometimes with good cause and other times without, the NYPD charges individuals with violating New York Penal Law 195.05, Obstructing Governmental Administration. In fact, during my years as a Manhattan prosecutor and currently as a New York criminal defense lawyer, I have seen and currently see both police and Assistant District Attorney’s charge PL 195.05 where the law is interpreted either way too broadly or it is confused with other offenses such as Resisting Arrest. An “A” misdemeanor punishable by as much as one year in a local county jail such as Rikers Island, “OGA” is not a crime that should be taken lightly. Not only is incarceration an ugly thing, but the hint or accusation of criminal conduct can have significant collateral consequences even if an accused never steps on foot in jail. Due to the above reasons, this blog entry will address the crime of Obstructing Governmental Administration and a recent NYC court decision from the Queens Criminal Court review the offense.
True Threats and No Legitimate Purpose: Establishing the Elements of an Aggravated Harassment Crime, NY PL 240.30
Second Degree Aggravated Harassment, New York Penal Law 240.30, is one of the most widely charge crimes that often teeters between a violent and non violent offense. Not only are the alleged threats made in an NY PL 240.30 investigation relevant down to the exact words used and the context of declaration, but this offense is just as likely to involve a Desk Appearance Ticket based arrest as it is a Domestic Violence crime or charge. Just as local courts and attorneys have grappled with Second Degree Aggravated Harassment crimes, so has New York State’s highest court, the Court of Appeals. While the following is not an analysis of a Court of Appeals decision, this blog entry does address what constitutes a “true threat” and, pursuant to a different subsection of the crime, “no legitimate purpose” when establishing Aggravated Harassment in the Second Degree at the pleading stage of New York Penal Law 240.30 arrest.
Marijuana Crimes: Can the Police Merely Allege a Public Location or Public View without Giving More Detail as to the Location of an Incident
Not necessarily relevant to every criminal offense found in the New York Penal Law, many arrests and crimes stem from what the police see in public or plain view. Whether officers with the NYPD or other local police agency stop your car and see a knife inside the vehicle from their vantage point or you’re walking down the street with a marijuana in your hand, the location of your criminal possession of cocaine, marijuana, or a firearm is often relevant not merely to the legality of your stop, arrest and search, but the crime itself. The following case involving an arrest for Fifth Degree Marijuana Possession, NY PL 221.10, is an example of this element and how a criminal complaint against you must be drafted in order to survive (or not survive) a motion to dismiss by your criminal defense attorney.
New York PL 265.01 & Switchblades: Conclusory Language by a Police Officer May not Sustain a Criminal Court Complaint
Per se crimes are dangerous offenses in New York. These crimes, and the arrests that result, are based not on malicious or intentional violations of the law, but often on otherwise harmless and ignorant actions. One of the most common strict liability and per se crime in the New York Penal Law is that of Criminal Possession of a Weapon in the Fourth Degree, pursuant to NY PL 265.01. Although there are many different types of items or objects that are “automatic” weapons (by automatic we are not speaking of a firearm, but automatic in the sense that their mere possession is a crime regardless of how the object is being used), the most common involve possession of gravity knives. In its simplest terms, these knives open with the force of gravity when flicked from the wrist. It is fairly routine that tourists to New York City or even residents of Manhattan, Brooklyn or Queens are arrested and either fully processed before a judge or given a Desk Appearance Ticket (DAT) after a police officer observes a clip on the accused’s pocket or or sees the blade during a car stop. Sadly, most of these individuals legally purchased these knives online or at a chain store outside of New York City or New York State.
While gravity knife arrests according to New York Penal Law 265.01(1) rank the highest by volume, other per se weapons are the subject of the same prosecutions. Arguably, though less common, switchblade knives pose a more serious risk. The reason for this is obvious. Still a violation of PL 265.01(1), Fourth Degree Criminal Possession of a Weapon, switchblade knives are not sold by Home Depot, a fishing store or other similar establishments. Gravity knives are. Right or wrong, many prosecutors, judges and police officers perceive switchblade knives are evidence of some potential criminal act. Because of the seriousness of the allegation and the potential long term implications of a criminal conviction beyond spending time in jail, it is critical to examine the many defenses that may be available for an arrestee. One such defense is to review the complaint against you to determine whether the allegations as set forth in the accusatory instrument (the paper charging you is called an information) is legally sufficient.
New York PL 220.03: How the Police & Prosecutors can Establish Constructive Possession When Drugs or other Contraband is Not on Your Person
Whether you are arrested for allegedly possessing a drug such as heroin or cocaine, a weapon including a gravity knife or firearm, or some marijuana, the contraband the police claim you possessed may not have been on your person. That is, you are being charged with PL 220.03 (drug possession), PL 265.01 (weapon possession) or PL 221.10 (marijuana possession), but the police did not see or recover the contraband from your hand, pocket, body, etc. The law is clear in these circumstances. Assuming the allegations in the complaint against you are sufficient (the elements must be proven beyond a reasonable doubt if and when there is a trial), prosecutors can push forward in a case regardless if your possession was considered actual or constructive.
Although you will have a much further in depth consultation with your own New York criminal lawyer who will explain the different types of possession to you, the difference between actual possession and constructive possession is fairly obvious. One is on your person and the other in an area where you have dominion and control. In other situations, even though your possession was not physical, if the contraband is in plain view or in a car, a legal presumption of your knowledge and possession may be attributed to your case.
Revenge Porn in New York: Aggravated Harassment, Dissemination of an Unlawful Surveillance Image or any other Crime?
“Revenge Porn” has entered the vernacular of every day New Yorkers and it appears as if it is here to stay. With the proliferation of social media, Revenge Porn, and the pictures or videos that it consists of, reeks havoc on the people who are reflected or portrayed in the online imagery. While there very well may be civil avenues to hold perpetrators of Revenge Porn accountable for their postings and sharing, what, if any, criminal remedies exists? Is there a Revenge Porn statute or crime in the New York Penal Law? For better or worse, the answer is no, but does that mean those who post Revenge Porn are free from arrest or prosecution in New York City or New York State?
In People v. Barber, 2013NY059761, NYLJ 1202644738008, at *1 (Crim., NY, Decided February 18, 2014), the defendant allegedly posted nude photographs of the complainant, his former girlfriend, to his own Twitter account and shared the same with his ex-girlfriend’s employer and sister. This was done without the complainant’s consent. As a result of this conduct, the New York County (Manhattan) District Attorney’s Office charged the defendant with Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1)(a), Dissemination of an Unlawful Surveillance Image in the Second Degree, New York Penal Law 250.55 and Public Display of Offensive Sexual Material, New York Penal Law 245.11(a). The defendant brought a motion to dismiss all charges. Although the Court found that defendant’s conduct was despicable, it nevertheless determined that the defendant did not violate any criminal statute for which he was charged.