Desk Appearance Ticket

February 14, 2014

Aggravated Harassment NY PL 240.30: All Speech, Threats and Statements are Not Equal

Second Degree Aggravated Harassment in New York, pursuant to New York Penal Law 240.30, is a crime that is always immersed in a pool of many questions. Sometimes the conduct clearly establishes the foundation for an arrest while other times your criminal lawyer may be left scratching his or her head and asking, “Really?!?! You’re arresting my client and charging him with Aggravated Harassment in the Second Degree for what?!?!” As I have said to my clients many times, because of the hypersensitivity around PL 240.30, police officers often make an arrest and leave it up to prosecutors to later sort out. Whether this is right or wrong (it certainly is wrong if the claim is fraudulent or exaggerated for the gain of the accuser), the unfortunately reality is that you will have to “earn” your offer or dismissal. Further, if the accusation is from a partner, lover, spouse or family member and is deemed “domestic,” you will be arrested for Second Degree Aggravated Harassment and you will not be able to avail yourself of a Desk Appearance Ticket.

There are multiple ways an accused can “earn” the proper disposition of a case. No prosecutor is merely going to give you and your criminal lawyer a handout. Obviously, one way you could fight an NY PL 240.30 arrest is to attempt to mitigate your conduct. Another route, and very likely the first attack, is to work alongside your criminal attorney to ascertain if the allegations, even if true, legally satisfy the elements of Second Degree Aggravated Harassment. When doing so, it is critical to examine the words used and the context of those words. The following two New York Criminal Court cases shed light on potential defenses and overall requirements of a New York PL 240.30 arrest that should be added to your defensive arsenal when words alone and their usage form the basis of a Second Degree Aggravated Harassment case.

February 1, 2014

NY PL 240.30 Aggravated Harassment: When Spitting on Another is both Criminal and Non Criminal

by Jeremy Saland

Depending on the side of the law you stand (the defendant arrested for Aggravated Harassment in the Second Degree or the complainant accusing you of violating New York Penal Law 240.30), the evolution and changes to this crime is either concerning or welcomed. As initial matter, some things have not changed. For example, not only are many of the subsections or theories the same as they were years ago, but if you are given a Desk Appearance Ticket for PL 240.30 or you are run through the entire underbelly of the New York Criminal Justice System for Second Degree Aggravated Harassment, the potential sentence and punishment is one year in the local slammer.

One “type” of Aggravated Harassment in the Second Degree that has not changed is that which involves some form of physical contact (the statute also allows for other crimes that do not involve physical contact). “Physical contact,” however, may not always be what it seems. A slap or punch? Certainly, but what about less clear and decisive contact? In People v. Carlson, 705 N.Y.S.2d 830 (Crim. Ct., NY Cty., 1999), the defendant was charged with Aggravated Harassment in the 2nd Degree (Penal Law 240.30(3)), Harassment in the 2nd Degree (PL 240.26(1)), and Menacing in the 3rd Degree (PL 120.15) when he allegedly directed racial slurs toward a complainant, including calling him a “nigger,” and then spit in the complainant’s face. The Court, in this case, was tasked to tackle the following issue: “whether defendant’s alleged act of spitting in the informant’s face subjected the complainant to ‘physical contact’ within the meaning of [PL 240.30(3)]. Defendant moved to dismiss all three charges.

January 22, 2014

NYC Marijuana Desk Appearance Ticket Arrests: Should You Hire a Criminal Lawyer

by Jeremy Saland

One of the fairly common calls we receive as New York criminal lawyers and New York criminal defense attorneys revolves around misdemeanor marijuana (“marihuana” in the New York Penal Law) arrests. The questions run the gamut. I received a New York City Desk Appearance TIcket for PL 221.10, have I been arrested? I received a Desk Appearance Ticket in NYC for marijuana possession, but the police recovered the marijuana from the ground (or it was in another person’s hand), how can they charge me with it? Why am I being charged with Criminal Possession of Marihuana when the police only got it from my pocket? It wasn’t like it was in my hand or I was smoking it! Why did the police search my car? They claim the marijuana was in the cup holder, but it was in the glove compartment they searched illegally! I could continue, but I believe you understand my point. Although only marijuana and not cocaine, molly, a firearm or something more serious, arrests for PL 221.10 – whether by Desk Appearance Ticket or full on processing – is traumatic.

Whatever your questions may be, the conversation as New York criminal lawyer and potential client routinely turns to what, if anything, a criminal defense attorney can do for the accused pot smoker (or possessor). First, I generally explain to my potential clients that despite their fears, barring some extraordinary circumstances, jail is not on the table (technically it is possible). Second, despite the fear other attorneys may try to instill in potential clients to convince these clients to hire them, the reality is that as a first time offender who did not resist arrest or obstruct the officers, things may not be so bleak (of course, “bleak” is a relative term).

January 19, 2014

Assumption Based Guilt: An Officer’s Assumption May be Enough to Establish the Presence of Drugs in a PL 220.03 Arrest

by Jeremy Saland

The concerns of a person arrested for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, are many. If you are doctor, accountant, teacher, lawyer or financial services professional, what will happen to your license or certification? Beyond the initial scare and concerns, what are your potential sentences and punishment? For those who are not American citizens and here on visas – work or student – how will your arrest impact your future. Desk Appearance Ticket or full on arrest through central booking, dealing with the uncertainty and legitimate concerns of your arrest for cocaine, heroin, molly, ecstasy, or any controlled substance is something to address with your criminal lawyer.

Outside of these collateral, secondary and sentencing issues, another topic, and arguably the first one, you will discuss with your criminal lawyer or criminal defense attorney will be how you can challenge your arrest and DAT (also called an appearance ticket) for PL 220.03 in New York City. Sure, you will address why the police stopped you and how it came to be that you were searched, but another issue may be whether or not the controlled substance or narcotic in question is in fact a drug – heroin, cocaine, molly, etc. While the good news is that the prosecution has the burden to prove this element (and every) beyond a reasonable doubt, that bad news i that in the past few years the law has evolved (or devolved) to the point where an officer can make a determination without conclusive evidence from a field test or laboratory analysis. Hey, you may have purchased bogus drugs before you entered a concert, but he courts will find the complaint against you sufficient based on the assumption of a police officer. Sadly, the following two cases illustrate how the law favors the law enforcement and not the potentially wrongly accused.

January 15, 2014

NYC Prosecutors Vigorously Prosecute PL 250.45: Doctor Lucky to Avoid Reigstration on Conviction for Unlawful Surveillance

by Jeremy Saland

In the beginning years of his first term, Manhattan District Attorney Cyrus Vance, Jr. initially followed much of the policy of his predecessor, Robert Morgenthau. Over time, Vance tweaked what he believed needed tweaking and completely changed what he believed needed changing. Some crimes were prosecuted more vigorously while others may have been held to a lesser standard or bar. Right or wrong, better or worse, if you are in Manhattan and you are accused of or arrested for certain crimes, be prepared to fight what may be the very firm hand of the Manhattan District Attorney’s Office. One such crime that was always prosecuted in a zealous manner, and still is today, is that of Unlawful Surveillance in the Second Degree, New York Penal Law 250.45. I have blogged about this crime and have drafted material about this offense on the New-York-Lawyers.org website because it is a crime that not only has direct consequences in terms of incarceration as a felony, but collateral penalties that could be career and life changing.

Pay very close attention. If nothing else, understand that if you are convicted of PL 250.45, Second Degree Unlawful Surveillance, you may be required register as a sex offender. What you may think was a harmless prank or something for your eyes only, is an offense that you may never walk away from. Registration as a sex offender would not only brand you a “pervert” in the eyes of friends, neighbor and colleagues when your registry information was disclosed, but your career could be derailed. Not to knock a guy while he is down and out, just ask a former Mount Sinai urologist who was sentenced earlier today. While many people likely supported him as an otherwise good person, skilled physician and asset to his community, he will likely be reeling from his Second Degree Unlawful Surveillance conviction for years to come. Even though this doctor was not required to register, he lost his position at Mt. Sinai Hospital.

December 31, 2013

Close Proximity to Drugs: Dismissal of PL 220.03 Arrest Charges for Vagueness of Possession

by Jeremy Saland

The cornerstone to any arrest in New York for the possession of a controlled substance – cocaine, heroin, molly, ecstasy – is arguably first and foremost that you actually possessed the drug, narcotic or controlled substance in question. If that is not the first hurdle that prosecutors in Manhattan, Brooklyn, Queens, Bronx, Westchester or Rockland Counties must overcome, it is likely the second. Equally important to any drug possession arrest is that the substance you possessed is in fact a controlled substance and not “beat drugs” or marihuana / marijuana (marijuana crimes are prosecuted differently than controlled substance crimes in New York). This blog entry will address what prosecutors and police must articulate or state in a complaint to establish legal sufficiency in your arrest for New York Penal Law 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree, in the context of possession.

Although this blog entry on NY PL 220.03 arrests will not address all of the elements of “personal use” drug possession and only analyze the actual possession, to understand any defense your criminal lawyer may assert in challenging a Seventh Degree Controlled Substance arrest or Desk Appearance Ticket (also called a “DAT”) you must grasp the crime of PL 220.03. A person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle.

September 13, 2013

Good Golly Ms. Molly: Ecstasy & Related Drug Crimes in New York City (PL 220.03)

by Jeremy Saland

What is a “molly” or “Molly”? Yes, it is a drug and some form of narcotic or controlled substance, but how does that translate into New York criminal law? Must you sell a molly or is mere possession of a molly enough to be arrested and convicted of a crime? Simply put, while selling a molly (it is actually ecstasy or 3,4-methylenedioxy-N-methylamphetamine) is no doubt a felony (note, money need not be exchanged for a felony sale to transpire according to New York criminal law), possession of a small amount for “personal use” is considered a misdemeanor offense. That crime, Criminal Possession of a Controlled Substance in the Seventh Degree, is an “A” misdemeanor. New York Penal Law 220.03 carries a possible sentence of up to one year in jail. If your arrest (this includes a Desk Appearance Ticket or DAT) is in New York City – Manhattan, Brooklyn, Queens or the Bronx – and you are sentenced to any time in jail, you will spend your time on the beautiful Rikers Island. You need not take my word on this issue. Ask any New York City criminal lawyer or New York drug crime attorney.

As insignificant as possession of ecstasy or a molly may seem to be, in the eyes of prosecutors, judges and those involved in New York’s criminal justice system, there is no difference between the possession of ecstasy and heroin or cocaine. Mere possession, even without any significant weight or amount, violates NY PL 220.03 as described above. Although I am not currently aware of any changes in the policy of District Attorneys Offices in the New York City area, it would not be shocking that even first time offenses are examined more closely and scrutinized since the overdose deaths during the Electric Zoo festival in Manhattan.

July 13, 2013

You Assaulted Me! Understanding New York Misdemeanor Assault Crimes (PL 120.00) Beyond Common Perception

by Jeremy Saland

One of the most common questions that arise in the practice of New York criminal law from the perspective of both a prosecutor (Assistant District Attorney) and a criminal defense attorney or lawyer is when an assault is an Assault (note the big scary capitalization of the word). That’s right. When does an accused’s conduct go from noncriminal in nature to actions that are legally sufficient to establish the crime of Assault in the Third Degree?

Is a slap different than a closed fist punch in the eyes of the New York Penal Law? What about a shove, kick or pinch? Do any of these constitute a misdemeanor offense punishable by as much as a year in jail? At what point has your conduct and resulting injury reached the level of New York Penal Law 120.00, Assault in the Third Degree? Generally speaking, you are guilty of NY PL 120.00(1) if and when you intentionally cause physical injury to another person, but how far are courts willing to go under pressure by Assistant District Attorney’s to prosecute those they believed have committed a crime?

July 9, 2013

What Happens if You Cannot Appear in NYC Court for Your Desk Appearance Ticket: Scenarios & Ramifications

by Jeremy Saland

More often than not, if you are arrested in New York City for certain misdemeanor crimes such as PL 155.25, PL 165.40 (the “NYC shoplifting crimes“), PL 120.00 (assault), PL 220.03 (“personal use” drug possession) or PL 165.15 (service theft), the New York City Police Department will give you a Desk Appearance Ticket instead of holding you overnight in jail (assuming this is your first offense and you have a local address). Just as this is a common way to deal with those who qualify in terms of the arrest charge and tie to New York City, the vast majority of New York criminal lawyers would agree that an appearance ticket, or DAT, is the way to go should it be an option. Having said that, however, there are circumstances where getting a DAT instead of immediately being processed can be cumbersome at minimum and problematic at worst. So…let’s address the issue(s) here. What are the consequences for missing your appearance date regardless as to why you were unable to appear and what can you do to rectify the problem should you know of your conflict in advance?

Missing Your Desk Appearance Ticket: Foreign Nationals & Non-New York Residents

June 10, 2013

Does Merely Asserting “Substantial Pain” Satsify the Prosecution’s Burden to Sustain a Complaint for Third Degree Assault (NY PL 120.00)

by Jeremy Saland

You slap someone in the face. Certainly its not nice, but is it a Third Degree Assault in New York? You punch someone in the gut. Again…not nice…but is it an Assault in the Third Degree? You kick someone in the ribs (maybe they deserved it and you were merely defending yourself this time!). Ouch….but should you be arrested for violating New York Penal Law 120.00(1)? An “A” misdemeanor that will smack you with a lifelong criminal record, while you may need a criminal lawyer to counsel you through the criminal process in New York, you certainly don’t need a criminal defense attorney to tell you that an arrest for PL 120.00 is potentially a life changing matter.

Whether you are issued a New York City Desk Appearance Ticket (commonly called a DAT or an appearance ticket) for PL 120.00 or you spend 24 hours waiting in jail to see a judge, the law of Third Degree Assault is fairly straight forward on its face. That is, if you intentionally (there is also a reckless provision) cause physical injury to another person, you are guilty of misdemeanor Assault. Seems fairly easy for a prosecutor to prove, right? While it certainly may be fairly simple for a New York City (or any jurisdiction for that matter) Assistant District Attorney to establish in a complaint or prove beyond a reasonable doubt at trial, not everything is as easy as it seems.