More than most crimes in New York, Endangering the Welfare of a Child, New York Penal Law 260.10, is a nebulous and vague charge that leaves a great deal of discretion and interpretation in the hands of the prosecutor and the judge. The most commonly invoked section of the Endangering statute in New York is the allegation that the accused person knowingly acted “in a manner likely to be injurious to the physical, mental or moral welfare of a child.” Not only is this standard difficult to pin down, but it is seemingly subject to the disparate and constantly changing landscape of cultural norms, even between different areas of New York State. Modern psychology leaves no doubt that aggressive and repeated arguments between parents in the presence of a young child can lead to long-lasting psychological trauma, but is a District Attorney going to prosecute two parents criminally for fighting a lot? What about a parent who keeps marijuana for personal use in a desk drawer of their home office? What is enough to rise to level of acts that are likely to harm a child psychologically or “morally?”
Tension between religious groups and ignorance about others’ religious beliefs can manifest its head in very ugly and illegal ways. Sometimes it is violence against individuals who share a different religion while other times the target of these attacks are the physical houses of worship – synagogues, churches, mosques, temples and other places for prayer. Regardless, New York State gives the police and District Attorneys the tools to protect people rightfully practicing their religion and their respective places for prayer. Whether punishable as misdemeanors or felonies, the following blog entry briefly identifies and discusses some of the chargeable offenses that one could face upon arrest for damaging or defacing a house of worship or obstructing those who seek to exercise their freedom of religion.
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.
While not always a domestic crime or family offense, arrests for Second Degree Aggravated Harassment in New York are fairly common in the marital, parent-child and intimate partner context. However, whether the partners have a sexual, physical or familial relationship is of no consequence. Business partners, friends and acquaintances can all run afoul of New York Penal Law 240.30. Simply, the relationship between the parties is fairly irrelevant.
If the nature of the relationship is irrelevant in a Second Degree Aggravated Harassment prosecution, what about how a threat is made? Does a clearly bogus threat violate the law irrespective of whomever the recipient may be? What about a joking threat? For that matter, what constitutes a “true threat?” This blog entry will not merely address this last question, but briefly examine whether a conditional threat is the same as a true threat for the purpose of PL 240.30.
Although not exclusive to drug and marijuana crimes, otherwise fairly simple offenses such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, and Fifth Degree Criminal Possession of Marihuana, New York Penal Law 221.10, are often complicated when the police not only arrest a person for possessing heroin, molly, MDMA, adderall, oxy, cocaine, ecstasy, marijuana or any other drug, but also charge that person with an additional crime when he or she attempts to hide or dispose it before the police can get their respective hands on controlled substance. In these circumstances the NYPD or other local police department often charges the accused not only with the PL 220.03 or PL 221.10, for example, but also with either Tampering with Physical Evidence or Attempted Tampering with Physical Evidence, a class “E” felony and class “A” misdemeanor respectively. While the latter offense, New York Penal Law 215.40, is punishable by as much as four years in prison, an attempt to commit the same crime is “only” punishable by up to one year in jail.
Because both the police and prosecutors often charge a variation of PL 215.40 whether by Desk Appearance Ticket or Central Booking processing, a charge of Tampering with Physical Evidence is far from atypical. However, an arrest and charge does not automatically equate to proof beyond a reasonable doubt if at all. This blog entry will address the fairly common scenario where an accused merely throws to the ground, drops or discards the physical evidence in question and whether that rises to the level of either a completed or attempted Tampering with Physical Evidence crime.
Black jack is fun. At least, I enjoy it…in Las Vegas. Some people like to play poker. Others simply put money – big and small dollars – on NFL, NHL, NBA and MLB games. Toss in college sports, there is no shortage of gambling opportunities. While some jurisdictions allow or permit gambling, others simply do not. In New York State there are many criminal statutes in the New York Penal Law that are both felonies and misdemeanors. Simply, New York State regulates, enforces and prosecutes illegal gambling. Vegas New, York City is not. One of the offenses prosecuted by local District Attorneys is Second Degree Promoting Gambling, New York Penal Law 225.05. This class “A” misdemeanor is punishable by as much as one year in jail. A person is guilty of PL 225.05 if he or she knowingly advances or profits from an unlawful gambling activity. What makes this crime a felony of First Degree Promoting Gambling, New York Penal Law 225.10, is that the accused either engages in bookmaking by accepting at least six bets with a total value in excess of $5,000.00 in one day or receives money or written records from another person who is not a player who’s playing or chances are reflected by these records or monies or this person receives more than five hundred dollars of money being played in any given day. A long run on type sentence? Maybe, but that is the law in the State of New York that you and your criminal defense attorney will face when or if you are charged with Either First or Second Degree Promoting Gambling. For the purpose of clarity so you can better understand the crime or crimes, this blog entry will address what it means to advance from an unlawful gambling activity.
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.
I’ve been arrested for Second Degree Criminal Contempt. I don’t understand why I am being prosecuted for New York Penal Law 215.50. How can the police arrest me or the DA prosecute me without naming the victim or protected party? While I may have posed those questions as a New York criminal defense attorney and not an accused, they are quite reasonable ones to ask. After all, if the complaint against you is not legally sufficient regardless if you’re charged with NY PL 215.50 or any other crime, then ultimately your criminal defense lawyer will likely file a motion to dismiss or seek the dismissal of your criminal case on some other procedural grounds. Generally speaking, however, one of the common difficulties securing a dismissal of a Second Degree Criminal Contempt arrest and charge is that even where a victim is not compliant either a third party or other evidence can corroborate there was contact in violation of a court order. This evidence can come from a friend who observed a defendant having contact with a victim or even text messages or phone records reflecting the same. After addressing the crime of PL 215.50, the purpose of this particular blog entry is to provide an example of an insufficient criminal complaint where conclusions by the NYPD did not satisfy the burden that prosecutors are required to reach.
Endangering the Welfare of a Child, New York Penal Law 260.10, is not only an embarrassing crime to face, but one that by its nature gets the attention of judges, prosecutors and child protection agencies such as Child Protective Services (CPS) and the Administration for Child Services (ACS). Domestic in nature when the child is your own or related to you, criminal courts and family courts can both get involved in the process where exposure on this misdemeanor is as great as one year in jail and other bodies can find that you were negligent with or maltreated the child. It is one thing for a neighbor or friend to question your parenting style or claim you are bad parent, but its another when a court finds you legally responsible or, better termed, irresponsible. With these concerns in mind, this blog entry will briefly assess PL 260.10(1) arrests involving Endangering the Welfare of a Child where the child in question is left “home alone.”
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.