Non-Violent Crimes

March 4, 2012

New York Penal Law 205.30: Is Dismissal of Other Arrest Charges a Criminal Defense to Resisting Arrest

Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.

In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.

February 28, 2012

New York Gambling Record Crimes: Must Prosecutors Allege in an NY PL 225.15 Complaint that You Did Not Possess the Records for Personal Use?

by Jeremy Saland

Depending on the facts and circumstances, gambling in New York, outside of Native American Reservations and the horse tracks, is an illegal enterprise. Unlike Las Vegas, gambling in New York City or elsewhere in the State of New York can land you in jail and the winner of a criminal record. New York is no stranger to organized gambling schemes, illegal “bookies” taking bets, or underground gambling enterprises. As a New York criminal lawyer representing clients in Manhattan, Queens, Westchester and the surrounding boroughs and counties, I know that while gambling offenses are not as common as many other crimes, prosecutors and police are constantly on the lookout for and target gambling offenders. Today I want to examine a recent Bronx County criminal case involving the violation of New York gambling laws: Possession of Gambling Records in the Second Degree, pursuant to New York Penal Law 225.15(2).

Under NY PL 225.15(2) a person is guilty of Possession of Gambling Records in the Second Degree when, with knowledge of the contents or nature thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise. Possession of Gambling Records is a class “A” misdemeanor, punishable by up to one year in jail and a fine. Remember, even without ever stepping into jail as a part of a sentence, Possession of Gambling Records is a crime that will stay on your permanent. Now, if the records are of the kind used in a bookmaking scheme or enterprise and total more than five thousand dollars the charge escalates to a much more dire case. That is, Possession of Gambling Records in the First Degree, pursuant to New York Penal Law 225.20, is a felony. While the misdemeanor variety of gambling crimes is punishable by up to one year in jail, the felony variety is punishable by up to one and one third to four years in state prison.

November 24, 2011

Client with Previous Felony Record Gets Disordely Conduct After Charged with Felony Criminal Mischief

by Jeremy Saland

The New York criminal lawyers at Saland Law PC are pleased to announce a top disposition for a client charged with Criminal Mischief in the Third Degree (New York Penal Law 145.05), Auto Stripping in the Third Degree (New York Penal Law 165.09) and Attempted Petit Larceny (New York Penal Law 110/155.25). The most serious offense, NY PL 145.05, is an “E” felony punishable by up to four years in state prison.

Prosecutors alleged that our client, an individual who had previously been convicted of violating New York Penal Law 265.03 for possessing a loaded firearm, took a brick and smashed it through the back trunk window of a vehicle parked in Manhattan. After allegedly smashing out the window, our client is further alleged to have reached inside the vehicle in the presence of a plain clothes officer and an independent eyewitness. Ultimately, the police arrested our client and the owner of the vehicle assessed the damage at $1,000. Charged with a felony, and previously convicted of a violent felony, prosecutors offered our client a “sweetheart” deal of a misdemeanor plea and restitution. Unhappy with the offer, our client, who was represented by a “public defender,” consulted with and retained Saland Law PC.

October 2, 2011

Occupy Wall Street: What Disorderly Conduct & Other Criminal Arrests Mean to a Protester’s Future

by Jeremy Saland

We can all agree to disagree on the merits, impact and value of Occupy Wall Street sit-ins, protests and mere presence in lower Manhattan. Whether protesters blocking the Brooklyn Bridge hurt the blue collar and regular working class person trying to get to and from work or their actions truly intensified the light on certain Wall Street practices is certainly up to debate. However, one thing we can all likely agree on is that any arrest, whether it be for Disorderly Conduct (NY PL 240.20), Resisting Arrest (NY PL 205.30) or Obstructing Governmental Administration (NY PL 190.05), can have serious impacts to the futures of those arrested years after they have left the streets of New York City behind. While a summons for Disorderly Conduct is probably the least of their concerns, Resisting Arrest and Obstruction of Governmental Administration are both misdemeanors. How Manhattan District Attorney Cyrus Vance decides what to do with these cases is yet to be seen, but the potential for these men and women to damage their futures is great.

Disorderly Conduct: New York Penal Law 240.20 Although not a precise legal definition, if you are disorderly and cause public inconvenience or alarm, obstruct the flow of traffic or act in a violent manner, the NYPD and prosecutors can charge you with Disorderly Conduct. Not a crime, a conviction for this offense would not give you a criminal record. What is concerning, however, is if you are printed for Disorderly Conduct or any crime and you ultimately plea to this violation, there is a real possibility that it will show up on future background checks. While a Disorderly Conduct seals (or should seal), there has been litigation over arrest charges and pleas to Disorderly Conduct showing up months and years after the cases are resolved. No New York criminal lawyer can tell you whether your case will properly seal or seal in a manner as to prevent the public from learning of your arrest charges. Regardless, before taking a plea to a violation of Disorderly Conduct have a long and in depth conversation with your counsel as to the ramifications and collateral consequences of such a plea.

August 27, 2011

Extortion in New York State: An Affirmative Defense to NY Penal Law 155.05(2)(e) and 155.40(2)

by Jeremy Saland

In an earlier entry relating to Extortion, a subset of Grand Larceny, I identified and differentiated the difference between the Grand Larceny Extortion statutes found in New York Penal Law sections 155.05(2)(e) and 155.40(2). This entry will deal with the criminal defense to the crime of Extortion in NY that is established by statute. Whether this affirmative defense is relevant or applicable to the Grand Larceny and Extortion allegation in your particular case, that is something to identify and asses with your New York criminal defense attorney and Extortion lawyer.

Pursuant to New York Penal Law section 155.15(2):

June 10, 2011

New York Gambling Crimes: Accused Gets ACD After Charged with Felony Promoting Gambling in the First Degree

by Jeremy Saland

District Attorneys and prosecutors through New York City – Manhattan, Brooklyn, Queens, Bronx and Staten Island – routinely utilize their “long arms” to attack criminal schemes and grab targets of crime well beyond the borders of Gotham. Often times, New York criminal lawyers represent those accused of frauds and criminal transactions even though they never set foot in New York. Whether the crime is Enterprise Corruption, Grand Larceny or Money Laundering, theses defendants are prosecuted as if they had perpetrated their conduct right here in New York.

Beyond the crimes listed above, one of the more common crimes prosecuted beyond the borders of New York are crimes involving gambling. Of these gambling crimes, the felony of Promoting Gambling in the First Degree (NY PL 225.10) is one of the most typical. Generally, you are guilty of Promoting Gambling in the First Degree when you profit or knowingly advance from unlawful gambling activity. In addition to these elements, you must also be involved in bookmaking where you receive more than five bets valued in excess of $5,000 over the course of any given day. Not only is NY PL 225.10 a felony, but it is punishable by up to four years in state prison.

December 3, 2010

Obstructing Governmental Administration (New York Penal Law 195.05): Can Words Alone be the Basis of the Obstruction

by Jeremy Saland

Often times confused with Resisting Arrest (New York Penal Law 205.30), Obstructing Governmental Administration in the Second Degree (New York Penal Law 195.05), occurs when a person intentionally obstructs the administration of law or attempts to prevent a public servant, such as a police officer, from performing an official function. This obstruction can be through intimidation, physical force or any independent unlawful act. In other words, if the police are trying to make a lawful arrest of another person and you prevent them from doing so by blocking the police or pushing them away, this charge would likely be applicable. If the police were trying t make an arrest of you and you conducted yourself in the same manner, the likely charge would be Resisting Arrest. Both crimes are “A” misdemeanors punishable by up to one year in jail. In Manhattan, Brooklyn or any other location in New York City, the one year in jail would be served on Rikers Island.

An interesting question that will be addressed in this blog entry is whether or not words alone can create a sufficient obstruction to sustain the charges of Obstructing Governmental Administration in the Second Degree. Fortunately, a recent decision may help shed light on this issue.

November 8, 2010

Saland Law PC’s Criminal Mischief (New York Penal Law 145.00, 145.05 & 145.10) Criminal Defense Resource Page

by Jeremy Saland

The New York criminal defense attorneys at Saland Law PC have created an “information page” for those people charged with or seeking information on the crime of Criminal Mischief in New York. Not merely a regurgitation of New York Penal Law sections 140.00, 145.05, 145.10 or 145.12, the resource page is a starting point to educate yourself about this crime. While the page is no substitute for an in depth review of your particular facts with an experienced New York criminal lawyer, this tool does discuss potential areas where you may find your defense.

Generally, Criminal Mischief in the Fourth Degree (NY Penal Law 145.00), a relatively common misdemeanor involving the damaging of another person’s property, is the basis of all of the other felony crimes involving Criminal Mischief. From Manhattan to Queens and Brooklyn to Westchester County, the crime of Criminal Mischief involves the same premise. That is, if you intentionally damage another person’s property, regardless of how significant, you can be charged with a crime. The misdemeanor offense even permits a reckless damaging to be the basis of this charge. What bumps the crime up to a felony is the amount of the damage. Once the damage exceeds $250 and $5,000, the crime becomes an “E” and “D” felony respectively.

September 14, 2010

A Criminal Defense to Reckless Endangerment: Factual Impossibility and New York Penal Law Sections 120.20 & 120.25

by Jeremy Saland

Reckless Endangerment, New York Penal Law sections 120.20 and 120.25, is either an “A” misdemeanor punishable by up to one year in jail or a “D” felony punishable by up to seven years in state prison. While I have defined Reckless Endangerment in the First and Second Degrees in other entries, if one acts reckless and causes a substantial risk of serious physical injury or death (or they act with a depraved indifference to human life), they are setting themselves up for this charge. Having said that, merely acting stupid does not mean one acted reckless in the eyes of the law. For example, speeding in a car after consuming alcohol may not be “reckless” in the eyes of the law even though you may ultimately be convicted of DWI. Other elements should be present and “fleshed out” in the accusation. In the scenario above, one may be driving dangerously, but where there other cars or pedestrians in the street? Did the accused almost hit them? How fast was he or she speeding? What were the road conditions? There are other important facts before one’s actions give rise to at least a “substantial risk” of not merely a small injury, but serious physical injury or a grave risk of death.

Keeping with the theme of what constitutes a the crime of Reckless Endangerment in New York, a question that is often addressed is whether or not factual impossibility is a defense to the crime in New York of Reckless Endangerment in the Second or First Degree. That answer is generally yes. A great non-legal way to look at this is as follows:

September 10, 2010

Graffiti Crimes & Making Graffiti in New York: The “Related Matters” Criminal Defense & Right To Counsel

by Jeremy Saland

Although it rears its head in other areas of New York criminal law, violations of a defendant’s right to counsel (right to remain silent) seem disproportionately greater in the area of New York graffiti crimes including Making Graffiti (New York Penal Law 145.60), Criminal Mischief (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). While I cannot base my opinion on any scientific data, as a New York graffiti crimes criminal defense lawyer, I have litigated and addressed the issues regarding right to counsel numerous times in this specific arena. In fact, one of the New York City District Attorney’s Offices recently dropped five of six cases against our client after I successfully argued that the client’s right to counsel was violated by the New York City Police Department’s Vandalism (Vandal) Squad. The argument was based in the doctrine of “Related Matters.”

In the case mentioned above, our client had been arrested by police after he was allegedly observed with a spray paint can. A person had called indicating someone was in the process of spray painting. Our client was alleged to have made a particular tag at that location. Weeks later, after he was arraigned and had been assigned counsel, but had yet to retain Saland Law PC, the Vandal Squad stopped our client on the street and confronted him with photographs. These photographs were of the same alleged tag at other locations. During his street interrogation by about six officers and detectives from the Vandal Squad, our client “admitted” to spraying the tag at the other locations. As a result, he was once again arrested and charged with five new cases regarding the same tag as the first arrest that was currently pending in criminal court.