Raise the Age legislation, codified in part in CPL Article 722, has brought New York more in line with the majority of the nation in dealing with criminal charges and accusations against certain teenagers. The legislation was also largely a compromise between law enforcement and the proponents of these kinds of sweeping laws. The result, which sought to create a system where 16 and 17 year olds could still be prosecuted as adults in certain situations, is a complex system that leaves a healthy amount of grey area for juvenile and adolescent defense lawyers, courts and District Attorneys to interpret. Much of this is due to the creation of an entirely new class of offender – the “adolescent offender.” CPL 1.20(44) defines such a person as one charged with a felony committed on or after October 1, 2018 when he or she was sixteen years of age or on or after October 1, 2019, when he or she was seventeen years of age. When a person in this classification is charged with a felony, their case first goes to an adult Criminal Court where it remains, just as it always has, or, subject to various rules on removal out of the adult criminal justice system, to Family Court. These rules depend in large part on the particular crime with which the adolescent offender is charged as well as the facts and circumstances of the underlying conduct. Other rules aside, and the subject of this blog, if and when law enforcement can establish “extraordinary circumstances” as prescribed by CPL 722.23(1)(d), prosecutors can prevent a judge from transferring an adolescent offender’s case from an adult Criminal Court to a youth oriented Family Court thereby challenging the principles of treating children different than their adult counterparts.
If what prosecutors claim is true, Actresses Felicity Huffman and Lori Loughlin could have Razzy worthy roles starring next to Marlon Brown in a remake of 1989’s “How I Got into College.” The alleged easy way out amateurs who, with others, collectively paid millions of dollars to “assist” their genetic lottery winners’ successful college admission into such universities as USC, Yale, Stanford, Georgetown, Wake Forrest, Ramsey (well, not really), and others, relied on the good old power of the almighty dollar to perpetrate the nationwide college entrance scheme. In lieu of cheating the old-fashioned way, “Operation Varsity Blues,” the relatively unoriginal but cutely named federal bribery and cheating investigation, resulted in dozens of arrests involving paid off Division 1 coaches, photoshopped pictures of high schoolers playing sports when they were likely absorbed in selfie inspired “insta” posts, and some old school cheating on SATs and ACTs. A heck of a scheme if you don’t get caught, this entire criminal enterprise had nothing on the one-man professional test-taking operation and self-proclaimed “GMAT Hero” along with his larger band of [admission slot] thieves. Responsible for taking in excess of 500 GMAT, GRE and TOEFL exams (go ahead, Google “Lu Xu” and “GMAT”), his proficiency and skill was unparalleled even among his test-taking cohorts. Sorta’ a lesser known of the Uncanny Xmen of the college admissions underground.
“Only the guilty hire defense attorneys.”
“If he was arrested, he clearly did something wrong.”
“Innocent people aren’t accused of crimes. Clearly, she’s guilty.”
Somewhat common refrains by those who have never had the misfortune of being accused of wrongdoing, whether fair or not, until you find yourself in handcuffs or before a judge it is quite easy to sit in judgment. However, when it is your name that is replaced by a docket number, the misconceptions you may have held will likely give way quite quickly. How are you going to get yourself out of this conundrum and who is the best attorney to protect your rights and bring your nightmare to a swift end? For a recent Crotty Saland PC client who found himself the subject of a wrongful arrest and prosecution, he took the right steps and debunked the myth as to why innocent people – or any accused for that matter – hire criminal defense lawyers.
When it comes to Harassment in the Second Degree, New York L 240.26, one of the most frequently charged offenses in New York City and likely throughout the State, one issue that criminal attorneys and prosecutors litigate time and time again is what constitutes a meaningful and real threat of harm. Wherever mere words are punishable by law, either civilly or criminally, vagaries and inconsistencies of law inevitably follow. Not only that, but the interaction of such criminal statutes or common law bases for civil liability inevitably run up against the very important and foundational First Amendment protection of free speech.
In most negotiated guilty pleas throughout New York City’s Criminal and Supreme Courts, as well as town, village and County Courts throughout Rockland, Westchester and the Hudson Valley, defendants are expected to waive their right to appeal their conviction and sentence. From one point of view, this makes sense. After all, if a defendant and his or her attorney have negotiated a plea deal that they are happy with, why would the defendant turn around and try to unwind what transpired with an appeal to the Appellate Division or Appellate Term. One simple answer is that people change their minds, which is typically not a reason to vacate a guilty plea. However, that change of mind often goes hand in hand with new information or guidance from some other source – information that the defendant’s counsel and/or the sentencing court failed to provide to the defendant when they made the decision to plead guilty. Depending on the nature and importance of that missing information, the voluntariness and intelligence of a guilty plea can be called into question. Despite this, when defendants are routinely expected to waive their right to appeal as part of the plea deal, this often forecloses any otherwise available avenue of vacating that uninformed or underinformed plea.
Thanks to the passage of New York City Administrative Code 10-180, Unlawful Disclosure of an Intimate Image, victims of Revenge Porn and the unauthorized sharing of compromising images in New York City – Manhattan, Brooklyn, Queens, Bronx and Staten Island – now can protect themselves in a court of law. Similarly, those abused elsewhere in the state can avail themselves of NY Penal Law 245.15, Unlawful Dissemination or Publication of an Intimate Image. Not only are distributors of intimate images, videos, pictures and other recordings committing a crime, but you, as a victim, can also file a lawsuit to hold them financially accountable for, among other things, punitive damages. Simply, if an ex-boyfriend, former spouse, or even an affair, shares your intimate images that he or she may have lawfully had at some point but were not permitted to send out to friends, business associates or online, a NYC Revenge Porn lawyer can help you secure justice in every sense of the word. No longer will you have to shrug when you ask, “How can I protect myself as a victim of Revenge Porn?”
Whether you reside in New York City, the Hudson Valley or any municipality from Manhattan to Buffalo, Rochester to White Plains, or Syracuse to Albany, you are not immune from predation by would be extorters, coercers, blackmailers, stalkers and harassers. While the New York Penal Law covers these criminal acts as both felonies and misdemeanors, as of the time of this blog entry there is no New York statewide statute covering what is often referred to as “Revenge Porn.” Fortunately, however, thanks to New York City Administrative Code 10-180, Unlawful Disclosure of an Intimate Image, there is recourse for victims of “Revenge Porn” crimes in New York City. In fact, not only can the person sharing your intimate and sexual images without your consent find him or herself charged with a misdemeanor crime (can you say “hello” Rikers Island?), but NYC Admin. Code 10-180 (10-177*3) also provides for civil remedies such as those involving punitive damages, compensatory damages, attorneys fees and injunctive relief so that your harasser ceases sharing and distributing your naked, sexual or intimate images.
A law that without question has a good intent and goal, New York City’s Right of Way law, codified as Administrative Code 19-190, has seen its fair share of legal challenges by criminal defense lawyers throughout the City of New York. Although the law that has criminal sanctions does not apply to the State of New York, those drivers in Manhattan, Brooklyn, Bronx and Queens are within the law’s jurisdiction. A recent Appellate Term Decision from the Second Department did not ultimately address the constitutionality of NYC Admin. Code 19-190, but whether a bare minimum complaint reciting the statute with limited factors sufficiently and legally supports this non-New York Penal Law crime.
Second Degree Aggravated Harassment, New York Penal Law 240.30, is a fairly common misdemeanor crime charged by the NYPD and prosecuted by Assistant District Attorneys throughout the City of New York. A common Domestic Violence crime, but not always a “DV” offense, an arrestee can be prosecuted by means of a trip to Central Booking for up to 24 hours or a Desk Appearance Ticket whereby the accused merely spends a few ours in custody at the precinct of arrest. Simply, none of these scenarios is appealing.
Not a full analysis of all legal challenges and issues associated with NY PL 240.30, the question addressed by this blog entry briefly touches on what constitutes free speech and whether one communication can be grounds for committing Second Degree Aggravated Harassment if it is not a “true threat” of physical harm.