Other Crimes

December 3, 2013

Potential Criminal Charges for MTA Train Crash Conductor: What Crimes Wiliam Rockefeller May Face if Arrested

While there is likely a significant amount of investigation that has yet to occur, the sad reality is that many innocent people were terribly injured and died when a Metro North train from Poughkeepsie skid, rolled and tumbled off the tracks near the Hudson Line’s Spuyten Duyvil station in The Bronx. With Engineer William Rockefeller at the helm of the train allegedly barreling over 80 mph in a 30 mph zone, reports indicate that the Mr. Rockefeller applied to brakes too late causing the death and devastation. Although much more information is needed to fully understand what transpired in the Bronx, and I am not aware of whether or not Rockefeller had alcohol or drugs (prescription or otherwise) in his system, Rockefeller may be in for a long drawn out legal battle not just from those who may pursue civil suits against him and the MTA, but from a potential arrest and indictment by the Bronx County District Attorneys Office.

Before proceeding, it should be very clear that I have no information beyond what is provided through local media outlets. Further, in no way am I insinuating Rockefeller is guilty of any crime. Fortunately, every individual has the presumption of innocence – not guilt – on his or her side. Having said that, if a prosecution is brought against Rockefeller and the Bronx District Attorney seeks an indictment, what are the potential criminal charges?

November 26, 2013

Is Proper Service Necessary in Order to Find a Later Violation of a Restraining Order: Understanding NY Second Degree Criminal Contempt

by Jeremy Saland

One of the more straightforward arrests and prosecutions handled by Assistant District Attorneys in New York City as well as some of the neighboring counties is Criminal Contempt in the Second Degree. Second Degree Criminal Contempt, pursuant to New York Penal Law 215.50(3), basically occurs or is committed when you violate the language of an order of protection or what is also referred to as a restraining order. For example, if a judge of the Criminal Court, Supreme Court, County Court (outside New York City) or Family Court issues an order of protection in favor of either a complainant or a petitioner, you (as a defendant or respondent) must abide by the language of that order. If that order of protection states on its face that there can be no contact what-so-ever and you call or stop by the other party’s apartment to say “hello” or apologize for past misconduct, you will violate the order. To be very clear, any contact beyond what is permitted, whether it be for kindness or crime, will be the basis for violating an order of protection.

Now that you have a general (yet non legal) idea as to what constitutes Criminal Contempt in the Second Degree, NY PL 215.50, the remaining substance of this blog entry will address People v. Jakubowski, 2013KN044821, NYLJ 1202627740970 (Crim., KI, Decided November, 12, 2013) where the issue was not necessarily what caused the violation of the order of protection, but what constituted a defendant’s knowledge of its existence in order to determine whether a violation occurred. In that case, the defendant was personally served with an order of protection by the victim/complainant in February. In June, the defendant “made eye contact with [the complainant], [gestured] with the [his] finger across [his] neck in a throat-slashing manner, and [took] photographs of [complainant]” – which was in violation of the order of protection. Subsequently, the police arrested the defendant and he was charged with Criminal Contempt in the 2nd Degree (Penal Law 215.50(3)) and Harassment in the 2nd Degree (Penal Law 240.26(1)). In response, the defendant made a motion to dismiss these charges.

November 17, 2013

Acting in Concert & Accomplice Liability: How Far Must You Go to be Liable for Another Person’s Conduct

by Jeremy Saland

New York, like all other states, has its own means to determine whether individuals can be arrested and charged as co-defendants for a particular crime. Obviously, merely being present when a crime is committed by another person is not legally sufficient enough to establish guilt beyond a reasonable doubt (although, do not be shocked if you are arrested and later have to fight to have the matter dismissed). Because presence alone is not enough, what do New York criminal defense attorneys review to determine if an accused’s conduct reaches the level of acting in concert or accomplice liability in any New York arrest?

Addressed in the context of a marihuana (marijuana) sale, In People v. Ramirez, 2013NY046507, NYLJ 1202624767720 (Crim., NY, Decided September 27, 2013), a separately-charged individual sold marihuana to an undercover officer and then, according to another police officer, that individual handed money to the defendant as “part of the above-mentioned transaction.” Afterward, a police officer attempted to place the defendant under arrest, but the defendant ran 1-½ city blocks, refusing to be handcuffed. The defendant’s actions resulted in the arresting officer sustaining injuries. Subsequently, the defendant was charged with Criminal Sale of Marihuana in the Fourth Degree (New York Penal Law 221.40), under the theory he acted in concert with or as an accomplice to the separately-charged individual (the principal), and Resisting Arrest (New York Penal Law 205.30). While the defendant made a motion to dismiss both charges, the court only dismissed the marihuana crime.

November 4, 2013

Unlawful Surveillance – PL 250.45: From “Up Skirts” to Bathroom Recorders – Must All Defendants Register as Sex Offenders Upon Conviction

by Jeremy Saland

Every criminal arrest or conviction has a collateral consequence. Obviously, some are more severe than others. While an arrest can be humiliating, a conviction can strip us of many rights we take for granted, destroy our ability to continue in our career or set a chain of events into action that ultimately result in our deportation. One crime that often has these secondary consequences is the New York felony crime of Second Degree Unlawful Surveillance. Unlawful Surveillance in the Second Degree, New York Penal Law 250.45, is routinely viewed by prosecutors in an extremely different light than the accused (as noted by the intensity of these prosecutions). While a defendant may argue this was a crime of opportunity by an otherwise “good” person, a police officer, detective or Assistant District Attorney, is more likely to view this crime as a premeditated and malicious act. Yes, your criminal lawyer or Unlawful Surveillance defense attorney may seek to convince a prosecutor that the recording was one act, a prosecutor may counter that it was many acts. In fact, it is fairly common for prosecutors to execute search warrants on mobile phones and other recording devices. When or if they find evidence of the current arrest charge or past acts, its is equally common for prosecutors to stand firm with a felony charge.

Irrespective of the above arguments in an Unlawful Surveillance case by either your criminal lawyer or the prosecutor, avoiding a felony conviction is critical. Yes, a felony can land in prison, but long after your case is over, NY PL 250.45 has significant ramifications. New York State Correction Law § 168-a[2][e] establishes that a person convicted of subdivision two (2), three (3) or four (4) of New York Penal Law 250.45 is a “sex offender.” As such, if you are convicted, like a rapist or child molester, you must comply with the New York State Sex Offender Registration Act (“SORA”). While your level may not be as high as those individuals convicted of the crimes I just mentioned, to a certain extent, registration is registration. The level wont matter to your neighbors, employer, etc. You are deemed a sexual predator by society.

October 30, 2013

When Sharing Cigarettes is a Crime: The Low Level Threshold for Prosecuting Endangering the Welfare of a Child (NY PL 260.10) in New York

by Jeremy Saland

Whether its the Administration of Children’s Services (also called “ACS”), the New York City Police Department or a prosecutor from Manhattan to Brooklyn or anywhere in the State, being accused of a crime that endangers or threatens a child’s well being is a serious matter. Arguably, even the mere allegation without an arrest for Endangering the Welfare of a Child (New York Penal Law 260.10) is enough to brand you in your community, neighborhood or building with a “scarlet letter.” Its is safe to say that at the first sign of any investigation or impending arrest, consulting with your Child Endangerment lawyer or criminal defense attorney may be one of the smartest moves you can make. After all, even your innocent and reasonable statement in your own defense can be construed as something more sinister.

Beyond discussing the allegations of child neglect or even a more serious criminal Assault against a child with your New York criminal defense attorney, educating yourself on the criminal statutes and how courts interpret the laws is also critical. What is the threshold for Endangering the Welfare of a Child? How far must you go and must your actions be intentional? The following recent case decision may not answer every question you have about this “A” misdemeanor, but certainly sheds light on how non-violent conduct can land you in jail for up to one year.

April 8, 2013

Attempted Endangering the Welfare of a Child: When Does Your Conduct Cross the Criminal Line for a NY Arrest

by Jeremy Saland

An arrest in New York for Endangering the Welfare of a Child is one of the more serious misdemeanor crimes in the New York Penal Law. Generally speaking, its not that one “A” misdemeanor is more serious than another (all “A” misdemeanor crimes are punishable by as much as one year in jail), but when an crime, charge or arrest involves children, both courts and prosecutors pay much closer attention. Add this practical reality to Endangering the Welfare of a Child prosecutions and you will quickly realize that the police (NYPD and others), may be inclined to make an arrest for New York Penal Law 260.10 first and then ask the deeper and more relevant questions later. Whether this is the situation for your NY PL 260.10 arrest, a New York criminal lawyer is likely a necessity not only to get you limited bail or released from custody, but to ascertain whether the allegations against you form a legally sound complaint of a Child Endangerment crime.

In terms of your own New York Child Endangerment lawyer or NYC criminal defense attorney implementing the best defense, he or she must have a firm grasp on the law. Certainly, it would help if you, the accused, had the same comprehension. Boiled down to its basic elements, Endangering the Welfare of a Child occurs under the first subsection (NY PL 260.10(1)) when you act knowingly in a way that is likely to be injurious to a child (who is less than 16 years old) in terms of their physical, mental or moral welfare. Alternatively, you direct or authorize that child to engage in an occupation where a substantial risk or danger to that child’s life or health is exists.

March 28, 2013

Understanding Official Misconduct & Obstructing Governmental Administration with a “Brady” Twist: NY Penal Law Sections 195.00 & 195.05

by Jeremy Saland

Being charged with and arrested for any misdemeanor crime in New York is no walk in the park. A New York criminal defense attorney need not advise you of this obvious fact. The reality is, any accusation has significant and collateral consequences. When the crimes involve some alleged form of fraud or dishonesty involving the government, the offense looks even uglier. Two crimes that fit in this mold are Official Misconduct, New York Penal Law 195.00 and Obstructing Governmental Administration in the Second Degree, New York Penal Law 195.05. As ugly as the crimes may be, however, an arrest for either PL 195.00 or PL 195.05 does not equate to guilt beyond a reasonable doubt.

Although I have blogged and drafted materials on both of these crimes, before addressing a recent court decision it is worth briefly explaining the parameters and definitions of these offenses. To be guilty of Official Misconduct pursuant to NY PL 195.00, one first must be a public servant. Further, one must have the intent to obtain a benefit or deprive another person of a benefit. In addition to these elements, as charged in the case discussed below and according to subsection two of this crime, one must knowingly refrain from performing a duty that one is imposed by law or clearly inherent in the nature of one’s office.

February 26, 2013

Falling Like a House of Cards: Resisting Arrest Dismissed as a Result of Legally Insufficient Claims of Disorderly Conduct

by Jeremy Saland

One of the more common ways the police and prosecutors can amplify an otherwise insignificant event is by alleging, and ultimately arresting a person for, Resisting Arrest (New York Penal Law 205.30) or Obstructing Governmental Administration in the Second Degree (New York Penal Law 195.05). That is not to say that these crimes are not legitimate offenses and prosecutions are not warranted, but that the conduct for which a person is accused may not based on sound law. To be clear, an arrest for NY PL 205.30, for example, can be established with an accused merely pushing away and refusing to place his or her hands where they can be handcuffed. Despite what an “average” person may believe, to commit Resisting Arrest, one need not become violent or cause injury to an officer. However, before the crime of Resisting Arrest can happen, the reason for that arrest must be lawful. Simply, you cannot be convicted of Resisting Arrest if your underlying conduct is lawful. It is black letter law that “[i]f force is necessary to prevent an unlawful arrest, then force may be employed…” See People v. Cherry, 307 NY 308, 311, (1954) (Having said that, one should not violently or physically oppose the police because one believes one’s conduct is lawful. The courts, not the accused or the police, ultimately make the decision as to the legality of an arrest).

Although I have written on this topic multiple times (a search for “Resisting Arrest,” “205.30” and following the link above will reveal more content), a recent decision once again affirms the above rule. In People v. Coley 2013 NY Slip Op 50167 – NY: County Court, Criminal Court 2013, the defendant was accused of Disorderly Conduct in violation of New York Penal Law 240.20 by standing “in the middle of the above location, a public sidewalk, impeding the flow of pedestrian traffic.” After attempting to issue the defendant a summons for his failure to leave the location, the defendant could not produce any identification. The police attempted to handcuff the defendant who “flailed his arms and twisted his body.”

January 22, 2013

Long Island Dentist Arrested for Reckless Endangerment: Is Intoxication Automatic Proof of Recklessness during any Medical Type Procedure

by Jeremy Saland

While the Suffolk County District Attorney’s Office will not be resolving the age old question of whether a dentist is in fact a “doctor” (I do not want to be accused of being an antidentite by-the-way), DA Thomas J. Spota’s Herculoids (a little homage to Hana Barbara, folks), will soon be addressing whether a dentist can be criminally reckless if he or she performs procedures on a patient while intoxicated. According to reports, police arrested Robert B. Garelick, a Lindenhurst dentist, for Second Degree Reckless Endangerment (New York Penal Law 120.20) after he was accused of this exact conduct.

An “A” misdemeanor, Reckless Endangerment in the Second Degree is punishable by a year in jail. You are guilty of NY PL 120.20 if you recklessly engage in conduct which creates a substantial risk of serious physical injury to another person. To be clear, your conduct is not sufficient if it “may” or can “possibly” cause any type of injury, but creates a substantial risk of a physical injury that is legally classified as serious.

November 26, 2012

New York Penal Law 190.23: False Personation & Legally Sufficient Criminal Complaints

by Jeremy Saland

Sometimes, when we are frustrated, we tend to get “cute” or “fresh.” While talking back to your mother or a friend may get you further into an argument, doing the same with the police can make a bad situation exponentially worse. Its not just a bad attitude that can aggravate a legal situation, but should you give false information to the police in New York upon your arrest, you may find yourself charged with False Personation. A “B” misdemeanor crime punishable by jail, False Personation (New York Penal Law 190.23) is a potentially serious offense.

Fortunately, as serious a crime that False Personation may be, not all bogus answers can lead to a criminal prosecution. You are guilty of NY PL 190.23 if you are advised of the consequences of misrepresenting your name, date of birth or address to the police, you actually misrepresent that information with the intent of preventing the officer from ultimately obtaining the accurate information. While the type of behavior that is criminal seems fairly straight forward, a recent New York Criminal Court decision out of Brooklyn sheds some light on the issue of how prosecutors prove this crime.