One of the fundamental distinctions in Family Law that often goes overlooked by the lay person and is only truly understood when a Family law attorney or New York child custody lawyer is consulted, is physical vs. legal custody as addressed in New York Family Court Act Article 6. Generally speaking, physical custody has to do with where the child or children primarily reside, and legal custody has to do with decision-making and child-rearing issues. While joint physical is fairly uncommon, due to the obvious practical difficulties for a child in many common circumstances, so-called “joint” legal custody is much more frequently ordered and/or agreed to. To a substantial degree, getting the visitation or “parental access” right is critical to making joint custody work.
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.
As embarrassing a Drunk Driving, DWI or DUI arrest in New York may be, a conviction for any VTL 1192 crime is exponentially worse. Not only is there potential for incarceration and jail as well as significant fines and fees, a plea or post trial conviction for VTL 1192 also will result in a suspension of your license to drive and an installation of an ignition interlock device on your vehicle. In some situations it is not merely the suspension you will have to contend with, but a revocation of your drivers license in New York by the New York State Department of Motor Vehicles or DMV.
Revocation of your license for a first time offender for a DWI crime usually involves the offense of VTL 1192.3, sometimes known as either Common Law DWI or a Refusal DWI. The latter of these “types” of DWI, and the subject of this blog entry, addresses those crimes where you, after being advised of your rights and the consequences of failing to comply with a request to “blow,” refuse to provide a breath sample. More specifically, this blog addresses how, if all, your refusal can be used against you in a criminal prosecution.
The types of drugs that routinely flow through New York City and throughout other New York municipalities range from unlawfully possessed prescription drugs such as Oxy and Adderall to the more common cocaine, heroin, MDAM, Ecstasy and Molly. The law is generally clear and a criminal defense attorney you need not when determining what controlled substances you can (or cannot) possess. For that matter, you neither need a drug lawyer nor your mother to advise you that you can’t have any of these narcotics barring a prescription (or at all) unless your goal is trying to violate a New York drug crime.
You may enjoy getting hopped up, rolling, taking a bump or just getting annihilated and, by all means, that is your decision. It is not my job, as a criminal lawyer, to be your father and lecture you on the ills of drug use and abuse. Its my job to help you when you call me panicked after your arrest. That said, before doing so, just hear me out. Know that there are very real consequences to your actions well beyond those that may land you in handcuffs and before a judge.
Brief pseudo-lecture aside, the purpose of this blog entry is not to address the direct and collateral consequences to drug use and arrests in New York, but to make it clear how low the threshold is for prosecutors to proceed on criminal charges when you are accused of violating New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. In fact, as this blog will make clear, neither Assistant District Attorneys nor police officers need to actually test the drug in any capacity to draft a legally sufficient complaint charging you with this drug crime. What does this mean to you? The law can take you right past Go and directly to Jail in the game of Monopoly that has unfortunately become your life.
In the State of New York a violation is defined as an offense for which a defendant can be sentenced to no more than 15 days in jail. Disorderly Conduct (New York Penal Law 240.20) is a violation of the New York State Penal Code. A Disorderly Conduct conviction can have wide ranging consequences for most people ranging from community service and fees to incarceration (not likely in most scenarios) and damage to a professional career. Disorderly conduct should only be charged when you act in a way that provokes public disorder. Furthermore, you can be charged with Disorderly Conduct as long as you intend to cause “public inconvenience, annoyance or alarm, or recklessly creat[e] a risk thereof.” Therefore, if you do not provoke or intend to provoke, public disorder then a Disorderly Conduct arrest should not stand on its own two feet. This was exemplified in the case of People v. Zuckerberg.
In our last post, we discussed the history and tactics of the Department of Justice’s Medicare Fraud Strike Force. We also talked briefly about the recent Healthcare Fraud nation-wide “takedown.” But as we also mentioned, this was not one giant case involving 90 defendants, but rather dozens of cases, scattered throughout six different cities. Each one of those cases has a different history; a different story. From a practical perspective, it can be instructive to take a look at all the cases charged in a particular Strike Force city to get a feel or a sense of what types of cases are being brought there and how the government investigates healthcare fraud differently in different places. In this installment, we’ll start off by looking at the four cases brought in the Eastern District of New York in Brooklyn.
Not that you’ll find many sympathetic ears to listen to this complaint, but if you are accused of or arrested for a New York DWI or DUI crime, things continue to lean in favor of local prosecutors. Forget the fact that those in government are considering lowering the legal limit for a drunk driving crime to .05 or .06 (I have heard rumors of both), New York courts are making it easier for the police and Assistant District Attorney’s to use previously inadmissible evidence of driving while intoxicated at trial over the objection of New York criminal defense attorneys and New York DWI lawyers. One such example that both you and your criminal lawyer or DWI attorney need to be aware of is the potential admissibility of a portable breath test (PBT) results taken at the time and place of your arrest. This evidence (it can be terribly damning) can and will be a tool for prosecutors to achieve convictions for crimes including VTL 1192.3.
In People v. Carlos Palencia, 1490N-12, NYLJ 1202604831232, at *1 (Co., NA, Decided June 10, 2013), the court addressed the admissibility of the PBT used at the scene of an arrest as proof in People’s direct case. There the defendant was charged with VTL 1192.2. While courts are mixed, many say the PBT can solely be used to establish probable cause for a DUI arrest while other courts are permitting its use as direct evidence of intoxication assuming the proper legal foundation is established first. In an interesting twist, however, the prosecution sought to introduce the PBT results in Palencia for a different reason than those described above. That is, Mr. Palencia did not “blow” into an intoxilyzer (breathylizer) and the data was not needed to established he violated VTL 1192.2 by having a BAC .08 or higher. Instead, the People sought to introduce the evidence as to the defendant’s state of mind. More clearly (in non legal jargon), it was the prosecution’s position that the fact that the defendant knew what he blew at the scene should be used to established the defendant’s state of mind (guilty knowledge) when he refused to provide a legal sample back at the police station. Because he knew he was intoxicated at time one, he refused to blow (according to prosecutors) at time two.
Bribing a public official to get your way in New York–whether it be a police officer in Brooklyn, a New York City councilman in Manhattan or some government official in Westchester County– can easily result in a felony conviction. While it is undeniable that at certain points in New York’s infamous history bribing public officials was an accepted practice, New York has come a long way since the days of “Boss Tweed” and the corruption of Tammany Hall. Most New Yorkers don’t necessarily need an accomplished New York attorney to tell them what a bribe is, but clarifying the legal definition of Bribery in the New York Penal Law is something that should be fully examined with the assistance of a New York criminal lawyer. Article 200 of the New York Penal Code sets forth “Bribery Involving Public Servants And Related Offenses.” A person is guilty of Bribery in New York when they offer or give any benefit to a public servant with an understanding that the public servant will be influenced and thereby change their action (e.g. a vote, an investigation etc.). In other words, if you give money to a councilmen influencing him to vote to approve your zoning change, you have committed Bribery under New York law. The degree of Bribery (Third Degree Bribery – NY PL 200.00; Second Degree Bribery – NY PL 200.03; or First Degree Bribery – NY PL 200.04) depends on the value of the bribe given, as well as the purpose of the bribe. For instance, any bribe made for the purposes of influencing an investigation, arrest, detention, prosecution or incarceration of a class A felony will automatically constitute Bribery in the First Degree. This is a class B felony with a mandatory term of incarceration punishable up to a maximum of twenty-five years. As you can see, Bribery in New York City and across the State is not to be taken lightly.
Bribery is often times a white collar crime and seen in the context of a businesses or individual trying to influence politicians or other City agencies to gain a profit for themselves. Such corruption is not just a thing of mafia movies and thrilling novels (although, Bribery is often associated with Enterprise Corruption). A great example of such a Bribery case in New York is People v. Mitchell, 40 App. Div.2d 117 (1972). Mitchell worked for a garbage disposal company which held the contract for the City of Troy. Mitchell met with the Mayor of Troy, offering $500 a month if the mayor used his influence to keep the garbage contract with Mitchell’s company. Wisely, the Mayor recorded the conversation and thus Mitchell was convicted of Bribery in the Third Degree (NY PL 200.00). A pretty clear cut case of bribery. Nonetheless, notice here that Mitchell only made an offer hoping that the mayor would use his influence to get others to vote along with him. There was no money exchanged and it was not a guarantee that Mitchell’s garbage company would receive the contract. This illustrates that one can be convicted of Bribery with just an offer, hoping to garner influence from the public servant.
According to reports, Yaasmin Hooey, the former finance director for the Girl Scout Council of Greater New York, was arraigned today in Manhattan Supreme Court after the NYPD arrested her on an open indictment charging Grand Larceny and Embezzlement. It is alleged that Hooey skimmed over $300,000 by depositing 65 checks from the Girl Scouts and depositing those checks in her account. Trying to be “cute” and citing the obvious while also being firm with his words, New York County District Attorney Cyrus Vance stated, “Nonprofits are not personal cookie jars.” Although it is easy to jest, the allegations are no laughing matter. In fact, among many felony charges, Hooey faces Grand Larceny in the Second Degree. A conviction for this “C” felony crime is punishable by up to fifteen years in prison. Compounding matters, it is alleged that Hooey also failed to report $142,000 in New York State taxes.
According to the Manhattan District Attorney’s Office, Hooey did not use the allegedly stolen funds to tend to a sick family member or some other noble cause. Instead, Metro-North Railroad tickets, a gym membership, and clothing, cosmetic laser procedures, and cruises were paid for from the ill gotten gains. Prosecutors further claim that Hooey spent $13,000 on a diamond ring in over $18,000 at bars and restaurants. Unfortunately for Hooey, prosecutors’ jobs have been relatively easy as wires and checks were deposited from Girl Scout accounts into personal accounts. In other words, the “paper trail” was not that long.
In common parlance, if someone stole from you, you would likely say that you had been robbed. However, under New York law, “Robbery” is more than just taking property from another (generally defined as larceny); Robbery is forcible stealing. To be convicted of Robbery (New York Penal Law Sections 160.05, 160.10, and 160.15) throughout the New York City area, the prosecution must prove that the defendant used physical force, or threatened the use of immediate force. This is true whether you are arrested for Robbery on the glitzy streets of Manhattan’s Upper East Side or the gritty streets of Brooklyn. In other words, if someone leaves their pocketbook on a coat hanger at a bar and you snatch it up, you have not committed robbery. On the contrary, if you punch that same person in the face at a bar and grab the pocketbook, then you have committed Robbery. Unlike larceny, all Robbery charges (Robbery in the First, Second, or Third Degree) are felony charges (classes “B”, “C”, and “D” respectively) with terms of prison ranging up to 25 years.
Of course, in the examples above determining whether force was used is as simple as determining whether the defendant’s fist struck the victim’s face. But what kind of evidence is sufficient to establish the element of “immediate threat of force” in a New York criminal court. This is an important distinction because an experienced New York criminal lawyer may be able to reduce a robbery charge to a lesser petit larceny charge, if they can show that, in fact, no threat of harm was used. This is precisely what the criminal attorney in People v. Spencer, 255 A.D.2d 167 tried to do. Spencer was charged with Robbery in the Second Degree (NY Penal Law section 160.10), but his attorney claimed that no threat of force was used and therefore Petit Larceny (NY Penal Law Section 155.25) was the only legally viable charge. The court found that the evidence showed that the defendant intimidated the victim standing “chest to chest” with the victim, and backing him up against a subway pole. The court found that the defendant’s actions amounted to an “immediate threat of physical force.” The Spencer case demonstrates that an immediate threat of force will be inferred from threatening behavior. A defendant does not necessarily have to make an actual verbal threat or perform an overt threatening action (like a threatening fist pump). Instead, the court will analyze the circumstances as a whole and determine, as it did in Spencer, whether a normal person would fear for immediate physical danger from the actions taken by the defendant.