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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.

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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.

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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.

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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.

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The New York Penal Law provides for in excess of ten different subsections of felony Assault in the Second Degree pursuant to section 120.05. While the most common felony Assault crimes handled by New York criminal lawyers are those involving the intent and actual causing of serous physical injury or the use of a dangerous instrument to cause a physical injury (NY PL 120.05(1) and NY PL 120.05(2) respectively), there are many more equally serious crimes set forth in this section. Unfortunately for those attorneys who are not regular practitioners of criminal law or focused in the criminal courts of New York, these offenses may “unexpectedly” pop up in a case before he or she is prepared to represent the client in an Assault arrest or indictment.

New York Penal Law 120.05(6) is one of these less common, but equally serious, subsections of Assault in the Second Degree. According to NY PL 120.05(6), you are guilty of Assault in the Second Degree if either during the course of committing, furtherance of or immediate flight from a felony, you cause physical injury to another person. Additionally, if another participant in the felony causes physical injury to another person, then you are also guilty of Assault in the Second Degree.

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Although legal case decisions establish precedents that New York criminal defense attorneys can sink their proverbial teeth into when attacking a criminal case in New York City or elsewhere, sometimes the practical value of that decision is limited. After all, if the facts or evidence do not establish the point your criminal lawyer is seeking to exploit, the particular legal decisions has limited value. In the arena of New York Desk Appearance Tickets and arrests for gravity knives, pursuant to New York Penal Law 265.01, a decision relating to two companion cases will hopefully be valuable in both the legal and practical context.

The issue raised before the Court of Appeals in the context of a gravity knife arrest or Desk Appearance Ticket was what is necessary to establish an officer’s reasonable cause to believe that the accused possessed a gravity knife as opposed to some other knife or blade? In the two cases, People v. Fernandez and People v. Brannon, the Court of Appeals held (in my own words of course) that in order to establish the reasonable suspicion, there must be articulable factors, but not absolute certainty, allowing the officer to believe that the item in question was an illegal gravity knife as opposed to some other type of blade.

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From shoplifting and drug possession to assault and possessing forged instruments, the New York Desk Appearance Ticket lawyers and former Manhattan prosecutors at Saland Law PC routinely handle Desk Appearance Tickets (D.A.T.s) issued in New York City arrests. While Desk Appearance Tickets are routinely issued to those with verifiable addresses in the New York City area, that is not always the case. Fortunately, the police will occasionally give a D.A.T. to a foreign national with a temporary local address. While this courtesy prevents those arrested from being forced into “the system” for up to 24 hours, it also often creates a future issue that requires the assistance of NYC criminal attorney.

The End of Vacation and Expiring Visas

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Dominque Strauss-Kahn, the French national and former head of the IMF, may be celebrating his own Independence Day accompanied with a display of fireworks that would revival any July 4th celebration. According to the New York Post, DSK could “walk” as early as his next court date after Manhattan prosecutors have come to realize there are major credibility issues with the maid from the Sofitel. Not only would a dismissal call into questions the zealousness of prosecutors who rushed into the Grand Jury to obtain an indictment, but the grand finale could have both political and financial ramifications for many parties involved. The encore to this international spectacle would be the consequences of a perceived gaffe on public confidence.

According to the New York Post, a source familiar with the investigation by the Manhattan District Attorney’s Office stated that “[W]e all know this case is not sustainable. Her credibility is so bad now, we know we cannot sustain a case with her.” If recent stories and articles can be believed, this revelation by DA Cyrus Vance’s team seems reasonable. There have been reports in various media sources that the maid’s conversations with an inmate on Rikers were recorded where it was learned that she was seeking to benefit financially from the arrest. Furthermore, allegations that the maid was “servicing” DSK voluntarily and has done so or has tried to to so with other customers recently came to light. If these claims were not enough, reports have further asserted that the maid had numerous accounts with significant deposits that could be tied to “improper” activities. Should have or could have prosecutors known this before heading into the Grand Jury? I do not know the answer, but this may only be the beginning of what appears to be an exoneration and vindication for DSK and a significant blemish for the fabled Manhattan District Attorney’s Office.

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When all the criminal laws in New York are reviewed, Trespassing in the Third Degree, pursuant to New York Penal Law section 140.10, certainly is not one of the more complex laws. Having said that, it does not mean that complex legal issues will not arise for both New York criminal defense attorneys or prosecutors. Generally, one is guilty of Criminal Trespass in the Third Degree when he or she knowingly enters or remains unlawfully in a building and that property or building is fenced in, enclosed in a manner to exclude intruders or is a public housing project with the rules “conspicuously posted.” Not a complete list of all means where one can be charged with Trespassing, the question posed in this entry is whether or not merely entering and exiting a housing project after five minutes is sufficient to establish the basis to ultimately stop, question and arrest a person. Fortunately, a Brooklyn Criminal Court judge recently answered this question.

In People v. Ortiz, 2010KN086039, NYLJ 1202495789148, a police officer accused a young woman of Criminal Trespass in the Third Degree. After going through the arrest and trial process, the case proceeded to hearings where a judge determined whether or not probable cause existed to arrest the accused.

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No criminal lawyer can say they have heard it all before (there is always a new and interesting wrinkle popping up in a case somewhere), but one thing is fairly consistent within the walls of the New York City courts. The judges, prosecutors and criminal defense attorneys from Manhattan to Brooklyn and Queens to the Bronx routinely use their own unique language. While it certainly is not Cantonese, Greek or Hebrew, for most of those people charged with a crime, it could just as well be. While the following is far from a complete list of “criminal lawyer slang,” it should at least be somewhat educational in its scope and address genuine legal terms. Obviously, consult with your own New York criminal lawyer as to your specific case and how these terms may or may not apply.

ACD

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