While I certainly do not condone violence, if you punch someone two or three times in the face with a clenched fist, bloody up their mouth and cause them to go to the hospital for a stitch or two, an allegation of Third Degree Assault would likely survive a criminal defense attorney’s motion to dismiss the charge of New York Penal Law 120.00(1). No, it doesn’t mean you will not or cannot have defense at trial (self defense for example), but from a legal perspective your conduct satisfies the elements of the crime almost on its face. Again, you may still try, but seeking a dismissal for legal sufficiency will likely be quite difficult. Despite this, not all crimes or criminal conduct is so clear. When a court has to examine words used, the intent of those words and the reasonable implications of your speech, the court has much more to juggle than determining your intent when you balled up your fist. This more difficult type of review happens with a greater degree of regularity in cases involving Second Degree Aggravated Harassment pursuant to New York Penal Law 240.30. A class “A” misdemeanor, Aggravated Harassment in the Second Degree is a crime often seen, but is not exclusive to, New York Domestic Violence cases. Where an arrest or allegation does not involve a familial or intimate relationship, the police will consider issuing the accused a Desk Appearance Ticket. Regardless of how a PL 240.30 case is prosecuted, words, and how they are reflected in a criminal court complaint, matter. This blog entry will address how words and statements that may seem threatening on their face may not in fact violate certain sections of the New York criminal law.
New York Penal Law 120.00 is New York’s misdemeanor Assault crime. As a result, any time a complainant or alleged victim makes an claim that another person struck, hit, punched, etc., him or her, prosecutors will routinely add Third Degree Assault to the list of crimes on a criminal court complaint. Similarly, Second Degree Harassment, New York Penal Law 240.26, is a violation that is not a legal “lesser offense,” but an offense nonetheless that Assistant District Attorneys will throw at the accused. Because PL 120.00, a misdemeanor carrying a sentence of up to one year in jail, is a gravely concerning charge whether by Desk Appearance Ticket or full on arrest and processing, it is imperative to do your best to challenge your arrest at every stage of the criminal process well before you on trial. One of the means to do so at the earliest stage is for your criminal defense attorney to file a motion arguing that the complaint against you is legally of facially insufficient to support the elements and crime of Assault in the Third Degree. On avenue your criminal lawyer may pursue is arguing that on the face of the complaint the prosecution failed to establish that as a result of your alleged actions, even if true, you caused the “victim” to suffer a physical injury and substantial pain.
It is well settled, and worth getting out of the way right from the start, that operability or a working weapon is generally an essential part of a Criminal Possession of a Weapon charge and crime pursuant to New York Penal Law Article 265. In substance, this means that if a person is accused of possessing a firearm illegally, one of the central elements it that the firearm – gun, pistol, revolver – actually be capable of letting off a shot. This is most easily confirmed through a ballistics test by the police department. If the firearm is incapable of shooting and the ballistics test confirms this failure, then the firearm will not qualify as a firearm for the purpose of certain sections of Criminal Possession of a Weapon. Should it not be operable, your criminal defense attorney would move for a dismissal of the Grand Jury indictment or the criminal court complaint.
While the above may seem great to an accused person, his or her criminal defense lawyer may have some bad news . Yes, an indictment or criminal court complaint may not be legally sufficient, for example, charging New York Penal Law 265.01, New York Penal Law 265.02 or New York Penal Law 265.03, but unless you are solely charged with possessing a weapon or dangerous instrument, does inoperability mean that all other crimes that you face that are associated with that weapon fail as well? The short answer is a resounding “no.”
A gun is not always a gun in the eyes of the law. A firearm is not always a firearm as it is defined by New York criminal court judges. An arrest for a can of mace, you guessed it, is not always a can of mace for the purpose of New York Penal Law 265.01. Confusing, right? Maybe not. A critical factor or element to weapon crimes in New York is whether or not that particular weapon is operable. It is not merely enough to possess a firearm, a “dangerous knife” or other “dangerous or deadly instrument” with the intent to use it against another person if operation is required. Certainly, these are elements to PL 265.01(2), but as your criminal lawyer should be able to explain to you, if the object in question is not operable, then you very well could, and likely should, have grounds to seek a dismissal of the Criminal Possession of a Weapon charge for which you were arrested.
A few years ago the New York State Legislature tightened up the Second Degree Aggravated Harassment crime found in the New York Penal Law. Whether by Desk Appearance Ticket in Manhattan or by Domestic Violence Arrest in Brooklyn, the law was no longer vague. More specifically, addressing solely subsection (1)(b) or New York Penal Law 240.30, it is a class “A” misdemeanor if you have an intent to harass another person and you cause a communication to be initiated by telephone, email, or any electronic means. This communication must be a threat to cause physical injury or unlawful harm to the person or property of that person or a member of his or her family or household. Moreover, when making your communication you should reasonably know that it will cause a reasonable fear of such an injury or harm.
Well, if that isn’t wordy enough, let’s try to get right to the point of this blog. Simply, what type of speech or statements violate PL 240.30(1)(b) and when does your language necessitate the assistance of a criminal defense attorney to challenge the legal sufficiency of a complaint you face in a New York criminal court?
New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon, delineates the type of weapons that are per se, aka, automatically, weapons in New York based on the law no matter how you intended on using them. If you knowingly possess the weapon, then you are guilty. No, you are not merely walking into a courtroom with your criminal lawyer and pleading guilty to a misdemeanor crime that is accompanied by a sentence of up to one year in jail, but you are guilty barring certain defenses, such as challenging the probable cause for your arrest and how you were searched. This is because there is a strict liability standard at trial assuming the prosecution proves their case beyond a reasonable doubt. Looking at it slightly differently, you always have the ability to challenge an arrest on legal, factual, evidentiary, and mitigation grounds, but without any defense, a jury or judge can find you guilty if the People meet their burden.
Putting aside this strict liability standard and whether or not the NYPD and District Attorney should be prosecuting honest, hard working, regular people who legally purchase one of these gravity knifes at Home Depot, Amazon, a local sporting goods store or any other retailer having no reason to believe that in New York it is a crime to possess such a “weapon,” other types of blades and objects can be considered dangerous instruments and weapons depending on the matter they are possessed or used. The statutory authority to prosecute these crimes is also Fourth Degree Criminal Possession of a Weapon, but is found in New York Penal Law 265.01(2). This entry will address a recent court decision examining the legal sufficiency of a PL 265.01(2) arrest and prosecution in connection to the possession of a box cutter.
I’ve been arrested for Second Degree Criminal Contempt. I don’t understand why I am being prosecuted for New York Penal Law 215.50. How can the police arrest me or the DA prosecute me without naming the victim or protected party? While I may have posed those questions as a New York criminal defense attorney and not an accused, they are quite reasonable ones to ask. After all, if the complaint against you is not legally sufficient regardless if you’re charged with NY PL 215.50 or any other crime, then ultimately your criminal defense lawyer will likely file a motion to dismiss or seek the dismissal of your criminal case on some other procedural grounds. Generally speaking, however, one of the common difficulties securing a dismissal of a Second Degree Criminal Contempt arrest and charge is that even where a victim is not compliant either a third party or other evidence can corroborate there was contact in violation of a court order. This evidence can come from a friend who observed a defendant having contact with a victim or even text messages or phone records reflecting the same. After addressing the crime of PL 215.50, the purpose of this particular blog entry is to provide an example of an insufficient criminal complaint where conclusions by the NYPD did not satisfy the burden that prosecutors are required to reach.
Robbery is one of the most serious crimes in the New York Penal Law. Criminal defense attorneys in New York see Robbery crimes come in a variety of different scenarios and allegations. Sometimes a weapon is used such as a firearm or a knife while other times a victim suffers some form of a physical or serious physical injury. Depending on whether or not there is an injury and even if multiple robbers are involved, the crime of Robbery can elevate from Robbery in the Third Degree to Robbery in the Second Degree or Robbery in the First Degree. The consequences are quite serious for an accused because a Third Degree Robbery conviction for PL 160.05 is not a violent crime under the New York Penal Law and does not carry a mandatory term of prison for a first time offender. Second Degree Robbery and First Degree Robbery, pursuant to PL 160.10 and PL 160.15 respectively, are mandatory minimum crimes with sentences starting at three and one half and five years in prison.
The goal of this blog entry is not to dissect and analyze the differences between New York’s Robbery statutes, but to examine the threshold of physical force that must be breached for a crime to go from one of a simple non-violent larceny to a more grave Robbery offense.
I am not a free lawyer, but that does not mean I do not handle pro bono work or represent individuals who do not have the means to retain an experienced New York criminal lawyer. Simply, everyone needs and should be entitled to quality representation by an attorney especially in the context of a life altering arrest. After meeting with a woman who was unquestionably the victim of domestic violence in both criminal and “merely” mentally abusive form, Crotty Saland PC took her case in New York City Criminal Court. Despite the public lawyer assigned to her case advising that she had a difficult path ahead, our client maintained her innocence in the face of charges including Third Degree Assault (NY PL 120.00) and Second Degree Aggravated Harassment (NY PL 240.30). While it was unlikely she would see any jail time even though the law allows up to one year in prison, any finding of wrongdoing or assertion that she assaulted and harassed her partner was unacceptable. Fortunately, through diligence, time and effort, Crotty Saland PC secured a complete dismissal of all charges.
Criminal lawyers or not, we can all argue and address the intentions and practical applications of the Second Amendment. Further, there are many of us who would agree that an AR-15 is not a reasonable weapon to have in your home or for hunting. That said, most weapon and gun crimes in New York are not of the assault rifle variety and tied to a complex Second Amendment issue. Each and every illegal firearm case prosecuted in New York may share certain traits, such as the potential for violating Second Degree Criminal Possession of a Firearm, but they are all far from the same. In the eyes of the law, however, while facts may be different, whether you possessed a revolver with the serial numbers scratched off, a glock in an ankle holster you purchased in cash from a guy you met on the street, or you are a licensed firearm owner visiting New York from Alabama, Texas, Ohio, Florida or another state, pistol, gun and weapon crimes pursuant to New York Penal 265.03 are offenses that carry a minimum of 3.5 year in prison upon conviction. Make no mistake. New York means business when it comes to illegal firearm possession and on its face an arrest for PL 265.03 is one of the most serious offenses in the New York criminal code. While everyone is entitled to a defense, police must follow proper procedure and prosecutors maintain the burden of proof, if you are an otherwise legal firearm owner arrested for a felony relating to that weapon, ensuring that you are not lumped into the same category as blatant abusers of the law who may possesses their guns for malicious purposes is critical. In the arena of a firearm arrest at JFK Airport or LaGuardia Airport in New York City’s Queens County, this could not be more true.