In the age of #Metoo, an important movement long time coming, there can be unforeseen consequences when vigorously supporting gender-based misconduct without stepping back to thoroughly examine an accusation. Simply, allegations that lack sufficient corroboration or answers to reasoned questions should hold no more water than those in other contexts. As much as we want to believe any assertion of wrongdoing is legitimate, sometimes such claims are subjectively “right” because a complainant perceives it as such or they are completely fictitious. Regardless, whatever the case may be, a critical analysis of the evidence and facts tells quite a different story. For a recent client of the New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC, such a scenario played out in a New York City Criminal Courts. After being contacted by the NYPD, our client self-surrendered for his arrest and prosecution by the District Attorney where the latter charged him with, among other offenses, Stalking in the Fourth Degree, New York Penal Law 120.45. Fortunately, and thanks to the skill, diligence and advocacy of Crotty Saland PC, a judge acquitted our client of all charges after trial.
According to multiple reports, initially broken by courtroom sleuth and NY Daily News reporter, Shayna Jacobs, Harvey Weinstein is set to turn himself in on Friday to the Manhattan District Attorney’s Office for arrest and prosecution. Although it is not clear at the time of this writing whether the infamous movie mogul is being charged by way of a felony complaint or indictment, the latter being worse than the former, the notoriety surrounding Weinstein’s alleged sexual predation and his personification of #Metoo have come back to bite him the proverbial ass. Regardless of what ultimately happens, and I remind everyone that as ugly as the allegations have been he is entitled to the same presumption of innocence as any one of us, if Lucia Evans is the complainant for forced oral sex, there are numerous sex crime related felonies and misdemeanors that the disgraced filmmaker may or will likely face. Again, I have no direct knowledge of who the victims might be, what information, if any, prosecutors presented to a Grand Jury or drafted on a felony complaint, or what the evidence the District Attorney possesses. As such, the potential crimes address in this blog may be completely or partially accurate and are, at this time, based on various historical and current news reports.
By no means are multiple allegations proof of criminal conduct nor any wrongdoing whatsoever, but the claims against Eric Schneiderman, who only about an hour prior to drafting this blog served as the New York State Attorney General and chief law enforcement officer of the Empire State, are quite serious. Deserving of the same due process and presumption of innocence, what, if any crimes could Mr. Schneiderman face if prosecuted by the Manhattan District Attorney’s Office should any of the four woman, and claimed victims of his alleged aggression, pursue criminal charges? Putting aside the conflict that might arise due to the fact that Governor Andrew Cuomo recently tasked former Attorney General Schneiderman with investigating District Attorney’s Vance’s handling of the Harvey Weinstein predation, there are definitely potential violations of the New York Penal Law that Gotham’s District Attorney could pursue against the former NYS Attorney General and NYS Senator.
You’re were drunk at a bar. Maybe it was just a bit more than one bourbon, on scotch and one beer. What spirits you imbibed and the exact amount is fairly irrelevant. What matters, however, is that after your were told to leave you did so, but came back angry, red faced and as violent as were sloppy. Instead of holding your liquor like a man or woman, you behaved as if it was your first rodeo and whatever muscles and fighting experience you had (or didn’t have), you morphed into a half 1980s Arnold Schwarzenegger and half modern day UFC brawler. There is little doubt your hangover was epic, but not necessarily from the actual alcohol. When your dry mouth and throbbing head gave way to the realization you had marks on your wrists from being handcuffed and the floor you slept on was not in fact your bed, the reality of what occurred the night before began to set. Unfortunately for a Crotty Saland PC client, while the reality of the circumstances and arrest were far less graceful than the poetic story line shared here, the substance of the incident was quite similar. Initially charged with Third Degree Burglary, New York Penal Law 140.20, and Attempted Third Degree Assault, New York Penal Law 110/120.00(1), a bad night at a bar became a dark future of uncertainty in the New York criminal justice system.
One of the more serious misdemeanor crimes you can be arrested for in New York, Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11(a) and New York Penal Law 121.11(b), is often charged in the context of a New York Domestic Violence arrest. Although a prosecution for PL 121.11 need not be domestic and familial in nature, regardless of whomever the alleged victim is if you are convicted in a New York City Criminal Court or a Justice Court somewhere in a municipality in Westchester, Rockland or any other county, the potential sentence is the same. That is, not only can you face up to one year in a county jail, but there are other penalties ranging from probation, anger management programs, community service and even fines. This blog entry will address the crime of Criminal Obstruction of Breathing or Blood Circulation not in terms of how courts interpret the law, but in the event you faced a jury or bench trial accused of PL 121.11, the jury instructions that will be read to the jury or followed by a judge in rendering a decision.
Menacing in the Third Degree, New York Penal Law 120.15, is a B misdemeanor in New York punishable by up to 90 days in jail. “Menacing” refers to a crime in which a person intentionally places another person in fear for their physical safety by “physical menace.” The question then follows, “What is physical menace and how do New York courts interpret the Penal Law with regard to menacing?” The answer seems simple enough (but as your criminal lawyer can attest to, nothing in the New York Penal Law is so simple) – some physical act that is menacing. As generic and easy as that sounds, this leaves a good deal of room for interpretation. If a person calmly reaches into their pocket, it’s certainly a physical act, but is it menacing? The answer will almost always depend on the particular facts and circumstances of a given case.
There are countless arrests for Assault in the Third Degree, New York Penal Law 120.00, Assault in the Second Degree, New York Penal Law 120.05, and Assault in the First Degree, New York Penal Law 120.10, charges every year in New York City. An issue that arises incredibly frequently, and one that many criminal lawyers must contend, involves the misdemeanor crime of Assault in the Third Degree prosecutions. That question, a genuine legal one, is what amounts to “substantial pain” in the eyes of the New York criminal code? The reason that this is such a common issue is that one requirement for Assault in the Third Degree under the New York State Penal Law is that the victim suffered a “physical injury.” The law in New York is that, in addition to more obvious injuries like broken bones, only requires that an alleged victim suffer “substantial pain” as one kind of “physical injury.” Interesting for many reasons, not least of which is that pain is such a subjective thing, there is a legal threshold that the prosecution must meet. If your bone is broken, it’s either broken or it isn’t – it’s an objective standard. Pain is far more nebulous, and leaves a lot of room for interpretation both in terms of the person allegedly suffering as well as a judge who will review a criminal complaint for legal sufficiency.
Orders or Protection are perhaps the most frequent basis for Criminal Contempt charges in New York. Such charges and criminal cases have become so routine, that the actual complaints charging a defendant with such an offense can become so pro forma as to become almost meaningless. However, the accusations in even the simplest, most routine criminal complaint are of critical importance to a New York Criminal Contempt arrest and case. One way in which a person can violate the terms of a typical Order of Protection is by going to the protected person’s home. This can even include standing outside the front door of the protected person’s apartment building. Irrespective of the context, it is possible that the protected person is not willing to cooperate with law enforcement, and did not want the defendant arrested in the first place. In that scenario, the prosecution will often attempt to rely on other witnesses to the crime, such as family, friends, bystanders or police officers. However, this can often create gaps and shortcomings in information and support for the allegations, which can manifest themselves in the criminal complaints themselves. This was precisely the situation presented to the trial Court in People v. Friedman, 48 Misc.3d 817 (Queens Co. Crim Ct. 2015).
The term “dangerous instrument” is used throughout the New York State Penal Law as an elements of certain criminal charges, typically violent felonies such as Assault in the Second Degree, New York Penal Law 120.05(2), but for other misdemeanor crimes such as Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(2). From the context of the criminal statutes in which the term is used, it is easy to understand that the term “dangerous instrument” is basically referring to the use of a weapon. But what qualifies as a weapon and how is it different from a “dangerous instrument?” Not a complete analysis of the law nor a substitute for a consultation with your criminal lawyer, the following helps answers this question.
Accused of strangling and slamming the complainant’s head into a radiator during a domestic violence dispute, a recent Crotty Saland PC client faced up to seven years in prison after being arrested for and charged with Second Degree Assault, New York Penal Law 120.05, and Second Degree Strangulation, New York Penal Law 121.12. Quite serious felony crimes in New York, the criminal lawyers and former Manhattan prosecutors at Crotty Saland PC had their hands full. Our client, who maintained his/her innocence, refuted the objectively serious allegations from the onset of his/her arrest. Hauled into an NYPD precinct, questioned by detectives and both booked and arraigned on these two felonies, the District Attorney’s Office asserted in the felony complaint that not only did our client strangle the complainant until he/she lost consciousness, but our client repeatedly slammed the complainant’s head into a radiator in the neighborhood of fifteen time, gouged at the alleged victim’s eyes and punched him/her in the nose. Not only did the complainant black out twice, but our client also allegedly brandished scissors while threatening to kill his/her domestic partner. Facing a minimum of two years in prison and a maximum of seven years incarcerated if convicted of either PL 120.05 or PL 121.12, the New York domestic violence attorneys at Crotty Saland PC expected the worst at arraignment, but what seemed to be an objectively horrific incident if true, slowly evolved into a case that was far from what it seemed.