DWI, DUI and DWAI arrests routinely involve complicated issues beyond those that most non-attorneys contemplate. Yes, criminal lawyers will question the reason the NYPD or NY State Police stopped their client’s vehicle. Yes, legal counsel will attack the veracity of an officer’s claims as to how their client allegedly failed the walk-and-turn, one-leg, or other field sobriety test. These and other issues aside, one of the more complex matters involving New York drunk driving crimes and driving while intoxicated offenses is the way in which blood alcohol concentration breath tests are secured and treated in alcohol-related offenses. While New York treats breathalyzer and intoxilyzer tests results as a form of sel-incrimination and such an exam is a non-waivable obligation on the part of a motorist whenever a police officer deems such a test necessary based on reasonable grounds, there are guidelines law enforcement must nonetheless follow. One such rule, known as the “two-hour rule,” is codified in VTL 1194(2).
If George Orwell’s satirical theory of equality in “Animal Farm” applied to the New York Penal Law, then all knives would be created equal even if certain knives were more equal than others. Fortunately, as any criminal lawyer knows, the Penal Law does not allow for such untenable situations where no matter the knife or blade, possession would always constitute a misdemeanor or “more equal” felony offense. That said, and as routinely addressed by defense attorneys, depending on the blade in question, such as a switchblade that is a per se violation of PL 265.01(1), some knives are automatically considered weapons while others mandate that they are both “dangerous” as prescribed by law and intended to be used in an unlawful manner. These latter violations fall under PL 265.01(2).
In a recent Manhattan Criminal Court case, a presiding judge found that a knife disguised as a pen, aka, a penknife, did not violate the law as pleaded in the accusatory instrument and, therefore, dismissed the case for a lack of legal sufficiency. Evidently, all knives really are not created equal.
As a defendant already under arrest or as an accused or target confronted by law enforcement during an investigation, one of the most important rights you can ever exercise is your right to remain silent. Whether you are legally in custody or you are lawfully being interrogated by a police officer, detective, state trooper or DA investigator, once you invoke this right, all questioning must cease once you ask for your lawyer. Should further statements be elicited, anything you say as it relates to the crime or investigation will not be admissible against you in the prosecution’s case in chief. If you fail to ask for a lawyer or an attorney, then you should expect that anything you say can and will be used against you in court.
With the above in mind, what happens if you exercise your Miranda Rights before one detective or agent but hours later find yourself before different officers? Does it matter if law enforcement is the same, meaning, all from the NYPD? Would you have to invoke your rights again if you changed hands from one agency to another? For that matter, what if law enforcement questioned you while in custody and were honestly were unaware of your prior demand? In People v. Roman, decided by the Appellate Division, First Department on 9/24/2019, the Court addressed these critically important issues.
While the law is clear and known to criminal lawyers practicing throughout the New York City region, when one thinks of menacing behavior one often thinks of threats with words, body, weapons or some combination of the three. Despite what those outside the legal profession may think, the Penal Law and court decisions that define the crime of Menacing is clear. Words alone are insufficient. More is needed. In a recent decision addressing the sufficiency of Third Degree Menacing, New York Penal Law 120.15, a trial court once again examined the statute providing further clarity to an often litigated section of the Penal Law.
Similar to Penal Law 245.15, NYC Administrative Code 10-180(b)(1) is the crime of Revenge Porn within the confines of Manhattan, Brooklyn, Queens, Bronx and Staten Island. Both of these offenses, Unlawful Dissemination or Publication of an Intimate Image and Unlawful Disclosure of and Intimate Image, are misdemeanor statutes and provide for civil prosecutions and law suits as well. Irrespective of which charge is pursued, the law mandates prosecutors to plead certain elements. Specifically, AC 10-180, formerly AC 10-177*3, requires that a “covered recipient” discloses an “intimate image” without the consent of the “depicted individual.” Further, the wrongful sharer or poster must have an objective to cause economic, physical or substantial emotional harm to the depicted person and that individual must be identifiable either because it is clear in the image or from the circumstances the same was disclosed. Without parsing out all of the definitions and legally defined terms, People v. Ahmed, 2018BX038930, demonstrates the legal minimum standard the District Attorney must set forth in a complaint to survive a defense lawyer’s motion to dismiss and the necessity that a “covered recipient” is established within the four corners of the accusatory instrument.
With the above in mind, my words cannot accurately reflect the emotions – from anxiety and fear to joy and relief – that wash over the vindicated when the battles commence and rage until the almost literal war is over. It is the target of the wrongful, hurtful and traumatic claim that lives through these emotions who can best articulate them. The following is one such client’s review that makes me proud of my efforts and of my client’s strength while providing me with immeasurable satisfaction and relief that I delivered her the justice she unequivocally deserved.
If you shook Robert Morgenthau’s hand, you were one clasp away from the men and women whose names you read about in history books, faces you saw in black and white photographs and movies, and voices you heard in scratchy inaudible recordings. From Presidents Franklin Delano Roosevelt and John F. Kennedy to Prime Minister Winston Churchill and Dr. Martin Luther King, Morgenthau was not merely a secondary figure, but a core piece of the fabric and events that shaped New York, the United States and the world. With these men’s blood, sweat and tears, and that of countless other men and women whose names we will never know, the nation leapt forward with a purposeful objective even if only at times incrementally. Sadly, with Morgenthau’s passing, night descends upon an era that we, as a nation, have already strayed for far too long. Gone are the days of FDR, JFK, and King when leaders unhesitatingly rose to preserve and protect the greater public good. Few are our leaders today who embrace their duty to selflessly safeguard the public irrespective of their personal agendas or beliefs.
College Title IX lawyers and student misconduct attorneys representing clients in cases alleging gender-based misconduct and dating violence accusations know firsthand how the system is not one founded in due process. Simply, university violations, from NYU and Columbia to Pace and Fordham, not only lack the checks and balances taken for granted in the criminal justice system but are enforced by university administrators often lacking the investigative experience necessary to pursue the right leads and effectively parse through the evidence. Couple these factors with a legal threshold that is not beyond a reasonable doubt but a preponderance of the evidence, the subject of an accusation is often left without the tools and recourse necessary to defend him or herself. Fortunately, for a client falsely accused of a horrific rape that morphed into claims she was a monster-like stalker and manipulative predator, after a five month long investigation and ultimate adjudication, the college exonerate our client. Only slightly less gratifying, the college found that the accuser was in fact the abuser leading to a responsible finding and multi-year hold on her diploma post-graduation.
Criminal charges dismissed on the motion of the prosecution [*check*]. Maltreatment and Negligence finding by the Office of Children and Family Services (OCFS) amended from indicated to unfounded [*check*]. Article 10 Negligence Petition filed by the Administration for Children’s Services (ACS) withdrawn [*check*]. A Criminal Court and Family Court “hat trick” by Crotty Saland PC’s defense team? Check yet again.
While Crotty Saland PC’s family law attorneys and criminal defense lawyers secured yet another successful disposition, and more importantly fair and just one, above cases demonstrate once again that when accused of wrongdoing, one often has many battles ahead on one’s way to vindication. After being targeted by the mother of his child with fictitious allegations as a likely means to pry custody away from our client, the mother’s attempts ultimately backfired in spectacular fashion. The exoneration of our client aside, now it is she who appears to be the subject of an ACS investigation.
While our client charged with Third and Second Degree Menacing and Fourth Degree Criminal Mischief cannot get back the months of his life lost to the criminal justice system, what started off as a bogus claim and an arrest of a federal law enforcement officer finally ended with his complete exoneration in a New York City Criminal Court. Although our client can now pursue the back pay he was denied during his suspension, as grateful as he was that the system “worked,” our client unfortunately witnessed firsthand how difficult it is when the system sees you as guilty even if the law is supposed to protect you with the presumption of innocence. Thankfully, after months of back and forth with a prosecutor who did her due diligence and, even if disagreeing, kept an open mind, pushing the case to a trial and rejecting an Adjournment in Contemplation of Dismissal was the final straw that broke the proverbial camel’s back of this unfounded case. A great effort – and even better resolution – for the criminal attorneys and former Manhattan prosecutors at Crotty Saland PC.