New York Criminal Lawyer Blog

May 28, 2015

Fighting Words, Freedom of Speech and New York’s Second Degree Aggravated Harassment Statute: NY PL 240.30

The crime of Aggravated Harassment in the Second Degree (Penal Law 240.30(1)) has evolved over the years as the Court of Appeals has removed part of the statute and others have been added by the legislature. One thing that has not changed, however, is how serious penalties can range if you are convicted of PL 240.30 whether you are arrested with a Desk Appearance Ticket (DAT) or processed on a Domestic Violence related case.

Briefly, you are guilty of Aggravated Harassment in the Second Degree (Penal Law 240.30(1)) if (and only if) an Assistant District Attorney proves beyond a reasonable doubt that “(1) with intent to harass another person; (2) the actor communicates, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, a threat to cause physical harm to … such person; and (3) the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety…”

May 20, 2015

New York Second Degree Commercial Bribe Receiving: A Brief NY PL 180.05 Primer

by Jeremy Saland

The crime of Commercial Bribe Receiving in the Second Degree carries severe consequences including a year in jail and the decimation of your career. It should go without saying that it is crucial for the prosecution to prove every element of the crime charged whether you have been arrested in Manhattan, Brooklyn, Queens or anywhere else in the State of New York. In order for a judge or jury to convict you of Commercial Bribe Receiving in the Second Degree (New York Penal Law 180.05) the State must prove that an employee, agent or fiduciary, without consent of his/her employer or principal, solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his/her conduct in relation to his/her employer’s or principal’s affairs. (Penal Law 180.05) The key to this crime is not the payment of money but rather the agreement or understanding under which the alleged bribe receiver accepts or agrees to accept a benefit.

April 25, 2015

Second Degree Aggravated Harassment Charged Dismissed: Bogus NY PL 240.30 Arrest Dismissed after Complainant’s Allegations Exposed as False

by Jeremy Saland

Nobody likes to falsely be accused of wrongdoing. Even worse, nobody ever wants to be accused of a crime he or she did not commit. Whether in New York City or any other city or state, the consequences of an arrest are often devastating to one’s mental health and one’s career and future. Unfortunately for a Saland Law PC client, after a former lover made bogus allegations of Second Degree Aggravated Harassment (New York Penal Law 240.30), detectives with the NYPD arrested, incarcerated our client over night, and presented the case against our client to prosecutors. Right or wrong, due to New York’s strict domestic violence laws and NYPD policies, the mere allegation of Aggravated Harassment was enough for an arrest even though no corroboration of the complaint existed at the time of the allegation or anytime thereafter. Fortunately, due to the diligence of our criminal defense lawyers, what started off as a nightmare ended with full exoneration and vindication after the Manhattan District Attorney’s Office thoroughly investigated the accusations and ultimately dismissed the case on its merits.

April 20, 2015

Intentionally Switching Medications for Profit: A Pharmacist’s Exposure to New York State Health Care Fraud Article 177 Felonies

by Jeremy Saland

Healthcare Fraud (a/k/a Health Care Fraud) is crime vigorously pursued by local District Attorney’s Office and the New York State Attorney General. The basic idea or theme behind any New York Penal Law Article 177 crime, investigation or arrest is that a defendant “with intent to defraud a health care plan… knowingly and willfully provided materially false information … for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information …, [the defendant] or another person received payment in an amount [to which the defendant or another person was] not entitled.” Depending on the nature or aggregate value of the payment received, Healthcare Fraud in New York State (it is irrelevant if alleged fraud occurs in Manhattan, Brooklyn, Queens, White Plains, Yonkers or Albany) is either a misdemeanor or a felony offense. Once an individual is alleged to have received from a single health plan at least $3,000.00, the crime graduates to the class “E” felony of Health Care Fraud in the Fourth Degree. This crime is punishable by as much as four years in prison. Obviously, should the aggregate amount be greater, the felony and incarceration exposure increases significantly.

With this general understanding of New York’s Health Care Fraud statute, the following blog entry will provide a little more insight into what actions can be the basis of a criminal violation.
In People v. Khan, 18 NY 3d 535 (2012), the Court of Appeals grappled (that may be an overstatement) with the nature of proof required for a conviction under the Health Care Fraud statute. There, the New York City Police Department (NYPD) and the New York City Human Resources Administrations conducted an undercover investigation of NYC Pharmacy, Inc. NYC Pharmacy Inc. is a pharmacy located in Upper Manhattan.

April 13, 2015

Endangering the Welfare of a Child: Can any Custodian be Liable for and Guilty of NY PL 260.10 or Must Prosecutors Establish Control and Care

by Jeremy Saland

In New York, or any state for that matter, arrests involving children carry with them the worst stigma. Obviously, crimes that involve sexual or physical harm are by far and away the most serious, but the stain of an arrest can linger even if your conduct is nowhere near or similar to these offenses. While on its face Endangering the Welfare of a Child, New York Penal Law 260.10, is a “nasty” crime, your conduct need not be that significant to run afoul of the law. In fact, the New York criminal lawyers and New York Endangering the Welfare of a Child attorneys at Saland Law PC have represented more than one client over the years for leaving a child alone briefly to merely follow through with an every day activity such as running into a store for a couple of minutes. Smart? Maybe not. Worthy of a criminal conviction? No.

Well, beyond the crime of PL 260.10, even if the conduct itself is criminal, who is responsible for the child in question? What if, for example, a child was left unattended and you, as a cousin, neighbor, uncle, sibling or other party came to secure the child after the police had been called. Is your mere offer to take responsibility of the child also a reflection of your culpability for leaving the child alone? What must prosecutors do to establish the nature and extent of the defendant’s control and care? A recent decision from the Bronx Criminal Court answers this exact question.

April 9, 2015

ACD Dismissal for NYC Man Charged with PL 220.16 Felony Possession of 71 Pills of Xanax & Alprazolam Along with a Half Pound of Marijuana

by Jeremy Saland

Drug, controlled substance and narcotics crimes in New York may not be punished to the same magnitude as the Rockefeller Drug Laws of the past, but any New York Penal Law Article 220 crime in New York City or in a suburban New York State county still carries a significant punishment. Where a person is charged with a “B” felony possession of a controlled substance with the intent to sell (New York Penal Law 220.16, Criminal Possession of a Controlled Substance in the Third Degree), the sentence for a first time offender is one to nine years in a New York State prison. If the potential for years of prison and incarceration was not enough, a permanent ‘”scarlet letter” of a felony drug conviction may be enough to scare any young man or woman straight. Although all of us expect to stay far from the mistakes that could land us with a Criminal Possession of a Controlled Substance or Criminal Sale of a Controlled Substance arrest or conviction, nobody is perfect. In fact, even if we never possess cocaine, heroin or any other controlled substance, its possible for prosecutors and police officers to still attempt to hold us accountable for the actions of others. Yes, being in the wrong place at the wrong time can be the basis of an arrest, prosecution and criminal conviction in the world of narcotics. One such provision of the New York Penal Law that allows this, NY PL 220.25(1), permits a finder of fact to presume that all people in a vehicle knowingly possessed controlled substances found therein as long as the drugs were not on a specific person. Unfortunately, this is the scenario a Saland Law PC client found himself in having no knowledge of any drugs in the car where he rode as a passenger.

March 29, 2015

Client Arrested in New York with Two Unlicensed Firearms and Hundreds of Rounds of Ammunition Receives ACD Dismissal & “Nullified” Arrest

by Jeremy Saland

New York City’s JFK and LaGuardia airports see their fare share of criminal activity. The airports are crawling with federal, state and local law enforcement ready to swoop down at the first sign of some wrong doing. One of the seemingly growing crimes that the Port Authority Police Department, TSA and airline ticketing agents seem to be ready, willing and able to pounce on is the crime of Criminal Possession of a Weapon. More specifically, the crime that is routinely prosecuted is Criminal Possession of a Weapon in the Second Degree pursuant to New York Penal Law 265.03. Obviously each fact pattern is different, but the themes generally run the same. You are a legal or registered firearm owner in California, Florida, Texas or some other state. You are visiting New York City , Manhattan, Queens, Brooklyn, Long Island, the Hudson Valley or a neighboring state such as New Jersey, Connecticut or Pennsylvania. Nobody stopped you from coming to this jurisdiction or advised you that you couldn’t bring your revolver, pistol or other gun to the State of New York. Why would you expect anything would be different when you packed up the gun, separately carried the ammunition and checked your firearm at the airport for your journey home? Why? Well, sadly the answer is clear and now you need a New York firearm lawyer and criminal defense attorney to mitigate your “wrongful” conduct from a statutory violent felony with mandatory incarceration to something that will not destroy your future or livelihood.

March 25, 2015

Alleged NYC Craigslist Adderall Seller Avoids Felony Conviction for PL 220.31 & Receives No Jail & No Probation

by Jeremy Saland

Selling adderall online on sites such as Craigslist is an extremely serious drug felony in New York. For that matter, selling adderall or other controlled substances to an undercover cop or any other buyer online or in person is criminally devastating. It is of no consequence whether or not you have a prescription for these “study aids” or not. At its core, an illegal drug sale is an illegal drug sale. If you are arrested in New York for selling “Pep Pills,” “Beans,” “Uppers” or any amphetamine or dextroamphetamine, you certainly will receive a boost in clarity coming from your jail cell, a prosecutor, the judge and even your criminal defense lawyer. What will be clear, however, is not the upper you get from ingesting adderall, but the reality that you now face one to two and a half ( 1 to 2.5 ) years in prison followed by one year post release supervision as a individual without any criminal history at all. Broken down to the simplest level, an arrest, indictment and conviction for Criminal Sale of a Controlled Substance in the Fifth Degree, New York Penal Law 220.31, is a crime that can, and often does, lead to a combination of incarceration, probation, and destruction of careers and livelihoods. How you implement your defense and the strength of that defense will decide if you are able to walk away unscathed, reduce the crime you are charged with or spend time “upstate.”

March 18, 2015

Menacing without Physical Threats: Can Words Alone be the Basis of a NY PL 120.15 Menacing Arrest & Conviction

by Jeremy Saland

There are “ugly” crimes and there are “uglier” crimes in the State of New York. Any offense that involves a threat of or actual violence falls in the latter category. Because of this, when crimes such as Assault, Stalking and Menacing are the foundation of an arrest in New York City or anywhere in the State of New York, it is critical to attack the allegation in any means legally permissible. Whether by challenging the evidence or procedure or mitigating conduct, should you not exercise your rights you may find yourself convicted of a stigmatizing crime. Addressing the offense of Menacing in the Third Degree (information about other Menacing degrees or the crimes of Assault and Stalking is available on the New-York-Lawyers.org website and this blog), one normally thinks of a scary looking man brandishing some sort of weapon or dangerous instrument making threats of physical violence accompanied by some sort of a demand. Because there is no stereotypical criminal case of New York Penal Law 120.15, every criminal defense attorney must be prepared to analyze any allegation, set of facts or evidence to ascertain whether or not the complaint against his or her client is legally sufficient and whether or not proof exists beyond a reasonable doubt.

March 13, 2015

New York’s Martin Act and the Expansive Meaning of “Fraud” and “Fraudulent Practice”

by Jeremy Saland

New York’s “Blue Sky Law,” The Martin Act, prohibits “[a]ny fraud, deception, concealment, suppression, false pretense or fictitious or pretended purchase or sale” in “the issuance, distribution, exchange, sale, negotiation or purchase … of any securities or commodities.” Codified by New York Business Law section 352, the Martin Act packs a punch in terms of punishment and consequences. Because of this, one of the critical components to any defense is to determine whether prosecutors can prove beyond a reasonable doubt that you violated each element and every of the crime or the offenses that are routinely prosecuted alongside the Martin Act. As addressed in a previous blog entry discussing the requisite intent to defraud (or lack thereof in Martin Act cases), courts have given prosecutors more room to prosecute securities crimes as opposed to confining or restraining them. This blog entry will address not whether one must have an intend to defraud as analyzed in the earlier entry, but the latitude given to law enforcement in defining what constitutes fraud.