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Whether you are arrested for allegedly possessing a drug such as heroin or cocaine, a weapon including a gravity knife or firearm, or some marijuana, the contraband the police claim you possessed may not have been on your person. That is, you are being charged with PL 220.03 (drug possession), PL 265.01 (weapon possession) or PL 221.10 (marijuana possession), but the police did not see or recover the contraband from your hand, pocket, body, etc. The law is clear in these circumstances. Assuming the allegations in the complaint against you are sufficient (the elements must be proven beyond a reasonable doubt if and when there is a trial), prosecutors can push forward in a case regardless if your possession was considered actual or constructive.

Although you will have a much further in depth consultation with your own New York criminal lawyer who will explain the different types of possession to you, the difference between actual possession and constructive possession is fairly obvious. One is on your person and the other in an area where you have dominion and control. In other situations, even though your possession was not physical, if the contraband is in plain view or in a car, a legal presumption of your knowledge and possession may be attributed to your case.

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The crime of Kidnapping, New York Penal Law 135.20, is one of the worst “sounding” crimes one can be accused of. Most people, whether you are a prosecutor, criminal lawyer, juror, teacher, carpenter or justice of the criminal court (or any professional in between), instinctively think the worse when such an accusation or arrest is made. Sometimes the evidence supports such an assumption while other times it clearly does not. Regardless, as I routinely note, an arrest is not proof of guilt beyond a reasonable doubt. That burden of proof always remains with the District Attorney. Commentary behind us, the following entry helps further define and decipher the law of Second Degree Kidnapping, New York Penal Law 135.20, and its various elements.

In People v. Denson, NYLJ 1202643604584, (App. Div., 1st, Decided February 18, 2014), the Appellate Division wrestled with the crime of Attempted Kidnapping in the Second Degree.  Here, the facts established that defendant, a known (and formerly convicted) pedophile, made several calculated efforts to lure the victim, a 10-year old girl, to his apartment.  On several occasions, the defendant asked the victim out to get ice cream, to go ice-skating, and to the movies.    However, it was defendant’s insistence that the victim go to his apartment after he offered her his keys that gained the attention of the mother, who phoned the police.  The lower court convicted the defendant of Second Degree Attempted Kidnapping; the defendant appealed.

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Prosecutors routinely (for better or worse) throw every charge they can at a defendant with the hope that something sticks. Maybe the evidence is overwhelming.  Maybe…not so much. Whatever the charges or allegations may, if one count cannot be proven beyond a reasonable doubt, maybe another can. It is one thing for a prosecutor to charge different crimes (for example, charging an individual for possessing a weapon and using it or stealing money and possessing the same). However, can prosecutors charge different theories of one’s mental state? More specifically, can a defendant be charged with both intentional and reckless acts in the same complaint, for the same act?  In People v. Alejo, NYLJ 1202644557857 (Crim., BX, Decided February 19, 2014), the Supreme Court answered that question with a resounding “yes.”

The evidence in Alejo case established that Police Officer Gelband observed the defendant, who was driving a motor bike, weaving in and out of traffic and around pedestrians, driving the wrong way, and ignoring stop signs.  The facts also showed that pedestrians ceased walking on the street whenever the defendant drove near them.  Finally, when the officer instructed the defendant to stop driving, the defendant ran over the officer’s foot causing injury to his foot, as well as causing the officer to experience annoyance, alarm and fear.  As a result of his actions, defendant was charged with two counts of Assault in the Third Degree (PL Sec. 120.00(1) and (2)), and one count each of Reckless Endangerment in the Second Degree (PL Sec. 120.20), Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), Harassment in the Second Degree (PL Sec. 240.26(1)), and Disorderly Conduct (PL Sec. 240.20(7)).

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Authoring children’s stories is best left to those with an abundance of creativity. While not the sole career of the imaginative thinker, other fruitful and rewarding opportunities often present themselves (landscape architect would be neat and for the younger set, video game designer). One of those paths in life, however, is not prosecuting crime. Certainly, it helps to think out of the box, but when one gets overly creative in law enforcement (not necessarily the means to catch offenders, but what crimes to charge), for better or worse someone is gonna’ get hurt. The concern is not that being creative in charging crimes is always a bad thing (it is not), but individuals can be “over prosecuted” or prosecuted inconsistently with the intention of a particular statute. If what I have read is correct, base jumpers (not skydivers) James Brady, Marko Markovich, Andrew Rossig and alleged lookout man, Kyle Hartwell, may come to personify this legal exuberance.

According to reports, Brady, Markovich, Rossig and Hartwell (I assume Hartwell will be charged as an accomplice or accessory if he is to be charged) are going to turn themselves in to the New York Police Department and be prosecuted by the Manhattan District Attorney’s Office for Burglary in the Third Degree, pursuant to New York Penal Law 140.20. A person is guilty of Burglary in the Third Degree when he or she he knowingly enters or remains unlawfully in a building with intent to commit a crime. This felony carries a potential punishment and sentence of up to seven years in prison. Continue reading

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“Revenge Porn” has entered the vernacular of every day New Yorkers and it appears as if it is here to stay. With the proliferation of social media, Revenge Porn, and the pictures or videos that it consists of, reeks havoc on the people who are reflected or portrayed in the online imagery. While there very well may be civil avenues to hold perpetrators of Revenge Porn accountable for their postings and sharing, what, if any, criminal remedies exists? Is there a Revenge Porn statute or crime in the New York Penal Law? For better or worse, the answer is no, but does that mean those who post Revenge Porn are free from arrest or prosecution in New York City or New York State?

In People v. Barber, 2013NY059761, NYLJ 1202644738008, at *1 (Crim., NY, Decided February 18, 2014), the defendant allegedly posted nude photographs of the complainant, his former girlfriend, to his own Twitter account and shared the same with his ex-girlfriend’s employer and sister. This was done without the complainant’s consent. As a result of this conduct, the New York County (Manhattan) District Attorney’s Office charged the defendant with Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1)(a), Dissemination of an Unlawful Surveillance Image in the Second Degree, New York Penal Law 250.55 and Public Display of Offensive Sexual Material, New York Penal Law 245.11(a). The defendant brought a motion to dismiss all charges. Although the Court found that defendant’s conduct was despicable, it nevertheless determined that the defendant did not violate any criminal statute for which he was charged.

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Not all crimes involving Driving While Intoxicated are found under title 1192 of the New York Vehicle and Traffic Law (“VTL”). While all New York Drunk Driving crimes, aka, DWI and DUI, are extremely serious, so is an arrest for the DWI related crime of First Degree Aggravated Unlicensed Operation of a Motor Vehicle, VTL 511(3)(a)(iv). Before even addressing the felony implications of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, remember that you will also face a DWI charge because the former cannot exist without the latter.

Addressing the common DWI crimes of VTL 1192.3 or VTL 1192.2, do not forget that these crimes are misdemeanor offenses that carry serious penalties within the realm of the New York criminal justice system (also, a conviction for one of these crimes leaves you with the scar of a permanent record) and the Department of Motor Vehicles. Even more concerning than these misdemeanors crimes, if you are driving drunk with a child fifteen years of age or younger in a car, then you will not just face one of these “lesser” offenses. Instead, since 2009, the passage of Leandra’s Law made driving drunk with a child in your car a felony punishable by a sentence of up to four years in a New York State prison. This is the case whether or not anyone was injured, there was a car accident or you were merely arrested at a checkpoint. Not that any crime involving a New York DWI or DUI is a “joke,” but New York VTL 1192.2-a(b) is symbolic of the catastrophic ramifications of driving while intoxicated in the State of New York.

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With a timeout on the court and Raymond Felton out of jail heading back to the hardwood, it is a good time to reassess the events of the first quarter and what we can expect over the next three. Clearly, there is no better time then now to examine where Felton’s firearm and weapon charges may head over the next few months. As a preliminary matter, and of great significance, Felton avoided the charge of Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03. Despite being arrested for this offense, Manhattan prosecutors recognized for now (charges can always be added later) that the “C” felony would be a difficult lift. That is, Assistant District Attorneys likely realized that it would be no easy task proving beyond a reasonable doubt that Felton intended to use the weapon unlawfully against Ariane Raymondo-Felton (see my earlier entry and accompanying analysis).

So what are the official arraignment crimes and what should we expect going forward?

The Crimes and NY Penal Law Offenses

The top count that Felton now faces is Third Degree Criminal Possession of a Weapon. This crime, New York Penal Law 265.02, is a “D” felony. There is a presumptive mandatory minimum sentence of two years and a maximum of seven years if Felton is convicted. For perspective, Plaxico Burress faced a charge of New York Penal Law 265.03, Second Degree Criminal Possession of a Weapon. That crime carries a minimum mandatory sentence of three and one half years and a maximum of fifteen years in prison.

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POST ARRAIGNMENT UPDATE: It appears that despite the arrest charge of PL 265.03, the Manhattan District Attorney’s Office recognized, at least for now, that they cannot prove this “C” felony beyond a reasonable doubt. Whether it was due to the credibility of Felton’s wife or not, I am not privy (maybe they read my blog!). However, now the top charge is Criminal Possession of a Weapon in the Third Degree, New York Penal Law 265.02. Although there is still significant exposure, Felton faces from two to seven years in prison (a presumptive two year minimum).

Raymond Felton, the New York Knicks point guard arrested for possessing a loaded firearm, is no Plaxico Burress. Sure, both athletes allegedly possessed a loaded gun in Manhattan without a license and face/faced the crime of Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), but not all crimes are created equal. While Burress served his time in prison on the strength of a CPW 2 case, Felton may be able guide himself clear of the top count.

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Second Degree Aggravated Harassment in New York, pursuant to New York Penal Law 240.30, is a crime that is always immersed in a pool of many questions. Sometimes the conduct clearly establishes the foundation for an arrest while other times your criminal lawyer may be left scratching his or her head and asking, “Really?!?! You’re arresting my client and charging him with Aggravated Harassment in the Second Degree for what?!?!” As I have said to my clients many times, because of the hypersensitivity around PL 240.30, police officers often make an arrest and leave it up to prosecutors to later sort out. Whether this is right or wrong (it certainly is wrong if the claim is fraudulent or exaggerated for the gain of the accuser), the unfortunately reality is that you will have to “earn” your offer or dismissal. Further, if the accusation is from a partner, lover, spouse or family member and is deemed “domestic,” you will be arrested for Second Degree Aggravated Harassment and you will not be able to avail yourself of a Desk Appearance Ticket.

There are multiple ways an accused can “earn” the proper disposition of a case. No prosecutor is merely going to give you and your criminal lawyer a handout. Obviously, one way you could fight an NY PL 240.30 arrest is to attempt to mitigate your conduct. Another route, and very likely the first attack, is to work alongside your criminal attorney to ascertain if the allegations, even if true, legally satisfy the elements of Second Degree Aggravated Harassment. When doing so, it is critical to examine the words used and the context of those words. The following two New York Criminal Court cases shed light on potential defenses and overall requirements of a New York PL 240.30 arrest that should be added to your defensive arsenal when words alone and their usage form the basis of a Second Degree Aggravated Harassment case.

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At no point did you believe that your flight home from New York City’s JFK or LaGuardia Airport would leave you stranded in New York. No, not stranded on the tarmac or in the airport, but in a jail charged with Second Degree Criminal Possession of a Weapon (New York Penal Law 265.02). You thought you were adhering to the TSA’s rules. You even went online or called your airline to determine how to properly transport your firearm, pistol or revolver. According to JetBlue, Delta, American, or any airline, the transportation of your weapon must comply with certain requirements – requirements you thought you were complying with. Unfortunately, you didn’t know that if you have a firearm or gun that is not registered in New York (NYC has its own registration requirements greater than those in the State of New York) and you go to an airport in Queens (JFK or LaGuardia), you are in possession of an illegal weapon.

Some would argue that your second amendment right is kicked to the curb when you enter the boundaries of New York while others would argue that the legislature and citizens of the Empire State don’t want or need your guns flooding their borders. Regardless of your perspective on the law, “it is what it is.” When you check your hard sided case with an agent and you advise that the weapon is not loaded because the bullets or ammunition are not in the gun, he or she smiles back to you and tells you to wait. In only a matter of minutes you are handcuffed and arrested for Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03) and potentially the lesser (but a still significant and crippling felony) of Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)).

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