New York Criminal Lawyer Blog

May 25, 2014

New York DWI & VTL 1192 Arrests: Can You be Arrested and Prosecuted for a BAC Reading Well Below .08

When arrested for drunk driving in New York City or New York State (some attorneys and non-lawyers alike call this crime DWI or DUI), there are certain elements for each of the two major DWI crimes that transcend every case. That is, for example, if you “blow” a .08 or above in terms of your BAC, the police will arrest you for the per se Vehicle and Traffic Law offense of VTL 1192.2, Driving While Intoxicated. Even if you do refuse to blow, you are not home free. Not only will your refusal result in a separate Department of Motor Vehicle (DMV) proceeding for the revocation of your license, but the police and the local District Attorney can still charge you with DWI or DUI pursuant to VTL 1192.3. This “non blow” version of DWI is no different than VTL 1192.2. The potential outcome is the same, but prosecutors must ultimately prove beyond a reasonable doubt that you were operating a motor vehicle while intoxicated through the eyes of the arresting officer (and other witnesses). In such cases the officer would testify about the smell of alcohol on your breath, your watery and blood shot eyes, your gate and demeanor, and other relevant factors. In New York City (Manhattan, Brooklyn, Bronx and Queens), the NYPD video tapes you at the precinct while conducting certain mobility tests. For better or worse, the municipalities in the suburbs of Rockland and Westchester Counties do not.

Without further addressing these crimes (materials on these offenses are found on the Saland Law PC website’s DWI section and throughout the NewYorkCriminalLawyerBlog.Com), what happens if you do decide to blow and take a PBT (portable breath test) at the scene of your arrest and the BAC reading is well below .08 (arguably, if it is low enough there may be no probable cause for your arrest)? What if back at the precinct you blow on the intoxilizer with a reading again below .08? How can prosecutors prove their case beyond a reasonable doubt? For starters, as noted above, the police can testify as to your traits or characteristics when attempting to establish a DWI or DUI crime even if you did not provide a BAC sample. They can do the same here. However, there are certain presumptions in the law that could potentially be favorable (or unfavorable) to you. These presumptions are found in VTL 1195.

May 21, 2014

Diplomatic Immunity v. Consular Immunity: Understanding the Ramifications of Criminal Conduct & Arrest of Foreign Officials

by Peter Katz

When it comes to the criminal law, many people become obsessed with theoretical loopholes and “get out of jail free” cards. While prosecution of the guilty is a noble purpose of government, sometimes there are other, competing governmental interests (such as avoiding a Police State and governmental violations of an individual’s Constitutional rights) that are more compelling. One of those compelling issues is the concept of Diplomatic or Consular Immunity. This comes into play in New York more than almost anywhere else in the country.

New York is the largest city in the United States and one of the political capitals of the world, as home to the General Assembly of the United Nations. All 194 member and observer countries have permanent delegations to the United Nations. New York is also home to 116 nations’ consulates-general. What this means is that there are more foreign diplomats in New York City than almost anywhere else in the world. By some estimates there can be between 3,000 and 10,000 foreign dignitaries in New York at any one time. Not surprisingly, there are occasions that either the State or Federal government will charge a foreign dignitary with a serious crime.

May 15, 2014

Can a New York Forgery Conviction Stand Where a Cardholder does not Testify & a Fictitious Name is Used by the Accused

by Jeremy Saland

I recently posted a blog entry briefly analyzing a Second Degree Forgery (New York Penal Law 170.10) conviction where one of the central issues was whether the defendant had the intent to “defraud, deceive or injure” the bank when a deceased man’s credit card was used and all principle and interest payments were made. Although there was more to that case (the blog entry is from May 11, 2014), the lesson learned is that intent to defraud has a very liberal, as opposed to conservative and strict, definition. Recognizing this fact is important for not only you, as an accused, but your criminal attorney identifying and implementing your best defense. Following up with further review of New York’s Forgery and Criminal Possession of a Forged Instrument crimes, statutes and laws, this entry will once again address these offenses.

In People v. Lydon, 2006 NY Slip Op 7125 (1st Dept. 2006), the defendant was convicted after trial of multiple counts of Forgery (it is not clear from the decision whether the crimes were for the felony of Second Degree Forgery or the misdemeanor of Third Degree Forgery pursuant to New York Penal Law 170.05). The facts at trial established that the defendant would order pizzas over the phone for delivery using one of two credit card numbers, but then go to the restaurant and complete the purchase. When the defendant signed the receipts for the pizzas, he would write a relatively illegible name or “Mike.” Neither of the credit card holders, a husband and wife, were named Mike.

May 11, 2014

Second Degree Forgery & Credit Card Use: Are You Guilty of NY PL 170.10 Even if You Make Proper & Timely Payments to Another Person’s Credit Card

by Jeremy Saland

Regardless of the degree or level of the crime, Forgery is a very serious offense as defined in the New York Penal Law. While the misdemeanor offense of New York Penal Law 170.05 is punishable by a sentence of up to one year in jail, the Second and First Degree Forgery crimes can land a defendant in state prison for as much as seven and fifteen years respectively. Forgery in the First Degree, pursuant to New York Penal Law 170.15, is a class C felony and Forgery in the Second Degree, pursuant to New York Penal Law 170.10, is a class D felony. Irrespective of the degree of Forgery you are arrested or investigated for, there are certain traits or elements of the crime that you and your criminal lawyer will likely spend time assessing and analyzing. For example, one of the essential pieces of a Forgery arrest is whether or not you, as an accused, had the “intent to defraud, deceive or injure” another party.

Before addressing what it means to have an intent to defraud, let’s put this term into context. In People v. Martin, 2014 NY Slip Op 2469 (3rd Dept. 2014), the defendant, Martin, twice used a credit card in the name of another man (and signed the receipts) who was the domestic partner of defendant’s fiancee. This man died years earlier. At trial, the jury convicted the defendant of Forgery in the Second Degree, PL 170.10. During the trial, however, the accused’s fiancé, who was the domestic partner of the credit card account holder until his death, testified as follows:

May 7, 2014

NY PL 220.16 Drug Felony Reduced to NY PL 220.03 Misdemeanor & Ultimately Adjourned for Dismissal: Client Receives ACD After Prosecutors Alleged Possession of 45 Bags of Heroin with Intent to Sell

by Jeremy Saland

If your client is arrested for and charged with Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law 220.16) for allegedly possessing 45 glassines of heroin with the intent to sell that drug, you certainly engage the Assistant District Attorney when a non jail offer is made to the lesser felony of Criminal Possession of a Controlled Substance in the Fifth Degree (New York Penal Law 220.06). After all, the term of imprisonment on a class B felony is from one to nine years in prison upon a conviction. However, despite the apparent generous offer, when prosecutors made this exact offer to a Saland Law PC client, the response was likely not what the Assistant District Attorney expected in such a facially strong case. Whether it could be proven at trial or not, prosecutors filed a felony complaint alleging the police recovered 45 baggies of heroin from our client’s bag. Instead jumping at the offer, having discussed the arrest allegations in great detail with our client, the first question asked of the prosecutor was whether each of the 45 glassines contained heroin in a useable amount or merely residue. If the latter, then it would seem unlikely that our client intended to sell used baggies of heroin. Simply, it does not take a New York criminal defense lawyer (or even more importantly, a prosecutor) to recognize there is no market for used residual narcotics or controlled substances.

Sadly, the prosecutor from this New York City borough refused (yes refused) to answer whether or how many of the glassines contained residue. In substance, the Assistant District Attorney asserted that the information was not discoverable at this stage and the prosecutor was not required to tell the defense pre-indictment. In response, I argued that as a practical matter, the prosecutor should be less concerned about securing a felony conviction and more concerned about pursuing justice. A bad, weak or bogus felony is a bad, weak, or bogus case no matter the crime or its degree. Further, I told the prosecutor that if the bags only contained residue or the vast majority contained residue, then that evidence is what those who practice criminal law refer to as Brady material. In non legal terms, Brady material are those items, documents, recordings and any other physical or no physical information or evidence that tends to or can exculpate a defendant. Here, because the charge was that our client intended to sell heroin, we stated that if the heroin was not consistent with the amount or form that could be sold (again who is purchasing residue or empty glassines), it would exculpate our client in connection to the felony crime of PL 220.16. Disagreeing with us further and refusing to answer ourquestion, the prosecutor compounded matters by refusing to provide a supervisor’s name to discuss further.

May 3, 2014

New York Penal Law 120.05: Can One Punch Lead to a Felony Second Degree Assault

by Jeremy Saland

On numerous occasions I have addressed how prosecutors can overcharge crimes or think out of the box to get to a particular result. Sometimes it is warranted and other times it is not. Similarly, sometimes the end result is proper while other times it is a violation of the law. One of the areas where prosecutors get creative is in the arena of New York weapon crimes. More specifically, when an accused uses a dangerous instrument. Not necessarily unique to this area of law, one of the reason why New York criminal lawyers often see Assistant District Attorneys handling cases in this way is because if a defendant commits a misdemeanor Assault (Third Degree Assault pursuant to New York Penal Law 120.00) and does so with a dangerous instrument, the crime can be kicked up to a felony assault (Second Degree Assault pursuant to New York Penal Law 120.05). Similarly, even if a defendant acts recklessly and causes a serious physical injury with a dangerous instrument (not intentionally) felony conduct could be prosecuted. Why does all of this matter? Not only is a felony a more serious crime in terms of a criminal record, but a misdemeanor offense is punishable by as much one year in jail while the felony crime is punishable by up to seven years in prison.

In People v. McElroy, 55-2013, NYLJ 1202644557795 (Sup., Kings Ct’y Decided February 20, 2014) the defendant, who was intoxicated at the time, got into a fare dispute with a taxicab driver. The defendant paid the fare with a credit card, then exited the vehicle without signing the credit card receipt. The driver also exited and blocked defendant’s movement with outstretched arms insisting that defendant sign the receipt. Evidence at trial showed that defendant refused to sign and instead punched the driver in the head once or twice. The driver fell backwards, hit his head on the concrete sidewalk, and sustained fractures and severe brain injury. At the time of this decision, the driver was on life support and unresponsive. The jury convicted defendant of Assault in the Second Degree, by recklessly causing serious physical injury by means of a dangerous instrument (Penal Law §120.05(4)). The defendant appealed.

April 29, 2014

New York PL 220.03: How the Police & Prosecutors can Establish Constructive Possession When Drugs or other Contraband is Not on Your Person

by Jeremy Saland

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.

April 17, 2014

Second Degree Kidnapping: Analysis of an Attempt to Commit New York Penal Law 135.20

by Jeremy Saland

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.

April 13, 2014

New York Assault Crimes: Can You be Charged with an Intentional and Reckless Crime for the Same Act

by Jeremy Saland

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)).

March 24, 2014

NY One World Trade Center Base Jumpers to Face Felony Burglary Arrest: A Misuse of NY PL 140.20?

by Jeremy Saland

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