New York Criminal Lawyer Blog

May 3, 2014

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

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

March 23, 2014

Revenge Porn in New York: Aggravated Harassment, Dissemination of an Unlawful Surveillance Image or any other Crime?

by Jeremy Saland

“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.

March 1, 2014

VTL 511(3)(a)(iv) First Degree Aggravated Unlicensed Operation of a Motor Vehicle: New York’s Felony Crime for Driving Drunk with a DWI Conditional License from an Earlier DWI

by Jeremy Saland

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.

February 25, 2014

Raymond Felton’s Post Arraignment Update: What’s Next for the Knick ‘Baller & His Third Degree Weapon Charge

by Jeremy Saland

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.

February 25, 2014

The Curious Case of Raymond Felton & the Anti-Plaxico Burress Defense: Not All NY PL 265.03 Crimes are Created Equal

by Jeremy Saland

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.

February 14, 2014

Aggravated Harassment NY PL 240.30: All Speech, Threats and Statements are Not Equal

by Jeremy Saland

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.