New York Criminal Lawyer Blog

February 5, 2014

Attempted Assault & Minimum Standards in a New York Grand Jury Proceeding

Every New York criminal lawyer, from the “best” to the those who lag behind him or her, have one basic goal when representing their respective clients in an arrest for any crime. Certainly service is key, but most clients would be satisfied, if not elated, if his or her criminal attorney could obtained a dismissal of an indictment or misdemeanor information regardless of the service the attorney provided (I am not advocating poor service!). There are often numerous grounds for which a New York criminal defense attorney may seek dismissal. The Grand Jury presentation was not sufficient or the proceeding was tainted. Alternatively, the information or complaint contained hearsay or was not facially sufficient. If the case cannot be dismissed in its totality, the defense may seek to have the crime charged reduced to an attempt. The reason this is pursued is because an attempt to commit a particular crime in New York reduces the level or degree of the crime from what it would be if successfully completed.

In People v. Zacatenco-Romano, 10869-12, NYLJ 1202640266754, at *1 (Sup., KI, Decided January 22, 2014), the defendant motioned for dismissal of Attempted Assault in the First Degree (PL 110/120.10[1]) on the grounds that the Grand Jury evidence was insufficient. Seeking a dismissal as opposed to a reduction (you can’t attempt an a crime that you are accused of attempting), Zacatenco-Romano is still valuable in identifying what constitutes an attempt to commit an offense and what is sufficient before a Grand Jury in New York.

February 1, 2014

NY PL 240.30 Aggravated Harassment: When Spitting on Another is both Criminal and Non Criminal

by Jeremy Saland

Depending on the side of the law you stand (the defendant arrested for Aggravated Harassment in the Second Degree or the complainant accusing you of violating New York Penal Law 240.30), the evolution and changes to this crime is either concerning or welcomed. As initial matter, some things have not changed. For example, not only are many of the subsections or theories the same as they were years ago, but if you are given a Desk Appearance Ticket for PL 240.30 or you are run through the entire underbelly of the New York Criminal Justice System for Second Degree Aggravated Harassment, the potential sentence and punishment is one year in the local slammer.

One “type” of Aggravated Harassment in the Second Degree that has not changed is that which involves some form of physical contact (the statute also allows for other crimes that do not involve physical contact). “Physical contact,” however, may not always be what it seems. A slap or punch? Certainly, but what about less clear and decisive contact? In People v. Carlson, 705 N.Y.S.2d 830 (Crim. Ct., NY Cty., 1999), the defendant was charged with Aggravated Harassment in the 2nd Degree (Penal Law 240.30(3)), Harassment in the 2nd Degree (PL 240.26(1)), and Menacing in the 3rd Degree (PL 120.15) when he allegedly directed racial slurs toward a complainant, including calling him a “nigger,” and then spit in the complainant’s face. The Court, in this case, was tasked to tackle the following issue: “whether defendant’s alleged act of spitting in the informant’s face subjected the complainant to ‘physical contact’ within the meaning of [PL 240.30(3)]. Defendant moved to dismiss all three charges.

January 22, 2014

NYC Marijuana Desk Appearance Ticket Arrests: Should You Hire a Criminal Lawyer

by Jeremy Saland

One of the fairly common calls we receive as New York criminal lawyers and New York criminal defense attorneys revolves around misdemeanor marijuana (“marihuana” in the New York Penal Law) arrests. The questions run the gamut. I received a New York City Desk Appearance TIcket for PL 221.10, have I been arrested? I received a Desk Appearance Ticket in NYC for marijuana possession, but the police recovered the marijuana from the ground (or it was in another person’s hand), how can they charge me with it? Why am I being charged with Criminal Possession of Marihuana when the police only got it from my pocket? It wasn’t like it was in my hand or I was smoking it! Why did the police search my car? They claim the marijuana was in the cup holder, but it was in the glove compartment they searched illegally! I could continue, but I believe you understand my point. Although only marijuana and not cocaine, molly, a firearm or something more serious, arrests for PL 221.10 – whether by Desk Appearance Ticket or full on processing – is traumatic.

Whatever your questions may be, the conversation as New York criminal lawyer and potential client routinely turns to what, if anything, a criminal defense attorney can do for the accused pot smoker (or possessor). First, I generally explain to my potential clients that despite their fears, barring some extraordinary circumstances, jail is not on the table (technically it is possible). Second, despite the fear other attorneys may try to instill in potential clients to convince these clients to hire them, the reality is that as a first time offender who did not resist arrest or obstruct the officers, things may not be so bleak (of course, “bleak” is a relative term).

January 19, 2014

Assumption Based Guilt: An Officer’s Assumption May be Enough to Establish the Presence of Drugs in a PL 220.03 Arrest

by Jeremy Saland

The concerns of a person arrested for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, are many. If you are doctor, accountant, teacher, lawyer or financial services professional, what will happen to your license or certification? Beyond the initial scare and concerns, what are your potential sentences and punishment? For those who are not American citizens and here on visas – work or student – how will your arrest impact your future. Desk Appearance Ticket or full on arrest through central booking, dealing with the uncertainty and legitimate concerns of your arrest for cocaine, heroin, molly, ecstasy, or any controlled substance is something to address with your criminal lawyer.

Outside of these collateral, secondary and sentencing issues, another topic, and arguably the first one, you will discuss with your criminal lawyer or criminal defense attorney will be how you can challenge your arrest and DAT (also called an appearance ticket) for PL 220.03 in New York City. Sure, you will address why the police stopped you and how it came to be that you were searched, but another issue may be whether or not the controlled substance or narcotic in question is in fact a drug – heroin, cocaine, molly, etc. While the good news is that the prosecution has the burden to prove this element (and every) beyond a reasonable doubt, that bad news i that in the past few years the law has evolved (or devolved) to the point where an officer can make a determination without conclusive evidence from a field test or laboratory analysis. Hey, you may have purchased bogus drugs before you entered a concert, but he courts will find the complaint against you sufficient based on the assumption of a police officer. Sadly, the following two cases illustrate how the law favors the law enforcement and not the potentially wrongly accused.

January 15, 2014

NYC Prosecutors Vigorously Prosecute PL 250.45: Doctor Lucky to Avoid Reigstration on Conviction for Unlawful Surveillance

by Jeremy Saland

In the beginning years of his first term, Manhattan District Attorney Cyrus Vance, Jr. initially followed much of the policy of his predecessor, Robert Morgenthau. Over time, Vance tweaked what he believed needed tweaking and completely changed what he believed needed changing. Some crimes were prosecuted more vigorously while others may have been held to a lesser standard or bar. Right or wrong, better or worse, if you are in Manhattan and you are accused of or arrested for certain crimes, be prepared to fight what may be the very firm hand of the Manhattan District Attorney’s Office. One such crime that was always prosecuted in a zealous manner, and still is today, is that of Unlawful Surveillance in the Second Degree, New York Penal Law 250.45. I have blogged about this crime and have drafted material about this offense on the New-York-Lawyers.org website because it is a crime that not only has direct consequences in terms of incarceration as a felony, but collateral penalties that could be career and life changing.

Pay very close attention. If nothing else, understand that if you are convicted of PL 250.45, Second Degree Unlawful Surveillance, you may be required register as a sex offender. What you may think was a harmless prank or something for your eyes only, is an offense that you may never walk away from. Registration as a sex offender would not only brand you a “pervert” in the eyes of friends, neighbor and colleagues when your registry information was disclosed, but your career could be derailed. Not to knock a guy while he is down and out, just ask a former Mount Sinai urologist who was sentenced earlier today. While many people likely supported him as an otherwise good person, skilled physician and asset to his community, he will likely be reeling from his Second Degree Unlawful Surveillance conviction for years to come. Even though this doctor was not required to register, he lost his position at Mt. Sinai Hospital.

January 12, 2014

Interpreting “Written Instrument” In a First Degree Offering a False Instrument for Filing Arrest & Indictment: New York Penal Law 175.35

by Jeremy Saland

Offering a False Instrument for Filing and Falsifying Business Records are two potential felony crimes in New York that are almost identical. While “almost” certainly is not “exactly,” one guards against the fraudulent filing of documents within the government and state while the other generally the falsification, deletion or alteration of the business records of a private enterprises. While both crimes involve an intent to defraud, one of the elements that stands out in crimes involving Offering a False Instrument for Filing in both the First and Second Degrees is that the filing of a “written instrument” must take place. What is a “written instrument” you ask? Your New York criminal lawyer or New York criminal defense attorney should be able to answer what a “written instrument” is in the context of New York Penal Law 175.35 (First Degree Offering a False Instrument for Filing) or New York Penal Law 175.30 (Second Degree Offering a False Instrument for Filing), but if not, there is always People v. Headley, NYLJ 1202571734975 (Kings Sup. Ct., Decided September 6, 2012) to provide some guidance.

In Headley, the defendant used a fictitious name to fraudulently obtain paid assignments of independent medical examinations of plaintiffs who sued New York City Transit Authority (“NYCTA”). In using the fictitious name, the defendant “conceal[ed] the fact that the assignments were being awarded to” his company (“Advance”)- someone who also represented NYCTA in defending personal injury lawsuits. As this was a conflict of interest, this would have “disqualified him from being paid to procure medical examinations.” The defendant was charged, amongst other things, with Offering a False Instrument for Filing in the First Degree (NY PL 175.35). Upon the defendant’s motion to reargue, the Court upheld the charge.

January 7, 2014

Stalking in the Context of the New York Penal Law & Freedom of Speech

by Jeremy Saland

Stalkers need not tiptoe on the fringes hiding in shadows. To stalk someone in the general sense you need not constantly run up to them or scare the heck out of them repeatedly. Even if you did, you might argue you have a right to express yourself and a freedom of speech that permits you to say as you please. While this last belief may or may not be true, the New York Penal Law describes Stalking in the Fourth Degree, pursuant to New York Penal Law 120.45, as when you intentionally, and for no legitimate purpose, engage in a course of conduct directed at a specific person, and know or reasonably should know that such conduct:

(1) is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or

December 31, 2013

Close Proximity to Drugs: Dismissal of PL 220.03 Arrest Charges for Vagueness of Possession

by Jeremy Saland

The cornerstone to any arrest in New York for the possession of a controlled substance – cocaine, heroin, molly, ecstasy – is arguably first and foremost that you actually possessed the drug, narcotic or controlled substance in question. If that is not the first hurdle that prosecutors in Manhattan, Brooklyn, Queens, Bronx, Westchester or Rockland Counties must overcome, it is likely the second. Equally important to any drug possession arrest is that the substance you possessed is in fact a controlled substance and not “beat drugs” or marihuana / marijuana (marijuana crimes are prosecuted differently than controlled substance crimes in New York). This blog entry will address what prosecutors and police must articulate or state in a complaint to establish legal sufficiency in your arrest for New York Penal Law 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree, in the context of possession.

Although this blog entry on NY PL 220.03 arrests will not address all of the elements of “personal use” drug possession and only analyze the actual possession, to understand any defense your criminal lawyer may assert in challenging a Seventh Degree Controlled Substance arrest or Desk Appearance Ticket (also called a “DAT”) you must grasp the crime of PL 220.03. A person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle.

December 26, 2013

Rude & Unprofessional Conduct by Public Servants: When the Criminal Threshold for Official Misconduct is Breached

by Jeremy Saland

Official Misconduct, a crime codified as New York Penal Law 195.00, is not one of the more common criminal arrest charges in New York. While NY PL 195.00 is atypical in that it only a certain group of people can commit this offense, it is a crime that is equally serious in terms of its potential punishment of one year in jail as it is in its potential to derail careers and livelihoods. Very briefly, you are guilty of Official Misconduct if, as a public servant, with the intent to obtain a benefit or deprive another person of a benefit you either (1) commit an act relating to your office but constituting an unauthorized exercise of your official functions, knowing that such act is unauthorized or (2) you knowingly refrain from performing a duty which is imposed upon you by law or is clearly inherent in the nature of you office.

To help better understand the parameters and elements that constitute the crime of Official Misconduct in the New York Penal Law and New York courts, People v. Carlos Becker, NYLJ 1202633990493 (Sup. BX, Decided November 3, 2013), dissects what may be rude and unprofessional conduct but not the crime of Official Misconduct, PL 195.00. On or about March 11, 2013, Becker, a NYC police officer, pulled over and arrested Erica Noonan for driving while intoxicated. The facts leading up to the Official Misconduct charge included, amongst other things, that the defendant police officer touched Noonan’s breast; that the defendant gave Noonan his personal telephone number so she could call if she needed anything; and, finally, that the defendant made a video recording of Noonan while she was handcuffed, apparently because defendant believed Noonan had a “hot body” (stay classy, officer!). On March 14, Noonan texted the defendant, which resulted in regular communication between defendant and Noonan. During these conversations, defendant, amongst other things, offered to help Noonan with her case by speaking with the ADA and Noonan’s employer; defendant offered to check her DMV record; and defendant sent pictures of himself to Noonan’s cell phone.

December 22, 2013

Scope of First Degree Criminal Contempt: Repeated Phone Calls, Calling Complainant “Bitch” May not Violate PL 215.51

by Jeremy Saland

Other than Aggravated Criminal Contempt, Criminal Contempt in the First Degree is the most serious and severe Criminal Contempt crime in New York. A prior felon would face a potential mandatory minimum of one and a half to three years in prison while even a first time felony offender could end up in prison for as many as four years. Without beating around the bush, if you are arrested in New York for violating New York Penal Law 215.51, expect that your criminal attorney will be fiercely advocating not only to avoid a felony conviction and incarceration, but for a judge to release you from custody at your arraignment.

As rightfully concerning an arrest for First Degree Criminal Contempt may and will no doubt be, it is not a defense to concede your conduct was illegal and throw yourself at the mercy of the court or Assistant District Attorneys. Yes, your defense may be one of mitigation in lieu of challenging the legality of the NY PL 215.51 arrest or the sufficiency of the evidence establishing the crime. However, these latter two defense may be the first line of defense you need to pursue.