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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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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.

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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.

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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).

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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.

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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.

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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.

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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

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