New York Criminal Lawyer Blog

December 26, 2013

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

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.

December 16, 2013

What type of Contact or Non Contact Establishes Second Degree Harassment: Defining the Scope of NY PL 240.26

by Jeremy Saland

Harassment in the Second Degree, New York Penal Law 240.26, is routinely an offense that is tacked onto a complaint alleging Third Degree Assault. While Assault in the Third Degree (New York Penal Law 120.00) is one of the most serious misdemeanor crimes, Harassment in the Second Degree has significant consequences, but is far less significant. Having said that, “less” significant” does not mean “insignificant.” In fact, a conviction for violating NY PL 240.26 not only carries a possible jail sentence, but on the more practical side of things there are sealing issues that permit this offense to linger on your “criminal record” for employers and government agencies to later see.

Briefly, you are guilty of Harassment in the Second Degree when you intentionally harass, annoy or alarm another person and you (1) strike, shove, kick or otherwise subject that person to physical contact or threaten to do the same. Alternatively, you (2) follow that person around public places or (3) you engage in a course of conduct or repeatedly commit acts that alarm or annoy that other person without any legitimate purpose. The purpose and issue that will be addressed in this blog entry is what kind of contact constitutes a violation of the first subsection of New York Penal Law 240.26(1), Harassment in the Second Degree?

December 11, 2013

Further Analysis of Common New York Computer Crimes: NY PL 156.35, NY PL 156.30 & NY PL 156.05

by Jeremy Saland

As New York Computer Crime lawyers and criminal attorneys who defend clients in matters far more technical than street crimes and most White Collar offenses, we do our best not only to stay on top of the law, but to also share relevant legal decisions that impact how prosecutors and judges handle and manage computer related crimes. The following case, People v. Angeles, 180 Misc.2d 146 (New York Crim. Ct. 1999), may not be a recent decision or a high level court case, but is one that should help those arrested for a New York Computer Crime gain a better understanding of the charges he or she may face. Three of the more common offenses that Assistant District Attorneys and other branches of law enforcement investigate and prosecute are addressed. These crimes are Unauthorized Use of a Computer (New York Penal Law 156.05), Criminal Possession of Computer Related Materials (New York Penal Law 156.35) and First Degree Unlawful Duplication of Computer Related Materials (New York Penal Law 156.30). The first of these crimes, NY PL 156.05, is a misdemeanor offense while the latter two, NY PL 156.30 and NY PL 156.35, are both felony crimes.

In Angeles, the police arrested the defendant and Assistant District Attorneys charged the accused with Unauthorized Use of a Computer (Penal Law 156.05), Attempted Criminal Possession of Computer Related Material (Penal Law 10.00/156.35), Attempted Unlawful Duplication of Computer Related Material in the First Degree (Penal Law 110.00/156.30 [1]) and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law 165.40).

December 7, 2013

New York Criminal Contempt Information Page: Understanding the Different Crimes of Criminal Contempt

by Jeremy Saland

Criminal Contempt is a crime that generally brings both personal attention and significant scrutiny from Assistant District Attorneys and judges beyond what one would normally expect in a criminal prosecution. Its not that other criminal cases aren’t thoroughly reviewed, but the personal and often domestic component to a Criminal Contempt case forces prosecutors to dig deeper into allegations, protect an alleged victim and even cover themselves should something happen at a later date and it is deemed that at the time of the initial incident, the Assistant District Attorney did not properly handle the case. For all of these reasons and the often very serious nature of a Criminal Contempt case, the crimes in New York of Criminal Contempt in the Second Degree (New York Penal Law 215.50), Criminal Contempt in the First Degree (New York Penal Law 215.51) and Aggravated Criminal Contempt (New York Penal Law 215.52) are all “top shelf” crimes in the eyes of law enforcement and know less serious to defend in the hands of even the most experienced New York criminal lawyer.

Because of the varying degrees and crimes of Criminal Contempt, understanding your exposure should commit a Criminal Contempt crime is important. Second Degree Contempt, NY PL 215.50, is an “A” misdemeanor with a punishment that can be as great as one year in a local (county) jail. First Degree Contempt, NY PL 215.51, is an “E” felony punishable by as much as four years in prison. Aggravated Criminal Contempt, NY PL 215.52, is a “D” felony carrying a sentence of as long as seven years behind bars.

December 3, 2013

Potential Criminal Charges for MTA Train Crash Conductor: What Crimes Wiliam Rockefeller May Face if Arrested

by Jeremy Saland

While there is likely a significant amount of investigation that has yet to occur, the sad reality is that many innocent people were terribly injured and died when a Metro North train from Poughkeepsie skid, rolled and tumbled off the tracks near the Hudson Line’s Spuyten Duyvil station in The Bronx. With Engineer William Rockefeller at the helm of the train allegedly barreling over 80 mph in a 30 mph zone, reports indicate that the Mr. Rockefeller applied to brakes too late causing the death and devastation. Although much more information is needed to fully understand what transpired in the Bronx, and I am not aware of whether or not Rockefeller had alcohol or drugs (prescription or otherwise) in his system, Rockefeller may be in for a long drawn out legal battle not just from those who may pursue civil suits against him and the MTA, but from a potential arrest and indictment by the Bronx County District Attorneys Office.

Before proceeding, it should be very clear that I have no information beyond what is provided through local media outlets. Further, in no way am I insinuating Rockefeller is guilty of any crime. Fortunately, every individual has the presumption of innocence – not guilt – on his or her side. Having said that, if a prosecution is brought against Rockefeller and the Bronx District Attorney seeks an indictment, what are the potential criminal charges?

December 1, 2013

Getting a Better Grasp on New York Computer Crimes: Understanding the Basics of NY Computer Crime Arrests

by Jeremy Saland

It is not uncommon for prosecutors to seek a prison sentence or term of imprisonment for a defendant accused of and arrested for a computer related crime in New York. Although the crimes are generally viewed as white collar crimes and the potential sentences are not as significant as violent or drug crimes, the growing view is that these crimes should no longer be treated with “kid gloves.” While I cannot cite any specific article, it is my opinion as a New York criminal lawyer who handles computer crime investigations and arrests, that prosecutors are taking computer crime offenses more seriously. I believe prosecutors are taking this position because they want to send a message to NYS legislators, as well as those who may commit these crimes, that the government should increase the penalties. If they do not, prosecutors will pursue significant punishment on their own.

With a little personal opinion behind us, the term “computer crime” is vast and encompasses many offenses in New York (each state and the federal government define these crimes differently). In People v. Puesan, 2013 NY Slip Op. 06530 (1st Dep’t 2013), an appellate court addressed four different computer-related crimes. In this case, the defendant, while on leave from his job, and therefore unauthorized to enter its offices or use its computers, entered his employer’s office and installed a keystroke logger computer program on three of the employer’s computers. As a result the defendant was able to use the information he wrongfully obtained with the keystroke logger to gain access to another company program that stored customers’ confidential information (danger, danger!).

November 26, 2013

Is Proper Service Necessary in Order to Find a Later Violation of a Restraining Order: Understanding NY Second Degree Criminal Contempt

by Jeremy Saland

One of the more straightforward arrests and prosecutions handled by Assistant District Attorneys in New York City as well as some of the neighboring counties is Criminal Contempt in the Second Degree. Second Degree Criminal Contempt, pursuant to New York Penal Law 215.50(3), basically occurs or is committed when you violate the language of an order of protection or what is also referred to as a restraining order. For example, if a judge of the Criminal Court, Supreme Court, County Court (outside New York City) or Family Court issues an order of protection in favor of either a complainant or a petitioner, you (as a defendant or respondent) must abide by the language of that order. If that order of protection states on its face that there can be no contact what-so-ever and you call or stop by the other party’s apartment to say “hello” or apologize for past misconduct, you will violate the order. To be very clear, any contact beyond what is permitted, whether it be for kindness or crime, will be the basis for violating an order of protection.

Now that you have a general (yet non legal) idea as to what constitutes Criminal Contempt in the Second Degree, NY PL 215.50, the remaining substance of this blog entry will address People v. Jakubowski, 2013KN044821, NYLJ 1202627740970 (Crim., KI, Decided November, 12, 2013) where the issue was not necessarily what caused the violation of the order of protection, but what constituted a defendant’s knowledge of its existence in order to determine whether a violation occurred. In that case, the defendant was personally served with an order of protection by the victim/complainant in February. In June, the defendant “made eye contact with [the complainant], [gestured] with the [his] finger across [his] neck in a throat-slashing manner, and [took] photographs of [complainant]” – which was in violation of the order of protection. Subsequently, the police arrested the defendant and he was charged with Criminal Contempt in the 2nd Degree (Penal Law 215.50(3)) and Harassment in the 2nd Degree (Penal Law 240.26(1)). In response, the defendant made a motion to dismiss these charges.

November 21, 2013

Operation Finish Line: Queens Prosecutors Net Dozens of Defendants in Nationwide Trademark Counterfeiting Busts

by Jeremy Saland

What is likely being hailed as a major victory for law enforcement, Queens County District Attorney Richard Brown has announced the arrest of more than two dozen individuals involved in a Trademark Counterfeiting enterprise and the recovery of more than $500,000 in cash and fake goods with a street value of approximately $750,000. According to the Queens DA’s press release, the investigation that netted the haul of contraband and cash was dubbed “Operation Finish Line.” A three year investigation by prosecutors, Operation Finish Line netted the indictment of multiple crews as as well as businesses. These alleged organized crews imported imposter goods from China and distributed fake and fraudulent designer brands, including True Religion and Polo, throughout the United States. These rings generated approximately $10 million annually in their alleged counterfeit scheme.

While the individual and corporate defendants face a variety of crimes, many of the offenses are extremely serious that could result in as much as fifteen or twenty five years in prison. In fact, a dozen of those arrested in Queens face the charge of Enterprise Corruption (New York Penal Law 460.20). NY PL 460.20, is New York State’s version of the organized crime statute used by federal authorities to go after organizations such as the mob. Where there is a common goal, criminal scheme and ascertainable structure, prosecutors pursue this crime as the “hammer” in a criminal case for a very clear and obvious reason. It is certainly not missed by an experienced New York Criminal defense attorney who practices with regularity in criminal and supreme courts. Simply, if you are convicted of Enterprise Corruption as a person who has no prior brushes with the criminal justice system you will still face a minimum term of one to three years in state prison and as much as eight and one third to twenty five years.

November 21, 2013

A Potential Defense to Harassment & Menacing: When the Scope of a Crime is to Large

by Jeremy Saland

Regardless of the degree of the crime, Menacing is an extremely serious offense as both a misdemeanor and a felony. Not as serious, but an offense worthy of concern, Harassment in the Second Degree is an arrest charge that should in no way be taken lightly. New York criminal lawyers know that a conviction for either of these offenses will likely leave you reeling for years to come. Because of this, finding legal and evidentiary ways to challenge these arrests are always on the forefront of any defense. The below case is just one example of a legal based approach to these Menacing and Harassment.

The court in People v. Boyette, 2013 NY Slip Op. 23314 addressed the “scope-of-time,” that encompasses an allegation and how it relates to both Menacing and Harassment. In Boyette, the defendant was convicted of, among other things, 2nd Degree Menacing and 2nd Degree Harassment. On appeal, the Appellate Term reversed and dismissed the charges against the defendant.