New York Criminal Lawyer Blog

January 15, 2014

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

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.

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?