New York Criminal Lawyer Blog

December 1, 2013

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

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.

November 17, 2013

Acting in Concert & Accomplice Liability: How Far Must You Go to be Liable for Another Person’s Conduct

by Jeremy Saland

New York, like all other states, has its own means to determine whether individuals can be arrested and charged as co-defendants for a particular crime. Obviously, merely being present when a crime is committed by another person is not legally sufficient enough to establish guilt beyond a reasonable doubt (although, do not be shocked if you are arrested and later have to fight to have the matter dismissed). Because presence alone is not enough, what do New York criminal defense attorneys review to determine if an accused’s conduct reaches the level of acting in concert or accomplice liability in any New York arrest?

Addressed in the context of a marihuana (marijuana) sale, In People v. Ramirez, 2013NY046507, NYLJ 1202624767720 (Crim., NY, Decided September 27, 2013), a separately-charged individual sold marihuana to an undercover officer and then, according to another police officer, that individual handed money to the defendant as “part of the above-mentioned transaction.” Afterward, a police officer attempted to place the defendant under arrest, but the defendant ran 1-½ city blocks, refusing to be handcuffed. The defendant’s actions resulted in the arresting officer sustaining injuries. Subsequently, the defendant was charged with Criminal Sale of Marihuana in the Fourth Degree (New York Penal Law 221.40), under the theory he acted in concert with or as an accomplice to the separately-charged individual (the principal), and Resisting Arrest (New York Penal Law 205.30). While the defendant made a motion to dismiss both charges, the court only dismissed the marihuana crime.

November 13, 2013

In a New York Identity Theft Prosecution Must the Prosecution Prove the Alleged Victim Suffered an Irreversible Financial Loss

by Jeremy Saland

New York Identity Theft investigations, arrests and prosecutions present themselves in a variety of ways. There are the fairly routine credit card theft and use cases and the more complex web of identity takeovers that extend to social security numbers and other personal identifying information. Although there are different subsections and degrees of New York Identity Theft (New York Penal Law 190.78, New York Penal Law 190.79 and New York Penal Law 190.80), one of the means by which these crimes are prosecuted is through establishing a “financial loss” to the complainant. As a former Identity Theft prosecutor who was part of a grant that led to the establishment of the Manhattan District Attorney’s Office Identity Theft Unit, the predecessor to the Cyber Crime and Identity Theft Bureau, I can tell you that “financial loss” can be in the multiple millions or in the single digits.

Irrespective of the actual “financial loss” suffered, a competent and knowledge New York criminal lawyer or Identity Theft defense attorney needs to fully comprehend the definition and meaning of “financial loss.” People v. Rosario, 2013 NY Slip Op. 23260 (Sup. Ct. New York) helps do just that.

November 9, 2013

When Wrongful Access of a Computer is Not a Crime: Unauthorized Use of a Computer – NY PL 156.05

by Jeremy Saland

With prosecutors seeking to protect proprietary and “secret scientific” information of financial, research, medical and other commercial institutions, it should come as no surprise to criminal defense lawyers regularly practicing in New York courts or those accused of crimes involving computers that Unauthorized Use of a Computer is potential crippling offense. The “lowest” of all New York’s computer crimes, Unauthorized Use of a Computer, an “A” misdemeanor pursuant to New York Penal Law 156.05, occurs when you knowingly use, cause to be used, or accesses a computer, computer service, or computer network without permission. Again, while NY PL 156.05 is not as significant as other New York computer crimes, it is likely one that if convicted would result in not merely your termination from your current employer (assuming it involved an employer-employee relationship), but would be a red flag on any future employment.

Defined in the New York Penal Law, computer service and network are critical terms to analyze in a Unauthorized Use of a Computer arrest. However, equally important is to these elements is whether or not your use of the computer was authorized. In People v. Klapper 2009NY032282 (Crim. Ct. New York County, Decided April 28, 2010), a Manhattan Criminal Court judge issued a surprising decision that puts into question what we all believe is the basis or foundation of permission and authority.

November 4, 2013

Unlawful Surveillance – PL 250.45: From “Up Skirts” to Bathroom Recorders – Must All Defendants Register as Sex Offenders Upon Conviction

by Jeremy Saland

Every criminal arrest or conviction has a collateral consequence. Obviously, some are more severe than others. While an arrest can be humiliating, a conviction can strip us of many rights we take for granted, destroy our ability to continue in our career or set a chain of events into action that ultimately result in our deportation. One crime that often has these secondary consequences is the New York felony crime of Second Degree Unlawful Surveillance. Unlawful Surveillance in the Second Degree, New York Penal Law 250.45, is routinely viewed by prosecutors in an extremely different light than the accused (as noted by the intensity of these prosecutions). While a defendant may argue this was a crime of opportunity by an otherwise “good” person, a police officer, detective or Assistant District Attorney, is more likely to view this crime as a premeditated and malicious act. Yes, your criminal lawyer or Unlawful Surveillance defense attorney may seek to convince a prosecutor that the recording was one act, a prosecutor may counter that it was many acts. In fact, it is fairly common for prosecutors to execute search warrants on mobile phones and other recording devices. When or if they find evidence of the current arrest charge or past acts, its is equally common for prosecutors to stand firm with a felony charge.

Irrespective of the above arguments in an Unlawful Surveillance case by either your criminal lawyer or the prosecutor, avoiding a felony conviction is critical. Yes, a felony can land in prison, but long after your case is over, NY PL 250.45 has significant ramifications. New York State Correction Law § 168-a[2][e] establishes that a person convicted of subdivision two (2), three (3) or four (4) of New York Penal Law 250.45 is a “sex offender.” As such, if you are convicted, like a rapist or child molester, you must comply with the New York State Sex Offender Registration Act (“SORA”). While your level may not be as high as those individuals convicted of the crimes I just mentioned, to a certain extent, registration is registration. The level wont matter to your neighbors, employer, etc. You are deemed a sexual predator by society.

October 30, 2013

When Sharing Cigarettes is a Crime: The Low Level Threshold for Prosecuting Endangering the Welfare of a Child (NY PL 260.10) in New York

by Jeremy Saland

Whether its the Administration of Children’s Services (also called “ACS”), the New York City Police Department or a prosecutor from Manhattan to Brooklyn or anywhere in the State, being accused of a crime that endangers or threatens a child’s well being is a serious matter. Arguably, even the mere allegation without an arrest for Endangering the Welfare of a Child (New York Penal Law 260.10) is enough to brand you in your community, neighborhood or building with a “scarlet letter.” Its is safe to say that at the first sign of any investigation or impending arrest, consulting with your Child Endangerment lawyer or criminal defense attorney may be one of the smartest moves you can make. After all, even your innocent and reasonable statement in your own defense can be construed as something more sinister.

Beyond discussing the allegations of child neglect or even a more serious criminal Assault against a child with your New York criminal defense attorney, educating yourself on the criminal statutes and how courts interpret the laws is also critical. What is the threshold for Endangering the Welfare of a Child? How far must you go and must your actions be intentional? The following recent case decision may not answer every question you have about this “A” misdemeanor, but certainly sheds light on how non-violent conduct can land you in jail for up to one year.

October 16, 2013

Brooklyn DWI Arrest Leads to Disorderly Conduct Due to Potential Mistrial After Cross Examination

by Jeremy Saland

Saland Law PC, a New York City criminal defense firm founded by two former DWI prosecutors and DWI defense attorneys, is pleased to announced a resolution to a case a long time in the making. Although the initial offer required a plea to the misdemeanor crime of VTL 1192.3 (also called “common law DWI”) with an opportunity to later re-plea to Driving While Ability Impaired (“DWAI”) pursuant to New York VTL 1192.1, our client rejected this deal and proceeded to trial. In the midst of the cross examination by Saland Law PC of the New York City Police Department officer who effectuated the arrest, the prosecution offered our client a plea to Disorderly Conduct (New York Penal Law 240.20). Instead of facing a potential conviction that would require our client taking the DDP, being fined hundreds of dollars and having our client’s license suspended, our client’s case was immediately sealed without any conditions.

After the prosecution conducted their direct examination of the officer who arrested our client for DWI (sometimes called “DUI”), Saland Law PC cross examined the witness on numerous inconsistencies between the police paperwork and his testimony. For example, the officer testified at a earlier hearing that the accused drunk driver was traveling westbound on the Belt Parkway, but later contradicted himself. Even more significant, the officer testified inconsistently between the initial hearing and paperwork regarding “watery blood shot eyes.” At trial, the officer testified our client’s eyes were clear. Further, while the prosecution stated in substance that our client drank numerous glasses of wine during the opening statement, the officer testified that our client only admitted to drinking one glass. The list of inconsistencies extended well beyond what is addressed above, but not all of these errors were exposed before the prosecution made an offer mid-trial.