New York Criminal Lawyer Blog

July 31, 2013

Felony Gun & Pistol Possession in NY: PL 265.01-b(1) & PL 265.01-b(2)

Not mean to be a political statement in any way, the following is arguably a simple “fact.” Prosecutors in New York City and the surrounding suburbs have little sympathy and compassion for individuals arrested for firearm and weapon crimes. This assertion can be attributed to those crimes where a gun, pistol or other weapon is stolen and defaced or where the gun in question is legally registered, but not within the borders of New York City or New York State. The message is clear from these District Attorneys. Do not bring unlicensed firearms into their respective jurisdictions even if it is legally owned and carried elsewhere. If you do, you will be arrested and prosecuted for a wide range of potential felony crimes including Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02), Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01)and the newest member of the “illegal firearm family,” Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)).

Prior to the enactment of NY PL 265.01-b(1), Criminal Possession of a Firearm, in order for an illegally possessed gun or pistol to be bumped from a misdemeanor to a felony crime, the firearm had to be possessed outside the home or place of business and be loaded (it must always be operable as well). If it was not harsh enough that New York law deems a gun loaded even when ammunition may not be inside the weapon, the New York Penal Law has created an even more sever punishment for possessing a firearm without any ammunition at all. To be very clear, if you possess a gun or a pistol in New York without a permit, you will no longer have the “luxury” of facing only a misdemeanor crime. Instead, your knowing possession of the illegal and operable firearm is an “E” felony and carries a sentence by as much as four years in prison. Again, it makes no difference in the eyes of the law if the firearm is stolen or one that you legally owned in Iowa, Alabama or California because if you do not have a license or permit in New York (or New York City), your possession is a violation of the law.

July 27, 2013

I Used My Employer’s or Colleague’s Checkbook or Credit Card to Make a Purchase: Potential New York Crimes Part I

by Jeremy Saland

Fraud involving credit cards, debit cards and checks is rampant in New York City and New York State. It is likely that a day does not go by where a person is arrested for a crime relating to check or debit card fraud. After all, its fairly easy in terms of perpetrating and the results are often instant. It is not until days, weeks or months later that a complainant victim catches on or the police are notified. Unfortunately for the accused fraudster, that immediate gratification of a purchase or cash is grounds for an arrest and potentially incarceration for a litany of crimes and offenses found in the New York Penal Law. Although as a New York criminal lawyer and former Manhattan prosecutor I have encountered in some capacity all of these crimes, the creativity of the means by which these frauds are perpetrated never ceases to amaze me. While this blog entry will not address the different scams, it will address many of the potential crimes you can face if you commit credit card, debit card or check fraud in New York. Second Degree Forgery: NY PL 170.10

When you sign the receipt for the debit card or credit or you endorse or draft the check, you are altering or completing what is legally construed as a “written instrument.” Further, when doing so, you are affecting a legal right and interest. As a result, you are committing a “D” felony of Forgery in the Second Degree (New York Penal Law 170.10) that is punishable by up to seven years in prison. There is no monetary relevancy placed on the item you attempted or in fact purchased for this particular charge. The mere signing or apparently signing the name of the account holder along with these other elements that satisfies the felony offense of PL 170.10. Second Criminal Possession of a Forged Instrument: NY PL 170.25

July 22, 2013

A Review of First Degree Falsifying Business Records: How Actions of a Third Party Can Still Violate NY PL 175.10(1)

by Jeremy Saland

While felony arrests and investigations involving Second Degree Forgery (New York Penal Law 170.15) and Second Degree Criminal Possession of Forged Instrument (New York Penal Law 170.25) are two of the more common fraud crimes in New York City and New York State, there are certainly many more crimes involving deceit and fraud that are prosecuted by Assistant District Attorneys and defended against by New York criminal lawyers. One of these crimes, Falsifying Business Records in the First Degree (New York Penal Law 175.10), may not be as serious as the felony Forgery and Forged Instrument crimes, but an arrest for this felony is one that can land a first time offender with no criminal history behind bars for an extended period of time. In fact, the punishment and sentence for this “E” felony of First Degree Falsifying Business Records is as much as four years in prison. This blog entry will specifically address subsection one of First Degree Falsifying Business Records (NY PL 175.10(1)) and how indirect actions or secondary results can still be criminal.

Generally, a person is guilty of PL 175.10 when he or she has an intent to defraud that involves the commission or intent to commit another crime or the concealment of another crime and when he or she makes or causes a false entry to be made in the business record of an enterprise. Wordy? Maybe, but at its core and in non legal terms, if you are trying to hide a theft or commit a larceny and in the course of this crime you intentionally make false entries in the records of a business, you would be guilty of felony Falsifying Business Records (this is merely an example and would need further vetting to see if the crime was actually committed and each element satisfied).

July 13, 2013

You Assaulted Me! Understanding New York Misdemeanor Assault Crimes (PL 120.00) Beyond Common Perception

by Jeremy Saland

One of the most common questions that arise in the practice of New York criminal law from the perspective of both a prosecutor (Assistant District Attorney) and a criminal defense attorney or lawyer is when an assault is an Assault (note the big scary capitalization of the word). That’s right. When does an accused’s conduct go from noncriminal in nature to actions that are legally sufficient to establish the crime of Assault in the Third Degree?

Is a slap different than a closed fist punch in the eyes of the New York Penal Law? What about a shove, kick or pinch? Do any of these constitute a misdemeanor offense punishable by as much as a year in jail? At what point has your conduct and resulting injury reached the level of New York Penal Law 120.00, Assault in the Third Degree? Generally speaking, you are guilty of NY PL 120.00(1) if and when you intentionally cause physical injury to another person, but how far are courts willing to go under pressure by Assistant District Attorney’s to prosecute those they believed have committed a crime?

July 9, 2013

What Happens if You Cannot Appear in NYC Court for Your Desk Appearance Ticket: Scenarios & Ramifications

by Jeremy Saland

More often than not, if you are arrested in New York City for certain misdemeanor crimes such as PL 155.25, PL 165.40 (the “NYC shoplifting crimes“), PL 120.00 (assault), PL 220.03 (“personal use” drug possession) or PL 165.15 (service theft), the New York City Police Department will give you a Desk Appearance Ticket instead of holding you overnight in jail (assuming this is your first offense and you have a local address). Just as this is a common way to deal with those who qualify in terms of the arrest charge and tie to New York City, the vast majority of New York criminal lawyers would agree that an appearance ticket, or DAT, is the way to go should it be an option. Having said that, however, there are circumstances where getting a DAT instead of immediately being processed can be cumbersome at minimum and problematic at worst. So…let’s address the issue(s) here. What are the consequences for missing your appearance date regardless as to why you were unable to appear and what can you do to rectify the problem should you know of your conflict in advance?

Missing Your Desk Appearance Ticket: Foreign Nationals & Non-New York Residents

July 5, 2013

The Zealous Prosecution of New York Gun and Firearm Cases: When an Injury may not be Caused by Criminal Conduct

by Jeremy Saland

Everyone is scared of guns. After all, some horrific incidents have corroborated why many lawmakers in New York believe the strict firearm laws of the New York Penal Law are necessary. While there is little doubt that firearms in the wrong hands are overwhelmingly dangerous and laws must be enacted and enforced to protect the public and prevent the misuse of weapons, a blanket fear of firearms does not necessitate over zealous prosecutions. Just as the owner of a lawfully registered out of state firearm can be charged with a felony for attempting to legally check his weapon at a NYC airport (JFK Airport, for example), other individuals may be charged with weapon crimes that really are not consistent with the hyper-technical conduct of the accused.

In People v. Evans, 2013 NY Slip Op 1950 – NY: Appellate Div., 4th Dept. 2013, a judge convicted the defendant for Assault in the Second Degree where the crime was based in the reckless possession of a weapon. There, the gun in question was a saw offed shotgun that accidentally misfired and struck another person. Pursuant to New York Penal Law 120.05(4), it is punishable by as much as a seven years in prison if you “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” The question before the Appellate Court was not whether the possession of the weapon in and of itself was illegal, but whether or not it was used in a reckless manner resulting in the serious physical injury.

July 1, 2013

Understanding a New York DWI Hardship Hearing: New York DUI Arrests and the Hardship Privilege

by Jeremy Saland

One of the worst side effects, if that is the proper way to describe them, of a New York arrest for DWI or DUI (pursuant to New York Vehicle and Traffic Law 1192.2) is the unfortunate reality that when you go before a judge for your arraignment the court will suspend your license to drive. For many people charged in New York City with drunk driving or driving while intoxicated, a license suspension may not mean all that much. After all, many denizens of NYC do not have vehicles and instead utilize public transportation. For others, however, a NYC DWI arrest for VTL 1192.2 and its subsequent license suspension can have terrible implications on a career, education or medical treatment. In these cases, a New York DWI lawyer or New York criminal defense attorney representing a client at a VTL 1192 arraignment can request what is commonly referred to as a “Hardship Hearing.”

The law of the New York DUI or DWI Hardship Hearing is found in VTL 1193[2][e][7][e]. Not merely a “regular” hardship, one must suffer an “extreme hardship” if one’s license to drive is suspended. Only then, upon a showing by the accused DWI driver, may the court grant a hardship license or hardship privilege. Even if the court does so, a defendant’s license to drive is still suspended, but driving privileges are restored on a limited basis.

June 24, 2013

Admitting Portable Test Results from the Scene of a New York DWI Arrest to Establish a Defendant’s State of Mind

by Jeremy Saland

Not that you’ll find many sympathetic ears to listen to this complaint, but if you are accused of or arrested for a New York DWI or DUI crime, things continue to lean in favor of local prosecutors. Forget the fact that those in government are considering lowering the legal limit for a drunk driving crime to .05 or .06 (I have heard rumors of both), New York courts are making it easier for the police and Assistant District Attorney’s to use previously inadmissible evidence of driving while intoxicated at trial over the objection of New York criminal defense attorneys and New York DWI lawyers. One such example that both you and your criminal lawyer or DWI attorney need to be aware of is the potential admissibility of a portable breath test (PBT) results taken at the time and place of your arrest. This evidence (it can be terribly damning) can and will be a tool for prosecutors to achieve convictions for crimes including VTL 1192.3.

In People v. Carlos Palencia, 1490N-12, NYLJ 1202604831232, at *1 (Co., NA, Decided June 10, 2013), the court addressed the admissibility of the PBT used at the scene of an arrest as proof in People’s direct case. There the defendant was charged with VTL 1192.2. While courts are mixed, many say the PBT can solely be used to establish probable cause for a DUI arrest while other courts are permitting its use as direct evidence of intoxication assuming the proper legal foundation is established first. In an interesting twist, however, the prosecution sought to introduce the PBT results in Palencia for a different reason than those described above. That is, Mr. Palencia did not “blow” into an intoxilyzer (breathylizer) and the data was not needed to established he violated VTL 1192.2 by having a BAC .08 or higher. Instead, the People sought to introduce the evidence as to the defendant’s state of mind. More clearly (in non legal jargon), it was the prosecution’s position that the fact that the defendant knew what he blew at the scene should be used to established the defendant’s state of mind (guilty knowledge) when he refused to provide a legal sample back at the police station. Because he knew he was intoxicated at time one, he refused to blow (according to prosecutors) at time two.

June 10, 2013

Does Merely Asserting “Substantial Pain” Satsify the Prosecution’s Burden to Sustain a Complaint for Third Degree Assault (NY PL 120.00)

by Jeremy Saland

You slap someone in the face. Certainly its not nice, but is it a Third Degree Assault in New York? You punch someone in the gut. Again…not nice…but is it an Assault in the Third Degree? You kick someone in the ribs (maybe they deserved it and you were merely defending yourself this time!). Ouch….but should you be arrested for violating New York Penal Law 120.00(1)? An “A” misdemeanor that will smack you with a lifelong criminal record, while you may need a criminal lawyer to counsel you through the criminal process in New York, you certainly don’t need a criminal defense attorney to tell you that an arrest for PL 120.00 is potentially a life changing matter.

Whether you are issued a New York City Desk Appearance Ticket (commonly called a DAT or an appearance ticket) for PL 120.00 or you spend 24 hours waiting in jail to see a judge, the law of Third Degree Assault is fairly straight forward on its face. That is, if you intentionally (there is also a reckless provision) cause physical injury to another person, you are guilty of misdemeanor Assault. Seems fairly easy for a prosecutor to prove, right? While it certainly may be fairly simple for a New York City (or any jurisdiction for that matter) Assistant District Attorney to establish in a complaint or prove beyond a reasonable doubt at trial, not everything is as easy as it seems.

May 15, 2013

When a Mere Conclusion by the NYPD Cannot Sustain a Complaint for PL 220.03

by Jeremy Saland

The ease by which the police can arrest and Assistant District Attorneys can prosecute denizens of New York City (or any municipality in New York State) for drug crimes can be greatly concerning. Merely because one is a New York drug lawyer or a New York criminal defense attorney should not give one permission to be blind to the serious consequences of the drug trade and use. With that in mind, however, more than one person has been accused of a narcotics crime such as Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03), based on weak or wrong evidence.

For better or worse (which need not be debated here), the law formerly required that a prosecutor provide a laboratory test result or a field test from the police to move forward with a narcotics or drug criminal case beyond the initial arrest. Without this corroboration, the complaint against an accused drug user or seller would contain hearsay. Now, as a result of People v. Kalin, “the sworn allegations by the arresting officer [that the substance in question was a drug are] sufficient to satisfy the requirements of an information.” Simply, an officer, while not compliant with the “old law,” may state that based on his observations, training and experience, the substance in question is a particular contraband. Upon doing so, the complaint becomes an information without any scientific analysis of the alleged drugs. Again, while we need not debate the merits of this case and law, it is clear to even the untrained eye that an officer can be completely wrong as to the nature or presence of a controlled substance, but an accused will still be arrested and prosecuted for a crime he or she did not commit.