New York Criminal Lawyer Blog

July 1, 2013

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

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.

May 6, 2013

New York Criminal Lawyers Get Dismissal of Client’s Weapon Possession Arrest of PL 265.01(2)

by Jeremy Saland

With the amount of blog entries I have recently drafted relating to New York weapon crimes including those involving New York firearm laws and knife arrests, one would think that the criminal lawyers at Saland Law PC spend their days solely defending clients against misdemeanor (New York Penal Law 265.01) and felony (New York Penal Law 265.02 and 265.03) weapon arrests. While we certainly do our best to keep ourselves up to date on the ever changing laws and regulations involving New York weapon crimes, this area of law is remains a significant piece of our criminal defense practice. Irrespective of how often we represent clients accused of possessing legally owned firearms at JFK or LaGuardia airports or gravity knives on the streets of NYC, there can be little dispute that many weapon statutes in New York are enforced with greatest of intentions, but often against honest, “clean” and law abiding people.

In a recent example of a “regular Joe” being ensnared in a New York weapon crime, Saland Law PC represented an attorney accused of possessing a knife with a blade exceeding four inches. Further, when arrested with possessing this knife, both the police and prosecutors at the District Attorney’s Office charged our client with violating New York Penal Law 265.01(2). Not the “per se” section of the New York Penal Law, this subsection of Fourth Degree Criminal Possession of a Weapon makes it a crime (in substance) to possess any dangerous instrument (it has a very liberal definition) unlawfully against another person. Keep in mind…under the right circumstances a can of Red Bull or your backpack could be considered a dangerous instrument.

April 29, 2013

All “Weapons” are not Equal: Understanding Subsection Two of Fourth Dgree Criminal Possession of a Weapon (NY PL 265.01(2))

by Jeremy Saland

New York State is on tough place to face a criminal charge. Yea, there are always concerns with New York’s “strict liability” crimes where knowledge, as opposed to intent to commit a crime, is a sufficient basis for an arrest and conviction, but in the realm of New York City and the greater New York State, there are other seemingly innocent actions or items that can form the basis of a criminal arrest. Unlike possessing a gravity knife or switchblade knife where it matters not whether the knife was to be used to cut cardboard or human flesh (see New York Penal Law 265.01(1) – Fourth Degree Criminal Possession of a Weapon), other weapon offenses relate specifically to how you used the item or object in question. So…that pillow, iphone or sneaker may be just as dangerous in the eyes of the law as a set of brass knuckles. Simply stated, you are guilty of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2), if you possess a dangerous or deadly instrument with the intent to use that instrument against another person in an unlawful manner.

To help better understand the misdemeanor weapon crime of NY PL 265.01(2), the following case is a good place to start. While no criminal lawyer would expect that you, as an accused person charged with a misdemeanor offense and given a Desk Appearance Ticket (which does qualify as an arrest, by the way), will read all the relevant statutes and cases, educating yourself prior to speaking to a criminal defense attorney will certainly land you in a better place.

April 23, 2013

NYC Firearm & Gun Arrests: Can You Get Your Firearm or Gun Back from the Police if it was Seized After Your Arrest at JFK or LaGuardia Airports

by Jeremy Saland

Among many concerns that someone arrested for possessing a loaded (or unloaded) firearm, pistol, revolver or similar gun at a New York City airport may face, is how, if at all, the firearm can be returned subsequent to a resolution of the criminal case. Whether you are charged with a misdemeanor gun possession charge at New York’s JFK Airport for possessing an unloaded firearm without any ammunition (New York Penal Law 265.01 – Criminal Possession of a Weapon in the Fourth Degree) or you are arrested for a felony gun possession at LaGuardia Airport for possessing a loaded firearm (the bullets need not actually be in the gun) and charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), the likely answer to this questions is fairly clear. As part of the potential plea, offer or even non-criminal disposition, the Queens County District Attorney’s Office is not going to return that firearm back to you even if it was lawfully owned, registered and permitted in your home state. A case directly on point is the Matter of the Application of Shahin Khoshneviss v. the Property Clerk of the New York City Police Department, 2010 NY Slip Op 30299(U).

In Khoshneviss, the former defendant sought the return of his .45 caliber firearm and magazine clip that the New York City Police Department vouchered. The NYPD came into possession of the firearm after Port Authority Police Officers arrested him at LaGuardia Airport. Like many “regular” and law abiding citizens, Khoshenviss had declared his firearm for transportation on his flight to California from New York City. Ultimately, prosecutors charged Khoshneviss with Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The former felony is punishable by a minimum of three and one half years in prison while the latter misdemeanor is punishable by no more than one year on Rikers Island. Fortunately, Khoshneviss was not convicted of either a misdemeanor or felony, but pleaded instead to a non criminal violation of Disorderly Conduct.

April 8, 2013

Attempted Endangering the Welfare of a Child: When Does Your Conduct Cross the Criminal Line for a NY Arrest

by Jeremy Saland

An arrest in New York for Endangering the Welfare of a Child is one of the more serious misdemeanor crimes in the New York Penal Law. Generally speaking, its not that one “A” misdemeanor is more serious than another (all “A” misdemeanor crimes are punishable by as much as one year in jail), but when an crime, charge or arrest involves children, both courts and prosecutors pay much closer attention. Add this practical reality to Endangering the Welfare of a Child prosecutions and you will quickly realize that the police (NYPD and others), may be inclined to make an arrest for New York Penal Law 260.10 first and then ask the deeper and more relevant questions later. Whether this is the situation for your NY PL 260.10 arrest, a New York criminal lawyer is likely a necessity not only to get you limited bail or released from custody, but to ascertain whether the allegations against you form a legally sound complaint of a Child Endangerment crime.

In terms of your own New York Child Endangerment lawyer or NYC criminal defense attorney implementing the best defense, he or she must have a firm grasp on the law. Certainly, it would help if you, the accused, had the same comprehension. Boiled down to its basic elements, Endangering the Welfare of a Child occurs under the first subsection (NY PL 260.10(1)) when you act knowingly in a way that is likely to be injurious to a child (who is less than 16 years old) in terms of their physical, mental or moral welfare. Alternatively, you direct or authorize that child to engage in an occupation where a substantial risk or danger to that child’s life or health is exists.

April 4, 2013

Can You Vacate a New York DWI Plea if the Court Failed to Advise You of Possible Felony Consequences of a Second DWI Arrest?

by Jeremy Saland

Most people are familiar with New York DWI laws and crimes on a general level. That is, if you drive drunk in Manhattan, drive under the influence in Brooklyn or drive while intoxicated in White Plains, the potential crimes that you face are only one of a few set forth in New York’s Vehicle and Traffic Law. If you “blow” a .08 or higher you will likely be arrested and charged with DWI pursuant to VTL 1192(2) or VTL 1192.2 and if you refuse to give a BAC sample in an intoxilyzer or you display the characteristics of intoxication such as blood shot eyes and slurred speech, you will be arrested for DUI pursuant to VTL 1192(3) or VTL 1192.3. Regardless, each of these crimes are misdemeanors punishable by jail, probation, the Drunk Driver’s Program (DDP) a fine and license suspension.

What is less known by many people including those legal professionals who are not New York DWI lawyers or DUI attorneys, is that a second DWI arrest (actually a conviction) is punishable as a felony offense with a sentence of up to four years in prison. This second drunk driving arrest in New York must be within ten years of the previous arrest and conviction. It is important to recognize that an arrest for VTL 1192.2 or VTL 1192.3 is not enough to establish the basis of the felony DWI crime. Further, if a lesser plea offer is accepted to the violation of Driving While Ability Impaired is accepted (VTL 1192.1 or VTL 1192.(1)), this non criminal disposition will also not be form the foundation of a felony DUI conviction.

March 31, 2013

Per Se Weapons & Fourth Degree New York Weapon Crimes: Defining Bludgeon and Identifying Defense Practices in a NY PL 265.01 Arrest

by Jeremy Saland

There are countless means in which a non-weapon, if used in a particular way, becomes a weapon in the eyes of the law. In New York, a tree branch, spoon, pair of shoes or just about anything else, if used in violent and assaultive way, can be the basis of an arrest for Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2). Beyond the offense of PL 265.01(2), there are specifically identified items or objects that are automatically weapons irrespective of the manner in which they are used. The two most common weapons outside of firearms are gravity knives and switchblade knives. Possession of these weapons in New York City, Westchester County or, for that matter, Lake Placid, all constitute a violation of Criminal Possession of a Weapon in the Fourth Degree pursuant to subsection one of PL 265.01. Whether your arrest is for NY PL 265.01(1) or NY PL 265.01(2), the crime is punishable by a year in jail. Whether your best defense to a weapon arrest is to mitigate your conduct, attack the search or challenge whether the object in question is in fact a weapon, is something critically important to address at the earliest stage possible with your own New York criminal lawyer or New York weapon attorney.

When deciding how to defend against an arrest for PL 265.01(1), if you are immediately processed or receive a New York City Desk Appearance Ticket is really not that important. If the police or prosecutors are wrong on the law, the vehicle or manner of your arrest and prosecution is of no significance. Instead, an examination of the evidence is critical. While the following case does not identify when a knife, for example, qualifies as a gravity knife, it does address one of the enumerated weapons of Fourth Degree Criminal Possession of a Weapon. Therefore, the message of the case, if not the actual weapon in question, is important to understand.