New York Criminal Lawyer Blog

April 29, 2013

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

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.

March 28, 2013

Understanding Official Misconduct & Obstructing Governmental Administration with a “Brady” Twist: NY Penal Law Sections 195.00 & 195.05

by Jeremy Saland

Being charged with and arrested for any misdemeanor crime in New York is no walk in the park. A New York criminal defense attorney need not advise you of this obvious fact. The reality is, any accusation has significant and collateral consequences. When the crimes involve some alleged form of fraud or dishonesty involving the government, the offense looks even uglier. Two crimes that fit in this mold are Official Misconduct, New York Penal Law 195.00 and Obstructing Governmental Administration in the Second Degree, New York Penal Law 195.05. As ugly as the crimes may be, however, an arrest for either PL 195.00 or PL 195.05 does not equate to guilt beyond a reasonable doubt.

Although I have blogged and drafted materials on both of these crimes, before addressing a recent court decision it is worth briefly explaining the parameters and definitions of these offenses. To be guilty of Official Misconduct pursuant to NY PL 195.00, one first must be a public servant. Further, one must have the intent to obtain a benefit or deprive another person of a benefit. In addition to these elements, as charged in the case discussed below and according to subsection two of this crime, one must knowingly refrain from performing a duty that one is imposed by law or clearly inherent in the nature of one’s office.

March 23, 2013

NYC ID Theft Ring Bust: Manhattan DA Charges Four in Fraudulent Debit Card Scheme – Over $200,00 & 100s of Debit Cards Recovered

by Jeremy Saland

The extent and amount of fraud that is perpetrated by Identity Theft is staggering. As a prosecutor in the Manhattan District Attorney’s Office who spearheaded many multi-million dollar Identity Theft, Forgery and Criminal Possession of a Forged Instrument investigations, arrests and indictments, I have certainly dealt with the underbelly of these financial crimes. As a New York criminal defense lawyer and IdentityTheft defense attorney, I have also represented numerous individuals accused of the same allegations that I prosecuted for years. While I have yet to be shocked by the means in which these crimes are committed or the extent of the alleged criminal networks involved, it seems clear to me that Identity Theft will be the central or greatest crime of our generation.

Along these lines, according to New York City newspapers, the NYPD has arrested four men in another alleged large scale Identity Theft ring. It is alleged that at least four Los Angeles and Las Vegas men (Garegin Spartalyan, Aram Martirosian, Hayk Dzhandzhapanyan and David Kudugulyan) and possible other accomplices, stole hundreds of thousands of dollars from Manhattan banks by utilizing bogus or fraudulent credit cards to withdraw money and cash. More specifically, its is claimed by the NYPD that the accused were caught after one or more of the men attempted to withdraw money from “flagged” bank accounts. Further, upon investigation and the execution of search warrants, $198,000 in money orders as well as $16,000 in cash with 200 fake credit cards were recovered from a hotel room. This was on top of the $5,000 and 92 debit cards and $16,000 and 82 debit cards allegedly recovered from two of the defendants.

March 21, 2013

NYC Weapon & Imitation Pistol Crimes: Understand the Administrative Code and “Reasonably Perceived” Language

by Jeremy Saland

Not all of New York’s weapon crimes are located or found in the New York Penal Law. Certainly, a review of Article 265 of the New York Penal Law will reveal the most serious gun and firearm crimes such as Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03) and the “gravity knife crime” of Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01), but the New York Administrative Code houses many other weapon offenses. Once such misdemeanor crime, an offense that will leave you with a permanent criminal record upon conviction, is AC 10.131(g)(1). According to AC 10.131(g)(1), you are guilty of Unlawful Sale, Possession, or Use of an Imitation Pistol when if and when you “sell(s) or offers to sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived to be an actual firearm.” This crime carries a possible and potential sentence of up to one year in jail on the world class, Starwood resort of Rikers Island.

This blog entry will assess and briefly address the crime of AC 10.131(g)(1) in the context of possessing an imitation pistol. In People v. Ronald Johnson, 2012BX068528, NYLJ 1202591137115, at *1 (Crim., BX, Decided February 19, 2013), an officer from the New York City Police Department in possession of a “black power drill.” The officer observed the “weapon” in the defendant’s waistband. According to the complaint, the officer stated that “said power drill resembled a real .9mm semi-automatic pistol, in that, it was all black in color, and the barrel was not closed with any material.”

March 2, 2013

Gun Arrest JFK Results in ACD Dismissal: New York Criminal Possession of Firearm Arrest Results in No Record

by Jeremy Saland

In the best of all scenarios, the New York criminal defense attorneys and former Manhattan Assistant District Attorneys at Saland Law PC are proud to announce the granting of an Adjournment in Contemplation of Dismissal (commonly called an ACD) on behalf of a client arrested for Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). In a not so atypical set of circumstances, Port Authority Police Officers arrested our client as he attempted to check his legally owned and licensed out-of-state handgun with airline ticket agents at JFK airport (the same would have occurred at LaGuardia Airport). Assuming he was compliant with the law prior to his arrest for NY PL 265.03, our client secured the firearm in a hard side case, removed the ammunition from the pistol and voluntarily advised the airline representatives of his possession. Unfortunately for our client, ignorance of the law is no defense for a Weapon Possession crime and our client faced the wrath of New York’s strict firearm laws.

Whether or not you agree with New York’s gun laws and possession statutes, compliance in one state does not mean compliance in New York. Where your possession would be non criminal elsewhere, your possession of a legally owned and registered out of state firearm in New York City or an airport in Queens becomes a class “C” felony if the gun is loaded. Remember, loaded in the eyes of the law is much more liberal and does not require bullets or ammunition actually in a chamber, cylinder, cartridge, etc.

February 26, 2013

Falling Like a House of Cards: Resisting Arrest Dismissed as a Result of Legally Insufficient Claims of Disorderly Conduct

by Jeremy Saland

One of the more common ways the police and prosecutors can amplify an otherwise insignificant event is by alleging, and ultimately arresting a person for, Resisting Arrest (New York Penal Law 205.30) or Obstructing Governmental Administration in the Second Degree (New York Penal Law 195.05). That is not to say that these crimes are not legitimate offenses and prosecutions are not warranted, but that the conduct for which a person is accused may not based on sound law. To be clear, an arrest for NY PL 205.30, for example, can be established with an accused merely pushing away and refusing to place his or her hands where they can be handcuffed. Despite what an “average” person may believe, to commit Resisting Arrest, one need not become violent or cause injury to an officer. However, before the crime of Resisting Arrest can happen, the reason for that arrest must be lawful. Simply, you cannot be convicted of Resisting Arrest if your underlying conduct is lawful. It is black letter law that “[i]f force is necessary to prevent an unlawful arrest, then force may be employed…” See People v. Cherry, 307 NY 308, 311, (1954) (Having said that, one should not violently or physically oppose the police because one believes one’s conduct is lawful. The courts, not the accused or the police, ultimately make the decision as to the legality of an arrest).

Although I have written on this topic multiple times (a search for “Resisting Arrest,” “205.30” and following the link above will reveal more content), a recent decision once again affirms the above rule. In People v. Coley 2013 NY Slip Op 50167 – NY: County Court, Criminal Court 2013, the defendant was accused of Disorderly Conduct in violation of New York Penal Law 240.20 by standing “in the middle of the above location, a public sidewalk, impeding the flow of pedestrian traffic.” After attempting to issue the defendant a summons for his failure to leave the location, the defendant could not produce any identification. The police attempted to handcuff the defendant who “flailed his arms and twisted his body.”