New York Criminal Lawyer Blog

July 23, 2012

New York DWI Primer: Assessing the Legality of a New York DWI Checkpoint Arrest

Whether you are operating a motor vehicle in Manhattan, Brooklyn, Westchester or anywhere else in New York State, the DWI laws are all the same. For example, if you “blow” and register a .08 or higher BAC, you will face a per se arrest charge of Driving While Intoxicated pursuant to New York Vehicle and Traffic Law 1192.2. As a New York DWI lawyer I have seen District Attorney’s Offices vary in their respective offer thresholds (meaning how high a blow is tolerated) when an individual is arrested for DWI, DUI or drunk driving. However, New York DWI law limits what may ultimately be offered in these DUI cases and what a defendant is required to do in order to regain their your driving privileges.

Beyond potential offers, the manner in which your arrest for DWI occurred in New York may also be relevant in the ultimate resolution. Certainly, if you were observed swerving and almost striking a car or person it is more likely the offer will be more severe if one is made at all. What if, however, your stop and arrest was a product of a checkpoint? While the checkpoint itself is not indicative of the type of offer, if any, you will receive, the checkpoint’s legality and validity is critical. If for some reason you are arrested for Aggravated DWI for blowing a .18, for example, and you were stopped pursuant to a police checkpoint, prosecutors would likely not make you any offer. However, if you had a potent legal defense, such a valid challenge to the checkpoint procedure and implementation, an offer may not be needed at all. Challenging the checkpoint and ultimate search and seizure of your person, as difficult as it may be, is an avenue that should not be ignored. Although it failed in the case below, the following decision offers a good, but very basic, primer on DWI checkpoints.

July 16, 2012

Criminal Diversion of Prescription Medication: Dismissing NY PL 178.10 for Failure to Establish Reasonable Cause

by Jeremy Saland

In substance, New York Penal Law 178.10, Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, prohibits one from knowingly transferring a prescription medication in exchange for anything of value if the individual should have reasonably known that the recipient had no medical need for the medication. This Fourth Degree Criminal Diversion is an “A” misdemeanor and is punishable by a year in jail. For many individuals arrested for NY PL 178.10, whether or not a jail sentence is served is secondary to the potential of being forever saddled with a criminal record even if he or she never steps foot inside a jail cell. Whether a misdemeanor criminal conviction will lead to a termination of employment, a loss of a professional license or certification or cause a myriad of long term collateral issues, properly handing a New York Criminal Diversion of Prescription Medications arrest or charge is critical. While no Criminal Diversion attorney or New York drug lawyer can guarantee a particular defense will ever work, covering each and every base will certainly increase your likelihood of success when challenging the charge against. The following case is an example of this approach where the charge of New York Penal Law 178.10 was ultimately dismissed due to a failure of the prosecution to establish reasonable cause that prescription medication was actually transferred.

In People v. Tracey Dubois, 2012NY020323, NYLJ 1202558131222, at *1 (Crim., NY, Decided May 25, 2012), the police arrested and charged Dubois with violating New York Penal Law 178.10 after he allegedly sold the prescription medication Vistaril (hydrazine hydrochloried) to another individual. In support of the arrest and charge, the New York City police officer claimed that he observed Dubois transfer a small object to another individual in exchange for money. Additionally, the police officer further asserted in the complaint that after a pat-down, his sergeant found a bottle containing nineteen (19) pills of Vistaril in Dubois’ front right pants pocket. Furthermore, the officer contended that Dubois told him in substance the pills were prescription sleeping pills and that he saw an opportunity to sell them. Dubois moved to dismiss the charges against him on the grounds that the facts failed to provide enough evidence to support he had committed the crime of Criminal Diversion of Prescription Medication in the Fourth Degree.

July 9, 2012

Second Degree Harassment: What Can Happen to an NY PL 240.26 Charge When Your Initial Arrest was Unauthorized

by Jeremy Saland

While some New York criminal lawyers, prosecutors and judges use the term “fruit of the poisonous tree,” the wording is not nearly as important as the concept in criminal law. That is, if initial conduct by a police officer is unauthorized, for example, the recovery of contraband or property may not be used against the accused. On a similar note, if the police made an unlawful arrest and you refuse to be handcuffed during that unauthorized arrest, then the charge of Resisting Arrest, pursuant to New York Penal Law 205.30, is not sustainable (Keep in mind that such a determination is not always clear. Certainly, resisting at the time of your arrest because you believe that the arrest is unauthorized is not a smart thing to do!). This blog entry will deal with a similar variation of this theme while addressing the violation of Harassment in the Second Degree pursuant to New York Penal Law 240.26(1).

By way of background, and before addressing the legal decision on this topic, a person is guilty of Harassment in the Second Degree (NY PL 240.26) if and when that person has the intent to harass, annoy or alarm another person and, according to subsection one, that person strikes, shoves, kicks or subjects that other person to any physical contact. Further, attempting or threatening to do the same is sufficient to form the basis of Second Degree Harassment.

July 2, 2012

New York VTL 511 Arrests: Understanding the Knowledge Element in Third Degree Aggravated Unlicensed Operation of a Motor Vehicle

by Jeremy Saland

Driving with a suspended license in New York may seem like no big deal, but Aggravated Unlicensed Operation of a Motor Vehicle (Vehicle and Traffic Law 511, a/k/a VTL 511), is not only serious, but a criminal offense. Although not a part of the New York Penal Law, VTL 511 is an unclassified misdemeanor punishable by up to thirty days in jail. As such, should you be arrested for Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree and ultimately convicted of VTL 511 in New York, you will have a permanent record. It makes no difference whether the issuing state for your license is New York or elsewhere.

Whether a police officer arrests you for VTL 511 and gives you a New York City Desk Appearance Ticket or processes you through court that same day, the law is the same. In a nutshell, if you operate a motor vehicle in New York while your license or privilege to do so in this state is suspended or revoked (and you know or have reason to know), you are guilty of Third Degree Aggravated Unlicensed Operation of a Motor Vehicle. Although the law is fairly clear, how can you “beat” a VTL 511 case if in fact your license to drive in New York is suspended? While I wish there was a catch all answer, the following case demonstrates the significance not merely of the actual suspension or revocation, but the critical element of knowledge in an unlicensed driving allegation. Simply asked, if the People (prosecution) can prove your license was revoked or suspended, do they still need to establish your knowledge of the same? The answer to this question is found the recent decision of People v. Krystal Francis, 10257/2010, NYLJ 1202558131182, at *1 (Sup., KI, Decided May 29, 2012).

June 19, 2012

Obstructing Governmental Administration in the Second Degree: Understanding What Types of Actions Validate a NY PL 195.05 Arrest

by Jeremy Saland

All crimes in New York, whether you are arrested in Manhattan or somewhere in Westchester County, have specific elements that prosecutors must prove beyond a reasonable doubt. While some elements are fairly straight forward, other elements have their own legal definitions or case decisions that are utilized to explain or further define them. One of those offenses that is better understood in the context of legal decisions is the crime of Second Degree Obstructing Governmental Administration. An “A” misdemeanor, a person convicted of New York Penal Law 195.05 faces up to one year in jail. Using the examples above, if that conviction occurred in Manhattan or anywhere in New York City, the time served would be on the infamous Rikers Island. Incarceration in White Plains, New Rochelle, Yonkers or anywhere in Westchester County would be served in the Westchester County Jail.

Regardless of whether, probation, community service or time served is a sentence for NY PL 195.05, prosecutors must have enough evidence to establish the crime and have a legally sufficient complaint. To do so, a misdemeanor complaint must allege (in substances) that you intentionally obstructed or impaired the administration of law or other governmental function or prevented or attempted to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.

June 14, 2012

Drake – Brown Beatdown: Possible Criminal Arrests & Charges After Club WIP Bar Fight in Manhattan

by Jeremy Saland

According to reports, rapper-singers Drake and Chris Brown, along with their respective entourages, OD’d in testosterone and supposed manhood at Manhattan’s club W.I.P. Whether it was the result of one too many cocktail, it is alleged that Drake taunted Brown over the former’s “between the sheets dancing” with the over-hyped songstress, Rihanna. If reports are true, the sensitive Brown and sophomoric Drake engaged in bottle tossing mayhem that resulted in what appears to be some fairly serious injuries. Although this blog entry will not address the civil liability of SoHo’s club W.I.P. or the two Top 40 knuckleheads for the alleged brawl, there certainly could be arrest charges in Manhattan should the police and prosecutors be able to identify individuals and their conduct during the “chivalrous bout” over Rihanna’s honor.

If the police can identify the person who instigated the melee as well as those who were involved in and advanced the shenanigans, prosecutors must also be able to establish their respective actions. Not addressing all of the issues that would arise in a prosecution, what are some of the charges a defendant could face should everything fall into place for the Manhattan District Attorney’s Office?

June 10, 2012

Establishing Unauthorized Use of a Computer & Third Degree Identity Theft in New York Courts

by Jeremy Saland

Prosecutors, judges and New York criminal lawyers are seeing more and more arrests for Identity Theft and Unauthorized Use of a Computer. As misdemeanors, Identity Theft in the Third Degree (New York Penal Law 190.78) and Unauthorized Use of a Computer (New York Penal Law 156.05) are very serious and very real crimes in New York. In fact, not only is a conviction for one of these crimes permanent, but a sentence for up to one year in jail is on the table.

Very briefly, one is guilty of NY PL 190.78 when one knowingly, along with a desire to defraud another, assumes the identity of another person or uses that person’s personal identifying information and either commits another “A” misdemeanor crime (such as unauthorized Use of a Computer) or uses credit or obtains money or property of another person. One is guilty of NY PL 156.05 when one accesses or uses a computer, computer service or computer network without permission.

June 3, 2012

Tiger Woods’ Agent, Mark Steinberg, Arrested for Aggravated DWI in Ardsley, New York: A Practical Criminal Law Analysis of NY DWI Law

by Jeremy Saland

Mark Steinberg, Tiger Woods’ agent, was arrested Saturday evening in the Westchester County town of Ardsely, New York for drunk driving and DWI. According to reports, Steinberg allegedly recorded a .18 on the intoxilyzer. The legal limit in New York State is .08. Once a driver blows .18 or higher on a breathalyzer, the misdemeanor offense is enhanced in terms of potential punishment while possible offers are limited by law from standard Driving While Intoxicated and DWI arrests.

Briefly, Vehicle and Traffic Law (VTL) 1192.2 is New York’s typical DWI statute when the police are able to obtain a reading of ones breath/blood alcohol content, or BAC, of .08 or greater. At one’s arraignment, the court will suspend the driver’s license or privilege to drive in New York for thirty days and require that the defendant meet with a therapist for an assessment. This assessment will address alcohol use, possible abuse and potential treatment. In limited circumstances, the court can conduct a “Hardship Hearing” if the suspension would cause and an extreme hardship for the defendant to get from his or her home to work or school. In such circumstances, a court will not grant this limited conditional license to drive unless the defendant establishes inability to obtain alternative means of travel. It is worth noting that at the Hardship Hearing a defendant must provide evidence beyond his or her own testimony to corroborate and establish the extreme hardship.

June 3, 2012

Foreign Nationals Visiting NYC: How to Deal with Unresolved NY Arrests and Desk Appearance Tickets Still Pending After Leaving the United States

by Jeremy Saland

There are few things more frightful and concerning than being arrested in a nation where you do not reside. Compounding matters, because the United States has a unique criminal justice system, you may not have any idea about the arrest process and what you may face whether you were charged with a crime in New York City (Manhattan, Brooklyn, Queens, etc.), White Plains or some other jurisdiction. Not only will you have to contend with collateral immigration issues of your arrest such as how to renew your visa (if you can), what will you do if you plan on leaving New York and returning home before your case is resolved? For example, if you are issued a Desk Appearance Ticket (DAT) to return to Manhattan Criminal Court weeks after you go back to your home nation, how will you avoid a Bench Warrant from being issued and an arrest upon your return to the United States? Even if you wanted to stay and fight your case, what will happen if you overstay your visa?

Before addressing the issues mentioned above, please note that this blog entry merely addresses misdemeanor crimes in New York and not felony offenses in the context of an arrest of a foreign national. Not only are felony crimes much more serious, but these crimes have a separate set of procedural rules that may not be applicable to their misdemeanor brethren. Having addressed that, some of the more common misdemeanor arrests that foreign nationals face and those I have defended against as a New York criminal lawyer have been shoplifting (Petit Larceny – New York Penal Law 155.25 and Criminal Possession of Stolen Property in the Fourth Degree – New York Penal Law 165.40), possession of drugs such as cocaine, heroin or other controlled substances (Criminal Possession of a Controlled Substance in the Seventh Degree – New York Penal Law 220.03), jumping a turnstile or failing to pay a cab driver (Theft of Services – New York Penal Law 165.15) and possession of a marijuana joint or pipe open to public view (Criminal Possession of Marijuana – New York Penal Law 221.10). Far from an exhaustive list, if you, as a foreign national, provided a local address, the NYPD officer who arrested you may have given you a Desk Appearance Ticket (DAT) for your return to court on a future date. You will not be processed through “the system” in the same manner as if you committed a felony or a similar misdemeanor without establishing ties to New York City.

May 20, 2012

Gravity Knife Arrests in New York: Is a Police Officer’s Mere Conclusion that You Possessed a Gravity Knife Sufficient to Support a NY PL 265.01 Complaint

by Jeremy Saland

The most common crime involving weapon arrests in New York is likely Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 265.01(1). This specific subsection involves per se weapons defined by statute. If you broke this crime down further in terms of the type of weapon involved in a New York City – Manhattan, Brooklyn, etc., prosecution, you would likely find gravity knives and switchblade knives on the top of the list. From personal experience as a New York criminal lawyer and former Manhattan prosecutor, I have seen hundreds of these offenses prosecuted in the criminal courts through NYC Desk Appearance Tickets (DATs) as well as “full” arrests.

For better or worse, the police and Assistant District Attorneys are fairly efficient when prosecuting misdemeanor weapon cases. Sometimes it appears that the complaint charging the accused with a crime is “cookie cutter” in nature. That is, it seems like boiler plate language is used with minimal “fill in the blank” requirements. In fact, some of these crimes, as well as other offenses including Petit Larceny and Criminal Possession of Stolen Property (NY PL 155.25 and NY PL 165.40 respectively), use pre-drafted and box checked supporting depositions. From an untrained eye it seems that all the thought and diligence is taken out of the process.