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Section 1192 of the New York Vehicular and Traffic Law (VTL 1192 ) sets forth what constitutes Operating a Motor Vehicle While Under the Influence of Alcohol or, as most people call it, Drunk Driving, DWI or DUI. The consequences of a conviction can be life changing in terms or a criminal record, but also on one’s ability to drive a vehicle in New York. Having represented a variety of clients in all types of DWI arrests in New York City and Westchester County from Aggravated Driving While Intoxicated to Driving While Ability Impaired, I understand that often time the process may not always seem fair to defendant driver accused of criminal activity. That is, as a DWI criminal defense attorney I must ensure that the prosecution and police are upholding my client’s Constitutional rights rather than just eagerly seeking a conviction because some characteristic of intoxication is believed to be present. After all, you might have a legitimate reason for having bloodshot eyes, being unable to perform a finger to nose test or having the scent of what seems to be alcohol on your breath. It is crucial to ensure that fair and legitimate procedures are used when determining if you, as a driver or operator, was indeed intoxicated or under the influence.

On this very point, I’d like to discuss a recent criminal ruling out of Kings County [Brooklyn]. The case- People v. Andrei Hargobind, 2009KN024543, NYLJ 1202544857362, at *1 (Crim., KI, Decided February 29, 2012)- involved charges of VTL 1192(1) “Driving While Ability Impaired,” VTL 1192(3) “Driving While Intoxicated,” and VTL 1180(A) “Maximum Speed Limits.” The main issue was whether or not The People (prosecution) could introduce at trial the results of a “portable intoximeter breath test” given to the defendant at the time and place of his arrest (along the highway).

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Drug arrests for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03, may come in the form of a Desk Appearance Ticket (DAT) or a full 24 hour processing through the system. No matter how you were arrested, however, there are certain mandatory requirements that must be within the four corners of any criminal court complaint. Similar to arrests for marijuana, NY PL 220.03 arrests in Manhattan, Brooklyn, Queens, or any other county in New York City or New York State, involve the possession of certain “banned” drugs such as cocaine, heroin, ecstasy and other narcotics. Irrespective of that controlled substance, in order for prosecutors and Assistant District Attorney’s to have a viable and legal complaint against you, language in that complaint (actually called an “information” once it is legally sufficient), must reflect “proof” that the drugs in questions are in fact drugs. Anyone can merely guess based on appearance or smell, but the law requires more than mere speculation.

The law involving drug possession crimes (whether NY PL 220.03 for controlled substance or NY PL 221.10 for marijuana) definitely favors the prosecution. Years ago, before People v. Kalin, 12 NY3d 225 (2009), courts required that a laboratory analysis or field test be filed with a criminal court complaint in order to remove any legal impediments preventing the prosecution from proceeding with criminal charges. In other words, if prosecutors failed to provide a lab report or field test confirming the presence of heroin, cocaine, ecstasy or marijuana, a defendant would ultimately be able to obtain a procedural dismissal of the charges. As noted above, Kalin altered this rule by permitting the police, when drafting a complaint or signing off on its accuracy, to assert that the drug or marijuana recovered was that particular contraband based on their observations, training and experience (or some combination of this).

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What is a Gravity Knife? Is it illegal to have a gravity knife on my person under New York Law? Under what circumstances can the New York Police search me on a Manhattan Street or a Queens subway station? Once I am arrested for possessing a gravity knife is it possible to get a Desk Appearance Ticket or will I be processed through the system? As an experienced New York criminal lawyer, I often hear these types of questions and answer the same. In this blog post I hope to address at least one of these issues by examining a Brooklyn criminal case involving Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01).

Criminal Possession of a Weapon in the Fourth Degree is a Class “A” misdemeanor. Sure it’s not a felony, but it is punishable by up to one year in jail and will stay on your permanent record. Further, it is rare that an offer of any kind is made at a defendant’s arraignment in most jurisdictions. Because it is highly that a “slap on the wrist” will make a knife case go away – gravity knife or switchblade knife – it is critical to have a basic understanding of the law. There are eight sections under NY P.L. 265.01, which specify the circumstances under which an individual will be found guilty for possessing certain weapons. Without getting into the details here, you are guilty of Criminal Possession of a Weapon in the Fourth Degree if you possess certain weapons that are classified by statute as automatically criminal regardless of your intent. These weapons include a stun gun, gravity knife, switchblade, bludgeon, metal knuckle and dagger.

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As an experienced New York DWI lawyer, I have served many clients who faced drunk driving charges (a.k.a. driving while intoxicated, driving while under the influence, operating a motor vehicle while intoxicated) under New York’s Vehicle and Traffic Laws (VTL) 1192. I have seen many fact patterns and legal issues when representing these clients throughout New York–be it in Manhattan, the Bronx, Brooklyn, Queens, or out in a surrounding county such as Westchester. Naturally then, I was very intrigued when I came across a unique fact pattern in a case from Richmond County (Staten Island) that raised an interesting legal question that has seemed to “pop” up more and more often over the past few years in the DWI context as well as in other arrests. That case is People v. Iryna Tashbaeva, 2011RI003472, NYLJ 1202541705231, at *1 (Crim., RI, Decided January 31, 2012) issue: search and seizure.

In Tashbaeva, the defendant was charged with Operating a Motor Vehicle While Intoxicated pursuant to NY VTL 1192.2 and NY VTL 1192.3. These standard Driving While Intoxicated (DWI) charges are misdemeanors, which are considered a crime and will stay on your permanent record. The former crime is charged when your arrest for DWI or DUI relates to a “blow” of .08 or higher while the latter crime involves “common law” or “refusal” DWIs where there is no scientific reading of BAC. If it is a first time offense, the penalty is a fine of $500 to $1,000, no more than one year in jail, a mandatory license revocation for six months, a potential of three years probation, a driver responsibility assessment of $250 a year for three years, and a requirement to attend a Victim Impact Panel. Further, in order to reinstate your ability or right to drive, you will have to take the DDP. In short (and not surprisingly) getting convicted for DWI has serious long-term consequences far beyond the next day’s hangover.

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Although it is not codified in the New York Penal Law, being a moron, putz or schmuck is arguably a damn serious offense and an epidemic plaguing many communities. If the allegations against Jordan Brooks Amos are true, then he should be thrilled that being an idiot is not a crime. According to the Web Crims, as well as many media outlets, Amos, a possible member of the 99% and Occupy Wall Street, really showed JP Morgan Chase who is boss. Well, at least he made some poor maintenance men and women who work at JP Morgan miserable and unhappy when he allegedly dumped a large bucket of urine and feces inside a ATM station in lower Manhattan. That’ll show the “fat cats,” Amos!

While I sometimes go off track with my blog, the purpose is not to comment on political groups, opinions or leaders. In my years as a Manhattan prosecutor and New York criminal defense attorney, I have certainly had the opportunity to form or articulate opinions. Here, however, I try to stick to the evidence (or lack thereof) and law. Whether Amos and his alleged cronies are members of #OWS or #IMAJERK is fairly irrelevant. If true, poring human waste in a place where regular working people go to access their money to pay bills and entry level or corporate employs go to work to support their families is just, well, stupid regardless of your political agenda.

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Did Meredith Graves get a “good deal” from Manhattan District Attorney Cyrus Vance, Jr. after she accepted his misdemeanor non-jail plea bargain? Did DA Vance do the “right thing” in offering a non-felony plea? Certainly, the technical answer to both of these questions is an unequivocal “yes.” After all, it is not as if Graves, a registered nurse and fourth year medical student, had a legal defense. She could not argue the police lacked probable cause to arrest her or that the firearm in her possession was recovered as a product of an illegal search. Further, as we all know, ignorance of the law is no defense. The practical reality was that other than mitigation, no other true defense existed. In a case such as this, getting prosecutors to deviate down from a mandatory three and one half year sentence on a felony to no incarceration on a misdemeanor is significant.

Despite the fact that the offer is a heck of a lot better than the mandatory prison Graves would have faced if convicted of Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), there is a real issue that I believe prosecutors ignored in resolving this case. Yes, the Manhattan District Attorney’s Office recognized that the firearm in Graves’ possession was illegally possessed in New York, but it was not an “illegal gun.” Graves had a licensed firearm with the proper permits from her home state (whatever they may be). If evidence established that the weapon was purchased illegally, defaced, used in a crime or was involved in weapon trafficking, DA Vance rightfully would have taken a less forgiving approach. Further, unlike an arrest where a firearm is recovered as a result of some other infraction or crime, Graves had attempted to turn in the firearm and check the weapon at Ground Zero when she learned she was unable to possess it there. It does not take a criminal lawyer to recognize that DA Vance took all of this into consideration when ultimately determining what he believed to be the best resolution to this case and deviating from a normal offer or deal.

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Athletes, just like the people who pay to watch them catch balls, shoot baskets and swing bats, sometimes put themselves in compromising situations. Brandon Marshall, a star wide receiver recently traded from the Miami Dolphins to the Chicago Bears, is no different. According to the NY Post, Marshall is accused of punching a woman, Christin Myles, in the face during a late night (actually, an early morning) fracas. It is alleged that Marshall socked the young woman with enough force to give her a black eye. The fight is alleged to have occurred at a club in New York City’s Chelsea neighborhood.

Assuming the allegations are true, Manhattan prosecutors would likely charge Marshall with a top count of misdemeanor Assault in the Third Degree. New York Penal Law 120.00(1) is an intentional crime where you strike another person and cause that person a physical injury. The physical injury element requires substantial pain. Redness, swelling, and a more serious black eye would be enough to reach this threshold. Assuming there is a conviction, you would end up with a sentence ranging from community service or a conditional discharge to three years probation or as much as one year in jail.

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If one of Gotham’s leading tabloids is correct, the dragnet for alleged “Mommy Madam” Anna Gristina’s pimping accomplice is one step closer to exposing its target. According to the NY Post, the Manhattan District Attorney’s Office and the NYPD have their eyes set on 30 year old VIP Life matchmaking recruiter Jaynie Baker as the next arrest in the latest high end prostitution bust.

Despite all the hubbub, Gristina, and possibly Baker, is only charged with a “D” non-violent felony for Promoting Prostitution in the Third Degree. While prosecutors claim the mother of four scored millions of dollars during her time as a madam, she is not charged with Money Laundering, Enterprise Corruption or any other crime. As I stated in an earlier entry, this one count indictment is strikingly “odd.” In the recent past, high end escort services and their proprietors have been charged with significantly more offenses and much more serious crimes than one “D” felony that does not even carry a mandatory state prison sentence.

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If New York was the Biggest Little City in the World, then prostitution would be a taxable source of pleasure for the state and federal government. New York City, however, is not Reno and Anna Gristina is not the proprietor of the infamous Bunny Ranch. According to Cyrus Vance, Jr.’s Manhattan District Attorney’s Office, Gristina ran an enterprise that serviced well healed clients over a fifteen year period. In fact, according to Assistant District Attorneys, Gristina did not run a multimillion-dollar Gotham based prostitution ring alone. Instead, she ran her alleged brothel service with an at-large and unidentified co-defendant.

It is alleged that an Upper East Side apartment was a haven for late night and lunch time lovers who paid millions of dollars to Gristina over the course of fifteen years. It appears that prosecutors spent significant time and money pursuing Gristina and likely have powerful evidence. It is asserted that law enforcement sent in undercover police officers to investigate the alleged sexual fiascos (much to their chagrin and objection one would assume) as well as informants. Reports further indicate that there may be at least fifty hours of surveillance videos and recordings rated at least between “G” and “R” assuming there were no cams set up for a more detailed view. Unfortunately for Gristina, its is alleged that the madam even bragged that her connections in law enforcement would giver her a tip should Big Brother be onto her trysting scheme. Even Jason Itsler, the self proclaimed “King of all Pimps” did not not have that luxury (regardless, both have found themselves in custody during their alleged pimping careers).

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Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.

In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.

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