New York Criminal Lawyer Blog

December 28, 2011

New York DWI Law: Is Speeding, Glassy Eyes & an Admission Enough to Sustain a Common Law DWI Conviction in NY (VTL 1192.3)

New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous “types” of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer’s arrest.

In an all too common scenario, maybe you were speeding up the FDR on Manhattan’s East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it’s already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial “couple of drinks.” While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to “blow” up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.

December 23, 2011

Beyond Mitigating a DWI Arrest: New York DUI & DWI Suppression Law

by Jeremy Saland

New York State laws are tough when it comes to Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Police, prosecutors, and judges strictly enforce these types of drunk driving offenses, which are listed under NY Vehicle and Traffic Law (VTL) 1192. Most New York criminal defense attorneys, when representing clients facing DWI crimes in Manhattan, the Bronx, Brooklyn, Queens, or Westchester County, will often try to broker a plea agreement with the respective District Attorney’s Office. The hope is to lessen the potential punishment and fines, avoid jail time and/or a long-term loss of the defendant’s driver’s license. Further, because of the recent changes in New York DWI law (see Leandra’s Law) that require the installation of an ignition interlock device, it is always critical to identify the best defense to a DWI or DUI arrest to mitigate collateral consequences. While pleading a case to a lower offense may be the best defense, there are other viable options to consider when mounting a defense to a New York DWI or DUI charge. For instance, what if the entire police stop was deemed unconstitutional as an illegal search and seizure? A recent case from the criminal court in Geneva, New York brought to light this very interesting – and case specific – legal question.

The case, People v. Palermo, NYLJ 1202519418737, at *1 (City of Geneva, Decided September 28, 2011), involved a man who was arrested after failing a series of sobriety field tests. Employing a savvy tactic, the defense requested a Probable Cause and Suppression Hearing, contending that the police officer lacked probable cause to arrest the defendant. Let’s pause from the case for a moment for a Constitutional Law refresher. The Fourth Amendment of the United States Constitution guards citizens against any unreasonable search and seizure. Over the years the Supreme Court has outlined the parameters of what is reasonable and what is unreasonable. Generally, a police officer must have much more than a “hunch” to stop a driver on the road, and, obviously, an officer must have probable cause to ultimately arrest the driver. Though probable cause can be a fuzzy legal standard, the basic idea is that the officer possessed a reasonable belief that a person has committed a crime. Now because the United States likes to protect its citizens’ rights (as does New York!), the judicial system employs what is called the Exclusionary Rule: evidence collected in violation of a defendant’s constitutional rights, or any “fruits” of the illegal search or seizure, will be inadmissible (excluded) from a prosecution in a criminal court.

December 16, 2011

DA Vance: Multiple New York Identity Theft Crews Defraud UJA Federation Donors & Others

by Jeremy Saland

Stealing more than mere shekels, multiple alleged Identity Theft and check fraud rings pilfered $2 million from high worth individuals including the accounts of UJA-Federation donors. Although Hank Greenberg may not have noticed a few thousand dollars here or there, the alleged fraudsters are getting more than an “Oy Vey” from Manhattan District Attorney Cyrus Vance, Jr. for their alleged identity thieving. In fact, some of the nearly sixty defendants arrested or accused of various crimes are facing charges including Grand Larceny in the First Degree, a “B” felony punishable by a mandatory minimum of one to three years in prison. The maximum for this crime is eight and one third to twenty five years, but these numbers are all skewed should any of these men or women have prior felony records from the past ten years. While alleged gang association does not necessarily mean a criminal past, prosecutors further claim the many of those arrested in New York were members of the Bloods and Crips.

According to the New York County press release as well as numerous media outlets, the scheme (like many involving Identity Theft) was fairly east to perpetrate. For Example, Tracy Nelson, an employee of the UJA Federation, processed donor checks. This access to sensitive and financial information gave her the opportunity to allegedly take pictures and copy account information of donor checks. It is further claimed by DANY prosecutors that Nelson then sold the copies to other thieves who would open fraudulent checking accounts or credit cards with this information.

December 9, 2011

DA Vance: Chase Bank Teller Helps Himself to a Quarter Million Dollar Pre-Christmas Bonus

by Jeremy Saland

According to New York City’s top prosecutor, a Manhattan Chase Bank teller’s passion for the Benjamins may have cost him much more than the $240,000 he is alleged to have swindled from his employer. Unfortunately for Sephoen Tsang, a Chinatown branch worker, Manhattan District Attorney Cyrus Vance, Jr. has escalated the “war” on white collar crimes in recent months with equal passion to Tsang’s alleged thieving ways.

It is claimed by prosecutors that Tsang made numerous fake and false entries into the computer system at Chase Bank regarding the movement of $243,000 in funds. Although prosecutors claim that internal computer systems records from November 29, 2011 appear as if Tsang moved $243,000 from his teller drawer to the bank vault and and then again to the ATM machines, these transactions never transpired. Instead, the money was allegedly stolen outright.

December 7, 2011

Manhattan DA: 94 Arrested & Indicted in TD Bank Fraudulent Check and Bank Account Ring

by Jeremy Saland

“Go get ’em, Cy!” That was likely the cheer that echoed through the halls of TD Bank corporate headquarters after the Manhattan District Attorney and his troops announced the indictment and arrest of 94 individuals in an alleged check fraud and Grand Larceny ring that pilfered approximately $450,000 from the global bank. While the loss of $450,000 has absolutely no impact on the bottom line of such a large institution, and is likely viewed merely as one of the many costs of doing business in the 21st century, such a theft is significant in terms of consumer and banker confidence and security. The alleged fraudsters may have believed they were in a real life Staples commercial when they allegedly looted approximately 90 accounts and spent the ill gotten gains on cards and dice at area casinos (Hey, “That was easy.”), but they were certainly wrong. The sad reality for the accused is that many of those arrested now face up to fifteen years in state prison. Reminiscent of the Queens District Attorney’s Office 16 million dollar and 100 plus person indictments charging Enterprise Corruption, Grand Larceny and other crimes, Manhattan prosecutors, like District Attorney Brown’s crew, are poised to to send a strong message to would be identity, cyber and check fraud thieves. In fact, taking a page out of the book of his predecessor, Robert Morgenthau, for fighting crimes in the streets and in the suites, DA Cyrus Vance, Jr. stated:

“Our job is to protect New Yorkers, whether on the streets, online, or in the banking system. The most recent cases brought by my Office’s Cybercrime and Identity Theft Bureau show how pervasive cyberfraud schemes are, and how they depend on individuals willing to play various criminal roles. Whether you are a ring-leader or a small player, if you are caught committing fraud, you will be prosecuted.”

December 5, 2011

What is Credit Card Fraud in New York: Examining NY P.L. 170.10 & 170.25

by Jeremy Saland

As I have addressed in the past, theft of a credit card or debit card in New York City, and in any of the surrounding boroughs or counties, will result in (at least) the felony charge of Grand Larceny in the Fourth Degree, NY Penal Law 155.30(4). Certainly anyone facing such a charge should consult with New York criminal defense attorney experienced in credit card crimes as the felony they would face is punishable by up to four years in prison. But what about credit card fraud (whatever that actually means!)? Will a perpetrator of credit card fraud be charged with a felony? Are there other charges that may accompany a credit card fraud charge? What evidence does the State of New York have to bring to prove credit card fraud? Let’s briefly address these questions here. After all, it is important to understand the seriousness of the charges a New Yorker can face if they perpetrate one of these crimes.

In New York, one of the crimes credit card fraud will result in is a charge of New York Penal Law 170.10(1) Forgery in the Second Degree. A “D” felony punishable by up to seven years in state prison, Forgery in the Second Degree is a relatively common crime. You are guilty of Forgery in the Second Degree if you fraudulently sign the name of the actual holder of the credit card or debit card on a written instrument (i.e. the transaction receipt). Similar to theft of a credit or debit card, forgery in the second degree does not turn on the value of goods stolen (i.e. the items you purchased by signing the false name on the receipt). If you forged a signature without authority and with the intent to defraud the credit card company and/or the store (or the cardholder for that matter), then you are guilty of Forgery in the Second Degree. It is fairly scary that this one bogus signature has enormous criminal ramifications.

December 1, 2011

Queens DA Obtains Indictments on Nearly $2 Million Car Loan Fraud Scam

by Jeremy Saland

Queens District Attorney Richard Brown keeps motoring on obtaining one Enterprise Corruption indictment after another. Whether the top prosecutor in Queens is chasing down identity thieves, gamblers or other alleged fraudsters, when he finally catches them he brings out the “big guns” found in the New York Penal Law. According to a press release from earlier today, DA Brown has done it again. Eighteen individuals, arrested for and charged with Enterprise Corruption, Grand Larceny, Criminal Possession of Stolen Property, Falsifying Business Records, Criminal Possession of a Forged Instrument and Conspiracy, are all alleged to be part of an auto loan fraud scheme. It appears that obtaining indictments against these individuals was not enough to satisfy DA Brown’s voracious appetite for justice as he also obtained indictments for three separate corporations.

According to prosecutors, eighteen individuals and three corporations have been indicted for their alleged roles in two massive automobile loan fraud schemes that resulted in nearly two million dollars in losses to 18 financial institutions on 47 loans. A fairly basic, yet lucrative, scheme it is alleged that the defendants were involved in obtaining loans to purchase high end automobiles – BMWs, Mercedes, Porsches – with the assistance of “straw borrowers.” These borrowers had good credit that enable them to allegedly purchase vehicles that were later resold or rented on the black market and used in criminal activities.

November 24, 2011

Client with Previous Felony Record Gets Disordely Conduct After Charged with Felony Criminal Mischief

by Jeremy Saland

The New York criminal lawyers at Saland Law PC are pleased to announce a top disposition for a client charged with Criminal Mischief in the Third Degree (New York Penal Law 145.05), Auto Stripping in the Third Degree (New York Penal Law 165.09) and Attempted Petit Larceny (New York Penal Law 110/155.25). The most serious offense, NY PL 145.05, is an “E” felony punishable by up to four years in state prison.

Prosecutors alleged that our client, an individual who had previously been convicted of violating New York Penal Law 265.03 for possessing a loaded firearm, took a brick and smashed it through the back trunk window of a vehicle parked in Manhattan. After allegedly smashing out the window, our client is further alleged to have reached inside the vehicle in the presence of a plain clothes officer and an independent eyewitness. Ultimately, the police arrested our client and the owner of the vehicle assessed the damage at $1,000. Charged with a felony, and previously convicted of a violent felony, prosecutors offered our client a “sweetheart” deal of a misdemeanor plea and restitution. Unhappy with the offer, our client, who was represented by a “public defender,” consulted with and retained Saland Law PC.

November 21, 2011

A Conspiracy of One: Understanding the New York Crimes Against Alleged Manhattan Pipe Bomb Terrorist Jose Pimentel

by Jeremy Saland

In a fairly atypical prosecution by the Manhattan District Attorney’s Office, Cyrus Vance, Jr. and Company are spearheading a case in Manhattan Criminal Court against alleged “lone wolf” terrorist, Jose Pimentel. It is alleged that Pimentel was a step or two away from detonating a shrapnel filled pipe bomb somewhere in New York City in retaliation against the military’s success against certain Muslim extremists. Pimentel faces up to twenty-five years in state prison if convicted not of the terrorism related offense that has galvanized the media, but for possessing an explosive type weapon.

According to reports, The New York City Police Department had been watching Pimentel for sometime after they learned of his alleged terroristic desires. In fact, it appears that Pimentel was the subject of NYPD scrutiny for well north of a year or two. While the story behind the investigation and ultimate arrest of Pimentel is fascinating, this blog entry will not address that investigation. Instead, the focus of this article is dissecting the offenses for which a Grand Jury may indict the accused.

November 17, 2011

UPDATE – Manhattan DA Takes a Bite Out of Crime: Steakhouse Credit Card Fraud & ID Theft Ring Served by Waiters, Grilled by Prosecutors

by Jeremy Saland

While they may be best known for serving choice cut steaks, a few of New York’s most famous steakhouses may need to add an arrest profile to their Zagat’s ratings. According to reports, Manhattan District Attorney Cyrus Vance, Jr.’s prosecutors busted a credit card fraud ring allegedly run by men and women whose day jobs were to serve as waiters at some of New York’s flagship restaurants. From Smith and Wollensky, Capital Grille and Wolfgang’s Steakhouse in Manhattan to Morton’s in Stamford and the Bicycle Club in New Jersey, it is alleged that more than two dozen arrested waiters dined on patrons’ credit card numbers as their unsuspecting customers grazed on filet mignon, porterhouse and the occasional rib eye (bone in, of course). Although the allegations have yet to fully materialize, it is alleged that these waiters stole approximately fifty account numbers from the high-end credit cards, including the fabled American Express Black Card, and used these account numbers to go on expensive shopping sprees.

The means by which these accused waiters perpetrated the Enterprise Corruption, Identity Theft (although not technically charged with this crime), Grand Larceny, Criminal Possession of a Forged Instrument and other crimes is clear. The alleged fraudsters used hand held skimming devices to kick off the alleged scam. Fairly easy to purchase online, these devices can be hidden in one’s palm and can scan a credit card in the time it takes to take one swipe. Once the reader glides over the magnetic strip, the account number is then stored for later use. Armed with the credit card numbers, the alleged defendants then encoded a new credit card with the stolen account number.