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Although legal case decisions establish precedents that New York criminal defense attorneys can sink their proverbial teeth into when attacking a criminal case in New York City or elsewhere, sometimes the practical value of that decision is limited. After all, if the facts or evidence do not establish the point your criminal lawyer is seeking to exploit, the particular legal decisions has limited value. In the arena of New York Desk Appearance Tickets and arrests for gravity knives, pursuant to New York Penal Law 265.01, a decision relating to two companion cases will hopefully be valuable in both the legal and practical context.

The issue raised before the Court of Appeals in the context of a gravity knife arrest or Desk Appearance Ticket was what is necessary to establish an officer’s reasonable cause to believe that the accused possessed a gravity knife as opposed to some other knife or blade? In the two cases, People v. Fernandez and People v. Brannon, the Court of Appeals held (in my own words of course) that in order to establish the reasonable suspicion, there must be articulable factors, but not absolute certainty, allowing the officer to believe that the item in question was an illegal gravity knife as opposed to some other type of blade.

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The most commonly prosecuted Grand Larceny cases in New York revolve around the value of the property in question. Whether there is a theft by embezzlement, trick or extortion, the degree of the Grand Larceny often relates directly to that value. For example, should you steal $2,000 from an employer by embezzlement or trick someone into giving you $2,000 in exchange for a item with no value, your arrest charge would likely be Grand Larceny in the Fourth Degree pursuant to New York Penal Law 155.30(1) because the value of the theft exceeded $1,000, but was less than or equal to $3,000. In such a case,

In 2010, however, the New York State legislature added a new charge that New York criminal defense attorneys must fight against. Now, should you steal that same $2,000 your crime may be raised a degree to the more serious Grand Larceny in the Third Degree. According to New York Penal Law 155.35(2), one is guilty of Grand Larceny in the Third Degree if the property one steals is an automated teller machine (ATM) or the contents of an automated teller machine. Examining this statute further, regardless of the value of the physical ATM, if you hijack that ATM from a convenient store, bodega, or any other establishment, your crime automatically is a “D” felony even if the value of that ATM is $750 or $2,000 dollars. Furthermore, the contents of the ATM are also subject to this statute. Therefore, it appears that if you withdraw funds from an ATM, let’s say $750 for the purpose of this hypothetical, and you are stealing these funds from another person, you would also be guilty of Grand Larceny in the Third Degree based on this statute. Compounding matters, if you perpetrate this crime a second time in a five year period or this is merely your second Grand Larceny, you would also face the elevated offense New York Penal Law 155.43, Aggravated Grand Larceny of an Automated Teller Machine. A “C” felony, Aggravated Grand Larceny is punishable by up to fifteen years in state prison while the “D” felony is punishable by up to seven years in state prison .

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Attorney General Eric T. Schneiderman has a long way to go to fill his predecessor Andrew Cuomo’s shoes, but he announced an indictment today that will certainly keep a crew of criminal defense attorneys busy over the next few months. The indictment, the culmination of a significant investigation where undercover investigators posed as potential nursing students, accuses eleven defendants of operating a fraudulent nursing school and college scheme. The defendants are charged with Grand Larceny in the Third Degree (NY PL 155.35) as well as Scheme to Defraud in the First Degree (NY PL 190.65). A “D” felony, Grand Larceny in the Third Degree is punishable by up to seven years in state prison while Scheme to Defraud in the First Degree is an “E” felony punishable by up to four years in state prison.

It is alleged that the defendants, Robinson Akenami (owner and operator of Helping Angels Foundation of America (HAFA)), Jocelyn Allrich (owner and operator of Hope-VTEC Hope-VTEC a/k/a J. Allrich Productions, Inc., Hope Nursing Tutorial Services, and Tutorial Nursing Prep), Nadege Auguste (owner and operator of VTEC-NY, Inc. a/k/a Life-VTEC), Andre Castage (an Administrator and Admissions Director at International Language and Professional Network, Inc. (ILPN)), Carline D’Haiti (operator of Envision Review Center), Salavatrice Gaston (a second operator of Envision Review Center), Anthony Myers (an administrator and ILPN’s Admissions Director), Rodye Paquiot (an executive at ILPN), Carl Lee Sellers (the Administrator of Hope-VTEC), Frantz Simeon (owner and Executive Director of ILPN) and Jude Valles (established the VTEC franchise) each perpetrated various frauds on unsuspecting students. It is claimed that these men and women lied to students about critical educational issues such as the schools accreditations and that students would be eligible to sit for the New York State Nursing Board Exam (NCLEX).

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Although not arrested by Detective Frank Drebin, for seventeen individuals indicted in Brooklyn because of their alleged involvement in High Class NY, a New York City escort ring, this certainly is “some kind of a bust.” Unfortunately for them, however, there is nothing funny about the predicament they face. According to Charles Hynes, Kings County’s top prosecutor, “[th]ere is no such thing as a high-class pimp, and as we do with all other pimps, my office will prosecute these defendants and seek the maximum sentences available under the law.” Charged in the 144 count indictment, seventeen individuals, including Mikhail Yampolsky; his wife, Bronislava Yampolsky; his son, Alexander Yampolsky; his step-son, Jonathan Yampolskaya and alleged investors Efim Gorelik and Yakov Maystrovich, face some of the highest degree felonies in the New York Penal Code. In addition to these defendants, detectives also arrested Valerii Loboda, Irina Pobukovsky, Ilya Olshansky, Angelo Pascacello, Meredith Harford, Boris Ratovsky, Yury Gorelik, Pinia Ashkinadze, Alexey Senenov and Oleg Lechko. These men and women, as well as five corporations, face a multitude of crimes such as Enterprise Corruption, Promoting Prostitution, Money Laundering, and Criminal Sale of a Controlled Substance.

If it is not overwhelming clear through DA Hynes’ statement, the Brooklyn District Attorney’s Office firmly believes that this alleged crew of pimps and prostitutes, who also dabbled in narcotics and drug trafficking, is being treated not merely as individuals, but as an organized criminal institution. Enterprise Corruption, a “B” felony punishable by a mandatory minimum of one to three years in prison and a maximum of eight and one third to twenty five years in state prison for a first time offender, is New York’s version of the federal RICO statute. In charging this crime and arresting these individuals, prosecutors believe and must prove beyond a reasonable doubt that High Class NY operated with a structure that was both ascertainable in nature, ie, different levels of workers, with a common goal or purpose.

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From shoplifting and drug possession to assault and possessing forged instruments, the New York Desk Appearance Ticket lawyers and former Manhattan prosecutors at Saland Law PC routinely handle Desk Appearance Tickets (D.A.T.s) issued in New York City arrests. While Desk Appearance Tickets are routinely issued to those with verifiable addresses in the New York City area, that is not always the case. Fortunately, the police will occasionally give a D.A.T. to a foreign national with a temporary local address. While this courtesy prevents those arrested from being forced into “the system” for up to 24 hours, it also often creates a future issue that requires the assistance of NYC criminal attorney.

The End of Vacation and Expiring Visas

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Jeremy Saland, a New York criminal defense attorney and former Manhattan prosecutor, was interviewed for a Wall Street Journal article published today addressing the intersection of modern day lawyering and social media. An interesting article, one of the main themes of the piece was how social media – blogs, twitter and facebook – can help an attorney’s marketing and client generation.

Make no mistake. If done the right way, utilizing social media can certainly help drive business to your law practice. The article made this very clear. However, equally important in generating business over time is not only getting the phone to ring, but to be able to service your clients and to do so ethically and diligently. After all, establishing a career that will span decades is not about merely getting a high profile case or one “big fish” client, but in assisting all clients in all matters with the highest degree of professionalism.

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Oscar Fuller, the man accused by prosecutors of obliterating the petite Lana Rosa with one punch, was arraigned on an indictment charging Assault in the Second Degree in Manhattan Supreme Court earlier this April. According to District Attorney Cyrus Vance, Jr., what began as a dispute over a “trivial matter – a parking spot – turned into a vicious and senseless act of violence with dire consequences.”

While I do not believe anyone can credibly argue that Ms. Rosa, who recently awoke from a coma after fracturing her skull, was not hurt catastrophically, legal minds can certainly debate whether or not DA Vance made the wrong (or right) charging decision in this case. Make no mistake, DA Vance had “no choice” but to present this matter to a Grand Jury. If he did not present the case to the Grand Jury, the jury of public opinion would not embrace the top prosecutor well. If the case was presented to the Grand Jury and they did not indict, then DA Vance could always explain that he must respect the process whether he agreed or not with the outcome. Regardless, the Manahttan District Attorney’s Office is now saddled with proving a one punch felony that may not merit such a prosecution based on the actions of the accused as opposed to the end result.

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James Whittemore, the twenty-something Manhattan man arrested for an alleged drunken rampage at the fabled Ed Sullivan Theatre in New York City, is going to a get a sobering reality check when he sees a criminal court judge for the first time. It is alleged by police that Mr. Whittemore trashed the Ed Sullivan Theatre be smashing out windows and tossing garbage pails and other items around David Lettermen’s home stage. While not as disturbing as the crimes perpetrated by Robert Halderman, the actions of Whittemore certainly have left the gapped toothed comedian unhappy to say the least.

Assuming the reports are true, what are the potential crimes that young James may face? As I note in most of my blog entries, I am only privy to the facts set forth in the media, but the following are some of the more serious criminal offenses I believe may be charged based on the limited information that I have:

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As a prosecutor in the Manhattan District Attorney’s Office for over seven years, I supervised and led investigations, arrests, indictments into complex identity theft and fraud related crimes and schemes. One of those investigations and indictments resulted in the conviction of numerous individuals who posed as professional graduate school entrance examination test-takers. These defendants created fake passports and use the identification information of the legitimate prospective student to sit for the GMAT, GRE, TOEFL and other examinations. Indicted for the crimes of Criminal Possession of a Forged Instrument, Falsifying Business Records and Identity Theft, none of the attorneys who represented the accused challenged the crime of Identity Theft based on the theory that their respective client was given permission and authority by the legitimate student to use that student’s personal information to cheat the colleges and universities. If nothing else, the idea that one cannot commit identity theft because one was given permission to use the personal information, albeit to defraud a third party, was worth pursuing in a court of law in light of the other overwhelming evidence. While other crimes may have been perpetrated, an argument could have been made that Identity Theft was not one of them.

Generally, you are guilty of Identity Theft in New York (New York Penal Law 190.78) in New York when, with the intent to defraud, you present yourself as another person by using that person’s personal identifying information. In doing so, also obtain goods, money or some other form of property. This crime is enhanced through the value of the property or goods, as well as through other means to the crimes of New York Penal law 190.79 and New York Penal Law 190.80.

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Dominque Strauss-Kahn, the French national and former head of the IMF, may be celebrating his own Independence Day accompanied with a display of fireworks that would revival any July 4th celebration. According to the New York Post, DSK could “walk” as early as his next court date after Manhattan prosecutors have come to realize there are major credibility issues with the maid from the Sofitel. Not only would a dismissal call into questions the zealousness of prosecutors who rushed into the Grand Jury to obtain an indictment, but the grand finale could have both political and financial ramifications for many parties involved. The encore to this international spectacle would be the consequences of a perceived gaffe on public confidence.

According to the New York Post, a source familiar with the investigation by the Manhattan District Attorney’s Office stated that “[W]e all know this case is not sustainable. Her credibility is so bad now, we know we cannot sustain a case with her.” If recent stories and articles can be believed, this revelation by DA Cyrus Vance’s team seems reasonable. There have been reports in various media sources that the maid’s conversations with an inmate on Rikers were recorded where it was learned that she was seeking to benefit financially from the arrest. Furthermore, allegations that the maid was “servicing” DSK voluntarily and has done so or has tried to to so with other customers recently came to light. If these claims were not enough, reports have further asserted that the maid had numerous accounts with significant deposits that could be tied to “improper” activities. Should have or could have prosecutors known this before heading into the Grand Jury? I do not know the answer, but this may only be the beginning of what appears to be an exoneration and vindication for DSK and a significant blemish for the fabled Manhattan District Attorney’s Office.

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