New York Criminal Lawyer Blog

June 6, 2011

Legal Impossibility: Can a Conviction Stand for Possessing Stolen Property if the Property is Part of a Police Sting

In New York State, if you knowingly possess property and that property is held by you for your benefit or to impede its recovery by the rightful owner, then the crime of Criminal Possession of Stolen Property has been perpetrated. This is true whether the possession of the property is in the context of taking a wallet off of a bar in White Plains, taking cash from a table at a restaurant in Brooklyn or shoplifting from a department store anywhere in New York City. Having said that, there is an interesting and critically important fact that can downgrade your offense. In other words, if you are charged with the “A” misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), the crime may be knocked down to a lesser “B” misdemeanor of Attempted Criminal Possession of Stolen Property (New York Penal Law 110/165.40). The legal concept that forms the basis of this downgrade is known as legal impossibility. Often times this legal concept occurs in the area of sting operations set up by the police, but is not exclusive to sting operations.

The Court of Appeals, the highest level court in the State of New York, has grappled with the issue of legal impossibility in the past and has done so specifically in the context of Criminal Possession of Stolen Property. In People v. Zaborski, 59 N.Y.2d 863 (1983), the Court upheld or re-affirmed a lower appellate court’s decision that where police set up a sting involving the fencing of stolen property by supplying the property that was previously stolen, the completed crime of Criminal Possession of Stolen Property was not perpetrated and could not be perpetrated. The Court stated that “[a]t common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods.” Simply put, you cannot steal property that is not in fact stolen even though at one point it may have been. The Court further elaborated on the issue of legal impossibility and stated that “[a]lthough the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf.”

June 2, 2011

New York Criminal Lawyer Identity Theft Crime & Punishment Information Page: New York Penal Law Sections 190.78, 190.79 & 190.80

by Jeremy Saland

Identity Theft, one of the most significant and frequently prosecuted crimes in New York City as well as the State of New York, is a growing concern for prosecutors and law enforcement. Although there are many New York criminal lawyers who have a general knowledge of the crimes and punishment associated with Identity Theft, they may not have a command of the statutes. Those statutes are New York Penal Law 190.78 (Third Degree Identity Theft), New York Penal Law 190.79 (Second Degree Identity Theft) and New York Penal Law 190.80 (First Degree Identity Theft). While Identity Theft in the Third Degree is a misdemeanor punishable by up to one year in jail, Identity Theft in the Second and Third Degrees are “E” and “D” felonies punishable by up to four and seven years in state prison respectively.

Because many people do not fully understand the nuances of the Identity Theft criminal statutes, Saland Law PC has put together a New York Identity Theft Crime Information Page. The purpose of this page is not to give advice to those accused of Identity Theft crimes or to attorneys representing clients charged with Identity Theft offenses, but to be a source of education for anyone interested in learning more about New York criminal law.

May 31, 2011

Mahmoud Abdel-Salam Omar & Dominique Strauss Kahn: Two Financial Titans & Two Distinct Sex Crimes

by Jeremy Saland

If true, Mahmoud Abdel-Salam Omar and Dominique Strauss-Kahn, both arrested in Manhattan after allegedly making sexual advances (and then some) on two members of hotel staff at NYC’s Pierre and Sofitel respectively, are both in serious criminal trouble. While the two men have much in common, both are top financial leaders and businessmen, foreign nationals and have an alleged libido that is likely slightly smaller than their egos, the outlook on their cases from purely a legal standpoint are drastically different. In other words, the former head of the International Money Fund and the current chairman of El-Mex Salines Company and former president of the Egyptian American Bank and the Federation of Egyptian Banks, are really in two different camps as far as what District Attorney Cyrus Vance, Jr. and his league of prosecutors may have in store.

Putting aside the provability and strength of each case (this is not something a criminal defense attorney would put aside, but for the sake of analyzing the charges) and keeping in mind that the information I have is from what I have read in press reports, the conduct of the two men appears drastically different. That is, Mr. Strauss-Kahn, known as DSK, allegedly had some form of oral sex and penetration in the mouth and attempted to rape the complainant maid. The basis behind the top offense charged against him is not the attempted rape, but that there was alleged oral sexual conduct as a result of forcible compulsion. This crime, Criminal Sexual Act in the First Degree (New York Penal Law 130.50), is a “B” felony punishable by up to twenty five years in state prison.

May 29, 2011

New York Penal Law Sections 221.40 & 221:35: Misdemeanor Marijuana (Marihuana) Sales

by Jeremy Saland

Unlike selling drugs or a controlled substance such as cocaine or heroin (New York Penal Law 220.39), selling marijuana (marihuana) in New York carries a significantly less punishment. Pursuant to New York Penal Law section 221.40, Criminal Sale of Marijuana (Marihuana) in the Fourth Degree, a person is guilty of this crime if they knowingly and unlawfully sell marijuana. A fairly straight forward offense, Criminal Sale of Marijuana is an “A” misdemeanor punishable by up to one year in jail.

An interesting question is whether or not the weight of the marijuana is relevant to New York Penal Law 221.40. While weight of the marijuana is an element that must be proven beyond a reasonable doubt in felony marijuana sales, as long as the prosecution proves that the accused sold the marijuana for “consideration,” ie, money or for something in return, then weight does not matter. See People v. Childs, 40 A.D.3d 270 (1st Dept. 2007). Again, weight is relevant to felony sales, but as long as there was an exchange for consideration, weight has not impact on the charge of Criminal Sale of Marihuana in the Fourth Degree.

May 26, 2011

Jury Convicts New York “Rape Cops” Morenao & Mata of Only Misdemeanor Official Misconduct: New York Penal Law 195.00 & Potential Punishment

by Jeremy Saland

What can only be described as a horrendous result from the eyes of the prosecution and a tremendous result from the eyes of Police Officers Kenneth Moreno and Franklin Mata, a Manhattan jury acquitted the accused NYPD officers of rape and every other felony. What was once a bleak outlook where each man faced mandatory state prison, is now a significantly less dire situation. At the time of sentencing, both Mr. Moreno and Mr. Mata “merely” face up to one year in jail on Rikers Island. Official Misconduct: New York Penal Law 195.00

According to the New York Penal Law, Official Misconduct occurs when a person who is a public servant (such as a police officer), with intent to obtain a benefit, commits an act relating to his office but constituting an unauthorized exercise of his official functions. The accused must also know that such act is unauthorized.

May 26, 2011

AG: $10 Million International Car Theft Ring Taken Down in New York

by Jeremy Saland

Known more for civil enforcement as opposed to handling significant criminal prosecutions like their local District Attorney counterparts, the New York State Attorney General’s Office announced the arrest of 19 people in an international car theft ring. Attorney General Eric Schneiderman, trying to step from the shadow of his incredibly popular predecessor Andrew Cuomo, announced that this alleged New York City based theft ring stole hundreds of vehicles worth in the neighborhood of $10 million. It’s alleged leader, William Cruz, determined what cars were needed on the black market and in turn advised his crew. Because prosecutors believe that Mr. Cruz and his alleged cohorts were part of a criminal enterprise with a true and viable structure, the men of this alleged gang are all being prosecuted for Enterprise Corruption.

A “B” felony, Enterprise Corruption is New York States version of the Federal RCO statute. While often utilized as a statute in the context of organized mob type crimes, as long as prosecutors can establish the existence of a criminal enterprise where the members are in an ascertainable structure sharing the same goal, then prosecutors can charge this offense. Obviously, an indictment such as this is significantly more complex than as it is described. Assuming prosecutors are successful in establishing the elements of this crime, a defendant with no record faces a minimum of one to three years and a maximum of eight and one third to twenty five years in state prison.

May 25, 2011

Gambling Ring Mistakes Staten Island for Vegas: 28 Arrested or Indicted & Over $5.5 Million Recovered in Raids

by Jeremy Saland

I know Staten Island…and it ain’t no Vegas…Whether its cards, ponies, or the pigskin classic, Staten Island (Richmond County, New York) District Attorney Dan Donovan doesn’t want any of it in his county. Unfortunately for 28 people allegedly involved in a gambling ring, this lesson was learned the hard way. Charged with Enterprise Corruption, Money Laundering and Promoting Gambling in the First Degree, many of the defendants face up to 25 years in prison as well as a mandatory minimum term of up to three years incarceration if they are convicted of being a part of the fraud scheme. While not out of the woods, more than half of the alleged co-conspirators are charged with Promoting Gambling in the Second Degree. This “A” misdemeanor is punishable by up to one year jail on Rikers Island.

According to prosecutors, over $5.5 million was seized in law enforcement raids and search warrants executed in New York and New Jersey. The investigation, which culminated in the arrests today and earlier indictments, began two years ago when police began to use wire taps and surveillance to track their targets. These targets, now defendants charged with the more serious felonies, include:

May 25, 2011

Forgery in the Second Degree & Criminal Possession of a Forgery Device: NY Court Limits Scope of Crime

by Jeremy Saland

Forgery in the Second Degree, New York Penal Law 170.10, contains specific statutory language. In substance, some of the critical elements are that the accused must have the “intent to defraud” and “falsely make[], create[] or alter[] a written instrument.” Moreover, in doing so, a defendant must also have “create[d], transfer[ed], terminate[d] or otherwise affect[ed] a legal right.” While the statute also sets forth some specific types of instruments such as wills, a relatively recent appellate court decision (the second highest level court in New York State) refused to elaborate or extend Forgery crimes into other areas. While the decision doesn’t necessary preclude Forgery crimes in New York from extending beyond the specific instruments in the statute, it does help set the parameters of how far assistant district attorneys can go when prosecuting Forgery offenses.

In People v. Carmack, 34 A.D.3d 1299 (4th Dept. 2006), the Appellate Division Fourth Department reversed a conviction at trial where the defendant was alleged to have perpetrated Forgery in the Second Degree. There, the accused was alleged to have spoofed email address and sent out solicitations to other email users. In other words, solicitation emails would arrive in one’s inbox and appear as if it came from another person or friend as opposed to a general “spam” email. Although the emails were sent from the defendant’s computer, a program made it appear as if other entities or people had sent the email when in fact they had not. Finding that emails for a dietary supplement, for example, were not the type of instrument set forth in the statute, the appellate level court reversed the conviction.

May 21, 2011

Dutchess County DA: Vassar College Scammers Indicted for Combined $2.5 Million Grand Larceny in Poughkeepsie

by Jeremy Saland

According to news reports, the Dutchess County District Attorney’s Office has announced the indictment of Arthur Fisher, Jennifer Fisher and Christopher DeSanto, all of Ossining. A Grand Jury indicted the trio for Grand Larceny after they were alleged to have stolen in excess of $2,000,000 from Vassar College in Poughkeepsie. More specifically, Both Fishers are now charged with Grand Larceny in the First Degree, a “B” felony punishable by a minimum of one to three years and a maximum of eight and one third to twenty five years in state prison. Mr. Fisher and Mr. DeSanto are also charged with Grand Larceny in the Second Degree, a “C” felony, punishable by no mandatory minimum term of incarceration, but a maximum of five to fifteen years. Additionally, the Grand Jury indicted Mr. Fisher with eight counts of Forgery in the Second Degree and Criminal Possession of a Forged Instrument in the Second Degree. “D” felonies, these crimes are punishable with no mandatory term in prison but up to two and one third to seven years “upstate.” Although not charged, if the allegations are true it is likely that the Grand Jury could have easily voted a true bill (indictment) against these defendants for Falsifying Business Records in the First Degree. This crime is an “E” felony punishable by up to one and one third to four years in state prison.

According to reports, C&R Construction Services, a fake company created by Mr. and Mrs. Fisher, was alleged to have completed construction related jobs at the college, but never did so. Instead, it is alleged that Mr. Fisher, a project manager at Vassar College, allowed fraudulent invoices to be submitted for jobs that were never done. In total, it is alleged that the Fishers were paid just shy of $2,000,000. Just like C&R Construction, it is further claimed that Mr. Fisher had another bogus company, Good Shepherd Construction, that was involved in a similar scheme netting in excess of over $350,000. Completing the trifecta, the indictment also accuses Mr. Fisher and Mr. DeSanto of allegedly submitting invoices for work that was not completed. As a result, Mr. DeSanto received in excess of $140,000. Although not a defense to the allegations if true, one must wonder or question the oversight, or lack thereof, at Vassar College that would allow someone to steal nearly $2,500,000.

May 20, 2011

Grand Junction Colorado Man Learns New York Gun & Weapon Laws the Hard Way

by Jeremy Saland

Unfortunately for a man from Grand Junction Colorado, a lesson in New York State gun laws did not come early enough. Far from an atypical story, Dustin Forsling was jailed and lost his gun after he attempted to check his firearm with an airline attendant in Queens’ LaGuardia Airport. The unfortunate reality for Mr. Forsling, and anyone who carries a loaded firearm in the streets of New York City who is not specifically licensed in New York State to do so, prosecution has become more common. Compounding matters, the crime he or she will face, New York Penal Law 265.03 (Criminal Possession of a Weapon in the Second Degree) is a “C” violent felony. Irrespective of your ignorance of the law or whether or not you had the intent to use the pistol or revolver in a violent way, the minimum sentence should you be convicted is three and one half years in state prison and the maximum is fifteen years in prison. This is the sentence for a first time offender.

Fortunately for Mr. Forsling, it is likely that his counsel convinced Queens prosecutors that although violent intent is not a necessary element of the crime charged, Mr. Forsling was and is a legitimate man with a legitimate out of state permit. There was no “evil” motive. Moreover, Mr. Forsling was not trying to conceal the weapon, but had it locked away properly and was attempting to check it with the airline. These factors certainly mitigated his otherwise innocent conduct (it is important to note, however, in New York State a firearm is considered loaded by law if it is capable of being loaded and the ammunition is not actually loaded into the weapon).