New York Criminal Lawyer Blog

January 6, 2011

Identity Theft Crimes in New York: When Concurrent Time May be a Consecutive Sentence

Identity Theft (New York Penal Law section 190.78, New York Penal Law section 190.79 and New York Penal Law section 190.80), one of the more prevalent crimes prosecuted by Assistant District Attorneys in New York, is often associated with offenses such as Criminal Possession of a Forged Instrument, Forgery and Grand Larceny. More often than not, when and if there is a plea to multiple charges in an indictment, the sentences run concurrent. This means that the sentence on all of the crimes run at the same time as opposed to after each other (this is called consecutive). One of the reasons that a sentence is completed this way is because the crimes are all part of the same transaction.

As noted above, in the realm of Identity Theft crimes in New York, the offenses are often times not on an island, but part of other criminal schemes. Therefore, one would hope that if a plea is the best option, that plea would run concurrent to other sentences. Sadly, for one individual, this was not the case.

January 2, 2011

New York Burglary Crimes: Does the Prosecution Need to Establish Your Intent to Commit a Particular Crime

by Jeremy Saland

Regardless of the degree, Burglary in New York (NY Penal Law sections 140.20, 140.25 and 140.30) requires that at the time you unlawfully enter or remain in a building you also have a simultaneous intent to commit a particular crime. Well, not really…This entry deals with the question of what the prosecution must prove regarding an accused burglar’s criminal intent and whether or not they must prove the intent to commit a specific crime.

The Court of Appeals, New York’s highest court, has addressed this issue in the past and answered it in a clear and decisive way. Prosecutors do not need to establish the particular crime that the accused intended to commit when he or she either unlawfully entered or remained in the building. The Court went as far as asserting that “[h]ad the Legislature intended [that the prosecution prove a specific crime] it could easily in revising the Penal Law have inserted the word ‘specified’ or the word ‘particular’ between ‘a”‘ and ‘crime.'” People v. Mackey, 49 N.Y.2d 274 (1980)

December 26, 2010

A New York Shoplifting Attorney & Criminal Lawyer’s Perspective: Civil and Collateral Consequences Beyond A NY Shoplifting Arrest or Desk Appearance Ticket

by Jeremy Saland

If your arrest for Shoplifting in Manhattan or issuance of a Shoplifting Desk Appearance Ticket in Brooklyn was not enough, a store security guard just tried to intimidate you into forking over hundreds of dollars to settle a future suit against you by the retailer. Obviously, you have consulted with a New York Shoplifting lawyer who has experience representing clients arrested for Petit Larceny (New York Penal Law 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40). During that discussion with your New York criminal defense attorney you addressed the criminal consequences of a conviction or plea and collateral consequences to certain dispositions, but you may have forgotten to have a conversation regarding the civil ramifications. New York General Obligations Law Section 11-105 is the statute in New York State that gives retailers the authority to pursue civil actions against those arrested for or accused of crimes such as Shoplifting. It is extremely important to note, for a retailer to pursue this remedy for your allegedly criminal conduct, the retailer does not have to wait for a conviction or resolution of the case. In fact, it is fairly typical for store security officers to shove an agreement to pay a fine in the face of a detained person. They then prey on this fear to force or coerce that person to pay a ridiculous fine…even if he or she is innocent. Unfortunately, the law allows retailers to collect up to five times the value of the stolen property or $500 (whichever is greater).

If you survived being bullied into paying this fine, whether or not you do so in the future is something you should discuss with your New York criminal defense attorney. Will a suit against you be filed? What is the likelihood? If one is filed and you do not respond, will a judgment be entered against you? How will this impact your credit? Will lawyers or a collection agency pursue you? Again, these are questions you should be asking your counsel who should not only be discussing criminal and collateral consequences of a Shoplifting arrest or Desk Appearance Ticket, but civil ones as well.

December 24, 2010

New York DWI / DUI Laws – VTL 1192: A NY DWI Lawyer Explains the Difference Between “Driving” and “Operating” Under the Law

by Jeremy Saland

New York DWI and DUI Laws (Driving While Intoxicated and Driving Under the Influence) are codified in the Vehicle and Traffic Law. More specifically, New York VTL section 1192 is where the various charges for drunk driving can be found. Regardless of the particular subsection, an experienced New York DWI attorney will tell you that the critical element of any DWI or DUI charge is that the person accused must be “operating” the motor vehicle. This operation does not mean the person must actually be driving the vehicle. In other words, the car need not be moving down the street or highway as the defendant is applying the gas and steering the vehicle.

To better understand the difference between “driving” and “operating,” consult with your New York DWI lawyer who can explain the charges against you and how the evidence in your case does or does not fall within the bounds of the law. Having said that, the following article may be a starting point to educate yourself so you can vet your case with your counsel and he or she can properly advise you.

December 23, 2010

New York Embezzlement Lawyers Get Top Result: Client Charged with $25,000 Grand Larceny Avoids Felony & Jail

by Jeremy Saland

Saland Law PC, a New York white collar criminal defense firm founded by two former Manhattan prosecutors, is pleased to announced a recent “victory” and “top result” on behalf of a client charged with Embezzlement Grand Larceny in the Third Degree (New York Penal Law 155.35) and Identity Theft in the First Degree (New York Penal Law 190.80). Our client, an accountant and former board member for a not-for-profit organization in New York City, faced up to seven years in prison on each charge after prosecutors alleged that he had opened up a line of credit in a board member’s name. The District Attorney’s Office further claimed that our client used the board member’s information to maintain that line of credit. Ultimately, prosecutors concluded that our client funneled $25,000 from the bank for his own use.

Despite the allegations of Identity Theft as a means to perpetrate the Grand Larceny and Embezzlement, we successfully argued that the complainant had actually given our client the authority to open the account many years earlier even though the complainant initially denied this. Fortunately, we were able to find some corroboration to this defense. Ultimately, after a few months of wrangling, prosecutors agreed to dismiss the felony Identity Theft charge against our client and reduce the felony Grand Larceny charge to one misdemeanor count of Petit Larceny (the “shoplifting statute”). Although our client ultimately pleaded to the Petit Larceny in full satisfaction of all of the allegations against him, our client avoided the career ending and life altering collateral consequences of a felony conviction. Moreover, he did not have to make any restitution as part of his plea. Make no mistake. A misdemeanor is still a crime, but not as devastating as a felony with the associated maximum of seven years in state prison and restitution in the amount of $25,000.

December 19, 2010

Making a Misdemeanor Assault in the Third Degree a Second Degree Felony in New York: When an Object Becomes a “Dangerous Instrument” & a Weapon

by Jeremy Saland

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be “bumped up” to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a “dangerous instrument.” As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as “dangerous instruments” where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a “deadly weapon” or a “dangerous instrument,” then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a “deadly weapon” or “dangerous instrument.”

December 15, 2010

Westchester County DWI / DUI Car Surrender Law in Effect: If You are Convicted the County Police May Seize Your Car

by Jeremy Saland

Starting December 15, 2010, if you are convicted of DWI or DUI (Driving While Intoxicated) in Westchester County, New York, you will have another collateral consequence to deal with beyond your criminal record. Whether it is in White Plains, Yonkers, Mt. Kisco or any other municipality, if you are arrested by a Westchester County Police Officer and you are convicted of any DWI crime found within VTL 1192, a local allow permits the seizure of your vehicle. To be clear, the law only applies to DWI convictions associated with the Westchester County Police as opposed to Driving While Ability Impaired (a violation and not a crime) or arrests made by local municipal police officers or New York State Troopers.

It remains to be seen whether this law will be challenged and many issues are certain to arise.

December 15, 2010

Report: Heidi Jones, ABC News Weather Anchor & Meteorologist, Arrested & Charged After Allegedly Lying About Attempted Rape

by Jeremy Saland

According to the New York Post, Heidi Jones, WABC’s weatherwoman and meteorologist on channel 7, was arrested after she claimed she had been raped this past fall. It is alleged that Ms. Jones claimed that a man had tried to drag her into an area of Central Park in Manhattan, but failed after people passing by came to her aid. It is alleged that the police became suspicious after it took Ms. Jones approximately two months to report the incident and inconsistencies developed in her story after being questioned multiple times.

Based on the New York Post’s report, it appears that Ms. Jones is charged with New York Penal Law section 240.50(3)(a) – Falsely Reporting an Incident. Although the article does not specifically mention this section and the case information is not on the New York State Court System website, New York Penal Law 240.50(3) states in pertinent part:

December 14, 2010

New York Criminal Defense Lawyers Get Another Top Result: Assault in the Third Degree (New York Penal Law 120.00) Dismissed

by Jeremy Saland

It is unquestionably the best outcome or as close as one can get. Saland Law PC, a Manhattan based criminal defense firm founded by two New York criminal defense attorneys and former Manhattan prosecutors, obtained a dismissal of all charges against a client accused of Assault in the Third Degree (New York Penal Law 120.00). Our client, a doctor, was alleged to have “pummeled” another man in a dog run after a dispute involving their dogs. The complainant had two alleged “witnesses,” actually friends, who claimed they saw the entire incident. Although the complainant had no visible injuries (we requested picture numerous times to no avail) and was seen in fine health the following day by witnesses not tied to either party, the prosecution was bent on going forward. Compounding matters, the complainant’s personal injury attorney called our client within days to see if our client wanted to settle to avoid a lawsuit (he received a resounding “no”).

Fortunately, at least three or four independent witnesses (not friends with either party) saw the incident and asserted that our client never struck anyone. Despite providing these witnesses to the prosecution, the District Attorney’s Office only offered a Harassment violation. Because our client did no wrong and the complainant saw him as a deep pocket for his lawsuit (not only did the “victim” fail to tell the prosecution he was suing, our investigation revealed this was not the first time he sued someone else or was involved in litigation), our client refused this offer.

December 9, 2010

White Plains Mayor Adam Bradley Convicted of Attempted Assault and Other Crimes: Criminal Lawyer Analysis

by Jeremy Saland

Adam Bradley, the mayor of White Plains New York and a former New York State assemblyman, was convicted after a bench or “judge” trial in White Plains. Initially charged with Assault in the Third Degree, Witness Tampering and Criminal Contempt, a judge convicted Mayor Bradley of Criminal Contempt, Attempted Assault and Harassment. Mayor Bradley faces up to one year in jail on the Criminal Contempt, ninety days in jail on the Attempted Assault and fifteen days in jail on the Harassment conviction. Although there is no minimum term of incarceration (Mayor Bradley may get no jail at all), if Mayor Bradley is sentenced to jail his sentences would run concurrent and not consecutive.

The charge of contempt stems from the initial allegation that there was contact by Mayor Bradley with his wife, Fumiko. When an order of protection or restraining order is in place, the order specifies or limits some or all contact with the complainant by the defendant. If, for example, there was a full order of protection limiting any contact with a complainant, a violation or contempt would technically occur even if the complainant decided to ignore the order and talk to or be with the defendant. A complainant’s willingness to ignore an order of protection issued by a court is no defense for the accused to continue or maintain contact. In part, this is because the order of protection is a court order and not subject to the desire of the complainant barring an amendment of that order.