New York Criminal Lawyer Blog

August 7, 2010

Exercising Your Miranda Rights in New York & Your Right to Remain Silent: Don’t Be Your Own Worst Enemy

It is extremely atypical to hear of a case where the accused has waived his right to remain silent, told his story to the police or the prosecutor without legal counsel and later walked away unscathed. Although a generalization, this type of behavior often assists law enforcement in making an arrest, or in worse scenarios, obtaining an indictment or conviction. Certainly, your statement may be valuable and be exculpatory (shows your innocence). However, a simple inconsistancy, inadvertant misrepresentation or otther error that you lock yourself into can cause tremendous trouble down the road. If you are able, talking to your New York criminal defense lawyer is something you should do before taking matters into your own hands.

Generally, you must be read your “rights” where the police or a prosecutor have you in custody and are interrogating you. Seems fairly simple, right? Unfortunately, there are a litany of cases determining what “custody” and “interrogation” means. Unfortunately, for one individual, his chatter with a police officer while he was arrested in a precinct did not render his damming statement illegal.

August 4, 2010

Caroline Giuliani Arrested & Issued a Desk Appearance Ticket For Shoplifting: The Law of NY PL 155.25, Possible Scenarios & Your Criminal Defense

by Jeremy Saland

I certainly don’t have the statistics, but countless number of people are arrested and / or issued Desk Appearance Tickets (DATs) in New York for shoplifting and violating the laws of Petit Larceny and Criminal Possession of Stolen Property. Unfortunately for former New York Mayor Rudy Giuliani, at least one local New York City newspaper is reporting that his daughter, Caroline Giuliani, was arrested for shoplifting at Sephora and will join the ranks of the accused. It is likely that she has not and will not go through the system, but will be given a New York Desk Appearance ticket (DAT) that will require her to return to court in lower Manhattan where she will be arraigned.

While the potential offer or disposition in these types of cases vary from county to county, barring the property being valued in excess of a few hundred dollars, it is likely prosecutors will offer her a Disorderly Conduct violation. The Manhattan District Attorney’s Office might move for an adjournment in contemplation of dismissal (the case will be dismissed and sealed in six months) if the value is less than one hundred dollars.Both of these scenarios will include some form of community service. Although a plea or acceptance of one of these offers will not result in a criminal record, a real concern for individuals pleading to Disorderly Conduct is that a background check may reveal the underlying arrest and ultimate plea even though the courts seal the cases. In other words, the “gift” of a shoplifting arrest may not go away. Therefore, it should go without saying that her criminal defense counsel should pursue either an adjournment in contemplation of dismissal or advocate to get the case dismissed procedurally or on other legal grounds if applicable.

August 2, 2010

Is a New York Police Officer’s Unsupported Statement that You Possessed a Weapon in Violation of NY PL 265.01 Sufficient Without Some Basis for That Conclusion

by Jeremy Saland

As a New York criminal defense attorney and a former Manhattan prosecutor, I cannot count the number of cases that I have handled involving the crime of Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 265.01. Whether an individual is issued a New York Desk Appearance Ticket for 265.01 or is arrested and put through the system, often times the issues are the same. What was the basis of the police officer’s stop and search of you? Moreover, for example, although the police officer claimed the knife was a switchblade or gravity knife, is it in fact one as set forth in the New York Penal Law? As noted in a previous entry involving gravity knives and butterfly knives in New York, merely because a police officer or prosecutor states that such a knife is per se illegal does not make it so.

This entry will deal with a different legal issue. Is a complaint against you alleging your possession of a per se weapon sufficient without the deponent, usually a police officer, stating the basis of his knowledge or conclusion? Alternatively, is a complaint against you sufficient where a police officer merely states a conclusion that you are possessing a particular weapon without any explanation?

July 30, 2010

DA: Manager of Tarrytown’s Castle on the Hudson Arrested for Grand Larceny Embezzlement in Excess of $400,000

by Jeremy Saland

Westchester County District Attorney Janet Difiore has announced the arrest of Mourad Boulas, a manager at Castle on the Hudson in Tarrytown, for Grand Larceny in the Second Degree (New York Penal Law 155.40). According to the Westchester County District Attorney press release, Mr. Boulas embezzled in excess of $400,000 during a four year period ranging from December 2004 through October 2008. It is alleged that during this time, Mr. Boulas wrote checks to his wife and to companies created by Mr. Boulas for purpose of siphoning money fom Castle on the Hudson.

Although jail is not mandatory for a first time offender, Mr. Boulas faces up to five to fifteen years in state prison. It is likely that prosecutors will seek some amount of state prison.

July 27, 2010

New York Criminal Defense Firm Gets Top Result: Client Charged with DWI and Driving Without a License Acquitted After Trial

by Jeremy Saland

The New York criminal defense attorneys at Saland Law PC are pleased to announced that our client was acquitted of all charges in Brooklyn Criminal Court after he had been initially charged with and accused of DWI / DUI pursuant to VTL 1192.3, DWAI, pursuant to VTL 1192.1 and Driving Without a License pursuant to VTL 509.

Our client was involved in an accident where an individual struck him from behind rendering his 2000 BMW inoperable. Our client waited on the scene until the police came and the other vehicle drove off. Although he only “blew” a .053 on the Intoxylizer 5000, and the police charged our client with the violation of VTL 1192.1, the Brooklyn District Attorney’s Office bumped the charged to “Common Law DWI,” a misdemeanor. Throughout the case, the DA’s Office had been offering a violation of VTL 1192.1 which we argued was not an “offer,” but merely the “worst case scenario” in that the DWI was not the proper charge (.08 is the legal limit unless prosecutors can establish other characteristics of being intoxicated), but an inflated offense in conflict with the facts of the case.

July 23, 2010

Marijuana / Marihuana Possession in New York: From Unlawful to Criminal Possession & Your Criminal Defense

by Jeremy Saland

While there are bright and articulate people on all sides of the argument to legalize marijuana in New York State, as it stands now the law is clear. Possession of marijuana (“marihuana” in the New York Penal Law) is illegal. In New York City (Manhattan, Brooklyn, Bronx and Queens) as well as in Westchester County, possession of merely a joint can lead to an arrest or issuance of a Desk Appearance Ticket for Unlawful Possession of Marijuana (New York Penal Law 221.05), Criminal Possession of Marijuana in the Fifth Degree (New York Penal Law 221.10) or Criminal Possession of Marijuana in the Fourth Degree (New York Penal Law 221.15).

The issue for most people, however, is not whether possession is illegal or whether they will be issued a New York Desk Appearance Ticket or be put through the system. Instead, a question often asked to New York criminal defense attorneys is what is the potential punishment and, secondarily, how will this impact the accused’s future. This first entry on this topic will address the violation and the misdemeanor crimes involving marijuana possession as well as the potential punishment associated with those offenses. A later entry will address the felony crimes involving the possession of marijuana.

July 19, 2010

Manhattan DA: Two Alleged Identity Thieves Indicted for Stealing Approximately $100K Each from Victims’ Accounts

by Jeremy Saland

Manhattan District Attorney Cyrus Vance landed himself a solid indictment yesterday. If the number of charges are actually any indication of how solid an indictment is, the 106 counts against Nefertit Garnett and 80 counts against Zoe Walmsely are very telling. Charged with Grand Larceny in the Second Degree, Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Scheme to Defraud in the First Degree, and Attempted Grand Larceny in the Second Degree, the defendants are each alleged to have stolen in excess of $100,000 from Chase bank using the identifying information of numerous people.

According to the press release:

July 18, 2010

Reckless Endangerment in New York – NY Penal Law 120.20: When Does Acting Recklessly Constitute a Crime in NY?

by Jeremy Saland

Reckless Endangerment in the Second Degree (New York Penal Law 120.20) is a misdemeanor crime routinely handled by both prosecutors and criminal defense lawyers in New York City and the region. Although seemingly straight forward, the law not only has terms that have their own meaning, but cases that have decided how and when the law is applied. This entry will be the first in a series of “primers” on Reckless Endangerment in the Second Degree (NY PL 120.20). Future entries will address the law as well as the “felony version” of Reckless Endangerment pursuant to New York Penal Law 120.25.

Reckless Endangerment in the Second Degree – NY PL 120.20

July 14, 2010

New York Penal Law 145.65: What is an “Instrument” for the Purposes of Possession of Graffiti Instruments

by Jeremy Saland

Although not often litigated by New York criminal defense lawyers where a client is charged with Possession of Graffiti Instruments, pursuant to New York Penal Law section 145.65, it is important to understand or identify what constitutes a “graffiti instrument.” Certainly, some tools are obvious. Cans of spray paint, markers, etc. are obvious “graffiti instruments” in the right circumstances. Yet, why are those objects “graffiti instruments” and what is the basis of that definition?

New York Penal Law 145.65 sets forth that one is guilty of Possession of Graffiti Instruments when one possess any instrument (even a substance or solution) designed or commonly used to etch, paint, cover or draw upon property. The definition is further expanded to address permission or authority to make such marks and circumstances evincing the intent to damage the property of another. These terms put together establish graffiti instruments.

July 10, 2010

Criminal Possession of a Controlled Substance in the Fifth Degree (NY PL 220.06(5)): Must the Cocaine be 500 Pure Milligrams or 500 Aggregate Milligrams

by Jeremy Saland

A common felony offense charged by police and defended by New York criminal defense lawyers in the arena of controlled substance, narcotic and drug crimes, is Criminal Possession of a Controlled Substance in the 5th Degree pursuant to New York Penal Law section 220.06(5). A serious crime involving the possession of cocaine, CPCS 5th Degree is a “D” felony punishable from one year to two and a half years in state prison for a first time offender. Obviously, if you are a “predicate felon” you will face more time in state prison. Fortunately, due to changes in the Rockefeller Drug Laws, there are potential ways to avoid state prison that should be discussed with your New York criminal defense attorney.

Having briefly addressed the ramifications of New York Penal Law 220.06(5), the following entry will take a step back and (1) define the offense as it relates to cocaine possession and (2) discuss whether the 500 milligrams is an aggregate weight or a pure weight measurement.