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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.

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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:

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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

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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.

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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.

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The first defense to any drunk driving charge is simple. Don’t do it. Unfortunately, we all have and will continue to make mistakes whether they are criminal in nature or not. In the realm of criminal law, however, a mistake made by a a good and honest person is often magnified exponentially. Regardless of how it came to be, a charge or allegation of Driving While Intoxicated (DWI / DUI) in New York is a serious offense codified in Vehicle and Traffic Law (VTL) 1192. While the following is not an in depth analysis of the DWI / DUI laws in New York State, the offenses listed below are some of the most common charges:

VTL 1192.1 – Driving While Ability Impaired

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Maybe you stole a couple of sheets from a physician’s prescription pad and made out a completely fake prescription for drugs and medicine such as Vicodin, Oxycodone or OxyContin. Maybe you altered your doctor’s legitimate prescription by increasing the dosage or amount of Xanax, Adderall or Ritalin. Regardless of how the fraudulent prescription is drafted, as long as it is in fact altered you may face the “D” felonies of Criminal Possession of a Forged Instrument in the Second Degree or Forgery in the Second Degree.

If you actually drafted, created or altered the prescription fraudulently, a likely charge you will face is Forgery in the Second Degree pursuant to New York Penal Law 170.10(5). Often times, however, the police and prosecutors do not catch the person in the act of the alteration. Instead, either a search of a vehicle, a person’s clothing or even the retrieval of the forged prescription from a pharmacist will result in a charge of Criminal Possession of a Forged Instrument in the Second Degree pursuant to New York Penal Law 170.25. Regardless of which offense is charged, a conviction for these felonies is punishable by up to seven years in state prison.

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The tax man comes for everyone. Seems like the Queens District Attorney does so as well. While the New York taxing authorities take their payment in money, District Attorney’s Offices seek not just your money, but your freedom as well. Unfortunately for Diana Rabin, an accountant, her mother Lyidmila Levy, sister Alisa Derabin and clients Merced R. Baumer and Nyemah Johnson, they are now facing up to fifteen years in state prison for allegedly attempting to obtain a combined $1.1 million in New York State tax refunds.

Not only are the defendants alleged to have claimed hundreds of thousands of dollars in income, but tens of thousands of dollars in taxes withheld from this purported income. According to the District Attorney’s Office, this income was made up as some of the defendants did not even work.

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Not to be mistaken with Rewarding Official Misconduct (New York Penal Law 200.20), Official Misconduct (New York Penal Law 195.00), is a unique crime prosecuted in New York associated with public servants (defined below). Official Misconduct occurs as follows:

When a public servant has the intent to obtain a benefit or deprive another person of a benefit, he:

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New York County District Attorney Cyrus Vance, Jr. is following his predecesor’s commitment to not only cleaning up crime in the streets, but fraud in the suites as well. This mantra does not stop with white collar crime and DA Vance appears to be ready to build upon the principles and objectives of the Immigrant Affairs Program established under Robert Morgenthau. In fact, DA Vance announced yesterday an indictment of Teresa Nora Martinez for allegations of immigration fraud. If this case and others are any indication, DA Vance is fed up and displeased (dare I say incensed ?) with alleged swindlers and scammers in the arena of immigration fraud. According to the DA, Ms. Martinez stole $12,000 from immigrants after informing them she was an attorney or was associated with attorneys who could assist them with their immigration issues.

The District Attorney press release states as follows:

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