New York Criminal Lawyer Blog

February 12, 2010

New York’s Assault in the Second Degree & Your Criminal Defense: How Prosecutors Can “Bump Up” Assault in the Third Degree (NY PL120.00) to a Felony of Assault in the Second Degree (NY PL120.05(2))

Criminal defense attorneys and lawyers throughout New York City regularly deal with the various crimes relating to and degrees of Assault found in Article 120 of the Penal Law. The most common, Assault in the Third Degree ( New York Penal Law 120.00), is a misdemeanor offense punishable by up to one year in jail. A more serious crime, Assault in the Second Degree (New York Penal Law 120.05), is a felony offense punishable by up to seven years in state prison. Although it will be discussed further below, one of the more common reasons why an intentional misdemeanor Assault in the Third Degree is “elevated” to a felony Assault in the Second Degree is because a “dangerous instrument” is used during the commission of the lesser crime. While there are various legal reasons to raise the level of the crime, where that basis is the use of a “dangerous instrument,” the actual injury inflicted for the misdemeanor and felony level crime is no different. As will be explained below, if you punch someone in the eye and give him a black eye that swells shut you may face the misdemeanor crime. If you do the same thing, but use the heel of your shoe, a baseball bat or even the door of your car, your crime may be elevated to a felony because your use of a “dangerous instrument.” With this in mind, I will first deal with the applicable definitions of the crimes of Assault in the Third and Second Degrees as well as what constitutes a “dangerous instrument.” Once that is done, I will address a few court decisions that have addressed when an instrument is considered “dangerous” under the law and, as a result, and individual had his or her misdemeanor Assault charge raised to a felony offense.

NY PL 120.00(1) – Assault in the Third Degree

February 8, 2010

New York Penal Law 220.03 – Criminal Possession of a Controlled Substance in the Seventh Degree & Your Criminal Defense: Does Quantity of the Drug Matter?

by Jeremy Saland

Whether you are issued a Desk Appearance Ticket (DAT) or you have been arrested in Manhattan, Brooklyn or anywhere else in New York, if you possess a controlled substance you may be charged with New York Penal Law section 220.03. This offense, Criminal Possession of a Controlled Substance in the 7th Degree, is an “A” misdemeanor punishable by up to one year in jail and applies to such drugs as cocaine, crack-cocaine, heroin, extacy, oxycodone, etc. Make no mistake. If convicted of NY PL 220.03, you will have a criminal record that will not just go away. Even a plea to a Disorderly Conduct (NY PL 240.20 – a common offer in misdemeanor drug cases) can have real life ramifications years down the road.

Criminal Possession of a Controlled Substance in the Seventh Degree, NY PL 220.03, is defined as follows:

February 5, 2010

Unlawful Possession of Personal Identification Information (NY PL 190.81, 190.82 & 190.83) & Your Criminal Defense: Does New York Law Require the Use of the Personal Information?

by Jeremy Saland

You have been arrested with a print out of checking account numbers or a list of maiden names of ten different people. Although it is crumpled up in your wallet, you had not actually used the information or attempted to use that information. Well, is the mere possession of that personal information a violation of New York Penal Law Section 190.81, Unlawful Possession of Personal Identification Information?

Pursuant to NY PL 190.81, Unlawful Possession of Personal Identification Information:

February 3, 2010

New York Jail Chaplin Arrested After Allegedly Trying to Bring More Than His Prayers & Well Wishes to Prisoners

by Jeremy Saland

Imam Zul-Qarnain Shahid, a New York City Jails Chaplin, was arrested yesterday after x-rays allegedly revealed he had three razors and a pair of scissors on his person when he attempted to enter a New York City Department of Corrections jail in lower Manhattan. Upon setting off an alarm, corrections officers allegedly recovered the razors and scissors from a bag held by Imam Sahid. There is no public information at this time whether or not he was scheduled to see a particular prisoner or prisoners. As a result of this alleged incident, law enforcement officials state that he is charged with Promoting Prison Contraband in the First Degree pursuant to New York Penal Law 205.25.

New York Penal Law 205.25(1) sets forth this crime as follows:

February 2, 2010

Man Allegedly Pummels Yorkie & Charged with Aggravated Animal Cruelty: Dog Sustains Six Fractured Ribs and Loss of Left Eye

by Jeremy Saland

According to reports, Joseph Graves, the boyfriend of Broadway actress Ashley Yeater, allegedly beat his girlfriend’s yorkshire terrier with a belt buckle. It is further alleged that Mr. Graves admitted to striking the dog when investigators confronted him. Although the case has not been presented to a New York County (Manhattan) Grand Jury, Mr. Graves was arrested and charged with the “E” felony of Aggravated Animal Cruelty pursuant to Agriculture and Markets Law section 353 (AML 353). If convicted, Mr. Graves faces up to 1 and 1/3 to 4 years in state prison although a mandatory term of incarceration is not required by law.

Not only is Mr. Graves accused of striking and injuring the featherweight animal, but the ASPCA’s Joseph Pentangelo stated that he did not seek medical attention for the six pound dog until two days after the alleged incident.

February 2, 2010

Two Men Enter – One Man Leaves: Queens Teacher Arrested in Alleged Pee-Wee Thunderdome

by Jeremy Saland

Joseph Gullotta, a Queens fourth grade elementary school teacher, and Abraham Fox, a teachers assistant, were arrested and arraigned in Queens County Criminal Court after it was alleged that the two adults encouraged and permitted a nine year old and ten year old to engage in a physical confrontation. Both men are charged with two counts of New York Penal Law 260.10(1), Endangering the Welfare of a Child.

According to the Queens County District Attorney Richard Brown:

January 31, 2010

Forgery (NY Penal Law 170.05 & 170.10) of Clothing, Jewelry or Handbags? Does Forgery Only Apply to “Written Instruments?”

by Jeremy Saland

The pertinent part of New York Penal Law sections 170.05 & 170.10, Forgery in the Third and Second Degree, plainly states that one is guilty of Forgery when with intent to defraud, deceive or injure another, a person falsely makes, completes or alters a written instrument.

Depending on what a person forges, the level or degree of the offense may be elevated from a misdemeanor to a “D” or even a “C” felony. For example, if the item forged is deed, will or instrument created by the government, the crime can go from an “A” misdemeanor punishable by up to one year in county jail (Rikers) to a “D” felony punishable by up to seven years in state prison. Moreover, if one counterfeits United States currency, the crime can be bumped up further to a “C” felony pursuant to New York Penal Law 170.15 and is punishable by up to 15 years prison. Well, what about knock off handbags, clothing or other items? Assuming the buyer is not knowingly buying a fake handbag (so, forget the shoppers seeking out “deals” on Canal Street) and the person selling the handbag or other property is presenting it as the authentic product with the intent to defraud the buyer, can the seller be charged with Forgery for making the knockoff handbag or Criminal Possession of a Forged Instrument for possessing the same?

January 27, 2010

Through Rain or Snow…They’ll Steal Your Dough? Westchester Mail Carrier Arrested For $70K Thefts From Residents

by Jeremy Saland

Tensy May Smith, a letter carrier for the postal service who has worked in the town of Pound Ridge (Westchester County), was arrested earlier today in a joint investigation by the Pound Ridge Police Department and the United States Postal Inspection Service.

After receiving numerous complaints of people losing debit cards, gift cards and other items of value, law enforcement set up a sting and executed a search warrant Ms. Smith’s home. According to reports, the police allegedly recovered approximately $70,000 worth of stolen property belonging to residents along Ms. Smith’s delivery route. Moreover, law enforcement caught Ms. Smith “red handed,” when she allegedly was found trying to steal from the mail under the watchful eye of Postal Inspectors and local police.

January 27, 2010

Mets Fan Pleads Guilty to Petit Larceny After Stealing Memorabilia: Yankee Fans Fear Prosecution for Stealing Mets’ Thunder

by Jeremy Saland

A die-hard Mets fan and employee at old Shea stadium, Gerald Tacopino, pleaded guilty today in Queens Criminal Court for the misdemeanor crime of Petit Larceny. When sentenced, Mr. Tacopino was fined $500 and paid just over $800 in restitution. Mr. Tacopino was previously arrested after a search warrant at his residence revealed Mr. Tacopino had stolen 23 Mets security caps, three Mets security jackets, five Mets security shirts, three seat bottoms and one seat back.

District Attorney Brown clearly meant business when he stated:

January 26, 2010

DA: Mother Allegedly Perpetrates Horrific Crime Against Own Child – Dunks Toddler in Scalding Bath After Dirtying Diaper

by Jeremy Saland

What only can be describe as a horrific act if true, a Queens woman is under arrest after she was accused of submerging her three year old son in scalding water. According to the Queens County District Attorney’s Office, Regina Cooper came home to find her son had soiled his diaper. Ms. Cooper allegedly became enraged that the child was not successful in his “potty training” and began swearing at the child and stripping off his clothes. Shortly thereafter, prosecutors claim that the little boy was forced into the scalding water of a bathtub.

District Attorney Richard Brown stated in a press release: