New York Criminal Lawyer Blog

December 1, 2009

A Reverse Subsidized Rent: Manhattan Building Manager Indicted for $1.3 Million Theft

A Manhattan building manager has managed to get himself into hot water with the Manhattan District Attorneys Office. According to Robert Morgenthau’s prosecutors, Mark Modano, of Mark Modano LLC, was arrest and indicted in connection to an alleged five year fraud beginning in 2003 and ending in 2008. It is alleged that during this period Mr. Modano siphoned $1.3 million from clients for his own personal use.

Charged with three counts of Grand Larceny in the Second Degree (NY PL 155.40), a class C felony, three counts of Grand Larceny in the Third Degree (NY PL 155.35), a class D felony and one count of Scheme to Defraud in the First Degree (NY PL 190.65), a class E felony, Mr. Modano faces up to 15, 7 and 4 years respectively if convicted.

November 28, 2009

New York’s “Wholly Inconsistent” Shoplifting Standard: NY Case Law & Applicability to Your Criminal Defense

by Jeremy Saland

Whether you were arrested or issued a New York Desk Appearance Ticket (DAT) for Shoplifting pursuant to New York Penal Law sections 155.25 (Petit Larceny) or 165.40 (Criminal Possession of Stolen Property), the legal standard is the same. Regardless of the crime, police officers in New York City and throughout the state, must have probable cause to arrest you. If not, your criminal defense attorney or lawyer must file a motion for the dismissal and to request a Dunaway hearing (other hearings might be applicable as well). Beyond this basic legal right that you have to prevent unlawful arrests, there are other factors that should be addressed by your criminal defense attorney. The following is a brief analysis of one of such factor.

According to People v. Olivo, 52 N.Y.2d 309, 310 (1981), the Court of Appeals, New York’s highest court, has found that in order to sustain a conviction for shoplifting, one’s actions must be “wholly inconsistent with the rights of the owner.” Taken further, the Court of Appeals found that “[i]f a customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and other elements of the crime are present, a larceny has occurred.”

November 27, 2009

JDate Swindler a Real Catch: Beau Arrested & Investigated for 400K in Thefts from Girlfriends

by Jeremy Saland

According to a report, Martin Berres, a 62 year old New Yorker, has allegedly ripped off his internet lovers for multiple hundreds of thousands of dollars. Arrested yesterday, Mr. Berres is scheduled to return to court November 27th where he faces one count of Grand Larceny in the Second Degree, a class “C” felony, punishable by up to 15 years in state prison.

Mr. Berres allegedly met two women on JDate, a Jewish internet dating website. One of those women was allegedly victimized by Mr.Berres earlier this month when her 7-carat diamond necklace was stolen. The police believe Mr. Berres not only stole that necklace from her apartment, but sold the $50,000 piece of jewelry for $11,000. Additionally, the Manhattan District Attorney’s Office may be investigating whether Mr. Berres perpetrated the crimes of Identity Theft, Forgery, Falsifying Business Records and Grand Larceny when a girlfriend’s bank account and credit card was emptied and used to the tune of $360,000. Earlier this year, according to a report, Mr. Berres stole a girlfriend’s identification and withdrew $10,000 from her Chase bank account.

November 25, 2009

New Driving While Intoxicated (DWI / DUI) Blood / Breath Alcohol Content (BAC) Calculator: Understand the Factors Impacting Your BAC Before You Need a Criminal Lawyer

by Jeremy Saland

While you shouldn’t need a NY criminal defense attorney to tell you it is a bad idea to get behind the wheel of a vehicle in New York State (or any state for that matter) after having consumed alcohol, Saland Law PC has provided our readers with a tool that can assist them in understanding how much alcohol one must consume before one is legally intoxicated. In New York, that legal level to sustain a conviction for Driving While Intoxicated (DWI /DUI) is .08. However, even if one’s BAC is not recorded, courts can still find one guilty under the “Common Law” DWI / DUI statute that is satisfied through observations of drunkenness on the part of a police officer.

The tool linked on our DWI / DUI web page, should not be used as a means to guide you as you are drinking to ascertain whether you are “ok” to drive. There are too many factors that need to be taken into consideration and in no way will this calculator give you an exact determination of your BAC. Under no circumstance should it be relied on for that purpose. Instead, the calculator is a means to get a general understanding of the relationship between your weight, type of alcohol, amount of alcohol and time of consumption on your BAC.

November 23, 2009

Florida to New York Firearm Trafficking Ring Disarmed: Brooklyn DA Announces Arrest and 105 Count Indictment

by Jeremy Saland

The Brooklyn District Attorney’s Office has announced that along with the 105 count indictment against Watson Joachin and Ryan Woodard for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.

According to to the Brooklyn District Attorney’s Office:

November 22, 2009

The “Bump Up”: Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02(1))and Your Criminal Defense

by Jeremy Saland

Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Pursuant to Penal Law section 265.02(1), a person is guilty of Criminal Possession of a Weapon in the Third Degree if such person commits the crime of Criminal Possession of a Weapon in the Fourth Degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime. That is right…if you were ever convicted of a misdemeanor Trespass, Petit Larceny for shoplifting, or even Theft of Services for jumping a turnstile and you are now arrested for having a switchblade in your pocket, prosecutors can charge you with a felony. The ramifications are enormous as the misdemeanor is punishable by up to one year in jail and the felony by up to seven years in state prison.

November 18, 2009

Leandra’s Law a Reality: Current Misdemeanor DWI to Become Felony if Child in Vehicle

by Jeremy Saland

The NYS Senate, Assembly and Governor have all agreed. If you perpetrate the misdemeanor crime of DWI / DUI in New York and there is a child in the vehicle who is 15 years old or younger, then the crime will be “bumped up” to an “E” felony punishable by up to 1 and 1/3 to 4 years in state prison for a first time offender. Prior to this change, one could be charged with misdemeanor VTL 1192.2, VTL 1192.3 and 1192.4 (New York’s DWI / DUI statutes) as well as the misdemeanor Endangering the Welfare of a Child in the event one drove drunk with a child in the car (certainly, other charges might be applicable as well). From the NYS Senate press release:

“Under Leandra’s Law, driving impaired or with at least a blood alcohol level of .08 with a child passenger age 15 and under, is a Class E felony – for both first-time and repeat offenders. The offense carries a sentence of one to four years in state prison, a fine of $1000 to $5000, and the issuance of a mandatory ignition interlock device.”

November 18, 2009

Bagel Man Hides the Dough: H & H Bagels Owner Arrested for General Tax and Unemployment Insurance Tax Fraud

by Jeremy Saland

Whatever the recipe, the dough was a little too sticky. According to the Manhattan District Attorney’s Office and Robert Morgenthau, a Grand Jury has indicted bagel wholesaler Helmer Toro for Gand Larceny, Offering a False Instrument for Filing and violating the labor law through unemployment insurance tax rate manipulation. Prosecutors allege that Mr. Toro, the owner of H & H Bagels, collected, but failed to pay, $369,318.77 withheld from his bagel business employees. This occurred during a six year period from 2003 through his arrest in 2009.

According to the Manhattan District Attorney’s Office:

November 17, 2009

New York to Have Toughest DWI / DUI Law on the Books? Leandra’s Law Target’s Driving While Intoxicated With Passengers Under 15

by Jeremy Saland

According to reports, “Leandra’s Law” is coming closer to reality. The New York State Assembly agreed on their version of the bill that will raise Driving While Intoxicated / DWI (1192.2 and 1192.3) to a felony offense in the event that a child under the age of 15 is a passenger in the vehicle. It is not clear if the felony will be applicable on DWI / DUI crimes involving drug use or merely alcohol. Both the New York State Senate and the Assembly have to agree on their respective bills before Governor Patterson signs the bill into law. We will keep our readers informed.

Saland Law PC is a criminal defense firm founded by former Manhattan prosecutors. Follow our legal updates online at NewYorkCriminalLawyerBlog.Com and on Twitter.

November 16, 2009

Predicate Felons and Second Felony Offenders in NY: How Does a Non-NY Felony Alter Your Status?

by Jeremy Saland

Any NY criminal defense attorney experienced in New York criminal law should be able to explain to you that if you are a predicate felon in New York State and charged with a non-controlled substance offense, a second felony conviction will land you in state prison even if your offense is “merely” and “E” Felony. In other words, if you are a predicate felon, as will be explained below, a sentence of state prison is mandatory on felony plea.

Pursuant to New York Penal Law Section 70.06, for one to be deemed a predicate felon or second felony offender, one must have a prior felony conviction in the past ten years. In the event you were incarcerated or on probation, the ten years starts from the completion of your incarceration. This only applies to felonies and not prior misdemeanors. Therefore, while a judge or prosecutor might take the prior misdemeanors into consideration when arranging for a disposition or determining a sentence, from a technical standpoint, the prior misdemeanors will not impact your sentence on a new felony (from a practical standpoint it often does).