New York Criminal Lawyer Blog

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

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).

November 12, 2009

No Oliver Twists in Pickpocket Crew: Manhattan DA Announces 639 Count Grand Larceny and Identity Theft Indictment

by Jeremy Saland

He may have loved the book, theatrical performance or even the movie, but Manhattan District Attorney Robert Morgenthau is not a fan of real life Oliver Twists. According to reports, the New York County District Attorney’s Office unsealed a 639 count indictment involving the arrests of 15 alleged pickpocket crew members. The defendants, including Arthur Franklin, Jospeh Simms, Vincent Franklin, James Mannix, Kathleen Miller, Carol Dibitetto, Larry Ford, Kandra Lysland, Tina Barboza, Mary Bennett and Yvonne Harris are alleged to have stolen over $600,000 and compromised at least 60 bank accounts. The 639 count indictment includes numerous felonies such as Grand Larceny, Identity Theft, Criminal Possession of a Forged Instrument, Conspiracy, Scheme to Defraud, Attempted Grand Larceny, Forgery and Criminal Possession of Stolen Property. It is interesting to note that prosecutors did not charge the defendants with Enterprise Corruption. While there could be numerous reasons, it is possible that the crew had no ascertainable structure, but was alleged to be more consistent with a loose knit band of thieves. Regardless, the scheme is purported to have operated for at least one year before the arrests and indictments.

According to the District Attorney’s Office, vigilant investigators at Chase Bank reviewed video surveillance of fraudulent transactions and noticed a common theme of women wearing wigs and glasses. Further investigation revealed that Arthur Franklin, Vincent Franklin and Joseph Simms were present either inside or outside the bank when the transactions occurred. Chase Bank put the dots together when they learned that many of the victims of the fraudulent bank transactions were also victims of pickpockets.

November 12, 2009

Manhattan DA Demolishes $1 Million Construction Scheme: Contracting Company Caught Allegedly Defrauding Employees Pay

by Jeremy Saland

The Manhattan District Attorney announced the arrest and indictment earlier today of Michael Batalias, Elisavet Batalias, Vassiliki Stergiou and EMB Contracting Corporation for defrauding employees in the neighborhood of $1 million dollars. The defendants are charged with Grand Larceny in the First Degree and Scheme to Defraud in the First Degree. Moreover, Elisavet Batalias was charged with eleven counts of Offering a False Instrument for Filing in the First Degree.

According to the Manhattan District Attorney’s Office:

November 10, 2009

A New York White Collar Criminal Defense Primer: Defining Offering a False Instrument for Filing in the First (NY Penal Law 175.35) & Second (NY Penal Law 175.30) Degrees

by Jeremy Saland

While your “average” white collar crime case may not include the offenses of Offering a False Instrument for Filing in the First Degree (New York Penal Law 175.35) and Offering a False Instrument for Filing in the Second Degree (New York Penal Law 175.30), the former Manhattan prosecutors at Saland Law PC still believe it is important for our readers to have a grasp on this section of the New York Penal Law. Therefore, the following article will address these crimes.

Offering a False Instrument for Filing in the Second Degree (NY Penal Law 175.30):

November 6, 2009

New York Desk Appearance Tickets (DAT): What to Expect When You Go to Court The First Time & Should You Retain a NYC Criminal Defense Attorney / Lawyer?

by Jeremy Saland

Whether you have been issued a Desk Appearance Ticket (DAT or D.A.T.) in Manhattan, Brooklyn, Queens or the Bronx, the process is the same when you go to court the first time. Generally, it is best to have retained an experienced criminal defense attorney prior to going to court. Why? Upon arriving in court without an attorney, you will bring a copy of your desk appearance ticket to the front of the courtroom and place it in a bin or give it to a court officer. After dropping off your desk appearance ticket, you will wait until the legal aid attorney or 18-b assigned counsel (both “public defenders”) call out your name. This will be the first time you will have the opportunity to discuss anything with your lawyer. That is right. You will not have a chance to talk to your attorney until you are already in the courtroom….you and the other five, fifteen or thirty other defendants. In fact, there could be well over one hundred people just like you waiting to see the judge.

After he or she calls your name, you will have a brief period of time to discuss your case with the attorney. Sometime after that (it could be 30 minutes or it could be a few hours), you and your assigned attorney will go before the judge. At that time, your assigned attorney will enter a plea of “not guilty” on your behalf. After that, depending on the nature of the case, the prosecution may make you an offer. For example, if you are accused of shoplifting and charged with Petit Larceny (NY Penal Law 155.25) or Criminal Possession of Stolen Property (NY Penal Law 165.40) in Manhattan, the prosecutor will likely offer you the violation of Disorderly Conduct (NY Penal Law 240.20). While a plea to this offense will not give you a criminal record and is “sealed,” the arrest and plea may show up on a background check years down the road. Obviously, the ramifications to you may be enormous. This is not to scare you, but a realistic outcome that may not be explored in detail at your arraignment with your assigned counsel. While a plea such as this may “end” your case, it may not be in your best interest and cause future distress and real life problems.

November 2, 2009

Rewarding Official Misconduct in the Second and First Degrees – NY Penal Law Sections 200.20 / 220.22 and Your Criminal Defense

by Jeremy Saland

To the untrained eye, Bribery, pursuant to New York Penal Law Sections 200.00, 200.03 and 200.4 and Rewarding Official Misconduct, pursuant to New York Penal Law Sections 220.20 and 220.22 (all Article 200 crimes), involve very similar elements. In fact, those individuals who are not NY criminal defense attorneys or lawyers may not fully grasp the distinction between these offenses. That being said, William Donnino stated it best when he wrote:

“[B]ribery…[is] concerned with what a public servant ‘will’ do. The crime of [R]ewarding…[O]fficial [M]isconduct [is] directed at rewards to public servants for having previously violated their duty as a public servant.”