New York Criminal Lawyer Blog

September 8, 2009

Nurses, Physicians, Architects and other Professionals: What are the Reporting Requirements / Ramifications of an Arrest or Conviction?

In the past year alone, the Manhattan based criminal defense firm of Saland Law PC has represented a significant number of professionals including physicians, nurses, teachers and architects in addition to lawyers and individuals employed in finance. For many of these professionals, there are serious issues that may arise from a criminal case beyond the potential of incarceration.

For certain professionals, New York State requires that they certify and meet licensing requirements. The Office of the Professions is a tremendous source of information and includes applications that may be downloaded for re-certification and licensing. Even if you do not need to re-certify, you and your attorney can review the applications for particular professions to ascertain what is an acceptable disposition for your case as it relates to your career. It is important to note, however, that these licensing requirements are not the only place you should look. If, for example, you are employed by a hospital, that hospital may have additional reporting requirements relating to arrests and/or convictions. Therefore, it is imperative to not only review the information retrieved from the Office of the Professions website, but the literature, contracts, and licensing requirements from you specific employer.

September 7, 2009

NY Penal Law 220.03, 221.10 and 221.40: Is a Laboratory Analysis or a Field Test Needed to Convert a Drug Complaint at Arraignment?

by Jeremy Saland

After the Court of Appeal’s recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the “policy” that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant’s constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys at Saland Law PC believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

In People v. Pernell Nunn, docket number 2009KN030910, decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether “the exercise of the court’s discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant’s constitutional right to due process?”

September 3, 2009

Identity Theft in the Third Degree & Your Criminal Defense: A Legal Definition and Application of New York Penal Law 190.78

by Jeremy Saland

Throughout New York City, from Manhattan and the Bronx to Queens and Brooklyn, prosecutors have seen an enormous increase in crimes relating to Identity Theft pursuant to New York Penal Law sections 190.78, 190.79 and 190.80. This increase in related crimes has resulted in extensive investigations and indictments of single individuals as well as global organizations such as the Western Express Cybercrime Group and its members Viatcheslav Vasilyev, Vladimir Kramarenko, Egor Shevelev, Dzimitry Burak and Oleg Kovelin. As a former Manhattan prosecutor who was the most senior ADA assigned to the Identity Theft Major Case Section upon that unit’s creation, I not only have extensive experience prosecuting and building cases against those accused of Identity Theft crimes, but representing those charged with these offenses as well. Before discussing scenarios involving these offenses, this entry will deal specifically with the crime of Identity Theft in the Third Degree (NY Penal Law 190.78) and the relevant underlying definitions. Future entries will address Identity Theft in the Second (NY Penal Law 190.79) and First Degree (NY Penal Law 190.80).

Here we go…

August 30, 2009

NY Criminal Defense & Criminal Possession of a Weapon (PL 265.01) Part II: Switch Blade Knife, Gravity Knife, Pilum Ballistic Knife & Metal Knuckle Knife

by Jeremy Saland

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Saland Law PCs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law い 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”

August 26, 2009

Assault in the Third Degree (New York PL 120.00) and Assault in the Second Degree (New York PL 120.05): Differences in the Crimes and Your Criminal Defense

by Jeremy Saland

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

August 22, 2009

New York Health Care Fraud in the First Through Fifth Degrees & Your Criminal Defense: Article 177 of the NY Penal Law

by Jeremy Saland

The New York State Attorney General and local District Attorney’s Offices actively pursue fraud regardless of where it rears it’s head. The heath care industry is not immune to such investigations by law enforcement. While numerous different criminal charges may stem from the same transactions, the common theme for fraud involving health care are the misdemeanor and felony crimes of Health Care Fraud in the First (PL 177.25), Second (PL 177.20), Third (PL 177.15), Fourth (PL 177.10) and Fifth Degrees (PL 177.05). While you may have a statutorily recognized defense, the following are the legal definitions for these crimes and ones that you need to familiarize yourself with in the event you are charged with any degree of Health Care Fraud in New York:

PL 177.05 – Health Care Fraud in the Fifth Degree

August 20, 2009

Plaxico Burress Pleads Guilty to Attempted Possession of a Loaded Gun: Local Sports Hero to Receive Two Years in Prison at Sentencing

by Jeremy Saland

Plaxico Burress, the former All-Pro wide receiver for the New York Giants, pleaded guilty in Manhattan Supreme Court today to Attempted Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 110/265.03. Although Burress had been facing a minimum of 3.5 years in state prison, prosecutors agreed to offer a lighter sentence of 2 years in state prison followed by 2 years of post-release supervision.

Despite Burress’ best efforts for “jury nullification,” a Grand Jury indicted him for an offense that did not require any intent to commit a crime. In other words, his mere possession of the loaded firearm outside his home or place of business without a permit would have landed him behind bars for up to 15 years. From a legal standpoint, although the minimum sentence on a plea was 3.5 years, by allowing Burress to plea to the attempted crime, as opposed to the actual completed crime, reduced the offense from a “C” violent felony to a “D” violent felony. Under New York law, a sentence of 2 years is a legal disposition for “D” violent crimes. Additionally, the term of post release supervision is mandatory regardless of which offense he pleaded to.

August 18, 2009

No Felony Conviction, No Jail and No Probation: NYC White Collar Criminal Defense Firm Gets Client Misdemeanor and Conditional Discharge for Alleged $25,000 Theft

by Jeremy Saland

Saland Law PC, a white collar criminal defense firm located in Manhattan, is pleased that we were able to assist another client in obtaining closure to a pending criminal case while preserving her liberty. Our client was charged with Grand Larceny in the 3rd Degree, pursuant to New York Penal Law 155.35, and faced up to seven years in prison for her alleged involvement in a “paper case.” Prosecutors claimed that our client made unauthorized purchases using company credit cards totaling approximately $25,000.00. After reviewing the documents associated with the alleged felony theft, we were able to work out a disposition with prosecutors that departed far from the original accusation. Although the negotiations took some time, our client ultimately pleaded to a misdemeanor and stayed out of jail. Moreover, there was no probation or community service associated with her plea. Considering the real possibility of a felony criminal record and a term of incarceration, our client could not have been happier with the results.

While Saland Law PC cannot guarantee any particular result and each case must be handled differently, our experience as both former Manhattan prosecutors under Robert Morgenthau and as New York criminal defense attorneys gives us the experience, knowledge and understanding of the criminal justice system to ascertain and implement the best plan of attack to preserve our client’s rights, integrity and freedom.

August 14, 2009

Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1), Dismissed Due to Hearsay

by Jeremy Saland

Regardless of the particular misdemeanor you are accused of perpetrating, it is imperative that you obtain the assistance of knowledgeable counsel to guide you through the process, analyze the case and set forth particular defenses. While it may not be apparent to you, your best defense might be right in front of you. In the case of People v. Buchy, a Westchester County Village Justice found that he needed to look no further than the document right in front of him. Fortunately for Mr. Buchy, the information against the defendant contained hearsay and the court dismissed the complaint.

By way of background, Criminal Procedure Law section 100.40(1)(c) sets forth the requirement that an information (the written complaint against the accused) must contain “[n]on-hearsay allegations of the factual part of the information, and/or of any supporting depositions [to] establish, if true, every element of the offense charged and the defendant’s commission thereof.” In other words, if the facts are established with hearsay, the case must be dismissed.

August 13, 2009

Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00)

by Jeremy Saland

Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone’s lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it…accomplice liability.

Under New York law, one is liable for the acts of another when: