New York Criminal Lawyer Blog

July 4, 2009

“Common Law” DWI in NY: Driving While Intoxicated – VTL 1192.3

It comes in different shapes and sizes – DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired) and DUI (Driving Under the Influence) – but regardless of the particular offense in New York (both NYC and Westchester), prosecutors and judges take these charges very seriously. As a former Manhattan prosecutor and as a criminal defense attorney at Saland Law PC, I have handled countless DWIs, DWAIs and DUIs whether they are charged as VTL 1192.1, VTL 1192.2, VTL 1192.2-a or VTL 1192.3. One particular question that I have heard asked in various forms is “how can I be charged with DWI if there is no breathalyzer or intoxilizer that indicates how much alcohol I had in my system?” The answer to this question is quite simple. As we call it in the criminal law field, a DWI without a chemical test result and one based on an officer’s observation is “Common Law” DWI.

Unlike VTL 1192.2 which requires a reading of alcohol in a person’s blood to be .08 of one per centum or more, a person is guilty of Driving While Intoxicated pursuant to “Common Law” VTL 1192.3 if they operate a motor vehicle while in an intoxicated condition. Well, if there is no reading or analysis, what does law enforcement hang it’s hat on to establish this crime? Very often the police cite certain characteristics of the accused across the board. The officers claim that that the accused had “water bloodshot eyes,” “slurred speech,” “the smell of alcohol on their breath,” and they were “unsteady.” Maybe the police allege that a person was asleep at the wheel, was driving erratically, or even threw up on themselves. One of the easiest ways they establish your lack of sobriety is based on the boneheaded mistake that people of all walks of life make when confronted by the police regardless of the accusation. That is, they make an admission. Something as simple as “I only had a few (or couple) of beers.” Well, if you didn’t present any of the characteristics mentioned above, but you stated you had a couple of beers, you probably just bought yourself a trip to the precinct and ultimately before a judge.

July 1, 2009

Hedge Fund COO Invests in Self: 3V Capital Management LLC’s Mark A. Focht Charged with Grand Larceny, Forgery and Falsifying Business Records

by Jeremy Saland

The Manhattan District Attorney’s Office announced the indictment earlier today of Mark A. Focht, the former Chief Operating Officer of 3V Capital Management LLC. It is alleged that Mr. Focht perpetrated the white collar crime of Grand Larceny in the Second Degree (PL 155.40) by stealing $250,000 from one of the funds that he managed. He is also charged with Forgery in the Second Degree (PL 170.10) and Falsifying Business Records (PL 175.10) in the First Degree for allegedly creating forged documents to both execute his thefts and to cover them up once he was done.

According to the Manhattan District Attorney’s Office’s press release:

June 29, 2009

Top New York White Collar Criminal Defense Firm in the News: What is the Next Chapter in the Bernie Madoff Case?

by Jeremy Saland

Elizabeth Crotty, an attorney at the New York City and Manhattan based white collar criminal defense firm Saland Law PC, was interviewed earlier today for the CBS Evening News with Katie Couric. As a former Manhattan prosecutor and a white collar criminal defense lawyer in New York, Ms. Crotty explained where she believed the Madoff case was heading after the sentencing of Mr. Madoff. Specifically, Ms. Crotty was asked about future indictments of other participants in Mr. Madoff’s ponzi scheme. While Ms. Crotty is certainly not privy to the United State’s Attorney’s investigation, Ms. Crotty explained that assuming there are future indictments we should not expect to see those indictments for at least another six months. Ms. Crotty further stated that due to the magnitude of the case and the investigation, prosecutors still likely have many stones to overturn and a significant amount of work ahead of them to pursue other potential conspirators.

If you or a loved one is in need of legal representation and a criminal defense attorney for a white collar crime, contact the former Manhattan prosecutors at Saland Law PC. Whatever your best defense may be, Jeremy Saland and Elizabeth Crotty will take the time to address your concerns, explain the legal process and implement what is needed to zealously defend your liberty, integrity and future.

June 28, 2009

NY Criminal Defense: Criminal Liability of an Individual for Corporate Conduct

by Jeremy Saland

It is fairly routine to read or hear about a NY criminal defense attorney representing an individual accused of a particular White Collar crime due to the conduct of the corporation he or she works for. It is not merely the United States Attorney’s Office who prosecutes these crimes, but state and local offices such as the Manhattan District Attorney’s Office that aggressively pursue these cases and crimes ranging from Grand Larceny and Falsifying Business Records to Scheme to Defraud and Money Laundering. The power of New York State and local prosecutors to charge individuals with crimes based on corporate conduct is found in Penal Law 20.25. According to this section, “[a] person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name of behalf.”

Decisions rendered by the Court of Appeals, New York’s highest court, further fortifies the ability of state and local prosecutors. In People v. Sakow, 45 N.Y.2d 131 (1978), the Court of Appeals found that a “defendant could properly be held criminally liable for violation of city administrative code based on his willful neglect and refusal to comply with violation orders issued by fire department where there was adequate proof from which it could be inferred that defendant was the active manager and dominant controlling force in corporations, in each of which he was principal and, at times, sole shareholder, and for which he acted in the absence of minutes and without a meeting of the board of directors.”

June 25, 2009

CEO Pleads Guilty After Busted Selling Counterfeit Parts for MTA Subways and Buses

by Jeremy Saland

According to the Manhattan District Attorney’s Office, Joseph Ungar, CEO of ABEC Industries, Inc., pleaded guilty yesterday to Grand Larceny in the Second Degree and Scheme to Defraud in the First Degree in New York County Supreme Court after an investigation revealed he had sold knock off industrial parts to the MTA. Mr. Unger also pleaded guilty to a crime related to his failure to properly pay taxes associated with his business. The ABEC Industries, Inc. also pleaded guilty to Identity Theft and Trademark Counterfeiting.

As a result of Mr. Ungar’s plea, he will make full restitution of over $125,000 for the scheme. Additionally, he will be given a lifetime debarment from doing business with the MTA and serve five-years of probation. Mr. Unger must also pay over $200,000 in back taxes. If Mr. Unger fails to comply with the terms of his plea he will not be sentenced to probation, but instead could receive two to six years in state prison.

June 23, 2009

UPDATE: Director / Songwriter Joseph Brooks and Shawni Lucier Face 91 Count Manhattan Indictment

by Jeremy Saland

Rape, Sexual Abuse, Assault, Forcible Touching and Grand Larceny are a few of the charges Joseph Brooks, 71, faces today after the indictment against him was unsealed. Shawni Lucier, 42, Mr. Brook’s assistant, was indicted on nine counts of Criminal Facilitation for her alleged role in the crimes. As Saland Law PC recently blogged, according to the Manhattan District Attorney’s Office, Mr. Brooks allegedly raped and sexually assaulted eleven women in his upper east side apartment. It is further claimed that his personal assistant, Ms. Lucier facilitated the sexual assault of nine of these woman. Mr. Brooks had turned himself in on the charges, but Ms. Lucier will do so next week.

According to the Manhattan District Attorney’s Office, Mr. Brooks engaged in this conduct from a period between March of 2005 through April of 2008. The women, as young as 18 and as old as 30, went voluntarily to Mr. Brook’s apartment believing they were auditioning for an acting role. Prosecutors claim that Mr. Brooks flew many of these women into New York from as far as Washington State and Florida after they learned of the potential acting gigs on Craigslist. Once Mr. Brooks got the women into his apartment, however, they quickly learned there was no role to be had.

June 23, 2009

Singing the Blues: Oscar Winning Songwriter Joseph Brooks Charged with NYC Rapes

by Jeremy Saland

The criminal defense attorneys and former Manhattan prosecutors at Saland Law PC have learned that Joseph Brooks, a Oscar winning songwriter and director, has been arrested and charged with rape and related crimes. According to law enforcement, it is alleged that at least four women were tricked into going to Mr. Brook’s home where they claimed he engaged in some form of sexual acts with them. Manhattan District Attorney Robert Morgenthau has scheduled a press conference for today. Check back for updates and an analysis of the facts alleged and crimes charged.

*** UPDATE ***

June 23, 2009

Promoting Gambling and Related Charges in NY: Penal Law 225.05 & 225.10

by Jeremy Saland

Throughout New York City from Manhattan to Brooklyn and from Queens to the Bronx, criminal defense attorneys and lawyers encounter a variety of crimes. A set of crimes that your criminal defense lawyer should be familiar with, even though the offenses do not regularly cross the path of a judge or prosecutor, are the crimes related to gambling (Article 225 of the Penal Law). Specifically, these offenses include the felonies and misdemeanors of Promoting Gambling, Possession of Gambling Records and Possession of a Gambling Device. The NY criminal defense attorneys and former Assistant District Attorneys at Saland Law PC firmly believe that just because a prosecutor or judge may not deal with these crimes regularly does not mean that you should be unfamiliar with the law as well. Although not a substitute for a first hand reading and consultation on these crimes, this entry will deal with Promoting Gambling so our readers can develop a basic understanding of this offense.

New York Penal Law 225.05 – Promoting Gambling in the Second Degree

June 19, 2009

Assault in the Third Degree: Manhattant Judge Finds Momentary Loss of Breath Sufficient to Establish PL 120.00(1)

by Jeremy Saland

NY criminal defense lawyers and attorneys who handle Assault cases in New York City should take notice. In People v. Sergio Garcia, 2009NY017018, a Manhattan Criminal Court Judge recently upheld the facial sufficiency of a complaint alleging Assault in the Third Degree, pursuant to Penal Law 120.00(1), where the defendant “punched [an officer] in the chest, thereby causing [that officer] to appear to lose his breath momentarily.”

According to Penal Law 120.00(1), a person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person. Additionally, physical injury requires impairment of physical condition or substantial pain.

June 17, 2009

Defendant Currently Charged with Tax Fraud Threatens to Kill Prosecutor

by Jeremy Saland

Jack Chang, a tax preparer who currently is charged in Manhattan with Grand Larceny for his alleged tax fraud scheme, was arrested for threatening the life of Gilda Mariani, the Assistant District Attorney who is handling his case and who is also the top prosecutor in the Tax Crime and Money Laundering Unit. According to at least one report, Mr. Chang had sent letters to the prosecutor depicting a tombstone and stated that he had a 9mm handgun and that he was insane. Moreover, he is alleged to have said that he would shoot the prosecutor once for each year he served in prison.

According to the Manhattan District Attorney’s Office, a search warrant at the defendant’s house revealed a computer printout of Assistant District Attorney’s Mariani’s biography, as well as another threatening letter directed towards her. The letter stated, in pertinent part, “You will be captured and before you are sent to hell you will taste hell on earth.”