New York Criminal Lawyer Blog

April 27, 2009

Endangering the Welfare of an Incompetent or Physically Disabled Person: NY Does Not Require an Intent to Injure

Recently, a Queens County Criminal Court Judge in People v. Gloria Johnson-Noble, 2008QN038495, denied a defendant’s motion to dismiss the criminal charge of Endangering the Welfare of an Incompetent or Physically Disabled Person. Through her criminal defense attorney, the defendant, a certified nurses assistant, had argued that although the accusatory instrument set forth that she struck an 86 year old woman with dementia on her arm and face, she did not have the intent to injure her.

According to NY Penal Law ､260.25, a person is guilty of Endangering the Welfare of an Incompetent or Physically Disabled Person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect.

April 23, 2009

Tremendous Criminal Defense Victory: NY Gun Possession Dismissed – Client Receives ACD

by Jeremy Saland

When you are charged with Criminal Possession of a Weapon for possessing a revolver, pistol, gun or other firearm, you need your NY criminal defense attorney to fight relentlessly for you. Sometimes that “fight” may be more creative than adversarial, but the best criminal defense lawyers must persevere on behalf of their clients regardless of the case. As NY criminal defense attorneys and former Manhattan prosecutors, we at Saland Law PC know this because we have successfully fought for our clients under the harshest circumstances. Not only have our clients benefited as a result of our knowledge and experience, but Saland Law PC has been sought out by CNNSi.Com, the Times-Ledger and the AM NY as legal analysts on the crime of Criminal Possession of a Weapon. Practicing what we preach and utilizing our experience, Saland Law PC is pleased to announce that we obtained an Adjournment in Contemplation of Dismissal for our client who was charged with Criminal Possession of a Weapon.

Our client faced the charge of Criminal Possession of a Weapon for possessing a loaded firearm in NYC. The complaint was very strong in that it was alleged that our client personally possessed both the revolver and the ammunition. Knowing that our client would face a minimum of 3.5 years in state prison if he was convicted, we put together an extensive “package” for the prosecution detailing many factors that should, and did, mitigate the severity of the offense and even the culpability of our client. We did so in an expedient manner and reached a disposition with the District Attorney’s Office by the first adjournment after our client was arraigned in criminal court. Not only were we able to obtain a tremendous disposition on his behalf (the case is to be dismissed and sealed), it was completed quickly so that our client could put the incident behind him and move on with his life and career. Equally if not most importantly, our client’s freedom remained intact.

April 19, 2009

Automobile Misuse and Theft: Criminal Defense to Grand Larceny, Criminal Possession of Stolen Property & Unauthorized Use of a Vehicle

by Jeremy Saland

You have just been arrested in New York City after driving in a car that is stolen. Maybe you “borrowed” it for a little too long and you didn’t return it. It could be that a friend gave you the keys and you thought it was his or you were just going for a “joy ride.” Another possibility is that it was a rental car you failed to return timely. Regardless, you frantically call your criminal defense attorney and you want to know what possible charges you face.The answer is simple…Grand Larceny, Criminal Possession of Stolen Property and Unauthorized Use of a Vehicle are the likely charges you would face if it is alleged that you stole or used a vehicle without permission or authority.

Grand Larceny in the Fourth Degree, PL 155.30, makes it a felony to steal property when, pursuant to subsection (8) the value of that property exceeds $100 and the property is a motor vehicle other than a motorcycle. That’s right. If you steal a car and it is worth more than $100, then you are looking at an “E” felony punishable by up to four years in state prison. It is important to note that you can still be charged with a more serious level of Grand Larceny punishable by significantly more prison if the car is equal to or exceeds $3,000 or $50,000.

April 14, 2009

Aggregating Grand Larceny and Your Criminal Defense: Adding Up Larcenies Amongst Multiple Victims

by Jeremy Saland

As a NY White Collar criminal defense attorney and a former Manhattan assistant district attorney, I have prosecuted or defended Grand Larcenies well into the millions of dollars. One issue that often reared and rears it’s head as a prosecutor and criminal defense lawyer was whether or not in a Grand Larceny prosecution involving numerous victims, the multiple thefts could be combined to increase the level of the offense. In other words, can the prosecutors aggregate the total loss and theft from all the victims and add it up as one count of Grand Larceny as opposed to multiple lesser larceny charges?

Generally, New York courts have ruled that aggregation is acceptable “[as] long as the larceny is held to be pursuant to a single intent, and one complete, illegal scheme, [and] it matters not the length of the period over which the takings continued.” People v. Cox, 286 N.Y. 137, 142, 36 N.E.2d 84 (1941). This principle, however, has generally been applied to multiple larcenies involving the same individual.

April 11, 2009

Attempted Criminal Diversion of a Prescription Medication: No Need to Prove Drug is a Prescription Drug?

by Jeremy Saland

NY criminal defense attorney’s know that prosecutors and judges take drug crimes very seriously even if the legislature recently relaxed the Rockefeller drug laws relating to narcotics. New York Criminal defense lawyers often have a daunting task before them when battling to defend their clients. In fact, a recent judicial decision corroborates this. Published in the New York Law Journal on Friday, a judge in a Manhattan criminal court case held that “where the charge is an ‘attempt’ to divert a prescription medication, the People need not provide a lab confirming that the drug recovered was in fact a prescription medication.” In “normal” words, if you are charged with Attempted Criminal Diversion of a Prescription Medication, the “prescription medication” you are alleged to have sold could in fact be sugar tablets and the crime would still stand.

For background purposes and as outlined in People v. Christophe Polanco, 2008NY077882 (decided on March 16, 2009), a person is guilty of Criminal Diversion of Prescription Medications in the Third Degree when he “commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars.” (PL ､178.15[1]). A criminal diversion act is “an act or acts in which a person knowingly: [a] transfers or delivers, in exchange for anything of a pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it” (PL ､178.00[3]). Prescription medication means any medication “for which a prescription is required in order to be lawfully sold, delivered or distributed by any person authorized by law to engage in the practice of the profession of pharmacy” (PL ､178.00[1]). A person is guilty of an attempt when, with intent to commit the crime, “he engages in conduct which tends to effect the commission of such crime” (PL ､110.00).

April 9, 2009

GPS Tracking Devices and Motor Vehicles in NY: Is a Warrant Needed?

by Jeremy Saland

New York criminal defense attorneys are constantly dealing with law enforcement as they continue expanding their arsenal of tools to investigate and prosecute crimes. Whether it be for drug and narcotic sales or forgery and theft related offenses, law enforcement is utilizing these growing number of tools. One example of that technology is the GPS device. GPS devices have given law enforcement another means to track and locate targets and defendants. The question that has been raised, however, is whether or not a GPS device can be placed on a vehicle without first getting a warrant?

Although the Court of Appeals, New York State’s highest court, has not yet given a definitive answer on the issue, the Appellate Division, 3rd Department recently did. In People v. Weaver, decided this past June, law enforcement placed a GPS device on a target’s van who was believed to be involved in numerous burglaries. This particular GPS devices was battery operated, placed under the vehicle’s bumper and attached while the vehicle was parked in a public location.

April 6, 2009

Harassment in the Second Degree: Not Quite an Assault and Definitely Not a Crime in NY

by Jeremy Saland

Any NY criminal defense attorney who has “been around the block” even just one time should be able to advise you that one of the key components to Assault in the 3rd Degree, unlike Harassment in the Second Degree, is that you inflict or cause a physical injury to another person. Well, what happens if you strike or hit someone and you don’t bust their lip, give them a black eye or, or cause any pain at all? Guess what…your weakness or their toughness could be a blessing to you!

While you can certainly be charged with Attempted Assault, a “B” misdemeanor punishable by up to 90 days jail, there is another offense lingering out there in the New York Penal Law. That offense is Harassment in the Second Degree. According to NY Penal Law 240.26:

April 3, 2009

NY Judge Finds Charges of Attempted Tampering with Physical Evidence, Marihuana (Marijuana) Possession and Obstruction of Governmental Administration Sufficient

by Jeremy Saland

As I often note, NY criminal defense attorneys must always be aware of decisions by courts where they routinely practice. Without definitive guidance by a higher court, decisions on similar matters can be inconsistent within the same courthouse. This is appears to be the case, in part, in the recent case of People v. David Bula, 2008NY052218. On January 20, 2009, I drafted an entry on People v. Edward Beam. In that case, a New York County Criminal Court Judge agreed with a a criminal defense attorney that the charges against his client for Attempted Tampering with Physical Evidence, Obstruction of Governmental Administration, and other charges were not sufficiently established in the criminal court complaint.

In Bula, the defendant was also charged with Attempted Tampering of Physical Evidence and Obstruction of Governmental Administration. He was also charged with Criminal Possession of Marijuana. Like the Beam case, the police observed the defendant smoking what the believed to be a marijuana cigarette (the “legal” term for a joint or blunt). The defendant passed the alleged marijuana cigarette back and forth with another individual. When the police approached, the defendant was alleged to have thrown the marijuana cigarette into the river. The police recovered a bag of alleged marijuana from the ground near the other individual.

March 31, 2009

Plaxico Burress Update: Criminal Possession of a Weapon – Guns and Firearms

by Jeremy Saland

The felony charge of Criminal Possession of a Weapon as it relates to pistols, guns, revolvers and firearms, has been receiving the undivided attention of the media, criminal defense attorneys and even politicians since Plaxico Burress’ arrest. In fact, at the time of Burress’ arrest for gun possession in New York, many of these media outlets reached out to Saland Law PC to discuss the nature of the gun charge as well as the ramifications of the offense. CNNSI.Com as well as the AM New York utilized Jeremy Saland’s experience as a former Manhattan Prosecutor and as a NY criminal defense attorney to analyze the incident and explain the applicable law.

Once again, Mr. Saland’s knowledge and experience prosecuting and defending gun crimes was sought out by the media. The New Jersey Star-Ledger interviewed Mr. Saland and requested his legal analysis in the paper’s coverage of Mr. Burress’ court date earlier today.

March 29, 2009

Perjury and Inconsistency as a Crime: Why You Should Consult with a NY Criminal Defense Attorney

by Jeremy Saland

If you are a witness or a defendant in a criminal matter in a metro-NY court you should always consult with a NY criminal defense attorney before talking with law enforcement. In fact, you should always be prepared to testify in the event that you are called to do so. Even if you are not a target of a Grand Jury investigation or a case in Criminal or Supreme Court, an innocent mistake or an inconsistency in your testimony may have serious ramifications. The last thing you need is the prosecution to charge you with Perjury. Consulting with criminal defense attorneys, such as the former Manhattan prosecutors at Saland Law PC, is an investment in your time that will give you both a piece of mind and likely steer you clear of a Perjury charge.

Generally, Perjury occurs if you swear falsely. If you do so, you may be charged with a misdemeanor with a maximum sentence of one year in jail. For the purpose of this entry, however, we will address Perjury in the context of the court room or Grand Jury. In such a situation, you may be charged with Perjury in the First Degree. A person is guilty of Perjury in the First Degree when he or she swears falsely and when his or her false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made. Perjury in the First Degree is a “D” felony punishable by up to seven years in state prison.