New York Criminal Lawyer Blog

November 16, 2008

NY Criminal Law: Lacking Intent in Matters Involving Forgery, Forged Instruments and Falsifying Business Records

An introductory class of criminal law in NY would likely teach any future attorney that if there is no intent to commit a particular crime that requires such intent, then there should be a valid defense to that particular crime. This could not be more true than in cases involving Forgery, Criminal Possession of a Forged Instrument and Falsifying Business Records.

The first two crimes, Forgery and Criminal Possession of a Forged Instrument, contain legal language that the individual have the “intent to defraud.” Although not always a simple task or the correct way to defend against these charges if the intent is clear, your criminal defense attorney needs to argue, if applicable, that you never intended on defrauding anyone (WOW! That was easy!). While the analysis of this defense is simple on its face, clearly each case requires an in depth review to determine how to establish the lack of intent.

November 12, 2008

Nixzaliz Santiago, Mother of Nixzmary Brown, Senteced to 43 Years State Prison

by Jeremy Saland

A Brooklyn Supreme Court Judge sentenced Nixzaliz Santiago, the mother of 7-year-old Nixzmary Brown, to 43 years state prison today after she was convicted on October 17, 2008 for Manslaughter. Her husband, and the girl’s stepfather, had previously been convicted for the same offense and received 29 years. In fact, it is Mr. Santiago that dealt the fatal blow after Nixzmary took yogurt from the fridge without permission. It is no surprise to this NY criminal defense attorney and former Manhattan prosecutor that Ms. Santiago received a harsher sentence than her husband.

According reports, Judge DiMango stated to Ms. Santiago at her sentence that she “may not have delivered the fatal blow, but . . . it was in your power to prevent the effects of it…[w]ere it not for your failure to act, Nixzmary Brown would have probably not died from that blow that day.”

November 11, 2008

NY Inventory Searches: Vehicle Search without a Search Warrant

by Jeremy Saland

Your car was stopped in Manhattan after the police accused you of DWI. The police pulled you over in Brooklyn for Forgery or Criminal Possession of a Forged Instrument because you had a fake registration or license. Maybe you were stopped in the Yonkers and charged with Criminal Possession of a Weapon because the police claim they thought you had a gun. Regardless of the reason, the police now want to search your car.

The police can search your car in varying degrees depending on the circumstances. Without going into details as to each of those circumstances and degrees, a search can be made if there is an exigent (emergency) circumstance, the police have a search warrant, the driver consents, or there is contraband such as drugs or a gun in plain view. Even assuming one of these reasons are applicable, a search may be limited in its scope such as to you reachable area.

November 7, 2008

NY Criminal Defense – Endangering the Welfare of a Child ､260.10: Merely Leaving a Child Home Alone

by Jeremy Saland

When representing clients in matters involving Endangering the Welfare of a Child, Penal Law ､260.10 New York criminal defense attorneys routinely deal with a host of different facts and circumstances. Sometimes a parent’s activity clearly violates the statute when, for example, the child is assaulted. Other times, however, the actions which rise to the level of Endangering the Welfare of a Child are not clear. Recently, on August 6, 2008, Judge Michael Gerstein of the Kings County (Brooklyn) Criminal Court, held that leaving a child home alone may constitute Endangering the Welfare of a Child pursuant to PL ､260.10.

In People v. Carmen Reyes, 2008KN019196, a four year old child was left home alone for fifteen minutes. Ms. Reyes’ criminal defense attorney made a motion to dismiss the complaint for facial insufficiency arguing, in part, that prosecution provided no facts that would support the contention that the Defendant knowingly acted in a manner that would be dangerous to the child.

November 4, 2008

NY Criminal Defense – Penal Law 140.35: Burglar’s Tools

by Jeremy Saland

Your NY criminal defense lawyer successfully challenged the Burglary charge pending against you in Brooklyn or Manhattan Supreme Court, but you still face other charges relating to the offense. One of those charges is Possession of Burglar’s Tools, Penal Law Section 140.35. Although not a felony, the crime is a misdemeanor punishable by up to one year in jail.

According to Penal Law Section 140.35, a person is guilty of Possession of Burglar’s Tools when “he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, or offenses involving larceny by a physical taking, or offenses involving theft of services…under circumstances evincing and intent to use or knowledge that some person intends to to use the same in the commission of an offense of such character.”

October 31, 2008

NY Criminal Defense – Trespass in NY: Difference Between NY Penal Law ､140.15 and ､140.10

by Jeremy Saland

Each statute in New York Criminal Law has its own nuances. Sometimes particular subsections point to different theories of the same crime while other statutes, although similar on their face, are distinct and separate crimes. Some of these differences are very obvious to the non-legal observer while others require the analysis of a NY criminal defense attorney.

One example of this “issue” of whether the crime is merely a distinct theory or a unique charge, is evident in the NY Penal Law in reference to the crime of Trespass. Specifically, there are multiple crimes involving trespassing. Two of these offenses deal with the crime as a misdemeanor offense as opposed to either a violation or a felony. These crimes are ､140.10, Criminal Trespass in the Third Degree, and ､140.15, Criminal Trespass in the Second Degree.

October 28, 2008

NY Criminal Defense – Criminal Possession of a Weapon: Elevating NY Penal Law 265.01 to 265.02

by Jeremy Saland

Criminal Possession of a Weapon in the Third Degree, a “D” Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to “elevate” weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That’s right…any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

October 24, 2008

NY Criminal Defense – Penal Law Section 221.10: Criminal Possession of Marijuana / Marihuana in a Public Place

by Jeremy Saland

One of the more common crimes NY criminal attorneys deal with is Criminal Possession of Marihuana / Marijuana in the 5th Degree, a class “B” misdemeanor pursuant to NY Penal Law Section 221.10(1). A person is guilty of this charge if he or she “knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view.”

Although the charge seems straightforward, if you possess a “blunt,” “joint,” or burning marijuana in public you are potentially guilty of this offense. However, before you throw your hands up in the air and plead guilty to this crime, you should consult with a knowledgeable New York criminal defense lawyer who can analyze elements of your case that you may have overlooked.

October 20, 2008

NY Criminal Defense – Possession of Revolver or Pistol Ammunition in NY: A Crime Even Without a Gun

by Jeremy Saland

You are carrying .22 caliber bullets in Manhattan or .38 caliber rounds in Brooklyn, but you don’t have a permit to possess a handgun or pistol that utilizes the ammunition or to possess any firearm at all. Well, you may not have violated New York State Penal Law for Criminal Possession of a Weapon, but you are in violation of the New York City Administrative Code.

According to Administrative Code Section 10-131(i)(3) it is unlawful for any person not authorized to possesses a pistol or revolver within the city of New York to possesses pistol or revolver ammunition. Similarly, pursuant to Administrative Code Section 10-131(i)(4) it is unlawful for any person to authorized to possess a pistol or revolver of a particular caliber within the city of New York to possess pistol or revolver ammunition of a different caliber. Both of these Administrative Code violations are punishable as misdemeanors.

October 16, 2008

Criminal Defense – Escort Services & Prostitution Offenses: “Sexual Conduct” Further Defined in Realm of Domination and “S & M”

by Jeremy Saland

Individuals charged in New York with the crime of Prostitution, Penal Law Section 230.00, have to offer to or actually engage in “sexual conduct” as defined by both statutes and case law. In the Kings County (Brooklyn) Criminal Court case of People. v. Georgia A., 163 Misc.2d 634 (N.Y.City Crim.Ct.,1994), a NY criminal defense attorney successfully argued before a criminal court judge that his client should be acquitted after the prosecution failed to establish any “sexual conduct” existed in an “S & M” and dominatrix case.

In this particular matter the defendant met with an undercover police officer after they arranged for the appointment over the phone (this pre-dated Craig’s List and Backpage). The agreement between the two was for an “S & M” experience. Upon meeting, the undercover asked what he would get in exchange for $100 and the defendant informed him that he would receive “S &M” for that fee. Although the money was not exchanged at that time, the defendant changed her outfit. During this time, the undercover observed various videos and other items including whips and toys.