New York Criminal Lawyer Blog

October 31, 2008

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

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.

October 14, 2008

NY Criminal Law: The Adjournment in Contemplation of Dismissal (ACD)

by Jeremy Saland

An aggressive and skilled criminal defense lawyer can assist his client in navigating the criminal justice system in New York. Whether you are being prosecuted in Manhattan, Brooklyn, the Bronx, White Plains or Yonkers, one possible outcome of your criminal case that you may navigate to, and a very good one under the right circumstances, is an adjournment in contemplation of dismissal or ACD. See CPL 170.55.

If, for example, you are charged with a misdemeanor such as Assault, Criminal Possession of a Controlled Substance (drug possession), Petit larceny, or Menacing, an ACD, other than an outright dismissal, is the best possible outcome. When accepting an ACD you are not admitting to any crime, pleading guilty or stating you were involved in any wrongdoing. In practical terms, the case is being dropped and if you stay out of trouble and abide by certain conditions, the case will be dismissed and sealed within six months (or one year if it is a “family” criminal matter). If, however, you do not abide by certain conditions as set forth at the time of the ACD, the prosecution may seek to re-open your case and proceed on the original charges during the six months or one year the case is not active and prior to its dismissal. Once it is dismissed the prosecution cannot reopen the matter as it will be sealed.

October 10, 2008

NY Criminal Defense – Endangering the Welfare of a Child ､260.10: Must the “Bad” Conduct be Directed at theChild

by Jeremy Saland

Judges, prosecutors, and NY criminal defense attorneys recognize that law enforcement must always be vigilant in protecting children and keeping them safe. That being said, NY criminal defense attorneys must also hold the prosecution to their burden of proof when their clients are charged with Endangering the Welfare of a Child, Penal Law ､260.10.

One issue that has been litigated on multiple occasions is whether the conduct that “endangers” the child must be conduct that is directed at the child. In the alternative, is it sufficient if the conduct, although not directed at the child, is the type of behavior that the actor is aware will likely harm the child?

October 7, 2008

Bribe Receiving, Tampering With Public Records, Falsifying Business Records & Offering a False Instrument for Filing: Manhattan (NY) Prosecutors Charge James Delayo and Others in Corruption Scheme

by Jeremy Saland

Earlier today, James Delayo, Michael Sackaris and Michael Pascalli, along with their NY criminal defense attorneys, were in court waiting to be arraigned on a multiple count felony indictment in New York County (Manhattan) Supreme Court involving crimes such as Bribery and Falsifying Business Records.

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

October 5, 2008

New York Criminal Practice: The Criminal Subpoena and the Grand Jury

by Jeremy Saland

As an Assistant District Attorney who served in the Manhattan District Attorney’s Office for seven years and as a New York criminal defense attorney, I have prosecuted, investigated and defended a wide spectrum of crimes ranging from Identity Theft, Forgery and Grand Larceny to Possession of a Weapon, Rape and Kidnapping. Through my years of experience I have heard the same question asked by witnesses of crimes over and over again. That is, “I received a subpoena for the Grand Jury. Do I have to go to the prosecutor’s or District Attorney’s Office?” The answer to this question is always and absolutely in the negative. In fact, ther is “no power in the District Attorney under our existing law to employ a subpoena to [require a] witness to attend his office or any other place where a Grand Jury is not sitting or where a court is not convened in action or proceeding.” People v. Boulet.

Prosecutors are entitled to issue subpoenas on behalf of the Grand Jury that require your personal appearance in front of that body. On the face of the subpoena or the cover letter, the prosecutor will often indicate that he or she would like you to come to the office prior to going to the Grand Jury. Prosecutors are not being dishonest or trying to trick you to come down to their office first in lieu of going to the Grand Jury. There is no reason for them to behave in this manner. In fact, it may save both parties the time and energy of going into the Grand Jury or it may turn out that after a few questions from the prosecutor it will be determined that you are not needed and you can go back home or back to work. At bottom, there are many valid reasons why a prosecutor would request that you come to the office first.

October 2, 2008

Over $50,000 in Food Stamp Credits Fraudulantly Obtained: Manhattan Grand Jury Indicts for Grand Larceny, Criminal Possession of Stolen Property and Scheme to Defraud

by Jeremy Saland

There are two NY criminal defense attorneys who have a lot of work cut out for them after a Manhattan Grand Jury indicted their clients on four counts of Grand Larceny in the Third Degree, two counts of Criminal Possession of Stolen Property in the Third Degree, two counts of Grand Larceny in the Fourth Degree, and three counts of Scheme to Defraud in the First Degree.

According to the Manhattan District Attorney’s Office, two individuals, Edward and Eugenia Fiammetta, used their public assistance benefit cards to fraudulently obtain $54,725 in food stamp credits from 17 Manhattan grocery stores.