New York Criminal Lawyer Blog

October 14, 2008

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

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.

September 30, 2008

False Personation in New York: Fake Information Means a New Crime

by Jeremy Saland

You are arrested for Prostitution in New York because you were allegedly involved in an escort service or for Forgery in Brooklyn because you were allegedly caught making counterfeit money. Regardless of the underlying crime, if you are arrested anywhere in New York – Manhattan, Brooklyn, Queens, Westchester, Rockland – the police can easily charge you with False Personation if you take a poor course of action. Once you are informed by law enforcement of the consequences of giving false personal information, such as a name or date of birth, and you knowingly misrepresent that information with the intent to prevent the officer from ascertaining the true information, don’t be surprised if the police charge you with False Personation even if the underlying arrest goes nowhere.

Although False Personation is “only” a “B” misdemeanor, as a former prosecutor in the Manhattan District Attorney’s Office under Robert Morgenthau and one of the first prosecutors assigned to the Identity Theft Unit upon its creation, I can tell you defendants often dug themselves into deeper holes because they provided misleading or false information. In other words, if law enforcement does not proceed with the original criminal charges you should be released and the case is over. If, however, the police try to ascertain certain information, you are advised of the consequences if you misrepresent, and you in fact misrepresent to prevent the police from determining your true identity, then you may have bought yourself a night in jail. Why is this significant? Not only will you have to spend time incarcerated waiting to see a judge, but if you were the target of an investigation or the police are investigating new charges and figuring out how to proceed, you just gave them ample time to do so and a reason to lock you up.

September 26, 2008

Joseph Petcka: New York Criminal Jury Hangs on Criminal Charges

by Jeremy Saland

Joseph Petcka, the defendant charged with beating a cat to death in Manhattan, was neither convicted or acquitted by the jury that heard his case. Instead, the jury “hung” on the charges against him.

As a former prosecutor in the Manhattan District Attorney’s Office and a criminal defense attorney, I can tell you that more often than not, prosecutors are unhappy with this outcome. For prosecutors, the side that has the burden of proof, it is a sign that at least one of the jurors believed the cases was not proven beyond a reasonable doubt. Whether it was one juror or eleven, the prosecution must now decided whether or not to bring all the witnesses back to testify again or cut the defendant a good deal to dispose of the matter. Depending on the type of case, the time, expense, or difficulty in re-trying it may be overwhelming.

September 26, 2008

Escorts & Prostitution: New York Criminal Defense Attorney Seeks Dismissal of Charge in the Interest of Justice

by Jeremy Saland

In the realm of Prostitution, Promoting Prostitution, Solicitation and crimes relating to Escort Services,New York criminal defense attorneys often have to think out of the box to fight every battle for their client. Sometimes they are successful and sometimes they are not. One way to challenge a case is through a “Clayton” motion where a criminal defense attorney seeks the dismissal of a criminal case in the interest of justice. This motion can be made whether the case is for Criminal Possession of a Forged Instrument in Manhattan, Petit Larceny in Brooklyn, or Forgery in the Bronx. In fact, I have had tremendous success with similar applications on very serious matters where clients had faced felonies but had the charges reduced to the point where they had the opportunity to escape any criminal record at all.

In the past year, one criminal attorney, who should be applauded for his efforts, attempted to have his client’s Prostitution charge dismissed in the interest of justice. Unfortunately for his client, he was unsuccessful. In People v. Saori Sato, 2007CN004865, New York County (Manhattan) Criminal Court Judge Richard Weinberg denied the criminal defense attorney’s motion. The attorney argued that “prostitution is a victimless crime in which two equal contracting parties negotiate for the performance of an act proscribed in private by consenting adults.”

September 22, 2008

NY Counterfeiter Busted: Indicted for Criminal Possession of a Forged Instrument and Trademark Counterfeiting

by Jeremy Saland

As a former prosecutor in the Manhattan District Attorney’s Office, one of the founding members of the Identity Theft Unit after its creation, and a New York criminal defense attorney, I have seen countless individuals charged with Criminal Possession of a Forged Instrument and related offenses for their involvement in some form of large scale fraud.

Whether the Grand Jury indicts these individuals for Forgery, Identity Theft, Criminal Possession of a Forged Instrument, Falsifying Business Records or Trademark Counterfeiting, the felony offenses they face can land them in state prison for a term of up to 7 or 15 years. In the event there is an associated theft in excess of one million dollars, that potential sentence can reach 25 years.

September 18, 2008

NY Criminal Defense – Order of Protection and Restraining Orders in New York: Returning Home

by Jeremy Saland

You have been arrested because you got into a fight with your girlfriend or wife. Maybe there is a reasonable explanation or your girlfriend does not want to “press charges.” Unfortunately, at this stage it doesn’t matter. You are now before a judge and whether or not you are released, you must completely stay away from the complainant.

Judges throughout New York (Brooklyn, Bronx, Manhattan, Queens and Staten Island) routinely issue “full” orders of protection after a request is made by a prosecutor at arraignments.While there is much at stake at your arraignment, a “full” order of protection may prevent you from entering your own home. Therefore, it is never too early to retain a skilled criminal defense attorney to preserve and protect your rights.