New York Criminal Lawyer Blog

August 10, 2008

New York Criminal Law: The Affirmative Defense Part I

An experienced and skilled New York criminal attorney should be able to advise you on possible and potential defenses to the crimes you stand accused of in any New York jurisdiction from Manhattan and Brooklyn to White Plains and Yonkers. For example, you may have an alibi in a Burglary case, the gun you are charged with possessing was inoperable in a Criminal Possession of a Weapon case or maybe the alleged stolen proceeds you possessed were aggregated or added up improperly in a Grand Larceny case. Even better yet, maybe you just did not commit any crimes!!

While the above scenarios are merely hypothetical examples, an examination of New York criminal law reveals that at trial, an accused may have a defense that is or is not an “affirmative defense.” Generally, according to Article 25 of the New York Penal Code, if a defendant raises a defense at trial the People, also called the prosecution, have the burden of disproving the defense beyond a reasonable doubt. This means that once set forth, the prosecutors must prove to the jury or the judge beyond a reasonable doubt that the defense is not legitimate. On the other hand, certain statutes set forth an “affirmative defense” that the defendant, not the prosecution, has the burden of establishing beyond a preponderance of the evidence.

August 6, 2008

Identity Theft: 40 Million Credit Card Numbers Stolen from Retailers Including TJ Maxx

by Jeremy Saland

As a former prosecutor in the Manhattan District Attorney’s Office and one of the founding members of the Identity Theft Unit assigned to the unit after it’s creation, I investigated large scale Identity Theft, Forgery, Grand Larceny and related crimes in amounts that exceeded millions of dollars both in the United States and elsewhere. Now, as a NY criminal defense attorney, it continues to be readily apparent that the amount of theft and the number of victims impacted by Identity Theft continues to grow in an unprecedented manner and speed.

In fact, only yesterday, eleven people, both in the United States and other nations, were indicted for allegedly stealing more than 40 million credit and debit card numbers form companies including the TJX Companies. Three of those men, Albert “Segvec” Gonzalez, Christopher Scott and Damon Patrick Toey, allegedly hacked into the wireless networks of the TJX Companies (TJ Maxx, Marshall’s, Office Max, Barnes and Nobles, and more), and installed “sniffer” programs that captured credit card numbers, debit card numbers and even passwords. Like many individuals who operate this kind of scheme, the numbers, in part, were allegedly sold online and overseas where they were used by third parties and resulted in significant financial loss.

August 3, 2008

From Escort Services to Elliot Spitzer: New York Criminal Statutes Relating to Prositution Part I

by Jeremy Saland

Elliot Spitzer, The Emperor’s Club VIP, Ashley Dupre, Kristin Davis, Wicked Models…Clearly, those working in the oldest profession right here in Manhattan, and the men who seek their services, are still pushing the limits of the law. As a former prosecutor who served for seven years under Robert Morgenthau in the Manhattan District Attorney’s Office and as a NY criminal defense attorney, there is little doubt in my mind that law enforcement will continue to aggressively investigate, arrest and prosecute people involved in prostitution related crimes.

Unfortunately for those charged with crimes relating to prosecution, the District Attorney can charge you with a gamut of offenses depending on your involvement and activities. Some of these crimes include Prostitution, Patronizing a Prostitute, Promoting Prostitution and Permitting Prostitution. Believe it or not, you may even be charged under Education Law Sections 6512(1) and (2) for engaging in an unlicensed massage. However, the more large scale the operation or “high end” the organization, additional charges may come into play such as Money Laundering in association with the illegally obtained funds. For the purpose of the entry, however, we will direct our attention to Prostitution. Future entries will address Patronizing a Prostitute, Promoting Prostitution and Permitting Prostitution.

July 31, 2008

NY Criminal Defense: NY Health Care Fraud

by Jeremy Saland

As one of the original founding member of the Manhattan District Attorney’s Office Identity Theft Unit after the unit’s creation and as a criminal defense attorney, I have had the opportunity to prosecute, investigate and defend individuals accused of a laundry list of crimes in the fraud arena. These NY crimes have included, but are not limited to, Forgery in relation to counterfeit currency, Identity Theft in relation professional GRE, GMAT and TOEFL test-takers and Money Laundering in relation to narcotics, prostitution, and escort services. One of the crimes that is becoming more prevalent is Health Care Fraud. According to New York Penal Law Article 177, there are five degrees of Health Care Fraud as follows:

Health Care Fraud in the Fifth Degree – NY Penal Law 177.05 – establishes that a person is guilty of this crime when, with the intent to defraud a health plan (generally a publicly or privately funded heath insurance or managed care plan or contract), he knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan or health care item or service and, as a result of such information or omission, he or another person receives payment in an amount that he or such other person is not entitled to under the circumstances. This crime is an A misdemeanor punishable by up to one year in jail.

July 27, 2008

New York: Trial and Sentence in Absentia

by Jeremy Saland

You have a trial in Manhattan Supreme Court or Brooklyn Criminal Court and you fail to return on the scheduled date. In the alternative, you pleaded guilty in Bronx Criminal Court after bargaining with the prosecutor and the judge scheduled a date for sentencing, but you didn’t return. The question you now have is can the judge proceed with the trial against me or can he sentence me or increase my sentence without me being there?

Judges, prosecutors and criminal defense attorneys often throw around a term that is applicable to this question. That is, did you receive your Parker Warnings? The Court of Appeals, in People v. Parker and the line of cases that followed, has held that a defendant must be present at the time of trial and sentence. This right can be waived, but the defendant must be informed at the time he pleaded guilty or the case was adjourned for trial that the case would proceed without his presence. Moreover, in the event of a sentencing, the defendant must also be advised that he may receive a harsher sentence if he does not return and he will not be permitted to withdraw his plea.

July 23, 2008

Resisting Arrest in NY: Conviction if Underlying Crime Dismissed?

by Jeremy Saland

As a criminal defense attorney and former prosecutor who was an original member of the Identity Theft Unit, I have seen people charged with Resisting Arrest, Penal Law 205.30, along with underlying crimes ranging from Assault, DWI and Grand Larceny to Robbery, Trespassing, and Marijuana Possession. As the cases proceeded and went to trial, sometimes those underlying charges would not stick and the only remaining offense was the Resisting Arrest. An interesting issue that faced many defense attorneys and prosecutors was whether a person can be convicted of Resisting Arrest in New York and not the underlying charge. Simply put, the answer is yes.

Before dissecting this issue, the first thing to do is to define the crime of Resisting Arrest. Pursuant to the Penal Law, a person is guilty of Resisting Arrest when “he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.”

July 20, 2008

Aggregating Multiple Larcenies into One Grand Larecny Felony in NY

by Jeremy Saland

A person steals $5000 from a victim in Manhattan, $2000 from a victim in Brooklyn and $45,000 from a victim in White Plains. Jurisdictional issues aside, can each of these crimes be aggregated so that prosecution can charge this person with one count of Grand Larceny in the Second Degree (theft of $50,000 or over) or must there be three separate and lesser counts of Grand Larceny?

The general rule applied in these circumstances is that if there is a scheme whereby a person steals from the same victim or location, then there can be an aggregation. However, the above scenario may be different because the victims and locations are different.

July 17, 2008

Forged Instruments and Forgery in NY: Attacking a Prosecutor’s Case Part II

by Jeremy Saland

It does not matter if you are being prosecuted in Manhattan, Bronx, Brooklyn, Queens, White Plains, Mt. Vernon or Yonkers – the law is clear on Forgery and Criminal Possession of a Forged Instrument. Either it is or it is not.

Sounds simple enough, but unfortunately, it may take an experienced criminal defense attorney to ascertain whether the crime prosectors are charging you with is supported by the law. Turning our attention to Forgery and Criminal Possession of a Forged Instrument as it specifically relates to genuinely authorized writings or documents issued by an agency or other person, it is important to note that what seems like a crime often is not.

July 13, 2008

Attempt to Commit a Crime in New York: Murder

by Jeremy Saland

New York Penal Law Section 110.00 establishes that a defendant is guilty of an attempt to commit a crime when, “with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” Well, if you are accused of attempting to commit a robbery in Brooklyn, an assault in the Bronx, or a burglary in Manhattan, this definition offers little assurance and even less guidance. That is why you need an experienced criminal defense attorney and former prosecutor to fight for your rights and hold the prosecution to their burden of proof.

While mere preparation, with nothing else, is not enough to establish an attempt to commit a crime, if an individual comes “dangerously close,” courts usually find that that the attempt has gone far enough. To help fully understand when there is an attempt to commit a crime that is “dangerously close” we will deal with attempt in the context of the crime of Attempted Murder.

July 10, 2008

New York Criminal Possession of a Forged Instrument: Average Citizen Standard?

by Jeremy Saland

Recently, I posted a decision issued by a Manhattan Criminal Court Judge from April 2008 finding that mere possession of a fake ID (fake identification card) was sufficient to establish intent and knowledge to sustain the charge of Criminal Possession of a Forged Instrument under New York Penal Law Section 170.20. Unlike that decision, a recent case out of Kings County (Brooklyn) is much more favorable for defendants charged with Criminal Possession of Forged Instrument in a different context and a case that criminal defense attorneys should be aware of.

In People v. Erwin Kouris, Brooklyn Criminal Court Judge Pickett found that a complaint against the defendant charging Criminal Possession of a Forged Instrument should be dismissed for facial insufficiency. In that matter, the defendant was charged with numerous Vehicle and Traffic Law (VTL) violations as well as Criminal Possession of a Forged Instrument. Judge Pickett noted that in order to sustain the Criminal Possession of a Forged Instrument charge, the accusatory instrument must allege knowledge of forgery and intent to defraud on the part of the defendant. In other words, a defendant’s mere possession may not be sufficient depending on the circumstances. Therefore, a dismissal may be warranted.