New York Criminal Lawyer Blog

July 10, 2008

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

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.

July 7, 2008

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

by Jeremy Saland

In New York, Forgery (Penal Law 170.05, 170.10 and 170.15) is a crime that seems obvious and straightforward, but is often far from it. As the most senior member of the first prosecutors assigned to the Manhattan District Attorney’s Office Identity Theft Unit and currently a criminal defense attorney, I “lived,” “ate” and “breathed” Forgery, Identity Theft, Money Laundering and other fraud investigations.

The mistake that a criminal defense attorney must look out for is if a prosecutor, from down in the Bronx up to White Plains in Westchester County, is charging Forgery where the document that is allegedly forged is not a genuinely issued document. In other words, the instrument is bogus and fabricated. For example, if an individual creates a New York, Connecticut and New Jersey combination state identification card in their own name, then no Forgery can exist because, in part, such an identification does not exist or establish any rights for the holder. Although this is an outrageous example, the underlying issue is that the forged document or writing cannot be a wholly fabricated or fictitious and in the person’s name.

July 4, 2008

New York DWI: Vehicle and Car Forfeiture

by Jeremy Saland

Even if you retain a criminal defense attorney who helps you avoid jail or a significant fine on a plea to Driving While Intoxicated (DWI) in New York City, there is always the potential that the vehicle you were driving at the time you were arrested may be forfeited. In fact, this past March the Appellate Division First Department (an appellate court with jurisdiction over the Bronx and Manhattan) upheld a forfeiture of a car where the vehicle driven during the DWI offense was a BMW valued in excess of $20,000.

In the above mentioned case, the owner of the car argued that New York City should not be able to seize and keep the vehicle because the punishment was excessive. The owner reasoned that if the maximum fine is $1000 for the DWI offense, the forfeiture of a vehicle valued over $20,000 is clearly excessive. Unfortunately for the owner, the First Department was not swayed. Further compounding things, the First Department also rejected the owner’s argument that his equal protection rights were violated because the New York City Police Department only sought the seizure and forfeiture of expensive cars. This allegation, according to the First Department, was merely speculative.

July 1, 2008

Aggravated Driving While Intoxicated (DWI) in NY: Not Your “Average” DWI

by Jeremy Saland

Driving While Intoxicated (DWI) is an offense that all prosecutors and judges in New York, from Manhattan, Brooklyn and the Bronx to White Plains, Yonkers and Mt. Vernon, take extremely seriously. In fact, as of December 2006, the New York State Legislature put a new law on the books, Aggravated, DWI 1192.2(a), which reflects prosecutors’ and judges’ views.

Aggravated DWI sets forth, in pertinent part, that no person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath or urine. Although the crime for a first time offender is a misdemeanor punishable by up to one year in jail, a felony a felony prosecution punishable by up to 4 years state prison can be brought if in the past 10 years the person has a prior DWI. Assuming this offense is the driver’s first, there is a fine of $1000 to $2500 as well as limitations on what a person can plead to that is significantly more strict than a DWI where that person’s alcohol level is lower.

June 28, 2008

Extortion: New York’s Grand Larceny with a Twist

by Jeremy Saland

Whether you are in Manhattan, White Plains or Brooklyn, there is no statute titled “Extortion” in New York. Instead, Extortion is a “type” of Grand Larceny, but just a Grand Larceny none the less. In other words, an individual charged with this crime would be charged on an indictment which read Grand Larceny under the theory of Extortion.

Under Penal Law Section 155.05, larceny occurs when a person with intent to deprive another of property or appropriate the same to himself or to a third person, wrongfully takes, obtains, or withholds such property from an owner. Larceny can be conducted through numerous means including, trick, false promise, acquiring lost property, and yes, extortion.

June 26, 2008

Knowing your Rights in New York: Inquiry to Frisk

by Jeremy Saland

You are minding your own business walking down the street in Brooklyn or maybe you just walked out of J&R Music in downtown Manhattan. A police officer approaches you and starts to ask you questions. Do you have to answer? Can you walk away? Can he detain, frisk or search you? What if, a a result of this frisk, a gun, drugs, or counterfeit money is found on your person and you now face charges of Criminal Possession of a Weapon, Criminal Possession of a Controlled Substance, or Criminal Possession of a Forged Instrument? Simply put, what are your rights and at what point did the police violate them?

Although an experienced criminal defense attorney will need a detailed account of the events that occurred, there is a very helpful and general guide line to follow. As set forth by the Court of Appeals in People v. DeBour, there are four levels of police intrusion. Each of these levels requires a certain basis and level of knowledge to justify or permit the police conduct. These levels are as follows:

June 24, 2008

New York Criminal Possession of a Forged Instrument: Judge Rules Mere Possession Sufficient to Establish Knowledge and Intent

by Jeremy Saland

Recently, Judge Mandelbaum of the New York County (Manhattan) Criminal Court issued a decision regarding Criminal Possession of a Forged Instrument in the Third Degree that is a setback for all defendants charged with Criminal Possession of a Forged Instrument in the New York City area from the Bronx and Brooklyn to White Plains and Yonkers in Westchester County. Specifically, Judge Mandelbaum held on April 22, 2008, that a prosecutor does not need to allege that a defendant is aware that a New York State issued identification card in his or her possession is fake or that he or she intended to improperly use that card.

In People v. Barona, 2007NY089837, the defendant possessed a false or forged New York State Identification Card which he had in his hand. Denying the defendant’s motion to dismiss, Judge Mandelbaum theorized that “it is in-conceivable that the very person in whose name the card has ostensibly been issued would not know that the card is a forgery.” Furthermore, if a card is “legitimate,” Judge Mandelbaum asserted, common sense dictates that the person carrying it would have to know whether he applied and ultimately received the state issued card in his own name. Clearly then, “the ostensible bearer must therefore know that such a card is forged” and, therefore, it can reasonably be inferred that there was an intent to defraud or deceive because there is no other reason to possess a forged state issued card.’

June 20, 2008

New York Forged Instruments: Fake IDs, Phony Checks, Bogus Credit Cards…and Bent MetroCards too!?!

by Jeremy Saland

There is little dispute that if you use a fake identification to rent a car in Manhattan, a bogus credit card to make a purchase at a supermarket in the Bronx, or a phony check to make a payment on an account in White Plains (Westchester County), you run a real risk of being charged with Criminal Possession of a Forged Instrument, a felony. Well, what if that “forged instrument” is a MetroCard being used to swipe a turnstile in Brooklyn? New York State Penal Law Section 170.25, Criminal Possession of a Forged Instrument in the Second Degree, establishes that if a person possesses a forged instrument, with knowledge it is forged and with intent to defraud, deceive, or injure another, that person may be guilty of this crime if he or she possesses a forged instrument of a kind specified in New York State Penal Law Section 170.10, Forgery in the Second Degree.

Instead of diving head first into this entire section, Penal Law Section 170.10(4) sets forth that if a person makes, completes or alters a written instrument which purports to be or represent if a completed a “part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services,” they are guilty of Forgery in the Second Degree.

June 17, 2008

Mount Kisco Police Officer George Bubaris: Not Guilty of Manslaughter and Criminally Negligent Homicide

by Jeremy Saland

Mount Kisco (Westchester County) police officer George Bubaris was acquitted of the charges of Manslaughter and Criminally Negligent Homicide in White Plains. The case has divided communities and received significant media attention due to the exposure of the issues that exist between immigrant communities throughout New York and local law enforcement.

The case began after Rene Perez, a homeless and undocumented immigrant from Guatemala, died in April 2007. Prosecutors claimed that Mr. Perez died as a result of an abdominal injury sustained by Officer Burbaris. The defense, on the other hand, argued that it was the Mr. Perez’s life style that caused the injuries. Although there was no dispute as to the injury that ultimately caused the death of Mr. Perez, the prosecution and the defense argued not only as to who caused the injury, but when it occurred. Clearly, the defense was able to persuade the jury that there was reasonable doubt as to this critical point and Officer Burbaris’ actions.

June 12, 2008

Criminal Defense – Identiy Theft in New York: Prosecution in a County Where the Criminal Transaction Did not Take Place

by Jeremy Saland

You are charged in Manhattan with Identity Theft (Penal Law Sections 190.78, 190.79, and 190.80) or Unlawful Possession of Personal Identification Information (Penal Law 190.81, 190.82 and 190.83), but you reside in Brooklyn and the alleged criminal transactions occurred in the Bronx, White Plains and Yonkers. Well, how is the Manhattan (New York County) District Attorney’s Office prosecuting you for these crimes if you never stepped one foot in that jurisdiction? The answer, albeit not a pleasing one, is simple.

Criminal Procedure Law Section 20.40(4)(l) permits any county to prosecute an offense of this nature if any of the offense took place in that county regardless of whether the defendant was actually present there. Moreover, if the victim who suffered financial loss resided in that county at the time of the criminal transaction, then the county where the victim resided would also be able to prosecute a defendant even if the defendant was never present. Lastly, even if the victim suffered no loss, whatever county the victim resided in at the time his or her personal identifying information was used would also be a viable location to bring the criminal action against the defendant. For example, if a victim’s credit card is used online to purchase clothes from Bloomingdales in NY, the victim resided in the Bronx at the time his or her information was used, and the defendant used the information on his computer in Queens, each county would be able to prosecute the defendant for the crime of Identity Theft.