New York Criminal Lawyer Blog

July 31, 2008

NY Criminal Defense: NY Health Care Fraud

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.

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.