New York Criminal Lawyer Blog

It is no surprise to this experienced New York criminal defense attorney that another "Spitzer Girl" just pleaded guilty today in relation to her involvement in the Prostitution and Escort Service ring known as Emperors Club VIP. Law enforcement is diligent and detailed in their investigation and prosecution of Prostitution crimes. As a former prosecutor in the Manhattan District Attorney's Office, I am personally aware of the length that law enforcement will go in collecting and analyzing phone, bank, email and surveillance records to catch their target.

Although Ms. Hollander was not alleged to have engaged in the act of Prostitution, Ms. Hollander apparently violated other criminal statutes including conspiracy to violate the Travel Act. In connection to that statute, Ms. Hollander apparently admitted that she crossed state lines to further an illegal business. That business? Well, it is called Prostitution.

In New York, Prostitution is "merely" punishable as a "B" misdemeanor and by up to 90 days jail. However, as Ms. Hollander has probably realized by now, there are many other offenses associated with Prostitution that are significantly more severe. In fact, those crimes routinely include Money Laundering which, in New York, is punishable by up to 25 years in prison, and Falsifying Business Records which is punishable by up to 4 years in state prison. Moreover, even though Ms. Hollander was not alleged to have engaged in the actual sexual conduct and Prostitution, her activities that assisted and aided in that crime made her liable as if she personally did. It does not matter under the law whether you acted at arms length or you were personally involved in the conduct (look for the upcoming entry on September 8, 2008 that discusses the legal concept of criminal liability for acts of another).

Before you find yourself in any compromising situation, whether you are a "John" or a service provider, you should understand the law and how it is applied to your specific activities. While most people unfortunately wait to educate themselves until after they have been arrested, don't be one of those foolish individuals and adopt a false sense of security. Contact an experienced criminal defense lawyer who knows the law as it relates to Prostitution, Escort Services and Unlicensed Massage.

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Posted In: Escort Services, Prostitution and Unlicensed Massage

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NY criminal defense attorneys must always be aware of legal decisions and the impact on the charges that their clients face. Those legal decisions as they relate to Prostitution, Escort Services and Unlicensed Massage are no different.

Recently, on June 26, 2008, Judge Marc Whiten, of the New York (Manhattan) Criminal Court, denied a criminal defense attorney's motion to dismiss where the defendant was charged with both one count of Prostitution pursuant to New York Penal Law §230.00 and one count of Attempted Unauthorized Practice of a Profession ("Unlicensed Massage") pursuant to New York Penal §110 and Education Law §6512[1].

In this case, People v. Makeda Benjamin, the defendant escort was contacted online, in a manner similar to Craig's List or Backpage, and agreed to meet an undercover officer to give a massage in exchange for $200. Ultimately, when the parties met, the undercover asked if the escort would perform sexual services and the escort defendant agreed for no additional price. The defendant escort then got undressed and danced for the undercover police officer. Additionally, the defendant escort neither displayed or had a license to give a massage.

In denying the motion to dismiss, Judge Whiten stated that the defendant escort's oral agreement to perform the sexual conduct was admissible as a statement against her penal interest and, therefore, was sufficient, along with her disrobing and dancing, to establish the charge of Prostitution. Moreover, Judge Whiten stated that "when taken in conjunction with defendant disrobing and dancing, these factual allegations support the officer's reasonable inference that defendant was not a licensed professional massage therapist or masseur who was going to give him a very expensive massage, but was instead engaging in prostitution and the unauthorized practice of a profession."

Judge Whiten's decision has made two points very clear. Even if an individual is offering a massage, law enforcement can establish through a totality of the circumstances - a verbal agreement, the high price of the massage service, the disrobing and dancing - that an individual is in fact engaged in Prostitution. Secondly, if an individual offers or gives a massage, but fails to prominently display a license or certification to do so, they can be charged with Attempted or Unauthorized Practice of a Profession.

If you find yourself in a similar predicament, retain experienced NY criminal defense attorney who knows the law on Prostitution and related crimes. Don't compound your mistakes by merely hiring an attorney with little to no background in these criminal matters.

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Posted In: Escort Services, Prostitution and Unlicensed Massage

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You did not show up for your scheduled trial in Manhattan Criminal Court, a court date where your criminal defense attorney was to file motions in Brooklyn Supreme Court, or a date to discuss a deal in White Plains City Court. Not only do you run the risk of a bench warrant being issued for your immediate arrest, you may also ultimately face an additional charge of Bail Jumping.

Punishable by up to a year in jail as a misdemeanor and up to seven years as a felony, Bail Jumping occurs when you have been released from custody or you are allowed to remain at liberty and you fail to return to court on the return date or voluntarily within thirty days thereafter.

Unfortunately, this New York criminal offense is pretty straight forward...the judge tells you to return on a particular date, you fail to do so within thirty days and now you face an additional charge. If you find yourself in this situation you will need an experienced New York criminal defense attorney to assist you in working yourself out of your predicament.

It is important to note that there may be mitigating reasons as to why you did not return and a defense to your actions. However, the law is clear in that the prosecution does not have to prove that you intentionally did not return to court.See People v. Eifell. In other words, if you fail to appear during the thirty days after your court date, it does not matter under the law that you did so because you forgot, you were sick or you intentionally stayed away. Moreover, if during the time you failed to return to court the initial case against you was dismissed, the prosecution can still charge you with Bail Jumping. See Eifell.

Fortunately, there is a statute of limitations that the prosecution must adhere to when charging Bail Jumping. If you are charged with a misdemeanor, the prosecution can only bring a Bail Jumping charge within two years after the initial thirty days and five years after the initial thirty days if you were charged with a felony. See CPL 30.10(2).

Regardless of the facts surrounding your case, if you find yourself in a predicament where you have failed to return to court, a bench warrant was issued for your arrest, or you are facing a charge of Bail Jumping in New York City or Westchester County, you owe it to yourself to retain a New York criminal defense attorney who knows how the process works, understands the crimes and is ready to advocate for your rights, liberty and integrity.

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Posted In: Other Crimes

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New York Criminal attorneys must always stay on top of recent judicial decisions in order to effectively advocate for their clients whether they are representing a client in Brooklyn for Robbery, White Plains for Forgery or Manhattan (NY County) for Prostitution in relation to an escort service. A recent decision relating to DWI in the Bronx on July 21, 2008 exemplifies this need to constantly be aware of decisions made by judges throughout New York State.

In People v. Netania Holbrook, Justice Richard Lee Price of the Bronx County Supreme Court (the court where felony cases are heard), granted a motion to suppress breathalyzer results taken two hours after the arrest of the defendant for DWI.

Citing People v. Atkins, 85, NY2d 1007 (1995), the Court recognized that merely because a breathalyzer is administered more than two hours after an arrest for DWI does not make the test and its results inadmissible at trial. Although Vehicle and Traffic Law §1194(2) and the New York State Department of Health Regulations (10 NYCRR 59.2[c][2]) mandate that a Blood Alcohol Content Test (BAC) must be administered within two hours of arrest, the results may be admissible if an expert testifies and establishes that the results of the BAC test were indicative of the BAC at the time the defendant was operating the vehicle and that the test itself was scientifically reliable. See also People v. Victory, 166 Misc.2d 549 (Crim. Ct. Kings County 1995).

In addition to establishing that the BAC test was reliable and indicative of the BAC at the time the defendant was operating the vehicle, the People (prosecution) are not entitled to any legal presumption that the BAC test is, in fact, admissible. Instead, to prove the scientific reliability of that BAC test that exceeded two hours from arrest, the People need to prove this reliability at a hearing prior to trial and to prevent the suppression of that evidence. See also Victory.

Agreeing with the rationale established and set forth in Atkins and Victory, Justice Price suppressed the breathalyzer test and results finding that the “People inexplicably presented no testimony, scientific or otherwise, to establish that the test administered to the defendant more than two hours after her arrest was competent, reliable and probative of the fact that she was impaired or intoxicated when she operated the vehicle.” In short, the People failed to present expert testimony, or any testimony, establishing this reliability.

Clearly, the Holbrook decision and the cases that preceded it are critical rulings that a New York defense attorney should know backwards and forwards and be prepared to utilize for their DWI clients if the circumstance presents itself. While suppressing the results a breathalyzer does not guarantee a victory at trial or that the prosecution will surrender their case, suppressing the evidence clearly makes prosecution that much more difficult and greatly enhances a client’s defense.

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Posted In: DWI and Traffic Offenses

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You and your partner are co-owners of certain assets in a clothing store in Manhattan or a antiques store in Brooklyn. You take some of the businesses assets without informing your partner or getting his permission. The question that arises is can you be found guilty of larceny (grand or petit) for "stealing" from that partner where you both have interests in that property?

An experienced New York criminal defense attorney should be able to give you both the answer and the reason. The short answer is that you should not be found guilty or prosecuted because your partner is not an "owner" under the law.

Pursuant to Penal Law section 155.00(5), "[w]hen property is taken , obtained, or withheld by another person, an "owner" thereof means any person who has a right to possession thereof superior to that of the taker, obtainer, or withholder." Furthermore, a "joint of common owner of property shall not be deemed to have a right of possession thereto superior to that or any other joint or common owner thereof." If you are equal partners you have equal rights.

Fortifying the position that a larceny can't be prosecuted under the circumstances above is found in People v. Zinke, 76 NY2d and numerous other cases. It is well settled and black letter law that if you are a partner, joint owner, or common owner of certain assets, you cannot be prosecuted for a larceny offense. It is important to note, however, that you may be charged with other crimes and, therefore, you should find skilled defense counsel to aggressively defend you against any allegation or crime.

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Posted In: Theft Offenses

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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.

So, when is a defense to a crime an "affirmative defense" that you and your criminal defense attorney must prove beyond a preponderance of the evidence as opposed to a "regular"defense that the prosecution must disprove beyond a reasonable doubt. The answer to this question is to look specifically at the statute of the crime you are charged with.

For example, in a prosecution for Grand Larceny or Petit Larceny there are two affirmative defenses built into the statute under New York Penal Law 155.15. The first of theses defenses states that where one is being prosecuted for a larceny by trespassory taking or embezzlement, it is an "affirmative defense" that the property was appropriated or taken under a claim of right made in good faith. Additionally, if alleged crime is a larceny by extortion where the extortion was committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and the sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.

While it is important to note that a specific "affirmative defense" is clearly set forth by statute, after reading the paragraph above it is also apparent that the language of the "affirmative defense" may not be so clear. Not only can a NY criminal defense lawyer explain a specific "affirmative defense" a criminal lawyer will also be able to examine the facts of your case to see whether such a defense applies.

Before pleading guilty to any crime or considering to do the same, consult a criminal defense attorney and determine what, if any, type of defense you may have.

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Posted In: Criminal Defense

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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.

Due to the potential for impacting so many people and causing financial devastation, Identity Theft and fraud related crimes are investigated thoroughly and aggressively by skilled and experienced prosecutors and law enforcement officers on both the state and federal levels. Here in NY, many of those prosecutors and law enforcement officers have received, and continue to receive, hands on training in the means by which Identity Theft, Money Laundering, Forgery, and related fraud crimes are perpetrated and investigated.

While the scope and amount of the alleged criminal scheme conducted by these men may be larger than the "average" case, if you find yourself in any predicament involving the crimes relating to Identity Theft, you should not merely retain any criminal attorney, but a NY criminal defense attorney who has real training and experience defending and prosecuting these crimes.

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Posted In: Identity Theft

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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.

New York Penal Law does not differentiate between the high end call girl, woman from an escort service or the street level "hooker." Regardless of how much one charges, a person is guilty of Prostitution when "such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee." See Penal Law 230.00. This offense is a class "B" misdemeanor punishable by up to 90 days in jail.

Although "sexual conduct" is not defined in this particular statute, other sections of the New York Penal Law and cases addressing this issue define "sexual conduct" as sexual intercourse, oral sexual conduct, anal sexual conduct and masturbation.

It is not always clear whether or not a person's actions rise to the level of prostitution. For example, if you give a lap dance where there is "grinding" or an erotic massage are you guilty of Prostitution? What is the definition of "agrees?" What if you are paid a fee so someone can merely touch a part of your body? Each set of facts requires an experienced criminal defense attorney to challenge the accusations to make sure each element of the crime is met. If you find yourself in this position you owe it to yourself to retain a NY criminal defense lawyer with real experience in these crimes.

Posted by Jeremy Saland | Permalink | Email This Post

Posted In: Escort Services, Prostitution and Unlicensed Massage

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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.

Health Care Fraud in the Fourth, Third, Second and First Degree - NY Penal Law, 177.10, 177.15, 177.20, and 177.25 respectively - deviates from the misdemeanor charge in that a person is guilty of these charges if he commits the crime of Health Care Fraud in the Fifth Degree and the payment or portion of the payment that is wrongfully received, as the case may be, from a single health plan, in a period not more than one year, exceeds a certain amount of money. In the Fourth Degree that amount is $3000, in the Third Degree that amount is $10,000, in the Second Degree that amount is $50,000 and in the First Degree that amount is $1,000,000. Each of these crimes are felonies with maximum sentences ranging from four years to twenty five years in state prison.

Fortunately, for those accused of these crimes there is an affirmative defense set forth in the Penal Law. If the defendant is a non-management bookkeeper, clerk or other employee who, without personal benefit, executed the orders of a supervisor who generally authorizes the defendant's activities, the defendant may be able to beat the charges. Therefore, the accused should contact an experienced criminal attorney who can present this defense to the District Attorney's Office with to put and end to the investigation or prosecution.

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Posted In: Fraud Related Offenses

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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.

In the event a defendant does not return for sentencing or trial, a Parker Hearing should be ordered to determine that the defendant's absence was voluntary or whether the defendant may be located within a reasonable amount of time. When these hearings take place, the prosecution is usually required to establish that the defendant was not hospitalized, jailed in another jurisdiction or had other issues impacting his ability to return to court. In other words, a defendant's absence does not give the prosecution or the court the blanket authority to proceed with the case.

Regardless of your situation, it is always important to get to court on time and on the scheduled date. Even if the case does not proceed in your absence, a bench warrant may be issued authorizing your immediate arrest. If there is a legitimate reason for your absence and you know in advance (such as hospitalization), you should supply a criminal defense attorney with any and all applicable information and documentation so that he can prevent any warrant from being ordered.

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Posted In: Criminal Procedure

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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."

For our purposes of determining whether a conviction for Resisting Arrest may be legal despite no conviction for the underlying crime, the important element is "authorized arrest." Where there is an "authorized arrest" a conviction for Resting Arrest can be had where there is no conviction on the underlying charges. In other words, if there is probable cause to arrest a person for the crime of Assault and the person resists and is therefore charged with Resisting Arrest, the Resisting Arrest charge may be able to stand alone as long as there was probable cause to initially make the arrest. See People v. Volition; See also People v. Laltoo.

Despite the fact that a Resting Arrest charge can stand alone, each case must be analyzed and examined on its own set of facts. Merely because it is legally permissible to stand alone does not mean in each case it should. A criminal defense attorney can assist you in not only understanding the "rules" of Resisting Arrest, but when it may be challenged with the intention of having the charged dismissed.

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Posted In: Violent Crimes

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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.

While the answer is not always clear, what is clear is that there must be evidence of a separate intent for each separate and distinct theft. See People v. Ramos. Furthermore, a prosecutor in the Grand Jury or a judge at trial must instruct the jury that even though there were thefts on multiple dates, the jury must find a "single intent" despite those different dates. See People v. Tighe.

While the above scenario appears complicated, an experienced criminal defense attorney should be prepared to challenge the criminal complaint or indictment. That is why before you retain counsel to represent you in a complicated criminal matter you should seek out a criminal defense attorney with practical training and experience necessary to guide you through this process.

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Posted In: Theft Offenses

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