New York Criminal Lawyer Blog

The New York criminal defense attorneys at Crotty Saland LLP are pleased to announced that our client was acquitted of all charges in Brooklyn Criminal Court after he had been initially charged with and accused of DWI / DUI pursuant to VTL 1192.3, DWAI, pursuant to VTL 1192.1 and Driving Without a License pursuant to VTL 509.

Our client was involved in an accident where an individual struck him from behind rendering his 2000 BMW inoperable. Our client waited on the scene until the police came and the other vehicle drove off. Although he only "blew" a .053 on the Intoxylizer 5000, and the police charged our client with the violation of VTL 1192.1, the Brooklyn District Attorney's Office bumped the charged to "Common Law DWI," a misdemeanor. Throughout the case, the DA's Office had been offering a violation of VTL 1192.1 which we argued was not an "offer," but merely the "worst case scenario" in that the DWI was not the proper charge (.08 is the legal limit unless prosecutors can establish other characteristics of being intoxicated), but an inflated offense in conflict with the facts of the case.

At trial, the arresting officer testified that he and the defendant pushed the inoperable vehicle across Flatbush Avenue. More specifically, crouched down shoulder to shoulder "huffing and puffing," the officer didn't notice the smell of alcohol on our client for 20 minutes. Moreover, at no time during the 20 minutes did our client stumble, slur his speech, trip, loose his balance or show any other indicia of intoxication. The officer was further cross examined to assert that his safety is paramount and if an individual was intoxicated the officer certainly would not have that person push a vehicle with him across Flatbush Avenue (the officer also could not recall who was steering the vehicle). Compounding matters, the officer admitted an error in his paperwork was done in a manner to facilitate that paperwork and although it was not accurate, it was done in a manner that was "easy" for him.

Ultimately, at the precinct, our client complied with the examinations offered by the police and it appeared that he successfully passed those exams despite the officer's testimony to the contrary. In fact, our client often stood perfectly straight with his arms behind his back. While the officer claimed he was "unsteady" because our client took more than the nine requested steps in one test, there court apparently agreed with us that he was steady.

Although, significantly less serious, the court also acquitted our client of driving without a license pursuant to VTL 509. In part, we argued on behalf of our client that the officer's testimony as to the Department of Motor Vehicle records and what they revealed was hearsay. Instead, a business record and or custodian of those records was required to establish this lack of a license. Again, apparently the court agreed.

While the above synopsis of this trial is extremely brief and barely touches on the facts of the case, the lesson is always clear. DWI is a serious offense that can destroy lives and one that can be avoided by taking responsible steps. There is no excuse to make a care a weapon. Having said that, whether you are honest, good or even an all around bad guy, you have rights. We all do. You should exercise those right and protect those rights vigorously. An accusation does not equate to guilt.

Representing clients charged with DWI throughout the New York City region, Crotty Saland LLP is a New York trial and criminal defense firm founded by two former Manhattan prosecutors.

For further information on New York DWI laws and crimes, please review the DWI section of the Crotty Saland LLP website or the DWI section of the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

While there are bright and articulate people on all sides of the argument to legalize marijuana in New York State, as it stands now the law is clear. Possession of marijuana ("marihuana" in the New York Penal Law) is illegal. In New York City (Manhattan, Brooklyn, Bronx and Queens) as well as in Westchester County, possession of merely a joint can lead to an arrest or issuance of a Desk Appearance Ticket for Unlawful Possession of Marijuana (New York Penal Law 221.05), Criminal Possession of Marijuana in the Fifth Degree (New York Penal Law 221.10) or Criminal Possession of Marijuana in the Fourth Degree (New York Penal Law 221.15).

The issue for most people, however, is not whether possession is illegal or whether they will be issued a New York Desk Appearance Ticket or be put through the system. Instead, a question often asked to New York criminal defense attorneys is what is the potential punishment and, secondarily, how will this impact the accused's future. This first entry on this topic will address the violation and the misdemeanor crimes involving marijuana possession as well as the potential punishment associated with those offenses. A later entry will address the felony crimes involving the possession of marijuana.

Unlawful Possession of Marijuana (NY PL 221.05)

Unlawful Possession of Marijuana is perpetrated when one knowingly and unlawfully possesses marijuana. Often times the scenario where this offense is charged is where the marijuana is not burning or open to public view, but it is recovered from a pocket or similar location. A "violation," a conviction of this offense will not result in a criminal record. For a first time offender, a fine of no more than $100 will be levied as well as possible court costs.

Criminal Possession of Marijuana in the 5th Degree (NY PL 221.10)

One can be convicted of Criminal Possession of Marijuana in the 5th Degree when one possesses the marihuana in a public place and it is either burning or, alternatively, open to the view of the public. Moreover, even if the marijuana is not possessed as described, a conviction will be sustained if the aggregate weight is more than twenty-five grams but no more than two ounces.

A "B" misdemeanor, this crime is punishable by up to 90 days in jail.

Criminal Possession of Marijuana in the 4th Degree (NY PL 221.15)

A person will be found guilty of Criminal Possession of Marijuana in the 4th Degree if the prosecution proves beyond a reasonable doubt that you unlawfully and knowingly possessed marijuana with an aggregate weight exceeding two to eight ounces.

An "A" misdemeanor, this crime is punishable by up to one year in jail (Rikers Island or the Westchester County Jail).

It is important to note that mere possession and even an admission by the accused does not mean the accused should plead guilty or accept a criminal conviction. Often times there are multiple ways to fight these cases. For example, whether you were issued a Desk Appearance Ticket for marijuana possession or arrested for possessing the contraband, a Marijuana Adjournment in Contemplation of Dismissal (ACD) may be a potential way to resolve your case. Although it should be further discussed with your New York criminal defense lawyer, the case can be dismissed and sealed in year leaving you without a criminal record. Alternatively, if you are charged with Criminal Possession of Marijuana in the Fourth or Fifth Degrees and you are not eligible for a Marijuana ACD, a plea to the violation and a fine may be a way to avoid a criminal conviction.

Beyond the potential crimes and punishments, another important issue that should be addressed in these types of cases is how it came to be that you were stopped and searched by the police. Where did they recover the marijuana? Was it on your person? How did they get into your pockets? What was there probable cause? At bottom, was the search legal? It may be that conduct by the police was absolutely legitimate, but these issues are certainly areas that should be explored.

The above primer for marijuana misdemeanor crimes is just that...a primer. There are many substantive issues and concerns that should be addressed that are beyond the criminal case. Will this impact your certification or licensing? Will you have a record forever if convicted of these crimes? What about if you are only convicted of the violation? The list goes on.

For further information about New York Desk Appearance Tickets, please follow the highlighted link. For information on marijuana crimes, recent legal decisions, newsworthy cases and other offenses, please read the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

The New York criminal defense attorneys at Crotty Saland LLP represent clients in all criminal matters throughout the New York City region. Prior to starting the firm, the founding partners served as prosecutors in the Manhattan District Attorney's Office.

Manhattan District Attorney Cyrus Vance landed himself a solid indictment yesterday. If the number of charges are actually any indication of how solid an indictment is, the 106 counts against Nefertit Garnett and 80 counts against Zoe Walmsely are very telling. Charged with Grand Larceny in the Second Degree, Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Scheme to Defraud in the First Degree, and Attempted Grand Larceny in the Second Degree, the defendants are each alleged to have stolen in excess of $100,000 from Chase bank using the identifying information of numerous people.

According to the press release:

"...the defendants conducted multiple bank transactions in their victims’ accounts, including withdrawals, deposits, and the cashing of forged checks. At least one of the victims was impersonated by both GARNETT and WALMSLEY, who each conducted fraudulent bank transactions using the same victim’s name. The investigation is continuing to determine whether there may be further connections between the two defendants."

"GARNETT is charged with identity theft for impersonating at least seven individuals. She conducted at least 35 transactions involving her victims’ bank accounts between October 6, 2009 and March 30, 2010."

"According to her indictment, WALMSLEY is charged with identity theft, for impersonating at least eight different victims. She conducted at least 28 transactions involving those victims’ accounts between February 24, 2009 and March 8, 2010."

Grand Larceny in the Second Degree is a "C" felony punishable by up to 15 years in state prison. Identity Theft if the First Degree, Criminal Possession of a Forged Instrument in the Second Degree and Attempted Grand Larceny in the Second Degree are each "D" felonies punishable by up to 7 years in state prison. Scheme to Defraud is an "E" felony punishable by up to 4 years in state prison. For further information on these crimes follow the highlighted links. For additional information on other Penal Law offenses as well as recent legal decisions and case in the news, please go to the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com

Crotty Saland LLP is a New York criminal defense firm representing clients throughout out the New York City region. Jeremy Saland, one of the two former Manhattan prosecutors who founded the firm, served in the Identity Theft Unit Major Case Section, the predecessor of the current Cyber Crime and Identity Theft Bureau.

Reckless Endangerment in the Second Degree (New York Penal Law 120.20) is a misdemeanor crime routinely handled by both prosecutors and criminal defense lawyers in New York City and the region. Although seemingly straight forward, the law not only has terms that have their own meaning, but cases that have decided how and when the law is applied. This entry will be the first in a series of "primers" on Reckless Endangerment in the Second Degree (NY PL 120.20). Future entries will address the law as well as the "felony version" of Reckless Endangerment pursuant to New York Penal Law 120.25.

Reckless Endangerment in the Second Degree - NY PL 120.20

Simply put, if one engages in conduct that is reckless and that conduct creates a substantial risk of serious physical injury, then one is guilty of Reckless Endangerment in the Second Degree.

It is critical to note that the statute requires not only a "substantial risk," but that the injury that may occur be "serious physical injury." A black eye, split lip or similar injury is not enough to meet the requirements and elements of Reckless Endangerment. The New York Penal Law defines "serious physical injury" as the type of injury that "creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

In addition to the level of injury as addressed above, the potential serious physical injury must be both foreseeable and the defendant's conduct must actually create a risk of that injury. Although there are plenty of legal decisions addressing when one's conduct amounts to Reckless Endangerment in the Second Degree, a recent decision by a Manhattan Criminal Court Judge highlights what is required. In People v. Beam, 2 Misc.3d 306 (N.Y. Crim. Ct. 2008), an information (complaint) alleged that the defendant ran into traffic to avoid the police while cars were in motion. In dismissing the information as insufficient, the court stated:

"It is certainly possible, and possibly even somewhat likely, that defendant or another person might have experienced some sort of injury from an automobile accident caused by defendant's sudden and swift entry in to the roadway. Nevertheless, on the facts alleged, this court can neither find nor infer that a substantial and unjustifiable risk of serious physical injury was created by defendant's hasty jay-walking. In order to establish that defendant engaged in reckless endangerment, the risk created by a defendant's conduct must be foreseeable ( see People v. Reagan, 256 A.D.2d 487, 683 N.Y.S.2d 543 [2d Dept.1998] ) and the conduct must actually create a risk of serious physical injury ( see In re Kysean D.S., 285 A.D.2d 994, 728 N.Y.S.2d 323 [4th Dept.2001] ). Accordingly, the count is dismissed."

This initial "primer" for the New York crime of Reckless Endangerment in the Second Degree should be just enough for a general understanding of the crime. In the event you are charged with this offense (it is punishable by up to one year in jail) you should consult with legal counsel to ascertain whether the elements have been established by the prosecution and what your best defense may be.

Crotty Saland LLP is a New York criminal defense firm founded by two former Manhattan prosecutors. Based in lower Manhattan, Crotty Saland LLP represents clients throughout the New York City region. For further information on the New York Penal Law, recent legal decisions and newsworthy cases, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com or the Crotty Saland LLP website.

Although not often litigated by New York criminal defense lawyers where a client is charged with Possession of Graffiti Instruments, pursuant to New York Penal Law section 145.65, it is important to understand or identify what constitutes a "graffiti instrument." Certainly, some tools are obvious. Cans of spray paint, markers, etc. are obvious "graffiti instruments" in the right circumstances. Yet, why are those objects "graffiti instruments" and what is the basis of that definition?

New York Penal Law 145.65 sets forth that one is guilty of Possession of Graffiti Instruments when one possess any instrument (even a substance or solution) designed or commonly used to etch, paint, cover or draw upon property. The definition is further expanded to address permission or authority to make such marks and circumstances evincing the intent to damage the property of another. These terms put together establish graffiti instruments.

In People v. Torres, 184 Misc.2d 429 (NY Cty Crim. Ct. 2000), a Manhattan criminal court judge found that glue and posters were in fact instruments of graffiti as set forth in NY PL 145.65. In determining as such, the court reasoned that "If it is in fact the case that the Legislature intended that any 'covering' of property-such as covering property with glue and paper-with the intent to damage it constitutes graffiti, then any tools or substances commonly used to cover property with glue or paper would obviously be within the statute." Therefore, while not commonly thought of as a "graffiti instrument" similar to a can of spray paint, if one has the intent to damage property and cover that property, the tools or means to do so, such as glue and posters, are the "instruments" to perpetrate the crime.

What should be taken away from this entry is that if you are charged with, arrested for or accused of Possession of Graffiti Instruments in New York, don't think that the "instrument" must be an obvious tool of the trade. If it is used, to etch, cover, paint, etc., there is an intent to damage and you do not have the permission or authority to do so, then this charge is a likely and potential offense that you will face.

For further information on New York graffiti crimes please follow the link to the appropriate section of the Crotty Saland LLP website. Further information on New York graffiti crimes as well as legal decisions and newsworthy cases on these an other offenses can be be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm. Representing the accused throughout New York City and the region, the New York criminal defense attorneys at Crotty Saland LLP have extensive experience on both sides of the law having served as Manhattan prosecutors prior to starting the firm.

A common felony offense charged by police and defended by New York criminal defense lawyers in the arena of controlled substance, narcotic and drug crimes, is Criminal Possession of a Controlled Substance in the 5th Degree pursuant to New York Penal Law section 220.06(5). A serious crime involving the possession of cocaine, CPCS 5th Degree is a "D" felony punishable from one year to two and a half years in state prison for a first time offender. Obviously, if you are a "predicate felon" you will face more time in state prison. Fortunately, due to changes in the Rockefeller Drug Laws, there are potential ways to avoid state prison that should be discussed with your New York criminal defense attorney.

Having briefly addressed the ramifications of New York Penal Law 220.06(5), the following entry will take a step back and (1) define the offense as it relates to cocaine possession and (2) discuss whether the 500 milligrams is an aggregate weight or a pure weight measurement.

Simply put, Criminal Possession of a Controlled Substance in the Fifth Degree, New York Penal Law 220.06(5) is defined as follows:

If one knowingly and unlawfully possesses 500 milligrams or more of cocaine, one is guilty of Criminal Possession of a Controlled Substance in the Fifth Degree.

First, while it appears straight forward, one must not only possess the cocaine, but must knowingly possess that cocaine and know that the weight is 500 milligrams or more. In other words, if the prosecution is unable to establish your knowledge that the weight of the drug was 500 milligrams or more, the case should be reduced (easier said than done). Again, it is not the mere knowledgeable possession, but knowledge of the weight as well. If only knowledge is established, but not weight or knowledge of that weight, then the appropriate charge is likely the misdemeanor crime of Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03) as that is the lesser "default" crime for possession of any controlled substance.

The second issue briefly mentioned above will get a brief answer. 500 milligrams is a pure weight measurement. Therefore, if you possesses 600 milligrams, 500 of those milligrams must be cocaine and not some other mixture. Another way to look at this crime is that even if you possess 525 milligrams of cocaine, if the pure cocaine is less than 500 milligrams, then NY PL 220.06(5) is not the proper charge.

Unfortunately, in the realm of drug crimes, escaping one offense may still open the door to another charge. While there are too many scenarios to discuss in one blog entry, even if you were to possess 525 milligrams, of which only 300 is pure cocaine, you may still face additional crimes. If the prosecution can establish you had the intent to sell those drugs (maybe you had a scale, baggies, etc.), you may also face the significantly more serious crime of Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony.

For further information on New York drug crimes, please follow the highlighted link and review the drug section of the New York Criminal Law Blog at Crotty Saland LLP's NewYorkCriminalLawyerBlog.Com.

Prior to starting the New York criminal defense firm, the founding members of Crotty Saland LLP served as prosecutors in the Manhattan District Attorney's Office. Jeremy Saland, one of our New York criminal defense lawyers, was also cross designated with the Office of the Special Narcotics Prosecutor on two large scale and multi-jurisdicitional narcotic investigations.

Crotty Saland LLP represents clients in all criminal matters throughout the New York City region.

The first defense to any drunk driving charge is simple. Don't do it. Unfortunately, we all have and will continue to make mistakes whether they are criminal in nature or not. In the realm of criminal law, however, a mistake made by a a good and honest person is often magnified exponentially. Regardless of how it came to be, a charge or allegation of Driving While Intoxicated (DWI / DUI) in New York is a serious offense codified in Vehicle and Traffic Law (VTL) 1192. While the following is not an in depth analysis of the DWI / DUI laws in New York State, the offenses listed below are some of the most common charges:

VTL 1192.1 - Driving While Ability Impaired

This offense is a "violation" and often times the "deal" offered by prosecutors. If you do not already have one, a plea to VTL 1192.1 will not give you a criminal record. However, this violation will show up on record checks even though it is not a criminal conviction. There are fines and programs, such as the DDP, that are often part of pleas to this offense. Moreover, your license will be suspended for three months as a first time offender.

VTL 1192.2 - Driving While Intoxicated - Per Se

This offense is a crime and a plea or conviction will result in a criminal record. In New York State, if your BAC is .08 or greater you are considered per se intoxicated. Even in the event you do not display the common signs of intoxication, blood shot eyes, unsteady gate, slurred speech, etc., if you register a .08 or greater reading of alcohol in your system, it is an "automatic" presumption of intoxication pursuant to VTL 1192.2. Having said that, just as with any charge, your New York criminal defense attorney can challenge the basis of the stop of your vehicle and the results of the BAC reading. It is always the prosecutions burden to prove each and every element of the crime beyond a reasonable doubt. The sentencing for this offense is more significant than VTL 1192.1 and carries a six month revocation of your license. Not only is there a greater fine, but a in the event you are incarcerated the term is longer as well. It is important to note that New York State is requiring that those convicted of this offense, and any criminal DWI conviction, have their vehicles outfitted with a device similar to the intoxilizer where one must blow into it in order to get their vehicle started.

Keep in mind that the those with higher "blows" are less likely to receive an offer of VTL 1192,1. Some jurisdictions don't make offers of violations once you start registering in the vicinity of a .13 or .14. Moreover, if there is an accident or children in the vehicle, other more serious crimes may be charged.

VTL 1192.3 - Driving While Intoxicated - Common Law

This crime carries the same punishment as VTL 1192.2 and can be charged in addition to VTL 1192.2 or VTL 1192.1. "Common Law DWI" is based on observations by a police officer. If you have slurred speech, blood shot eyes, alcohol on your breath, etc., this crime may be charged even without registering a reading of your BAC. In fact, when one refuses to "blow," for example, the refusal by the accused will result in this charge. Although not a criminal matter, a refusal will also result in the revocation of your license by the New York State Department of Motor Vehicles for one year even if you are ultimately acquitted of the crime. Having said that, you will be granted a "Refusal Hearing" where you can challenge the validity of your refusal and attempt to get your license reinstated. Additionally, from the perspective of the criminal case, these hearings are critical because it will give your New York criminal defense lawyer the ability to cross examine the police officer without the presence of a prosecutor.

VTL 1192.4 - Driving While Intoxicated - Drugs

This crime is the same level offense as VTL 1192.3 and VTL 1192.2, but the accusation is that drugs, not alcohol, is the culprit behind your intoxication. Often times, just as it is in the common law crime, it is the accused's statement at the scene or precinct ("I only had a couple of beers" or "I smoked pot a an hour ago") that makes their case more difficult to defeat. Remember, the police are doing their job. Be respectful, but there is no reason to or legal requirement for you to make an admission of any crime. It will be used against you.

Continue reading for addition DWI / DUI crimes and punishments

Continue reading "New York Drunk Driving - DWI / DUI - Primer: New York Criminal Laws & Criminal Defense" »

Maybe you stole a couple of sheets from a physician's prescription pad and made out a completely fake prescription for drugs and medicine such as Vicodin, Oxycodone or OxyContin. Maybe you altered your doctor's legitimate prescription by increasing the dosage or amount of Xanax, Adderall or Ritalin. Regardless of how the fraudulent prescription is drafted, as long as it is in fact altered you may face the "D" felonies of Criminal Possession of a Forged Instrument in the Second Degree or Forgery in the Second Degree.

If you actually drafted, created or altered the prescription fraudulently, a likely charge you will face is Forgery in the Second Degree pursuant to New York Penal Law 170.10(5). Often times, however, the police and prosecutors do not catch the person in the act of the alteration. Instead, either a search of a vehicle, a person's clothing or even the retrieval of the forged prescription from a pharmacist will result in a charge of Criminal Possession of a Forged Instrument in the Second Degree pursuant to New York Penal Law 170.25. Regardless of which offense is charged, a conviction for these felonies is punishable by up to seven years in state prison.

The actual law is not as simple as presented above. For example, the prosecution must establish beyond a reasonable doubt that you had the intent, for example, to deceive, injure or defraud another. Moreover, as it relates to a physician or doctor's prescription in New York, there is specific language that governs both Forgery and Criminal Possession of a Forged Instrument. New York Penal Law sections 170.10(5) and indirectly 170.20 establishes that a person would be guilty of these crimes if the written instrument purports to be:

"A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law."

It is worth noting in this entry that if you are successful in obtaining the prescription medicine and you no longer have the fraudulent prescription as it is in the possession of the pharmacist, you are not "safe" from prosecution. Assuming it can be established that you possessed that prescription earlier and provided it to the pharmacist, you can still be charged with one of these crimes. Moreover, although a different crime, if you are found in possession of a medicine that is also a controlled substance, you can face narcotics related charges. While simple possession may only be a misdemeanor (Criminal Possession of a Controlled Substance in the Seventh Degree) you may be charged with other offenses including Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony, in the event the prosecution can establish you had the intent to sell the drugs.

This brief blog entry should make it overwhelmingly clear that accusations involving prescription drug abuse, prescription fraud and possession of controlled substance are all serious offenses in New York. While you may have a strong defense to these crimes that need to be vetted with your counsel, the road ahead will certainly be trying.

For further information on the crimes of New York Forgery, New York Criminal Possession of a Forged Instrument and New York Criminal Possession of a Controlled Substance, please follow the highlighted links.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland LLP represent the accused throughout the New York City region.

The tax man comes for everyone. Seems like the Queens District Attorney does so as well. While the New York taxing authorities take their payment in money, District Attorney's Offices seek not just your money, but your freedom as well. Unfortunately for Diana Rabin, an accountant, her mother Lyidmila Levy, sister Alisa Derabin and clients Merced R. Baumer and Nyemah Johnson, they are now facing up to fifteen years in state prison for allegedly attempting to obtain a combined $1.1 million in New York State tax refunds.

Not only are the defendants alleged to have claimed hundreds of thousands of dollars in income, but tens of thousands of dollars in taxes withheld from this purported income. According to the District Attorney's Office, this income was made up as some of the defendants did not even work.

According to the Queens District Attorney website:

"Rabin attempted to collect more than $1.1 million in state tax refunds between March 2008 and June 2010 for herself and the four other defendants whose returns she had prepared and who, in fact, did unlawfully receive and retain a total of approximately $275,581 before the state Tax Department discovered the fraud and put a halt to other refunds.

In carrying out the alleged scheme, Rabin is accused of fraudulently preparing and filing tax returns for herself and the other defendants that claimed each had earned exorbitant amounts of fictitious income from employees. For example, it is alleged that Rabin and her mother listed employers on their returns who had previously fired them, Baumer and Johnson listed employers for whom they had never worked (but had previously employed and fired Rabin), and that Derabin exaggerated the per diem wages that she earned as a nurse from a home care agency. It is further alleged that during state Tax Department audits of the defendants’ tax returns all but Baumer filed forged memoranda that purported to have been issued by their “employers” and repeated the false statements about the wages they had earned and the taxes withheld.

In total, it is alleged that the five defendants claimed a total of $2,639,088 in fictitious wages for the tax years 2007, 2008 and 2009 and tax refunds totaling $1,103,846 when, in fact, they were only entitled to a total of $13,123 in tax refunds if all the other information on their returns were correct."

The defendants are charged, not indicted, on the following crimes:

Attempted Grand Larceny in the First Degree (a "C" felony), Grand Larceny in the Second and Third Degrees (a "C" and "D" felony respectively), Criminal Possession of Stolen Property in the Second and Third Degrees (a "C" and "D" felony respectively), Forgery and Criminal Possession of a Forged Instrument in the Second Degrees (both "D" felonies), Falsifying Business Records and Offering a False Instrument for Filing in the First Degrees (both "E" felonies) and other crimes relating to Conspiracy and New York Criminal Tax Fraud. For first time offenders, a "C" felony is punishable by up to fife to fifteen years in state prison, a "D" felony is punishable by up to two and one third to seven years in state prison and an "E" felony is punishable by up to one and one third to four years in state prison.

For further information, including definitions, case law and other materials, please follow the highlighted link for each crime or review the applicable sections of Crotty Saland's New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm representing clients throughout the New York City region. Prior to starting the firm, the founding members served as prosecutors in the Manhattan District Attorney's Office under Robert Morgenthau.

Not to be mistaken with Rewarding Official Misconduct (New York Penal Law 200.20), Official Misconduct (New York Penal Law 195.00), is a unique crime prosecuted in New York associated with public servants (defined below). Official Misconduct occurs as follows:

When a public servant has the intent to obtain a benefit or deprive another person of a benefit, he:

1. Commits a particular act related to his office that is an unauthorized exercise of his official functions; or

2. Knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

An "A" misdemeanor, Official Misconduct is punishable by up to one year in a county or city jail such as Rikers.

Defined under New York Penal Law 10.00(15), a "public servant" includes any public officer or employee of the state of New York.

It is very important to note that for a person to be guilty of this offense under subsection (1), that person must fulfill two prongs. That is, the act must be related to his office AND the act must be an official function. Although directly addressing the charge of Bribe Receiving and subsequently the offense of Official Misconduct, the Court of Appeals (New York's highest court) upheld the Appellate Division's decision that a corrections officer could not be guilty of either charge where he received payments for fixing traffic tickets. In that matter the Appellate Division found that the, "[t]he action taken by defendant, corrupt or not, was completely unrelated to his position, and not such as would be within the scope of his real or apparent authority." Clearly, fixing traffic tickets has no relation to the office of or the official functions of a corrections officer. See People v. Rossi 50 N.Y.2d 813 (1980). If this same offense was perpetrated by a traffic cop, the outcome would likely have been very different.

Like any other criminal offense, the legal language of the statutes and associated legal decisions must be reviewed and analyzed to see whether the accused's actions falls with in the parameters and prescribed conduct of the crime.

For further information on the crimes of Rewarding Official Misconduct and Bribe Receiving, please follow the respective links or review the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm founded by two former Manhattan prosecutors.

New York County District Attorney Cyrus Vance, Jr. is following his predecesor's commitment to not only cleaning up crime in the streets, but fraud in the suites as well. This mantra does not stop with white collar crime and DA Vance appears to be ready to build upon the principles and objectives of the Immigrant Affairs Program established under Robert Morgenthau. In fact, DA Vance announced yesterday an indictment of Teresa Nora Martinez for allegations of immigration fraud. If this case and others are any indication, DA Vance is fed up and displeased (dare I say incensed ?) with alleged swindlers and scammers in the arena of immigration fraud. According to the DA, Ms. Martinez stole $12,000 from immigrants after informing them she was an attorney or was associated with attorneys who could assist them with their immigration issues.

The District Attorney press release states as follows:

"The crimes charged in the indictment occurred between November 2008 and April 2009. According to statements in the court record, Martinez defrauded two Mexican immigrants by introducing herself as a licensed immigration attorney and promised to assist them with their immigration cases and to get them green cards. She told a third victim, also a Mexican immigrant, that she was working with attorneys and guaranteed that he would get a green card if he paid the demanded fees. In exchange for her services, Martinez demanded multiple payments of cash or money order from the three victims, which totaled $12,000.

As described in court, victims became suspicious when Martinez began avoiding their calls and at one point falsely told them that their immigration cases had been scheduled for court hearings on a Saturday, a day when the court is closed. They soon discovered that she was not a licensed attorney and demanded the return of their money. Martinezrefused and they reported her scheme to the District Attorney's Office. "

A Grand Jury has indicted Ms. Martinez on two counts of Grand Larceny in the Third Degree, one count of Scheme to Defraud, one count of Practicing a Profession without a License (as an attorney) and one count of Petit Larceny. Grand Larceny in the Third Degree is a "D" felony punishable by up to seven years in state prison while the other offenses are lesser felonies and a misdemeanor.

It is interesting to note that the prosecution charged what appears to be three separate thefts (two Third Degree Grand Larcenies and one Petit Larceny) as opposed to aggregating the values. As a general rule, aggregation is only permitted when the victims are the same. However, some case law does exists permitting aggregation of multiple victims in the same scheme. Here, where the threshold to hit the greater offense of Grand Larceny in the Second Degree is property valued in excess of $50,000, it appears that it made little sense to push the law and aggregate values from different victims as part of the same scheme. Obviously, $12,000 is far below the necessary minimum for a "C" felony. In the event other alleged victims are found and the value of the thefts potentially increases, maybe the prosecution will view the case differently. Regardless, Ms. Martinez as a long road ahead.

Crotty Saland LLP is a New York criminal defense firm founded by two former Manhattan prosecutors who served under Robert Morgenthau in both the Trial and Investigations Divisions.

Although it took months of wrangling, the New York criminal defense attorneys at Crotty Saland LLP are pleased that our client was able to avoid a criminal record after being arrested and charged with felony Forgery (New York Penal Law 170.10) and felony Criminal Possession of a Forged Instrument (New York Penal Law 170.25). Prosecutors had alleged that our client, an employee of doctor at a New York City Hospital, stole sheets of a prescription pad belonging to that physician and drafted a prescription for Oxycodone. This prescription was allegedly presented to a pharmacy where it was determined by staff that the doctor's signature did not match prior prescriptions. Additionally, staff at the pharmacy questioned the number of Oxycodone pills requested.

After advising the prosecution of the facts of the case, providing a "package" about the client and supplying other factors to law enforcement, the prosecution ultimately agreed to dismiss the felony counts and permit our client to plead guilty to Disorderly Conduct (a violation and not a crime). Currently a nursing student, our client will now be able to proceed with her career and without the scarlet letter of a criminal conviction.

For further information on New York Forgery, New York Criminal Possession of a Forged Instrument and New York Criminal Diversion of Prescription Medication, please follow the highlighted link. For further information on these and other areas of criminal law, legal decisions and newsworthy cases, please follow the link to the New York Criminal Lawyer Blog or go to the NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm. Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland LLP have experience handling criminal investigations, arrests and trials from both sides of the law.