New York Criminal Lawyer Blog

Although it rears its head in other areas of New York criminal law, violations of a defendant's right to counsel (right to remain silent) seem disproportionately greater in the area of New York graffiti crimes including Making Graffiti (New York Penal Law 145.60), Criminal Mischief (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). While I cannot base my opinion on any scientific data, as a New York graffiti crimes criminal defense lawyer, I have litigated and addressed the issues regarding right to counsel numerous times in this specific arena. In fact, one of the New York City District Attorney's Offices recently dropped five of six cases against our client after I successfully argued that the client's right to counsel was violated by the New York City Police Department's Vandalism (Vandal) Squad. The argument was based in the doctrine of "Related Matters."

In the case mentioned above, our client had been arrested by police after he was allegedly observed with a spray paint can. A person had called indicating someone was in the process of spray painting. Our client was alleged to have made a particular tag at that location. Weeks later, after he was arraigned and had been assigned counsel, but had yet to retain Crotty Saland LLP, the Vandal Squad stopped our client on the street and confronted him with photographs. These photographs were of the same alleged tag at other locations. During his street interrogation by about six officers and detectives from the Vandal Squad, our client "admitted" to spraying the tag at the other locations. As a result, he was once again arrested and charged with five new cases regarding the same tag as the first arrest that was currently pending in criminal court.

Beyond our client's assertion that he was threatened into admitting that he had made the tags (there was corroboration by a witness as to part of the stop and interrogation), the argument used to successfully defeat these cases was not necessarily a factual one, but a legal one.

Continue reading "Graffiti Crimes & Making Graffiti in New York: The "Related Matters" Criminal Defense & Right To Counsel" »

Make no mistake about it. If you "dine and dash," leave a Manhattan cab driver high and dry without paying, jump a turnstile in Brooklyn or even use cable without permission, you will be either arrested or issued a NY Desk Appearance Ticket (DAT) for Theft of Services pursuant to New York Penal Law 165.15. If you are a New York City teacher or or any other person using a student or senior MetroCard, you will will face the same charge as well. Assuming you did not have permission to receive the services without paying, the conversation you have regarding Theft of Services (NY PL 165.15) with your New York criminal defense attorney or lawyer will be fairly simple. Not a DNA case, this crime is often summed up as either a misunderstanding between you and the victim or the result of a plainly stupid move on your part. The problem is, regardless of whether you were issued a New York Desk Appearance Ticket or arrested, if you are convicted of Theft of Services you will have a criminal record that will not be expunged or merely go away.

Potential Punishment & Collateral Consequences of Theft of Services (NY Penal Law 165.15)

An "A" misdemeanor, a conviction for Theft of Services or any crime will result in a criminal record. Compounding matters, a conviction for this offense is punishable by up to one year in prison. Having said that, practical punishment and potential punishment are not one in the same. Assuming the Theft of Services allegations does not include other crimes such as New York Grand Larceny, for example, defrauding the cab driver out of $10 or the restaurant out of $30 will not likely land you behind bars. Without other compounding factors, jail is not a usual outcome in New York City.

The greater issue, and one which often compels people to consult with experienced criminal defense attorneys in New York, is what will happen if you plea to a violation and thereby avoid a criminal record. In other words, if the District Attorney's Office makes you an offer of a violation such as a Disorderly Conduct, is this a type of disposition that you should accept and, if so, are there any collateral consequences?

While each case is as unique as the individual accused of perpetrating the particular crime, collateral consequences can be devastating whether you are charged with Theft of Services (NY PL 165.15) in Queens, Shoplifting / Petit Larceny (NY PL 155.25) in Manhattan, Criminal Possession of a Forged Instrument (NY PL 170.20) in Brooklyn or any other offense. For example, are you required to report an arrest or a plea, of any type, to your employer? If so, what are the grounds for your dismissal? Must a conviction be that of a crime or will a violation also terminate your employment? Beyond your direct employer, are there certification or licensing requirements that require you to report a plea even if it is non criminal? If so, what, if anything, should you do?

Beyond the above mentioned issues, what will happen to your "record?" Will it remain blemish free and clean? While a plea to a Disorderly Conduct should be sealed, it is far from atypical to have these non criminal dispositions pop up on background checks. Not only is it possible that the violation will be revealed, but the underlying or original arrest charge of Theft of Services, Petit Larceny, Criminal Possession of a Forged Instrument or any other crime. The last thing anyone wants is to believe that the case has been resolved to later find out that their potential employer or licensing agency has found out about it and is questioning an arrest from years before.

While this blog entry is not a substitute for an in depth discussion with your New York criminal defense attorney, it should give you the foundation to have that conversation. Not only may you decide to discuss potential dispositions such as Disorderly Conduct, but the better option of an Adjournment in Contemplation of Dismissal. Moreover, there may be both legal and procedural ways to beat the case and a plea is not something you should consider pursuing.

For further information such as criminal statutes and the New York Penal Law, legal decisions, legal analysis and newsworthy cases dealing with the crimes of Theft of Services (NY PL 165.15), Petit Larceny (NY PL 155.25), Criminal Possession of a Forged Instrument (NY PL 170.20) and Desk Appearance Tickets, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com and more specifically the topic areas of New York Theft Offenses, New York Fraud Related Offenses and New York Desk Appearance Tickets. Additional information can be found on the respective links for New York Desk Appearance Tickets and Criminal Possession of a Forged Instrument on the Crotty Saland LLP webpage and NewYorkDAT.Com.

The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland LLP represent individuals accused or and arrested for all crimes from Manhattan to Brooklyn, Queens to Westchester and the New York City region.

According to various reports, David Mejias, the Democrat New York State Senate candidate running against Republican Senator Kemp Hannon in Long Island's 6th Senate District, was arrested earlier today after an alleged "domestic type" incident involving an ex-girlfriend. Mr. Mejias is charged with multiple misdemeanors including Menacing in the Second Degree (New York Penal Law 120.14), Reckless Endangerment in the Second Degree (New York Penal Law 120.20) and Stalking in the Third Degree. These crimes are all "A" misdemeanors punishable by up to a year in jail. While bail was set at $1000, District Attorney Kathleen Rice appointed a special prosecutor due to her relationship with the defendant.

It is alleged that Mr. Mejias, the defendant, drove past his ex-girlfriend and abruptly stopped his vehicle. This caused the ex-girlfriend, the alleged victim / complainant, to do the same with her car. At that point it is further alleged that Mr. Mejias exited his vehicle and and yelled and screamed as he approached the alleged victim. The complainant was able to drive away, but the defendant is alleged to have followed her. After she was able to elude the accused, the ex-girlfriend reported the case to the police and the police arrested Mr. Mejias.

I have blogged numerous times in the past regarding the crime of Reckless Endangerment. As I have stressed, an accusation is merely just that...an accusation and not evidence of guilt. For this particular charge, the prosecution must establish that the defendant acted so recklessly that he created a substantial risk of serious physical injury. In other words, the risk must not merely be a possible one, but a substantial one while the potential injury must be more than merely a bump or bruise. Even if Mr. Mejias' actions were an exhibition of extremely poor judgment, did his reckless action raise to the level where there was a risk of serious physical injury? How fast were they driving? Where there other cars on the road? Was the ex-wearing a seat belt? If so, was the risk diminished? Again, even if Mr. Mejias did drive in this manner and put his ex-girlfriend at risk, was that risk substantial and did it create the potential for serious physical injury?

Menacing in the Second Degree might pose a more difficult problem for the defendant. According to the law, if Mr. Mejias repeatedly followed this ex-girlfriend or engaged in a course of conduct or repeatedly committed acts over a period of time intentionally placing or attempting to place her in reasonable fear of physical injury, serious physical injury or death, then he would be guilty of this crime. There are case decisions that do establish that "course of conduct" need not be over days or weeks, but significantly less time. Having said that, did his alleged yells (what was he screaming and was he threatening to hurt her?) place her in fear of physical injury or worse? Alternative, was she merely annoyed, aggravated or concerned for reasons beyond this physical danger?

Stalking in the Third Degree is similar to Menacing in the Second Degree (assuming the above Menacing offense is the actual subsection charged). Mr. Mejias would be guilty of Stalking if with intent to harass, annoy or alarm his ex-girlfriend, Mr. Mejias intentionally engaged in a course of conduct (yelling, following with car, etc.) directed at his ex-girlfriend which is likely to cause her to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or her kidnapping, unlawful imprisonment or death of a member of of her immediate family.

It is interesting to note, that the New York State Senate recently expelled one of its members, Hiram Monserrate, after he was convicted of a "domestic" crime of a reckless nature that involved his girlfriend. A Queens County Supreme Court Judge found the former Senator and current Assembly candidate guilty of Reckless Assault in the Third Degree pursuant to New York Penal Law 120.00(2). Currently, Kevin Parker, a Brooklyn New York State Senator, is facing felony charges in Brooklyn Supreme Court related to his alleged reckless and intentional acts of Criminal Mischief and Assault. These acts are not alleged to have been "domestic" in nature or involve a current or former girlfriend.

For further information on the crime of Reckless Endangerment and Menacing, including the New York Penal Law as well as legal decisions, please follow the highlighted links (more in depth analysis of Reckless Endangerment can be found in relation to Jet Blue's Steven Slater). Additional information on these crimes can be found on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) by searching for these terms and other terms.

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

Caroline Giuliani, the former New City Mayor's daughter, obtained an adjournment in contemplation of dismissal (ACD) in court earlier today whereby her case will be dismissed and sealed in six months. New York's Eyewitness News consulted New York criminal defense attorney Jeremy Saland as an "expert" in the arena of New York shoplifting and Petit Larceny (New York Penal Law 155.25) cases.

As noted in the news clip, Mr. Saland indicated that such a disposition is fairly typical where the alleged theft does not exceed $100. However, although it was not mentioned during the broadcast, Mr. Saland further explained that in the event the theft is alleged to have exceeded $100 dollars, the standard offer in Manhattan is often a less forgiving Disorderly Conduct. Furthermore, if the crime involves an alleged theft of $500 to $1000, then the standard offer is at best a "B" misdemeanor of Attempted Petit Larceny.

With twenty years experience as New York criminal defense lawyers and former Manhattan prosecutors, Mr. Saland, and his partner Elizabeth Crotty, have represented and prosecuted hundreds of individuals for all types of New York theft crimes ranging from shoplifting allegations to accusations of Grand Larceny well into the multiple millions of dollars.

For further information on New York theft crimes including shoplifting as well as the various degrees of Grand Larceny in New York, please follow the respective links to extensive information regarding case law, statutes and newsworthy cases.

Crotty Saland LLP is a New York criminal defense firm representing clients throughout the New York City region.

One of the more common violent crimes charged in New York is Criminal Possession of a Weapon pursuant to New York Penal Law sections 265.01, 265.02 and 265.03. While the lower level weapon crimes often relate to the possession of knives or similar instruments (gravity knives and switchblades), the more serious weapon crimes usually relate to the possession of a "firearm." Obviously, because they do not reside here, many out-of-state residents who travel to New York are unfamiliar with the strict gun and weapon laws in New York City. Unbeknown to them, even bringing their duly licensed pistol, revolver or handgun from their home state into New York will result in an arrest for possession of that firearm. Sadly, gun owners who legally possess their weapons out of state are routinely arrested in New York City airports (Queens County) such as LaGuardia Airport or John F. Kennedy (JFK) Airport. What was an innocent mistake is now a serious felony punishable in most circumstance by a mandatory minimum of 3.5 years in state prison.

Just like other areas of law, New York weapon and gun laws have their own terms, definitions and legal decisions. In other words, while you might think your gun is not loaded because the ammunition is not in a magazine or cylinder of a gun, the gun is actually loaded in the eyes of New York law because the firearm is capable of being loaded. Another term that causes some confusion, but is critically important to understand, is what constitutes a "firearm" in New York.

Despite what you might think, the various degrees of Criminal Possession of a Weapon in New York do not specifically define revolvers as opposed to pistols, "handguns," or other weapons. Generally, most of these types of guns are defined as "firearms."

Pursuant to New York Penal Law section 265.00(3), the following weapons fall under the umbrella of "firearms" in New York:

(a) Revolvers and pistols; (b) a shotgun with on ore more barrels less than eighteen inches long; (c) a rifle with at least one barrel less than sixteen inches long; a modified shotgun or rifle with an overall length of less than twenty-six inches or (d) and assault weapon. While this entry will not go into greater detail as to the legal definitions of these particular weapons, New York Penal Law section 265.00 further defines some of these terms such as "shotgun" and "rifle." While most firearm crimes prosecuted in New York are related to revolvers and pistols, if you are charged with this type of offense it may be important to ascertain whether the weapon you are alleged to have possessed is actually of the type defined in this section of the New York Penal Law.

For further information on New York gun and weapon crimes including potential punishments, specific statutes and general descriptions, please follow the highlighted link to Crotty Saland LLP's Weapon Crimes section of the website. Additional information relating to legal issues including what constitutes a loaded gun in New York, search and seizure, court decisions and other information can be found on the Weapon Offense section of the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

The New York criminal defense attorneys at Crotty Saland LLP have successfully represented numerous individuals in gun and weapon crimes throughout the New York City region including individuals charged with possessing loaded firearms in New York and regional airports. Prior to starting the criminal defense firm, both members served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office.

Elizabeth Crotty, a New York criminal defense attorney and former Manhattan prosecutor at Crotty Saland LLP, was a key contributor in a New York Times article regarding the Manhattan District Attorney's Office's Early Case Assessment Bureau (ECAB). Often called the "Complaint Room," ECAB is staffed by prosecutors who assess police arrests in Manhattan and make the ultimate charging decisions. The author of the article addressed some of the issues associated with ECAB and the interactions with prosecutors, police and detectives when cases are being drafted. More specifically, the article addressed recent criminal charges against two police officers and the apparent communication problems when interviews and debriefings are done over the phone as opposed to in person. The article and Ms. Crotty further examined whether problems were based in "miscommunication" or whether, at times, the police give the wrong information or even lie.

Crotty Saland LLP is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal defense lawyers at Crotty Saland LLP represent clients throughout the New York City region.

The New York white collar criminal defense attorneys at Crotty Saland LLP are pleased to announce that after months of dedication and advocacy, a client accused of felony Grand Larceny embezzlement obtained a misdemeanor without jail or probation. Prosecutors had alleged that our client embezzled in excess of $25,000.00 by skimming and pocketing transactions from his employer either by overcharging transactions and pocketing the amount or by conducting transactions for cash. If convicted of Grand Larceny in the Third Degree , pursuant to New York Penal Law 155.30, our client faced up to seven years in state prison.

While each case is unique and requires its own legal and practical assessment, Crotty Saland LLP has had tremendous success and results representing clients accused of felony fraud, thefts and embezzlements. In fact, our New York white collar criminal defense lawyers have represented numerous clients accused of "White Collar Light" crimes alleging Grand Larceny, Falsifying Business Records, Forgery or related crimes ranging from less than $10,000.00 to well north of $50,000.00. Even more significant than these crimes, the criminal defense attorneys at Crotty Saland LLP have successfully avoided prosecution and kept clients from jail in more serious White Collar allegations of Tax Fraud and Grand Larceny in the multiple millions of dollars.

For further information on the varying degrees and types of Grand Larceny in New York as well as other New York White Collar Crimes, please follow the highlighted links on the specified crimes above. Additional information on these and other crimes as well as recent legal decisions and newsworthy cases can be found at Crotty Saland LLP's New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York White Collar criminal defense firm. Founded by two former Manhattan prosecutors, the New York white collar criminal defense attorneys at Crotty Saland LLP always seek to obtain the best results for our clients and represent the accused throughout the New York City region.

Make no mistake. If you do not show up to court in New York on the date you are required to do so, a Bench Warrant will be issued. Simply put, a judge will issue an order for your immediate arrest and return to court. While the following is not to be construed as advice for your particular set of facts and you should consult with a New York criminal defense attorney in the event a Bench Warrant has been issued in your case, this blog entry will address potential crimes that you may encounter and means by which to minimize the damage you may have caused by not going to court as you were required.

Unfortunately, the law sees no difference between the person who fails to return to court because they forgot the return date, were out of the state or just didn't feel like showing up. If your New York criminal defense lawyer is advised beforehand that you will not be present and he or she can corroborate the reason why (assuming it is legitimate), often times a Bench Warrant can be avoided. However, if you merely fail to show up as indicated above, it is highly likely a Bench Warrant will be issued for your arrest and return.

What a Bench Warrant Means to You

Depending on the nature of the offense, if you are stopped for a driving infraction and the police run your information and find a warrant, they could arrest you and take you into custody. If you are flying into the country, especially if you are not a citizen, the police can do the same. Certainly, some crimes are not ones where you will necessarily be extradited from one state to New York, but the issues surrounding a Bench Warrant will not go away until you rectify them. Compounding matters, if you live in the region where the Bench Warrant was issued, such as in New York City, the warrant squad could come looking for you.

Other concerns regarding Bench Warrants involve background checks. In the event a search is done on you and the record is public, your criminal history may reveal the underlying offense as well as the Bench Warrant. Certainly, an old Bench Warrant could have impacts on employment, certifications and licensing.

Additional Crimes Associated with Bench Warrants

In the event that you do not return to court with 30 days of the date you were required to do so, a Bench Warrant may be the least of your concerns. Depending on the nature of the offense, the prosecution has in its arsenal the ability to charge you with a misdemeanor or a felony in addition to the original crime. Bail Jumping , pursuant to New York Penal Law sections 215.55, 215.56 and 215.57, is punishable by up to one year in jail, four years in prison or seven years in prison respectively.

Why You Should Consult with a Criminal Defense Attorney

Regardless of whether or not you currently have a New York criminal defense lawyer or you retain new counsel, your attorney is of great importance in your case. First, he or she can reach out to the prosecution prior to you returning to court. Have you been charged with Bail Jumping as a new crime? Is the prosecutor going to ask for bail so you will be kept in jail? Can a plea (if that is what you want) be arranged so that the case can be resolved on the same day you return to court? Sometimes, as is the case with misdemeanors where the warrant is years old, a prosecutor may no longer be assigned. However, a criminal defense attorney can help expedite the process and try to resolve the case in court with the prosecutors who are present instead of the judge requiring you to return on a later date for the case to be re-assigned. Obviously, if you reside out of state, this may be important to you.

The above primer by no means is advice as to how you should handle your particular Bench Warrant, but a general primer to understand the issues surrounding New York Bench Warrants. For further information on the Arrest Process and Bench Warrants please review Crotty Saland LLP's website for New York Bench Warrants or review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com and search for "Bench Warrants" as well as "Bail Jumping." Additional information such as legal decisions, entries on various sections of the New York Penal Law and newsworthy cases can all be found at NewYorkCriminalLawyerBlog.Com.

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

As a New York criminal defense attorney / lawyer and a former Manhattan prosecutor, I have heard both defendants and clients often assert the same defense when they are either arrested or issued a New York Desk Appearance Ticket for shoplifting (New York Penal Law 155.25 or 165.40) in Manhattan, Brooklyn or anywhere else in New York City. This argument usually centers around the fact that when they were arrested or stopped they had yet to leave the store. In other words, individuals charged with shoplifting will argue that their arrest was not merely premature, but baseless.

Criminal cases can essentially be broken down to issues of fact and issues of law. An issue of fact might be whether or not you passed by a cash register, where the items were allegedly concealed or what you said to security or the police when you were stopped. An issue of law is whether or not a complaint drafted against you is facially sufficient or whether that statement you made to the police was taken in violation of your rights. Regardless of the issue, whether it is fact or law, arguments made with prosecutors often follow.

Addressing the issue of your location when you were arrested can be viewed as an issue of fact and law. Factually, your conduct is critical to the legal analysis. As noted above, did you pass the cash register? Were you in the vestibule area? Where was the property allegedly concealed and what was it (a pair of shorts you put in your bag or 15 pairs of socks you stuffed into your purse)? Having noted your alleged conduct, how, if at all, does this comply with the legal decisions regarding one's non criminal conduct and shoplifting in New York. This is where the legal analysis kicks in.

A central case that address the law in the realm of shoplifting is People v. Olivo, 52 N.Y.2d 309 (1981). What the Court of Appeals looked at was whether or not one's conduct was consistent or inconsistent with the rights of the particular store owner and beyond the scope of how a particular shopper would behave. Would a shopper walk past a register after putting multiple items in a brief case? Would a shopper, even one who had not left the building, place items in his or her waist band or under a shirt? Another question is where and how far was the property taken before one was stopped. As noted by a lower court, the movement and transfer of property can be slight and brief. See People v. Rembert, 149 Misc. 2d 16 (NY Cty Sup. Ct. 1990). Again, factual allegations that need to be "fleshed out" so that they may be applied to issues of law.

Although the above facts were completely hypothetical, how does your conduct fall within the law? Were your actions consistent or inconsistent with the rights of a store owner and how are you alleged to have concealed the property? Where were you when you were arrested and what did you say when stopped? These, are all base level questions. Even assuming your actions established probable cause for your arrest and the prosecution can prove your guilt beyond a reasonable doubt, what factors can you offer to mitigate your conduct and get the best possible disposition from the case?

Whatever your conduct is alleged to be, but even more so if the value of the alleged stolen property is multiple hundreds of dollars as opposed to less than one hundred dollars, sit down with a New York criminal defense attorney experienced in shoplifting cases and Desk Appearance Tickets. Formulate a plan of attack and set that plan into motion. While you may think that your conduct is insignificant and you were merely issued a Desk Appearance Ticket, the reality of the situation is that this belief couldn't be further from the truth.

For further information on New York shoplifting laws (NY PL 155.25 and NY PL 165.40) as well as New York Desk Appearance Tickets, please follow the highlighted link. Additional information on New York Theft Crimes and Grand Larceny in New York may be found on the respective links. To read about recent legal decisions, various statutes in the New York Penal Law and cases in the news, please go to Crotty Saland LLP's New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

Prior to starting the criminal practice, the New York criminal defense lawyers at Crotty Saland LLP served as Manhattan prosecutors. Crotty Saland LLP represents clients throughout the New York City region in all theft related crimes.

According to reports, Francisco Rodriguez, a/k/a "K-Rod," a New York Mets' pitcher and closer, was arrested at Citi Field (Mets Stadium) and charged with Assault in the Third Degree (New York Penal Law 120.00). Police arrested K-Rod after he allegedly struck his father-in-law who ultimately suffered a scrape on is face and swelling above his eye. Rodriguez was kept in police custody and held over night. He is scheduled to be arraigned sometime today. This is the second high profile case handled by the Queens District Attorney's Office in the past few days after the arrest of Steven Slater, the JetBlue flight attendant.

Assault in the Third Degree is an "A" misdemeanor punishable by up to one year in jail. Generally, one is guilty of this crime if one intentionally causes physical injury or substantial pain to another person. Often time in cases where the injury is minor, police will issue a New York Desk Appearance Ticket as opposed to putting someone through the system. However, in criminal cases involving family members ("domestic violence"), Desk Appearance Tickets are not issued.

What will be interesting is how the case will proceed against the the Mets' pitcher. Often times in cases involving family members, victims decide later that they do not wish to proceed. If Rodriguez's father-in-law is the only source of direct evidence, then the case may be difficult to prove against the Mets' closer. However, if there are independent witnesses, statements made by Rodriguez or there is video footage, a case may be able to be proven even without the cooperation of the alleged victim. Moreover, another noteworthy issue is whether the scrape and swelling rise to the level of "physical injury?" In other words, does the alleged injury satisfy the level of injury needed to prove this crime?

For detailed analysis, review and commentary on the crime of Assault in the Third Degree (NY PL 120.00), the elements of that crime as well other other levels of Assault, please review the New York Assault Crime section of Crotty Saland LLP's website (follow the highlighted link). Alternatively, you can go directly to the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com for information including legal decisions and newsworthy cases under either the Assault, Violent Crimes or In the News sections.

Representing clients in criminal investigations and arrests throughout the New York City area, the New York criminal defense attorneys at Crotty Saland LLP served as Manhattan prosecutors prior to starting the criminal defense firm.

I previously assessed, albeit briefly, the possible criminal charges that JetBlue flight attendant Steven Slater might face in Queens County for opening the emergency door and sliding onto the tarmac. These offenses included the misdemeanors of Reckless Endangerment in the Second Degree, Criminal Mischief in the Fourth Degree and Criminal Trespass in the Third Degree. Unfortunately for Mr. Slater, it appears as if the Queens District Attorney's Office has not merely charged him with misdemeanors after his arrest stemming from the JFK incident. Instead, they have thrown something more serious against the wall hoping that it will stick. Mr. Slater now faces Reckless Endangerment in the First Degree and Criminal Mischief in the Second Degree. Both of these crimes are "D" felonies punishable by up to seven years in prison.

Reckless Endangerment in the First Degree

Charged with Reckless Endangerment in the First Degree (New York 120.25), Mr. Slater's actions must be more wanton than Reckless Endangerment in the Second Degree (New York Penal Law 120.20). In fact, the standard for that crime is that Mr. Slater must have acted with "depraved indifference to human life" and recklessly created a "grave risk of death to another person."

The criminal court complaint against Mr. Slater alleges that the basis for this charge is that the emergency escape slide is released with so much pressure that it could have killed one of the ground crew. Despite the allegation in the criminal complaint, where was the ground crew at the time? Had the plane stopped completely? Were there people working in the immediate "hittable" area from the slide? Did Mr. Slater know there would be or were people below the plain? What made his reckless actions "depraved" with a disregard for human life?

If there were no workers in the area and the people on board did not run the risk of death, again, what is the is the basis of his "depraved indifference to human life" that created this "grave risk of death?" Sadly, that question cannot be answered because the criminal complaint does not set forth whether people, if any, were in close proximity to the death machine (aka the slide). Could it be that nobody was near it at all? If they were, why is this not contained in the complaint? Unfortunately for the prosecution, factual impossibility is a defense to Reckless Endangerment. See People v. Galatro, 84 N.Y.2d 160 (1994). If nobody was actually in danger other than in a theoretical nature, Reckless Endangerment cannot be proven beyond a reasonable doubt.

Criminal Mischief in the Second Degree

Criminal Mischief in the Second Degree (New York Penal Law 145.10) requires an intentional damaging of property where that damage exceeds $1,500. Prosecutors attempt to establish the intentional damaging on the part of Mr. Slater by setting forth in the criminal complaint his alleged admission that he intentionally opened the emergency exits and released the slide. This may be true, but was his intent to cause damage or was his intent to escape his anxiety on the plane? These are two separate issues. Intent to leave and use the emergency escape is NOT the same thing as intending to damage it.

There is little doubt that Mr. Slater's actions were "bad." There is little doubt that the Queens District Attorney's Office wants to send a message by charging the (former?) flight attendant with felonies. Arguably, the law needs to be changed to punish the actions of Mr. Slater More severely. While it makes good press, in this particular case, there is little doubt that that these felony charges should not stick.

For further information on the crime of New York Reckless Endangerment in the Second Degree, please follow the highlighted link. Additional information on New York Criminal Mischief in the Fourth Degree and New York Criminal Trespass can be found on the respective links as well. To read about other New York Penal Law statutes, legal decisions and recent cases, please review the New York Criminal Lawyer Blog at 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 represent the accused throughout the New York City region.

Jet Blue flight attendant (or possibly former flight attendant) Steven Slater was arrested yesterday after he allegedly insulted passengers on a Jet Blue flight from Pittsburgh. After allegedly having a heated conversation with a passenger, Slater popped open a cabin door, grabbed a beer, tossed his luggage down the inflatable shoot and slid down after them. Prior to his departure it is further alleged that he had some choice words for the JetBlue Passengers. The plane was in the process of unloading.

Although Mr. Slater's actions, if true, are certainly peculiar at a minimum and hazardous at worst, what is the crime here? Is the Queens County District Attorney's Office fishing for a serious offense to send a message to future would be felonious flight attendants?

According to news reports (for whatever that is worth), Mr. Salter is charged with Reckless Endangerment, Criminal Mischief and Trespassig. The question is, can all of the elements of these crimes be proven beyond a reasonable doubt by prosecutors?

Reckless Endangerment in the Second, pursuant to New York Penal Law 120.20, is a class "A" misdemeanor punishable by up to one year in jail. The Reckless Endangerment statute in New York generally states that if you behave or act in a reckless manner that creates a substantial risk of "serious physical injury," then you are guilty of this crime. "Serious physical injury" is more than mere physical injury and constitutes the type of injury that runs a substantial risk of death or disfigurement. In other words, prosecutors must be able to establish that not only was Mr. Slater acting recklessly, but his actions created a substantial (not just possible) risk of death or disfigurement to others.

I do not know all the facts, but barring him running into the paths of oncoming planes, weaving in an out of ground traffic, creating a substantial risk that a passenger would fall from the plane to his or her death (were they all buckled in at the time the door was open and if not, where were they in proximity to the door), Reckless Endangerment is a classic "overcharge" by the prosecution.

Having said that, Criminal Mischief in the Fourth Degree, New York Penal Law 145.00, may be more difficult to circumvent. Under two possible theories, Mr. Slater would be guilty of Criminal Mischief if he intentionally caused damage to another property (the airplane) or recklessly caused damage in excess of $250. Again, not knowing all the facts, it does not appear that Mr. Slater had the intention of damaging a JetBlue airplane. However, was he acting recklessly when he opened the "escape hatch" and caused "damage" to it? That damage would be the cost to fix or replace the hatch which likely costs more than $250. Having said that, was there actually damage? Unfortunately, if convicted of this offense, Mr. Slater also faces up to one year in prison.

Lastly, Mr. Slater also may face the charge of Trespass or Criminal Trespass in the Third Degree. The best way to sum up these offenses is whether or not Mr. Slater had permission to be on the premises (was he "lawfully" on the tarmac and other areas in the airport) or whether the areas were enclosed to keep out intruders. Are airline employees permitted on the tarmac? Are the areas where he allegedly trespassed enclosed or fenced to exclude intruders such as airline employees? If no, then he has not trespassed. If so, this charge may be viable. Trespass is a violation and not a crime while Criminal Trespass is a "B" misdemeanor.

The above analysis is a brief one and done with bits and pieces of information obtained from news articles. What the actual facts, allegations and charges are, are yet to be determined and could certainly alter this analysis. If true, however, Mr. Slater should crack open that beer as he is about to depart for a long trip through the New York criminal justice system. Joining him will likely be some personal injury attorney who will claim that some passenger was horrifically traumatized by the event and needs to be compensated.

For further information on the crime of New York Reckless Endangerment in the Second Degree, please follow the highlighted link. Additional information on New York Criminal Mischief in the Fourth Degree and New York Criminal Trespass can be found on the respective links as well. To read about other New York Penal Law statutes, legal decisions and recent cases, please review the New York Criminal Lawyer Blog at 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 represent the accused throughout the New York City region.

UPDATE - Mr. Slater Charged with Felony Criminal Mischief and Felony Reckless Endangerment, but will it stick?