New York Criminal Lawyer Blog

Tampering with a Witness (New York Penal Law Sections 215.10, 215.11, 215.12 and 215.13) and Intimidating a Victim or a Witness (New York Penal Law Sections 215.15, 215.16 and 215.17) are distinct crimes that often confuse defendants, defense attorneys and prosecutors throughout the New York area from Brooklyn, Queens and the Bronx to the cities of White Plains, Yonkers and New Rochelle in Westchester County. An experienced defense attorney can help explain the differences in the two statutes, listen to your concerns and questions, and formulate a plan to develop the best possible defense for you.

A person is guilty of Tampering with a Witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce that person from absenting himself from or avoid testifying at the proceeding (such as a trial). In the alternative, that person knowingly makes a false statement or deceives with the intent to affect the other individual’s testimony. The different levels of severity of this crime (an “A” misdemeanor punishable by up to one year in jail to a “B” felony punishable by up to 25 years state prison) are distinguished in part by whether there are threats of physical injury or actual physical or serious physical injury.

Intimidating a Victim or a Witness, on the other hand, occurs when a person, knowing that another individual possesses information relating to a criminal transaction and, other than in the course of the criminal transaction, wrongfully compels or attempts to compel the other individual from communicating that information to the police, a grand jury, prosecutor or court by instilling a fear of physical injury or actually damaging property of that person. The different levels of the severity of this crime (an “E” Felony punishable by up to four years in state prison to a “B” felony punishable by up to 25 years in state prison) are distinguished in part by whether there are threats of physical injury or actual physical or serious physical injury.

A review of these two similar, but distinct, statutes makes it clear that Tampering with a Witness relates to testifying or being a witness in a proceeding such as a grand jury presentation, hearing, or trial while Intimidating a Victim or a Witness deals with preventing an individual from sharing information with law enforcement.

It is important to understand the differences between the statutes in order to develop a concise and tailor made defense set for your needs. Jeremy Saland, a former prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office, is available to explain the process, the charges, and to answer your questions for these and any other criminal charges you or your family may face.

A Manhattan Judicial Hearing Officer recently ruled in People v. Moustapha Diagne, that prosecutors in New York County (Manhattan) failed to adhere to speedy trial requirements set forth under the New York State Criminal Procedure Law. Therefore, the case against the defendant was dismissed. Specifically, the prosecutor did not file a “certificate of readiness” (a document declaring a prosecutor ready for trial and stopping the speedy trial clock from ticking) in a matter that was adjourned for approximately four months after motion practice ended, but before a hearing or trial commenced. Although this decision is not controlling over judges in other counties in New York State such as Westchester, Brooklyn, Bronx and Queens, it is a well thought out argument that an experienced defense attorney could add to his arsenal of weapons to attack a prosecutor’s case and defend his client.

By way of background, prosecutors are required to be ready for trial and in 90 days from arrest, less excludable time. One example of excludable time is where a defense attorney makes motions (papers filed on a defendant’s behalf to challenge evidence and the sufficiency of the criminal complaint) and a prosecutor responds to the motions. However, when a case is adjourned after motions, the law does not say precisely how much time is included or excluded within this 90 day period prior to trial.

Although there are some established cases that allow a “reasonable” amount of time for a prosecutor to prepare for trial, the Judicial Hearing Officer in Moustapha Diagne ruled that the instant case was simple and did not require extensive preparation. The Judicial Hearing Officer reasoned that two weeks should be sufficient for such preparation. Furthermore, where there is a long adjournment, as in this case multiple months, a prosecutor should file a “certificate of readiness,” or advance the case on the court calendar to start the trial. Although a two week rule is far from set in stone, an aggressive, skilled and zealous attorney advocating for your rights should site this case, when applicable to, to seek to have your case dismissed.

Nassau County Executive Tom Suozzi plans on releasing the names of all people arrested for DWI (driving while intoxicated) over the Memorial Day weekend. Hopefully, executives, legislators and other politicians in Westchester, Rockland, Manhattan, Bronx, Brooklyn, Queens and Staten Island don't follow in his foot steps in circumventing the criminal justice system. Not only does he plan on releasing these folks' names and addresses, but he is providing the local media with their photographs and urging them to release this information.

We can all agree that DWI is an extremely dangerous and potentially a life altering/ending crime for the driver of a vehicle as well as passengers and others on the road. There is just no excuse for it. However, releasing the accused's name prior to a conviction is not only presuming guilt instead of innocence, but is nothing short of a smear and scarlet letter. Now, we can all agree to disagree, but maybe Mr. Suozzi should be more tactful, professional, and less grand standing in his pursuit of finding a deterrent for what is objectively a terrible crime. If Mr. Suozzi wants to deter people (and rightfully so) from this behavior and insists on making public names, photographs and addresses, then why not at least wait until there is a conviction and why not do it regularly as opposed to doing it for one holiday weekend? Anyone can be arrested for a crime anytime. An arrest is not evidence of guilt.

As a former prosecutor in the Manhattan District Attorney's Office and an experienced criminal defense attorney, Jeremy Saland knows that people are often accused and sometimes convicted of crimes they did not commit. History teaches us that not only are cases dismissed prior to trial, but people have been incarcerated for years only to be exonerated at a later date. Therefore, in order to protect not only your rights, but your integrity and livelihood, you need to contact a criminal defense attorney who will aggressively fight to get you the best possible outcome in your case and put you where you need, and want, to be.

The New York City Police Department (NYPD) finally arrested Mark McIntosh and charged him with three counts of Grand Larceny, three counts of Robbery, and one count of Resisting Arrest. McIntosh allegedly snatched purses from six women standing on subway platforms throughout New York City including Manhattan and Brooklyn. Not only was McIntosh brazen enough to grab the purses during rush hour, he often fled into the subway tunnels to escape.

According to the NYPD and the Manhattan District Attorney's Office, McIntosh often stayed at a homeless shelter in Manhattan's East Village. Not only was McIntosh identified in lineups, McIntosh apparently did something that any person accused a crime should not do...he made incriminating statements.

This case raises a few interesting issues and lessons (not including the obvious...secure your personal belongings while on the subway!). First, if you are arrested of a crime do not speak to the police. Immediately ask for an attorney. Second, there is often a fine line between Grand Larceny from the person and Robbery. In short, Robbery requires force and can be elevated significantly if, among other things, an injury occurs or a weapon is used. Grand Larceny, on the other hand, is the taking of property from another's person without any force or injury. To the accused, however, the big difference is not the actual definitions of the crime. While a conviction for Grand Larceny could be a sentence of up to four years in state prison a conviction for the lowest degree of Robbery is a seven year sentence in state prison. The highest degree of Robbery, Robbery in the First Degree, is punishable by up to twenty five years state prison.

If you or a loved one is charged with any of these types of crimes you should seek immediate assistance from an experienced criminal defense attorney.

6 Year old Taylor Webster died at Mount Sinai Hospital in New York and her foster mother, Joanne Alvarez, was charged with Criminally Negligent Homicide (Penal Law 125.10 – an “E” Felony with no mandatory minimum jail sentence) after Ms. Alvarez gave her a prescription fentanyl “pain patch.” Unfortunately, Taylor’s body could not handle the medications in the patch used for people aged 16 and older and she passed away.

As a former prosecutor in the Manhattan District Attorney’s Office and an experienced criminal defense attorney, I am all too familiar with this type of case where everyone suffers and tragedy reigns. From a legal perspective, the charge of Criminally Negligent Homicide, as opposed to “murder,” appears to be the appropriate charge. Unlike a crime that requires an act to be intentional, meaning a person’s conscious object was to engage in particular conduct, Ms. Alvarez, at his point, is facing charges requiring a different mental state.

Criminal negligence, unlike an intentional or reckless mental state, requires that a person conduct themselves in a manner with respect to particular statute and that person fails to perceive a substantial and unjustifiable risk that a particular result will occur or that particular circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Unfortunately, without all the facts made available to the public, we can only speculate as to whether her conduct was a gross deviation and she failed to perceive an unjustifiable risk. Did the medication have documentation stating that it should not be used on a child under 16 and if so what were/are the stated dangers? Did Ms. Alvarez have a prescription for the drug and does she have access to or use prescription medication for other children in her care? Did she consult with a physician or keep checking on Taylor as she slept? Has she been warned or cited in the past for similar behavior? Again, we can only speculate as to the full set of facts, but it appears clear that her actions were not intentional, i.e., her goal was not to kill a child. Irrespective of her mental state, Taylor unfortunately passed away.

You have seen people being arrested and defendants being arraigned before a judge. You have seen New York City criminal defense attorneys advocating for their clients while prosecutors try to throw them in jail. Of course, you have seen that all on television where the Manhattan District Attorney’s Office is glorified through “Law and Order.” While the show is intriguing, the one hour program should not be your source of legal training and education.

Putting “Law and Order” aside, a significant piece of almost all felony cases is the Grand Jury (the Grand Jury can be avoided through what is commonly called an “SCI” or Superior Court Information. This will be addressed on a later date). The Grand Jury consists of no less than 13 and no more than 23 persons. The function of the Grand Jury is to hear evidence and to take action with respect to the evidence presented. After hearing the evidence, the Grand Jury can indict a person for an offense, direct a prosecutor to file a prosecutor’s information with the local criminal court, direct the prosecutor to file a request for removal to the family court, dismiss the charges before it, or submit a Grand Jury report.

The Grand Jury experience can be an intimidating for any witness. It is important to consult with an experienced criminal defense attorney who can advise you of your rights and your options. Every defendant has a right to testify if he or she wishes, but be advised…there is no judge in the Grand Jury and your attorney cannot speak before that body. Additionally, you may subject yourself to additional charges including, but not limited to, perjury. As a former prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office who presented in the neighborhood of 100 or more cases to the Grand Jury and as an attorney who has represented clients before the Grand Jury, Jeremy Saland can assist you in determining whether you should exercise your right to testify and help you avoid any pitfalls you might encounter.

If you have the misfortune of being accused in New York of any degree of the crime of Criminal Diversion of Prescription Medications and Prescriptions, it is imperative that you retain an attorney experienced in handling fraud related to prescription medications. As a skilled defense attorney and former prosecutor with the Manhattan District Attorney’s Office under Robert Morgenthau, I am able to aggressively challenge a prosecutor’s evidence to get the best disposition possible.

Whether you are charged with Criminal Diversion of Prescription Medications and Prescriptions in the First Degree, punishable by up to 15 years in prison, or the lowest offense of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, punishable by up to one year in city or county jail, a skilled attorney will advise you of your potential defenses in order to try to beat the case or get you the best deal while maintaining your livelihood and integrity.

While the dollar amount of the benefit exchanged during the criminal diversion directly impacts the level of the crime, i.e., the more money involved in the transaction the more serious the offense, the cases hinge on whether there was a “criminal diversion act.”

In order to prove such an offense, the prosecution must prove that you transferred, delivered or received for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to believe that the recipient, seller, or transferor has no medical need for it or is not authorized by law to transfer or sell it. Another way prosecutors establish a “criminal diversion act” is to establish merely that you transferred or received a prescription in exchange for something of pecuniary value.

Although this sweeping definition may intimidate an inexperienced attorney, there are many ‘built in” defenses to these charges right in New York State Penal Law. Specifically, the provisions of this statute do not apply to licensed physicians or other professionals. Moreover, a pharmacist acting in “good faith” is not subject to this offense or a person acting in “good faith” seeking treatment or assisting an individual seeking treatment.

These provisions in the statute are an experienced defense attorney’s sword to protect you from an overzealous prosecutor. “Good faith” is not black or white, but a skilled defense attorney may be able to stop the snowballing of allegations or an indictment by confronting the prosecutor with prior cases defining “good faith” and by respectfully explaining how you in fact were acting in “good faith.”