New York Criminal Lawyer Blog

Whether you are in Manhattan, White Plains or Brooklyn, there is no statute titled “Extortion” in New York. Instead, Extortion is a “type” of Grand Larceny, but just a Grand Larceny none the less. In other words, an individual charged with this crime would be charged on an indictment which read Grand Larceny under the theory of Extortion.

Under Penal Law Section 155.05, larceny occurs when a person with intent to deprive another of property or appropriate the same to himself or to a third person, wrongfully takes, obtains, or withholds such property from an owner. Larceny can be conducted through numerous means including, trick, false promise, acquiring lost property, and yes, extortion.

Extortion is defined, in part, as when a person induces or compels another to deliver property to himself or a third person be means of instilling in him fear that, if the property is not so delivered, the actor or another will cause physical injury to some person in the future, cause damage to property, engage in conduct constituting another crime, accuse some person of a crime, expose a secret, or conduct other specified activities.

Although Extortion can be charged as a Grand Larceny solely on the value of the property received (an “E” felony punishable by up to 4 years in state prison through a “B” felony punishable by up to 25 years in state prison), there are two specific provisions in the New York State Penal Law that deal with this crime. Penal Law section 155.30, Grand Larceny in the Fourth Degree and Penal Law Section 155.40, Grand Larceny in the Second Degree, both address Grand Larceny by Extortion. The degrees of Grand Larceny in the statute are not exclusive of one another and can be charged in the same indictment under different theories.

There are certain requirements that an indictment alleging extortion must have in order to stand up against a motion to dismiss regardless of how strong the facts are. As a former prosecutor in the Manhattan District Attorney’s Office under Robert Morgenthau I personally supervised the multi-million dollar extortion attempt of NBA basketball star Carmelo Anthony and I am well versed in the applicable law and requirements associated with this crime – and the way to defeat an indictment if applicable. If you or a loved one is charged with Grand Larceny under the theory of Extortion, you owe to yourself to seek out experienced counsel who can vigorously defend your rights.

For further information regarding Extortion and the various sections of the Penal Law, please read our most recent article.

Recently, Judge Mandelbaum of the New York County (Manhattan) Criminal Court issued a decision regarding Criminal Possession of a Forged Instrument in the Third Degree that is a setback for all defendants charged with Criminal Possession of a Forged Instrument in the New York City area from the Bronx and Brooklyn to White Plains and Yonkers in Westchester County. Specifically, Judge Mandelbaum held on April 22, 2008, that a prosecutor does not need to allege that a defendant is aware that a New York State issued identification card in his or her possession is fake or that he or she intended to improperly use that card.

In People v. Barona, 2007NY089837, the defendant possessed a false or forged New York State Identification Card which he had in his hand. Denying the defendant’s motion to dismiss, Judge Mandelbaum theorized that "it is in-conceivable that the very person in whose name the card has ostensibly been issued would not know that the card is a forgery." Furthermore, if a card is "legitimate," Judge Mandelbaum asserted, common sense dictates that the person carrying it would have to know whether he applied and ultimately received the state issued card in his own name. Clearly then, “the ostensible bearer must therefore know that such a card is forged” and, therefore, it can reasonably be inferred that there was an intent to defraud or deceive because there is no other reason to possess a forged state issued card.'

While this case is a step backwards for defendants charged with Criminal Possession of a Forged Instrument in New York, it is important to note that the case is persuasive and not controlling on other courts and judges in the state. As a former prosecutor under Robert Moregenthau in the Manhattan District Attorney’s Office and one of the original members of the Identity Theft Unit, I am intimately familiar with this statute and others relating to Forgery, Identity Theft and Fraud. As judges continue to rule favorably for prosecutors who bring these types of charges, it is imperative to retain an experienced criminal defense attorney in this particular area to explain the issues, listen to your concerns, and formulate the best plan to attack the prosecutor’s case.

There is little dispute that if you use a fake identification to rent a car in Manhattan, a bogus credit card to make a purchase at a supermarket in the Bronx, or a phony check to make a payment on an account in White Plains (Westchester County), you run a real risk of being charged with Criminal Possession of a Forged Instrument, a felony. Well, what if that “forged instrument” is a MetroCard being used to swipe a turnstile in Brooklyn? New York State Penal Law Section 170.25, Criminal Possession of a Forged Instrument in the Second Degree, establishes that if a person possesses a forged instrument, with knowledge it is forged and with intent to defraud, deceive, or injure another, that person may be guilty of this crime if he or she possesses a forged instrument of a kind specified in New York State Penal Law Section 170.10, Forgery in the Second Degree.

Instead of diving head first into this entire section, Penal Law Section 170.10(4) sets forth that if a person makes, completes or alters a written instrument which purports to be or represent if a completed a “part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services,” they are guilty of Forgery in the Second Degree.

Reviewing all the applicable sections of Forgery and Criminal Possession of a Forged Instrument, the First Department (an appellate division that hears, among other things, cases that are appealed from the trial courts in Manhattan and the Bronx), recently addressed whether a bent or altered MetroCard may be as much of a forged instrument as a completely bogus credit card. Recognizing that “the magnetic strip incorporating the computer data on certain MetroCards, which contained no valid fare, were altered so that the cards would appear, and be read, as authentic for the admission of a rider by the turnstile computers,” the First Department in People v. Mattocks held that "it is clear . . . that a MetroCard, with its encoded 'computer data,' which is used for the purpose of 'conveying or recording information' and is capable of being used to the advantage . . . of some person, is a 'written instrument'" and therefore may be a forged instrument if manipulated in a particular fashion.

Not only is this case significant because it clearly sets forth that a MetroCard may be a forged instrument, but the First Department also sent a clear message in its April 8, 2008 decision. Law enforcement has a very large net to corral all types of offenses that one might not think would fall into the category of Criminal Possession of a Forged Instrument or Forgery. This enormous net is precisely why you should retain an attorney who has significant experience in this always changing area of law such as Jeremy Saland who, as a former prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office, has vast experience and training in crimes related to Forgery and Criminal Possession of a Forged Instrument.

Just a side note…and a quite interesting one as well…In 2007, 84,863 summonses were issued for nonpayment of subway and bus fares. This total includes the misuse of MetroCards.

Mount Kisco (Westchester County) police officer George Bubaris was acquitted of the charges of Manslaughter and Criminally Negligent Homicide in White Plains. The case has divided communities and received significant media attention due to the exposure of the issues that exist between immigrant communities throughout New York and local law enforcement.

The case began after Rene Perez, a homeless and undocumented immigrant from Guatemala, died in April 2007. Prosecutors claimed that Mr. Perez died as a result of an abdominal injury sustained by Officer Burbaris. The defense, on the other hand, argued that it was the Mr. Perez's life style that caused the injuries. Although there was no dispute as to the injury that ultimately caused the death of Mr. Perez, the prosecution and the defense argued not only as to who caused the injury, but when it occurred. Clearly, the defense was able to persuade the jury that there was reasonable doubt as to this critical point and Officer Burbaris' actions.

Although Bubaris allegedly made some damaging statements, including that he was going "hunting" presumably for immigrants, Perez had a long record of arrests, getting drunk and making 911 calls.

Unfortunately, in a case such as this, there are no winners, but only losers. While Officer Burbaris was acquitted of the charge, there will remain a significant number of people, especially those in the immigrant community, who will still demand answers and hold him accountable. As a former prosecutor and a practicing criminal defense attorney, I am all too familiar with the reality of the criminal process and the ramifications of a mere accusation of any crime. It is not just your rights you need to protect, but your liberty, integrity, and livelihood.

You are charged in Manhattan with Identity Theft (Penal Law Sections 190.78, 190.79, and 190.80) or Unlawful Possession of Personal Identification Information (Penal Law 190.81, 190.82 and 190.83), but you reside in Brooklyn and the alleged criminal transactions occurred in the Bronx, White Plains and Yonkers. Well, how is the Manhattan (New York County) District Attorney’s Office prosecuting you for these crimes if you never stepped one foot in that jurisdiction? The answer, albeit not a pleasing one, is simple.

Criminal Procedure Law Section 20.40(4)(l) permits any county to prosecute an offense of this nature if any of the offense took place in that county regardless of whether the defendant was actually present there. Moreover, if the victim who suffered financial loss resided in that county at the time of the criminal transaction, then the county where the victim resided would also be able to prosecute a defendant even if the defendant was never present. Lastly, even if the victim suffered no loss, whatever county the victim resided in at the time his or her personal identifying information was used would also be a viable location to bring the criminal action against the defendant. For example, if a victim’s credit card is used online to purchase clothes from Bloomingdales in NY, the victim resided in the Bronx at the time his or her information was used, and the defendant used the information on his computer in Queens, each county would be able to prosecute the defendant for the crime of Identity Theft.

As a former prosecutor under Robert Morgenthau with the Manhattan District Attorney’s Office, Jeremy Saland was one of the original prosecutors assigned to the Identity Theft Unit upon its creation and worked under a state grant to prosecute this crime. Due to the complexity of these crimes it is important to obtain counsel with significant real hands on experience in these areas of law and not merely someone who has limited involvement. It takes an aggressive and skilled attorney to find any possible issues relating to evidence and procedure that may assist you in getting the best possible disposition in this type of matter.

As a former prosecutor in the Manhattan (New York County) District Attorney's Office and one of the first Assistant District Attorneys in the Identity Theft Unit, I have seen a significant amount of outright stupid moves that have resulted in arrests for crimes ranging from Assault and Gun Possession to Criminal Possession of Stolen Credit Cards and Criminal Possession of Forged Instruments. Recently, in Brooklyn Supreme Court, a defendant was unable to convince the Court that that his arrest for Robbery was not supported by probable cause and that the knife recovered from his person violated his constitutional rights. His arrest and legal problems came to be because the defendant was just not thinking.

Back in January 2006, the defendant was on a subway platform urinating - the "boneheaded" move. Seeing that the defendant was violating both the Penal Law and New York City's Administrative Code, an officer approached him and asked for identification. The defendant produced identification and later stated he was on parole. The officer then asked if the defendant had anything on him that could hurt him and the defendant produced a carpet knife. Alarmed, the officer then cuffed the defendant.

After cuffing the defendant, the officer noticed a bulge in the defendant's pocket where he recovered a larger knife. Ultimately, the defendant was arrested and brought to Central Booking where the officer saw that he matched a sketch for a subject of a robbery. After investigating the matter further, the defendant was charged with the Penal Law Crime of Robbery.

In upholding the arrest and search of the defendant, the Court stated that probable cause existed because at the time the officer observed the defendant urinating he could have either arrested him or issued a summons. Since a "safety frisk" was authorized under these circumstances, it was acceptable that the officer asked if the defendant possessed anything that could hurt him. The Court further reasoned that once the defendant pulled out the carpet knife the officer could have cuffed him. Once doing so, the officer observed the bulge and what appeared to be a possible handle of a knife. Therefore, the officer would have been "derelict" in his duties if he ignored the bulge.

Unfortunately, the entire chain of events were put into play due to the defendant's one initial bad decision. In the event you make a mistake that may have severe consequences, you should retain experienced counsel to attempt to fix that mistake by aggressively fighting for your rights, your freedom, and your future.

Alain Robert and Renaldo Clarke are not the first and probably not the last people to scale a large building or historical landmark in New York. Nor are they the first people to need the assistance of an experienced criminal defense attorney to get them out of a serious predicament in Manhattan. In fact, not too long ago, Jebb Corliss attempted to leap from Empire State Building. From a personal standpoint, climbing buildings and BASE jumping is certainly an intimidating (dare I say crazy?) proposition, but from a legal standpoint, what, if any, crimes are committed in New York State when an individual is arrested for these acts? If recent history is any indication, the most serious offense that prosecutors try to pursue is the charge of Reckless Endangerment.

Penal Law § 120.25, Reckless Endangerment in the First Degree, is a felony punishable by up to seven years in state prison. A person is guilty of Reckless Endangerment in the First Degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. A person is guilty of Reckless Endangerment in the Second Degree, Penal Law § 120.20, when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. So, the question is simple (or maybe not!)….Did these stunts fall into the terms of either statute?

On March 4, 2008, the First Department answered this question when the Court reviewed the dismissal of an indictment filed against Corliss where he was charged with Reckless Endangerment in the First Degree for attempting to parachute from the Empire State Building. In ultimately determining that the indictment should not be dismissed in its entirety and the prosecution could proceed with the charge of Reckless Endangerment in the Second Degree, the First Department followed the Court of Appeals Decision in People v. Feingold. The Court found that for the First Degree charge to stand there must be "an utter disregard for the value of human life - a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not."

In finding that Corliss’ actions were within the realm Reckless Endangerment in the Second Degree the Court further stated:

"Climbing over the security fence, to a position where, according to one security guard, he appeared ready to jump off the building, in itself put many people at risk. Not only were 30-to-40 mile per hour winds gusting out of the north, making mishaps more likely, but even an accidental misstep, or a hand or object reaching through the security fence and accidentally pushing, rather than grabbing him, could have sent defendant into the air, where a faulty parachute would result in a likelihood of death not only for defendant but for people on the ground. Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents. There were also risks that an object carried by or attached to defendant, or an object deployed through the fence by security guards to prevent defendant from jumping, could accidentally fall, and any such object would become a lethal projectile along the way. Additionally, the actions defendant took created a risk of serious physical injury to building security staff whose job it was to try to stop him from making the jump, and even bystanders in the vicinity were endangered by the ensuing struggle."

Although Corliss’ actions were somewhat different than that of Robert or Clarke, it appears that future climbers and jumpers may make it safely off their respective buildings, but the justice system may pose an entirely new danger. Whether they parachute down to the street or are escorted by the police, a potential misdemeanor charge or greater may be their prize.

Christoper Carter was acquitted in New York County (Manhattan) Criminal Court after a jury found the prosecution did not prove he committed the crime of Assault in the Third Degree, a misdemeanor punishable by up to one year in jail, beyond a reasonable doubt.

While many people know the basics about this story, the case is centered around an altercation at a sports club. Stuart Sugarman and Christopher Carter were both members of Equinox, a gym in New York. During a spin class Sugarman became loud and apparently rude. To quiet him down, Carter allegedly lifted Sugarman's bike and /Sugarman hit the wall, fell to the floor, and damaged discs in his back. As a result of this incident, the police and Manhattan District Attorney's Office charged Carter with Assault in the Third Degree.

This case is interesting on its own merits, but it also gives us the opportunity to examine the crime of Assault in the Third Degree. The first issue one must analyze in a Third Degree Assault case is whether Carter (or any defendant) caused physical injury to a complainant. The second is whether he intended to cause physical injury or, in the alternative, he was reckless in causing physical injury to the complainant.

Dealing with the first issue, physical injury is described as impairment of one's physical condition or substantial pain. However, merely stating someone suffered pain without more may not be enough to withstand an experienced criminal defense attorney's motion to dismiss or an argument to a jury that physical injury was not proven beyond a reasonable doubt. In fact, the Court of Appeals, the highest court in New York State, has found that physical injury was not established where a complainant was punched repeatedly but could not articulate and specify the pain. The case cited here is not alone on an island. There are a countless cases following this decision and cases which can be put to use in defending your matter.

Even assuming the complainant suffered physical injury, the second issues is whether the defendant's actions were intentional or reckless. The key element for intentional behavior is that the defendant must have acted in a manner where his "conscious objective" was to cause a particular result. As stated above, if the defendant was accused of acting reckless, then it must be proven beyond a reasonable doubt at trial that he was aware of and consciously disregarded a substantial and unjustifiable risk that a particular result would occur or that such circumstances existed. It is important to note that the risk must be of such nature that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

As will be discussed in another entry and on a later date, there are may cases interpreting the meaning of both intentional and reckless. For the purpose of generally understanding Assault in the Third Degree, however, it should be sufficient for now to recognize that there must be a specific and articulable injury along with an intentional action or reckless behavior that caused that injury.

*** For further information regarding an arrest or issuance of a Desk Appearance Ticket for Criminal Possession of a Controlled Substance in the 7th Degree (NY Penal Law 220.03), and your criminal defense, please review the articles on drug quantity, constructive possession of drugs and the necessity of a laboratory analysis by law enforcement***

New York State has multiple degrees of drug possession offenses when an individual is accused of possessing a controlled substance. Mere possession in New York, whether it is in Manhattan, White Plains, Brooklyn or the Bronx, is at least a misdemeanor regardless of your purpose of having the drugs. In other words, having any amount of crack, heroin, cocaine, or other drugs, is punishable a by up to one year in jail even if you possessed it for personal use. Depending on the weight of the drugs and your intent, the crime can be prosecuted as Criminal Possession of a Controlled Substance in the First Degree punishable by a significant term of imprisonment. For the purposes of this entry, we will discuss only Penal Law Section 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree.

From my reading of the articles dealing with Ms. O'Neal's arrest, it appears that she is a drug user and not a seller of cocaine or crack-cocaine. Therefore, Ms. O'Neal was charged with Criminal Possession of a Controlled Substance in the Seventh Degree. There is no specific amount of drugs that dictates whether the drugs possessed are for personal use or for sale, but one of the factors that the police and prosecutors examine when determining what to charge is a combination of the amount as well as the packaging and the amount and denomination of money an individual possesses.

As explained, possession alone may be punished by up to one year in jail, but that term of incarceration is not likely unless you have a significant criminal history. What is more likely is either a term of probation, a lesser term of jail or community service. However, if you are someone who requires certain certifications in your job, such as a teacher, physician, or attorney, just a conviction for this offense with nothing more can be devastating to your career and livelihood.

Crotty Saland, LLP is criminal defense firm representing clients throughout New York City. Crotty Saland, LLP was founded by two former Manhattan prosecutors.

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