New York Criminal Lawyer Blog

As one of the original founding member of the Manhattan District Attorney's Office Identity Theft Unit after the unit's creation and as a criminal defense attorney, I have had the opportunity to prosecute, investigate and defend individuals accused of a laundry list of crimes in the fraud arena. These NY crimes have included, but are not limited to, Forgery in relation to counterfeit currency, Identity Theft in relation professional GRE, GMAT and TOEFL test-takers and Money Laundering in relation to narcotics, prostitution, and escort services. One of the crimes that is becoming more prevalent is Health Care Fraud. According to New York Penal Law Article 177, there are five degrees of Health Care Fraud as follows:

Health Care Fraud in the Fifth Degree - NY Penal Law 177.05 - establishes that a person is guilty of this crime when, with the intent to defraud a health plan (generally a publicly or privately funded heath insurance or managed care plan or contract), he knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan or health care item or service and, as a result of such information or omission, he or another person receives payment in an amount that he or such other person is not entitled to under the circumstances. This crime is an A misdemeanor punishable by up to one year in jail.

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

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

You have a trial in Manhattan Supreme Court or Brooklyn Criminal Court and you fail to return on the scheduled date. In the alternative, you pleaded guilty in Bronx Criminal Court after bargaining with the prosecutor and the judge scheduled a date for sentencing, but you didn't return. The question you now have is can the judge proceed with the trial against me or can he sentence me or increase my sentence without me being there?

Judges, prosecutors and criminal defense attorneys often throw around a term that is applicable to this question. That is, did you receive your Parker Warnings? The Court of Appeals, in People v. Parker and the line of cases that followed, has held that a defendant must be present at the time of trial and sentence. This right can be waived, but the defendant must be informed at the time he pleaded guilty or the case was adjourned for trial that the case would proceed without his presence. Moreover, in the event of a sentencing, the defendant must also be advised that he may receive a harsher sentence if he does not return and he will not be permitted to withdraw his plea.

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

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

As a criminal defense attorney and former prosecutor who was an original member of the Identity Theft Unit, I have seen people charged with Resisting Arrest, Penal Law 205.30, along with underlying crimes ranging from Assault, DWI and Grand Larceny to Robbery, Trespassing, and Marijuana Possession. As the cases proceeded and went to trial, sometimes those underlying charges would not stick and the only remaining offense was the Resisting Arrest. An interesting issue that faced many defense attorneys and prosecutors was whether a person can be convicted of Resisting Arrest in New York and not the underlying charge. Simply put, the answer is yes.

Before dissecting this issue, the first thing to do is to define the crime of Resisting Arrest. Pursuant to the Penal Law, a person is guilty of Resisting Arrest when "he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person."

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

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

A person steals $5000 from a victim in Manhattan, $2000 from a victim in Brooklyn and $45,000 from a victim in White Plains. Jurisdictional issues aside, can each of these crimes be aggregated so that prosecution can charge this person with one count of Grand Larceny in the Second Degree (theft of $50,000 or over) or must there be three separate and lesser counts of Grand Larceny?

The general rule applied in these circumstances is that if there is a scheme whereby a person steals from the same victim or location, then there can be an aggregation. However, the above scenario may be different because the victims and locations are different.

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

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

It does not matter if you are being prosecuted in Manhattan, Bronx, Brooklyn, Queens, White Plains, Mt. Vernon or Yonkers - the law is clear on Forgery and Criminal Possession of a Forged Instrument. Either it is or it is not.

Sounds simple enough, but unfortunately, it may take an experienced criminal defense attorney to ascertain whether the crime prosectors are charging you with is supported by the law. Turning our attention to Forgery and Criminal Possession of a Forged Instrument as it specifically relates to genuinely authorized writings or documents issued by an agency or other person, it is important to note that what seems like a crime often is not.

At bottom, if a person possesses or creates (“creates” in this context means completing by supplying the information and not actually making a new item) this type of instrument using a fictitious name or alias, there is no crime of Forgery or Criminal Possession of a Forged Instrument. The easiest way to understand this rule is if a person, let us say Samuel Clemens, possesses a New York State Driver’s License. In this hypothetical, Mr. Clemens uses his “pen name” (alias or fictitious name) as the listed name on the legitimately issued license. In other words, Mr. Clemens’ license reads “Mark Twain.”

Dealing with the first element, it is clear that this type of instrument is one that is authorized and issued by an agency, i.e., the New York State Government and DMV. Looking at the second issue as discussed above, since the name on the license does not belong to someone else, but is an alias (Mark Twain was the pen name of Samuel Clemens), there is no Forgery or Criminal Possession of a Forged Instrument because supplying an alias is permissible.

Obviously, each case must be reviewed to see if this rule applies, but it really should be just that simple. Unfortunately, prosecutors sometimes misunderstand this rule, dig their heels in, and possibly proceed with their cases.

New York Penal Law Section 110.00 establishes that a defendant is guilty of an attempt to commit a crime when, "with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Well, if you are accused of attempting to commit a robbery in Brooklyn, an assault in the Bronx, or a burglary in Manhattan, this definition offers little assurance and even less guidance. That is why you need an experienced criminal defense attorney and former prosecutor to fight for your rights and hold the prosecution to their burden of proof.

While mere preparation, with nothing else, is not enough to establish an attempt to commit a crime, if an individual comes "dangerously close," courts usually find that that the attempt has gone far enough. To help fully understand when there is an attempt to commit a crime that is "dangerously close" we will deal with attempt in the context of the crime of Attempted Murder.

It is safe to say that pointing a loaded gun at another is not sufficient to satisfy the elements of attempt. Other facts must be provided such as having the finger on the trigger or pulling it. In fact, the First Department in New York has held that there was no attempt to commit the crime of Murder when a defendant pointed a loaded gun at an officer without any evidence that the defendant at least had his finger on the trigger or came very near the accomplishment of the crime. The First Department did find sufficient that there was an attempt to complete a crime, however, when ballistics records showed that the trigger had been pulled, a bullet had been fired, the gun was pointed at the police officer and there were thirteen rounds in the magazine, but none in the chamber.

As recent as last month, the 4th Department held that there was an attempt to commit the crime of Murder when the defendant was found near the home of his intended victims. The defendant was standing near a loaded gun with the trigger lock removed. Additionally, the defendant had a list in his pocket of how he planned on killing his victims. This, the majority argued, was beyond mere preparation and was "dangerously close."

Obviously, there is no clear cut rule as to how far one must go to attempt a crime. To make sure that the prosecution has the evidence to prove beyond a reasonable doubt that your activities are "dangerously close," you need an experienced criminal defense attorney to stand up to the prosecution and fight zealously for your rights.

Recently, I posted a decision issued by a Manhattan Criminal Court Judge from April 2008 finding that mere possession of a fake ID (fake identification card) was sufficient to establish intent and knowledge to sustain the charge of Criminal Possession of a Forged Instrument under New York Penal Law Section 170.20. Unlike that decision, a recent case out of Kings County (Brooklyn) is much more favorable for defendants charged with Criminal Possession of Forged Instrument in a different context and a case that criminal defense attorneys should be aware of.

In People v. Erwin Kouris, Brooklyn Criminal Court Judge Pickett found that a complaint against the defendant charging Criminal Possession of a Forged Instrument should be dismissed for facial insufficiency. In that matter, the defendant was charged with numerous Vehicle and Traffic Law (VTL) violations as well as Criminal Possession of a Forged Instrument. Judge Pickett noted that in order to sustain the Criminal Possession of a Forged Instrument charge, the accusatory instrument must allege knowledge of forgery and intent to defraud on the part of the defendant. In other words, a defendant’s mere possession may not be sufficient depending on the circumstances. Therefore, a dismissal may be warranted.

In the Kouris case, the defendant was driving a vehicle that had a fake inspection card, registration card and insurance card. Although the defendant possessed these documents in that he was the driver of the vehicle, there was nothing in the accusatory instrument indicating he had knowledge that the documents were fraudulent or that he intended to defraud. The Court concluded that merely driving the vehicle, without any more evidence, is not sufficient to establish knowledge and intent. Although it was not specified, a means to establish these elements might have been an inculpatory statement by the defendant or evidence that the car was his car as opposed to a car that he was merely borrowing. In this regard, the Court stated that “it would be patently unfair to expect an operator who may have just borrowed a vehicle for a routine errand to know that the license plates, the insurance card, inspection and registration receipts are forged.” Furthermore, unlike a three dollar bill that clearly does not exist, “not all forgeries are ‘readily apparent to the average citizen.’"

Criminal defense attorneys and their clients can take a few lessons from this case. First of all, in some cases mere possession of a forged instrument may be enough to establish knowledge and intent. Such examples might be a forged driver’s license or identification card. On the other hand, some forgeries are not “readily apparent” to the average citizen. This may include money that looks real (not a three dollar bill!) or, as in the Kouris case, a fake insurance registration card on a car that is not the defendants. Additionally, it appears that the defendant in Kouris did not complicate matters by making statements that would hurt him. Whatever the circumstance you might find yourself in, you should always exercise your rights to speak to a criminal defense attorney who can help attempt to prevent matters from getting out of hand and escalating.

In New York, Forgery (Penal Law 170.05, 170.10 and 170.15) is a crime that seems obvious and straightforward, but is often far from it. As the most senior member of the first prosecutors assigned to the Manhattan District Attorney's Office Identity Theft Unit and currently a criminal defense attorney, I “lived,” “ate” and “breathed” Forgery, Identity Theft, Money Laundering and other fraud investigations.

The mistake that a criminal defense attorney must look out for is if a prosecutor, from down in the Bronx up to White Plains in Westchester County, is charging Forgery where the document that is allegedly forged is not a genuinely issued document. In other words, the instrument is bogus and fabricated. For example, if an individual creates a New York, Connecticut and New Jersey combination state identification card in their own name, then no Forgery can exist because, in part, such an identification does not exist or establish any rights for the holder. Although this is an outrageous example, the underlying issue is that the forged document or writing cannot be a wholly fabricated or fictitious and in the person’s name.

Generally, whenever the instrument is wholly fake and fabricated by a defendant, forgery cannot be charged. If a person drafts a will or deed that is fake and signs a fake name there is no Forgery. If a counterfeit will or deed is signed with the defendant’s alias there is not Forgery. However, a Forgery can be charged where a defendant uses another’s real name on that bogus will or deed because a real person’s signature is being forged.

This general analysis, along with court decisions and case law, is one that any criminal defense attorney should be armed with and ready to use for your benefit. In the event you are charged with the crime of Forgery, this legal challenge may be an avenue for your vindication.

Even if you retain a criminal defense attorney who helps you avoid jail or a significant fine on a plea to Driving While Intoxicated (DWI) in New York City, there is always the potential that the vehicle you were driving at the time you were arrested may be forfeited. In fact, this past March the Appellate Division First Department (an appellate court with jurisdiction over the Bronx and Manhattan) upheld a forfeiture of a car where the vehicle driven during the DWI offense was a BMW valued in excess of $20,000.

In the above mentioned case, the owner of the car argued that New York City should not be able to seize and keep the vehicle because the punishment was excessive. The owner reasoned that if the maximum fine is $1000 for the DWI offense, the forfeiture of a vehicle valued over $20,000 is clearly excessive. Unfortunately for the owner, the First Department was not swayed. Further compounding things, the First Department also rejected the owner's argument that his equal protection rights were violated because the New York City Police Department only sought the seizure and forfeiture of expensive cars. This allegation, according to the First Department, was merely speculative.

On a positive note, a conviction for DWI does not mean you will automatically loose your vehicle. Although the owner of the vehicle has the burden of proof, where the driver of the car who was convicted of the DWI was not the owner there is a potential defense to the forfeiture commonly known as the "innocent owner" defense. Additionally, notice of the forfeiture action must be given and individuals including, but not limited to, the owner who may be able to request a hearing on the matter.

Driving While Intoxicated (DWI) is an offense that all prosecutors and judges in New York, from Manhattan, Brooklyn and the Bronx to White Plains, Yonkers and Mt. Vernon, take extremely seriously. In fact, as of December 2006, the New York State Legislature put a new law on the books, Aggravated, DWI 1192.2(a), which reflects prosecutors’ and judges’ views.

Aggravated DWI sets forth, in pertinent part, that no person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath or urine. Although the crime for a first time offender is a misdemeanor punishable by up to one year in jail, a felony a felony prosecution punishable by up to 4 years state prison can be brought if in the past 10 years the person has a prior DWI. Assuming this offense is the driver’s first, there is a fine of $1000 to $2500 as well as limitations on what a person can plead to that is significantly more strict than a DWI where that person’s alcohol level is lower.

In the event there is a sentence of probation, the law requires that an ignition interlock be placed on the vehicle until the period of probation is terminated. This mechanism is placed in the vehicle and requires the driver to blow into it before the ignition will start.

Additional requirements and aspects of sentencing include a screening or an assessment, enrollment in an alcohol program and a one year revocation of a person’s driving privileges. While this is not a complete analysis and explanation of the crime and its potential sentences, it should be very clear to anyone who might get behind the wheel while intoxicated - prosecutors and judges are ready, willing and able to hand out sever punishments.

If you find yourself or a loved one charged with any DWI related crime, you should retain counsel who has real experience in this area of law. Not only is your liberty potentially at stake, but your livelihood and integrity. As a former prosecutor in the Manhattan District Attorney’s Office for over 7 years, I have the experience necessary from both sides of the law to aggressively advocate for your rights and challenge the prosecution. Don’t let a DWI ruin your career or life.