New York Criminal Lawyer Blog

You are arrested for Prostitution in New York because you were allegedly involved in an escort service or for Forgery in Brooklyn because you were allegedly caught making counterfeit money. Regardless of the underlying crime, if you are arrested anywhere in New York - Manhattan, Brooklyn, Queens, Westchester, Rockland - the police can easily charge you with False Personation if you take a poor course of action. Once you are informed by law enforcement of the consequences of giving false personal information, such as a name or date of birth, and you knowingly misrepresent that information with the intent to prevent the officer from ascertaining the true information, don’t be surprised if the police charge you with False Personation even if the underlying arrest goes nowhere.

Although False Personation is “only” a “B” misdemeanor, as a former prosecutor in the Manhattan District Attorney’s Office under Robert Morgenthau and one of the first prosecutors assigned to the Identity Theft Unit upon its creation, I can tell you defendants often dug themselves into deeper holes because they provided misleading or false information. In other words, if law enforcement does not proceed with the original criminal charges you should be released and the case is over. If, however, the police try to ascertain certain information, you are advised of the consequences if you misrepresent, and you in fact misrepresent to prevent the police from determining your true identity, then you may have bought yourself a night in jail. Why is this significant? Not only will you have to spend time incarcerated waiting to see a judge, but if you were the target of an investigation or the police are investigating new charges and figuring out how to proceed, you just gave them ample time to do so and a reason to lock you up.

In the event you find yourself in this situation contact an experienced criminal defense attorney immediately and DO NOT give the police phony personal information after they inform you of the consequences.

Joseph Petcka, the defendant charged with beating a cat to death in Manhattan, was neither convicted or acquitted by the jury that heard his case. Instead, the jury "hung" on the charges against him.

As a former prosecutor in the Manhattan District Attorney's Office and a criminal defense attorney, I can tell you that more often than not, prosecutors are unhappy with this outcome. For prosecutors, the side that has the burden of proof, it is a sign that at least one of the jurors believed the cases was not proven beyond a reasonable doubt. Whether it was one juror or eleven, the prosecution must now decided whether or not to bring all the witnesses back to testify again or cut the defendant a good deal to dispose of the matter. Depending on the type of case, the time, expense, or difficulty in re-trying it may be overwhelming.

For a defendant and his or her attorney, a hung jury is often looked at differently. Obviously, an acquittal is the final adjudication that is sought, but a hung jury re-affirms possible weaknesses in a prosecutor's case and gives the defense significant insight into what to expect in the event there is a second trial. In a way, it may be a bargaining chip for the defense to seek a better deal compared to what was previously offered or to try to convince the prosecution to drop their case all together.

While it is hard to speculate what Joseph Petcka's next step may be, each side needs to recognize the advantages and disadvantages of trying the case a second time. Unlike the unfortunate cat that was mangled, Mr. Petcka will "live" to fight another day.

In the event you need a skilled criminal defense and trial attorney, contact the Law Office of Jeremy Saland to assist you in your fight to preserve your rights, integrity and freedom.

In the realm of Prostitution, Promoting Prostitution, Solicitation and crimes relating to Escort Services,New York criminal defense attorneys often have to think out of the box to fight every battle for their client. Sometimes they are successful and sometimes they are not. One way to challenge a case is through a "Clayton" motion where a criminal defense attorney seeks the dismissal of a criminal case in the interest of justice. This motion can be made whether the case is for Criminal Possession of a Forged Instrument in Manhattan, Petit Larceny in Brooklyn, or Forgery in the Bronx. In fact, I have had tremendous success with similar applications on very serious matters where clients had faced felonies but had the charges reduced to the point where they had the opportunity to escape any criminal record at all.

In the past year, one criminal attorney, who should be applauded for his efforts, attempted to have his client's Prostitution charge dismissed in the interest of justice. Unfortunately for his client, he was unsuccessful. In People v. Saori Sato, 2007CN004865, New York County (Manhattan) Criminal Court Judge Richard Weinberg denied the criminal defense attorney's motion. The attorney argued that "prostitution is a victimless crime in which two equal contracting parties negotiate for the performance of an act proscribed in private by consenting adults."

Judge Weinberg responded to that argument by stating that "if [the argument] were adopted, [it] would compel the Court to dismiss every prostitution case on its docket and would require the Court to improperly substitute its judgment for that of the Legislature.Furthermore, to argue that Prostitution is a victimless crime overlooks the impact that this activity may have on the health of the participants as well as innocent third parties and on the viability of neighborhoods where this activity occurs. To characterize the alleged transaction as a simple contract negotiation between equals ignores the reality that the circumstances of the parties are often quite disparate." In other words...thanks for trying, but you are denied!

Any criminal defense attorney should be commended for zealously advocating for their client even if it is a difficult position. After all, you are innocent until proven guilty. That being said, an experienced criminal defense attorney knows what to argue, how to argue, and when to argue. In other words, there is a time and place to make the strongest challenges that have the greatest likelihood of success. That knowledge comes from experience. As a former prosecutor who served for seven years in the Manhattan District Attorney's Office, I have the experience and knowledge to give you the best opportunity to get you where you want and need to be.

As a former prosecutor in the Manhattan District Attorney's Office, one of the founding members of the Identity Theft Unit after its creation, and a New York criminal defense attorney, I have seen countless individuals charged with Criminal Possession of a Forged Instrument and related offenses for their involvement in some form of large scale fraud.

Whether the Grand Jury indicts these individuals for Forgery, Identity Theft, Criminal Possession of a Forged Instrument, Falsifying Business Records or Trademark Counterfeiting, the felony offenses they face can land them in state prison for a term of up to 7 or 15 years. In the event there is an associated theft in excess of one million dollars, that potential sentence can reach 25 years.

Recently, on September 18, 2008, Manhattan Assistant District Attorney Jordan Arnold presented a year long investigation to the Grand Jury after the arrest of Malikim Brown. According to the Manhattan District Attorney's Office press release, Mr. Brown used Craigs List to perpetrate a scheme where he sold counterfeit software such as Microsoft, Adobe Systems and Symantec. After engaging in a transaction with an undercover officer, Mr. Brown told the officer he could also make and sell counterfeit United States currency. According to the Manhattan District Attorney's Office press release, "[o]ver the course of the investigation, [Mr.] Brown sold the undercover detective over $10,000 in counterfeit U.S. currency and over $15,000 in counterfeit American Express and Visa Travelers Cheques, JP Morgan Chase certified bank checks, United States Postal Service money orders and MoneyGrams co-branded with Wal-Mart, CVS/pharmacy and the American Automobile Association (AAA)."

The Manhattan District Attorney's Office further alleges that during the investigation Mr. Malikim Brown also "offered to sell City of New York birth certificates, federal social security cards and complete W-2 tax returns all of which could be used to obtain government-issued identification and lines of credit in the name of the person listed on the documents in each set."

Not only is it alleged that Mr. Brown made these various counterfeited items or offered to sell them, when the police executed a search warrant at his premises they recovered an additional $25,000 in counterfeit money as well as uncut sheets of bills and the computer equipment to make that contraband.

Unfortunately for Mr. Brown, according the Manhattan District Attorney's Office press release, the Grand Jury has indicted him for 35 counts of Criminal Possession of a Forged Instrument in the First Degree, a class C felony which is punishable by up to 15 years, Criminal Possession of a Forged Instrument in the Second Degree, a D felony which is punishable by up to 7 years and three counts of Trademark Counterfeiting in the Second Degree, Criminal Possession of Computer Related Material and Unlawful Duplication of Computer Related Material class E felonies which are punishable by up to 4 years, all in prison.

There are many lessons to be learned here. Law enforcement aggressively pursues people who commit crimes of fraud and they are well aware of how Craigs List and related sites are avenues for criminal enterprises. Lastly, you may believe you are acting anonymously on the web and on your computer, but the tools law enforcement have - from a subpoena to computer forensic programs - prevents your activities from remaining hidden for long.

In the event you find yourself in a predicament of a similar nature, retain a skilled and experienced criminal defense attorney who can navigate you through the murky waters of these types of crimes, challenge the prosecution to their burden and, most importantly, fight to maintain your rights, freedom, and future.

You have been arrested because you got into a fight with your girlfriend or wife. Maybe there is a reasonable explanation or your girlfriend does not want to "press charges." Unfortunately, at this stage it doesn't matter. You are now before a judge and whether or not you are released, you must completely stay away from the complainant.

Judges throughout New York (Brooklyn, Bronx, Manhattan, Queens and Staten Island) routinely issue "full" orders of protection after a request is made by a prosecutor at arraignments.While there is much at stake at your arraignment, a "full" order of protection may prevent you from entering your own home. Therefore, it is never too early to retain a skilled criminal defense attorney to preserve and protect your rights.

A "full" order of protection or "restraining order" is a an order by the court preventing you from having any contact at all with the complainant or alleged victim of a crime. This could mean that if you live together you may not enter the home. Alternatively, the police will arrange a time for you to enter and get some of your things. You will not be able to call the complainant or talk to the complainant even if she calls you. The burden placed upon you is quite severe.

In the event you are unable to enter your own home due to the "full" order of protection, a criminal defense attorney should request a Foreman Hearing. A Foreman Hearing is a two stage hearing where your criminal defense attorney must establish that you have certain personal property rights that will be "directly" or "specifically" affected as a result of the order of protection. Assuming that is established, the court must then decide if there is a "danger of intimidation or injury."

If such a hearing is granted, your criminal defense attorney will be able to cross examine the prosecution's witnesses. Not only does this give you the opportunity to challenge the prosecution's claims, but to establish inconstancies in the prosecution's case. The ultimate goal in this setting, however, would be to permit you to enter your home and limit the order of protection.

Recently, on September 8, 2008, I commented on People v. Magali Rodriguez. In that matter, a New York criminal defense attorney challenged the legal sufficiency of a complaint charging the defendant with Prostitution. Specifically, the challenge was based on the fact that a third party negotiated the financial transaction. In finding the complaint (it's actually called an "information") legally sufficient, the Court stated that the defendant herself need not be the one to offer the sexual conduct and discuss the financial transaction. What must be reviewed is the "totality of the circumstances."

On a similar note, another recent decision from New York (Manhattan) Criminal Court in January 2008, People v. Heesuk Choi, 2007NY085556, reveals that courts may be getting stricter in their enforcement of Prostitution and related crimes. In that matter, an undercover police officer was in a "brothel" or "house of prostitution" where five women (one was the defendant), who did not speak, were paraded out to him. The undercover agreed on a price with a madam and was asked to pick a girl.

The criminal defense attorney argued that the case should be dismissed for facial insufficiency because the mere presence of the defendant did not establish her involvement in the sexual transaction. In denying the motion to dismiss, Judge Weinberg asserted that "it is not necessary to establish that defendant individually negotiated with the undercover in order to establish a prima facie case of prostitution. The Court is not required to turn a blind eye to compelling circumstantial evidence while engaged in a facial sufficiency review."

In other words, not only may Prostitution be legally established by only alleging that someone else negotiated the transaction, but alleging presence alone, under certain circumstances, may be legally sufficient.

While these decisions may be viewed as a setback, it is important to note that a denial of dismissal does not mean a determination of guilt. The next stage in the process of maintaining your innocence would be either a hearing and/or trial. It is absolutely imperative that if your case proceeds to trial you retain a criminal attorney with real trial experience who can fight to maintain your innocence and protect your rights. As I have said many times...don't compound a bad situation by hiring an attorney who has minimal working knowledge of the criminal justice system, trial work, and the crimes relating to Prostitution.

***Protect yourself by knowing your rights and the law****

You had a few too many drinks and refused to pay your bill at the diner or late night restaurant in Manhattan. You jumped a turnstile in Brooklyn because you though nobody was looking. Maybe you refused to pay your cab driver because he is driving you from NY to the Bronx to Queens and back to NY when you only needed to go to midtown. Believe it or not, your actions may land you either in jail or with a desk appearance ticket (DAT) for the misdemeanor crime of Theft of Services.

An experienced criminal defense attorney can tell you that things that seem to be merely a misunderstanding or a bone-headed move often result in criminal actions. Theft of Services, punishable by up to one year and jail, is one of those offenses. Although there are often legitimate and solid defenses to this crime that need to be explored, Theft of Services generally occurs where you obtain a service and do not pay for that service.

While Theft of Services is not a crime where the average person is likely to do any "time," it is important to note that a skilled criminal defense attorney should be retained to make sure you do not become the exception. For example, a criminal defense attorney should review the complaint against you and make sure there is certain language. Specifically, there must be language specifying that you did not have "permission or authority" to obtain the service without payment. Failure to allege this in a complaint may result in your criminal defense attorney successfully arguing for dismissal. There is no reason to accept even a day of community service and a slap on the wrist if the case can be defeated on legal grounds.

Even assuming that a disposition can be reached, individuals who have certifications or go through background checks such as investment bankers, physicians, and teachers, may be concerned about any wrongdoing on their record regardless of how small it is. Therefore, it is important that you don't let this misunderstanding or bone-headed move cause you any more problems and you retain criminal defense counsel to aggressively fight to prevent this from blemishing your clean record in anyway.

You and a friend have an illegal gambling operation. The police executed a search warrant at your business and you find yourself charged with Money Laundering in Brooklyn Criminal Court. However, you merely arranged for finding the physical location to run the operation and greeting clients, but you never dealt with the financial transactions. Maybe you arrange for bookings for an escort services and find yourself charged with Promoting Prostitution in Manhattan Supreme Court, but you never actually met the alleged prostitutes or set up locations to meet because someone else had the responsibility. In an even worse scenario, you are in jail in the Bronx because you were a "lookout" or "steerer" when a friend of yours sold drugs to an undercover police officer with the NYPD and now you are charged with Criminal Sale of a Controlled Substance (selling drugs) with your friend.

The question you may ask is, "How is the District Attorney's Office charging me for a crime where I was not the person who actually committed that crime?" The answer to this question may be found in Penal Law Section 20.00. An experienced New York criminal defense attorney will not only be able to explain this legal definition to you, but to analyze and put forth the best way to challenge the case against you.

Penal Law Section 20.00, Criminal Liability for Conduct of Another, establishes that if "one person engages in conduct which constitutes an offense [such as Money Laundering, Promoting Prostitution or Criminal Sale of a Controlled Substance], another person is criminally liable for such conduct when, acting with the mental culpability required for the commission [of that offense], he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

In "regular" language, what the above provision means is that if a jury finds that the offense was committed - in our examples Money Laundering, Promoting Prostitution or Criminal Sale of a Controlled Substance - and that you solicited or intentionally aided another in committing this crime with the mental state that the crime be committed, then it does not matter if your participation was less than the other person's. While it may mitigate your case, the law does not differentiate between who was more involved. Each person who was involved in the manner described above would be treated as if he or she committed each element of the particular crime.

An even better way to look at this is if you hire a person to shoot and kill another, both you and the "hitman" would be charged with Murder if such person was killed because you solicited the "hitman" and assisted him in murdering the other person even though you did not pull the trigger.

Whatever circumstance you find yourself in, there may be a valid defense or legitimate mitigating circumstances that an experienced NY criminal defense attorney can pursue to exonerate or assist you. The longer it takes to develop your defense or provide the District Attorney with mitigating circumstances, the more difficult it may become to get you where you want to be.

Recently, in People v. Magali Rodriguez, a NY criminal defense lawyer argued in Brooklyn (Kings County) that the complaint alleging Prostitution against his client was facially insufficient and should be dismissed. Specifically, the NY criminal defense attorney argued that the complaint alleged that a third party, and not his client, received payment for the agreed upon sexual services between his client, the alleged prostitute, and the undercover police officer. Therefore, the defendant did not make the actual agreement.

Brooklyn Criminal Court Judge Michael Gerstein disagreed with the criminal defense attorney and denied the suppression. Citing People v. Choi, 18 Misc.3d 1122, (Crim. Ct. N.Y. Co. 2008), Judge Gerstein stated "that the mere fact that an agreement to engage in sex for money was secured through a procurer does not render [a] Complaint [alleging Prostitution] insufficient."

A person is guilty of Prostitution under NY Penal Law §230.00 when he or she "agrees or offers to engage in sexual conduct with another person in return for a fee." The Court further explained that in determining facial sufficiency of a Complaint, the Court need not disregard common sense. In fact, NY Penal Law §230.00 "does not require allegations that the Defendant received money directly, but merely that he or she agreed to provide sex in exchange for money. The mere presence of a managing structure does not immunize a Defendant who agrees to provide sex in exchange for money...Thus, Prostitution is established where, as here, an Undercover Officer allegedly negotiates a sum, pays up-front, chooses one of several available women and is then turned over to the woman of his choice to receive the wares he purchased."

As I have stated in previous entries, an experienced criminal defense attorney should be retained to fight for your rights and ascertain whether there are any holes or weaknesses in case against you. While no attorney can guarantee the outcome of his or her motion, an experienced criminal attorney can identify the potential issues, formulate a plan of attack, and implement that plan to get you where you want and need to be.

It is no surprise to this former Manhattan prosecutor and current criminal defense attorney that the Manhattan District Attorney's Office obtained a top count plea for Criminal Possession of a Controlled Substance in the First Degree and a severe sentence for the infamous Robert Chambers, a/k/a, the "Preppie Killer." The notorious criminal is known for killing Jennifer Levin years ago in Manhattan's Central Park.

Prior to his arrest, Mr. Chambers had been the target of an undercover police investigation where he ultimately sold a quantity of cocaine in excess of two ounces. Under New York State law, the sale of a controlled substance (cocaine, "crack," heroin and other drugs) is punishable as felony regardless of how small or large the amount sold. One is guilty of Criminal Sale of a Controlled Substance in the First Degree (Penal Law Section 220.43) if he or she knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing a narcotic drug ad the preparations, compounds, mixtures or substances are of an aggregate weigh of two ounces or more. Under this offense it does not matter whether the amount barely exceeds two ounces or is multiple kilos.

The potential punishment for Criminal Sale of a Controlled Substance in the First Degree depends on many factors including whether the current offense is the defendant's first. Alternatively, if the defendant is a predicate felon or a violent predicate felon the sentence may be significantly enhanced. At a minimum, the potential sentence is eight years and up to twenty years, but may be much greater.

In the case of Mr. Chambers, not only did he have a terrible criminal history that no doubt had an impact on the prosecution's recommendation and the court's ultimate sentence, but Mr. Chambers faced a harsh sentence as a matter of law. As a violent predicate felon relating to Mr. Chamber's prior offense for Manslaughter in the First Degree, Mr. Chambers faced a minimum of fifteen years and a maximum of thirty years in state prison.

In a previous entry I discussed the general concept of the "affirmative defense." Now that you have an understanding as to what a New York criminal defense attorney means when referring to such a defense, I wanted to take the opportunity to set forth some specific "affirmative defenses" from the New York Penal Law. Again, these defenses are statutory defenses where your criminal defense attorney bears the burden, and not the prosecution, in proving the defense beyond a preponderance of the evidence. The following are some examples:

New York Penal Law 190.15 - Affirmative Defense for Issuing a Bad Check

It is an "affirmative defense" if the defendant or person acting in his behalf made full satisfaction of the amount of the check within ten days after dishonor by the drawer.

New York Penal Law 190.84 - Affirmative Defense for Identity Theft or Unlawful Possession of Personal Identification Information

It is an "affirmative defense" if the defendant was under twenty one and possessed or used the identifying information of another for the sole purpose of purchasing alcohol or was under eighteen and possessed or used the personal identifying information of another person for the purpose of purchasing tobacco. In other words, the New York State Legislature did not want to punish young people who were buying alcohol or tobacco with fake IDs as if they were committing felonies.

New York Penal Law 210.25 - Affirmative Defense for Perjury

It is an "affirmative defense" that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became clear that its falsity was or would be exposed.

New York Penal Law 135.30 - Affirmative Defense for Kidnapping

It is an "affirmative defense" that (a) the defendant was a relative of the person abducted, and (b) his sole purpose was to assume control of such person.

New York Penal Law 130.10 - Affirmative Defense for Rape and Other Sex Offenses

It is an "affirmative defense" of any prosecution under this article in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the factors or conditions responsible for such incapacity to consent.