New York Criminal Lawyer Blog

Each statute in New York Criminal Law has its own nuances. Sometimes particular subsections point to different theories of the same crime while other statutes, although similar on their face, are distinct and separate crimes. Some of these differences are very obvious to the non-legal observer while others require the analysis of a NY criminal defense attorney.

One example of this "issue" of whether the crime is merely a distinct theory or a unique charge, is evident in the NY Penal Law in reference to the crime of Trespass. Specifically, there are multiple crimes involving trespassing. Two of these offenses deal with the crime as a misdemeanor offense as opposed to either a violation or a felony. These crimes are §140.10, Criminal Trespass in the Third Degree, and §140.15, Criminal Trespass in the Second Degree.

The first of these sections make it punishable as class "B" misdemeanor (punishable by up to 90 days jail on Riker's Island) if you knowing enter or remain unlawfully in a building or on real property, and under subsection (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry or use thereof.

Criminal Trespass in the Second Degree, §140.15, however, makes it a class "A" misdemeanor (punishable by up to one year in jail on Riker's Island) if you knowingly enter and remain unlawfully in a dwelling.

So, are these crimes two separate offenses or merely separate theories? In other words, what if you are trespassing in a public housing building (a violation of New York Penal Law §140.10(e)) that was also a dwelling (New York Penal Law §140.15)? Can the prosecution proceed with charges against you under either offense?

Continue reading " NY Criminal Defense - Trespass in NY: Difference Between NY Penal Law §140.15 and §140.10 " »

Criminal Possession of a Weapon in the Third Degree, a "D" Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to "elevate" weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That's right...any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

Well, what if you recently pleaded guilty to a crime, but you have not been sentenced when you are arrested for possessing that switchblade? Does this plea without a sentence equate to a previous conviction for the purpose of this statute?

As a general rule, when someone is deemed a predicate felon (a prior felony offense that will elevate a current felony offense) they must have been sentenced on the prior case (within the past 10 years) before their arrest on the new case. See People v. Morse.

This past June, however, the Court of Appeals upheld a felony conviction for Criminal Possession in the Third Degree, Penal Law 265.02(1), where the defendant had pleaded to an assault and had yet to be sentenced. Prior to his sentence he was re-arrested and indicted for swinging a machete at another individual. Rejecting the defendant's argument that one must be sentenced before they are deemed to be convicted, the Court of Appeals stated that "[s]ection 265.02 seems to embody the Legislature's judgment that an illegal weapon is more dangerous in the hands of a convicted criminal than in possession of a novice...regardless of whether sentence has yet been imposed for the prior crime." See People v. Montilla.

Make no mistake, while one must be sentenced on a prior crime before being found to be a "predicate felon" for the purpose of elevating the new felony crime, where the crime charged is a misdemeanor Criminal Possession of a Weapon, the defendant need not be sentence to raise the crime from a misdemeanor to a felony. Obviously, the level of exposure increases significantly with the felony charge. Therefore, retain an experienced and skilled criminal defense attorney to advocate for your rights and get you where you need to be.

One of the more common crimes NY criminal attorneys deal with is Criminal Possession of Marihuana / Marijuana in the 5th Degree, a class "B" misdemeanor pursuant to NY Penal Law Section 221.10(1). A person is guilty of this charge if he or she "knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view."

Although the charge seems straightforward, if you possess a "blunt," "joint," or burning marijuana in public you are potentially guilty of this offense. However, before you throw your hands up in the air and plead guilty to this crime, you should consult with a knowledgeable New York criminal defense lawyer who can analyze elements of your case that you may have overlooked.

One of those elements that is critical is whether or not the marijuana was in a public place. If it was not, then your case may be dismissed. According to Section 240.00 of the Penal Law, a public place is defined as "a place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence."

Unlike matters of public lewdness where "public place" has a more narrow definition tailored for that specific crime, "public place" in connection with Criminal Possession of Marihuana has a much more broad meaning. See People v. Guzman, 6 Misc 3d 553 (Crim Ct, NY County 2004). In fact, Justice Elisa S. Koenderman of the New York County (Manhattan) Criminal Court issued a decision on July 10,2008 in People v. Ronnie Watkins where she recognized the broad view the courts accept in connection with the possession of marijuana in a "public place." In her decision to deny dismissal of a criminal court complaint for facial insufficiency where the defendant's counsel argued that the inside of the defendant's vehicle was not a "public place," Justice Koenderman stated that:

"[the] application of the broad definition of public place to Criminal Possession of Marijuana in the Fifth Degree is consistent with the legislative intent of the statute. Unlike the narrower definition applicable to public lewdness, the "broad definition" of public place under PL §240.00 (1) encompasses the interior of a car parked on a street to which the public has access, regardless of whether the objective circumstances establish that the interior can, and likely would, be seen to the casual passerby."

Furthermore, Justice Koenderman recognized that the essence of a "public place" is that it is possible that a member if the public may pass by it. See People v. McNamara 78 NY2d 626, 633 (1991). As a result, all that is required for the interior of car to constitute a public place as an element of Criminal Possession of Marihuana in the Fifth Degree is mere public access to the street where it is parked.

Although it is clear that "public place" is likely to be construed to include areas where you might think are private locations such as the inside of a vehicle, the marijuana must also be burning for your possession to constitute the misdemeanor charge of Criminal Possession of Marijuana in the 5th Degree. If the prosecution fails to set forth one or both elements, the "public place" and the burning, your NY criminal attorney should file a motion to have the complaint against you dismissed.

You are carrying .22 caliber bullets in Manhattan or .38 caliber rounds in Brooklyn, but you don't have a permit to possess a handgun or pistol that utilizes the ammunition or to possess any firearm at all. Well, you may not have violated New York State Penal Law for Criminal Possession of a Weapon, but you are in violation of the New York City Administrative Code.

According to Administrative Code Section 10-131(i)(3) it is unlawful for any person not authorized to possesses a pistol or revolver within the city of New York to possesses pistol or revolver ammunition. Similarly, pursuant to Administrative Code Section 10-131(i)(4) it is unlawful for any person to authorized to possess a pistol or revolver of a particular caliber within the city of New York to possess pistol or revolver ammunition of a different caliber. Both of these Administrative Code violations are punishable as misdemeanors.

Although possessing the actual pistol or revolver without a permit is a significantly more serious offense punishable by at least three and one have years prison, the fact that New York City has its own laws to punish individuals who it deems are dangerous should be a wake up call to everyone. It's not merely the firearm that can land you behind bars, but the possession of the ammunition.

In the event you find yourself in situation similar to that described above, whether it be for possession of a pistol or only the bullets, contact a skilled criminal defense attorney who will not only advocate for you, but fight to make sure your rights are secured and your future preserved.

Individuals charged in New York with the crime of Prostitution, Penal Law Section 230.00, have to offer to or actually engage in "sexual conduct" as defined by both statutes and case law. In the Kings County (Brooklyn) Criminal Court case of People. v. Georgia A., 163 Misc.2d 634 (N.Y.City Crim.Ct.,1994), a NY criminal defense attorney successfully argued before a criminal court judge that his client should be acquitted after the prosecution failed to establish any "sexual conduct" existed in an "S & M" and dominatrix case.

In this particular matter the defendant met with an undercover police officer after they arranged for the appointment over the phone (this pre-dated Craig's List and Backpage). The agreement between the two was for an "S & M" experience. Upon meeting, the undercover asked what he would get in exchange for $100 and the defendant informed him that he would receive "S &M" for that fee. Although the money was not exchanged at that time, the defendant changed her outfit. During this time, the undercover observed various videos and other items including whips and toys.

At some point the undercover notified the "field team" (a term often used to refer to other officers involved in the investigation and arrest). These officers entered the apartment and arrested the defendant.

At trial, the defendant testified that "as the dominatrix, she makes an assessment as to what a customer wants and/or needs and then performs that desire. [The defendant] stressed the fact that there is no sex or sexual conduct like sexual intercourse or physical contact with the person's genitals. [The defendant] further testified that as a dominatrix, she wore a specific costume-black gloves, leather corset, panties and high heels." Moreover, [the defendant] stated that there was no intercourse of any kind, but that a client might be spanked or paddled.

In finding that there was no "sexual conduct" the court found that "sado-masochistic acts described by [the defendant]: foot licking, spanking, domination and submission do not appear to fit within the category of sexual conduct referred to in the statute."

While each case must be analyzed individually, the case of Georgia A. is a significant one in that it gives insight as to what may not be construed as "sexual conduct." While this decision is from a trial court (not an appellate court), it is an important one and sets forth the position that sado-masochistic acts of footlicking, spanking, domination and submission are not "sexual conduct" within the meaning of the prostitution statute.

Regardless of the facts underlying your case, if you are charged with a crime relating to Prostitution, Solicitation, Unlicensed Massage or Promoting Prostitution, you should educate yourself on the law at EscortDefense.Com and retain the criminal defense firm of Crotty Saland, LLP, as the experienced criminal counsel you need to fight for your rights and integrity.

An aggressive and skilled criminal defense lawyer can assist his client in navigating the criminal justice system in New York. Whether you are being prosecuted in Manhattan, Brooklyn, the Bronx, White Plains or Yonkers, one possible outcome of your criminal case that you may navigate to, and a very good one under the right circumstances, is an adjournment in contemplation of dismissal or ACD. See CPL 170.55.

If, for example, you are charged with a misdemeanor such as Assault, Criminal Possession of a Controlled Substance (drug possession), Petit larceny, or Menacing, an ACD, other than an outright dismissal, is the best possible outcome. When accepting an ACD you are not admitting to any crime, pleading guilty or stating you were involved in any wrongdoing. In practical terms, the case is being dropped and if you stay out of trouble and abide by certain conditions, the case will be dismissed and sealed within six months (or one year if it is a "family" criminal matter). If, however, you do not abide by certain conditions as set forth at the time of the ACD, the prosecution may seek to re-open your case and proceed on the original charges during the six months or one year the case is not active and prior to its dismissal. Once it is dismissed the prosecution cannot reopen the matter as it will be sealed.

In the case of an arrest and charge of Criminal Possession of Marijuana or Criminal Sale of Marijuana, an ACD is only available if, for example, you have not previously received an ACD or you have not been previously convicted of any offense involving controlled substances. See CPL 170.56.

A New York criminal defense attorney must analyze each case individually before advising his or her client to accept an ACD. It may be that an ACD is an acceptable disposition in your criminal matter, but it in some circumstances it may not be appropriate. For example, if you are considering suing the city or the police due to brutality, violation of your rights or another matter, an ACD may make that suit more difficult.

Judges, prosecutors, and NY criminal defense attorneys recognize that law enforcement must always be vigilant in protecting children and keeping them safe. That being said, NY criminal defense attorneys must also hold the prosecution to their burden of proof when their clients are charged with Endangering the Welfare of a Child, Penal Law §260.10.

One issue that has been litigated on multiple occasions is whether the conduct that "endangers" the child must be conduct that is directed at the child. In the alternative, is it sufficient if the conduct, although not directed at the child, is the type of behavior that the actor is aware will likely harm the child?

The answer to this particular question is clear. That is, the defendant need only be aware that his or her conduct "may likely result in harm." People v. Johnson, 95 NY2d 368 (2000).

Assuming a defendant's activities are such that he or she should be aware that harm will likely occur, the next question is how to define the level or type of harm that is sufficient. Courts have ruled that the type of harm that endangers children and satisfies this prong includes, but is not limited to: driving drunk with a child in the car, having guns in one's home where children can access them, assaulting children and in some circumstances even making numerous obscene and vulgar comments towards the child.

While some examples of the type of harm are clear and leave little room for dispute (such as a loaded weapon in the proximity of a young child or toddler), some courts differ on the less blatant forms of harm. For example, some courts disagree on whether possessing or purchasing drugs in the presence of children rises to the level of Endangering the Welfare of the Child. In ambiguous and unclear circumstances such as that, an experienced NY criminal defense attorney can mean the difference between a dismissal of the charges and a conviction if he can convince the court the information/complaint against you is insufficient. Regardless of the facts alleged in a complaint against you, consult and retain a criminal defense lawyer who can analyze your case, make the right decisions and fight for your freedom, integrity and future.

Earlier today, James Delayo, Michael Sackaris and Michael Pascalli, along with their NY criminal defense attorneys, were in court waiting to be arraigned on a multiple count felony indictment in New York County (Manhattan) Supreme Court involving crimes such as Bribery and Falsifying Business Records.

According to the Manhattan District Attorney's Office press release:

Mr. Delayo, a former Acting Chief Inspector for Cranes and Derricks for the New York City Department of Buildings, is charged with one count of Bribe Receiving in the Second Degree, a class C felony punishable by up to 15 years in prison. Additionally Mr. Delayo and Mr. Sackaris are charged with 37 counts of Tampering with Public Records in the First Degree, a class D felony punishable by up to 7 years in prison; 37 counts of Offering a False Instrument for Filing in the First Degree, a class E felony punishable by up to 4 years in prison; and 37 counts of Falsifying Business Records in the First Degree, a class E felony punishable by up to 4 years in prison.

Furthermore, Mr. Sackaris and Mr. Pascalli are charged with one count of Bribery in the Second Degree, a class C felony. Mr. Sackaris is also charged with one count of Intimidating a Victim or Witness in the Third Degree, a class E felony punishable by up to 4 years in prison. Mr. Pascalli is also charged with one count each of Tampering with Public Records in the First Degree, Offering a False Instrument for Filing in the First Degree and Falsifying Business Records in the First Degree.

Unfortunately for each of the defendants, the Manhattan District Attorney's Office is staffed by diligent and skilled prosecutors who likely presented a strong case to the Grand Jury and have the ability to see the case through to trial if necessary. What may be even more concerning for these men is that although the recent crane accidents are not alleged to have been associated with the corruption, their criminal defense attorneys must make sure that they do not become scapegoats for those tragic accidents.

As a former prosecutor in the Manhattan District Attorney's Office and a founding member of the Identity Theft Unit after its creation, I have extensive experience investigating and analyzing cases that involve the falsification of business and public records. It certainly will be an uphill battle for these men and skilled representation is essential for them to get the best possible disposition whether that be through challenging the prosecution's case or working out a deal.

If you find yourself in a predicament where you are charged with falsifying or forging documents, receiving or giving bribes or any similar type of case, don't compound a bad situation by merely retaining any attorney. Jeremy Saland will use his years of experience as both a prosecutor and a NY criminal defense attorney to protect your rights, fight for your freedom and maintain your integrity.

As an Assistant District Attorney who served in the Manhattan District Attorney's Office for seven years and as a New York criminal defense attorney, I have prosecuted, investigated and defended a wide spectrum of crimes ranging from Identity Theft, Forgery and Grand Larceny to Possession of a Weapon, Rape and Kidnapping. Through my years of experience I have heard the same question asked by witnesses of crimes over and over again. That is, "I received a subpoena for the Grand Jury. Do I have to go to the prosecutor's or District Attorney's Office?" The answer to this question is always and absolutely in the negative. In fact, ther is "no power in the District Attorney under our existing law to employ a subpoena to [require a] witness to attend his office or any other place where a Grand Jury is not sitting or where a court is not convened in action or proceeding." People v. Boulet.

Prosecutors are entitled to issue subpoenas on behalf of the Grand Jury that require your personal appearance in front of that body. On the face of the subpoena or the cover letter, the prosecutor will often indicate that he or she would like you to come to the office prior to going to the Grand Jury. Prosecutors are not being dishonest or trying to trick you to come down to their office first in lieu of going to the Grand Jury. There is no reason for them to behave in this manner. In fact, it may save both parties the time and energy of going into the Grand Jury or it may turn out that after a few questions from the prosecutor it will be determined that you are not needed and you can go back home or back to work. At bottom, there are many valid reasons why a prosecutor would request that you come to the office first.

Despite the valid reasons, the prosecutor may believe that you are involved in criminal activity or have information about criminal activity. If you are concerned that you are the target of an investigation or you believe that you may implicate yourself or a loved one in a criminal matter, it may be in your best interest to retain a New York criminal defense attorney to accompany you to the Grand Jury. In the alternative, a criminal defense attorney may be able to challenge the subpoena or tell the prosecutor that you will not come to his or her office. At a minimum, a criminal defense attorney might be able to speak with the prosecutor to better understand the purpose of the subpoena or arrange for a mutually agreeable time for you to come down to the Grand Jury or the District Attorney's Office. On the other hand, and more importantly, an experienced NY criminal defense attorney can stop you from implicating yourself or a loved one to a prosecutor who may decide to prosecute you or further his or her investigation.

There are two NY criminal defense attorneys who have a lot of work cut out for them after a Manhattan Grand Jury indicted their clients on four counts of Grand Larceny in the Third Degree, two counts of Criminal Possession of Stolen Property in the Third Degree, two counts of Grand Larceny in the Fourth Degree, and three counts of Scheme to Defraud in the First Degree.

According to the Manhattan District Attorney's Office, two individuals, Edward and Eugenia Fiammetta, used their public assistance benefit cards to fraudulently obtain $54,725 in food stamp credits from 17 Manhattan grocery stores.

The Manhattan District Attorney's Office alleges that the Fiammettas used Electronic Benefit Transfer (EBT) cards to access the government benefits in their accounts. Specifically, the two schemed the government by contacting grocery stores and telling unsuspecting clerks that the machine used to swipe the cards at the particular location was broken. Telling the clerk they were EBT employees, the Fiammettas gave the clerk their own EBT account number to plug into the system to fix the alleged problem. As a result, the clerks' actions would unwittingly transfer food stamp credits into the Fiammetta's Chase account. After the stamp credits were deposited in the Fiammetta's account, the Fiammetta's transferred the credits to other grocery stores in exchange for cash.

While the Fiammettas allegedly concocted a scheme where they never actually got their hands dirty (they appear to have done this all by phone or transfers), law enforcement tracked them down. The Fiammettas learned the hard way that in tough financial times law enforcement cannot and will not let these types of crimes slide by. If the allegations are true, the Fiammettas will need an experienced criminal defense attorney as they now face up to seven years in state prison on the top charge.