New York Criminal Lawyer Blog

There was never any real dispute amongst criminal defense attorneys that in New York State or NYC if you possess or make a fake ID, counterfeit money or fraudulent credit cards you may be charged with Forgery or Criminal Possession of a Forged Instrument. Heck, you could get arrested for Forgery or Criminal Possession of a Forged Instrument in New York if you sign another person's name on a check without their permission. In fact, you could even be charged with Identity Theft.

Well, the Court of Appeals, New York's highest court, just issued a decision today that confirms what the criminal defense attorneys at Crotty Saland, LLP have blogged about in the past. That is, possessing, bending or manipulating a MetroCard to gain free access to the subway system in NYC is also Criminal Possession of a Forged Instrument or Forgery. You heard it right...you can be charged with a felony offense punishable by up to seven years in state prison.

The decision of People v. Jonathan Mattocks after the jump...

Continue reading " Bend Your MetroCard and Go to Jail: NY's Highest Court Says Forgery & Forged Instrument Crime " »

His criminal defense clearly did not work. Without a jury, he rolled the dice with a judge who didn't buy it. Brady Green, the man convicted for stalking Tyra Banks in Manhattan Criminal Court, faced 90 days in jail, but ultimately kept his freedom.

The Manhattan District Attorney's Office initially charged Mr. Green with Stalking in the Second Degree, an "A" misdemeanor punishable by up to one year in jail. At some point prior to trial the prosecutors reduced or dismissed the top count leaving the top charge as as Stalking in the Third Degree. This charge, a "B" misdemeanor, is punishable by up to 90 days jail. As a former Manhattan prosecutor and a NY criminal defense attorney experienced in these crimes, it is likely the reduction was done for one of two reasons.

By reducing or dismissing the top charge "A" misdemeanor, the prosecution in NYC could have a "judge" or "bench" trial without a jury. This is done because it enables the prosecution to proceed on a criminal case in the event there are no courts with juries available or, in the alternative, the case was weak as an "A" misdemeanor and it was likely that the conviction and associated punishment fell in line with the lesser "B" offense.

Regardless of what the prosecution's thought process was, Brady Green has been convicted of Stalking in the Third Degree. Not only had he face up to 90 days jail on Rikers Island, but Tyra Banks will benefit from an order of protection that will prevent Mr. Green from having any contact - whatsoever - with her. In the event he contacts Ms. Banks and violates that order Mr. Green will face a new charge of Criminal Contempt as a misdemeanor or felony and the "Tyra Banks Show" will replay all over again. Next time, however, he may be watching from behind bars.

The New York white collar criminal defense firm of Crotty Saland, LLP has once again been sought out for our experience and knowledge as criminal defense attorneys and former Manhattan prosecutors. On Friday, April 24, 2009, the CBS Evening News with Katie Couric interviewed Elizabeth Crotty in reference to the Bernie Madoff case. Specifically, the interview addressed the different ways to defend and represent Frank DiPascali, Bernie Madoff's "lieutenant" and CFO.

Whether we have been sought for our legal insight by CNNSI.Com in reference to the Plaxico Burres gun possession case, the AP, Times-Ledger, AM NY or the CBS Evening News, we at Crotty Saland, LLP always practice what we preach. That is, we know that the key to your criminal defense stems from our attorneys' advocacy and the partnership shared with our clients.

Recently, a Queens County Criminal Court Judge in People v. Gloria Johnson-Noble, 2008QN038495, denied a defendant's motion to dismiss the criminal charge of Endangering the Welfare of an Incompetent or Physically Disabled Person. Through her criminal defense attorney, the defendant, a certified nurses assistant, had argued that although the accusatory instrument set forth that she struck an 86 year old woman with dementia on her arm and face, she did not have the intent to injure her.

According to NY Penal Law §260.25, a person is guilty of Endangering the Welfare of an Incompetent or Physically Disabled Person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect.

In denying the defendant's motion to dismiss, the Court stated:

"Here, the information charging defendant with endangering the welfare of an incompetent person contains non-hearsay allegations to the effect that the victim was an 86 year old woman suffering from senile dementia, that she was incapable of caring for herself and that defendant slapped her on her face. These allegations establish, if true, that defendant knew that her actions were likely to be injurious to the victim who was 'unable to care for himself or herself because of physical disability, mental disease, or defect.' (PL §260.25; People v. Rolston, 190 AD2d 1000 [4th Dept 1993]; People v. Biamonte, 19 Misc3d 139A [App Term 9th & 10th Jud Dists 2008].)

Clearly, according to this Queens County Criminal Court Judge, it does not matter whether or not the defendant intended on injuring the complainant, but that she knew that her actions would cause an injury. At bottom, what this particular judge has found is that the mental element (a part of every crime) is lowered in conjunction with this offense. You do not need to have the intent, i.e., purpose to cause injury. Instead if it is not your intent to injure, but your actions will or may cause injury, then the mental element of this particular crime may be satisfied.

As I have mentioned multiple times before, a failure of a criminal defense attorney's motion to dismiss does not put an end to your criminal defense. While the complaint against this particular defendant may be "facially sufficient" for the prosecution to proceed, the prosecution still must meet a higher burden, proving the case beyond a reasonable doubt, at trial. At that point your criminal defense attorney can further challenge the prosecution, cross-examine witnesses and present evidence on your behalf. While we cannot speak on the merits of this particular defendant's case and what was done for her defense, every case needs a skilled and thorough examination of the evidence in order to construct and implement the best defense. The attorneys at Crotty Saland, LLP have not only done this countless times, but stand ready to assist you in your time of need as well.

When you are charged with Criminal Possession of a Weapon for possessing a revolver, pistol, gun or other firearm, you need your NY criminal defense attorney to fight relentlessly for you. Sometimes that "fight" may be more creative than adversarial, but the best criminal defense lawyers must persevere on behalf of their clients regardless of the case. As NY criminal defense attorneys and former Manhattan prosecutors, we at Crotty Saland, LLP know this because we have successfully fought for our clients under the harshest circumstances. Not only have our clients benefited as a result of our knowledge and experience, but Crotty Saland, LLP has been sought out by CNNSi.Com, the Times-Ledger and the AM NY as legal analysts on the crime of Criminal Possession of a Weapon. Practicing what we preach and utilizing our experience, Crotty Saland, LLP is pleased to announce that we obtained an Adjournment in Contemplation of Dismissal for our client who was charged with Criminal Possession of a Weapon.

Our client faced the charge of Criminal Possession of a Weapon for possessing a loaded firearm in NYC. The complaint was very strong in that it was alleged that our client personally possessed both the revolver and the ammunition. Knowing that our client would face a minimum of 3.5 years in state prison if he was convicted, we put together an extensive "package" for the prosecution detailing many factors that should, and did, mitigate the severity of the offense and even the culpability of our client. We did so in an expedient manner and reached a disposition with the District Attorney's Office by the first adjournment after our client was arraigned in criminal court. Not only were we able to obtain a tremendous disposition on his behalf (the case is to be dismissed and sealed), it was completed quickly so that our client could put the incident behind him and move on with his life and career. Equally if not most importantly, our client's freedom remained intact.

Although the above case is unquestionably a success at many levels, each case is unique and requires diligent analysis so that the best defense can be implemented. What is successful in one criminal case involving the same charge may not be in another. Whatever the accusation or circumstances, Crotty Saland, LLP is ready and able to examine the facts, consult with you and your family and work to do what we can to preserve your liberty, integrity and livelihood.

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You have just been arrested in New York City after driving in a car that is stolen. Maybe you "borrowed" it for a little too long and you didn't return it. It could be that a friend gave you the keys and you thought it was his or you were just going for a "joy ride." Another possibility is that it was a rental car you failed to return timely. Regardless, you frantically call your criminal defense attorney and you want to know what possible charges you face.The answer is simple...Grand Larceny, Criminal Possession of Stolen Property and Unauthorized Use of a Vehicle are the likely charges you would face if it is alleged that you stole or used a vehicle without permission or authority.

Grand Larceny in the Fourth Degree, PL 155.30, makes it a felony to steal property when, pursuant to subsection (8) the value of that property exceeds $100 and the property is a motor vehicle other than a motorcycle. That's right. If you steal a car and it is worth more than $100, then you are looking at an "E" felony punishable by up to four years in state prison. It is important to note that you can still be charged with a more serious level of Grand Larceny punishable by significantly more prison if the car is equal to or exceeds $3,000 or $50,000.

Criminal Possession of Stolen Property almost mimics the Grand Larceny statute. You are guilty of Criminal Possession of Stolen Property in the 4th Degree when you knowingly possess stolen property, with the intent to benefit yourself or another person other than the owner or to impede the recovery by the owner and, pursuant to subsection (5) the value of the property exceeds $100 and the property is a motor vehicle other than a motorcycle. Like Grand Larceny, you can still be charged with more serious levels of this offense if the value of the vehicle is equal to or exceeds the thresholds of of $3,000 or $50,000.

Unauthorized Use of a Vehicle ranges from a misdemeanor punishable by up to one year in jail to a "D" felony punishable by up to seven years in state prison. Generally, you are guilty of this offense if you know that you do not have the permission of the owner of a vehicle, you ride in, possess or operate the vehicle. Additionally, if you have permission, but do not return the vehicle at the specified time you may also be guilty of this crime. This offense is punished more severely as a felony if you have previously been convicted of the crime in the previous ten years or you commit this crime while also committing certain other felonies.

Whatever situation you or a loved one is in, contact the criminal defense attorneys at Crotty Saland, LLP so that you can start fighting to make sure your rights, liberty and integrity are preserved.

As a NY White Collar criminal defense attorney and a former Manhattan assistant district attorney, I have prosecuted or defended Grand Larcenies well into the millions of dollars. One issue that often reared and rears it's head as a prosecutor and criminal defense lawyer was whether or not in a Grand Larceny prosecution involving numerous victims, the multiple thefts could be combined to increase the level of the offense. In other words, can the prosecutors aggregate the total loss and theft from all the victims and add it up as one count of Grand Larceny as opposed to multiple lesser larceny charges?

Generally, New York courts have ruled that aggregation is acceptable “[as] long as the larceny is held to be pursuant to a single intent, and one complete, illegal scheme, [and] it matters not the length of the period over which the takings continued.” People v. Cox, 286 N.Y. 137, 142, 36 N.E.2d 84 (1941). This principle, however, has generally been applied to multiple larcenies involving the same individual.

Although the above ruling is still applicable today, prosecutors are pushing the legal envelope to increase their ability to charge more significant levels of Grand Larceny. If the prosecution is successful in doing so, they can take what may be viewed as five separate "D" felonies of $10,000, for example, and charge the defendant with one "C" felony of $50,000. What was once five separate crimes punishable by up to seven years in state prison would become a one crime punishable by up to fifteen years in state prison.

Merely wanting to increase the potential crime and its punishment, however, does not make it permissible in the eyes of the law. Although no definitive answer exists as to whether or not the prosecution is permitted to aggregate in this fashion, many lower courts have allowed it. In fact, a Bronx County Supreme Court Justice found that "while no appellate court has set forth a standard for determining when larcenies from different victims may be aggregated, no decision has held that such aggregation is never permitted. This court's view is that the principles underlying the aggregation doctrine of People v. Cox, permit aggregation where the larcenies from different victims do not occur at a single place and time where the separate victims are sufficiently related to each other and to the properties taken as to be considered, in the eyes of the law, a single victim."

Regardless of this particular ruling, prosecutors will understandably push the bounds of the law as they are faced with new schemes involving Grand Larceny. Yet, a prosecutor's interest in protecting the public is no greater than a criminal defense attorney's interest - and obligation - to protect his client's rights and make sure laws are followed and the prosecutor's burden is met. The criminal defense attorneys at Crotty Saland, LLP know this and are prepared to review each case and implement a unique plan to make sure those rights are not violated and the prosecution follows the letter of the law.

NY criminal defense attorney's know that prosecutors and judges take drug crimes very seriously even if the legislature recently relaxed the Rockefeller drug laws relating to narcotics. New York Criminal defense lawyers often have a daunting task before them when battling to defend their clients. In fact, a recent judicial decision corroborates this. Published in the New York Law Journal on Friday, a judge in a Manhattan criminal court case held that "where the charge is an 'attempt' to divert a prescription medication, the People need not provide a lab confirming that the drug recovered was in fact a prescription medication." In "normal" words, if you are charged with Attempted Criminal Diversion of a Prescription Medication, the "prescription medication" you are alleged to have sold could in fact be sugar tablets and the crime would still stand.

For background purposes and as outlined in People v. Christophe Polanco, 2008NY077882 (decided on March 16, 2009), a person is guilty of Criminal Diversion of Prescription Medications in the Third Degree when he "commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars." (PL §178.15[1]). A criminal diversion act is "an act or acts in which a person knowingly: [a] transfers or delivers, in exchange for anything of a pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it" (PL §178.00[3]). Prescription medication means any medication "for which a prescription is required in order to be lawfully sold, delivered or distributed by any person authorized by law to engage in the practice of the profession of pharmacy" (PL §178.00[1]). A person is guilty of an attempt when, with intent to commit the crime, "he engages in conduct which tends to effect the commission of such crime" (PL §110.00).

Generally, to survive a motion to dismiss for facial insufficiency, a misdemeanor complaint usually must contain a field test or lab report establishing that the particular narcotic alleged in the complaint is in fact that narcotic. However, in Polanco, the court noted:

"[T]he complaint charges an attempt to exchange two sealed 300 mg bottles of Reyataz for $2,408. The supporting deposition of the Supervising Pharmacist confirms that Reyataz is a prescription medication, and that the value of a 300 mg bottle is in excess of $1000. These allegations do provide reasonable cause to believe that the defendant attempted to commit criminal diversion of prescription medication in the third degree (compare People v. Ross, 12 Misc.3d 755 [Crim Ct, Kings County 2006] [dismissing complaint alleging criminal diversion of prescription medications in the fourth degree where the People failed to convert the complaint by either a lab report or non-hearsay allegations that the substance recovered was a prescription medication]). Whether the pills in the bottle were in fact a prescription medication is not an element of the offense charged (see People v. Sessions, 181 A.D.2d 842 [2nd Dept 1992] lv denied 80 N.Y.2d 837 [1992] [crime of attempted criminal sale of a controlled substance is committed when the defendant sells a lawful substance mistakenly believing it to be crack cocaine]). Defendant's motion to dismiss the counts of criminal diversion of prescription medications in the third degree for facial insufficiency is denied."

It is important to recognize that this decision, while persuasive in other courts, is not a controlling appellate decision. However, the court's thinking was quite clear and convincing. When charged with attempting to sell a prescription drug, it does not matter if the drug was in fact a prescription drug. It would only matter if you were charged with actually selling the prescription drug. In the event you were charged with the actual and completed sale of a prescription drug, then the prosecution would be required to prove or establish the additional element.

Do not forget, however, that even if the complaint is facially sufficient as to one particular charge or even the only charge alleged, there may be other ways to successfully challenge your case. The criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have the experience and command of the law that enables us to identify these potential issues and exploit them for your benefit.

New York criminal defense attorneys are constantly dealing with law enforcement as they continue expanding their arsenal of tools to investigate and prosecute crimes. Whether it be for drug and narcotic sales or forgery and theft related offenses, law enforcement is utilizing these growing number of tools. One example of that technology is the GPS device. GPS devices have given law enforcement another means to track and locate targets and defendants. The question that has been raised, however, is whether or not a GPS device can be placed on a vehicle without first getting a warrant?

Although the Court of Appeals, New York State's highest court, has not yet given a definitive answer on the issue, the Appellate Division, 3rd Department recently did. In People v. Weaver, decided this past June, law enforcement placed a GPS device on a target's van who was believed to be involved in numerous burglaries. This particular GPS devices was battery operated, placed under the vehicle's bumper and attached while the vehicle was parked in a public location.

The 3rd Department found that in this particular case no warrant was needed. Specifically, the Court noted that one's expectation of privacy is generally less when dealing with vehicles as opposed to residences. Moreover, this particular GPS device was battery operated, i.e., it was not hardwired to the vehicle. The GPS device was placed on the exterior of the vehicle (under the bumper) and made no recordings of movement while the vehicle was in a private location (the vehicle was in a public street).

It is important to note that this decision is case specific and not controlling on a court's decision in New York City. The outcome may be different if the GPS device was in fact hardwired to the vehicle's electric system or it was placed inside. Because the Court of Appeals has not decided this issue, applying Weaver to any case does not merely require a legal analysis, but a factual one as well. The former Manhattan prosecutors and criminal defense attorneys at Crotty Saland, LLP, are experienced and ready to conduct this analysis and construct the strongest legal argument on your behalf to protect your rights.

Any NY criminal defense attorney who has “been around the block” even just one time should be able to advise you that one of the key components to Assault in the 3rd Degree, unlike Harassment in the Second Degree, is that you inflict or cause a physical injury to another person. Well, what happens if you strike or hit someone and you don’t bust their lip, give them a black eye or, or cause any pain at all? Guess what…your weakness or their toughness could be a blessing to you!

While you can certainly be charged with Attempted Assault, a “B” misdemeanor punishable by up to 90 days jail, there is another offense lingering out there in the New York Penal Law. That offense is Harassment in the Second Degree. According to NY Penal Law 240.26:

A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Although there are numerous different elements than Assault, one of the most glaring differences is that Harassment in the Second Degree does not require that you cause any physical injury, substantial or otherwise, to the victim. Having established, in general, how the crimes are different, the best part is…if you strike someone and don’t cause any injury (go wimps!) you may be charged with Harassment, merely a violation and not a crime. That is right. Harassment is a violation and not a crime. Although it is punishable by up to fifteen days jail (that doesn’t mean you will get it), no matter what your sentence, you will not get a criminal record as a result. Therefore, a plea to Harassment in the Second Degree will not be an offense where you will ever have to say to an employer, friend or family member that you have been convicted of a crime.

Although Harassment in the Second Degree is not a crime, that does not mean that you should roll over and accept a plea to this offense. Maybe it is an appropriate disposition and maybe it is not, but either way, a full legal analysis and an aggressive criminal defense must be implemented before accepting any deal. The criminal defense attorneys at Crotty Saland, LLP stand ready to do just that and whatever else it take to legally protect your liberty, integrity and rights.

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As I often note, NY criminal defense attorneys must always be aware of decisions by courts where they routinely practice. Without definitive guidance by a higher court, decisions on similar matters can be inconsistent within the same courthouse. This is appears to be the case, in part, in the recent case of People v. David Bula, 2008NY052218. On January 20, 2009, I drafted an entry on People v. Edward Beam. In that case, a New York County Criminal Court Judge agreed with a a criminal defense attorney that the charges against his client for Attempted Tampering with Physical Evidence, Obstruction of Governmental Administration, and other charges were not sufficiently established in the criminal court complaint.

In Bula, the defendant was also charged with Attempted Tampering of Physical Evidence and Obstruction of Governmental Administration. He was also charged with Criminal Possession of Marijuana. Like the Beam case, the police observed the defendant smoking what the believed to be a marijuana cigarette (the "legal" term for a joint or blunt). The defendant passed the alleged marijuana cigarette back and forth with another individual. When the police approached, the defendant was alleged to have thrown the marijuana cigarette into the river. The police recovered a bag of alleged marijuana from the ground near the other individual.

POSSESSION OF MARIJUANA

In finding the complaint against the defendant to be sufficient, the court noted that even though the bag of marijuana was not held or on the defendant's person, the totality of the facts made it clear that he "constructively" possessed the marijuana. Specifically, the court found that "[u]nder the particular circumstances of this case, where the defendant and separately charged individual are alleged to have been smoking what was identified by the deponent officer, based upon his training and experience, as a marihuana cigarette, it is reasonable to infer that the marihuana cigarette was connected to the plastic ziplock bag containing marihuana residue which was recovered from the ground near the separately charged individual's foot. Accordingly, it is further reasonable to infer that the defendant, who was alleged to have physically possessed the marihuana cigarette, exercised dominion and control over the plastic ziplock bag which was the likely source of the marihuana in the cigarette."

Continue reading " NY Judge Finds Charges of Attempted Tampering with Physical Evidence, Marihuana (Marijuana) Possession and Obstruction of Governmental Administration Sufficient " »