New York Criminal Lawyer Blog

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Crotty Saland, LLPs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether "In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law §§ 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?"

The Court answered the question of knowledge by finding that "[a]lthough the statute includes no express element of mental culpability and the offense has often been referred to as a crime of 'strict liability,' existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon."

Even beyond the Court's decision that knowledge is an element of the crime, a review of the jury instructions for the charge of 265.01 as it relates to switchblade knives further illustrates the knowledge requirement. A person is guilty of violating this statute when “that person knowingly possesses any ... switchblade knife.” The jury charge also states that “[a] person knowingly possesses [a switchblade knife] when that person is aware that he or she is in possession of such [switchblade knife]” (CJI 2d N.Y. Penal Law § 265.01[1] ).

Although the First Department's apparently requires that some form of knowledge be established for a conviction of this offense, each case needs to be examined on an individual basis. Whether there is a valid defense or not, your criminal counsel must do his "homework" and ascertain the strongest approach to protecting your rights. This case and others like it may be that defense you are looking for.

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

Another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the "serious physical injury." Unlike mere "physical injury" such as a black eye or bloody cut lip, "serious physical injury" requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause "serious physical injury," but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused "serious physical injury," then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

The nuances of each and every Assault charge in the New York Penal Law are extensive. It would take hours of discussion to go through each. That being said, it is imperative that the time is spent analyzing the specific charges levied against you or a loved one to make sure that the elements of each crime charged are satisfied. The skilled criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP will take the time to conduct this thorough examination and take you through the process in order to present the strongest defense and set forth the most compelling arguments to preserve your rights, liberty and integrity. We know that each case requires this attention and our results speak for themselves.

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The New York State Attorney General and local District Attorney's Offices actively pursue fraud regardless of where it rears it's head. The heath care industry is not immune to such investigations by law enforcement. While numerous different criminal charges may stem from the same transactions, the common theme for fraud involving health care are the misdemeanor and felony crimes of Health Care Fraud in the First (PL 177.25), Second (PL 177.20), Third (PL 177.15), Fourth (PL 177.10) and Fifth Degrees (PL 177.05). While you may have a statutorily recognized defense (see below), the following are the legal definitions for these crimes and ones that you need to familiarize yourself with in the event you are charged with any degree of Health Care Fraud in New York:

PL 177.05 - Health Care Fraud in the Fifth Degree

A person is guilty of health care fraud in the fifth degree when, with intent to defraud a health plan, he or she knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan for a health care
item or service and, as a result of such information or omission, he or she or another person receives payment in an amount that he, she or such other person is not entitled to under the circumstances.

Health Care Fraud in the Fifth Degree is a class A misdemeanor punishable by up to one year a county jail (Rikers Island).

PL 176.10 Health Care Fraud in the Fourth Degree

A person is guilty of health care fraud in the fourth degree when such person, on one or more occasions, commits the crime of Health Care Fraud in the Fifth Degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds three thousand dollars in the aggregate.

Health Care fraud in the Fourth Degree is a class E felony punishable by up to four years in state prison.

Penal Law - 176.15 Health Care Fraud in the Third Degree

A person is guilty of Health Care Fraud in the Third Degree when such person, on one or more occasions, commits the crime of Health Care Fraud in the Fifth Degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds ten thousand dollars in the aggregate.

Health Care Fraud in the Third Degree is a class D felony punishable by up to seven years in state prison.

Penal Law -176.20 Health Care Fraud in the Second Degree

A person is guilty of Health Care Fraud in the Second Degree when such person, on one or more occasions, commits the crime of Health Care Fraud in the Fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds fifty thousand dollars in the aggregate.

Health Care Fraud in the Second Degree is a class C Felony punishable by up to fifteen years in state prison.

Penal Law 176.25 - Health Care Fraud in the First Degree

A person is guilty of Health Care Fraud in the First Degree when such person, on one or more occasions, commits the crime of health care fraud in the fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds one million dollars in the aggregate.

Health Care Fraud in the First Degree is a class B felony punishable by up to twenty-five years in state prison

Clearly, the New York State Legislature believes that any type of fraud involving health care is a serious offense. That being said, they also provided within the statute an "affirmative defense." Pursuant to Penal Law 176.30:

In any prosecution under this article, it shall be an affirmative defense that the defendant was a clerk, bookkeeper or other employee, other than an employee charged with the active management and control, in an executive capacity, of the affairs of the corporation, who, without personal benefit, merely executed the orders of his or her employer or of a superior employee generally authorized to direct his or her activities.

While this defense may not apply to your particular set of facts and circumstances, that does not mean a valid and legitimate defense does not exist. Therefore, contact experienced criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland, LLP, to protect your rights, liberty and integrity.

Plaxico Burress, the former All-Pro wide receiver for the New York Giants, pleaded guilty in Manhattan Supreme Court today to Attempted Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 110/265.03. Although Burress had been facing a minimum of 3.5 years in state prison, prosecutors agreed to offer a lighter sentence of 2 years in state prison followed by 2 years of post-release supervision.

Despite Burress' best efforts for "jury nullification," a Grand Jury indicted him for an offense that did not require any intent to commit a crime. In other words, his mere possession of the loaded firearm outside his home or place of business without a permit would have landed him behind bars for up to 15 years. From a legal standpoint, although the minimum sentence on a plea was 3.5 years, by allowing Burress to plea to the attempted crime, as opposed to the actual completed crime, reduced the offense from a "C" violent felony to a "D" violent felony. Under New York law, a sentence of 2 years is a legal disposition for "D" violent crimes. Additionally, the term of post release supervision is mandatory regardless of which offense he pleaded to.

The Manhattan District Attorney's Office certainly did not treat Burress as the hometown hero. At the same time, he wasn't treated more severely than any other denizen of the city under the same set of circumstances. If, for example, the police merely arrested Burress for carrying a loaded firearm licensed outside of the state or the police arrested him for possessing a gun with an out of state permit locked away in a case to check at an airport, then a 2 year sentence would certainly be very harsh and arguably unjust. Under those examples, a defendant may take a felony plea, but a criminal defense attorney may be able to negotiate a misdemeanor deal as well. While not typical, people charged with the same or similar crimes have even avoided a criminal conviction all together if there are enough mitigating factors.

Burress' case, while the same technical crime, is clearly distinguishable from those circumstances. Here, Burress not only possessed a loaded firearm without a permit in New York, but his permit lapsed out of state. To ratchet up the severity of this offense even further, he endangered the lives of others by inadvertently firing the gun inside a nightclub. Unfortunately, these facts along with the injury he suffered compounded the situation and elevated the gravity of the offense in the eye's of the prosecution.

This case highlights the severity and seriousness of crimes involving guns. While each case is unique, if you possess a loaded firearm without a permit while you are walking the streets of New York you are putting yourself in grave danger with the law. Mitigating circumstances may reduce the crime or the sentence, but as Burress knows all too well, even the best attorneys may not be able to save you from yourself.

Crotty Saland, LLP, a white collar criminal defense firm located in Manhattan, is pleased that we were able to assist another client in obtaining closure to a pending criminal case while preserving her liberty. Our client was charged with Grand Larceny in the 3rd Degree, pursuant to New York Penal Law 155.35, and faced up to seven years in prison for her alleged involvement in a "paper case." Prosecutors claimed that our client made unauthorized purchases using company credit cards totaling approximately $25,000.00. After reviewing the documents associated with the alleged felony theft, we were able to work out a disposition with prosecutors that departed far from the original accusation. Although the negotiations took some time, our client ultimately pleaded to a misdemeanor and stayed out of jail. Moreover, there was no probation or community service associated with her plea. Considering the real possibility of a felony criminal record and a term of incarceration, our client could not have been happier with the results.

While Crotty Saland, LLP cannot guarantee any particular result and each case must be handled differently, our experience as both former Manhattan prosecutors under Robert Morgenthau and as New York criminal defense attorneys gives us the experience, knowledge and understanding of the criminal justice system to ascertain and implement the best plan of attack to preserve our client's rights, integrity and freedom.

Regardless of the particular misdemeanor you are accused of perpetrating, it is imperative that you obtain the assistance of an experienced New York criminal defense lawyer to guide you through the process, analyze the case and set forth particular defenses. While it may not be apparent to you, your best defense might be right in front of you. In the case of People v. Buchy, a Westchester County Village Justice found that he needed to look no further than the document right in front of him. Fortunately for Mr. Buchy, the information against the defendant contained hearsay and the court dismissed the complaint.

By way of background, Criminal Procedure Law section 100.40(1)(c) sets forth the requirement that an information (the written complaint against the accused) must contain "[n]on-hearsay allegations of the factual part of the information, and/or of any supporting depositions [to] establish, if true, every element of the offense charged and the defendant's commission thereof." In other words, if the facts are established with hearsay, the case must be dismissed.

In the Buchy case, the information alleged that the defendant perpetrated Aggravated Harassment after he called the complainant and left a threatening message. However, the call was made from a blocked number and the complainant could not identify the caller. It was not until a detective obtained phone records and informed the complainant who the caller was, that the defendant was identified. This fact was set forth in the the body of the information.

As a result, the court dismissed the case and found that:

"The identity of the caller was a fundamental element of the charge. Because [the complainant's] statement concerning the identity of the caller was based on hearsay, the detective's quoted statement in the supporting deposition, the information does not comply with CPL 100.40 (1) (c). The People's contention that the detective's knowledge came from phone business records which are admissible as business records at trial, does not overcome the fact that the imparting by him of that knowledge to [the complainant] constituted hearsay.

While each case requires its own unique factually and legal analysis, this particular case make it overwhelmingly clear that an experienced legal review is often necessary to identify the holes in a case. While the facts may have been strong and clearly against the defendant, the information failed to set forth the legal requirements establishing sufficiency. If you find yourself or a loved one accused of any offense, let the former Manhattan prosecutors at Crotty Saland, LLP work with you to protect your rights, freedom and integrity.

Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone's lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it...accomplice liability.

Under New York law, one is liable for the acts of another when:

"When one person engages in conduct which constitutes an offense [Assault in the third Degree in our hypo], another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

To flesh this out a little, I will address this statute and concept in practical terms and in connection with a recent Manhattan Criminal Court decision. In People v. Sean Everson, 2009NY005871, decided, July 21, 2009, an information alleged that the defendant and others surrounded the complainant preventing him from leaving the location of the incident. Another individual, not the defendant, then struck the complainant in the stomach causing substantial pain. The defendant, however, did not strike the complainant.

The criminal defense attorney in Everson argued that the information or complaint was facially insufficient because it did not identify the defendant as the person who intentionally struck and injured the alleged victim. More specifically, the defendant claimed that there was "no causal connection between the alleged assault and the defendant's conduct of surrounding" the complainant. Furthermore, the attorney argued that the information was not facially sufficient because it did not set forth that "the defendant surrounded the informant with the intent of causing physical injury, or that the defendant's actions enabled or encouraged the unapprehended individual to assault" the complainant. Unfortunately for Mr. Everson, the court disagreed.

The courts reasoning after the jump...

Continue reading " Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00) " »

Crotty Saland, LLP, a top New York criminal defense firm based in Manhattan, is pleased to announce that once again one of our criminal defense attorneys has been sought out for his perspective and expertise regarding a current legal matter. Over the past year, our criminal defense lawyers have been featured on the CBS Evening News, Sports Illustrated Online, New Jersey Times-Ledger, AM-NY, Vault.Com and Associated Press. Jeremy Saland, one of our criminal defense lawyers and a former Manhattan prosecutor, commented on the devastating and horribly sad incident involving Diane Schuler. Specifically, the Associated Press questioned why the family now challenges the medical examiner's findings that Mrs. Schuler had a significant amount of alcohol and some drugs in her system. As most of the public is aware, Mrs. Schuler's alleged drunk driving along New York's Taconic State Parkway resulted in the death of her child, her nieces and three men in another vehicle.

Mr. Saland explained that it was highly unlikely any criminal charges would be brought against Mrs. Schuler's husband. Yet, it is likely that the family is challenging the findings by the medical examiner for two main reasons. The first may stem from their concerns that Mrs. Schuler's estate and assets may be subject to damages on a civil suit in the event one is commenced. Although insurance may cover those damages, if the family can dispute the findings of the medical examiner and establish that the accident was the result of an unknown medical condition, for example, the family may be able to defend against a potential law suit. Moreover, the family also would like to clear their name and dispute the findings that Mrs. Schuler callously killed her daughter, nieces and three other men while driving drunk.

Regardless of the outcome, this incident is one of the saddest stories in recent history and a wake up call to anyone who would consider getting behind the wheel of a car while intoxicated.

NY Criminal defense attorneys are confronted regularly with the reality that possessing or selling "drugs" can mean vastly different things depending on the substance. The disparity between possessing and selling marijuana and controlled substances such as cocaine, crack and heroin is enormous even though the NYS legislature recently eased the Rockefeller Drug Laws. Clearly, and arguably correctly, the legislature has deemed Criminal Possession or Criminal Sale of Marijuana ("Marihuana" in the statute), pursuant to NY Penal Law sections 221.10 and 221.40, as less dangerous or harmful to public safety than Criminal Sale of a Controlled Substance pursuant to NY Penal Law 220.39 and 220.44.

A great example of this disparity is illustrated in the following scenario. If you are arrested and a small bag of marijuana clearly for personal use is recovered from your pant pocket, you will like face the charge of Unlawful Possession of Marijuna. Baring the amount of marijuana exceeding twenty five grams, a charge of Unlawful Possession of Marijuana is a violation and not a crime. While it is possible to be sentenced up to fifteen days in jail, if it is your first offense you are eligible to receive a Marijuana ACD. If that is the disposition, then in one year the case would be dismissed and sealed assuming you did not get into any further trouble. In the alternative, even if you were convicted of the Unlawful Possession of Marijuana, you would not have a criminal record as a result.

On the other end of the spectrum, if the substance found in your pocket was one tin of heroin or a baggie of cocaine or crack - or even a stem/pipe with residue - you would face the charge of Criminal Possession of a Controlled Substance in the Seventh Degree pursuant to NY Penal Law 220.03. A conviction for this offense would not only result in a misdemeanor, but is punishable by up to one year in jail.

Following each of the statutes into the arena of larger quantities, if you were to possess in excess of ten pounds of marijuana you would face a maximum of fifteen years in state prison. However, the offense, Criminal Possession of Marijuana in the First Degree, does not have a mandatory minimum sentence. Therefore, a judge could, if he or she wished, even sentence you to probation. If you possessed the same quantity of cocaine the crime would be the "A" felony offense of Criminal Possession of a Controlled Substance in the First Degree. Even if you were a first time offender, the minimum sentence you would face would be eight years and the maximum term of imprisonment would be twenty years.

I could list the disparities and the differences between charges involving marijuana and controlled substances in entry after entry. But the point is clear. While possessing or selling marijuana is a serious offense, the same or similar actions involving other drugs is significantly more severe. If you find yourself or a loved one accused of perpetrating such crimes, the best way to avoid compounding a dangerous situation is retaining experienced criminal counsel to guide you through the process and implement the strongest defense available.

Las Vegas is a lot of fun, but according to the Queens County District Attorney's Office, what happens in Vegas, stays...out of Queens. According to the Queens District Attorney's Office, thirteen men were arrested and indicted for charges relating to gambling including Enterprise Corruption, Promoting Gambling in the First Degree, Money Laundering in the Third Degree and Conspiracy in the Fifth Degree. If convicted of Enterprise Corruption, the defendants face up to twenty five years in prison.

According to the Queens DA's Office, the 86 count indictment alleges that the defendants ran an offshore wire room in Costa Rica which was accessible through a toll free number as well as a website - www.perfectwager.com. Bets were placed as low as $200 and as high as $4,000 for a single game.

In addition to the arrests of Michael Mildenberger, James A. Rossi, Carmen V. Cicalese (not in custody at this time), Anthony Acierno, Michael M. D’Angelo, Peter P. D’Angelo, William E. Jennings, Robert E. Degiacomi, John J. Marino, Gene Panariello and Joseph R. Sofia, law enforcement officials have reported that they seized nearly $400,000 in cash from various locations as well as a Mercedes Benz, Lincoln Navigator and a Lincoln MKS.

District Attorney Brown said, “Illegal sports betting reaps millions of dollars in cash profits that are easily diverted to more insidious criminal enterprises. These are not victimless crimes. In fact, participants often use threats, intimidation and even physical force to collect debts. Today’s indictments will send a clear signal that when it comes to illegal gambling in Queens County, all bets are off.”

As New York City criminal defense attorneys and former Manhattan prosecutors, we at Crotty Saland, LLP recognize that these defendants face not only serious charges, but the results of an investigation that utilized both state and federal law enforcement. However each of these defendants determines they should proceed, it is likely that the next few days will be critical in both ascertaining and implementing their respective defenses.

Now that the Manhattan Grand Jury has voted an indictment in the gun possession case against Plaxico Burress, Burress and his attorney only have a few ways for him to avoid any jail at all. While this is a highly unlikely scenario (like any New Orleans Saints team winning the Super Bowl), outside of "jury nullification," some legal analysts and attorneys believe that another means for Burress to attack the Criminal Possession of a Weapon charge can be found in the United States Supreme Court's decision in District of Columbia v. Heller. In that decision, the United States Supreme Court found that individuals had a constitutionally protected right based in the Second Amendment to possesses firearms even if a local DC ordinance implementing a ban on guns said otherwise. Sounds great for Burress, right? Well...not so fast.

The United States Supreme Court decision in Heller slapped down a particular ordinance in the District of Columbia that amounted to a ban on arms. As noted in a decision published today in People v. Kenneth Kirby, a Suffolk County District Court judge found that:

"New York State Penal Law §265 under which the Defendant is charged does not effect a complete ban on handguns but rather has in effect a licensing requirement to legally possess a handgun (see, PL §265.20[a][3]). In the matter at hand, the Defendant traveled from Texas with a handgun allegedly given to him by his grandfather for the purposes of self-protection. It is further alleged the Defendant does not possess a valid New York State license to possess a handgun in his residence in New York. Licensing is an acceptable regulatory measure and unless one holds a license to so possess in New York, possession of a firearm remains a criminal act."

Well, if the Brooklyn decision involving Heller was first down, the Suffolk decision was second down, Burress may go for it again with Heller on third down in Manhattan Supreme Court. Unfortunately, the United States Supreme Court has already found that the Second Amendment does not bind the states and does not represent an unlimited right.

This is looking like fourth and long.

Robert Morgenthau has a well coached team. He certainly had an advantage out of the gate with a lot of “Division I” prosecutors. When it came time to hit the field, his pass rush was relentless and his secondary was all over Plaxico Burress. In fact, Burress didn’t stand much of a chance of corralling in the “long ball” of "jury nullification." Did Burress fumble before a Manhattan Grand Jury or was his quarterback sacked before he could toss the ball the distance of the field? I don’t know. I wasn’t there. Regardless, the Manhattan District Attorney’s Office has a “Giant” lead going into the fourth quarter and I don't believe that Burress will display any game winning heroics.

So what happened? What kind of second half should we expect?

As I explained to Sports Illustrated Online, when Burress testified he attempted to sway the Grand Jury to not just understand how he lacked any criminal intent, was remorseful and the firearm was legally purchased/possessed in another state, but that the Grand Jury should disregard that law. This is the concept of "jury nullification." Unfortunately for Burress, the law of Criminal Possession of a Weapon is quite clear. Criminal intent is not an element of NY Penal Law 265.03(3). Let me make that clear in case you missed it or I stuttered…Criminal intent is not an element of NY Penal Law 265.03(3). That's right, merely possessing a loaded firearm outside one’s home or place of business and without a permit to do so is a “C” violent felony punishable by a minimum of 3.5 years and a maximum of 15 years in prison.

There have been some attorneys who believe Burress did the right thing by testifying in the Grand Jury. One self impressed legal blogger even boldly exclaimed that Burress' attorney “nailed” it (boy was he foolish...I hope he has never told a client that "he nailed it" before!). If it worked and Burress had convinced the Grand Jury that an indictment was not the best route, his attorney would certainly be covered in Gatorade right now.

The countless coaches of the criminal courts can argue whether the strategy to put Burress in the Grand Jury was the right decision, but I think it is fair to say that in Burress’ case, once negotiations fell apart, what was his choice? Take two years or try to beat the case in the Grand Jury. Arguably, from a career perspective, how could Burress not have fought the case? 3.5 years or 2 years to his football career may have been a permanent termination of his contract, a/k/a, career, either way. That being said, if he recognized the gravity of the evidence against him and had taken responsibility early, he would have served a significant portion of his time already. While I am confident Burress and his attorney grasp the strength of the case, I am also confident they recognize what is/was at stake. For all of us reading this article and surfing the web…it’s much easier to play armchair quarterback then actual quarterback.

So where does this leave Burress? The prosecution may or may not re-offer the 2 years now that the Grand Jury has indicted him. As a prosecutor in Manhattan for 7 years I rarely, if ever, made the same offer post-indictment. Even it was re-made, Burress might reject it anyway. His attorney will certainly attack the case legally: Was the Grand Jury proceeding defective? Although it is not likely, do New York’s weapon statutes go too far as to fly in the face of the Second Amendment as we saw in the District of Columbia v. Heller (In Heller, the District of Columbia’s ban on an entire class of arms was found to be unconstitutional. A Brooklyn Supreme Court Judge recently found that the decision had no bearing on the New York statute)?

Maybe Burress can convince a trial jury he is remorseful and he lacks any criminal intent. As noted (again!), however, criminal intent is not an element. Even so, he may argue that he is an athlete, had a “bull’s eye” on his back and only had the gun for self defense. I mean, he is Plaxico Burress! As compelling as that sounds, if I still had on my “prosecutor hat” (they took it from me along with my “get out of jail free card” when I resigned), I would have a field day with this argument.

Is it Burress’ position that if you are an athlete, in the public eye, drive a nice car, have nice jewelry, etc. you should be held to a different standard (can someone say “ego?”)? Is there a “reasonable person standard” that dictates your “average Joe” can’t carry a gun if he wears Gap jeans and drives a Honda unless he has a permit, but an “affluent person standard” that states that if you are famous, drive a Mercedes or have some “bling,” you don’t need a permit? Moreover, if he was so concerned and affluent, what was he doing out without security or why didn’t he apply for a permit like everyone else who legally carries a firearm in NYC?

Taking this argument further, Burress likely argument is that he would only have used the gun if he was confronted or put in real imminent and life threatening danger. Yet, who would establish this level of danger? If two men approached him merely with their fists and said “give us your earring,” could he respond with the force of a firearm? Is that a legal self defense? Obviously, this is a bare bones assessment and brandishing or using a firearm may ultimately constitute a legal self defense under the right set of facts, but a hypothetical situation that never could truly be answered unless it actually happened.

Only time will tell us what happens to Burress’ freedom and future. He will be arraigned in Manhattan Supreme Court on the indictment. His attorney will file a motion or motions to challenge the Grand Jury proceeding and to make other legal arguments. I would anticipate that behind the scenes the conversations will still take place as to plea deals. It may take four, five or six months before we find out whether Burress’ attorney was successful with his motions or the case becomes one of the trials of the decade and Burress the unfortunate central protagonist in a ready-made Law and Order special.

The game is not over...yet. We have only reached half time. Burress has a tremendously skilled attorney and advocate. In fact, one of the best. But I'll tell ya' what...I wouldn’t want to be in Burress’ cleats right now.

Whether you are arrested and charged with Petit Larceny (NY Penal Law 155.25) or Criminal Possession of Stolen Property (NY Penal Law 165.40) for shoplifting, you need to consult with a New York criminal defense attorney about People v. Lai Lee. It does not matter if you have been issued a Desk Appearance Ticket (DAT) or you have already been arraigned by a judge. Moreover, it does not matter where in New York City your case is pending from Manhattan Criminal Court at 100 Centre Street to Brooklyn Criminal Court at 120 Schermerhorn Street. What matters is that you put yourself in the best position possible to protect your rights and integrity by consulting with an experienced criminal defense lawyer about your case and whether certain legal decisions, such as ruling in People v. Lai Lee, may be used in your defense.

In a recent decision dated July 2, 2009, a Manhattan Criminal Court judge dismissed the shoplifting, Petit Larceny and Criminal Possession of Stolen Property charges that the defendant faced. The complaint alleged that a store investigator observed the defendant remove a handbag, tights and other clothing by "placing said items inside the defendant's bag." The defendant then walked past multiple open registers and moved to another floor of the store without paying for the items. The defendant was stopped and investigator recovered just under $1000 worth of clothing from the defendant's handbag.

The defendant argued that a description of the defendant's handbag was necessary to establish concealment. Moreover, the defendant asserted that moving floors and around the store "...fail[ed] to support that she exercised dominion and control wholly inconsistent with the continued rights of the owner, inasmuch as, the alleged facts fail to establish larcenous conduct supporting the allegation that she did not intend to pay for the items, such as her walking towards the exit or other conduct inconsistent with the continued rights of the owner."

Further analysis after the jump...

Continue reading " NY Criminal Defense Law Update: New Court Decision May Help Those Arrested for Shoplifting (Petit Larceny - 155.25) in New York City " »