New York Criminal Lawyer Blog

The Queens County District Attorney's Office has announced the arrest of a bus driver charged with DWAI (VTL 1192.1), Reckless Endangerment (NY Penal Law 120.20) and Attempted Endangering the Welfare of a Child (NY Penal Law 110/260.10) after an assistant principal at the school allegedly noticed the smell of alcohol on the bus driver's breath. It is further alleged that the bus driver, Lakhram Omwathatth, was unsteady on his feet and had watery-bloodshot eyes. Making matters significantly worse and compounding an already terrible situation, it is alleged that five students were on the bus waiting to be driven from school. That being said, it appears that Mr. Omwathatth had driven the bus to school without the students and was arrested prior to leaving with them. Mr. Omwathatth blew a .037 on the intoxilyzer, well below the legal limit. He is further alleged to have stated that he consumed Nyquil and a "non-alcoholic Dr. Pepper."

I don't think that anyone could disagree with District Attorney Richard Brown's statement regarding the importance of protecting children. DWI is one of the most serious crimes with horrific consequences to innocent victims. Moreover, DWI is a preventable crime with some common sense and responsibility. However, regardless of how horrendous the situation may be, i.e, the presence of children in a school bus, the prosecution still has the legal burden of proving a case beyond a reasonable doubt. In this particular case, I believe the prosecution has stretched to find an applicable "A" misdemeanor to charge the defendant with.

Before going into the brief analysis, it is important to note that VTL 1192.1 is not a crime, but a traffic infraction. A conviction of this offense will result in a fine and potentially a couple weeks in jail at worst (very rare), but no criminal record. Moreover, 110/260.10, Attempted Endangering the Welfare of a Child, is a "B" misdemeanor punishable by up to 90 days in jail. Clearly, and understandably, because this case involves children both directly and indirectly, the prosecution wanted a larger hammer. Therefore, Reckless Endangerment (NY Penal Law 120.20), a class "A" misdemeanor punishable by up to 1 year in jail, is that hammer.

Read more after the jump...

Continue reading " Bus Driver Arrested in Queens with Kids on Bus: Charged with Reckless Endangerment & DWAI " »

Chubb, Kemper, Allstate, Geico…the name of the insurance company makes no difference at all. It is your actions, regardless of the insurance provider, that may land you in an upstate prison cell for perpetrating Insurance Fraud. As we at Crotty Saland, LLP have said time and time again, we are available to assist our clients day or night. That being said, your best defense is not necessarily a top criminal defense firm, but knowing the law and keeping yourself from needing a New York criminal defense attorney in the first place.

Before dissecting the penal law, the following are some important definitions that are the basis to the charge of Insurance Fraud:

Section 176.05 Insurance fraud; defined

1. A fraudulent insurance act is committed by any person who, knowingly and with intent to defraud presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer, self insurer, or purported insurer, or purported self insurer, or any agent thereof, any written statement as part of, or in support of, an application for the issuance of, or the rating of a commercial insurance policy, or certificate or evidence of self insurance for commercial insurance or commercial self insurance, or a claim for payment or other benefit pursuant to an insurance policy or self insurance program for commercial or personal insurance which he knows to: (i) contain materially false information concerning any fact material thereto; or (ii) conceal, for the purpose of misleading, information concerning any fact material thereto.

2. A fraudulent health care insurance act is committed by any person who, knowingly and with intent to defraud, presents, causes to be presented, or prepares with knowledge or belief that it will be presented to, or by, an insurer or purported insurer or self-insurer, or any agent thereof, any written statement or other physical evidence as part of, or in support of, an application for the issuance of a health insurance policy, or a policy or contract or other authorization that provides or allows coverage for, membership or enrollment in, or other services of a public or private health care plan, or a claim for payment, services or other benefit pursuant to such policy, contract or plan, which he knows to:

(a) contain materially false information concerning any material fact thereto; or

(b) conceal, for purposes of misleading, information concerning any fact material thereto.

Such policy or contract or plan or authorization shall include, but not limited to, those issued or operating pursuant to any public or governmentally-sponsored or supported plan for health care coverage or services or those otherwise issued or operated by entities authorized pursuant to the public health law. For purposes of this subdivision an “application for the issuance of a health insurance policy” shall not include (a) any application for a health insurance policy or contract approved by the superintendent of insurance pursuant to the provisions of sections three thousand two hundred sixteen, four thousand three hundred four, four thousand three hundred twenty-one or four thousand three hundred twenty-two of the insurance law or any other application for a health insurance policy or contract approved by the superintendent of insurance in the individual or direct payment market; and (b) any application for a certificate evidencing coverage under a self-insured plan or under a group contract approved by the superintendent of insurance.

The statutes for Insurance Fraud after the jump (notice how the Insurance Fraud statute mimics the loss element of the Grand Larceny statute)…

Continue reading " New York White Collar Crime: Insurance Fraud in the Fifth Through First Degree (NY Penal Law 176.10 – 176.35) & Your Criminal Defense " »

As I have explained to my readers numerous times in the past, mere possession of a loaded firearm outside your home or place of business without a permit is punishable as a "C" violent felony. This offense carries a minimum sentence of three and one half years in state prison if that possession is without a license and the district attorney does not make you an offer. Whether you mistakenly brought the gun to New York from a state you had a license thinking it was legal (give Plaxico Burress a ring on that) or you knowingly had a stolen revolver, the potential crime is the same. However, consult with your NY criminal defense attorney because this charge, while more severe than other crimes, is not the only charge you may face.

Pursuant to Penal Law section 265.02, you can be charged with a "D" violent felony punishable by a minimum of two years and up to seven years in state prison for possessing an unloaded firearm. Specifically, a person is guilty of Criminal Possession of a Weapon in the Third Degree when such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun. This crime does not require that the gun be loaded.

According to the Penal Law, "Deface" means to remove, deface, cover, alter or destroy the manufacturer's serial number or any other distinguishing number or identification mark. It does not matter whether the numbers are changed or scratched out.

To make matters worse and as I have noted in an earlier entry, according to Penal Law section 265.15, the possession by any person of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that such person defaced the same.

If you have been arrested or charged with a crime relating to possessing a weapon, contact the former Manhattan prosecutors and criminal defense attorneys at Crotty Saland, LLP.

Follow Crotty Saland, LLP on Twitter at DefenseLawyerNY.

Attorney General Andrew Cuomo announced the arrest of eight more individuals in connection to the insurance fraud ring known as the "Levy Enterprise." Seven of the people charged are hospital employees who allegedly obtained personal information of patients. The employees then sold this information or received bribes to share the information. The information was then allegedly used by third parties "to lure patients into receiving unnecessary treatment and then submit over a million dollars in phony personal injury claims to insurance carriers." The eighth person, an attorney, is also alleged to have perpetrated this scheme.

According to the Attorney General:

"The Levy Enterprise would then use the information to lure motor vehicle accident victims to corrupt medical clinics, where medical personnel would submit fraudulent claims for unnecessary medical treatment and the attorneys would file bodily injury lawsuits, all to turn a profit for themselves."

William R. Hamel (an attorney at Dinkes and Schwitzer) is charged with Bribery in the Third Degree, in violation of Penal Law § 200.00. Bribery in the Third Degree is a class D felony punishable by up to seven years in prison.

Pradhudial Balkaran (a hospital employee at Lincoln Medical and Mental Health Center), Franklin Martinez (a hospital employee at Lincoln), Vanessa Marte, (a hospital employee at Lincoln), Natasha Samuels (a hospital employee at Lincoln), Benito Figueroa (a hospital employee at Lincoln), Odalis Caraballo, (a hospital employee at Lincoln) and Kenton Wright (a hospital employee at Jacobi Hospital) are charged with Bribe Receiving in the Third Degree, in violation of Penal Law § 200.10 . Bribe Receiving in the Third Degree is a class D felony punishable by up to seven years in prison. Moreover, these defendants are charged with the A misdemeanor, punishable by up to one year in jail, of Official Misconduct pursuant to New York Penal Law § 195.00.

Credit card card debt can dig you down into a whole that you cannot escape from. However, instead of declaring bankruptcy, there are alternatives ways to settle, manage or consolidate your credit card debt.

Recently, a client came into the office regarding a balance of $26,970.30 that he had outstanding on a credit card. Each month the minimum payment was escalating due to punishing interest rates on his balance. Not only was he unable to make the payments, he also had been using his deceased mother's credit card. The credit card company was in the "driver's seat" because not only was the client in mounting debt, but if he did not pay they could have reported his activities to law enforcement. It is one thing to not have the means to make payments, but it is another to be using a deceased individual's credit card.

Despite the predicament the client was in, through aggressive advocacy and negotiations, the credit card company agreed to reduce the balance owed by $9,000. Not only that, the credit card company stopped interest from accruing on the credit card and gave the client three years to make payments. In other words, the client not only got a reduction in the principle, but there would be no penalty or increase during the three years he would have to pay it off. At $500 dollars a month, the client could make the payments, avoid bankruptcy or collections, and continue to live his life. Even more importantly, the credit card company agreed not to report and alleged improper or criminal activity. While no attorney can make a guarantee other than their hard work, it is likely an even more than $9,000 could have been reduced from the principle if the client had not been wrongfully using another person's credit card.

If you find yourself in credit card debt, contact Crotty Saland, LLP so we can work with you to reduce principle, stop creditors from calling and arrange for a realistic payment plan that lets you continue to live your life.

A year long Westchester County investigation ended in the arrest of 21 people for their alleged involvement in the sale and transportation of untaxed cigarettes. It is alleged that during the course of the investigation, the defendants purchased $16 million worth of unstamped cigarettes from undercover officers. It is further alleged that a confidential informant assisted in targeting numerous individuals whose total sales and purchases exceeded nine million unstamped cigarettes. These illegal transactions equated to a New York State cigarette excise tax stamp fraud of approximately $21 million.

According to the Westchester County District Attorney's Office:

New York State imposes an excise tax on cigarettes in the amount of $2.75 per pack of twenty cigarettes. Additionally, New York City is permitted to impose an additional $1.50 per pack, bringing the total combined tax rate to $4.25.New York State collects the cigarette tax through the sale of tax stamps, which are sold to licensed New York State stamping agents. An agent must affix the stamps to packages of cigarettes in order for those packages to be sold in New York State. The stamping agent can then sell the cigarettes to wholesale or retail businesses.To circumvent the excise taxes, and earn more profit on cigarette sales, some cigarette dealers illegally purchase unstamped cigarettes from unauthorized sources.

The defendants - Ali M. Abadi, Ibrahim A. Ahmad, Mohamed Ahmed, Omar Nagib Ali, Ibrahim Althnaibat, Jamil H. Alzokari, Mohamed A. Benkhiyar, Ahmad Aldabesheh, Yin Sin Wu, Obrero Barrio, Andre Ford, Ronald Everett, Przaemyslw S. Holynski, Alou Keita, Mohamed Lemine Ould Sidi, Henry Polanco, Abdo Quhshi, Norman A. Saif, Mohamed O. Salick, John Taveras and Ri Q. Wu are facing significant prison with a mandatory minimum term of incarceration. The offenses are as follows:

Criminal Tax Fraud in the First Degree, a B felony punishable by a minimum of 1 to 3 years and a maximum of 8 and 1/3 to 25 years. Criminal Tax Fraud in the Second Degree is a C felony punishable by no incarceration and up to 15 years. Criminal Tax Fraud in the Third Degree is a D felony punishable by no incarceration and up to 7 years. The dollar amount associated with these offenses closely tracks, but not precisely, the Grand Larceny statutes in relation to monetary loss. For example, like Grand Larceny in the First and Second Degrees, Criminal Tax Fraud in the First and Second Degrees requires, among other things, a fraud of $1 million and $50,000 respectively.

Time will tell what happens with these defendants and whether they put forth their best defense. Whatever they determine their strongest defense might by, they should implement that plan before they compound their already precarious situation.

According to New York Penal Law §215.40(2), a person is guilty of Tampering with Physical Evidence when "[b]elieving that certain evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person." New York criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland, LLP, can tell you that this crime is often charged as Attempted Tampering with Physical Evidence in an all too common scenario played out on the streets of New York City when a person discards contraband (marijuana, cocaine, heroin or even a weapon such as a knife or gun) after being confronted by the police. The question that exists in these cases is must the complaint charging the individual establish the officer's knowledge as to what the evidence is as well as the basis of that knowledge?

In a decision rendered on July 8, 2009 in Manhattan Criminal, People v. Anthony Estrada, 2009NY005091, a man was alleged to have thrown marijuana leaves up into the air as the police attempted to arrest him. As a result, the the officer was unable to recover the alleged contraband. In dismissing the complaint, the court found, among other things, that the officer did not establish that the substance in question was marijuana.

A full review of the court's decision after the jump...

Continue reading " Attempted Tampering with Physical Evidence (New York Penal Law §110.00/215.40): Does the Complaint Need To Establish the Existence of the Contraband? " »

As a former Manhattan prosecutor and a founding white collar criminal defense lawyer at Crotty Saland, LLP, I can confidently assert that District Attorney's in NYC vigorously pursue all crimes. However, the reality of the financial crisis lends credence to the argument that white collar crimes, such as Money Laundering, are appealing targets of law enforcement due to the potential asset forfeiture or fines that can be levied against defendants. In the realm of Money Laundering, pursuant to NY Penal Law Sections 470.05, 470.10, 470.15 or 470.20, prosecutors have the ability, based on statutes, to "disgorge" those convicted of this crime. In fact, pursuant to NY Penal Law Section 470.25, individuals convicted of Money Laundering can be fined in a significant amount in addition to other penalties including terms of state prison.

According to New York Penal Law Section 470.25(1) a person convicted of Money Laundering under New York Penal Law Sections 470.05, 470.10, 470.15 or 470.20, may be sentenced to pay a fine up to "two times the monetary instruments which are the proceeds of specified criminal conduct." It is the court that makes the finding or determination as to the value of the monetary instrument(s).

In determining how much a fine should be, the courts may examine many factors including:
(1) the seriousness of the conduct, (2) whether the amount of the fine is disproportionate to the conduct in which the defendant is engaged, (3) the crime's impact on the victims, and (4) the economic circumstances of the convicted person including the effect of the imposition of such a fine on the convicted person's family.

It is important to note that according to NY Penal Law Section 470.25(2), that a fine levied against an individual based on NY Penal Law Section 470.25(1), "shall preclude the imposition of any other order or judgment of forfeiture or fine based on the same criminal conduct."

In the past year alone, the Manhattan based criminal defense firm of Crotty Saland, LLP has represented a significant number of professionals including physicians, nurses, teachers and architects in addition to lawyers and individuals employed in finance. For many of these professionals, there are serious issues that may arise from a criminal case beyond the potential of incarceration.

For certain professionals, New York State requires that they certify and meet licensing requirements. The Office of the Professions is a tremendous source of information and includes applications that may be downloaded for re-certification and licensing. Even if you do not need to re-certify, you and your attorney can review the applications for particular professions to ascertain what is an acceptable disposition for your case as it relates to your career. It is important to note, however, that these licensing requirements are not the only place you should look. If, for example, you are employed by a hospital, that hospital may have additional reporting requirements relating to arrests and/or convictions. Therefore, it is imperative to not only review the information retrieved from the Office of the Professions website, but the literature, contracts, and licensing requirements from you specific employer.

After the Court of Appeal's recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the "policy" that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant's constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys at Crotty Saland, LLP believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

In People v. Pernell Nunn, docket number 2009KN030910, decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether "the exercise of the court's discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant's constitutional right to due process?"

The answer and the case after the jump...

Continue reading " NY Penal Law 220.03, 221.10 and 221.40: Is a Laboratory Analysis or a Field Test Needed to Convert a Drug Complaint at Arraignment? " »

Throughout New York City, from Manhattan and the Bronx to Queens and Brooklyn, prosecutors have seen an enormous increase in crimes relating to Identity Theft pursuant to New York Penal Law sections 190.78, 190.79 and 190.80. This increase in related crimes has resulted in extensive investigations and indictments of single individuals as well as global organizations such as the Western Express Cybercrime Group and its members Viatcheslav Vasilyev, Vladimir Kramarenko, Egor Shevelev, Dzimitry Burak and Oleg Kovelin. As a former Manhattan prosecutor who was the most senior ADA assigned to the Identity Theft Major Case Section upon that unit's creation, I not only have extensive experience prosecuting and building cases against those accused of Identity Theft crimes, but representing those charged with these offenses as well. Before discussing scenarios involving these offenses, this entry will deal specifically with the crime of Identity Theft in the Third Degree (NY Penal Law 190.78) and the relevant underlying definitions. Future entries will address Identity Theft in the Second (NY Penal Law 190.79) and First Degree (NY Penal Law 190.80).

Here we go...

§ 190.77 Offenses involving theft of identity; definitions.

1. For the purposes of sections 190.78, 190.79 and 190.80 of this article "personal identifying information" means a person's name, address, telephone number, date of birth, driver's license number, social security number, place of employment, mother's maiden name, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person.

2. For the purposes of sections 190.78, 190.79, 190.80, 190.81, 190.82 and 190.83 of this article:

a. "electronic signature" shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law.

b. "personal identification number" means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person.

Now for the actual crime of Identity Theft in the Third Degree (PL § 190.78) after the jump...

Continue reading " Identity Theft in the Third Degree & Your Criminal Defense: A Legal Definition and Application of New York Penal Law 190.78 " »