New York Criminal Lawyer Blog

As a former prosecutor in the Manhattan District Attorneys Office and as a criminal defense attorney in New York City, I could probably write a book on the stupid things people say when confronted by the police. Maybe they think they are going to talk themselves out of trouble or maybe they are just nervous, but the end result is often the same....they get themselves in deeper water and often end up being placed under arrest. A defendant in Queens County charged with Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03(1) and 265.03(3)), learned this lesson the hard way.

In People v. Virgilio Rodriguez, 2632/08, decided June 23, 2009, police responded to "shots fired." When they arrived at the location the officers asked what happened and some individuals pointed to the defendant and stated that the officers should ask him. Upon asking the defendant what happened the defendant admitted that he shot off his gun and then voluntarily brought the officers to his office a few feet away and retrieved his gun from the desk drawer. The police placed the defendant under arrest and brought him to the precinct and ultimately central booking. During this time, the family obtained a criminal defense attorney for the defendant and the attorney filed a notice with the court (a letter indicating that the defendant has counsel). Despite this, the police questioned the defendant on video. Ultimately, the defendant's attorney challenged both the statement at the scene as well as the video statement. Unfortunately for the defendant, the court ruled that his statement was admissible as it was made at the scene voluntarily and while the police where investigating. In a close to literal sense, the defendant shot himself in his foot for opening his mouth at the scene.

What is more interesting is what the court noted about the second statement:

"Regarding the admissibility of the video statement, I believe this case illustrates the inequities between court appointed counsel and retained counsel. The District Attorney of Queens County has instituted a procedure wherein they select certain individuals to be questioned regarding the alleged crime and potential alibis. The protocol in Queens County is that prior to arraignment in criminal court, defendants who have not retained counsel are given assigned counsel from either Queens Law Associates, the Legal Aid Society, or the 18b attorney on call. Therefore, it is only in the rare situation where defendant has retained counsel could a notice of appearance on behalf of that defendant be filed before the case is docketed. Clearly, the importance of the notice filing by retained counsel is that 'once an attorney has entered the proceeding…a defendant in custody may not be further interrogated in the absence of counsel' People v. Rogers, 48 N.Y.2d 167 (1979). In the present situation, the defendant, Mr. Rodriguez, was questioned when the district attorney knew or should have known retained counsel had filed a notice. Accordingly, the video taped statements Mr. Rodriguez made at central booking must be suppressed."

Clearly, there are a lessons and issues that we can take from this case. First, it is often not in your interest to try to talk yourself out of a situation by admitting to a crime or lying about your actions. These statements certainly can damage your likelihood of successfully challenging any case. You risk either giving law enforcement evidence or the ability to obtain evidence that they would not have had but for your admission or you can "lock" yourself into a statement that may not be accurate. Therefore, whether you retain criminal counsel or work with a court assigned attorney, it is advisable to have an in depth conversation with your lawyer prior to any interaction with law enforcement if possible. This is blog entry is in no way advice as to how you should pursue your own criminal case, but the potential ramifications of your actions or statements is something you should consider.

A second issue that is also concerning deals with the court's assertion that defendants who do not retain counsel are more often spoken to by prosecutors with the intent to obtain admissions. This is due in part because "right to counsel" triggers on the filing of a notice by an attorney that he or she is representing the accused. In cases where a person is indigent, a defense attorney is often not assigned until way after the point were a statement from a defendant would be taken. While I certainly have my own ideas on how to rectify this, defendants should not be treated differently due to their means to hire criminal counsel. In fact, some defendants who are assigned counsel, albeit not at there choosing, get a free attorney who is heads and shoulders above some of their private practice colleagues. Regardless, each of us, affluent, middle class indigent or anything in between, should be afforded the same treatment, respect and rights whether we hire our own attorney or provided one by the courts.

Crotty Saland, LLP is a New York based criminal defense firm. Founded by two former Manhattan prosecutrs, Crotty Saland, LLP represents individuals accused of crimes throughout the New York City region.

According to the Brooklyn (Kings County) District Attorney's Office, a Brooklyn, New York Grand Jury indicted Peter Galin on 27 counts of Grand Larceny in the Third Degree, Grand Larceny in the Fourth Degree, Scheme To Defraud in the First Degree and Petit Larceny. Galin, a travel agent and proprietor of TravelCenterOnline.Com, is alleged to have defrauded 12 clients by taking their money and using it for his personal use as opposed to booking and arranging for their travel and vacations. It is alleged that clients paid Mr. Galin between $400 and $5,500 for travel plans that were never made. Despite being given receipts for his services, Mr. Galin's clients allegedly received nothing at all. One such client arrived at the airport on the scheduled day of departure to learn that no airline reservations had been made.

If convicted at trial, Mr. Galin faces no mandatory minimum sentence, but up to 2 and 1/3 to 7 years in state prison on the top charges.

Crotty Saland, LLP is a New York law firm focusing on criminal defense. Founded by two former Manhattan prosecutors, Crotty Saland, LLP represents clients throughout the metropolitan New York City area.

Make no mistake. New York DWI / DUI laws have just gotten significantly harsher. In fact, pursuant to New York Vehicle and Traffic Law (VTL) section 1192.2-a(b) / 1192(2a)(b), otherwise know as Leandra's Law, a misdemeanor Driving While Intoxicated is "bumped up" to a felony offense if you perpetrate the "drunk driving" crimes of VTL 1192.2, VTL 1192.3, VTL 1192.4 or VTL 1192.4(a) and a child 15 years old or younger is in that vehicle.

More specifically, one can be charged with felony DWI / DUI pursuant to VTL 1192.2-a(b) / VTL 1192(2a)(b) when that person either has a BAC of .08 or greater, is intoxicated due to drug or alcohol ingestion or is "common law" DWI. Although often more difficult to prove due to the lack of scientific evidence, "common law" DWI refers to cases where an individual does not give a reading or sample of breath, urine or blood, but the police articulate the individual's intoxication due to certain characteristics such as unsteadiness on one's feet, slurred speech, the smell of alcohol, and watery-blood shot eyes, etc.

Leandra's Law allows for a sentence of up to 1 and 1/3 to 4 years in state prison as well as fines ranging between $1,000 to $5,000. Other potential sentences include probation, community service, a drunk driving program and obviously restitution in the event damage is done to another's property.

Before Leandra's Law was available to the prosecution, prosecutors often charged individuals who drove drunk with children in their car with misdemeanor DWI along with misdemeanor Endangering the Welfare of a Child and either felony or misdemeanor Reckless Endangerment if applicable. Endangering the Welfare of a Child as well as misdemeanor Reckless Endangerment is punishable by up to one year in jail while felony Reckless Endangerment is punishable by up to 2 and 1/3 to 7 years in prison. It is important to note that these crimes can still be charged along with VTL 1192.2-a(b) / VTL 1192(2a)(b).

Crotty Saland, LLP is a New York criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland, LLP represents clients throughout the New York City region.

The Manhattan District Attorney's Office has announced the arrest and indictment of John Runowicz, a University administrator for an alleged ongoing theft in the neighborhood of $400,000. According to the Manhattan District Attorney's Office, Mr. Runowicz was indicted by a Grand Jury for the crimes of Grand Larceny in the Second Degree, a class C felony and six counts of Falsifying Business Records in the First Degree, a class E felony. If convicted, Mr. Runowicz faces up to 5 to 15 years and up to 1⅓ to 4 years in state prison on the respective charges.

As administrator for the University's chemistry department, Mr. Runowicz oversaw and managed the budget and handled the financial matters for that department. In this capacity, prosecutors alleged that Mr. Runowicz "caused thousands of fraudulent requests for petty cash reimbursement to be submitted to the university Bursar’s Office. [Mr.] Runowicz scavenged discarded cash register receipts from a local liquor store, attached them to reimbursement request forms, and falsely claimed that the expenses were for chemistry department supply purchases and other functions. None of those receipts reflected legitimate business expenses. Carrying on his scheme for over five years, [Mr.] Runowicz fraudulently submitted over 13,000 receipts from the liquor store and stole $409,000.

It appears from the above press release that the Manhattan District Attorney's Office has a significant portion 13,000 receipts that they allege are false (although, the indictment only reflects six charges of Falsifying Business Records). What is noteworthy is that for a conviction of the felony "version" of Falsifying Business Records, the prosecution does not need to necessarily prove that a defendant made a false entry in the business records of an enterprise, here NYU, but that he or she caused a false entry to be made. To prove the Grand Larceny charge, the more serious offense, prosecutors must establish that he took property without permission, here the money, in excess of $50,000.

Without knowing all the facts, certain questions that may arise include whether or not Mr. Runowicz made the initial request for the reimbursements. Are there records reflecting what, if anything, Mr. Runowicz did with the monies after he received it? Moreover, did the District Attorney's Office subpoena Mr. Runowic's bank records and do they reflect significant balance increases or, in the alternative, a build up of funds and limited withdrawals? The above questions are relatively superficial, but ones that are at least a starting point for Mr. Runowicz, or any individual accused of such a crime, to address with his attorney as they implement their defense.

Crotty Saland, LLP is white collar criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland, LLP represents clients throughout the New York City region.

In New York, a misdemeanor theft or larceny can easily be enhanced to a felony in certain circumstances. In fact, pursuant to New York Penal Law Section 155.30(5), Grand Larceny in the Fourth Degree, it is a felony punishable by up to four years in state prison if you perpetrate the crime commonly known as "Grand Larceny from the Person."

Pursuant to New York Penal Law Section 155.30(5), Grand Larceny in the Fourth Degree:

A person is guilty of this Grand Larceny in the Fourth Degree when he or she steals property and that property, regardless of its nature and value, is taken from the person of another.

To be clear, if you take a one dollar bill or a ten thousand dollar ring, and you take that property from another's person, you have likely committed the crime of Grand Larceny in the Fourth Degree. Although your actions may increase to Robbery if force or violence was used or to a higher level of Grand Larceny based on the value of the property, the mere taking of a property (for example, from a person's hand or pocket) automatically makes the crime a felony.

It is important to note that your theft need not be from another's hand, pocket, wrist, etc. In fact, prosecutors often charge this crime where a person's bag, backpack or purse is stolen even if the victim is not wearing that purse. Pursuant to People v. Haynes, 91 N.Y.2d 966 (1998), if a person is touching a bag, purse or backpack and a defendant takes that property, then this crime has likely been committed. A little vague, a better way to look at this hypothetical is that if a person is sitting on the strap of their bag or leaning against it as it is hanging over the chair, a defendant can be charged with this crime if they take the bag away as the strap is pulled from underneath or on top of the victim. It is important to note that the taking need not be violent or forceful. In fact, the vicimt might not know of the theft as the item is pulled away.

Obviously, whether or not one has committed the crime of Grand Larceny in the 4th Degree pursuant to New York Penal Law 155.30(5) hinges on the circumstances of the case. While not a substitute for legal analysis on a specific set of facts, the above description should give you a general understanding of the law.

Crotty Saland, LLP is a New York based criminal defense firm founded by former Manhattan prosecutors.

Crotty Saland, LLP, is pleased to announce that another client has benefited from our experience, knowledge and advocacy. Our client, a movie "middle man" who procured funding for multi-million dollar projects, met with prosecutors after being contacted about a disgruntled client. Prior to retaining Crotty Saland, LLP, and without any legal representation, our client met with law enforcement officials and made statements that could be construed as admissions relating to Grand Larceny and Forgery crimes. More specifically, prosecutors accused our client of stealing, through false pretenses, approximately $17,500. Moreover, prosecutors alleged that our client created and displayed fraudulent bank documents and contracts that were used to "fool" the movie companies that utilized his services.

After months of legal wrangling our client's case is over. Through our diligence, our client avoided the embarrassment of being arrested at his home or place of business. On the same day we had our client voluntarily turn himself in, prosecutors arranged to have him see the judge and have his charges dropped down from felony Grand Larceny and Forgery to lesser misdemeanor offenses. At his arraignment, only a few hours after his voluntary surrender, our client pleaded to one count of Petit Larceny, a misdemeanor of pursuant to NY Penal Law section 155.25 (otherwise known as the "shoplifting statute"). Moreover, the judge sentenced him at that time to a conditional discharge. This plea not only saved our client from the humiliation of any felony, but our client avoided jail (he was facing up to seven years in state prison), probation and community service while finishing his case only hours after he voluntarily turned himself into detectives.

Crotty Saland, LLP is a New York based white collar criminal defense firm. Founded by two former Manhattan prosecutors, Crotty Saland, LLP represents clients throughout the New York City region.

Prior results do not guarantee future success.

There is little doubt that if your home is the target of a search warrant in New York, you, as the homeowner or tenant who resides there, would have the standing or ability to challenge a search warrant executed at that premises. However, one factor that may change the dynamic of this equation is where you (again, as the homeowner who resides there or tenant who lives there) are prevented from temporarily entering or living in the premises due to an order of protection or restraining order. The obvious question then becomes, what rights or standing, if any, do you have to challenge a search of that premises pursuant to a search warrant where there is an existing order of protection keeping your from that location?

Regardless of the fruits of that search, i.e, whether the police find drugs, guns, etc, decisions have not been favorable to those who are barred from a particular premises even if they are the owners. In fact, in a recent decision from October 20, 2009 in Kings County (Brooklyn) Supreme Court, a judge found that "the defendant has no standing to challenge the validity of the search warrant since the court issued a full Order of Protection for the victim and her son." People v. Dorcinvil

This decision certainly is not the first to come down in this manner. In People v. Robinson 205 A.D.2d 836 (Third Dept. 1994), the Appellate Division found that the search of the defendant's home where he was barred due to an order of protection was valid and legal. The court further noted that the defendant "had neither a legitimate expectation of privacy therein nor standing to challenge the police entry into the house" because of that order of protection.

While every case requires an analysis to ascertain whether a defendant has standing and an expectation of privacy (part of the foundation of any challenge to a search warrant), it is clear that an order of protection may become an impediment.

Crotty Saland, LLP is New York criminal defense firm founded by lawyers who previously served as prosecutors in the Manhattan District Attorney's Office.

It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are "restrain" and "abduct." Today's entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.

§ 135.00 Unlawful Imprisonment, Kidnapping and Custodial Interference; definitions of terms

The following definitions are applicable to this article:

1. “Restrain” means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined “without consent” when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.

2. “Abduct” means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.

3. “Relative” means a parent, ancestor, brother, sister, uncle or aunt.

Unlawful Imprisonment in the First and Second Degrees (NY Penal Law 135.05 and 135.10) after the jump...

Continue reading " Unlawful Imprisonment in the First (NY Penal Law 135.10) & Second (NY Penal Law 135.05)Degrees: A New York Criminal Defense Overview " »

A drink sounds a lot better than the "clink," right about now for two people charged with Bribery in the Third Degree, a class D felony, and Attempted Grand Larceny in the Third Degree, a class E felony. It is alleged that Annie Guerrero and Maria Elena Nunez got caught up in a fraudulent scheme nearly a year ago, but only landed themselves in court for the first time today.

According to the Manhattan District Attorney's Office, the alleged partners in crime were also foes:

"The investigation revealed that Annie Guerrero is the owner of El Nido Del Aguila (d/b/a D’Noche) restaurant located 213 Sherman Avenue in Manhattan, and Maria Elena Nunez is the proprietor of #1 Business Solutions Inc., an expediting company that represents businesses applying for liquor licenses. They agreed to offer an official at the State Liquor Authority (SLA) $5,000 to avoid a full SLA board review of Ms. Guerrero’s application for a liquor license. Ms. Nunez did not carry out the agreement but rather attempted to steal the money from Ms. Guerrero upon being told that the El Nido Del Aquila could not avoid going before the SLA’s full board."

If convicted, these two defendants will need more than a stiff drink as they both face up to seven years in prison.

Founded by two former Manahattan prosecutors, Crotty Saland, LLP, is a white collar criminal defense firm representing clients throughout the New York City region.

Although the Rockefeller Drug Laws have certainly eased over the years, New York Criminal defense attorneys and their clients must have a working knowledge as to the law involving legal presumptions and Criminal Possession of a Controlled Substance. While often times the police allegedly observe a sale or the actual possession, New York's Penal Law permits certain presumptions that the accused possessed the drugs in question. These presumptions are narrowly construed, but may be applicable in your case depending on the facts and circumstances. Whether the drug is cocaine, heroin or crack, the following presumptions apply:

220.25 Criminal Possession of a Controlled Substance; Presumption:

1. The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.

The above drug presumption is often referred to as the "Automobile Presumption." Whether there is a small amount for "personal use" or kilos of cocaine, the presumption is the same. If the drugs are in "open view," for example, there is a presumption under the law that everyone possessed it. Even if the drugs are not in "open view," the presumption can still apply. There are a few exceptions to this rule. A driver for hire (a livery cab or yellow cab driver) would not fall into this presumption. Another exception would take place where an individual possessed the drugs on his or person. Where the drugs are concealed on that person, the presumption would not apply to others in the vehicle. What is equally important is that the "Automobile Presumption" does not apply to marijuana. In fact, marijuana is expressly not subject to this presumption. People v. Dan, 55 A.D.3d 1042 (3 Dept. 2008).

The second presumption, found under NY Penal Law 220.25(2) is as follows:

2. The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found; except that such presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (b) one of them has such controlled substance upon his person.

This second presumption applies not only to controlled substances and narcotics such as cocaine or heroin, but expressly applies to marijuana as well. Moreover, as noted in the language of the statute, the substance must be in "open view" and the defendants must be in "close proximity" to the contraband in question. Although "close proximity" need not be the same room, location of drugs in an adjacent room where a defendant is not located may not satisfy this "close proximity" requirement. People v. Davis, 195 Misc.2d 858 (Rochester Cty Ct. 2003); People v. Caban, 90 Misc.2d 43 (Kings County 1977). Lastly, evidence and facts must establish that the defendants had an intent to sell. Merely displaying drugs without the intent to sell is not enough. People v. Uribe, 113 Misc.2d 207 (New York County 1982).

The above analysis of drug possession presumptions under article 220 of the New York Penal Law is a brief one. There are countless cases addressing and defining the definitions and meanings in the statutes. Although a good starting point, if you are charged under the presumption theory, you should consult with an experienced criminal defense attorney in New York to ascertain how, if at all, these presumptions impact your case.

Crotty Saland, LLP is a criminal defense firm representing clients in New York City and the metropolitan region. Crotty Saland, LLP was founded by two former Manhattan prosecutors.

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Issuing a False Financial Statement, pursuant to New York Penal Law 175.45, is certainly not the most severe crime amongst its brethren in the arena of white collar crimes, but one that has serious ramifications beyond the criminal context. First of all, this crime is often associated with or is a part of a larger scheme. Therefore, you may not merely find yourself being investigated for or charged with Issuing a False Financial Statement, pursuant to New York Penal Law 175.45. Other crimes may be lingering right around the corner. However, before addressing those other crimes, let me present the statute of Issuing a False Financial Statement so you have a general understanding of the law.

Issuing a False Financial Statement New York Penal Law 175.45:

A person is guilty of Issuing a False Financial Statement when, with intent to defraud:

1. He knowingly makes or utters a written instrument which purports to describe the financial condition or ability to pay of some person and which is inaccurate in some material respect; or

2. He represents in writing that a written instrument purporting to describe a person's financial condition or ability to pay as of a prior date is accurate with respect to such person's current financial condition or ability to pay, whereas he knows it is materially inaccurate in that respect.

Issuing a False Financial Statement is a class A misdemeanor punishable by up to one year in jail

As I noted above, this crime is often associated with other offenses. If the purpose of your fraud, for example, is to obtain monies or property and in doing so you file or fill out additional paperwork you may be charged with Falsifying Business Records in the First Degree, Grand Larceny or other crimes. While only a few of the potential crimes, these offense are both felonies. Falsifying Business Records in the First Degree is an "E" felony punishable by up to four years in prison while Grand Larceny ranges from an "E" felony to a "B" felony and is punishable by up to four and twenty-five years in prison respectively.

Even assuming you were not successful in your "intent to defraud" as stipulated in the statute, i.e., you did not reap the benefit of your alleged fraud, you can still be charged with this crime. It goes without saying that if you work in finance, for example, while you may have dodged a more serious felony, a conviction for Issuing a False Financial Statement would have devastating ramifications to your career.

Regardless of the white collar crime you are being investigated for or charged with, contact the former Manhattan prosecutors at Crotty Saland, LLP so that your career, integrity and liberty are protected and preserved.

A Manhattan building manager has managed to get himself into hot water with the Manhattan District Attorneys Office. According to Robert Morgenthau's prosecutors, Mark Modano, of Mark Modano LLC, was arrest and indicted in connection to an alleged five year fraud beginning in 2003 and ending in 2008. It is alleged that during this period Mr. Modano siphoned $1.3 million from clients for his own personal use.

Charged with three counts of Grand Larceny in the Second Degree (NY PL 155.40), a class C felony, three counts of Grand Larceny in the Third Degree (NY PL 155.35), a class D felony and one count of Scheme to Defraud in the First Degree (NY PL 190.65), a class E felony, Mr. Modano faces up to 15, 7 and 4 years respectively if convicted.

Prior to his arrest and indictment, Mr. Modano was a general "all purpose" guy whose services ran the gamut. His duties included anything from collection of rent and renovation of vacated apartments to payment of property taxes associated with the building and overseeing building maintenance and repairs.

According to the Manhattan District Attorney's Office:

"The investigation leading to the indictment revealed that [Mr.] Modano continuously mingled his clients’ money into large “master” accounts. [Mr.] Modano slowly misappropriated his clients’ money, via his master accounts, for his own personal expenses. Whenever a potential shortfall occurred with respect to one of his client’s expenses, he simply used money from one of his other clients to make good on the outstanding expense and continue to conceal his crime."

"The victims most affected by [Mr.] Modano’s misconduct were those who entrusted him with the payment of their property taxes. In approximately 2006, and again in 2008, without informing his clients, [Mr.] Modano entered into in rem installment agreements with the City’s Department of Finance which enabled him to pay his clients’ property tax obligations on an installment basis while continuously accruing interest to the detriment of those clients. At the time in question, all tax-related correspondence was sent directly to [Mr.] Modano; therefore, the owners of the buildings were unaware that they owed property taxes and that [Mr.] Modano had entered into such agreements."

"[Mr.] Modano distributed monthly financial statements, which purportedly accounted for all monthly income and disbursements, to the owners of each building. Most of [Mr.] Modano’s clients had worked with him for several years and solely relied on these statements to keep updated on the finances of their buildings. In November and December of 2008, in an attempt to control the damage, [Mr.] Modano caused an attorney to contact some of his clients. These clients were informed that, contrary to what [Mr.] Modano’s monthly financial statements indicated, their building operating accounts were nearly empty. The loss with respect to each building ranged from $25, 219.20 to $634,978.04. In total, [Mr.] Modano stole in excess of $1.3 million."

Without knowing all of the facts in this case, there is an interesting issue here. As a general rule, prosecutors can aggregate the total loss from a victim over a period of time when charging a defendant with those larcenies. Additionally, there are some court decisions that stand for position that if the scheme is a common one, loss can be aggregated amongst different victims as well. In other words, if an accused stole from one victim multiple times, instead of each theft being a separate lesser offense, the thefts could be added up to make one greater offense. In the alternative, while less commonly charged, prosecutors may also be able to add up the total loss amongst multiple victims in the same scheme. Here, despite the fact that the alleged theft is in excess of $1 million, the prosecution has charged Mr. Modano with multiple lesser Grand Larceny crimes instead of aggregating the theft to Grand Larceny in the First Degree, a class B felony, that has a mandatory minimum term of imprisonment and a maximum term of 25 years. Beyond these offenses, it appears that other applicable crimes could include Falsifying Business Records, Forgery and Criminal Possession of a Forged Instrument for his alleged activities of creating fraudulent invoices and supplying false business information.

Despite the above analysis, it is somewhat easy to speculate about charges without having all of the facts. Even if my analysis is correct, there are numerous reasons why prosecutors don't charge each and every offense in an indictment especially where it is redundant or other charges bring in the necessary evidence and facts. Regardless, Mr. Mondano has a long road ahead and should ascertain with his attorney the strongest defense in this case before he finds himself in much hotter water.

Crotty Saland, LLP is a white collar criminal defense firm founded by two former Manhattan prosecutors. Representing clients throughout the New York City region, Crotty Saland, LLP has had tremendous results advocating for clients in fraud and theft crimes ranging from the tens of thousands to the multiple millions of dollars.