New York Criminal Lawyer Blog

New York State requires under certain circumstances that specific injuries or wounds must be reported to the police. In fact, pursuant to New York Penal Law section 265.25, failure to report certain wounds by individuals such as an attending or treating physician (mandated reporters) is an "A" misdemeanor punishable by up to one year in jail.

According to New York Penal Law 265.25

Any time an individual is treated at a hospital or medical facility for a wound or injury from a gunshot or bullet (whether it is a grazing, penetration, etc.), that injury must be reported "at once" to local law enforcement. Other injuries that must be reported "at once" include any injury or wound that is likely or may result in death from weapons such as blades, knives or similar objects.

Mandated reporters of these types of injuries include: (a) the physician or doctor attending or treating the case; or (b) another person in charge (regardless if they are a physician or not), whenever the case is treated in a hospital or other institution.

Despite the law above, this statute does not apply to the military and law enforcement where the injury is sustained in the line of duty.

Obviously, failure to report the above injuries may result in an arrest or a conviction. Beyond this immediate problem, however, is the reality that one may also face issues with certification, licensing or employment while the case is pending and if there is a criminal disposition.

Crotty Saland, LLP is a New York criminal defense firm founded by two former Manhattan prosecutors with experience representing physicians, lawyers, teachers, individuals employed in finance, and other professionals in criminal investigations and arrests.

For further information on crimes involving weapons and violent crime including New York Penal Law sections 265.01, 265.02 and 265.03, please review the New York Weapon Possession section of our website or the New York Weapon Possession section of the New York Criminal Lawyer Blog.

Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys at Crotty Saland LLP, have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a "primer" for those not familiar with this offense and the strict liability it seems to impose on the accused.

A person is guilty of Criminal Possession of a Weapon in the Second Degree (NY PL 265.03) when:

(1) with the intent or purpose to use the firearm (handgun, pistol, revolver, etc.) you possess a (a) machine gun, (b) loaded firearm (loaded has a much more liberal legal definition than bullets physically in a gun) or (c) a disguised gun; or

(2) you possess more than five firearms (it can be different types such as revolver, pistol, etc.)

(3) you possess a firearm that is loaded (intent to use unlawfully not required!!). Generally, there is no felony if the possession is in your home or place of business.

New York Criminal Possession of a Weapon in the Second Degree is a C violent felony punishable by a minimum of three and on half years and up to fifteen years in state prison.

Make no mistake, a conviction for this offense will land you behind bars for at least a few years to well over a decade. While intent to use the firearm unlawfully is an element of NY PL 265.03(1), it is not an element or requirement under NY PL 265,03(3). In other words...just having the loaded firearm (the law does not actually require the bullets to be in the chamber/cartridge/cylinder) without a permit outside your home or place of business without the slightest malicious intent is punishable by at least three and one half years.

Although the statute is very clear and prosecutors are often unsympathetic to people carrying guns without permits, there still may be a defense that you can set forth. Did the police search you properly? Was the gun legally "loaded?" Is the possession based on a legal presumption? Are there mitigating circumstances? Did you possess the firearm in an area airport and properly checked it?

As stated above, Crotty Saland, LLP has had tremendous success representing clients charged with possessing loaded firearms. Our clients have not only benefited from our experience, but we have been legal analysts and quoted on gun crimes in the national, regional and local media from Sports Illustrated Online to the New Jersey Star-Ledger and the AM-NY. If you are accused of a crime involving weapons, no attorney can guarantee a particular outcome, but we will unquestionably fight to protect your rights and freedom.

The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland LLP represent clients throughout New York City and the region.

New York Forgery offenses, pursuant to New York Penal Law sections 170.05, 170.10 and 170.15, are not only distinct crimes within the realm of Forgery, but they are also separate from the crime of Criminal Possession of a Forged Instrument pursuant to New York Penal Law sections 170.20, 170.25 and 170.30. In light of the fact that they are unique crimes, can prosecutors charge you with forging as well as possessing the instrument you are alleged to have forged? If you can be charged with forging and possessing the same forged instrument (such as a passport or counterfeit dollar), can you also be convicted of Forgery and Criminal Possession of a Forged Instrument as well?

New York Penal Law 170.35 gives the simple answer to this question. According to New York Penal Law 170.35, "[i]n any prosecution for [C]riminal [P]ossession of a [F]orged [I]nstrument, it is no defense that the defendant forged or participated in the forgery of the instrument in issue; provided that a person may not be convicted of both [C]riminal [P]ossession of a [F]orged [I]nstrument and [F]orgery with respect to the same instrument."

Applying the above statute to our hypothetical involving a forged passport, one could be charged with both Forgery and Criminal Possession of a Forged Insturment as to the passport, but ultimately one could not be convicted as to both offenses for the passport. It is one or the other.

It is important not to misconstrue the statute. For example, you may be charged with multiple counts of Forgery for the same instrument based on different theories or subsections of the statute. For example, the passport may violate different sections of the law. If, however, you charged with possessing and forging the one particular instrument, a conviction on both crimes cannot stand. If you believe this defense may be applicable to the crimes you are accused of, consult with a New York criminal defense attorney experienced in this body of law.

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

The felony crimes relating to Grand Larceny and Criminal Possession of Stolen Property in New York appear relatively straight forward whether the crimes is perpetrated by Embezzlement, Blackmail/Extortion or any other means. In general terms, if you steal property and the value of that property exceeds $1,000, $3,000, $50,000 or $1,000,000, then you may be charged and convicted of Grand Larceny in Fourth Degree (New York Penal Law 155.30(1), Grand Larceny in the Third Degree (New York Penal Law 155.35), Grand Larceny in the Second Degree (New York Penal Law 155.40(1)) or Grand Larceny in the First Degree (New York Penal Law 155.42) respectively. In the event you are alleged to have possessed stolen property with the values as mentioned, then the applicable offense are Criminal Possession of Stolen Property in the Fourth Degree (New York Penal Law 165.45(1), Criminal Possession of Stolen Property in the Third Degree (New York Penal Law 165.50, Criminal Possession of Stolen Property in the Second Degree (New York Penal Law 165.52, Criminal Possession of Stolen Property in the First Degree (New York Penal Law 165.54) respectively.

Each one of these statutes seems clear enough. For example, what if you steal or embezzle $7,500 in cash and you are caught with that money. Here, the value of the property obviously exceeds $3,000, but is less than $50,000. Prosecutors could therefore charge you with either or both crimes of Grand Larceny in the Third Degree (NY PL 155.35) or Criminal Possession of Stolen Property in the Third Degree (NY PL 165.50). Well, what if the theft or stolen property was a high definition 52 inch LCD television you bought for $6,000 four years ago, but you could get the same model now for $2950? What if the property does not have an easily ascertainable value such antique silverware that has been in the family for generations? Is it enough for the prosecution to merely state the value? If not, what is required to establish this value?

The first entry in this series will deal with measuring value of property to determine what, if any, statute is violated. A second entry will deal with the means by which the prosecution establishes that value whether it be from an expert, a store employee, an owner of the property, etc.

Continue reading " New York Grand Larceny & Felony Criminal Possession of Stolen Property: Establishing the Value of the Alleged Stolen Property Pursuant to NY PL 155.20 & Your Criminal Defense " »

I previously drafted an entry addressing the elements of the crime of Perjury in New York pursuant to NY Penal Law Sections 210.05 (Perjury in the Third Degree), 210.10 (Perjury in the Second Degree) and 210.15 (Perjury in the First Degree). This entry will address the affirmative defense set forth in the New York Penal Law pursuant to New York Penal Law section 210.25. Although just a brief discussion, if you are charged with Perjury in New York, you should discuss this affirmative defense with your NY criminal defense attorney.

210.25 Perjury; defense

In any prosecution for Perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed.

In People v. Ezaugi, 2 N.Y.2d 439 (1957), New York's highest court, the Court of Appeals, addressed the defense of retraction and recantation and held that:

"...recantation as a defense is primarily designed to correct knowingly false testimony only if and when it is done promptly before the body conducting the inquiry has been deceived or misled to the harm and prejudice of its investigation, and when no reasonable likelihood exists that the witness has learned that his perjury is known or may become known to the authorities. Thus, as a practical matter, the use of recantation as a defense should always depend on the circumstances of the given case."

Although the above holding pre-dated the affirmative defense established by the statute, it is a good guide to the foundation of the rule. However, a closer reading of NY Penal Law 210.25 reveals that one must not merely act "promptly" as set forth in Ezaugi, but retract the false statement during the course of the proceeding, before it substantially affects the proceeding and before the false statement was or would be found out. Again, as noted above, if this defense is viable in your particular case, discuss the facts of your case with your criminal defense lawyer to ascertain whether or not, for example, you retracted your statement before it "substantially affected" the proceeding.

Crotty Saland LLP, a New York white collar criminal defense firm founded by two former Manhattan prosecutors, represents clients in all stages of their criminal cases throughout the New York City region.

Pursuant to Article 177 of the New York Penal Law, Health Care Fraud in New York is one of the more serious offenses handled by New York criminal defense lawyers that almost mimics the Grand Larceny Statute. Depending on the amount of the fraud, like varying degrees of Grand Larceny, the crime can be elevated from a misdemeanor punishable by up to one year in jail to a felony punishable by up to twenty five years in state prison (follow this link for further analysis of NY Health Care Fraud in the First Through Fifth Degrees and your criminal defense). Although this crime is certainly one that can have devastating impacts on one's liberty and career, there is a an affirmative defense found in the New York Penal Law that may protect certain people.

According to New York Penal Law Section 177.30:

"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."

Somewhat similar to the statutory defined defense to Falsifying Business Records (a possible crime that one might face if charged with Health Care Fraud), this potential defense may be set forth if one is an employee, as described above, was following the orders of a superior and obtained no personal benefit such as compensation, time off, etc.

What is important to note, however, is that the above affirmative defense does not mean that one who fits the description above automatically cannot be prosecuted or convicted of Health Care Fraud. Instead, this defense can be presented and established by a defendant at trial where the statute would ultimately permit an acquittal if established.

The analysis of this affirmative defense is very brief and vague. If you are charged with Health Care Fraud pursuant to Article 177 and you believe this defense may be applicable to you or your circumstances, consult with your attorney to assess if and how this defense may assist you in your particular case.

The NY criminal defense attorneys at Crotty Saland LLP represent clients throughout the New York metropolitan area. Founded by two Manhattan criminal defense lawyers who served in the New York County District Attorney's Office, Crotty Saland LLP is located in downtown New York City.

Queens County, the new hotbed of white collar crime and prosecutions, is the home of another alleged fraudulent scheme being prosecuted by the Queens County District Attorney's Office. According to a Queens County District Attorney's Office press release, Roger Arias, Martina Duran (a.k.a. Gladys Arroyo), Aldo Bussi, Ramon Gaston, and Percy Randall are alleged to have taken part in a $2 million Mortgage Fraud and Identity Theft scheme.

It is alleged in a 327 count indictment that Arias, the owner of Club Kalua, along with the other individuals used stolen identities to buy and sell three separate properties in Queens County. Not only are these individuals alleged to have used fraudulent identification to perpetrate their crimes while posing as buyers and sellers of real estate, one of the alleged stolen identities belonged to a deceased person.

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

"An investigation revealed that the property was allegedly sold during a closing on July 13, 2006, that began in an attorney’s office in Westbury but concluded that evening in a restaurant parking lot in Deer Park, Long Island. It is alleged that three unidentified individuals showed up at the closing with fake identification and pretended to be the two actual homeowners (one of whom had died three months earlier) and the buyer. The house was sold for $500,000, of which $340,948 was due the two homeowners – less their existing mortgage. However, it is alleged that $250,0000 of that amount went to Duran – who organized and was present at the closing – and her co-conspirators."

"The investigation further revealed that a mother and daughter had been in contract with the defendant and real estate broker, Roger Arias, about purchasing a house. Although the women provided Arias with their personal identification information, they ultimately decided to return to the Dominican Republic without buying a house. However, at a closing held on December 15, 2006, the owner of a property located at 56-10 Waldron Street in Corona allegedly sold his home for $701,000 to a woman who purported to be the older Dominican woman. It is alleged that Arias allegedly stole the woman’s identity and had an unidentified individual use it to purchase the Corona property, of which Duran and her co-conspirators allegedly received approximately $50,000 from the sale of the property."

"Finally, according to the investigation, a third property located at 116-36 139th Street in Jamaica was purchased – allegedly with the assistance of Duran – using an imposter-buyer who had stolen the identity of an elderly woman living in Puerto Rico. A closing for the property was allegedly held on April 20, 2007, at which time the true owner of the home sold it for $550,000 ostensibly to the elderly woman. In fact, the woman was the victim of identity theft and has never traveled to the United States. Duran and her co-conspirators allegedly received approximately $50,000 from the sale of the property."

The defendants are charged with Grand Larceny in the Second Degree, Identity Theft in the First Degree, Forgery in the Second Degree, Criminal Possession of a Forged Instrument in the Second Degree and Falsifying Business Records in the First Degree. Grand Larceny in the Second Degree is a "C" felony punishable by up to 15 years in prison. Identity Theft in the First Degree, Forgery in the Second Degree and Criminal Possession of a Forged Instrument in the Second Degree are "D" felonies punishable by up to 7 years in prison while Falsifying Business Records in the First Degree is an "E" felony punishable by up to 4 years in prison.

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 Brooklyn, Kings County, District Attorney's Office has announced that a Grand Jury indicted three individuals for Grand Larceny in the Second Degree for allegedly bilking the New York City Transit Authority (NYCTA) out of approximately $150,000. According to the press release, Jacqueline Jackson, a NYCTA supervisor, John Headley, an assistant district attorney who served under Charles Hynes in Brooklyn from 1991 to 1995, and Joyce Ilarraza, a former New York City Corrections Officer, are named on two separate indictments.

As a supervisor at NYCTA, Jackson's responsibilities included overseeing a staff of ten. Her responsibilities included setting up independent medical examinations for individuals who were suing NYCTA. Headley, no longer a prosecutor, had his own firm, Advance IME Co. This company provided the Torts Division of the NYCTA Law Department with independent medical examinations. Additionally, if necessary, Headley's company also provided medical records and expert witnesses at trial. It is alleged that from from 2007 through 2008, Jackson instructed her staff to direct business to Advance IME Co. and to approve billing and invoices to Headley's company. As a result, prosecutors contend that $98,000 was stolen from NYCTA. In return for this business, Headley allegedly paid for Jackson's personal expenses including her electric and gas bills.

In addition to the above indictment, a second indictment accuses Jackson, Headley and Ilarraza of stealing $50,000 from NYCTA from 2005 through 2007. In that indictment, it is alleged that Jackson approved inflated or increased bills from Illarraza's company, AJI Records Retrieval. AJI Record Retrieval assisted in the tracking and location of medical records. It is alleged that Jackson received half of the money illegally generated by the fraudulent bills.

The defendants each face the charges of Grand Larceny in the Second Degree, a "C" felony punishable by up to 15 years in prison, and Falsifying Business Records in the First Degree as well as Offering a False Instrument for Filing in the First Degree, both "E" felonies punishable by up to 4 years in prison.

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

Robert Halderman, the man who was accused by prosecutors of extorting and blackmailing "Late Show" host David Letterman, finally gave up on his concocted "screenplay" defense and pleaded to Attempted Grand Larceny by Extortion in Manhattan Supreme Court. In return for his plea, Mr. Halderman will be sentenced to six months in jail (he will serve roughly four months with good time) along with one thousand hours of community service and probation. This type of sentence involving probation and jail is commonly referred to in the practice of criminal law as a "split."

Although he has yet to be sentenced, this plea marks the end of a ongoing saga for Mr. Halderman, Mr. Letterman and the employee who was in the middle of the conflict. I am confident there will be ample speculation as to why both a relatively low plea recommendation was made and why Mr. Halderman accepted such a plea (Mr. Halderman had faced no minimum term of incarceration, but up to 5 to 15 years in state prison). That being said, I believe Mr. Halderman and his attorney recognized that the "screenplay defense" wasn't going to fly. Moreover, instead of recommending a state prison sentence where Mr. Halderman would have had no other choice but to take the case to trial, the prosecution may have wanted to spare Mr. Letterman and the employee any further embarrassment.

Mr. Halderman's attorney unquestionably advocated for his client and fought as best he could to either have the case dismissed or reduced to avail his client of the best possible disposition. Once all legal and factual avenues have been zealously, but unsuccessfully, pursued, sometimes a criminal lawyer must advise the client that he or she should consider a little "medicine" rather than proceeding to trial where the likelihood of success may be significantly reduced.

For further information on Grand Larceny by Extortion and the "New York Extortion Primer" follow this link.

For further blog entries on the Letterman/Halderman case follow this link.

For Jeremy Saland's commentary on the Letterman/ Halderman case for the LA Times follow this link.

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

Whether a vehicle is stolen or being driven without permission of the owner, one particular crime that may be charged in New York is Unauthorized Use of a Vehicle in the Second and Third Degrees pursuant to New York Penal Law sections 165.06 and 165.05 respectively. While other crimes may have been perpetrated, such as Grand Larceny in the Fourth Degree, an "E" felony punishable by up to four years in state prison, Unauthorized Used of a Vehicle, the "joyriding statute," is defined as follows:

NY PL 165.05(1) - Unauthorized Use of a Vehicle in the Third Degree

A person is guilty of Unauthorized Use of a Vehicle in the Third Degree when knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent

Unauthorized Use of a Vehicle in the Third Degree is a class "A" misdemeanor punishable by up to one year in jail.

NY PL 165.06 - Unauthorized Use of a Vehicle in the Second Degree

A person is guilty of Unauthorized Use of a Vehicle in the Second Degree when he commits the crime of Unauthorized Use of a Vehicle in the Third Degree as defined in subdivision one of section 165.05 of this article (above) and has been previously convicted of the crime of Unauthorized Use of a Vehicle in the Third Degree as defined in subdivision one of section 165.05 or Second Degree within the preceding ten years.

Unauthorized use of a vehicle in the second degree is a class E felony punishable by up to four years in prison.

Now that you have a basic understanding of the crime(s) of Unauthorized Use of a Vehicle, I will address an interesting issue that recently played out before a New York Supreme Court Criminal Term.

Continue reading " New York Penal Law 165.05 & 165.06: Unauthorized Use of a Vehicle & Your NY Criminal Defense " »

Michael Archer, better known as D'Angelo, was arrested over the weekend and charged with Patronizing a Prostitute in the Third Degree, pursuant to New York Penal Law 230.04. Cops arrested the R&B star after he allegedly solicited an undercover cop posing as a prostitute in Manhattan and offered her $40 (yup, forty bucks) for her services. Although it is an "A" misdemeanor punishable by up to one year in jail, it is highly unlikely D'Angelo will serve any time.

While D'Angleo will probably end up steering clear of this rap, Lil Wayne, a/k/a, Dwayne Carter, was not so lucky. Earlier today he was finally sentenced to jail in connection to his plea for possessing a firearm in New York without the requisite permit. Unlike state prison where one does more time before one is eligible for parole, it is likely that Lil Wayne will get out of jail well before his year sentence is up. In fact, with good behavior he may get out in time for Thanksgiving 2010 where D'Angelo could spot him $40 for a turkey.

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

For further information on the laws of Escort Services and Prostitution in New York, follow the link.

For further information on the laws of Gun and Weapon Possession in New York, follow the link.

The Queens County District Attorney's Office keeps churning out high profile white collar fraud cases. Unfortunately for Matthew McEntee and Mariwa M. Mora, two Flushing residents, these two defendants are awaiting arraignment after they were arrested in connection to an alleged fraud scheme involving $16 million in assets.

According to the Queens District Attorney's Office press release, Mr. McEntee, wrongfully portraying himself to be an attorney, and Ms. Mora, allegedly scammed twelve property owners out of $16 million in assets including properties in New York, Pennsylvania, Texas and California. "[A] ccording to the criminal charges, an unapprehended individual introduced McEntee to the victims as an investor who was looking to buy properties for his corporations – Clarity Corporate Trust and Conveyance Corporate Trust. During the introductions, McEntee allegedly claimed to be an attorney, an accountant and a banker and introduced Mora as either his fiancee or wife. In some cases, it is alleged, while negotiating the cash sales of the properties, McEntee also offered to buy the victims’ high-end vehicles – such as Mercedes Benzs, Mustangs and SUVs – and expensive house furnishings. McEntee also allegedly told some of the victims that for corporate tax reasons if they brought money or other valuables to the closing, he would issue them a check for double the value which would be in the payment check for the properties. In each instance, the certified corporate checks drawn on an HSBC bank account that the defendants allegedly provided to the victims at the closings were deemed forged."

Beyond the properties, some of the alleged victims were duped into turning over over $300,000 in cash as well as jewelry and mink coats.

The defendants are charged with Grand Larceny in the First, Second, Third and Fourth Degree, punishable by up to 25, 15, 7 and 4 years in prison respectively. They are also charged with Criminal Possession of Stolen Property in the Second Degree, punishable by up to 15 years in prison as well as Criminal Possession of a Forged Instrument in the Second Degree, punishable by up to 7 years in state prison.

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

Only days ago, I published an entry regarding the new Cybercrime and Identity Theft Bureau in the Manhattan District Attorney's Office. Having served as a member of that bureau's predecessor, the Identity Theft Unit, during my seven years as a prosecutor under Robert Morgenthau, I commented on the necessity of such a unit despite my adversarial role as a New York criminal defense attorney. I don't think anyone could argue the significance of this expanded bureau as schemes involving Identity Theft and Computer Crime continue to flourish in New York and beyond.

Although the most recent arrests and allegations stem from the Queens County District Attorney's Office, the purpose of such a unit or bureau has once again been made clear. According to the Queens County District Attorney's Office, twelve individuals, including five employees at PC Richards and Sons, have been arrested and indicted in a fraudulent credit card "bust out" scheme. The 92 count indictment charges Raza Chaudry, Reema Chaudry, Tahir Chaudry, Azadar Chaudry, Zishan Chaudry, Shaheen Akhtar. Hemet Adnand, Mathew Alli, Mohammad Aslam, David Francis, Benzy Jonny and Sheikh "Naveed" Zaheer with crimes including Grand Larceny, Criminal Possession of a Forged Instrument, Falsifying Business Records and Offering a False Instrument for Filing. Although they are not charged with the technical crime of Identity Theft, it is alleged that the "bust out" scheme involved stolen social security numbers. According to the Queens District Attorney's Office, a search warrant resulted in the recovery of "Pakistani passports belonging to several of the defendants and bearing multiple names and dates of birth, blank Social Security cards, Canadian and New York driver’s licenses and binders containing in excess of 300 credit cards."

Briefly, a "bust out" scheme involves transactions on a credit car where the credit card is "swiped" and a transaction is completed. The credit card company pays the merchant for the transaction or purchase. There are numerous variations going forward. For example, a "collusive merchant" may be aware that the card swiped is fraudulent. However, the merchant will get paid by the credit card company and claim he sold the items and he should not be at a loss because he did not know the card was fraudulent. Therefore, the merchant keeps the money from the alleged legitimate transaction without selling anything and shares the fee with fake buyer.

Another variation is alleged in this case. It appears that fraudulent checks were used to increase credit lines on credit cards. In an example of this, an individual takes out a credit card in another person's name without their permission, or in some circumstances pays that person to use their information. Sometimes legitimate transactions are made thereby raising the credit of the card over time. At some point a payment is made to the credit card, but with a bad check. Because of relaxed regulations, once the check hits the account and before there is a determination that the check is "good," the credit card company credits the account in the amount of the check. Therefore, there is a window of time before the check bounces that the credit card balance is falsely lowered. During this time, the fraudster can make further purchase. Once the credit card company realizes is, the items are gone. This cycle often continues with fake checks until a credit card with a limit of $5,000 is "busted out" in the amount of $25,000. Often times these schemes are not one or two credit cards, but a network of individuals with dozens or hundreds of credit cards. As a prosecutor in Manhattan, I led a similar investigation with the Secret Service into a particular scheme involving well north of 100 credit cards with "bust out" fraud in the multiple millions.

Continue reading " Queens Identity Theft & Credit Card "Bust Out" Scheme Results in Indictment of Five PC Richards Employees " »

Like identity theft crimes, cybercrimes and computer related offenses are becoming more prevalent in New York. In fact, the Manhattan District Attorney's Office has a unit, the Cybercrime and Identity Theft Bureau, whose main focus is to prosecute this criminal activity. One particular crime, among many, that may be established with relative ease by prosecutors is the crime of Computer Trespass pursuant to New York Penal Law section 156.10. Computer Trespass is defined as follows:

A person is guilty of Computer Trespass when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization and:

1. he or she does so with an intent to commit or attempt to commit or further the commission of any felony; or

2. he or she thereby knowingly gains access to computer material.

Computer trespass is a class E felony punishable by up to four years in state prison.

Although the crime of Computer Trespass, like all computer related offenses, has specific and special definitions to elements found in the statute, one of the most important terms in this statute is "without authorization" as it is a defense to this crime if a person had reasonable grounds to believe that he or she in fact had authorization to use the computer. See New York Penal Law 156.50(1).

Pursuant to New York Penal Law 156.00(8):

“'Without authorization' means to use or to access a computer, computer service or computer network without the permission of the owner or lessor or someone licensed or privileged by the owner or lessor where such person knew that his or her use or access was without permission or after actual notice to such person that such use or access was without permission. It shall also mean the access of a computer service by a person without permission where such person knew that such access was without permission or after actual notice to such person, that such access was without permission."

"Proof that such person used or accessed a computer, computer service or computer network through the knowing use of a set of instructions, code or computer program that bypasses, defrauds or otherwise circumvents a security measure installed or used with the user's authorization on the computer, computer service or computer network shall be presumptive evidence that such person used or accessed such computer, computer service or computer network without authorization."

Computer Trespass, like other cybercrimes, is an offense with serious ramifications. The above statute(s) do not encompass all the nuances and underlying definitions for this crime. Moreover, because cybercrimes and computer crimes are constantly reinventing themselves, a review of applicable case law may be relevant when assessing the viability of the charges against you as well as the potential defenses.

Crotty Saland LLP is a New York criminal defense firm. Founded by two former prosecutors who served in the Trial Division, Identity Theft Unit and Special Prosecutions Bureau of the Manhattan District Attorney's Office, Crotty Saland LLP represents clients in white collar and fraud related crimes throughout the New York City region.

For further information on New York Identity Theft and related crimes follow the highlighted link.

For Further information on Computer Trespass and New York computer crimes follow the highlighted link.

According to a Manhattan District Attorney's Office press release, the New York County District Attorney has announced the formation of another "new" bureau. District Attorney Vance's Cybercrime and Identity Theft Bureau technically ratchets up the current Identity Theft Unit to formally add the investigation and prosecution of cybercrime. In reality, many of the prosecutors assigned to the Major Case Section of the Identity Theft Unit had already been investigating and prosecuting these crimes. However, District Attorney Vance is taking the necessary steps to expand the unit into a bureau. Additionally, District Attorney Vance is increasing the number of prosecutors who will "specialize" in this area while further training them in this dynamic area of criminality and law.

From the perspective of law enforcement, a bureau such as this is a much needed arm of the District Attorney's Office. The original unit, founded by two outstanding attorneys and prosecutors no longer with the office, was on the forefront of cybercrime and identity theft investigations when it was created in 2004. Having been one of the original prosecutors assigned to the Identity Theft Unit and the Major Case Section upon their respective creations, I not only learned from these two prosecutors and obtained training in forensics and the investigation of computer crimes, but witnessed firsthand the ease by which these crimes were perpetrated and the creativity of those who sought to benefit from this criminality. The transition of this unit into the new bureau not only displays District Attorney Vance's recognition of the magnitude of these types of crimes, but is a testament to the dedication, work and efforts of the two founders of the unit as well as those currently working there, to bring the Manhattan District Attorney's Office into the new era of identity theft and cybercrime investigations.

As a criminal defense attorney in New York with extensive experience in these types of crimes, I recognize I will have an adversarial role with the bureau representing my clients and zealously advocating for them regardless of the fraud they stand accused of. Despite this adversarial relationship, from the perspective of an everyday New Yorker, I also acknowledge that District Attorney Vance is doing a service to Manhattan and beyond by taking the old unit into the next generation of cybercrime and identity theft investigations.

For more information on Identity Theft and Computer crimes please follow the respective links.

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