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.

Whether you were arrested or issued a New York Desk Appearance Ticket (DAT) for Shoplifting pursuant to New York Penal Law sections 155.25 (Petit Larceny) or 165.40 (Criminal Possession of Stolen Property), the legal standard is the same. Regardless of the crime, police officers in New York City and throughout the state, must have probable cause to arrest you. If not, your criminal defense attorney or lawyer must file a motion for the dismissal and to request a Dunaway hearing (other hearings might be applicable as well). Beyond this basic legal right that you have to prevent unlawful arrests, there are other factors that should be addressed by your criminal defense attorney. The following is a brief analysis of one of such factor.

According to People v. Olivo, 52 N.Y.2d 309, 310 (1981), the Court of Appeals, New York's highest court, has found that in order to sustain a conviction for shoplifting, one's actions must be “wholly inconsistent with the rights of the owner.” Taken further, the Court of Appeals found that “[i]f a customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and other elements of the crime are present, a larceny has occurred.”

Although the above case seems relatively straight forward, there numerous ways to interpret that ruling. For example, what is "wholly inconsistent?" Would placing two sweaters in your large purse be "wholly inconsistent?" What about placing those same sweaters inside your jacket? continuing with the "what if game," what if the store provides bags or carts to carry items before you purchase them and what if they do not? Does this alter whether placing sweaters or even food from a supermarket in your personal bag or jacket is "wholly inconsistent?" If you were still shopping when you were stopped would the case be different then if you walked passed a register, but you had not exited the store?

More analysis after the jump...

Continue reading "New York's "Wholly Inconsistent" Shoplifting Standard: NY Case Law & Applicability to Your Criminal Defense" »

I have routinely advised my clients that if they are questioned by the police they should always call me first. What may seem like innocent questioning may actually be the final steps of a law enforcement investigation that will leave them incarcerated for the foreseeable future. As former Manhattan prosecutors trained under Robert Morgenthau, my partner and I at Crotty Saland, LLP know how an admission by an accused can often be a nail hammered by a defendant into their own coffin.

We routinely file motions for our clients to obtain hearings to challenge the voluntariness of their statement to the police (this is called a Huntley Hearing). Yet, what role, if any, does sleeplessness or intoxication have on ones ability to voluntarily give a statement to the police even if you, the accused, believe you are giving a voluntary statement (did I lose you?!!?)? In other words, does sleeplessness or intoxication negate an otherwise voluntary admission?

Well, a Supreme Court judge sitting in the Criminal Term in Brooklyn (Kings County) New York just dealt with this particular issue as to whether drug use and a lack of sleep could render an otherwise voluntary statement involuntary. In People v. Jeanine Harrington, decided in July 2009, the court found that "[t]he mere fact that a confession is made under such circumstances...does not necessarily render the admission inadmissible. It is a factor to be considered in determining whether the confession was, in fact, the product of a rational intellect and a free will."

In this particular case the defendant admitted to smoking crack and being up all night. Even during the interview the defendant fell asleep. That being said, the defendant may have been "strung out," but was consistent in her answers, did not request that questions be repeated and appeared aware at the time of her questioning.

Although the decision rendered by the court was not analyzed extensively from a legal perspective, it did give genuine insight into the fact that intoxication and sleep deprivation may not render your statement involuntary. The lesson any accused person should take from this case is that instead of regretting what you said and trying to legitimately fight the admissibility of your admission after the fact, it is a "wiser" move to consult with an attorney beforehand. In the event you are unable to do so, asking to speak with an attorney will legally prevent the prosecution or police from questioning you further.

While each case requires its own unique analysis as the best way to protect an accused's rights and liberty, one thing is consistent across all cases. Retaining experienced and knowledgeable criminal defense lawyers, such as the former prosecutors at Crotty Saland, LLP, may mean the difference between maintaining your freedom or compounding the already terrible situation you find yourself in.

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Just about every NY criminal defense attorney has either represented a client charged with Disorderly Conduct or worked out a disposition where Disorderly Conduct was offered in lieu of a top count plea. In the criminal courts of New York City, “Disorderly Conduct” can be heard throughout the hallways and courtrooms before the judge bangs his gavel to start the day until the last cases are called in the evening.

Recently, a NY County Criminal Court judge addressed Disorderly Conduct in denying a defendant’s motion to dismiss. In People v. Derrick Diaz, 2008NY062928, the complaint alleged that the police “observed the defendants yelling and screaming and behaving in a violent, tumultuous, and threatening manner, as follows: pushing at police officers and causing a disturbance. Defendant's [sic] conduct created a public disturbance/inconvenience in that it caused a crowd to gather, disruption of the normal flow of traffic, and people to express alarm.”

Pursuant to subsection one of Disorderly Conduct, a person is guilty of this offense when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he engages in fighting or in violent, tumultuous or threatening behavior.

The defendant argued that the alleged facts set forth in the complaint were insufficient to establish either that he intended to breach the peace or that he recklessly created such breach.

In denying the defendant’s motion to dismiss the judge noted that “[e]ven if the defendant's conduct as alleged failed to establish his intent to create a breach of the peace, the complaint would be sufficient to the extent that it established that the defendant recklessly created a risk of such result. ‘A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustified risk that such result will occur or that such circumstance exists.’ PL §15.05(3). It is reasonable to infer from the facts alleged in the accusatory instrument that the defendant knew that his verbal outbursts and pushing of the officers created a risk that others would be drawn to the scene. As the court noted in People v. Tichenor, 89 NY2d 769 (1997), the statute in question 'applies to words and conduct reinforced by a culpable mental state to create a public disturbance.' Id at 775. A loud and violent confrontation with the police in a residential neighborhood late at night carries the potential of such a result. Whether or not the defendant's conduct actually caused a public inconvenience is irrelevant to a Disorderly Conduct charge." People v. Todaro, 26 NY2d 325, 328 (1970)

Clearly, the Court recognized that it is not the intent that matters, but whether an individual acted reckless with respect to Disorderly Conduct. Although a challenge to this, or any charge, may fail after one particular legal attack, that does not mean that your case is insurmountable. Let the experienced criminal defense attorneys at Crotty Saland, LLP examine your case and explore every legal avenue to mount a stronger or different challenge on your behalf.

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With the recent Extortion attempt of David Letterman by Robert "Joe" Halderman fresh in our minds, now would be a good time to share with my readers what constitutes Extortion under New York State law. As a New York criminal defense attorney and former Manhattan prosecutor who supervised the investigation and prosecution of multiple individuals charged with the Extortion of an NBA All Star, I am intimately familiar with Extortion as it is defined under New York Penal Law section 155.05(2)(e) and under Grand Larceny in the Fourth and Second Degree pursuant to New York Penal Law sections 155.30(6) and 155.40(2) respectively.

Before proceeding with an analysis of the Extortion statute, it is important to note that Extortion is specifically defined under section 155.05(2)(e) of the New York Penal Law. Like larceny by trick, false promise and common law larceny, Extortion is a means by which a larceny is perpetrated. According to NY Penal Law 155.05(2):

A person obtains property by Extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:

(i) Cause physical injury to some person in the future; or

(ii) Cause damage to property; or

(iii) Engage in other conduct constituting a crime; or

(iv) Accuse some person of a crime or cause criminal charges to be instituted against him; or

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

(vi) Cause a strike, boycott or other collective labor group action injurious to some person`s business; except that such a threat shall not be deemed Extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or

(vii) Testify or provide information or withhold testimony or information with respect to another`s legal claim or defense; or

(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or

(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Again, because Extortion pursuant to NY Penal Law 155.05(2)(e) is a means by which a larceny takes place, the value of the property taken or attempted to be taken will determine the level of the offense. For example, if the value of the property is extorted is $10,000.00, then the applicable larceny offense would be Grand Larceny in the 3rd Degree, NY Penal Law section 155.35, because the value of the property exceeds $3,000.00, but is less than $50,000.00.

More definitions and analysis after the jump...

Continue reading "Extortion and Grand Larceny in New York: Your Criminal Defense & an Analysis of NY Penal Law 155.05(2)(e), 155.30(6) and 155.40(2)" »

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

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

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

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

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

The courts reasoning after the jump...

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

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

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

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

Further analysis after the jump...

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

As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many New York criminal defense attorneys do not. The following entry will address some of what happens in this "secret proceeding."

What is the Grand Jury

The Grand Jury in New York State consists of a group of people no different than you or me. Old and young. Doctors and construction workers. Men and women. Black, white and every shade in between. Although in other smaller jurisdictions prosecutors need to convene a Grand Jury, at any given time in New York County (and likely throughout NYC) there are multiple Grand Juries sitting. In fact, Manhattan often has at least three Grand Juries sitting in the morning followed by three in the afternoon. At least one Grand Jury sits all day. This does not include Grand Juries convened by the Office of the Special Narcotics Prosecutor. Grand Juries hear all charged felonies from Assault and Criminal Possession of a Forged Instrument to Identity Theft and Mr. Burress' Criminal Possession of a Weapon.

The Grand Jury consists of up to twenty three people. On any given day, sixteen Grand Jurors are needed for a quorum. A quorum is required before evidence can be heard. Regardless of whether there are sixteen or twenty three Grand Jurors present, twelve Grand Jurors are always need to vote on the evidence.

Burden of Proof

A determination by the Grand Jury to vote a "true bill" or indict a defendant is not a finding of guilt. A guilty or not guilty verdict is rendered at trial. Instead, the Grand Jury must determine whether there is "reasonable cause to believe" that the accused committed the particular felony crime. Unlike "beyond a reasonable doubt" at trial, "reasonable cause to believe" can also be viewed as whether or not a reasonable person believes that it is probable, based on evidence presented, that the accused is guilty of the crime charged. Regardless of whether the case is before the Grand Jury or before a jury at trial, the evidence must always be legally sufficient to support the charges.

Secrecy of the Grand Jury

Prosecutors cannot share with the public what happened in the Grand Jury (who testified, what was said, the result of the deliberations, etc.). In fact, there are criminal ramifications if he or she does so. However, a witness may reveal what he or she testified about, but not the names of other witnesses or their testimony if they know what that testimony was.

Role of the Prosecutor

There is no judge in the Grand Jury. A prosecutor acts as the judge. That means he or she chooses what evidence is admissible and instructs the Grand Jury on the law. Obviously, the law gives the prosecution ample room to decide how and what to present to the Grand Jury. In fact, prosecutors often provide significantly less evidence to a Grand Jury than they would present at trial. A two day Grand Jury proceeding may become a two week trial. However, being given room to interpret the law does not mean the rules of evidence can be abused or otherwise inadmissible evidence is now admissible.

A criminal defense attorney can protest or challenge the prosecution, but since it is a secret proceeding, it is not likely he or she will know what was presented until after a judge reviews the minutes of the Grand Jury proceeding. That being said, a judge is available for criminal defense attorneys and prosecutors to meet with in the event an issue presents itself during the proceeding.

One thing that is unique about the Grand Jury in New York County (Manhattan) is that the Manhattan District Attorney's Office pursues cases through vertical prosecution. In other words, the prosecutor who picks up the case from its inception is the same prosecutor who presents the case to the Grand Jury and ultimately at trial if necessary. This practice is different from other New York City offices where one prosecutor may draft the initial case, one presents it to the Grand Jury and another prosecutor handles it for trial.

Does the Accused have the Right to Testify

In New York State, a defendant has a right to testify before the Grand Jury. In fact, if the prosecution violates this right and presents the case to the Grand Jury, a judge may dismiss the indictment and require that the prosecution re-present the case to the Grand Jury to allow the defendant to testify. More often than not, however, defendants do not testify before the Grand Jury.

Ramifications of testifying after the jump...

Continue reading "The New York Grand Jury, Plaxico Burress and Any Person Accused of a Crime: Beyond a Possible Indictment What Happens Behind Closed Doors" »

Whether you are accused of a "street crime" in New York such as Assault or Criminal Sale of a Controlled Substance (selling drugs) or, in the alternative, you are accused of a White Collar crime such as Money Laundering or Grand Larceny, there are certain defenses specifically outlined in the Penal Law that you need to review with an experienced criminal defense attorney such as the former Manhattan prosecutors at Crotty Saland, LLP. One of those "affirmative" defenses is Entrapment.

According to Penal Law Section 40.05 - Entrapment - "it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment."

William Donnino, the author of the practice commentaries for McKinney's, states that the purpose of the Entrapment defense "is to discourage the use of overzealous methods by law enforcement officials to trap the unwary innocent into commission of an offense. Thus, the main thrust of the section is against pressure methods which may cause the commission of an offense by one who is not ordinarily disposed to commit it. As a practical matter, therefore, the defense of entrapment would not be available to the person who regularly engages in illegal enterprise." That being said, the legal reality is that this "defense is available to all defendants and is not limited to the 'unwary innocent'." People v. Yore, 36 A.D.2d 818 (1st Dept. 1971)

Because the courts hold every person's due process rights to the highest level, even those individuals who are "predisposed" to committing crimes may still be the victims of Entrapment by the police. According to the Court of Appeals in People v. Isaacson, 44 N.Y.2d 511 (1978), when deciding whether this defense is available to these individuals, the courts examine numerous factors including:

(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity;

(2) whether the police themselves engaged in criminal of improper conduct repugnant to a sense of justice;

(3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and

(4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.

It is important to recognize that Entrapment is an "affirmative defense." Therefore, the defendant bears the burden of proof. Although a defendant does not have to prove Entrapment beyond a reasonable doubt, the burden of proof is legally described as preponderance of the evidence. Regardless of the standard, an Entrapment defense is not one that will merely fall into place as a case or trial proceeds. Consult with a criminal defense attorney to identify and investigate the elements and evidence you will need to successfully establish your Entrapment defense.

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

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

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

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

The New York criminal defense attorneys at Crotty Saland, LLP take each and every criminal case seriously whether the case involves a misdemeanor charge of Harassment or a felony charge of Grand Larceny. Our results speak for themselves. We recognize that regardless of how "small" the case may appear to be in the scheme of the entire criminal justice system, to the accused and our criminal defense attorneys, each case is priority matter.

Recently, the attorneys at Crotty Saland achieved what may appear to be a small victory, but one that was hard fought over a period of months. Our client, a former employee at a one of the world's largest media companies, was accused of Prostitution as a "high end girl." After drafting a memorandum similar to a Clayton motion bearing out why the District Attorney's Office should offer a disposition different than the standard offer, the prosecutor assigned to the case agreed to offer such a disposition. However, although our client accepted the offer, upon going to court to accept the plea someone other than the assigned prosecutor changed the offer. A supervisor refused to make the original offer despite the previous agreement. Therefore, our client was unable to obtain the agreed upon disposition and the case was adjourned.

Further attempts were made to obtain the previously agreed upon disposition, but again, the supervisor refused to honor the agreement. On the following court date a different, but unacceptable offer was made. Again it was rejected. Because no legal notices were given that would require motions to challenge statements or identification and there were no issues regarding property recovered from the defendant, motion practice was waived and the matter was adjourned for trial.

Upon returning to court 63 days later we made an application that the case should be dismissed. Pursuant to CPL 30.30, the People must be ready for trial within 60 days from the beginning of the case where the charge is a "B" misdemeanor. The prosecution had not indicated at any point that they were ready for trial. The People refused to concede and the case was adjourned for a decision on the matter after after parties filed legal motions.

Without going into all the details of the motion to dismiss, one of the issues was whether the prosecution is given a "reasonable" amount of time to prepare for trial after an adjournment for the purpose of starting a trial. This particular judge had previously ruled in a published decision in the the New York Law Journal on a matter with similar facts. In that decision the court relied on, among other things, an earlier decision where it was held that the prosecution should be granted a "reasonable" amount of time to prepare for trial and denied that criminal defense attorney's motion to dismiss.

Despite the court's previous decision, we argued that there was a critical distinction between the cases. That is, in our client's matter motions were waived and a trial was requested. At no time did we ask to make motions to challenge legal issues because none existed at that time. The cases cited by the court in its earlier decision and those beneficial to the prosecution dealt with facts where motion practice was requested, but on the date the motions were due the criminal defense attorney waived the motions and asked for trial. Therefore, arguably, in the latter scenario, the People should be permitted a "reasonable" period of time to prepare for trial. In our client's case there was never a request to file motions. As a practical matter we argued that granting a "reasonable" period of time to prepare for trial where there were no motions or legal issues pending would be tantamount to ruling that in every case the prosecution would always get a "bonus" period of time to prosecute the accused. Armed with numerous court decisions and applicable statutes, the court granted our motion over the prosecutor's protest.

The fact that this case involved the charge of Prostitution is irrelevant. The same statutes and court decisions apply to criminal cases throughout New York. What is important is that we were able to identify the distinctions in the law (and a distinction from this particular judges published decision relating to the same crime and same issue), find applicable cases and apply them to our client's legal matter to get it dismissed. Without a doubt, each case handled by Crotty Saland, LLP requires and is deserving of our experience and relentless efforts - "big" or "small." Our results would not be the same without this effort.

Any NY criminal defense attorney can explain very simply the power of DNA in tying suspects to crimes. Unfortunately for a recently arrested Brooklyn man, it does not appear that anyone ever explained this to him. According to the Brooklyn (Kings County) District Attorney's Office, the Grand Jury indicted Erick Clements about a week ago for Attempted Assault in the First Degree, Attempted Assault in the Second Degree, Attempted Robbery in the First Degree and Attempted Arson in the Second Degree. It is alleged that Mr. Clements "attempted [to] assault...a subway token clerk by trying to light him and his booth on fire during an attempted robbery." This incident occurred back in November of 2007.

Regardless of the accusation, the Brooklyn District Attorney's Office still must prove the case beyond a reasonable doubt. While that proposition might be easier at certain times than other times, in Mr. Clements' case, the District Attorney's Office is armed with very powerful evidence. That evidence is DNA.

In this particular case, it is alleged that at the time or shortly after Mr. Clements tried to burn and rob the subway token clerk, Mr. Clements lost his hat and fled. The police recovered the hat and sent it to the lab be tested for DNA. The test revealed DNA and after investigation by law enforcement, the police linked that DNA to Mr. Clements. As a result, over one year later the Grand Jury indicted Mr. Clements.

Although Mr. Clements has a long battle before him, DNA alone does not equate to guilt. Certainly, as stated above, DNA may be overwhelming in many circumstances. However, DNA does not equal guilt and other facts must be addressed. Here, is it possible that Mr. Clements was present when the incident occurred, but he was not involved? Did Mr. Clements run when he saw the fire, lost his hat, but took no part? Was there any other DNA in the hat? Is there video establishing or corroborating that Mr. Clements was there or did someone else have the hat that contained Mr. Clements' DNA? These are just some questions that are clearly relevant. Not knowing the facts beyond the press release, I am not prepared to answer how, if at all, the answers to these questions specifically changes anything. Irrespective of the facts in this particular case, DNA is a powerful piece of evidence in any criminal case that can implicate and even vindicate the accused.

You should not have to rely solely on your New York criminal defense attorney to explain every facet of every law. While the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP, will take the time to explain the law and navigate you through the murky waters of the criminal justice system, educating yourself and being prepared is often one of the best ways to avoid needing a criminal defense attorney in the first place.

Criminal defense attorneys, prosecutors and judges often throw around words that may be confusing to a person not involved in the criminal justice system. As a way to jump start your understanding of the law we will address a few of those words and their definitions.

Article 10 of the New York State Penal Law defines the following terms:

(1) Offense - Generally, an offense is conduct that is punishable by a term of imprisonment.

(2) Violation - A violation is an offense, not including a traffic infraction, where the potential sentence cannot be greater than fifteen days jail. It is important to note that a violation is not a crime. Therefore, if you plead guilty to a violation you will not have a criminal record as a result of that particular plea.

(3) Misdemeanor - Like a violation, a misdemeanor is an offense that does not include a traffic violation. A potential sentence for a misdemeanor exceeds the fifteen days of a violation, but cannot be greater than one year in jail. Misdemeanors are described as "A" misdemeanors, "B" misdemeanors and "unclassified" misdemeanors. While "A" misdemeanors are punishable by up to one year, "B" misdemeanors are punishable by up to ninety days jail.

(4) Felony - A felony is an offense where the punishment may exceed the one year maximum associated with misdemeanors. Felonies are range from an "E" felony to an "A" felony.

(5) Crime - Again, a violation is not a crime. A crime is either a misdemeanor or a felony. If you have been convicted of a violation such as disorderly conduct, Penal Law 240.20, you would not have a criminal record as a result of that particular plea or conviction.

The above information is not an all encompassing tutorial on the criminal law in New York, but at a minimum it can put you on the right path to understanding charges, how they are classified, and the ramifications. If you find yourself the target of or arrested for any offense, contact Crotty Saland, LLP, to protect your rights, liberty and integerity.

Through our years of as prosecutors and criminal defense attorneys, we at Crotty Saland, LLP have seen the charges before...Scheme to Defraud...Grand Larceny...but usually not in the context I am about to share with you. Unfortunately, I don't think this will be a shock to anyone, but attorneys...that's right, criminal defense attorneys, divorce attorneys and real estate attorneys, can be the biggest perpetrators of fraud. Because of this, it is imperative that you do your homework before handing someone not merely a retainer fee, but the reigns to your life. Don't learn this lesson after it is too late.

The Manhattan District Attorney's Office just announced an arrest and indictment today of a 59 year old man who had been pretending to be an immigration lawyer. The defendant, Victor Espinal, has been indicted on one count of Grand Larceny in the Third Degree, one count of Scheme to Defraud in the First Degree, one count of Grand Larceny in the Fourth Degree and two counts of Practicing or Appearing as an Attorney-at-Law Without Being Admitted and Registered. If convicted, Mr. Espinal faces up to seven years in state prison on the most serious offense of Grand Larceny in the Third Degree and one year in jail on the least serious offense of Appearing as an Attorney-at-Law Without Being Admitted and Registered.

According to the Manhattan District Attorney's Press release Mr. Espinal allegedly pretended to be an immigration attorney and accepted multiple thousands of dollars in fees for multiple clients during a five year period. The fees were to assist those clients in obtaining a green cards, visas and work permits. Instead of helping these individuals with their immigration issues, Mr.Espinal allegedly pocketed the money in this scheme and helped himself to the finer things in life.

As I sometimes note, there is always a lesson to be learned in every case. As I stated above, before retaining an attorney make sure that attorney is registered and has experience in your particular area of need. Get agreements in writing and maintain receipts. The person who has the most at stake in your case is you. Your attorney should be willing and able to stand with and next to you throughout your legal battle. Hopefully, Mr. Espinal, an any accused individual, should now recognize the importance of retaining REAL counsel. After all, only experienced and skilled criminal defense attorneys have the ability and knowledge to represent him and see that his rights are preserved.

If you have just been arrested for Shoplifting, Forgery or Gun, Knife or Weapon Possession, it may not be comforting at all to you to know that there is a downward trend in crime. According to a recent report on crime in New York City (Manhattan, Brooklyn, Bronx, Queens and Staten Island) by CompStat, overall crime has fallen by 3.4 percent in 2008. The Compstat program tracks criminal activity for New York City as an arm of the NYPD. A closer look at the numbers reveals that while Homicides and Robberies are on the rise (there were 26 more Homicides and approximately 500 more Robberies when compared to 2007), other crimes have dropped.

While a general decrease in crimes is a great thing for all of us and our families, statistics are merely statistics and need to be examined. For example, are precincts under reporting certain "quality of life crimes" by classifying them or calling them something different than what they are? For example, without discussing the differences in the crimes, could there be a decrease in Petit Larceny offenses because the police are charging Criminal Possession of Stolen Property instead? In the alternative, have the police wanted to look as if they are tougher on crime by overcharging certain offenses. Is that Robbery really a Grand Larceny from the person (a similar offense to Robbery, but without the force). Again, there is no legitimate argument to be made in opposition to a decrease in crime, but is always important to question and examine the statistics and how they were gathered, assessed and formulated.

Whatever the case may be, increase or decrease in crime, if you or a loved one is charged with an offense it doesnt matter what the daily, monthly, or yearly crime trend is. What matters is that you have been accused of committing a life altering action. If you find yourself in this situation, let the former Manhattan prosecutors at Crotty Saland, LLP work to get you where you need to be to preserve your integrity, freedom and rights. After all, you don't want to be one of the statistics the next time the NYPD compiles and delivers its report on crime.

After months of planning, Jeremy Saland, the founding member of the Law Office of Jeremy Saland, a NY based criminal defense firm, is pleased to announce his partnership with Elizabeth Crotty and the formation of Crotty Saland, LLP. Obtaining successful results for our clients since our inception, Crotty Saland, LLP, is a full service law firm representing clients in all criminal matters in New York State and Federal courts. Although the main focus of Crotty Saland, LLP, is representing clients in all stages of a criminal investigation from pre-arrest procedures through hearing, trials and appeals, we also represent clients in civil litigation and other legal matters as well.

Prior to forming Crotty Saland, LLP, both Jeremy Saland and Elizabeth Crotty served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office. Elizabeth Crotty served in Trial Division where she was assigned to the Domestic Violence Unit and handled cases from pre-arrest investigations through grand jury and trial. Additionally, Ms. Crotty served in the Investigation Division in the Special Prosecutions Bureau where she prosecuted international white collar fraud schemes and worked on the Oil-For-Food Investigation involving the United Nations. Upon leaving the Manhattan District Attorney's Office after six years of service, Ms. Crotty was an associate at a boutique civil litigation firm in Manhattan for over two years.

Like Ms. Crotty, Mr. Saland served in the Trial Divistion of the Manhattan District Attorney's Office and the Domestic Violence Unit where he conducted numerous hearings and tried numerous cases involving crimes of fraud, theft and violence. Mr. Saland continued to gain valuable experience working alongside the NYPD, Secret Service, State Department and Postal Inspection Service conducting large scale fraud investigations after his assignment to the Identity Theft Unit. As one of the founding members of the Identity Theft Unit upon its creation, Mr. Saland received hands on training in crimes relating to computer fraud, identity theft and other offense. Upon leaving the Manhattan District Attorney's Office after seven years of service, Mr. Saland worked in two boutique criminal defense firms before starting his criminal defense practice and ultimately Crotty Saland, LLP.

Whether you are a witness to or a target of any criminal investigation, you have already been arrested, or you are seeking experienced counsel on a complex civil matter, Crotty Saland, LLP knows there there is no substitute for dedicated, experienced, and skilled counsel. Whatever legal issues you may face, Crotty Saland, LLP is ready to formulate and implement a plan of action to protect your rights, liberty and integrity.

In a previous entry I discussed the general concept of the "affirmative defense." Now that you have an understanding as to what a New York criminal defense attorney means when referring to such a defense, I wanted to take the opportunity to set forth some specific "affirmative defenses" from the New York Penal Law. Again, these defenses are statutory defenses where your criminal defense attorney bears the burden, and not the prosecution, in proving the defense beyond a preponderance of the evidence. The following are some examples:

New York Penal Law 190.15 - Affirmative Defense for Issuing a Bad Check

It is an "affirmative defense" if the defendant or person acting in his behalf made full satisfaction of the amount of the check within ten days after dishonor by the drawer.

New York Penal Law 190.84 - Affirmative Defense for Identity Theft or Unlawful Possession of Personal Identification Information

It is an "affirmative defense" if the defendant was under twenty one and possessed or used the identifying information of another for the sole purpose of purchasing alcohol or was under eighteen and possessed or used the personal identifying information of another person for the purpose of purchasing tobacco. In other words, the New York State Legislature did not want to punish young people who were buying alcohol or tobacco with fake IDs as if they were committing felonies.

New York Penal Law 210.25 - Affirmative Defense 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 clear that its falsity was or would be exposed.

New York Penal Law 135.30 - Affirmative Defense for Kidnapping

It is an "affirmative defense" that (a) the defendant was a relative of the person abducted, and (b) his sole purpose was to assume control of such person.

New York Penal Law 130.10 - Affirmative Defense for Rape and Other Sex Offenses

It is an "affirmative defense" of any prosecution under this article in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the factors or conditions responsible for such incapacity to consent.

An experienced and skilled New York criminal attorney should be able to advise you on possible and potential defenses to the crimes you stand accused of in any New York jurisdiction from Manhattan and Brooklyn to White Plains and Yonkers. For example, you may have an alibi in a Burglary case, the gun you are charged with possessing was inoperable in a Criminal Possession of a Weapon case or maybe the alleged stolen proceeds you possessed were aggregated or added up improperly in a Grand Larceny case. Even better yet, maybe you just did not commit any crimes!!

While the above scenarios are merely hypothetical examples, an examination of New York criminal law reveals that at trial, an accused may have a defense that is or is not an "affirmative defense." Generally, according to Article 25 of the New York Penal Code, if a defendant raises a defense at trial the People, also called the prosecution, have the burden of disproving the defense beyond a reasonable doubt. This means that once set forth, the prosecutors must prove to the jury or the judge beyond a reasonable doubt that the defense is not legitimate. On the other hand, certain statutes set forth an "affirmative defense" that the defendant, not the prosecution, has the burden of establishing beyond a preponderance of the evidence.

So, when is a defense to a crime an "affirmative defense" that you and your criminal defense attorney must prove beyond a preponderance of the evidence as opposed to a "regular"defense that the prosecution must disprove beyond a reasonable doubt. The answer to this question is to look specifically at the statute of the crime you are charged with.

For example, in a prosecution for Grand Larceny or Petit Larceny there are two affirmative defenses built into the statute under New York Penal Law 155.15. The first of theses defenses states that where one is being prosecuted for a larceny by trespassory taking or embezzlement, it is an "affirmative defense" that the property was appropriated or taken under a claim of right made in good faith. Additionally, if alleged crime is a larceny by extortion where the extortion was committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and the sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.

While it is important to note that a specific "affirmative defense" is clearly set forth by statute, after reading the paragraph above it is also apparent that the language of the "affirmative defense" may not be so clear. Not only can a NY criminal defense lawyer explain a specific "affirmative defense" a criminal lawyer will also be able to examine the facts of your case to see whether such a defense applies.

Before pleading guilty to any crime or considering to do the same, consult a criminal defense attorney and determine what, if any, type of defense you may have.