New York Criminal Lawyer Blog

Maybe you stole a couple of sheets from a physician's prescription pad and made out a completely fake prescription for drugs and medicine such as Vicodin, Oxycodone or OxyContin. Maybe you altered your doctor's legitimate prescription by increasing the dosage or amount of Xanax, Adderall or Ritalin. Regardless of how the fraudulent prescription is drafted, as long as it is in fact altered you may face the "D" felonies of Criminal Possession of a Forged Instrument in the Second Degree or Forgery in the Second Degree.

If you actually drafted, created or altered the prescription fraudulently, a likely charge you will face is Forgery in the Second Degree pursuant to New York Penal Law 170.10(5). Often times, however, the police and prosecutors do not catch the person in the act of the alteration. Instead, either a search of a vehicle, a person's clothing or even the retrieval of the forged prescription from a pharmacist will result in a charge of Criminal Possession of a Forged Instrument in the Second Degree pursuant to New York Penal Law 170.25. Regardless of which offense is charged, a conviction for these felonies is punishable by up to seven years in state prison.

The actual law is not as simple as presented above. For example, the prosecution must establish beyond a reasonable doubt that you had the intent, for example, to deceive, injure or defraud another. Moreover, as it relates to a physician or doctor's prescription in New York, there is specific language that governs both Forgery and Criminal Possession of a Forged Instrument. New York Penal Law sections 170.10(5) and indirectly 170.20 establishes that a person would be guilty of these crimes if the written instrument purports to be:

"A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law."

It is worth noting in this entry that if you are successful in obtaining the prescription medicine and you no longer have the fraudulent prescription as it is in the possession of the pharmacist, you are not "safe" from prosecution. Assuming it can be established that you possessed that prescription earlier and provided it to the pharmacist, you can still be charged with one of these crimes. Moreover, although a different crime, if you are found in possession of a medicine that is also a controlled substance, you can face narcotics related charges. While simple possession may only be a misdemeanor (Criminal Possession of a Controlled Substance in the Seventh Degree) you may be charged with other offenses including Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony, in the event the prosecution can establish you had the intent to sell the drugs.

This brief blog entry should make it overwhelmingly clear that accusations involving prescription drug abuse, prescription fraud and possession of controlled substance are all serious offenses in New York. While you may have a strong defense to these crimes that need to be vetted with your counsel, the road ahead will certainly be trying.

For further information on the crimes of New York Forgery, New York Criminal Possession of a Forged Instrument and New York Criminal Possession of a Controlled Substance, please follow the highlighted links.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland LLP represent the accused throughout the New York City region.

If you possess a fake, fraudulent or forged credit card, you may be charged with a "D" felony in New York in violation of New York Penal Law 170.25, Criminal Possession of a Forged Instrument in the Second Degree. It makes no difference whether the credit card is completely fake, has altered names on it, incorrect information on the magnetic strip or is fraudulent in many other ways. In fact, depending on how the credit card is manipulated, you may also face numerous other felonies including, but not limited to, Identity Theft in the First Degree and Criminal Possession of Stolen Property in the Fourth Degree. These crimes are "D" and "E" felonies punishable by up to seven and four years in state prison respectively.

A common defense to the charge of possessing a forged credit card asserted by the accused is that they were not using the alleged fake credit card. Even if they were using the forged credit card, the accused may argue that they were unaware that the credit card was in fact a forged instrument (fake). While this may be a viable defense, prosecutors won't merely roll over. Certainly, it is the prosecution's burden to prove your knowledge and intent (Criminal Possession of a Forged Instrument requires your intent to defraud or deceive another), but is there anything in their legal arsenal that may assist them in proving that you knew that the credit or debit card was in fact forged despite your claim?

The answer to the above question is found in New York Penal Law section 170.27. Pursuant to section 170.27, if you possess more than one credit or debit card that is forged, the law permits the prosecutor to instruct the Grand Jury or a judge to instruct a trial jury that it is presumed that you possessed those credit or debit cards with the knowledge that they were forged and with the intent to defraud, deceive or injure another person. In other words, if you only possess one fraudulent credit card the prosecution cannot ask for this presumption, but if you possess more than one credit card a jury will be instructed that they may follow this legal guideline.

It is important to note that the presumption is not mandatory, meaning, a jury may decline to follow it. Regardless, having this instruction read to a jury can be extremely damming to your criminal defense. Whether or not this particular statute is read to the jury may have an impact on your case, but it should not have an impact on your New York criminal defense attorney's advocacy as it relates to your arrest and recovery of the alleged forged instruments as well any other applicable defense you might.

For information on the crimes of Criminal Possession of a Forged Instrument, Identity Theft and Forgery in New York, please click on the respective links. Additional information, including legal decisions and related criminal statutes, can be found on the New York Criminal Lawyer Blog web page as well as the Crotty Saland LLP website.

Founded by two former Manhattan prosecutors, Crotty Saland LLP is a New York criminal defense firm representing individuals throughout the New York City region.

You go into a restaurant in Manhattan or store in Brooklyn and pay with cash. It turns out, one of the $20 or $100 dollar bills is fake and a forgery. In the alternative, you are arrested for an unrelated charge in Queens and when you are searched, the police recover numerous counterfeit $50 dollar bills. Unfortunately, you find yourself under arrest and charged with a crime and in need of a New York criminal defense lawyer experienced in counterfeit money crimes, Forgery and Criminal Possession of a Forged Instrument. As you wrap your head around the turn of events you begin to wonder about the crimes you may now face, what the potential punishments are and what are your defenses.

New York Crimes for Possessing Counterfeit Money

In New York State, one may be charged with a few different crimes for possession of counterfeit currency. The most likely offense, and the one we will address in this entry, is the felony of Criminal Possession of a Forged Instrument in the First Degree pursuant to New York Penal Law section 170.30 (NY PL 170.30).

In general, one is guilty of NY PL 170.30 as it applies to counterfeit money when one possesses a written instrument which purports to be money with the knowledge that the currency is forged (not real) and with the intent to defraud another person with that counterfeit money.

Potential Punishment for Possessing Counterfeit Money

If one is convicted of Criminal Possession of a Forged Instrument in the First Degree in New York, one faces up to 15 years in state prison. If one has no prior criminal record there is no mandatory term of incarceration, but the maximum term is 5 to 15 years. If one is a predicate felon (generally has a prior felony in the last ten years), then one faces a mandatory minimum sentence of 3 to 6 years and a maximum sentence of 7.5 to 15 years in prison.

Potential Criminal Defense to NY PL 170.30 as it Relates to Counterfeit Currency

While this entry should not serve as advice or guidance for your particular matter, the following are some ideas or issues that can be discussed with your New York criminal defense attorney if you determine it is relevant and worthy to do so.

(1) A key element to this offense is the element of knowledge. You must know the instrument (currency) is fake or forged. Certainly, your lack of knowledge may be more believable to the prosecution or a jury if the counterfeit bill is only one or a couple out of many in your possession as opposed to each and every bill. It may also be difficult for the prosecution to prove the element of knowledge beyond a reasonable doubt depending on the quality of the alleged counterfeits. For example if you have two fake $20s amongst fifteen real $20s and they look good, how could you have know it was fake (that is an argument that needs a much deeper analysis and explanation)? Did you only try to pass those fake $20s and hold onto the real ones? Do you have a job or career that would give you access to that money? Do you have proof that you went to a bank or ATM? In the alternative, if the alleged counterfeits were so bad and would not likely fool anyone, how will the prosecution prove you had an intent to defraud?

(2) Another issue is the search of your person. What was the basis of your stop? Did the police have grounds to search you and recover the allegedly fake currency? This defense is applicable to many crimes beyond Criminal Possession of a Forged Instrument in the First Degree as it relates to counterfeit money.

(3) Did you make any statements? If so, can you corroborate your claims? In the alternative, if your statement was not exculpatory, did you inculpate yourself by making some form of an admission? If you made an admission, was it the product of a custodial interrogation and, if so, were you advised of your rights?

The above defenses are very general and merely gloss over what would typically require an in depth analysis in each and every case. For further information on New York White Collar Crimes as well as New York Fraud Related Offenses, please review Crotty Saland's New York criminal lawyer blog (NewYorkCriminalLawyerblog.Com) or review the the NY White Collar Crime section and subsections of the website.

Jeremy Saland and Elizabeth Crotty both served as prosecutors under Robert Morgenthau in the Manhattan District Attorneys office prior to starting the New York criminal defense firm. Crotty Saland LLP represents clients in all criminal matters throughout the New York City region.

The New York criminal defense attorneys at Crotty Saland LLP are pleased to announce that we recently expanded the New York White Collar Crime section of our website. While each case requires its own analysis and the information on the website and blog should not be used as advice, the New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland LLP view the detailed New York Grand Larceny section and accompanying blog as a top source for information on New York theft and larceny crimes. Whether you are investigated or arrested in Manhattan for Grand Larceny by Embezzlement, Brooklyn for Grand Larceny by Extortion, Westchester for Grand Larceny of a Credit Card or Debit Card, the Bronx for Grand Larceny of a Vehicle, Queens for Grand Larceny of a Firearm or any other form of Grand Larceny (NY PL 155.30, 155.35, 155.40 or 155.42) in New York, the information contained in these sections are for your review. Certainly one's best defense to a charge of Grand Larceny is never getting involved in the crime in the first place, but educating one's self on the law of Grand Larceny so one can understand the nuances, degrees and punishment for the crime is also invaluable.

If you have been accused of or are being investigated for Grand Larceny anywhere in New York City or the metropolitan area, please review the New York Grand Larceny section found under the White Collar Crime topic area of Crotty Saland LLP's website at CrottySaland.Com. Additionally, please review NewYorkCriminalLawyerblog.Com and search for Grand Larceny or review the NY Theft Offense, NY White Collar Crime and the NY Fraud Related Offenses sections of the blog. For further information on the types of Grand Larceny cases handled by Crotty Saland LLP and the Grand Larceny results, please review the Case Results section of the website.

Although no substitute for a consultation with a New York criminal defense lawyer as to your particular set of facts, the above resources should be able to put you in a position to have a better grasp on this area of the New York Penal Law.

Crotty Saland LLP is a New York white collar criminal defense firm founded by two former Manhattan prosecutors and is located approximately two blocks from the state and federal courts in New York City.

With the search by New York State to find money to plug the budget gap, prosecutors are continuing to come down hard on New York white collar crimes where restitution or asset forfeiture may be part of a disposition. Two sets of crimes, New York Insurance Fraud (Article 176 of the NY Penal Law and New York Grand Larceny (Article 155 of the NY Penal Law, are two such crimes. In fact, often times when one is investigated, arrested or indicted for Insurance Fraud in New York, the crime of Grand Larceny is an integral part of that investigation, arrest or indictment.

While I will not address the definitions of each of these crimes (extensive information on Grand Larceny in New York and Insurance Fraud in New York can be found through the respective links), an interesting question is as follows: If you are charged with both crimes, but ultimately you are acquitted of one of those crimes, can you still be convicted of the other or is it legally "repugnant" and invalid?

On its face, if you are alleged to have perpetrated Insurance Fraud and as a result obtained or "stole" money you were not entitled to, but a judge or jury acquits you of the Grand Larceny, how can the Insurance Fraud "survive?" After all, isn't it the purpose of the alleged criminal scheme involving Insurance Fraud to steal money and commit a larceny?

Unfortunately, law is not math or science. The answer to the above question is it "depends" on your jurisdiction since New York's highest court has not rendered a specific decision as to Insurance Fraud and Grand Larceny along with a repugnant verdict. Although the following is not an in depth analysis of the issue and should not be relied upon as a substitute to discussing the evidence in your case with an experienced New York criminal defense attorney, the following two cases certainly shed light on the question.

In People v. People v. Alfaro, 108 A.D.2d 517 (2nd Dept. 1985), the Appellate Court held that the verdict acquitting Alfaro on the attempted larceny offense did not render his conviction on the Insurance Fraud repugnant or legally improper. The Court stated that:

"In creating the crime of insurance fraud, the Legislature and the Governor obviously did not believe that it and the crime of larceny contained identical elements ( see, Insurance Law § 38; Governor's Approval Memorandum, 1981 McKinney's Session Laws, pp 2617-2618) and the statutory language itself shows this to be so. Larceny requires a finding of an “intent to deprive another of property or to appropriate the same” and a wrongful taking, obtaining or withholding of property from its owner (Penal Law § 155.05 [1] ). On the other hand, insurance fraud requires a finding that the defendant “knowingly and with intent to defraud presents * * * any written statement as part of, or in support of, an application for the issuance of * * * a claim for payment or other benefit pursuant to an insurance policy” (Penal Law § 176.05)."

"Thus, it is clear that the elements of the two are completely different and that an acquittal of a larceny charge does not negate an essential element of insurance fraud. While larceny provisions address the wrongful taking of property with the intent to deprive someone of that property, the essence of insurance fraud is the filing of a false written statement as part of a claim for insurance. Consequently, the trier of fact may have concluded that the defendant intended to defraud the insurance company but did not intend to steal property ( see, People v. Pisano, 105 A.D.2d 1156, 482 N.Y.S.2d 593). Though perhaps illogical, the verdicts may stand ( see, United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461; People v. Goodfriend, 64 N.Y.2d 695, 485 N.Y.S.2d 519, 474 N.E.2d 1187; People v. Pisano, supra ; People v. Gross, 51 A.D.2d 191, 198, 379 N.Y.S.2d 885; People v. Pugh, 36 A.D.2d 845, 321 N.Y.S.2d 504, supra )."

Despite the holding in Alfaro, a lower court in Ulster County confronted with similar facts found that the acquittal on the attempted larceny charge rendered a conviction on the Insurance Fraud count repugnant and therefore, invalid. In People v. Alfano, 131 Misc.2d 843, (Ulster Cty Ct. 1986), a County court sided with the dissenting justice in the Alfaro decision (names are close, but different). The Ulster County court, citing the dissent, reasoned that:

"[T]here does not appear to be any logical way that a person could engage in insurance fraud by knowingly and with intent to defraud submitting papers in support of a false claim for payment, without at the same time attempting to commit a larceny. That is, when one submits false papers in support of a claim for payment for his own benefit or that of another, he is concomitantly attempting to commit a larceny by wrongfully obtaining property by false pretenses from the insurer.... Thus, even though the language of the statutes is not the same, the underlying meaning clearly coincides."

While the two cases above are not from the Court of Appeals, New York's highest court, they certainly give insight into the reasoning behind the respective decisions. Although neither the 2nd Department or Ulster County renders decisions that are controlling in a Manhattan courtroom, for example (the 1st Department is the appellate court for Manhattan), both of these cases may be applicable in your particular circumstances and are worthy of further discussion or review with your New York criminal defense attorney.

Founded by two former Manhattan prosecutors, Crotty Saland LLP is a New York criminal defense firm representing clients throughout the New York City region. For further information on various New York Penal Law statutes, legal decisions and newsworthy cases, please review the New York criminal lawyer blog at NewYorkCriminalLawyerBlog.Com or our website.

Much like the New York Grand Larceny statutes, Criminal Possession of Stolen Property in New York ranges from a misdemeanor (NY PL 165.40) punishable by up to one year in jail (often associated with New York shoplifting and Desk Appearance Tickets throughout Manhattan, Brooklyn, Queens and the Bronx) to a felony punishable by up to 8 and 1/3 to 25 years in state prison. Before addressing the legal presumptions and defenses set forth in the penal law, I will briefly address each of the varying levels of Criminal Possession of Stolen Property solely as it relates to the value of the property.

Criminal Possession of Stolen Property in Fifth Degree - NY PL 165.40

A person is guilty of Criminal Possession of Stolen Property in the Fifth Degree when he knowingly possesses property that is stolen and he also has the intent to benefit himself or another person or impedes the owner from recovering the property. New York Penal Law 165.40 is an "A" misdemeanor punishable by up to one year in jail.

Criminal Possession of Stolen Property in Fourth Degree - NY PL 165.45

The value of the stolen property exceeds $1,000. New York Penal Law 165.45 is an "E" felony punishable by up to four years in state prison.

Criminal Possession of Stolen Property in Third Degree - NY PL 165.50

The value of the stolen property exceeds $3,000. New York Penal Law 165.50 is a "D" felony punishable by up to seven years in state prison.

Criminal Possession of Stolen Property in Second Degree - NY PL 165.52

The value of the stolen property exceeds $50,000. New York Penal Law 165.52 is a "C" felony punishable by up to fifteen years in state prison.

Criminal Possession of Stolen Property in First Degree - NY PL 165.54

The value of the stolen property exceeds $1,000,000. New York Penal Law 165.54 is a "B" felony punishable by up to twenty five years in state prison.

Although there are four legal presumptions associated with New York Penal Law 165.55, the following is one of the more relevant and common ones:

A person who knowingly possesses stolen property is presumed to possess it with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof. This presumption, taken further and with a slight twist, is known as "recent exclusive possession." A tremendous body of case law addresses this presumption that stands for the position that if an accused has exclusive possession of the property shortly after a theft crime is perpetrated and there are circumstances such as the inability to explain where the property came from, a negative inference may be drawn. That inference is that the accused knew that the property he or she possessed was stolen.

In addition to the above presumption(s), there are statutory provisions that establish certain "non defenses" to the crime of Criminal Possession of Stolen Property. Pursuant to New York Penal Law 165.50:

In any prosecution for Criminal Possession of Stolen Property, it is no defense that:

1. The person who stole the property has not been convicted, apprehended or identified; or

2. The defendant stole or participated in the larceny of the property (the theft or taking); or

3. The larceny of the property did not occur in this state.

The above statutes and analysis are not substitutes for consulting with a New York criminal defense attorney as to the particular facts and application of the law in your case, but is a good place to start educating yourself on the crime of Criminal Possession of Stolen Property.

Crotty Saland LLP is criminal defense firm located in New York. Founded by two former Manhattan prosecutors, Crotty Saland LLP represents clients throughout the New York City region in white collar and theft related crimes and investigations.

For further information on Desk Appearance Tickets in New York or the varying statutes related to New York Grand Larceny, please follow the highlighted links.

New York Criminal defense attorneys from Manhattan and Brooklyn to Queens and Westchester County regularly represent individuals arrested or investigated for the crime of New York Forgery in its various shapes and sizes. When the Forgery in New York involves a "written instrument," the applicable crime, depending on a few factors, is either New York Penal Law 170.05, New York Penal Law 170.10 or New York Penal Law 170.15. The latter two offenses are felonies while the first offense is a misdemeanor. One particular offense relating to Forgery that is applicable to crimes involving cars and other vehicles is New York Penal Law 170.65, Forgery of a Vehicle Identification Number.

According to New York Penal Law 170.65, a person is guilty of Forgery of a Vehicle Identification Number when, among other potential factors:

(1) He knowingly destroys, changes, alters or even covers the form or appearance of a vehicle identification (VIN) number on any vehicle (car,truck. etc.) and anywhere on that automobile other than the tires.

(2) He gets rid of or removes the VIN unless authorized to do so.

(3) He affixes a VIN to a vehicle (barring it was done in accordance with a statute).

Forgery of a Vehicle Identification Number is a class E felony punishable by up to four years in state prison.

For those who are unaware, a VIN is a unique number assigned to a particular vehicle and can be found on parts of that automobile, car, truck, motorcycle, etc. For example, on the dashboard of a car by the driver's side there is a metal bar with a combination of numbers and letters. This is the VIN. If you scratch away a number or letter, change a particular number or letter or remove the VIN number, the crime of Forgery of a Vehicle Identification Number is likely perpetrated. Like any crime, however, there is a requisite mental state. Merely being in a vehicle with an altered VIN number does not automatically make you guilty of this offense. For example, as noted in subsection one (1) above, the person must knowingly act as stipulated. Obviously, the set of facts for each incident requires an analysis to ascertain not merely whether or not you are guilty of the offense charged, but also whether or not the prosecution has the ability and admissible evidence to prove their case beyond a reasonable doubt.

Crotty Saland LLP is a New York white collar and general criminal defense firm located in Manhattan. Prior to starting Crotty Saland LLP, the two founding partners served as prosecutors under Robert Morgenthau in the New York County District Attorney's Office.

Before the dawn of identity theft laws, the crime of Criminal Impersonation, pursuant to New York Penal Law sections 190.25 and 190.26, was the weapon of the assistant district attorney to prosecute fraud crimes related to one's identification or persona in New York. This entry will address the crime of Criminal Impersonation in Second Degree (NY PL 190.25) and Criminal Impersonation in the First Degree (NY PL 190.26). A second entry will address legal decisions applicable to these laws.

Criminal Impersonation in the Second Degree - New York Penal Law 190.25

A person is guilty of Criminal Impersonation in the Second Degree when he:

(1) Impersonates another person. This impersonation must be accompanied by an intent to obtain a particular benefit or, in the alternative, to defraud another person. Although often charged as Theft of Services, pursuant to New York Penal Law 165.15, if one uses a metrocard, for example, of a student or senior citizen, the crime of NY PL 190.25 may be charged.

2. Again, with the intent to benefit or defraud another person, a person pretends to be a representative of a particular organization and acts in that capacity. The type and size of that organization does not matter.

3. (a) A person acts and pretends to be a public servant and, without authority, wears that particular uniform or shield, etc. of that public servant. In the alternative, that person, wrongfully expresses by action or words that he or she is the public servant or acting o their behalf; and (b) acts with intent to induce that person to submit to such pretended or false official authority for the purpose of obtaining funds or to cause the targeted person to act under the fraudulent authority or reliance on the fake public servant.

4. Impersonates another person online with the intent to defraud or obtain a benefit. In the alternative, that person pretends to be a public servant through electronic or online communication to induce that person to follow the authority of the fake public servant or to act in reliance on this pretense.

Criminal Impersonation in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

Criminal Impersonation in the First Degree - New York Penal Law 190.26

A person is guilty of Criminal Impersonation in the First Degree when:

1. He or she acts similar to NY PL 190.25(3) except that the person pretends to be a police officer or a federal law enforcement officer or wears or displays without authority, any uniform, badge or other insignia; and

2. That person acts with the intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon said pretense and in the course of such pretense commits or attempts to commit a felony; or

3. Pretending to be a licensed doctor, physician or other person authorized to issue a prescription, he or she communicates to a pharmacist an oral prescription which is required to be reduced to writing.

Criminal Impersonation in the First Degree is a class E felony punishable by up to four years in state prison.

For further information on the crimes of Criminal Impersonation, please read the second installment of this "primer." Not a direct transcription of the law, a reading of the actual statute and consultation with an experienced New York criminal defense lawyer is necessary to understand the nuances of the statutes as well as the potential criminal defenses that may be available to you.

Founded by former Manhattan prosecutors, Crotty Saland LLP is a New York criminal defense firm representing clients throughout the New York City 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.

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" »

Manhattan District Attorney Cyrus Vance, Jr. announced the arrest and indictment of Steven Mandala, a former stockbroker with the Maxim Group and Merrill Lynch. According to the District Attorney's Office, Mr. Mandala stole $780,000 from Merill Lynch after he allegedly told Merrill Lynch that he was not only a partner at Maxim Group (he was merely an employee stockbroker making $100,000), but that he was in charge of managing $300 million of clients' assets. As a result of his work with Maxim Group, prosecutors allege that Mr. Mandala claimed he generated $1.5 million in revenue. Due to Mr. Mandala's claims, alleged "improvements" to his resume, and his assertion he was compensated in the neighborhood of $765,000 a year by Maxim Group, Merrill Lynch hired the stockbroker and advanced Mr. Mandala $780,000. As a result of his chicanery, which was somewhat less successful, Mr. Mandala was charged with Grand Larceny in the Second Degree, Money Laundering in the Second Degree, Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree and Falsifying Business Records in the First Degree.

Despite Mr. Mandala's alleged claims that he managed $300 million and generated $1.5 million in revenue, it is alleged that Mr. Mandala not only rarely went to work, but that he brought in only $20,000 in new business. During he approximately two months as an employee at Merrill Lynch, it is alleged by prosecutors that Mr. Mandala deposited the $780,000 into his parents' account and purchased a Ferrari under his father's name. Mr. Mandala's employment came to an end when he allegedly sent an email to Merrill Lynch indicating that he was not only resigning, but that all his personal effects should be discarded.

Unfortunately for Mr. Mandala, Merrill Lynch employees did not toss all of his "stuff" and an investigation revealed numerous credit cards in the name of Mr. Mandala's girlfriend in the office. Digging further, prosecutors ascertained that tens of thousands of dollars were allegedly billed to these credit cards without the true owner's knowledge.

Although Mr. Mandala faces up to fifteen years in state prison on the counts relating to Grand Larceny and Money Laundering, seven years in state prison on the counts relating to Identity Theft and Criminal Possession of a Forged Instrument, and four years in state prison on the count relating to Falsifying Business Records, one thing truly stands out. Beyond the alleged magnitude of the theft, were was Merrill Lynch's due diligence? Who failed to verify or confirm Mr. Mandala's history and experience? How does anyone - especially a firm entrusted with clients' hard earned money - fail to contact the prior employer or spend a few dollars on a background check? Where is the oversight? Stop me before I get on a roll...

Crotty Saland, LLP is a criminal defense firm representing clients in white collar criminal cases ranging from alleged embezzlement in the tens of thousands of dollars to multi-million dollar tax fraud schemes. Prior to starting Crotty Saland, LLP, both founding partners served in the Manhattan District Attorney's Office's Trial Division as well as the Special Prosecutions Bureau and Identity Theft Units.

It is very easy in New York State to compound a bad mistake and inadvertently roll it into a felony case. To find an example of this, one needs to look no further than the Grand Larceny in the Fourth Degree pursuant to New York Penal Law 155.40(4) and Criminal Possession of Stolen Property in the Fourth Degree pursuant to New York Penal Law 165.45(2). These two statutes address the theft and possession of stolen debit and credit cards and are "E" felonies punishable by up to four years in state prison.

Grand Larceny in the Fourth Degree, New York Penal Law 155.30(4):

A person is guilty of Grand Larceny in the Fourth Degree when he steals property and when the property consists of a credit card or debit card.

Criminal Possession of Stolen Property in the Fourth Degree, New York Penal Law 165.45(2):

A person is guilty of Criminal Possession of Stolen Property in the Fourth Degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the property consists of a credit card, debit card or public benefit card.

It is very important to note that a conviction for these offenses will stand even if the particular credit card that is stolen was previously canceled or revoked. See, People v. Peterson, 216 A.D.2d 10 (1st Dept. 1995); see also, People v. Winfield, 145 A.D.2d 449 (2nd Dept. 1988). Even more importantly, one may be convicted of either Criminal Possession of Stolen Property in the Fourth Degree (NY PL 165.45(2)) or Grand Larceny in the Fourth Degree (NY PL 155.30(4) even if one does not know that one stole a credit card. In other words, if you steal a wallet hoping to get some quick cash, but it turns out there was a credit card there, your crime can potentially be elevated from a misdemeanor to a felony. See, People v. Mitchell 77 N.Y.2d 624 (1991) (Prosecution "not required to prove that defendant was cognizant that the stolen property she possessed was a credit card because the statute imposes no such burden. Rather, the correct burden...is only that she knowingly possessed stolen property which, in fact, consisted of a credit card, and which she intended for her own benefit.")

Although other elements of these statutes must be established and your criminal defense attorney may be able to successfully challenge those elements, make not mistake. The law does not require that you are aware that you are possessing the stolen credit, but only that you possessed or stole property that was in fact a credit card.

Crotty Saland LLP is Manhattan criminal defense firm representing clients throughout the New York metropolitan area. The NY criminal defense lawyers who founded Crotty Saland LLP previously served as Manhattan prosecutors in the Trial Division and prosecuted complex fraud cases in the Identity Theft and Special Prosecutions Bureaus.

You have been arrested with a print out of checking account numbers or a list of maiden names of ten different people. Although it is crumpled up in your wallet, you had not actually used the information or attempted to use that information. Well, is the mere possession of that personal information a violation of New York Penal Law Section 190.81, Unlawful Possession of Personal Identification Information?

Pursuant to NY PL 190.81, Unlawful Possession of Personal Identification Information:

A person is guilty of Unlawful Possession of Personal Identification Information in the Third Degree when he or she knowingly possesses a person's financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, personal identification number, mother's maiden name, computer system password, electronic signature or unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person knowing such information is intended to be used in furtherance of the commission of a crime defined in this

Unlawful Possession of Personal Identification Information in the Third Degree is a class A misdemeanor punishable by up to one year in jail.

Now that you have a general understanding, or at least definition, of the crime of Unlawful Possession of Personal Identification Information in the Third Degree, you are ready for more legal analysis after the jump...

Continue reading "Unlawful Possession of Personal Identification Information (NY PL 190.81, 190.82 & 190.83) & Your Criminal Defense: Does New York Law Require the Use of the Personal Information?" »

The pertinent part of New York Penal Law sections 170.05 & 170.10, Forgery in the Third and Second Degree, plainly states that one is guilty of Forgery when with intent to defraud, deceive or injure another, a person falsely makes, completes or alters a written instrument.

Depending on what a person forges, the level or degree of the offense may be elevated from a misdemeanor to a "D" or even a "C" felony. For example, if the item forged is deed, will or instrument created by the government, the crime can go from an "A" misdemeanor punishable by up to one year in county jail (Rikers) to a "D" felony punishable by up to seven years in state prison. Moreover, if one counterfeits United States currency, the crime can be bumped up further to a "C" felony pursuant to New York Penal Law 170.15 and is punishable by up to 15 years prison. Well, what about knock off handbags, clothing or other items? Assuming the buyer is not knowingly buying a fake handbag (so, forget the shoppers seeking out "deals" on Canal Street) and the person selling the handbag or other property is presenting it as the authentic product with the intent to defraud the buyer, can the seller be charged with Forgery for making the knockoff handbag or Criminal Possession of a Forged Instrument for possessing the same?

The answer is clear. These crimes would not be applicable. According to a Manhattan Criminal Court Judge in People v. Vu, 161 Misc.2d 692 (NY Cty Crim. Ct. 1994):

"Although it may not be impossible to squeeze the counterfeit handbag...into this definition by means of enterprising, if tortuous, parsing, it seems clear that these statutes were never intended to cover activity so far afield from the counterfeiting of written instruments, such as contracts and wills, and so manifestly within the ambit of those frauds which the trademark counterfeiting statutes (Penal Law 165.70 et seq.) were later enacted to encompass. However broad the language of the clause concluding subdivision one of section 170.10 of the Penal Law, the terms and examples which precede it logically limit its sense and scope to prohibit only the alteration of documents of like type under the principle of ejusdem generis (of the same kind)."

Although not a Court of Appeals (NYS highest court) holding and decision, it is safe to say that items beyond the scope of a "written instrument" do not fall within the territory of Forgery. Certainly, other crimes may be applicable that are as serious or more significant, but Forgery will not be established unless the elements and language of the statute is satisfied. If the law permitted prosecutors to squeeze fake handbags into this definition (it was obviously tried!), who knows what new "forgeries" would be prosecuted in the future.

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

Crotty Saland LLP, a Manhattan based white collar criminal defense firm representing clients throughout the New York City region, is pleased to announce another tremendous result for a client in the arena of fraud and theft allegations. Our client, charged on two separate dockets, allegedly defrauded approximately $35,000 from one individual and approximately $35,000 from a second individual. Prosecutors charged our client with twenty-five felonies in the two criminal court complaints including Grand Larceny in the Third Degree (NY PL 155.35), Forgery in the Second Degree (NY PL 170.10), Criminal Possession of a Forged Instrument in the Second Degree (NY PL 170.25) and Identity Theft in the First Degree (NY PL 190.80). Prosecutors alleged that our client stole these monies through drafting checks without permission and using credit cards, including a corporate business card, without authority to do so.

Despite the large value of the alleged theft, approximately $70,000 between two people, Crotty Saland LLP attacked the veracity of one of the complainants as well the length of time between the incident and the reporting of the theft. Moreover, investigation revealed that this complainant may have been trying to "hide" money from his spouse. After further investigation and challenging the prosecution regarding their ability to prove the $35,000 theft beyond a reasonable doubt, prosecutors dismissed all of the charges.

Although we were not as successful with the second felony case as we were with the first case, Crotty Saland LLP negotiated a tremendous disposition on the second matter as well. In the second case, prosecutors agreed to a misdemeanor plea for Petit Larceny (the "shoplifting" statute) as well as Criminal Possession of Stolen Property. Although the complainant and prosecutors presented us with documentation for a significant portion of the $35,000 as well as a signed stipulation by our client that she in fact owed these monies, we successfully argued that despite the admission and documentation, the facts of the case would establish that the complainant was not being forthright. Even if true, the value of the alleged loss was exaggerated and our client signed the agreement under duress. Fortunately, through our investigation and diligence, we were able to corroborate our position thereby weakening the ability of the prosecution to prove the theft and the loss amount beyond a reasonable doubt. After all of our efforts working with our client for over a year to avoid a felony or jail, the court sentenced our client on the misdemeanor plea to three years of probation (no jail) and $20,000 in total restitution.

As this client learned, each case is unique and requires its own analysis and defense. Whether it takes one month or one year, some felony fraud cases can be negotiated to a lesser offense while others ultimately may not. Furthermore, some cases may require a trial to prove one's innocence where a real risk may be present of a conviction and accompanying jail. Whatever result you are seeking and whether or not it is actually attainable, it is imperative that your counsel be a knowledgeable and a zealous advocate who keeps you informed throughout the process as it unfolds.

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

Issuing a False Financial Statement New York Penal Law 175.45:

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

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

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

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

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

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

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

He may have loved the book, theatrical performance or even the movie, but Manhattan District Attorney Robert Morgenthau is not a fan of real life Oliver Twists. According to reports, the New York County District Attorney's Office unsealed a 639 count indictment involving the arrests of 15 alleged pickpocket crew members. The defendants, including Arthur Franklin, Jospeh Simms, Vincent Franklin, James Mannix, Kathleen Miller, Carol Dibitetto, Larry Ford, Kandra Lysland, Tina Barboza, Mary Bennett and Yvonne Harris are alleged to have stolen over $600,000 and compromised at least 60 bank accounts. The 639 count indictment includes numerous felonies such as Grand Larceny, Identity Theft, Criminal Possession of a Forged Instrument, Conspiracy, Scheme to Defraud, Attempted Grand Larceny, Forgery and Criminal Possession of Stolen Property. It is interesting to note that prosecutors did not charge the defendants with Enterprise Corruption. While there could be numerous reasons, it is possible that the crew had no ascertainable structure, but was alleged to be more consistent with a loose knit band of thieves. Regardless, the scheme is purported to have operated for at least one year before the arrests and indictments.

According to the District Attorney's Office, vigilant investigators at Chase Bank reviewed video surveillance of fraudulent transactions and noticed a common theme of women wearing wigs and glasses. Further investigation revealed that Arthur Franklin, Vincent Franklin and Joseph Simms were present either inside or outside the bank when the transactions occurred. Chase Bank put the dots together when they learned that many of the victims of the fraudulent bank transactions were also victims of pickpockets.

More than merely a pickpocketing crew that made a quick buck, some of the defendants are alleged to have worked at a Pennsylvania collections agency where victims' personal information including addresses, social security numbers and dates of birth were harvested and provided to other defendants. With this information, the defendant then conducted their fraudulent transactions. At times, the defendants are alleged to have created fake identifications to appear as if they were in rightful owners of the accounts. All in, the defendants are accused of stealing $600,000 of which $74,000 in cash was recovered in a search warrant along with 200 stolen credit cards in another search warrant.

The defendants have been indicted on various charges, including Conspiracy in the Fourth Degree, Grand Larceny in the Second Degree, Identity Theft in the First Degree, Scheme to Defraud in the First Degree, Grand Larceny in the Third Degree, Attempted Grand Larceny in the Third Degree, Criminal Possession of a Forged Instrument in the Second Degree, Grand Larceny in the Fourth Degree, Attempted Grand Larceny in the Fourth Degree, Identity Theft in the Second Degree, Attempted Identity Theft in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, Forgery in the Second Degree, Petit Larceny, Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Possession of Marijuana in the Fifth Degree.

Grand Larceny in the Second Degree is a class C felony, which is punishable by up to 15 years in prison. Identity Theft in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Grand Larceny in the Third Degree, and Forgery in the Second Degree are class D felonies, which are punishable by up to 7 years in prison. Conspiracy in the Fourth Degree, Scheme to Defraud in the First Degree, Attempted Grand Larceny in the Third Degree, Grand Larceny in the Fourth Degree, Identity Theft in the Second Degree, and Criminal Possession of Stolen Property in the Fourth Degree are class E felonies, which are punishable by up to 4 years in prison.

Crotty Saland, LLP is a New York based criminal defense firm representing clients throughout the metropolitan area. The two principals, Elizabeth Crotty and Jeremy Saland, have extensive experience as both criminal defense attorneys and as former Manhattan prosecutors having served in the Special Prosecutions Bureau and Identity Theft Unit respectively.

The Manhattan District Attorney announced the arrest and indictment earlier today of Michael Batalias, Elisavet Batalias, Vassiliki Stergiou and EMB Contracting Corporation for defrauding employees in the neighborhood of $1 million dollars. The defendants are charged with Grand Larceny in the First Degree and Scheme to Defraud in the First Degree. Moreover, Elisavet Batalias was charged with eleven counts of Offering a False Instrument for Filing in the First Degree.

According to the Manhattan District Attorney's Office:

EMB Contracting Corp is a "general contractor providing labor in the rehabilitation/construction of 30 public schools throughout New York City. As provided by the New York State Labor Law, and under the terms of these contracts, EMB was required to pay all of the employees engaged in working on these contracts the prevailing wage and supplemental benefit rate. The Office of the Inspector General for the SCA began investigating EMB after receiving a number of complaints that the firm was not paying employees the required prevailing wage rate, but rather roughly a third to a half of the rate, and was not making appropriate contributions to the union pension fund."

Prosecutors allege the the contractors were not merely "cooking" the books, but also created a new set of "dummy" records as well. All of this, according to the Manhattan DA, was to hide underpayments. Additionally, EMB falsified payroll reports and completely omitted workers from records while adding those who did not actually work. In fact, when it came time to submit the payment applications, it is alleged that Elisavet Batalia provided sworn affidavits that the prevailing was was paid to employees when it had not. Vicky Stergiou also is alleged to have given cash "off the books" to employees by cashing EMB checks made payable to other people. The alleged fraud perpetrated by the defendants took another step towards criminality when Michael Batalias allegedly staged a accident at a different location after an employee was hurt elsewhere.

While I am certainly not privy to the facts of the case beyond the press release, the defendant's certainly have a difficult road ahead. The police executed a search warrant in 2008 and likely have subpoenaed bank and payroll records. Moreover, it appears that there are numerous employees, ie, witnesses, who could testify as to how they were paid, hours worked and conduct of the EMB. That being said, although it is not an affirmative defense as it is in the context of Falsifying Business Records, did any of the defendants offer the false instrument at the behest of a supervisor and without any personal benefit? Did each individual indicted by the Grand Jury have the intent to perpetrate these crimes? Are there documents supporting each of the defendants' involvements or is the indictment based on the general roles of the defendants at EMB? Whatever the defense may be, the defendants should implement it immediately.

Grand Larceny in the First Degree is a class B felony punishable by up to 8⅓ to 25 years in prison. Offering a False Instrument for Filing in the First Degree and Scheme to Defraud in the First Degree are class E felonies punishable by up to 1⅓ to 4 years in prison.

Crotty Saland, LLP is a white collar criminal defense firm located in New York City. Founded by two former Manhattan prosecutors, Crotty Saland, LLP has successfully represented clients in white collar criminal matters ranging from multiple million dollar Criminal Tax Fraud cases to crimes involving Forged Instruments, Identity Theft and Grand Larceny in the tens of thousands of dollars.

While your "average" white collar crime case may not include the offenses of Offering a False Instrument for Filing in the First Degree (New York Penal Law 175.35) and Offering a False Instrument for Filing in the Second Degree (New York Penal Law 175.30), the former Manhattan prosecutors at Crotty Saland, LLP still believe it is important for our readers to have a grasp on this section of the New York Penal Law. Therefore, the following article will address these crimes.

Offering a False Instrument for Filing in the Second Degree (NY Penal Law 175.30):

A person is guilty of Offering a False Instrument for Filing in the Second Degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.

Offering a False Instrument for Filing in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

Offering a False Instrument for Filing in the First Degree (NY Penal Law 175.35):

A person is guilty of Offering a False Instrument for Filing in the First Degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become part of the records of such public office, public servant, public authority or public benefit corporation.

Offering a False Instrument for Filing in the First Degree is a class E felony punishable by up to four years in prison.

To shed further light on these offenses, William Donnino, the commentator in the annotated code has stated:

"The basic crime of 'offering a false instrument for filing' is directed at the person who, knowing that a 'written instrument' [defined in § 175.00(3)] has false recitals, 'offers or presents' the instrument to a 'public office' or 'public servant' [defined in § 10.00(15)] with the 'knowledge or belief' that it will become part of the records of that public office or servant [§ 175.30]."

"Notably, the crime is limited to written instruments which contain false recitals as opposed to forged instruments; the instrument need only be offered or presented, not accepted or received, by the public office or servant; and the defendant need only have a subjective belief, not actual knowledge, that the instrument will become part of the records of the public office or servant."

Donnino further states that:

"The crime of offering a false instrument for filing is divided into two degrees.The basic crime is offering a false instrument in the second degree [§ 175.30] and that crime is predicated on 'knowing' that the written instrument offered for filing contains a false statement or false information. If that basic crime is also committed 'with an intent to defraud' the State or any political subdivision, public authority or public benefit corporation of the State, then the defendant is guilty of offering a false instrument for filing in the first degree [§ 175.35]. (The first-degree statute was amended in 1998 to overrule People v. Miller, 1987, 70 N.Y.2d 903, 524 N.Y.S.2d 386, 519 N.E.2d 297 by making the crime applicable to filings with a public authority or public benefit corporation. L. 1998, c. 99.)"

"By that two-degree structure, the drafters sought to distinguish the level of culpability between, for example, the person who, out of vanity, knowingly falsifies his or her age in an application for a license in which the age of the applicant is not significant, and one who corruptly defrauds the State out of huge sums through false documents submitted in connection with a building contract. See Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney's Spec. Pamph. (1964), p. 366."

It is worth noting that these offenses are very similar to the white collar crimes of Tampering with Public Records (note the same "intent to defraud" language that raises the level of the offense) and Falsifying Business Records.

If you or a loved one are charged with or are being investigated for any white collar crime contact Crotty Saland, LLP to start taking the steps to protecting your liberty, livelihood and good name.

The New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have vast experience both prosecuting and defending individuals accused of white collar crimes. While most of the crimes criminal defense lawyers handle in the white collar arena relate to Grand Larceny type offenses, the scope of white collar crimes in New York State and NYC goes well beyond large thefts. Today, I will address two of these offenses - Tampering with Public Records in the Second Degree (NY Penal Law 175.20) and Tampering with Public Records in the First Degree (NY Penal Law 175.25).

NY Penal Law 175.20, Tampering with Public Records in the Second Degree:

A person is guilty of Tampering with Public Records in the Second Degree when, knowing that he does not have the authority of anyone entitled to grant it, he knowingly removes, mutilates, destroys, conceals, makes a false entry in or falsely alters any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant.

Tampering with Public Records in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

NY Penal Law 175.25, Tampering with Public Records in the First Degree:

A person is guilty of Tampering with Public Records in the First Degree when, knowing that he does not have the authority of anyone entitled to grant it, and with intent to defraud, he knowingly removes, mutilates, destroys, conceals, makes a false entry in or falsely alters any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant.

Tampering with Public Records in the First Degree is a class D felony punishable by up to seven years in state prison.

Although you may have missed it, the crucial difference between these two statutes - and facing up to one year in jail or seven years in state prison - hinges on only a few words. Those words are "intent to defraud." William Donnino states it best:

"The crime is divided into two degrees. The difference between the two degrees is that [T]ampering in the [F]irst [D]egree [§ 175.25], unlike [T]ampering in the [S]econd [D]egree [§ 175.20], requires an intent to defraud. The seeming intent of the revisers was to distinguish, for example, the culpability of a person who tears up a public record in anger, from the person who calculatingly tampers with a public record as part of a fraudulent scheme."

Because of the discrepancy between the two offenses as to potential punishment, it may be central to your defense to challenge whether or not you had the "intent to defraud." Even before that, however, your criminal defense attorney should examine whether the "public record" in question is in fact a "public record" under the law.

If you or a loved one is charged with or being investigated for a white collar crime such as Tampering with Public Records, contact Crotty Saland, LLP so we can work with you to preserve your rights, liberty and integrity.

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)" »

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

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

Section 176.05 Insurance fraud; defined

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

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

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

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

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

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

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

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

According to the Westchester County District Attorney's Office:

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

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

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

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

The crimes of Forgery (NY Penal Law 170.50, 170.10 and 170.15) and Criminal Possession of a Forged Instrument (NY Penal Law 170.20, 170.25 and 170.30) are crimes that White Collar criminal defense attorneys handle or deal with on a regular basis. Whether the facts revolve around counterfeit money, falsified mortgages or even fake credit cards, somewhere prior to committing the Forgery or Criminal Possession of a Forged Instrument, the item in question had to have been created. Although the police usually only get their hands on the finished product, i.e., the fake credit card, there is a distinct and separate crime of Criminal Possession of Forgery Devices that relates directly to the creation of these fraudulent items.

According to Penal Law 170.40, Criminal Possession of a Forgery Device, a person is guilty of this crime when (1) he makes or possesses with knowledge of its character any plate, die or other device, apparatus, equipment, or article specifically designed for use in counterfeiting or otherwise forging written instruments; or (2) with intent to use,or to aid or permit another to use, the same for purposes of forgery, he makes or possesses any device, apparatus, equipment or article capable of or adaptable to such use. This crime is a "D" felony punishable by up to seven years in state prison.

As stated above, this offense is far less common than the crimes of Forgery or Criminal Possession of a Forged Instrument, but is potentially the same level offense. Regardless of the particular Forgery or Fraud related crime you find yourself being charged with or investigated for, contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP so you can arm yourself with our experience and knowledge while protecting your liberty and integrity.

The Manhattan District Attorney's Office announced the indictment earlier today of Mark A. Focht, the former Chief Operating Officer of 3V Capital Management LLC. It is alleged that Mr. Focht perpetrated the white collar crime of Grand Larceny in the Second Degree (PL 155.40) by stealing $250,000 from one of the funds that he managed. He is also charged with Forgery in the Second Degree (PL 170.10) and Falsifying Business Records (PL 175.10) in the First Degree for allegedly creating forged documents to both execute his thefts and to cover them up once he was done.

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

Mark A. Focht "stole $250,000 by using a forged authorization form to wire $250,000 out of a bank account of Pierce Diversified Strategy Master Fund, LLC, one of the funds managed by 3V Capital Management. Mr. Focht used the stolen money to make a personal investment to benefit himself. To conceal the missing $250,000, Mr. Focht created forged documents that falsely represented to both Mr. Focht’s employer and to the client hedge fund that the $250,000 had been invested on behalf of the hedge fund. In fact, the $250,000 was invested by Mr. Focht for his own purposes, in violation of the legal, fiduciary and ethical obligations he owed his clients."

If convicted of the Grand Larceny in the Second Degree, Mr. Foch faces up to 15 years in prison. Forgery in the Second Degree is punishable by up to 7 years in prison and Falsifying Business Records is punishable by up to 4 years in prison.

As a former Manhattan prosecutor who served under Robert Morgenthau for seven years, I supervised white collar investigations and prosecutions with the NYPD, Secret Service, Postal Inspection Service, State Department and SEC. Many of these prosecutions involved multiple millions of dollars in theft through both forgery and the falsification of business records. The prosecutors who are handling this case are not merely diligent and methodical in their investigations, but experienced in these types of crimes. In fact, the bureau that is pursuing this case, Investigation Division Central, consists of many elite prosecutors and support staff who for years have handled similar crimes and obtained convictions for those crimes. In short, Mr. Focht and his criminal defense attorney have a lot of work ahead of them.

Whether you are charged with Grand Larceny, Forgery or Falsifying Business Records, a white collar criminal defense attorney with practical experience who has battled in the trenches on both sides is required in order to preserve your liberty and integrity. While no attorney can guarantee a particular result, the white collar criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have the experience, knowledge and tenacity to assess your case and implement the right plan to zealously defend your rights, freedom and good name.

The Manhattan District Attorney's Office just released more information regarding the fraud indictment involving $600,000 in theft. The defendants, M.A. Angeliades, Inc., Merkourios Angeliades, Dimitri Malakidis and Irena Angeliades were indicted on the charges of Grand Larceny, Offering a False Instrument for Filing, Falsifying Business Records, Bribing a Witness, Bribing a Labor Official and Attempted Tampering with Physical Evidence. Additionally, three employees from Local 731, Anthony Graham, Harold Johnson and Eduardo Visone, were each indicted for Falsifying Business Records, Bribing a Labor Official and Bribing a Witness. It is alleged that their conduct resulted stemmed from 2005 through 2007.

It is alleged that M.A. Angeliades, Inc., a general contracting firm, had four separate contracts with New York City and the MTA. Specifically, M.A. Angeliades, Inc. was to provide the labor to rehabilitate eleven subway stations. In doing so, the company was required to pay the prevailing wages for these jobs. Instead, it is alleged that the above named individuals in some capacity appropriated the wages to themselves and instead of the employees. This was hidden from the MTA through many means including creating false payroll reports.

The defendants face up to one year on the misdemeanor charge of Attempted Tampering with Physical Evidence, four years on the Falsifying Business Records and Offering a False Instrument for Filing, up to seven years on the charge of Bribing a Witness and Bribing an Official, and up to fifteen years on the Grand Larceny offense.

Regardless of the specific charges each of these individuals face, they need to act quickly and implement their defense strategy. As a former Manhattan prosecutor, I can tell you that the Manhattan District Attorney's Office Rackets Bureau consists of top prosecutors who will not wait for a defendant to decide how he or she will proceed. Whatever the charge and allegation, the white collar NY criminal defense attorneys and former prosecutors at Crotty Saland, LLP know that time cannot be wasted. That is why we are ready to fight to protect your freedom and implement a plan to defend your rights as soon as possible.

The New York white collar criminal defense attorneys at Crotty Saland, LLP have learned that the Manhattan District Attorney's Office is set to announce the indictment of the principles and three employees of M.A. Angeliades Inc. for underpaying employees. It is alleged that the underpayment of the employees was in the multiple hundreds of thousands of dollars. The company, a construction firm based out of Queens, was a contractor for NYC that did construction work on and in the subway system.

Obviously, as we regularly do, Crotty Saland, LLP will keep you informed on the charges, penalties and other interesting facts of this white collar criminal matter as we learn more.

CLICK HERE FOR UPDATE

The Kings County (Brooklyn) District Attorneys Office announced the indictment today of Crystal Sparkse and its President, Alexander Shamayan, Golden Art Fine Jewelers and its President, Ghassan Maalouf, and Pavillion Jewelers and its President Saeed Azarfar, for Falsifying Business Records in the First Degree, Offering a False Instrument for Filing in the First Degree and other crimes. It is alleged that each of these stores under reported their sales tax or had a deficiency of approximately $550,000, $125,000 and $350,000 respectively. It is alleged that undercover officers went to some of the stores to purchase jewelry and they were informed that if they paid in cash no sales tax would be charged.

Former Manhattan prosecutors, the white collar criminal defense attorneys at Crotty Saland, LLP have worked on cases involving alleged tax and Grand Larceny crimes as they relate to New York State taxing authorities. In fact in one such case, our client received no jail and was able to civilly litigate whether he owed approximately 3.2 million dollars out of an estimated 5 million dollars prosecutors alleged he had illegally kept.

While each case requires its own analysis, the criminal defense attorneys at Crotty Saland, LLP work with all of our client to set a plan in motion to protect our client's freedom, livelihood and integrity.

As a follow up to my earlier post, the Manhattan District Attorney's Office has announced a 227 count indictment of 18 individuals in an identity theft and check fraud scheme. As I correctly noted in the original post, these defendants are alleged to have perpetrated a scheme involving the crimes of Grand Larceny, Criminal Possession of a Forged Instrument, Identity Theft, Conspiracy, Unlawful Possession of Personal Identification Information and Scheme to Defraud. As a former Manhattan prosecutor who was one of the first assigned to the Identity Theft Unit upon its creation, I know the Identity Theft Unit will vigorously and thoroughly prosecute the alleged offenders. Depending on the individual and their applicable charges, the defendants face up to 25 years in state prison.

The defendants include:

Jasper Grayson, a/k/a “Lyte,” James Malloy, a/k/a “Sal” and a/k/a “Sah,” Lamott Matthews a/k/a “L,” Allahson Clay, a/k/a “Reefy,” Albert Paulin, a/k/a “AB,” Lance Paulin, a/k/a “LA,” Alvin Joseph, a/k/a “Scooter," Edward Johnson, Jr., a/k/a “Big Mike,” Larry Garcia, a/k/a “Spanish Larry,” Raymond Penn, a/k/a “Charlie,” Raven Moses, Sheena Poindexter, Renece Razor, Ilaura Walker, Keisha Polonio, Christopher Deboer, Tauheed Mitchell and Kelly Snider.

Prosecutors allege that:

"[T]he defendants obtained personal and bank account information belonging to 500 identity theft victims and used it primarily to manufacture thousands of counterfeit checks. By fraudulently cashing and depositing the counterfeit checks, the defendants stole over $1.4 million from one bank’s accounts and substantial additional sums from other banks. Victims of this scam included private individuals, corporations, religious institutions, hospitals, and schools, as well as city and state government agencies."

It is further claimed that:

"The defendants regularly acquired the necessary data to generate counterfeit checks with the help of bank employees recruited to participate in the operation. These employees, often tellers, had access both to the banks’ computer systems and to large numbers of valid checks processed during legitimate customer transactions. In return for cash payments, the recruited tellers photocopied valid customer checks and printed out copies of customer profiles, which contained the customers’ names, addresses, social security numbers, bank account numbers and account balances."

"Search warrants into two locations associated with the defendants revealed "a desktop computer, blank check stock, stolen customer profiles from various banks, payroll stubs, copies of legitimate checks, hundreds of counterfeit checks, ledgers with names of [individuals who cashed fraudulent checks] and amounts stolen on various dates, check-making software, fake state identification cards and credit cards issued in the names of identity theft victims."

As is the case for each of these defendants, those charged with a crime are innocent until proven guilty. An indictment is not evidence of guilt. However, it is imperative to recognize that an indictment is extremely significant and points towards an intense legal battle ahead for each of these defendants. Regardless of the crime, you should always retain experienced criminal counsel to fight to protect your rights, liberty and integrity. Crotty Saland, LLP is ready and able to do just that.

The white collar criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have learned that the Manhattan District Attorney's Office will announce the indictment today of 18 people, including accused ring leader James Malloy, in an alleged counterfeit check fraud scheme that utilized forged NYPD checks to perpetrate a multi-million dollar theft.

According to media reports, up to 40 people may have been arrested. It is alleged that the scheme operated by having an individual deposit a forged check into a bogus account. A teller, who was in on the scheme, allegedly provided the fraudsters with accurate account and check information to enable the fraudsters to create the fake checks and deposit them. In all, it is alleged that hundreds of checks were drawn off the accounts of about 20 companies.

When James Malloy was arrested and a search warrant was executed at his home, sources have stated that they found hundreds of counterfeit checks as well as the profiles of customers at banks and the magnetic paper to create the forged checks.

Although the Manhattan District Attorney's Office has not issued a press release and an indictment has not been unsealed as of the time this entry was drafted, I anticipate that some of the charges these individuals will face may include Grand Larceny, Forgery, Criminal Possession of a Forged Instrument, Falsifying Business Records, Identity Theft, Conspiracy and potentially Enterprise Corruption depending on the structure of the organization. More importantly, depending on which charge these people face and their criminal history, a sentence of state prison is a very real possibility.

To better understand the above mentioned charges and to educate yourself on the law, feel free to review the blog and its entries as they apply to Fraud Related Offenses, Identity Theft and White Collar Crimes.

*** UPDATE ***

As a follow up to an earlier post, the Manhattan District Attorney's Office has announced that 17 individuals who worked at a now defunct securities firm have been indicted by a New York County Grand Jury for allegedly operating a racketeering scheme that scammed over six million dollars in unlawful commissions. The Manhattan Grand Jury indicted the defendants on the charges of Enterprise Corruption, Grand Larceny, Criminal Possession of Stolen Property, Securities Fraud and Falsifying Business Records. As a former Manhattan prosecutor who has supervised prosecutions of numerous multi-million dollar fraud schemes including a two million dollar "pump and dump" scheme with the Securities and Exchange Commission as well as a NY white collar criminal defense attorney who has represented individuals accused of multi-million dollar fraud crimes, I can say with confidence that these defendants and their criminal defense attorneys have a long road ahead of them.

The The Grand Jury indicted 17 defendants. Among them are Joseph Stevens & Company, Inc., Joseph Sorbara, Steven Mrakowiz, Craig Shapiro, John, Moraitis, Massimo Martinucci, Peter Orthos, Alan Ferraro, Charles Raspa, Scott Tierney, John Micciola, Steven Scarcella, Michael Tripodi, Douglas Costabile, James Rathgeber, Matthew Menies and Haradjin Mucovic. Because each of the defendants are charged with the top count crime of Enterprise Corruption, they all face a minimum of one to three years if convicted and a maximum of eight and one third to twenty five years in prison.

According to the Manhattan District Attorney's Office:

"[T]he defendants defrauded 800 victims in more than 5,000 trades valued at $151,286,804.44. By manipulating the market value of carefully selected stocks, the defendants generated more than $6.2 million in unlawful, undisclosed commissions, in violation of New York law and the trust of their customers." Furthermore, "[t]he investigation further revealed that the defendants repeatedly worked to capture undisclosed compensation while trading stocks, often by manipulating the stock price higher after having pre-arranged orders from their customers. In some cases, the stocks the customers purchased on defendants’ recommendations lost significant value in the days and months following the transactions."

As this case unfolds it will be interesting to see what defense each of these individuals set forth. Was there an "ascertainable structure" in their crew as required under Enterprise Corruption? Do any of the affirmative defenses to Falsifying Business Records apply in this case? Whatever the defense may be, it is imperative that these defendants assess the case and implement their plan of action. Even a small delay could be fatal to their defense. If you or a loved one find yourself accused or investigated for any white collar crime, contact the former Manhattan prosecutors at Crotty Saland, LLP so that we can fight to preserve your liberty, rights and integrity.

According to published reports, 17 brokers and securities specialists are to be arraigned today in Manhattan Supreme Court after a Grand Jury indicted each of them in a scheme defrauding hundreds of investors out of over $150 million dollars. As a NY white collar defense attorney who has represented defendants charged with multi-million dollar fraud schemes and as a former Manhattan prosecutor who supervised the prosecution of a "pump and dump" involving over two million dollars in theft, I know first hand how the assistant district attorneys likely investigated this case and will prosecute the alleged offenders. At a minimum, those defendants who are charged with the actual theft or acting in concert to perpetrate a Grand Larceny in an amount of one million dollars or more will be facing one to three years in prison, but as much as eight and one third to twenty five years. However these defendant's decide to proceed, they better act quickly or it has the potential to get significantly worse.

As I receive more information I will share it with you. Check back for an update.

UPDATED

As a NY criminal defense attorney and a former Manhattan prosecutor under Robert Morgenthau, I have defended or supervised numerous multi-million dollar investigations into Identity Theft, Credit Card Fraud, Forgery, Criminal Possession of a Forged Instrument, Grand Larceny, Falsifying Business Records and related fraud schemes. In fact, prior to starting Crotty Saland, LLP, I was assigned to the elite Identity Theft Unit when it was created by DA Morgenthau in the Manhattan District Attorney's Office. In that capacity I received extensive training and hands on experience in the "trenches" and "front line" of Identity Theft and related crimes.

It comes as no surprise to me that another fraud scheme has reared its head and was ultimately broken up in Queens today. According to the Queens District Attorney's Office, Operation Plastic Pipe Line began in 2007 and resulted in the multiple hundred count indictment for Enterprise Corruption and the arrest of dozens of people. It is alleged that this ring, led by Wole "Shola" Ogunwen, used multiple "cells" to defraud banks and steal the personal identification of thousands of people. In the last year alone, it is alleged that the financial loss exceeded twelve million dollars. To perpetrate the crime, these cells would use counterfeit credit cards, set up fake accounts, withdraw funds from banks and purchase products to be shipped overseas. With strong ties to Nigeria, it is further claimed that this ring operated on a global level.

As a former prosecutor and a criminal defense attorney experienced in these crimes, I know that this twenty one month Identity Theft investigation was likely supported by members of federal and state law enforcement who conducted surveillance, issued subpoenas, executed search warrants and worked relentlessly. I also know that these defendants need to retain experienced criminal counsel or the situation they find themselves in will go from bad to worse.

There was never any real dispute amongst criminal defense attorneys that in New York State or NYC if you possess or make a fake ID, counterfeit money or fraudulent credit cards you may be charged with Forgery or Criminal Possession of a Forged Instrument. Heck, you could get arrested for Forgery or Criminal Possession of a Forged Instrument in New York if you sign another person's name on a check without their permission. In fact, you could even be charged with Identity Theft.

Well, the Court of Appeals, New York's highest court, just issued a decision today that confirms what the criminal defense attorneys at Crotty Saland, LLP have blogged about in the past. That is, possessing, bending or manipulating a MetroCard to gain free access to the subway system in NYC is also Criminal Possession of a Forged Instrument or Forgery. You heard it right...you can be charged with a felony offense punishable by up to seven years in state prison.

The decision of People v. Jonathan Mattocks after the jump...

Continue reading "Bend Your MetroCard and Go to Jail: NY's Highest Court Says Forgery & Forged Instrument Crime" »

As NY criminal defense lawyers and former Manhattan prosecutors under Robert Morgenthau, the attorneys at Crotty Saland, LLP can tell you that the crime of Trademark Counterfeiting had and still has the attention of both the NYPD and prosecutors. In fact, earlier today 21 people where arrested for Trademark Counterfeiting on Manhattan's Canal Street for selling counterfeit and "knockoff" Louis Vuitton, Coach and Dolce & Gabbana handbags allegedly worth over $125,000.

Despite the fact that people from all walks of life and from all over the United States go down to Canal Street to purchase fake luxury goods from perfumes and watches to handbags and clothing, selling these fraudulent items is a crime (purchasing them, on the other hand is a completely separate matter). Those who sell these counterfeit products may be charged with Trademark Counterfeiting. This crime ranges from an "A" misdemeanor to a "D" felony punishable by up to one year and seven years respectively.

A person is guilty of Trademark Counterfeiting in the Third Degree (the misdemeanor offense) when, with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods. The second and first degree levels of this crime are enhanced where the value of the goods exceed certain minimums.

In our approximately eighteen years of combined experience as prosecutors and criminal defense attorneys, we have seen how serious the NYPD and prosecutors pursue the offenses related to Trademark Counterfeiting. In fact, NYPD's Trademark Infringement Unit's main purpose is to investigate these crimes. Armed with undercover police officers and search warrants, it is not uncommon for this unit to score major arrests.

In the event that you or someone you know has been accused of Trademark Counterfeiting or any related crime, contact Crotty Saland, LLP so that you can be guided through the criminal process and make your decisions based on the best availabel defense.

If you are accused of credit fraud in New York, be prepared to spend a significant time with your criminal defense attorney so he or she can outline the potential criminal charges and consequences you may face. The list of crimes is vast...Identity Theft, Forgery, Criminal Possession of a Forged Instrument, Grand Larceny, Falsifying Business Records and many more. As a a former Manhattan prosecutor who was one of the original members of the Identity Theft Unit when the unit was first created, I can tell you that the the crimes relating to credit card fraud are actively and aggressively being pursued every day by members of both state and federal law enforcement.

Credit card fraud comes in various "shapes" and "sizes." From the possession of a stolen credit card or a fake credit card to the use of a credit card that has already been revoked. Depending on whether the credit card is used or attempted to be used, the crimes that may be charged can spiral further into major felonies with serious terms of imprisonment.

Before diving into the gravity of credit card "bust outs," "carding" or other more serious offenses, this entry will deal with a more "simple crime" that most people probably don't even know exists. As stated above, you may be accused of credit card fraud if you merely use a credit card that is in fact revoked and you know that it was revoked.

According to Penal Law 165.17, you are guilty of Unlawful Use of Credit Card, Debit Card or Public Benefit Card "when in the course of obtaining or attempting to obtain property or a service, [you] use or display a credit card, debit card or public benefit card which [you] know to be revoked or canceled." This crime is an "A" misdemeanor punishable by up to one year in jail.

While this offense is on the lower level of crimes relating to credit card fraud, that does not mean that it should be taken lightly. In fact, if you successfully obtain property that is equal to or in excess of $1,000, $3,000 or $50,000, Unlawful Use of a Credit Card is the least of your worries. Now, prosecutors can charge you with Grand Larceny - a felony.

Due to the seriousness of this crime and the potential to unwittingly perpetrate related offenses, if you are accused of credit card fraud seek out criminal defense attorneys with real experience in this area. You may have a valid defense that needs to be explored by criminal defense attorneys who know how to fight these charges. A simple question right out of the gate for Unlawful Use of a Credit Card is did you know that the card was revoked or canceled? If so, how is the prosecution going to prove this charge beyond a reasonable doubt? Is there evidence that you tried to use the card before? Did the credit card company mail you a notice? If not, then it may be that your actions, albeit irresponsible, are not criminal. Whatever the case may be, an experienced criminal defense attorney can put forth the strongest and most credible challenge to make sure that your rights, liberty, and integrity are maintained.

NY criminal defense attorneys should be on notice. The crimes of Identity Theft, Grand Larceny, and Unlawful Possession of Personal Identifying Information have new “friends.” NY criminal defense attorneys and every day citizens should be aware that as of November 4, 2008, New York added additional crimes to the NYS Penal Law. These new offenses, Unlawful Possession of a Skimmer Device in the First and Second Degrees, directly relate to using skimmers to perpetrate certain fraud crimes.

Pursuant to Penal Law 190.85, a person is guilty of Unlawful Possession of a Skimmer Device in the Second Degree when “he or she possesses a skimmer device with the intent that such device be used in furtherance of the commission of the crime of identity theft or unlawful possession of personal identification information.”

Pursuant to Penal Law 190.86, a person is guilty of Unlawful Possession of a Skimmer Device in the First Degree when “he or she commits the crime of unlawful possession of a skimmer device in the second degree and he or she has been previously convicted within the last five years of” Identity Theft, Grand Larceny, Unlawful Possession of Personal Identifying Information or Unlawful Possession of a Skimmer Device.

To better understand what constitutes a skimmer device the criminal law defines such a device as any device “designed or adapted to obtain personal identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information.”

While nobody wants to be the guinea pig to be the first person charged under this new statute, if you find yourself charged with Identity Theft, Grand Larceny, Unlawful Possession of Personal Identifying Information or Unlawful Possession of a Skimmer Device you should retain counsel with real world experience in these matters. Assigned to and as an originating member of the Manhattan District Attorney’s Office’s Identity Theft Unit upon its creation, Jeremy Saland, along with Elizabeth Crotty, has the knowledge and experience to fight these charges. We, at Crotty Saland, LLP, are ready to work alongside you to protect your rights, liberty and integrity.

An introductory class of criminal law in NY would likely teach any future attorney that if there is no intent to commit a particular crime that requires such intent, then there should be a valid defense to that particular crime. This could not be more true than in cases involving Forgery, Criminal Possession of a Forged Instrument and Falsifying Business Records.

The first two crimes, Forgery and Criminal Possession of a Forged Instrument, contain legal language that the individual have the "intent to defraud." Although not always a simple task or the correct way to defend against these charges if the intent is clear, your criminal defense attorney needs to argue, if applicable, that you never intended on defrauding anyone (WOW! That was easy!). While the analysis of this defense is simple on its face, clearly each case requires an in depth review to determine how to establish the lack of intent.

Unlike the crimes of Forgery and Criminal Possession of a Forged Instrument, defending against a charge of Falsifying Business Records can be an easier prospect due to provisions in the New York Penal Law. Pursuant to Penal Law Section 175.15, it is an affirmative defense that the defendant who falsified the particular records was a clerk, bookkeeper or other employee who, without personal benefit, merely executed the orders of his or her employer of of a superior officer or employee generally authorized to direct his or her activities. See also, People v. Bloomfield 30 A.D.3d 151 (1st Dept. 2006).

The above section protects "pawns" involved in a greater scheme. That is, people who appear to be falsifying records but are doing so either unwittingly or at the behest of their boss without any benefit. This defense to the crime of Falsifying Business Records has successfully been used by Jeremy Saland in the defense of his clients. Again, while each case must be assessed to determine the best way to mount a defense, sometimes that defense is no further than the Penal Law itself.

Earlier today, James Delayo, Michael Sackaris and Michael Pascalli, along with their NY criminal defense attorneys, were in court waiting to be arraigned on a multiple count felony indictment in New York County (Manhattan) Supreme Court involving crimes such as Bribery and Falsifying Business Records.

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

Mr. Delayo, a former Acting Chief Inspector for Cranes and Derricks for the New York City Department of Buildings, is charged with one count of Bribe Receiving in the Second Degree, a class C felony punishable by up to 15 years in prison. Additionally Mr. Delayo and Mr. Sackaris are charged with 37 counts of Tampering with Public Records in the First Degree, a class D felony punishable by up to 7 years in prison; 37 counts of Offering a False Instrument for Filing in the First Degree, a class E felony punishable by up to 4 years in prison; and 37 counts of Falsifying Business Records in the First Degree, a class E felony punishable by up to 4 years in prison.

Furthermore, Mr. Sackaris and Mr. Pascalli are charged with one count of Bribery in the Second Degree, a class C felony. Mr. Sackaris is also charged with one count of Intimidating a Victim or Witness in the Third Degree, a class E felony punishable by up to 4 years in prison. Mr. Pascalli is also charged with one count each of Tampering with Public Records in the First Degree, Offering a False Instrument for Filing in the First Degree and Falsifying Business Records in the First Degree.

Unfortunately for each of the defendants, the Manhattan District Attorney's Office is staffed by diligent and skilled prosecutors who likely presented a strong case to the Grand Jury and have the ability to see the case through to trial if necessary. What may be even more concerning for these men is that although the recent crane accidents are not alleged to have been associated with the corruption, their criminal defense attorneys must make sure that they do not become scapegoats for those tragic accidents.

As a former prosecutor in the Manhattan District Attorney's Office and a founding member of the Identity Theft Unit after its creation, I have extensive experience investigating and analyzing cases that involve the falsification of business and public records. It certainly will be an uphill battle for these men and skilled representation is essential for them to get the best possible disposition whether that be through challenging the prosecution's case or working out a deal.

If you find yourself in a predicament where you are charged with falsifying or forging documents, receiving or giving bribes or any similar type of case, don't compound a bad situation by merely retaining any attorney. Jeremy Saland will use his years of experience as both a prosecutor and a NY criminal defense attorney to protect your rights, fight for your freedom and maintain your integrity.

There are two NY criminal defense attorneys who have a lot of work cut out for them after a Manhattan Grand Jury indicted their clients on four counts of Grand Larceny in the Third Degree, two counts of Criminal Possession of Stolen Property in the Third Degree, two counts of Grand Larceny in the Fourth Degree, and three counts of Scheme to Defraud in the First Degree.

According to the Manhattan District Attorney's Office, two individuals, Edward and Eugenia Fiammetta, used their public assistance benefit cards to fraudulently obtain $54,725 in food stamp credits from 17 Manhattan grocery stores.

The Manhattan District Attorney's Office alleges that the Fiammettas used Electronic Benefit Transfer (EBT) cards to access the government benefits in their accounts. Specifically, the two schemed the government by contacting grocery stores and telling unsuspecting clerks that the machine used to swipe the cards at the particular location was broken. Telling the clerk they were EBT employees, the Fiammettas gave the clerk their own EBT account number to plug into the system to fix the alleged problem. As a result, the clerks' actions would unwittingly transfer food stamp credits into the Fiammetta's Chase account. After the stamp credits were deposited in the Fiammetta's account, the Fiammetta's transferred the credits to other grocery stores in exchange for cash.

While the Fiammettas allegedly concocted a scheme where they never actually got their hands dirty (they appear to have done this all by phone or transfers), law enforcement tracked them down. The Fiammettas learned the hard way that in tough financial times law enforcement cannot and will not let these types of crimes slide by. If the allegations are true, the Fiammettas will need an experienced criminal defense attorney as they now face up to seven years in state prison on the top charge.

You are arrested for Prostitution in New York because you were allegedly involved in an escort service or for Forgery in Brooklyn because you were allegedly caught making counterfeit money. Regardless of the underlying crime, if you are arrested anywhere in New York - Manhattan, Brooklyn, Queens, Westchester, Rockland - the police can easily charge you with False Personation if you take a poor course of action. Once you are informed by law enforcement of the consequences of giving false personal information, such as a name or date of birth, and you knowingly misrepresent that information with the intent to prevent the officer from ascertaining the true information, don’t be surprised if the police charge you with False Personation even if the underlying arrest goes nowhere.

Although False Personation is “only” a “B” misdemeanor, as a former prosecutor in the Manhattan District Attorney’s Office under Robert Morgenthau and one of the first prosecutors assigned to the Identity Theft Unit upon its creation, I can tell you defendants often dug themselves into deeper holes because they provided misleading or false information. In other words, if law enforcement does not proceed with the original criminal charges you should be released and the case is over. If, however, the police try to ascertain certain information, you are advised of the consequences if you misrepresent, and you in fact misrepresent to prevent the police from determining your true identity, then you may have bought yourself a night in jail. Why is this significant? Not only will you have to spend time incarcerated waiting to see a judge, but if you were the target of an investigation or the police are investigating new charges and figuring out how to proceed, you just gave them ample time to do so and a reason to lock you up.

In the event you find yourself in this situation contact an experienced criminal defense attorney immediately and DO NOT give the police phony personal information after they inform you of the consequences.

As a former prosecutor in the Manhattan District Attorney's Office, one of the founding members of the Identity Theft Unit after its creation, and a New York criminal defense attorney, I have seen countless individuals charged with Criminal Possession of a Forged Instrument and related offenses for their involvement in some form of large scale fraud.

Whether the Grand Jury indicts these individuals for Forgery, Identity Theft, Criminal Possession of a Forged Instrument, Falsifying Business Records or Trademark Counterfeiting, the felony offenses they face can land them in state prison for a term of up to 7 or 15 years. In the event there is an associated theft in excess of one million dollars, that potential sentence can reach 25 years.

Recently, on September 18, 2008, Manhattan Assistant District Attorney Jordan Arnold presented a year long investigation to the Grand Jury after the arrest of Malikim Brown. According to the Manhattan District Attorney's Office press release, Mr. Brown used Craigs List to perpetrate a scheme where he sold counterfeit software such as Microsoft, Adobe Systems and Symantec. After engaging in a transaction with an undercover officer, Mr. Brown told the officer he could also make and sell counterfeit United States currency. According to the Manhattan District Attorney's Office press release, "[o]ver the course of the investigation, [Mr.] Brown sold the undercover detective over $10,000 in counterfeit U.S. currency and over $15,000 in counterfeit American Express and Visa Travelers Cheques, JP Morgan Chase certified bank checks, United States Postal Service money orders and MoneyGrams co-branded with Wal-Mart, CVS/pharmacy and the American Automobile Association (AAA)."

The Manhattan District Attorney's Office further alleges that during the investigation Mr. Malikim Brown also "offered to sell City of New York birth certificates, federal social security cards and complete W-2 tax returns all of which could be used to obtain government-issued identification and lines of credit in the name of the person listed on the documents in each set."

Not only is it alleged that Mr. Brown made these various counterfeited items or offered to sell them, when the police executed a search warrant at his premises they recovered an additional $25,000 in counterfeit money as well as uncut sheets of bills and the computer equipment to make that contraband.

Unfortunately for Mr. Brown, according the Manhattan District Attorney's Office press release, the Grand Jury has indicted him for 35 counts of Criminal Possession of a Forged Instrument in the First Degree, a class C felony which is punishable by up to 15 years, Criminal Possession of a Forged Instrument in the Second Degree, a D felony which is punishable by up to 7 years and three counts of Trademark Counterfeiting in the Second Degree, Criminal Possession of Computer Related Material and Unlawful Duplication of Computer Related Material class E felonies which are punishable by up to 4 years, all in prison.

There are many lessons to be learned here. Law enforcement aggressively pursues people who commit crimes of fraud and they are well aware of how Craigs List and related sites are avenues for criminal enterprises. Lastly, you may believe you are acting anonymously on the web and on your computer, but the tools law enforcement have - from a subpoena to computer forensic programs - prevents your activities from remaining hidden for long.

In the event you find yourself in a predicament of a similar nature, retain a skilled and experienced criminal defense attorney who can navigate you through the murky waters of these types of crimes, challenge the prosecution to their burden and, most importantly, fight to maintain your rights, freedom, and future.

As one of the original founding member of the Manhattan District Attorney's Office Identity Theft Unit after the unit's creation and as a criminal defense attorney, I have had the opportunity to prosecute, investigate and defend individuals accused of a laundry list of crimes in the fraud arena. These NY crimes have included, but are not limited to, Forgery in relation to counterfeit currency, Identity Theft in relation professional GRE, GMAT and TOEFL test-takers and Money Laundering in relation to narcotics, prostitution, and escort services. One of the crimes that is becoming more prevalent is Health Care Fraud. According to New York Penal Law Article 177, there are five degrees of Health Care Fraud as follows:

Health Care Fraud in the Fifth Degree - NY Penal Law 177.05 - establishes that a person is guilty of this crime when, with the intent to defraud a health plan (generally a publicly or privately funded heath insurance or managed care plan or contract), he knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan or health care item or service and, as a result of such information or omission, he or another person receives payment in an amount that he or such other person is not entitled to under the circumstances. This crime is an A misdemeanor punishable by up to one year in jail.

Health Care Fraud in the Fourth, Third, Second and First Degree - NY Penal Law, 177.10, 177.15, 177.20, and 177.25 respectively - deviates from the misdemeanor charge in that a person is guilty of these charges if he commits the crime of Health Care Fraud in the Fifth Degree and the payment or portion of the payment that is wrongfully received, as the case may be, from a single health plan, in a period not more than one year, exceeds a certain amount of money. In the Fourth Degree that amount is $3000, in the Third Degree that amount is $10,000, in the Second Degree that amount is $50,000 and in the First Degree that amount is $1,000,000. Each of these crimes are felonies with maximum sentences ranging from four years to twenty five years in state prison.

Fortunately, for those accused of these crimes there is an affirmative defense set forth in the Penal Law. If the defendant is a non-management bookkeeper, clerk or other employee who, without personal benefit, executed the orders of a supervisor who generally authorizes the defendant's activities, the defendant may be able to beat the charges. Therefore, the accused should contact an experienced criminal attorney who can present this defense to the District Attorney's Office with to put and end to the investigation or prosecution.

It does not matter if you are being prosecuted in Manhattan, Bronx, Brooklyn, Queens, White Plains, Mt. Vernon or Yonkers - the law is clear on Forgery and Criminal Possession of a Forged Instrument. Either it is or it is not.

Sounds simple enough, but unfortunately, it may take an experienced criminal defense attorney to ascertain whether the crime prosectors are charging you with is supported by the law. Turning our attention to Forgery and Criminal Possession of a Forged Instrument as it specifically relates to genuinely authorized writings or documents issued by an agency or other person, it is important to note that what seems like a crime often is not.

At bottom, if a person possesses or creates (“creates” in this context means completing by supplying the information and not actually making a new item) this type of instrument using a fictitious name or alias, there is no crime of Forgery or Criminal Possession of a Forged Instrument. The easiest way to understand this rule is if a person, let us say Samuel Clemens, possesses a New York State Driver’s License. In this hypothetical, Mr. Clemens uses his “pen name” (alias or fictitious name) as the listed name on the legitimately issued license. In other words, Mr. Clemens’ license reads “Mark Twain.”

Dealing with the first element, it is clear that this type of instrument is one that is authorized and issued by an agency, i.e., the New York State Government and DMV. Looking at the second issue as discussed above, since the name on the license does not belong to someone else, but is an alias (Mark Twain was the pen name of Samuel Clemens), there is no Forgery or Criminal Possession of a Forged Instrument because supplying an alias is permissible.

Obviously, each case must be reviewed to see if this rule applies, but it really should be just that simple. Unfortunately, prosecutors sometimes misunderstand this rule, dig their heels in, and possibly proceed with their cases.

Recently, I posted a decision issued by a Manhattan Criminal Court Judge from April 2008 finding that mere possession of a fake ID (fake identification card) was sufficient to establish intent and knowledge to sustain the charge of Criminal Possession of a Forged Instrument under New York Penal Law Section 170.20. Unlike that decision, a recent case out of Kings County (Brooklyn) is much more favorable for defendants charged with Criminal Possession of Forged Instrument in a different context and a case that criminal defense attorneys should be aware of.

In People v. Erwin Kouris, Brooklyn Criminal Court Judge Pickett found that a complaint against the defendant charging Criminal Possession of a Forged Instrument should be dismissed for facial insufficiency. In that matter, the defendant was charged with numerous Vehicle and Traffic Law (VTL) violations as well as Criminal Possession of a Forged Instrument. Judge Pickett noted that in order to sustain the Criminal Possession of a Forged Instrument charge, the accusatory instrument must allege knowledge of forgery and intent to defraud on the part of the defendant. In other words, a defendant’s mere possession may not be sufficient depending on the circumstances. Therefore, a dismissal may be warranted.

In the Kouris case, the defendant was driving a vehicle that had a fake inspection card, registration card and insurance card. Although the defendant possessed these documents in that he was the driver of the vehicle, there was nothing in the accusatory instrument indicating he had knowledge that the documents were fraudulent or that he intended to defraud. The Court concluded that merely driving the vehicle, without any more evidence, is not sufficient to establish knowledge and intent. Although it was not specified, a means to establish these elements might have been an inculpatory statement by the defendant or evidence that the car was his car as opposed to a car that he was merely borrowing. In this regard, the Court stated that “it would be patently unfair to expect an operator who may have just borrowed a vehicle for a routine errand to know that the license plates, the insurance card, inspection and registration receipts are forged.” Furthermore, unlike a three dollar bill that clearly does not exist, “not all forgeries are ‘readily apparent to the average citizen.’"

Criminal defense attorneys and their clients can take a few lessons from this case. First of all, in some cases mere possession of a forged instrument may be enough to establish knowledge and intent. Such examples might be a forged driver’s license or identification card. On the other hand, some forgeries are not “readily apparent” to the average citizen. This may include money that looks real (not a three dollar bill!) or, as in the Kouris case, a fake insurance registration card on a car that is not the defendants. Additionally, it appears that the defendant in Kouris did not complicate matters by making statements that would hurt him. Whatever the circumstance you might find yourself in, you should always exercise your rights to speak to a criminal defense attorney who can help attempt to prevent matters from getting out of hand and escalating.

In New York, Forgery (Penal Law 170.05, 170.10 and 170.15) is a crime that seems obvious and straightforward, but is often far from it. As the most senior member of the first prosecutors assigned to the Manhattan District Attorney's Office Identity Theft Unit and currently a criminal defense attorney, I “lived,” “ate” and “breathed” Forgery, Identity Theft, Money Laundering and other fraud investigations.

The mistake that a criminal defense attorney must look out for is if a prosecutor, from down in the Bronx up to White Plains in Westchester County, is charging Forgery where the document that is allegedly forged is not a genuinely issued document. In other words, the instrument is bogus and fabricated. For example, if an individual creates a New York, Connecticut and New Jersey combination state identification card in their own name, then no Forgery can exist because, in part, such an identification does not exist or establish any rights for the holder. Although this is an outrageous example, the underlying issue is that the forged document or writing cannot be a wholly fabricated or fictitious and in the person’s name.

Generally, whenever the instrument is wholly fake and fabricated by a defendant, forgery cannot be charged. If a person drafts a will or deed that is fake and signs a fake name there is no Forgery. If a counterfeit will or deed is signed with the defendant’s alias there is not Forgery. However, a Forgery can be charged where a defendant uses another’s real name on that bogus will or deed because a real person’s signature is being forged.

This general analysis, along with court decisions and case law, is one that any criminal defense attorney should be armed with and ready to use for your benefit. In the event you are charged with the crime of Forgery, this legal challenge may be an avenue for your vindication.

Recently, Judge Mandelbaum of the New York County (Manhattan) Criminal Court issued a decision regarding Criminal Possession of a Forged Instrument in the Third Degree that is a setback for all defendants charged with Criminal Possession of a Forged Instrument in the New York City area from the Bronx and Brooklyn to White Plains and Yonkers in Westchester County. Specifically, Judge Mandelbaum held on April 22, 2008, that a prosecutor does not need to allege that a defendant is aware that a New York State issued identification card in his or her possession is fake or that he or she intended to improperly use that card.

In People v. Barona, 2007NY089837, the defendant possessed a false or forged New York State Identification Card which he had in his hand. Denying the defendant’s motion to dismiss, Judge Mandelbaum theorized that "it is in-conceivable that the very person in whose name the card has ostensibly been issued would not know that the card is a forgery." Furthermore, if a card is "legitimate," Judge Mandelbaum asserted, common sense dictates that the person carrying it would have to know whether he applied and ultimately received the state issued card in his own name. Clearly then, “the ostensible bearer must therefore know that such a card is forged” and, therefore, it can reasonably be inferred that there was an intent to defraud or deceive because there is no other reason to possess a forged state issued card.'

While this case is a step backwards for defendants charged with Criminal Possession of a Forged Instrument in New York, it is important to note that the case is persuasive and not controlling on other courts and judges in the state. As a former prosecutor under Robert Moregenthau in the Manhattan District Attorney’s Office and one of the original members of the Identity Theft Unit, I am intimately familiar with this statute and others relating to Forgery, Identity Theft and Fraud. As judges continue to rule favorably for prosecutors who bring these types of charges, it is imperative to retain an experienced criminal defense attorney in this particular area to explain the issues, listen to your concerns, and formulate the best plan to attack the prosecutor’s case.

There is little dispute that if you use a fake identification to rent a car in Manhattan, a bogus credit card to make a purchase at a supermarket in the Bronx, or a phony check to make a payment on an account in White Plains (Westchester County), you run a real risk of being charged with Criminal Possession of a Forged Instrument, a felony. Well, what if that “forged instrument” is a MetroCard being used to swipe a turnstile in Brooklyn? New York State Penal Law Section 170.25, Criminal Possession of a Forged Instrument in the Second Degree, establishes that if a person possesses a forged instrument, with knowledge it is forged and with intent to defraud, deceive, or injure another, that person may be guilty of this crime if he or she possesses a forged instrument of a kind specified in New York State Penal Law Section 170.10, Forgery in the Second Degree.

Instead of diving head first into this entire section, Penal Law Section 170.10(4) sets forth that if a person makes, completes or alters a written instrument which purports to be or represent if a completed a “part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services,” they are guilty of Forgery in the Second Degree.

Reviewing all the applicable sections of Forgery and Criminal Possession of a Forged Instrument, the First Department (an appellate division that hears, among other things, cases that are appealed from the trial courts in Manhattan and the Bronx), recently addressed whether a bent or altered MetroCard may be as much of a forged instrument as a completely bogus credit card. Recognizing that “the magnetic strip incorporating the computer data on certain MetroCards, which contained no valid fare, were altered so that the cards would appear, and be read, as authentic for the admission of a rider by the turnstile computers,” the First Department in People v. Mattocks held that "it is clear . . . that a MetroCard, with its encoded 'computer data,' which is used for the purpose of 'conveying or recording information' and is capable of being used to the advantage . . . of some person, is a 'written instrument'" and therefore may be a forged instrument if manipulated in a particular fashion.

Not only is this case significant because it clearly sets forth that a MetroCard may be a forged instrument, but the First Department also sent a clear message in its April 8, 2008 decision. Law enforcement has a very large net to corral all types of offenses that one might not think would fall into the category of Criminal Possession of a Forged Instrument or Forgery. This enormous net is precisely why you should retain an attorney who has significant experience in this always changing area of law such as Jeremy Saland who, as a former prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office, has vast experience and training in crimes related to Forgery and Criminal Possession of a Forged Instrument.

Just a side note…and a quite interesting one as well…In 2007, 84,863 summonses were issued for nonpayment of subway and bus fares. This total includes the misuse of MetroCards.

You are charged in Manhattan with Identity Theft (Penal Law Sections 190.78, 190.79, and 190.80) or Unlawful Possession of Personal Identification Information (Penal Law 190.81, 190.82 and 190.83), but you reside in Brooklyn and the alleged criminal transactions occurred in the Bronx, White Plains and Yonkers. Well, how is the Manhattan (New York County) District Attorney’s Office prosecuting you for these crimes if you never stepped one foot in that jurisdiction? The answer, albeit not a pleasing one, is simple.

Criminal Procedure Law Section 20.40(4)(l) permits any county to prosecute an offense of this nature if any of the offense took place in that county regardless of whether the defendant was actually present there. Moreover, if the victim who suffered financial loss resided in that county at the time of the criminal transaction, then the county where the victim resided would also be able to prosecute a defendant even if the defendant was never present. Lastly, even if the victim suffered no loss, whatever county the victim resided in at the time his or her personal identifying information was used would also be a viable location to bring the criminal action against the defendant. For example, if a victim’s credit card is used online to purchase clothes from Bloomingdales in NY, the victim resided in the Bronx at the time his or her information was used, and the defendant used the information on his computer in Queens, each county would be able to prosecute the defendant for the crime of Identity Theft.

As a former prosecutor under Robert Morgenthau with the Manhattan District Attorney’s Office, Jeremy Saland was one of the original prosecutors assigned to the Identity Theft Unit upon its creation and worked under a state grant to prosecute this crime. Due to the complexity of these crimes it is important to obtain counsel with significant real hands on experience in these areas of law and not merely someone who has limited involvement. It takes an aggressive and skilled attorney to find any possible issues relating to evidence and procedure that may assist you in getting the best possible disposition in this type of matter.

If you have the misfortune of being accused in New York of any degree of the crime of Criminal Diversion of Prescription Medications and Prescriptions, it is imperative that you retain an attorney experienced in handling fraud related to prescription medications. As a skilled defense attorney and former prosecutor with the Manhattan District Attorney’s Office under Robert Morgenthau, I am able to aggressively challenge a prosecutor’s evidence to get the best disposition possible.

Whether you are charged with Criminal Diversion of Prescription Medications and Prescriptions in the First Degree, punishable by up to 15 years in prison, or the lowest offense of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, punishable by up to one year in city or county jail, a skilled attorney will advise you of your potential defenses in order to try to beat the case or get you the best deal while maintaining your livelihood and integrity.

While the dollar amount of the benefit exchanged during the criminal diversion directly impacts the level of the crime, i.e., the more money involved in the transaction the more serious the offense, the cases hinge on whether there was a “criminal diversion act.”

In order to prove such an offense, the prosecution must prove that you transferred, delivered or received for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to believe that the recipient, seller, or transferor has no medical need for it or is not authorized by law to transfer or sell it. Another way prosecutors establish a “criminal diversion act” is to establish merely that you transferred or received a prescription in exchange for something of pecuniary value.

Although this sweeping definition may intimidate an inexperienced attorney, there are many ‘built in” defenses to these charges right in New York State Penal Law. Specifically, the provisions of this statute do not apply to licensed physicians or other professionals. Moreover, a pharmacist acting in “good faith” is not subject to this offense or a person acting in “good faith” seeking treatment or assisting an individual seeking treatment.

These provisions in the statute are an experienced defense attorney’s sword to protect you from an overzealous prosecutor. “Good faith” is not black or white, but a skilled defense attorney may be able to stop the snowballing of allegations or an indictment by confronting the prosecutor with prior cases defining “good faith” and by respectfully explaining how you in fact were acting in “good faith.”