New York Criminal Lawyer Blog

Reckless Endangerment in the Second Degree (New York Penal Law 120.20) is a misdemeanor crime routinely handled by both prosecutors and criminal defense lawyers in New York City and the region. Although seemingly straight forward, the law not only has terms that have their own meaning, but cases that have decided how and when the law is applied. This entry will be the first in a series of "primers" on Reckless Endangerment in the Second Degree (NY PL 120.20). Future entries will address the law as well as the "felony version" of Reckless Endangerment pursuant to New York Penal Law 120.25.

Reckless Endangerment in the Second Degree - NY PL 120.20

Simply put, if one engages in conduct that is reckless and that conduct creates a substantial risk of serious physical injury, then one is guilty of Reckless Endangerment in the Second Degree.

It is critical to note that the statute requires not only a "substantial risk," but that the injury that may occur be "serious physical injury." A black eye, split lip or similar injury is not enough to meet the requirements and elements of Reckless Endangerment. The New York Penal Law defines "serious physical injury" as the type of injury that "creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

In addition to the level of injury as addressed above, the potential serious physical injury must be both foreseeable and the defendant's conduct must actually create a risk of that injury. Although there are plenty of legal decisions addressing when one's conduct amounts to Reckless Endangerment in the Second Degree, a recent decision by a Manhattan Criminal Court Judge highlights what is required. In People v. Beam, 2 Misc.3d 306 (N.Y. Crim. Ct. 2008), an information (complaint) alleged that the defendant ran into traffic to avoid the police while cars were in motion. In dismissing the information as insufficient, the court stated:

"It is certainly possible, and possibly even somewhat likely, that defendant or another person might have experienced some sort of injury from an automobile accident caused by defendant's sudden and swift entry in to the roadway. Nevertheless, on the facts alleged, this court can neither find nor infer that a substantial and unjustifiable risk of serious physical injury was created by defendant's hasty jay-walking. In order to establish that defendant engaged in reckless endangerment, the risk created by a defendant's conduct must be foreseeable ( see People v. Reagan, 256 A.D.2d 487, 683 N.Y.S.2d 543 [2d Dept.1998] ) and the conduct must actually create a risk of serious physical injury ( see In re Kysean D.S., 285 A.D.2d 994, 728 N.Y.S.2d 323 [4th Dept.2001] ). Accordingly, the count is dismissed."

This initial "primer" for the New York crime of Reckless Endangerment in the Second Degree should be just enough for a general understanding of the crime. In the event you are charged with this offense (it is punishable by up to one year in jail) you should consult with legal counsel to ascertain whether the elements have been established by the prosecution and what your best defense may be.

Crotty Saland LLP is a New York criminal defense firm founded by two former Manhattan prosecutors. Based in lower Manhattan, Crotty Saland LLP represents clients throughout the New York City region. For further information on the New York Penal Law, recent legal decisions and newsworthy cases, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com or the Crotty Saland LLP website.

Although not often litigated by New York criminal defense lawyers where a client is charged with Possession of Graffiti Instruments, pursuant to New York Penal Law section 145.65, it is important to understand or identify what constitutes a "graffiti instrument." Certainly, some tools are obvious. Cans of spray paint, markers, etc. are obvious "graffiti instruments" in the right circumstances. Yet, why are those objects "graffiti instruments" and what is the basis of that definition?

New York Penal Law 145.65 sets forth that one is guilty of Possession of Graffiti Instruments when one possess any instrument (even a substance or solution) designed or commonly used to etch, paint, cover or draw upon property. The definition is further expanded to address permission or authority to make such marks and circumstances evincing the intent to damage the property of another. These terms put together establish graffiti instruments.

In People v. Torres, 184 Misc.2d 429 (NY Cty Crim. Ct. 2000), a Manhattan criminal court judge found that glue and posters were in fact instruments of graffiti as set forth in NY PL 145.65. In determining as such, the court reasoned that "If it is in fact the case that the Legislature intended that any 'covering' of property-such as covering property with glue and paper-with the intent to damage it constitutes graffiti, then any tools or substances commonly used to cover property with glue or paper would obviously be within the statute." Therefore, while not commonly thought of as a "graffiti instrument" similar to a can of spray paint, if one has the intent to damage property and cover that property, the tools or means to do so, such as glue and posters, are the "instruments" to perpetrate the crime.

What should be taken away from this entry is that if you are charged with, arrested for or accused of Possession of Graffiti Instruments in New York, don't think that the "instrument" must be an obvious tool of the trade. If it is used, to etch, cover, paint, etc., there is an intent to damage and you do not have the permission or authority to do so, then this charge is a likely and potential offense that you will face.

For further information on New York graffiti crimes please follow the link to the appropriate section of the Crotty Saland LLP website. Further information on New York graffiti crimes as well as legal decisions and newsworthy cases on these an other offenses can be be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm. Representing the accused throughout New York City and the region, the New York criminal defense attorneys at Crotty Saland LLP have extensive experience on both sides of the law having served as Manhattan prosecutors prior to starting the firm.

In the first entry in the New York Gambling Crimes series, I addressed the crime of Promoting Gambling in New York (Manhattan, Brooklyn, Queens, Bronx, Westchester or any other County in New York State) as well as the dry, yet important, definitions underlying this and other gambling statutes. Today's entry addresses some cases that will help you further understand this offense and understand Promoting Gambling and related crimes from the perspective of a New York criminal defense attorney. More specifically, this entry will address who can be charged with Promoting Gambling pursuant to New York Penal Law sections 225.05 and 225.10.

To start things off, one cannot be charged with the crime of Promoting Gambling if one is merely a participant in that gambling. The Court of Appeals, New York's highest court, recently affirmed that position in the Matter of Victor M., 9 N.Y.3d 84, 845 N.Y.S.2d 771, 876 N.E.2d 1187 (2007). In that case, the Court found that a player in a game of dice (it could have been any other game for the purpose of this conclusion) could not be charged with this offense because merely as a player, that person did not advance or profit from the unlawful gambling activity. One has to look no further than New York Penal Law 225.00(4) and (5) for corroboration in the statute itself to support the Court of Appeals' determination. Keep in mind, that the terms "advance" and "profit" are both specifically defined in the statute.

Although a fact specific analysis is required to ascertain whether one is liable for Promoting Gambling, the following cases are good guides to assist one in determining criminal liability:

Ordinary betting as opposed to professional is generally not the type of gambling punishable under the statute (old gambling statute). See People v. Stedeker, 175 N.Y. 57 (1903)

Courts seem to disagree if games such as "Three Card Monte" and "Majhong" are games of "skill" and therefore are not considered gambling offenses. A bigger issues is which characteristic is greater, i.e., "skill" or "chance." See People v. Denson, 192 Misc.2d 48 (NY Cty Crim. Ct. 2002) and People v. Li Ai Hua, 24 Misc.3d 1142 (NY Cty. Crim. Ct. 2009)

The New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland LLP have successfully represented defendants investigated for and charged with gambling felonies involving search warrants and/or wire taps. For further information on the crime of Promoting Gambling in New York, contact one of our New York criminal defense lawyers for a consultation and review the prior NewYorkCriminalLawyerBlog.Com entry for a general understanding of Promoting Gambling in New York.

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

If you have ever been arrested for Making Graffiti (New York Penal Law 145.60) or Possession of Graffiti Instruments (New York Penal Law 145.65) in Manhattan, Brooklyn, Queens or anywhere in New York City, you know that the Graffiti / Vandal Squad detectives are aggressive in their pursuit of alleged offenders. The bottom line is that Making Graffiti and Possession of Graffiti instruments is a serious offense in the eyes of law enforcement. If the damage is significant, prosecutors may seek restitution in addition to whatever the disposition might be.

Often times, the gravity of the alleged damage is tied to the ultimate deal in the case. This assumes, of course, that you have explored with your New York criminal defense attorney whether or not the prosecution can prove the case beyond a reasonable doubt or whether there are any legal, factual or procedural defenses to the allegations. Regardless, the question addressed in this entry is clear. What if it was not your intent to cause the damage? What if you were expressing yourself through your art? In other words, is it a defense to the crimes of Making Graffiti and Possession of a Graffiti instrument if you did not have the intent to cause damage when you painted, etched, or drew on another person's property, or in the alternative, that the property was not damaged?

To be clear, the short answer is that the statutes and underlying definitions involving graffiti offenses in New York require an intent to damage the property of another without their permission. Moreover, whether or not there was actual damage is of no consequence. The statutes merely require an intent to damage whether or not that the alleged offender was successful. As set forth in People v. Vinolas, 174 Misc.2d 740 (NY Crim. Ct. 1997):

"The intentional, rather than inadvertent, nature of defendant's actions...tend to show that the defendant intended to damage complainant's property. The culpable mental state is not that the defendant intended to cause actual damage, as required by [New York Penal Law section 145.00 - Criminal Mischief], but rather, 'that the actor acted intentionally in placing a mark upon the property which the actor had no right to mark and no reasonable ground to believe that he/she had such right.' Whether the defendant actually caused damage is irrelevant for purposes of these charges; and whether the defendant intended to cause such damage is a question of fact for the trier of fact and not a consideration for the instant motion [to dismiss for facial insufficiency]."

Although this is the short answer and one that needs far more vetting, the above case makes it clear that it is one's intent to damage as opposed to the ultimate results that are important.

For further information on the crimes of Making Graffiti (New York Penal Law 145.60) and Possession of Graffiti Instruments (New York Penal Law 145.60), please follow the appropriate links or contact the New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland LLP to arrange for a consultation.

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.

That secret video recorder you installed capturing someone undressing in a hotel bedroom, the changing room or in your tenant's apartment may land you in serious trouble. While you may think it is funny to show your friends images of a person you filmed while you were intimate without that person knowing, it will be far from humorous when you find yourself charged with either Unlawful Surveillance in the Second Degree pursuant to New York Penal Law section 250.45 or Unlawful Surveillance in the First Degree pursuant to New York Penal Law 250.50.

Although a serious offense, there may be numerous defenses to the crimes of Unlawful Surveillance pursuant to New York Penal Law sections 250.45 and 250.50. For example, did the subject of the surveillance or video consent to the recordings and is there any corroboration of that? Obviously, making such an argument where the installation is in a fitting room, bathroom or other "personal space" may be difficult. That being said, was the search of the location or computer used in the alleged crime conducted with probable cause and with a search warrant? Do you have standing to challenge that search? Whatever the facts, discuss the them with your New York criminal defense attorney to ascertain and implement the best defense you deem appropriate. Having briefly glossed over the severity of the crime and potential defenses, the follow are the definitions involving Unlawful Surveillance in New York:

A person is guilty of Unlawful Surveillance in the Second Degree when:

1. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

2. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

3. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person's knowledge or consent.

(b) For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

4. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

Unlawful Surveillance in the Second Degree is a class E felony punishable by up to four years in state prison.

If you have perpetrated this offense in the previous ten years and you are again charged with this crime, you may face the crime of Unlawful Surveillance in the First Degree, New York Penal Law section 250.50, a "D" felony, punishable by up to seven years in state prison.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Manhattan District Attorney's Office issued a press release involving the arrest and indictment of Adeniyi Adeyemi, a computer technician employed by the Bank of New York Melon. The 138 count Identity Theft and Grand Larceny indictment accuses the defendant of stealing the identities of 150 bank employees while perpetrating a $1.1 million dollar fraud. The fraud and thefts were alleged to have transpired from 2001 through 2009.

It is alleged that the victims of these crimes were many co-workers of Mr. Adeyemi who worked in the information technology group of Bank of New York Melon. According to the Manhattan District Attorney's Office, Mr. Adeyemi "opened over 30 bank and brokerage accounts in their identities with several financial institutions, including E*Trade, Fidelity, Citi, Wachovia, and Washington Mutual. These accounts served as dummy accounts for the purpose of receiving stolen funds. Mr. Adeyemi then stole money from the bank accounts of charities and non-profit organizations and funneled it into the dummy accounts, later withdrawing the stolen funds or transferring them to a second layer of dummy accounts."

Much of the money that Mr. Adeyemi is alleged to have stolen was used to purchase goods and ship them to Nigeria as well as to cover his personal expenses such as rent and credit card bills. Moreover, it is alleged that Mr. Adeyemi purchased $100,000 in USPS money orders after transferring funds through the fraudulent accounts.

According to the District Attorney's Office, the police executed a search warrant at Mr. Adeyemi's apartment on April 30, 2009. There, "investigators found dozens of Bank of New York employees’ credit reports on his computer, along with many other documents containing personal identifying information of more than 150 Bank of New York employees. In a storage locker Mr. Adeyemi rented, the investigative team found notebooks containing hundreds of names, social security numbers, account numbers, and other personal data, along with numerous credit cards in Bank of New York employees’ names. Investigators also recovered $30,000 in cash from Mr. Adeyemi’s apartment. Mr. Adeyemi was arrested in the course of the search warrant execution, and has remained in custody since.

The Grand Jury indicted Mr. Adeyemi on one count of Grand Larceny in the First Degree (punishable by up to 8 and 1/3 to 25 years in prison), 138 counts of counts of Identity Theft in the First Degree (punishable by up to 2 and 1/3 to 7 years in prison), one count of Money Laundering in the First Degree (punishable by up to 8 and 1/3 to 25 years in prison), one count of Computer Tampering in the First Degree (punishable by up to 5 to 15 years in prison), two counts of Money Laundering in the Second Degree (punishable by up to 5 to 15 years in prison), three counts of Grand Larceny in the Second Degree (punishable by up to 5 to 15 years in prison), two counts of Scheme to Defraud in the First Degree (punishable by up to 1 and 1/3 to 4 years in prison), and one count of Unlawful Possession of Personal Identification Information in the Second Degree (punishable by up to 1 and 1/3 to 4 years in prison).

Certainly, it is not favorable to the defendant that a search warrant executed at his home revealed an abundance of personal information belonging to employees of the Bank of New York Melon. Moreover, the defendant's IP address was likely tracked to a particular provider and then ultimately to his account (or an account used by him.) Certainly, others could have had access to his account and computer. Additionally, there are legal arguments to be made and potential challenges to the search warrant. However, regardless of the approach to this case, Mr. Adeyemi has a long road ahead of him and needs to decide the best defense to the accusations and implement that defense immediately.

Crotty Saland, LLP is a white collar criminal defense firm founded by two former Manhattan prosecutors. Jeremy Saland, has extensive experience prosecuting and defending Identity Theft crimes having served in the Identity Theft Unit and the Major Case Section when the unit was founded by Robert Morgenthau.

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Kew Gardens certainly isn't nearly as fun as Vegas. Heck, it makes Atlantic City look like paradise. A 38 month long gambling investigation by the Queens County District Attorney's Office came to a screeching halt yesterday after 27 people were indicted and arrested for Money Laundering, Enterprise Corruption, Promoting Gambling and Conspiracy. Called "Operation Betting it All," the Queens County District Attorney's probe is also seeking $125 million dollars in asset forfeiture from 20 of those defendants after it was determined that the ring allegedly took in $567 million dollars during a 28 month period leading up to the arrests. This is the second gambling investigation conducted by the Queens County District Attorney's Office in recent months. In August, the Queens County District Attorneys Office took down another ring in an 86 count indictment involving perfectwager.com.

In a press release issued by the Queens District Attorney's Office, District Attorney Brown stated that the 131-count indictment filed in Queens County Supreme Court claimed that the gambling ring promoted illegal sports betting in Queens County and elsewhere. The top two defendants – alleged bookmakers Joseph J. Fafone and Eric Davis Harp – set up and ran numerous websites, including betallsportshere.com, justwagers.com, betmsg.com, betonline.com, and betrr.com, as well as toll-free telephone numbers as a means for gamblers to make bets. "The defendants also allegedly controlled a non-traditional 'wire room' in the form of an off-shore, Internet gambling service used by bettors and runners to actually place their wagers. It is alleged that the ring used the off-shore wire room – located in Panama – to maintain the gambling accounts of numerous runners and bettors through the Internet websites in an effort to evade law enforcement detection through traditional methods."

The alleged "book makers" include Joseph J. Fafone and Eric Davis Harp. The alleged "money collectors" include Joseph P. Fafone, Thomas P. Farley, Gail R. Harris, Edward P. Kenny, Lester J. Klein, Louis P. Lippa Jr., Amanda L. Mercer, Robert J. Rasmussen and David Valerio. The alleged "master agents" include Jerry Dicresce, Edward LaRocco, Robert Wehnert and
David Strickland. The alleged "agents/runners" include Robert Aglialoro, Andrew Berg, John Bowling, Louis Cassero, Joseph Catalanotto, Philip Cesario, David Goldman, Jonathan Piansky, Joseph Pontarelli, Michael Rizzi, Matthew Schmalacker, Robert Stampf and Louis Todisco. The alleged "wire room manager" is Mike Sheridan and the alleged "wire room accountant" is Andrew Lepiz. The alleged corporation operating the scheme is JJF Consulting Services.

Although the defendants listed above are paying the price for their alleged betting ways, there is one bet they certainly can count on. They need experienced criminal defense attorneys to work with them to identify and set forth their defense to these charges immediately. Otherwise, if convicted, the defendants face up to 25 years in state prison on the Enterprise Corruption and Money Laundering charges. If convicted of the charges of Conspiracy or Promoting Gambling, the defendants can serve up to 4 years in state prison.

Crotty Saland, LLP is a New York based criminal defense firm handling white collar crimes. Crotty Saland, LLP is founded by two former Manhattan prosecutors who served under Robert Morgenthau. We can be followed on Twitter at DefenseLawyerNY.

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)" »

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

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

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

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

A New York City criminal defense lawyer has successfully argued in Brooklyn Criminal Court that the pending Trespass charges, pursuant to Penal Law §140.15, §140.10(a) and §140.05, against his client should be dismissed for facial insufficiency. The Brooklyn Criminal Court decision in People v. Darrell Weatherspoon, 2008KN076633, was published last week. For those readers who do not have access to this material, the New York criminal defense attorneys at Crotty Saland, LLP, will summarize this important legal decision for you.

By way of background, a person is guilty of Criminal Trespass in the Second Degree pursuant to PL §140.15 when he knowingly enters or remains unlawfully in a dwelling. A person is guilty of Criminal Trespass in the Third Degree pursuant to PL §140.10(a) when he knowingly enters or remains unlawfully in a building upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders. Lastly, a person is guilty of Trespass, a violation pursuant to Penal Law §140.05, when he knowingly enters or remains unlawfully in or upon premises. A person enters or remains unlawfully in or upon premises when he is not licensed or privileged to do so.

In pertinent part, the information against the defendant alleged that the officer (deponent) observed:

"[The defendant] on the first floor of a New York City Housing Authority (NYCHA) building at 552 Flushing Avenue, Kings County, a dwelling, which is posted with signs saying, 'Loitering and trespassing in lobby roof hallway and stairs is not permitted. Violators are subject to arrest and prosecution by the Police Department.' Deponent further states that defendant was neither a tenant nor a guest in the above-mentioned premises. Deponent describes herself as custodian of the dwelling and states that defendant did not have permission or authority to enter and remain in those premises."

Citing People v. Brunson (8/14/1995 NYLJ 32[col][Criminal Court, Queens County, 1995]), the court noted that the trespass signs must be "conspicuously posted" and merely indicating there were in fact trespass signs were posted in not sufficient. Without this, knowledge that the defendant did not have permission to be on the premises cannot be imputed. Therefore, the complaint (actually an information) must allege in some capacity how or where the signs were posted to give the defendant notice.

The court further stated that:

"The People have shown nothing to support their contention that defendant had knowledge that his entrance into the building was unlawful. Sufficient pleading is particularly important in view of the facts that the defendant was not arrested inside the building where he is alleged to have trespassed but in front of another building, 53 Nostrand Avenue, and that defendant has denied having entered the subject building."

The decision in People v. Darrell Weatherspoon is important on many levels. Although it is not a Court of Appeals decision, the decision clearly set forth that the People must establish a defendant's knowledge that he did not have permission to be in or at a location. Merely stating there was a trespassing sign is not sufficient. This decision further fortifies the importance to retain an experienced criminal defense attorney so he or she can challenge the facial sufficiency of an information. Some questions your criminal defense attorney should examine are whether the property was fenced completely, the defendant was arrested near or next to a trespass sign, the trespass signs were posted at all the entrances, or the defendant made an admission.

Whatever the case, the former Manhattan prosecutors at Crotty Saland, LLP know how to examine and analyze the facts, assess the strengths and weakness, and implement a strategy to protect your liberty, rights, and integrity.

If you are a witness or a defendant in a criminal matter in a metro-NY court you should always consult with a NY criminal defense attorney before talking with law enforcement. In fact, you should always be prepared to testify in the event that you are called to do so. Even if you are not a target of a Grand Jury investigation or a case in Criminal or Supreme Court, an innocent mistake or an inconsistency in your testimony may have serious ramifications. The last thing you need is the prosecution to charge you with Perjury. Consulting with criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland, LLP, is an investment in your time that will give you both a piece of mind and likely steer you clear of a Perjury charge.

Generally, Perjury occurs if you swear falsely. If you do so, you may be charged with a misdemeanor with a maximum sentence of one year in jail. For the purpose of this entry, however, we will address Perjury in the context of the court room or Grand Jury. In such a situation, you may be charged with Perjury in the First Degree. A person is guilty of Perjury in the First Degree when he or she swears falsely and when his or her false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made. Perjury in the First Degree is a "D" felony punishable by up to seven years in state prison.

As I have stated on many entries, a criminal statute, while clear on its face, always has hidden or complex definitions. Perjury is no exception. So, what does it mean to be "material to the action" for the purpose of understanding each element of this crime?

Citing the Court of Appeals in People v. Davis, 53 N.Y.2d 164 (1981):

"To be material,the statement need not prove directly the fact in issue; it is sufficient if it is 'circumstantially material or tends to support and give credit to the witness in respect to the main fact' ( Wood v. People, 59 N.Y. 117, 123). Thus a statement that 'reflect[s] on the matter under consideration' ( People v. Stanard, 42 N.Y.2d 74, 80, 396 N.Y.S.2d 825, 365 N.E.2d 857), even if only as to the witness' credibility (see People v. Samuels, 284 N.Y. 410, 414, 31 N.E.2d 753; People v. Courtney, 94 N.Y. 490), is material for purposes of supporting a perjury charge. Put another way, the test of materiality may be said to be 'whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation' ( United States v. Stone, 2 Cir., 429 F.2d 138, 140; United States v. Carson, 2 Cir., 464 F.2d 424, cert. den. 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219).

In "normal" terms, something may be "material" if it impacts the credibility of the person testifying in relation the the issue that is being addressed at trial or in the Grand Jury. Simply put, as stated above, if you make a false statement that misleads or impedes the jury...you may be charged with this crime.

Despite the harsh tone of the statute, there are affirmative defenses to Perjury that may be applicable to your case (I will discuss these in a later entry). Moreover, there are other definitions in the statute that need to be examined to determine if you in fact perpetrated this crime. Obviously, because you want to avoid even the possibility of facing this charge, contact Crotty Saland, LLP if you are called as a witness before a court or Grand Jury. Educating and preparing yourself is the best way to avoid this or any other possible criminal charges.

The New York criminal defense attorneys at Crotty Saland, LLP know firsthand how the NYPD has been aggressively pursuing people accused of graffiti and graffiti related crimes. The NYPD's Vandal Squad, based out of Brooklyn, is hell bent on cleaning up New York. While we can all agree that keeping New York clean and safe is a tremendous task of great importance, the pursuit of this goal does not give the police the permission to violate individual rights. Unfortunately, we at Crotty Saland, LLP have seen this happen on more than one occasion in the past two or three months. In a series of entries I will discuss the potential crimes associated with graffiti, the consequences of a conviction, general ways to best defend yourself, and some of the experiences we have had as criminal defense attorneys. The first entry in this series will address the potential crimes or offenses related to making graffiti and their consequences. These crimes are Criminal Mischief, Making Graffiti, and Possession of Graffiti Instruments.

Criminal Mischief in the Fourth through Second Degrees, pursuant to Penal Law sections 145.00, 145.05 and 145.10, are crimes that can be charged in connection with graffiti offenses as well as when property is damaged through other means. As it applies to graffiti crimes, a person is guilty of this Criminal Mischief in the Fourth Degree when having no right to do so or reasonable grounds to believe that he has such a right, he intentionally damages the property of another person. If an individual intentionally damages another person's property and the damage exceeds $250 or $1,500, then they are guilty of Criminal Mischief in the Third and Second Degrees respectively. Criminal Mischief in the Fourth Degree is an "A" misdemeanor punishable by up to one year jail. Criminal Mischief in the Third Degree is an "E" felony punishable by up to four years in state prison. Criminal Mischief in the Second Degree is a "D" felony punishable by up to seven years in state prison.

Making Graffiti is an "A" misdemeanor punishable by up to one year in jail. According to Penal Law 145.60, "graffiti" is defined as the "etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property. In substance, a person is guilty of this offense if they make graffiti on any building without the express permission of the owner or operator. If you are a graffiti artist, a question likely popped up after reading this definition...and it is a good one. What if my intent was not to damage, but to express my artistic visions? That very good question, and others, will be answered in a later entry.

Possession of Graffiti Instruments is a "B" misdemeanor punishable by up to to ninety days in jail. According to Penal Law 145.65, a person is guilty of Possession of Graffiti Instruments when he possesses any tool, instrument, article, substance, solution or other compound designed or commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property which that person has no permission or authority to etch, paint, cover, draw upon or otherwise mark, under circumstances evincing an intent to use same in order to damage such property. Types of "tool" or "instrument" this crime is referring to are things such as cans of spray paint or markers.

If you arrested "red handed" or the Vandal Squad comes knocking on your door be polite, don't resist, but do one very important thing. Tell the officers or detectives that you want to speak to your lawyer and do not admit to making any graffiti even if the police promise they will "go easy" on you. Do not compound a bad situation by doing the wrong thing. Whether it is 2 am or 2 pm, call the criminal defense attorneys at Crotty Saland, LLP.

A skilled New York criminal defense attorney may be able to beat your criminal case outright or work out a great deal for his or her clients in the face of overwhelming evidence. Sometimes there is a technicality requiring dismissal of the case such as a speedy trial issue or a facial insufficiency problem with the accusatory instrument. Other times, through hard work and perseverance, your criminal defense attorney may be able to get you a deal that avoids any criminal record at all. While an Adjournment in Contemplation of Dismissal (ACD)is the ultimate goal in a case where a deal is reached, a second option is a Disorderly Conduct plea.

As previously discussed in an earlier entry, an ACD will result in your case being dismissed and sealed within six months to a year. Although a Disorderly Conduct will not be dismissed, a plea to this charge will result in a conviction for a violation. Not only is a violation not a crime, but the violation will be sealed as well.

Disorderly Conduct, Penal Law 240.20, has many subdivisions. According to the Penal Law, a person is guilty of this violation when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," a person does one of the following:

(1) Engages in violent or threatening behavior
(2) Makes unreasonable noise
(3) Uses obscene language or gestures in a public place
(4) Disturbs a lawful assembly without any lawful authority
(5) Obstructs vehicular or pedestrian traffic
(6) Congregates with others in a public place and refuse to disperse despite police requests
(7) Creates a hazardous condition by any act which serves no legitimate purpose.

Well, that sounds fine and good, but if you are charged with a felony of Grand Larceny for stealing $2,750 then how can you plead to a violation of Disorderly Conduct if your actions did not fall into one of the above categories? Although Disorderly Conduct is not a "lesser included" offense that naturally stems from Grand Larceny or other potential charges, prosecutors offer this disposition as an alternative to the much more significant crime that you are charged with. A Disorderly Conduct is a practical means negotiated between prosecutors and criminal defense attorneys to avoid any criminal ramifications for the crime you are alleged to have committed. Certainly, a plea to a crime of theft, especially a felony, would have serious consequences on your life. Alternatively, a plea to a Disorderly Conduct, if appropriate in your particular circumstance, would have significantly less.

A Manhattan (NY County) Criminal Court Judge recently agreed with a NY criminal defense attorney and dismissed an entire criminal complaint against the defendant. The judge dismissed the charges of Reckless Endangerment, Attempted Tampering with Physical Evidence and Obstruction of Governmental Administration after the judge found the complaint facially insufficient.

In People v. Edward Beam, 2008NY046855, the information/complaint alleged that a police officer observed the defendant holding "what appeared to be a marijuana cigarette." Shortly thereafter, the police officer approached the defendant and the defendant ran into traffic "where multiple vehicles were in motion." Ultimately, the officer observed the defendant throw the item he held in his hand (the alleged marijuana) to the ground and the police officer was unable to recover it.

Continue reading "NY Criminal Defense: Judge Dismisses Reckless Endangerment, Attempted Tampering With Physical Evidence & Obstruction of Governmental Administration" »

Generally, one violates an order of protection and is guilty of Criminal Contempt if one fails to abide by the regulations set forth in the order of protection / restraining order. Unfortunately, as the NY criminal defense attorneys and former domestic violence prosecutors at Crotty Saland, LLP, can tell you, there are often countless issues that come to the forefront in these cases that require a skilled attorney to resolve. One interesting issue that arises is whether a prior finding of guilt in Family Court for violating an order protection precludes a criminal prosecution for Criminal Contempt on the same matter. In other words, does double jeopardy apply?

The general answer to this question was answered by the Court of Appeals in People v. Wood, 95 NY2d 509 (2000). In that matter, the defendant made phone calls and harassed the complainant in violation of both a Family Court and Criminal Court order of protection. The offense before both courts related to the same conduct. The Court of Appeals held that the finding of contempt in Family Court triggered double jeopardy protections because that finding of contempt, although not criminal, is punitive in nature. Therefore, the prosecution was prevented from commencing a criminal action for Criminal Contempt under the same set of facts for the same set of circumstances.

Although the above rule is a general rule as applied to the same conduct violating the same provisions of two distinct orders of protection, certain factors alter this rule. In fact, recently in Wylie v. Fountain, 304 AD2d 872 (3rd Dept. 2003), the 3rd Department came to a different conclusion that double jeopardy did not bar a criminal prosecution where different parts of the orders of protections were violated. Obviously, the waters surrounding these types of cases are treacherous. Is the alleged action the same or distinct? Is there a violation of one provision or multiple? Whatever the circumstance, retain experienced criminal counsel to navigate these waters and protect your rights, integrity and liberty.

You have just been arrested for Criminal Mischief, NY Penal Law 145.00 and you are waiting to see the judge after going through Manhattan Central Booking. Earlier in the day you got into a fight and threw a metal garbage bin from the corner of the street at some guy. Fortunately, you missed him, but the can hit a parked car causing a scratch that will cost the owner $200 to repair. You tell your NY criminal defense attorney that you intended to hit the guy and you never wanted to damage the vehicle. Well, your criminal defense attorney, if he is skilled and experienced, may have some good news for you.

According to Penal Law 145.00, a person is guilty of Criminal Mischief in the Forth Degree when, having no right to do so nor any reasonable ground to believe the he has such a right, he, under subsections (1) and (3), intentionally damages property of another person or recklessly damages property of another person in an amount exceeding two hundred fifty dollars.

Assuming the the prosecution's theory falls under subdivision one, is the intent to damage another person's property satisfied where the intent was to cause injury to another person, but as a result property was damaged instead? In other words, can the intent be transferred? In the scenario above, your intent was to hurt the person, but your bad aim caused damage to a car that you did not want to hit.

The answer to this question has been settled by the courts numerous times. Simply put, the intent cannot be transferred and the intent to damage property must be specifically for that purpose. See People v. Summer, 64 A.D.2d 658 (2nd Dept. 1978) ( to be guilty of criminal mischief in the fourth degree, one must have the specific intent to damage the property of another); People v. Bryant, 85 A.D.2d 575 (1st Dept. 1981) (evidence was insufficient to sustain conviction of criminal mischief in fourth degree upon theory that defendant intentionally damaged victim's eyeglasses, in view of lack of evidence of specific intent directed toward eyeglasses as opposed to victim himself).

While the intent to cause damage is specific and critical for any conviction to stand in a prosecution for Criminal Mischief under this theory, prosecutors may still be able to proceed against you if your actions were reckless and the damage exceeds $250. If that is the theory, then another analysis is necessary. In the hypothetical scenario above where the damage is less than $250, an experienced criminal defense attorney, such as the former Manhattan prosecutors at Crotty Saland, LLP, must aggressively seek a complete dismissal of the charges against you.

When representing clients in matters involving Endangering the Welfare of a Child, Penal Law §260.10 New York criminal defense attorneys routinely deal with a host of different facts and circumstances. Sometimes a parent's activity clearly violates the statute when, for example, the child is assaulted. Other times, however, the actions which rise to the level of Endangering the Welfare of a Child are not clear. Recently, on August 6, 2008, Judge Michael Gerstein of the Kings County (Brooklyn) Criminal Court, held that leaving a child home alone may constitute Endangering the Welfare of a Child pursuant to PL §260.10.

In People v. Carmen Reyes, 2008KN019196, a four year old child was left home alone for fifteen minutes. Ms. Reyes' criminal defense attorney made a motion to dismiss the complaint for facial insufficiency arguing, in part, that prosecution provided no facts that would support the contention that the Defendant knowingly acted in a manner that would be dangerous to the child.

Justice Gerstein held "that the issue of whether there is some minimum time that a child must be left alone in order to hold a defendant liable under PL 260.10(1) is ill-suited for resolution on a motion to dismiss for facial insufficiency. Among the factors which would appear appropriate for consideration are the age of the child, the length of time involved, the maturity of the particular child, and the reason why the child was left alone. While the statute, by its terms, protects all children under seventeen years of age, no one would think of applying the same rule to a sixteen year old as to an infant left home alone."

In finding that a trial was necessary to resolve the issues in the case, the Court noted that "home alone" cases are generally not resolved by a motion to dismiss, but at at trial. While there are some clear examples of when the statute is violated in "home alone" cases, each case must be assessed with the facts and should not be dismissed for facial insufficiency.

While each case must be analyzed individually, a New York criminal defense attorney who has experience in this area of practice will be able to do just that. Founding member, Jeremy Saland, served for seven years as a prosecutor in the Manhattan District Attorney's Office and is not only proficient at assessing these cases, but will do so in a manner that will keep you involved and educated in the entire process.

Each statute in New York Criminal Law has its own nuances. Sometimes particular subsections point to different theories of the same crime while other statutes, although similar on their face, are distinct and separate crimes. Some of these differences are very obvious to the non-legal observer while others require the analysis of a NY criminal defense attorney.

One example of this "issue" of whether the crime is merely a distinct theory or a unique charge, is evident in the NY Penal Law in reference to the crime of Trespass. Specifically, there are multiple crimes involving trespassing. Two of these offenses deal with the crime as a misdemeanor offense as opposed to either a violation or a felony. These crimes are §140.10, Criminal Trespass in the Third Degree, and §140.15, Criminal Trespass in the Second Degree.

The first of these sections make it punishable as class "B" misdemeanor (punishable by up to 90 days jail on Riker's Island) if you knowing enter or remain unlawfully in a building or on real property, and under subsection (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry or use thereof.

Criminal Trespass in the Second Degree, §140.15, however, makes it a class "A" misdemeanor (punishable by up to one year in jail on Riker's Island) if you knowingly enter and remain unlawfully in a dwelling.

So, are these crimes two separate offenses or merely separate theories? In other words, what if you are trespassing in a public housing building (a violation of New York Penal Law §140.10(e)) that was also a dwelling (New York Penal Law §140.15)? Can the prosecution proceed with charges against you under either offense?

Continue reading "NY Criminal Defense - Trespass in NY: Difference Between NY Penal Law §140.15 and §140.10" »

Judges, prosecutors, and NY criminal defense attorneys recognize that law enforcement must always be vigilant in protecting children and keeping them safe. That being said, NY criminal defense attorneys must also hold the prosecution to their burden of proof when their clients are charged with Endangering the Welfare of a Child, Penal Law §260.10.

One issue that has been litigated on multiple occasions is whether the conduct that "endangers" the child must be conduct that is directed at the child. In the alternative, is it sufficient if the conduct, although not directed at the child, is the type of behavior that the actor is aware will likely harm the child?

The answer to this particular question is clear. That is, the defendant need only be aware that his or her conduct "may likely result in harm." People v. Johnson, 95 NY2d 368 (2000).

Assuming a defendant's activities are such that he or she should be aware that harm will likely occur, the next question is how to define the level or type of harm that is sufficient. Courts have ruled that the type of harm that endangers children and satisfies this prong includes, but is not limited to: driving drunk with a child in the car, having guns in one's home where children can access them, assaulting children and in some circumstances even making numerous obscene and vulgar comments towards the child.

While some examples of the type of harm are clear and leave little room for dispute (such as a loaded weapon in the proximity of a young child or toddler), some courts differ on the less blatant forms of harm. For example, some courts disagree on whether possessing or purchasing drugs in the presence of children rises to the level of Endangering the Welfare of the Child. In ambiguous and unclear circumstances such as that, an experienced NY criminal defense attorney can mean the difference between a dismissal of the charges and a conviction if he can convince the court the information/complaint against you is insufficient. Regardless of the facts alleged in a complaint against you, consult and retain a criminal defense lawyer who can analyze your case, make the right decisions and fight for your freedom, integrity and future.