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.

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" »

The NY criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have handled a significant number of Desk Appearance Tickets (DATs) and "pink" summonses for our clients. In Manhattan, these cases are often dealt with at 100 Centre Street, 346 Broadway ("pink" ticket / summons court) or at Midtown Community Court. Whether the summons or Desk Appearance Ticket (DAT) charges you with Shoplifting Petit Larceny (NY PL 155.25 or NY PL 165.40), Marijuana (NY PL 221.10), Drug Possession (NY PL 220.03), Theft of Services (NY PL 165.15), Assault (NY PL 120.00), Trespass (NY PL 140.10), or even Disorderly Conduct (NY PL 240.20), the ramifications of mishandling the Desk Appearance Ticket (DAT) is no different than if you were arrested, booked and put through the criminal justice system. That means, you can still end up with a criminal record even though you were merely given a "ticket" for a criminal act.

For the purpose of today's entry, I will discuss the differences between the potential Manhattan courts that deal with these charges. Again, a Desk Appearance Ticket (DAT) or "pink ticket" summons in Manhattan is returnable to 100 Centre Street, Midtown Community Court or 346 Broadway.

100 Centre Street

The criminal court building houses the majority of the criminal courts in Manhattan. This building is where cases are generally arraigned (where the judge informs you of the charges) and where an accused sees the judges over the course of their pending cases. Desk Appearance Tickets (DAT) in Manhattan are returnable here as well. On the first floor of 100 Centre Street are the arraignment courts. On the date you are to go to court to deal with your desk appearance ticket you should arrive no later than 9:00 am. After going through security, you will wait in the court or outside the courtroom if it is filled to capacity. Sometimes, due to the number of cases being arraigned, the wait can be hours before you see an attorney or the judge. For this reason, and others as well, it is important to retain an attorney ahead of time. Generally, this expedites the process significantly. For more information on 100 Centre Street, follow this link for earlier blog entry.

Midtown Community Court

Located at 314 West 54th Street between 8th and 9th Avenue, Midtown Community Court often handles quality of life crimes in the area of midtown such as Times Square. The closest subway station to Midtown Community Court is the 7th Avenue, B, D or E as well as the 50th Street C or E trains. The offenses prosecuted here are misdemeanors or violations and very often deal with non-violent crimes. Although not felonies, these crimes are still punishable by up to one year jail. Make no mistake, merely because you are being prosecuted in community court by no means make the case less significant. In fact, if the case is not resolved at your arraignment, it may be adjourned to 100 Centre Street. It is important to note that crimes involving Prostitution and Escort Services often remain in Midtown Community Court and are not transferred to 100 Centre Street.

Unlike 100 Centre Street, Midtown Community Court has one court room. Although just as formal, there are significantly less cases prosecuted here and the atmosphere is not as overwhelming. That being said, if your Desk Appearance Ticket (DAT) requires your appearance at 9:30 am, get to court by 9 am because the line to get in often extends outside the building. Moreover, once inside, you will be screened and walk through a metal detector.

In addition to misdemeanors, Midtown Community Court also handles "pink ticket" summonses. Often times these cases are resolved with a fine, community service, a quality of life program or a combination of these sentences.

346 Broadway

Located at - you guessed it - 346 Broadway, the summons court handles most "pink ticket" summonses issued by the police. This court is located between Lafayette Street and Broadway. The entrance is on Leonard Street. The closest subway station is the 6 at Canal Street and the 4,5 or 6 train at Brooklyn Bridge / City Hall. Additionally, the 1 train at Franklin Street, the A or C at Chambers Street or the R or W at City Hall are relatively close. As noted above, if your case is scheduled for 9:30 am, get online by 9:00 am. Not only can the line to go through security extend around the side of the building, once inside, you must go to the second floor and wait on another line. This line is often 25 to 50 people long. When you are done waiting, you turn in your ticket to a clerk who will advise you which court room on the second floor to go to. Because these courtrooms are small, if you are not there early there is a chance you will have to wait in the hallway as there will be no seating.

Like all of the other courts, if you cannot afford counsel one will be provided for you. Having your own counsel, however, often significantly expedites the process. Regardless, each case is handled the same at 346 Broadway as there is no prosecutor, but a retired judge who presides over the cases. These judges are judicial hearing officers who do not necessarily follow the guidelines for similar prosecutions at 100 Centre Street or Midtown Community Court. However, if you and your criminal defense attorney believe your criminal case is being treated unfairly or differently, a request can be made to have that case transferred to 100 Centre Street. This can be discussed with your counsel and may be advisable if the case cannot be resolved appropriately at 346 Broadway.

Although merely a snapshot into the different Manhattan courts, this entry addresses questions often raised by those unfamiliar with the courts. For further information or to educate yourself on Desk Appearance Tickets (DAT) or a summons, check NewYorkDAT.Com regularly for updates to the blog.

Founded by two criminal defense attorneys who previously served as prosecutors in the Manhattan District Attorney's Office, Crotty Saland LLP represents clients throughout the New York City region.

It is fairly common in the courts throughout New York City (Manhattan, Brooklyn, Queens and the Bronx) for criminal defense attorneys to represent clients charged with Resisting Arrest, pursuant to NY Penal Law 205.30. While it certainly can be a legitimate charge, very often the police will add this charge on top of the original offense if a defendant merely "resists" by backing away, swinging his or her arms up and not complying with an officers demands. Do not be mistaken that the law in NY requires a fist fight or shoving to satisfy the elements of Resisting Arrest. No physical violence or injury is necessary.

According to Penal Law 205.30:

A person is guilty of Resisting Arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

As addressed above, this resistance need not be violent. In fact, as long as one intends to prevent an officer from making an authorized arrest by engaging in particular conduct, resisting arrest may be charged. See People v. Blandford, 37 A.D.2d 1003 (3 Dept. 1971). Lifting an individual from a seated position who refused to be placed under arrest and carrying that person to a patrol car has been found to be sufficient to establish the crime of Resisting Arrest even though the defendant did not behave in a violent or aggressive manner. See People v. Bauer, 161 Misc.2d 58 (Watertown Cty Ct. 1994).

Another important factor one must consider when defending against the charge of Resisting Arrest is that the underlying arrest must be an "authorized arrest." In other words, the arrest must be based on probable cause either by observations by the officer, for example, or in connection to a warrant. People v. Jensen, 86 N.Y.2d 248 (1995).

Regardless of the set of circumstances, if you are confronted by the police it is usually, if not always, in your best interest to be orderly and "compliant." This does not mean you should merely let the police take advantage of a particular situation. At the same time, you do not want to escalate a potentially dangerous situation. In the event you are wrongly arrested or charged with certain crimes, your criminal defense attorney cannot only make the applicable motions to challenge the legality and sufficiency of the arrest and charged offenses, but he or she can explain to you the available civil remedies as well.

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

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.

Any NY criminal defense attorney experienced in New York criminal law should be able to explain to you that if you are a predicate felon in New York State and charged with a non-controlled substance offense, a second felony conviction will land you in state prison even if your offense is "merely" and "E" Felony. In other words, if you are a predicate felon, as will be explained below, a sentence of state prison is mandatory on felony plea.

Pursuant to New York Penal Law Section 70.06, for one to be deemed a predicate felon or second felony offender, one must have a prior felony conviction in the past ten years. In the event you were incarcerated or on probation, the ten years starts from the completion of your incarceration. This only applies to felonies and not prior misdemeanors. Therefore, while a judge or prosecutor might take the prior misdemeanors into consideration when arranging for a disposition or determining a sentence, from a technical standpoint, the prior misdemeanors will not impact your sentence on a new felony (from a practical standpoint it often does).

An issue that comes up in the realm of the predicate felon statute is whether or not the first felony offense must be a felony in New York State. Instead of New York, what if your conviction was from a state such as Florida, Connecticut or Pennsylvania?

According to New York Penal Law Section 70.06(1)(a)(i): "the [previous felony] conviction must have been in [NY] of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed."

Put into other terms, merely because a crime is called a felony in Arizona does not meant that the crime would be a felony here. Was a term of imprisonment in excess of one year possible (not necessarily imposed) and are the elements of the crime felonious here? The Arizona conviction on your record may be called Burglary, but the elements of that crime in Arizona and the potential sentence may be similar to a misdemeanor in New York.

Obviously, it is imperative to ascertain whether your prior conviction is a felony in New York State so that you don't end up in prison when you never should have gone in the first place. To put this in perspective, as addressed above with the "E" felony, the lowest of all felonies, if you are not a predicate felon jail is not mandatory. If you are a predicate felon, then a minimum term of incarceration of 1.5 to 3 years in state prison is required and the court must adjudicate you a "Predicate Felon." Certainly, going to prison without answering this question is unacceptable.

Crotty Saland, LLP is a New York criminal defense firm founded by two former Manhattan prosecutors. Follow Crotty Saland, LLP on the NewYorkCriminalLawyerBlog or on Twitter at DefenseLawyerNY.

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?" »

In the past year alone, the Manhattan based criminal defense firm of Crotty Saland, LLP has represented a significant number of professionals including physicians, nurses, teachers and architects in addition to lawyers and individuals employed in finance. For many of these professionals, there are serious issues that may arise from a criminal case beyond the potential of incarceration.

For certain professionals, New York State requires that they certify and meet licensing requirements. The Office of the Professions is a tremendous source of information and includes applications that may be downloaded for re-certification and licensing. Even if you do not need to re-certify, you and your attorney can review the applications for particular professions to ascertain what is an acceptable disposition for your case as it relates to your career. It is important to note, however, that these licensing requirements are not the only place you should look. If, for example, you are employed by a hospital, that hospital may have additional reporting requirements relating to arrests and/or convictions. Therefore, it is imperative to not only review the information retrieved from the Office of the Professions website, but the literature, contracts, and licensing requirements from you specific employer.

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

What is the Grand Jury

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

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

Burden of Proof

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

Secrecy of the Grand Jury

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

Role of the Prosecutor

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

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

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

Does the Accused have the Right to Testify

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

Ramifications of testifying after the jump...

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

As a NY criminal defense attorney I have drafted numerous entries dealing with the crime of Endangering the Welfare of a Child. It is a serious crime with ramifications beyond the criminal law and a crime that people from all walks of life – from lawyers and physicians to construction workers and bus drivers - can face. Once again I am writing an entry on this crime. Only a few weeks ago, a noteworthy New York criminal court decision, and one you should be aware of, regarding Endangering the Welfare of a Child was handed down.

In People v. People v. Franklin Lora, 2008NY083374, decided March 26, 2009, the defendant, in the presence of his two children under the age of five, allegedly placed a gun to his wife’s head and threatened to kill her. The defendant’s attorney argued that the complaint against his client should be dismissed for facial insufficiency because the defendant’s conduct was directed at the wife and not the children. In other words, because the children merely were present and not part of the underlying crime that was the basis of the endangerment, the charge of Endangering the Welfare of a Child cannot stand.

Disagreeing with the criminal defense lawyer, Manhattan Criminal Court Judge Yavinsky held that “…the act of threatening [the complainant], in front of her young children, that she was ‘gonna get it’ and would be ‘next on [the defendant's] list’ while brandishing what appeared to be a firearm, would be sufficient to sustain a conviction for Endangering the Welfare of a Child.” The court relied on the Court of Appeals decision in People v. Johnson, 95 NY2d 368 (2000) in deciding against the defendant and his contention that the children need to be the subject or target of the behavior.

In Johnson, the Court of Appeals, the state’s highest court, held that "[n]othing in the [Endangering the Welfare of a Child] statute restricts its application solely to harmful conduct directed at children." Moreover, the Court stated that it is sufficient to establish that the defendant knowingly acted in a manner likely to be injurious to a child when the domestic violence only occurs in the presence of a child even if the act is not direct at the child.

Obviously, regardless of the criminal ramifications, we should all be careful to behave properly, safely and appropriately in front of children. If you are accused of behavior that falls into the realm of Endangering the Welfare of a Child, contact Crotty Saland, LLP to fight for your rights and to make sure that an ugly allegation that is lacking in truth and facts does not destroy your integrity or land you behind bars.

Whether you are under investigation for a white collar crime or have already been arrested for a weapon crime, it is imperative to retain an experienced New York criminal defense attorney before you talk with law enforcement. It may be that without an admission or statement on your part to the police or FBI, law enforcement has no case against you...that is right...nothing. Whatever the circumstances, whether you voluntarily go to a precinct to talk to the police to “clear the air” or you are already under arrest, you may be waiving your rights and jeopardizing your case. Even more importantly, your fatal mistake may cost you your freedom. Unfortunately for one particular defendant in Nassau County, he learned this lesson the hard way.

In a decision rendered on May 8, 2009, a Nassau County District Court Judge ruled in People v. Alfredo Pena, 2008NA011705, that a defendant’s statements were not the result of a “custodial interrogation” and therefore admissible and not obtained in violation of his rights. This “custodial interrogation” is the key element or principle in New York’s cases involving Miranda and admissions. In the Pena case, the police were investigating the defendant for the crime of Harassment through phone calls. The defendant went to the station voluntarily, waited for about 45 minutes until the detective was available and ultimately made admissions of his involvement. During this entire period of time the defendant was never handcuffed or forced to remain in the precinct. Moreover, no threats or promises were made and the defendant was not arrested. Shortly thereafter, the defendant was read his Miranda warnings, which he voluntarily waived, and he spoke further with the police. Ultimately, as you have probably guessed by now, the police arrested the defendant and the prosecutors indicated that they were going to use all the admissions against the defendant at trial. After motions were made by the defendant’s counsel, a Huntley Hearing (a hearing where a judge determines the admissibility of a defendant’s statement) was ordered and conducted.

More after the jump...

Continue reading "“Miranda Warnings,” Your Right to Remain Silent and Your NY Criminal Defense" »

Although not a commonly seen charge by criminal defense attorneys in New York City, the former Manhattan prosecutors at Crotty Saland, LLP know that violations of Agriculture and Market Law Section 353 (A.M.L. §353) are far from atypical. A.M.L. §353 provides, in relevant part:

“A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misdemeanor.”

As both a Manhattan prosecutor and as a criminal defense attorney, I have handled, seen and heard of cases of horrific animal abuse. Very often, defendants claim that they were unaware of the abuse or neglect, they tried to render assistance and aid, but failed or the animal was not theirs. While sometimes the abuse is clear an obvious such as burning or breaking the limbs of animals, often the abuse is “merely” a failure to act.

Early in December 2008, A Kings (Brooklyn) County Criminal Court judge addressed AML 353 in the context of a failure to act. In People v. Charles Curcio, 2008KN021343, the accusatory instrument alleged that the defendant’s dog had a “prominent mass protruding from her rear end, which subsequently required surgery and six days of intensive care.” A physician stated that the dog suffered needlessly. Additionally, the defendant admitted that the dog was his and that he did not take the dog to receive treatment.

In denying the defendant’s motion to dismiss, the Court found that the complaint and supporting deposition “allege that Defendant knew the dog had a mass on its rear end and that Defendant did not and would not take said dog to the veterinarian for medical attention.” Furthermore, according to the complaint, the defendant’s failure to obtain medical care could have resulted in the death of the dog. In order to save the dog’s life the surgery and six days of intensive care were necessary and this was accompanied by needless suffering. “[T]hough perhaps not complete enough to sustain a conviction, [it is] sufficient to establish a prima facie case. The Court went one step further and noted that “[f]actual issues of this nature render cases of failure to provide medical care to an animal under A.M.L. §353 particularly unsuitable for determination on motion, and except in the most extreme cases, are best reserved for trial.”

As addressed above, while this particular crime is not one that is commonly seen, your criminal defense attorney needs to be prepared to analyze the facts of your case and the allegations against you no matter what they may be. Whatever your circumstance, the criminal defense attorneys at Crotty Saland, LLP are ready to expect the unexpected, work with you to develop a plan of attack, and implement that plan to get you where you need to be.

Recently, a Queens County Criminal Court Judge in People v. Gloria Johnson-Noble, 2008QN038495, denied a defendant's motion to dismiss the criminal charge of Endangering the Welfare of an Incompetent or Physically Disabled Person. Through her criminal defense attorney, the defendant, a certified nurses assistant, had argued that although the accusatory instrument set forth that she struck an 86 year old woman with dementia on her arm and face, she did not have the intent to injure her.

According to NY Penal Law §260.25, a person is guilty of Endangering the Welfare of an Incompetent or Physically Disabled Person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect.

In denying the defendant's motion to dismiss, the Court stated:

"Here, the information charging defendant with endangering the welfare of an incompetent person contains non-hearsay allegations to the effect that the victim was an 86 year old woman suffering from senile dementia, that she was incapable of caring for herself and that defendant slapped her on her face. These allegations establish, if true, that defendant knew that her actions were likely to be injurious to the victim who was 'unable to care for himself or herself because of physical disability, mental disease, or defect.' (PL §260.25; People v. Rolston, 190 AD2d 1000 [4th Dept 1993]; People v. Biamonte, 19 Misc3d 139A [App Term 9th & 10th Jud Dists 2008].)

Clearly, according to this Queens County Criminal Court Judge, it does not matter whether or not the defendant intended on injuring the complainant, but that she knew that her actions would cause an injury. At bottom, what this particular judge has found is that the mental element (a part of every crime) is lowered in conjunction with this offense. You do not need to have the intent, i.e., purpose to cause injury. Instead if it is not your intent to injure, but your actions will or may cause injury, then the mental element of this particular crime may be satisfied.

As I have mentioned multiple times before, a failure of a criminal defense attorney's motion to dismiss does not put an end to your criminal defense. While the complaint against this particular defendant may be "facially sufficient" for the prosecution to proceed, the prosecution still must meet a higher burden, proving the case beyond a reasonable doubt, at trial. At that point your criminal defense attorney can further challenge the prosecution, cross-examine witnesses and present evidence on your behalf. While we cannot speak on the merits of this particular defendant's case and what was done for her defense, every case needs a skilled and thorough examination of the evidence in order to construct and implement the best defense. The attorneys at Crotty Saland, LLP have not only done this countless times, but stand ready to assist you in your time of need as well.

As I often note, NY criminal defense attorneys must always be aware of decisions by courts where they routinely practice. Without definitive guidance by a higher court, decisions on similar matters can be inconsistent within the same courthouse. This is appears to be the case, in part, in the recent case of People v. David Bula, 2008NY052218. On January 20, 2009, I drafted an entry on People v. Edward Beam. In that case, a New York County Criminal Court Judge agreed with a a criminal defense attorney that the charges against his client for Attempted Tampering with Physical Evidence, Obstruction of Governmental Administration, and other charges were not sufficiently established in the criminal court complaint.

In Bula, the defendant was also charged with Attempted Tampering of Physical Evidence and Obstruction of Governmental Administration. He was also charged with Criminal Possession of Marijuana. Like the Beam case, the police observed the defendant smoking what the believed to be a marijuana cigarette (the "legal" term for a joint or blunt). The defendant passed the alleged marijuana cigarette back and forth with another individual. When the police approached, the defendant was alleged to have thrown the marijuana cigarette into the river. The police recovered a bag of alleged marijuana from the ground near the other individual.

POSSESSION OF MARIJUANA

In finding the complaint against the defendant to be sufficient, the court noted that even though the bag of marijuana was not held or on the defendant's person, the totality of the facts made it clear that he "constructively" possessed the marijuana. Specifically, the court found that "[u]nder the particular circumstances of this case, where the defendant and separately charged individual are alleged to have been smoking what was identified by the deponent officer, based upon his training and experience, as a marihuana cigarette, it is reasonable to infer that the marihuana cigarette was connected to the plastic ziplock bag containing marihuana residue which was recovered from the ground near the separately charged individual's foot. Accordingly, it is further reasonable to infer that the defendant, who was alleged to have physically possessed the marihuana cigarette, exercised dominion and control over the plastic ziplock bag which was the likely source of the marihuana in the cigarette."

Continue reading "NY Judge Finds Charges of Attempted Tampering with Physical Evidence, Marihuana (Marijuana) Possession and Obstruction of Governmental Administration Sufficient" »

I have mentioned in previous entries how significant and serious a charge Endangering the Welfare of a Child is to any defendant and his or her criminal defense attorney. While "only" a misdemeanor, it is understandable that there is a zero tolerance policy when it comes to protecting children.

In People v. Maribel Perez, 2008NY046914, a decision published in the last few weeks, a NY County (Manhattan) Criminal Court Judge dismissed the charges of Endangering the Welfare of Child against a mother of young children. This dismissal, however, was not due to the factual allegations in the complaint, but due to a technical legal mistake.

The complaint against the defendant alleged that "while in an intoxicated condition after having consumed 'three (3) bottles of Corona and two (2) forty (40) ounce bottles of Heineken,' the defendant left her four children ranging in age from one to thirteen years, alone for ten minutes in an apartment where there was 'urine on the floor.. cockroaches crawling on the floor of the apartment, in the kitchen, on the mattresses, and crawling over the sleeping children . . . dirty clothes and laundry all over the apartment . . . dirty pots and pans in the kitchen . . . [and] clorox bleach bottles in the tub of the dirty bathroom.'"

The criminal defense attorney alleged that the "'mere leaving of minor children for a period of ten minutes in the presence of a thirteen year old' is insufficient to create the 'likelihood of harm' required to plead a facially sufficient charge of Endangering the Welfare of a Child. Further, defendant additionally asserts that the 'allegations that the defendant consumed 5 bottles of beer and that the apartment was unclean' do not present a likelihood of harm to the children and do not rise to the level of criminal conduct encompassed by Endangering the Welfare of a Child. Thus she seeks dismissal of the complaint for facial insufficiency."

In disagreeing with the defendant, the court stated that ten minutes was ample enough time for children to be harmed and further noted that:

"Contrary to defendant's contention, the defendant did more than just leave her children alone in an apartment for ten minutes, or drink five bottles of beer while responsible for the care of her children, or keep a dirty house. The defendant isolates each one of these actions from the other, and in so doing, attempts to characterize each action in and of itself as noncriminal, if not wholly innocuous. But the defendant did not simply do one of these things separately and apart from the others; she did all of these things in conjunction, and the entirety of her alleged conduct, both her acts and omissions, provide reasonable cause to believe that she committed the offense of Endangering the Welfare of a Child against each one of her children."

Despite the court disagreeing with the defendant and firmly denying the motion for facial insufficiency on the grounds set forth by the defendant, the court still dismissed the complaint on a technical ground. The accusatory instrument in this matter contained hearsay allegations. Specifically, the officer stated that the children were minors and indicated their ages. Because the mother did not state the ages, there was no birth certificate establishing the ages or a description of the children as to make it clear they were minors, the complaint failed to legally set forth this element of the crime.

Two important lessons can be taken from this case. The first, which is clear, is that the courts are very open and liberal in their viewing of what activities or actions constitutes Endangering the Welfare of a Child even if that activity lasts for only a few minutes. However, the second lesson is equally important from a legal perspective and applies to all criminal allegations. That is, the prosecution has certain responsibilities and requirements. Even if a complaint is sufficient based on the facts set forth in it, the prosecution must make sure each and every legal element is satisfied. Here, the prosecution failed to set forth non-hearsay allegations. This failure, whatever the charge and whatever the facts, often takes a trained and experienced eye to identify. The criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have those trained eyes and will use their experience to fight for your rights and hold the prosecution to their burden.

The Manhattan District Attorney's Office announced the indictment of William Rapetti, a tower crane rigger and owner of a company that does the same, on charges including Manslaughter, Criminally Negligent Homicide, Assault and Reckless Endangerment. Mr. Rapetti's criminal defense attorney has his work cut out. If Mr. Rapetti is convicted of the crimes that resulted in the death of seven individuals he faces up to one year in jail on the least significant crime of Reckless Endangerment and up to 15 years in state prison on the most serious crime of Manslaughter. Mr. Rappetti, along with his criminal defense attorney, was in NY County Supreme Court earlier today for his arraignment on these charges.

The Manhattan District Attorney's Office is not alleging that Mr. Rapetti intentionally killed these individuals as he is not charged with Murder. Instead, it appears that based on the charges the prosecutions theory was that Mr. Rapetti was both negligent and reckless. Although the prosecution must always prove their case beyond a reasonable doubt and has the sole burden to do so, a reckless and negligent offense does not require any showing that the defendant tried to or sought to hurt or kill the victims of the crimes. According to the press release, prosecutors believe Mr. Rapettti clearly was negligent. The press release indicates that:

"Rapetti violated numerous provisions of the New York City Building Code, federal regulations, industry standards and the manufacturer’s specifications pertaining to the proper use of the polyester slings. In particular, one of the failed slings had substantial pre-existing damage, including cuts and severe discoloration, that would have been obvious to Rapetti had he properly inspected the sling as mandated by the Building Code, federal regulations, and industry standards. Because the pre-existing damage had substantially diminished the capacity of that sling, it should not have been used at all.

In addition, all four slings had been tied to the crane in a knot called a 'choke,' which has the weakest load-bearing capacity of the three standard knots used in this type of operation. The slings were also tied around sharp metal edges of the crane tower without any kind of protective padding, which was also a violation of the Building Code, federal regulations, industry standards and warning labels on the slings themselves. The use of the slings without protective padding caused severe cuts to the slings, greatly reducing their capacity and ultimately leading to their failure. Finally, the investigation revealed that Rapetti failed to follow the crane manufacturer’s specifications that the collar should have been supported by eight slings, not four."

Without knowing all the facts beyond the press release, it is difficult to say whether or not these actions, or lack their of, were negligent and reckless. Although arguing industry standards are the minimum level of safety in these operations, does failure to follow those guidelines mean Mr. Rapetti was negligent or reckless? If a particular knot is the weakest, does that mean it is useless or faulty and therefore it is reckless to use it? Moreover, is there any evidence that the manufacturer of the hardware is at fault and not Mr. Rapetti? Again, it is difficult to answer these questions without knowing the facts.

Whatever the facts may be, this case, like any other case, needs a detailed examination to ascertain the answers to these and other questions. While the untrained eye may see this case as one that is overwhelming due to the unfortunate deaths and Mr. Rapetti's alleged failure to follow regulations, skilled criminal defense attorneys such as those at Crotty Saland, LLP know that time, diligence and the attention to detail can alter the perception and reality of a criminal case.

You have been arrested because you got into a fight with your girlfriend or wife. Maybe there is a reasonable explanation or your girlfriend does not want to "press charges." Unfortunately, at this stage it doesn't matter. You are now before a judge and whether or not you are released, you must completely stay away from the complainant.

Judges throughout New York (Brooklyn, Bronx, Manhattan, Queens and Staten Island) routinely issue "full" orders of protection after a request is made by a prosecutor at arraignments.While there is much at stake at your arraignment, a "full" order of protection may prevent you from entering your own home. Therefore, it is never too early to retain a skilled criminal defense attorney to preserve and protect your rights.

A "full" order of protection or "restraining order" is a an order by the court preventing you from having any contact at all with the complainant or alleged victim of a crime. This could mean that if you live together you may not enter the home. Alternatively, the police will arrange a time for you to enter and get some of your things. You will not be able to call the complainant or talk to the complainant even if she calls you. The burden placed upon you is quite severe.

In the event you are unable to enter your own home due to the "full" order of protection, a criminal defense attorney should request a Foreman Hearing. A Foreman Hearing is a two stage hearing where your criminal defense attorney must establish that you have certain personal property rights that will be "directly" or "specifically" affected as a result of the order of protection. Assuming that is established, the court must then decide if there is a "danger of intimidation or injury."

If such a hearing is granted, your criminal defense attorney will be able to cross examine the prosecution's witnesses. Not only does this give you the opportunity to challenge the prosecution's claims, but to establish inconstancies in the prosecution's case. The ultimate goal in this setting, however, would be to permit you to enter your home and limit the order of protection.

You and a friend have an illegal gambling operation. The police executed a search warrant at your business and you find yourself charged with Money Laundering in Brooklyn Criminal Court. However, you merely arranged for finding the physical location to run the operation and greeting clients, but you never dealt with the financial transactions. Maybe you arrange for bookings for an escort services and find yourself charged with Promoting Prostitution in Manhattan Supreme Court, but you never actually met the alleged prostitutes or set up locations to meet because someone else had the responsibility. In an even worse scenario, you are in jail in the Bronx because you were a "lookout" or "steerer" when a friend of yours sold drugs to an undercover police officer with the NYPD and now you are charged with Criminal Sale of a Controlled Substance (selling drugs) with your friend.

The question you may ask is, "How is the District Attorney's Office charging me for a crime where I was not the person who actually committed that crime?" The answer to this question may be found in Penal Law Section 20.00. An experienced New York criminal defense attorney will not only be able to explain this legal definition to you, but to analyze and put forth the best way to challenge the case against you.

Penal Law Section 20.00, Criminal Liability for Conduct of Another, establishes that if "one person engages in conduct which constitutes an offense [such as Money Laundering, Promoting Prostitution or Criminal Sale of a Controlled Substance], another person is criminally liable for such conduct when, acting with the mental culpability required for the commission [of that offense], he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

In "regular" language, what the above provision means is that if a jury finds that the offense was committed - in our examples Money Laundering, Promoting Prostitution or Criminal Sale of a Controlled Substance - and that you solicited or intentionally aided another in committing this crime with the mental state that the crime be committed, then it does not matter if your participation was less than the other person's. While it may mitigate your case, the law does not differentiate between who was more involved. Each person who was involved in the manner described above would be treated as if he or she committed each element of the particular crime.

An even better way to look at this is if you hire a person to shoot and kill another, both you and the "hitman" would be charged with Murder if such person was killed because you solicited the "hitman" and assisted him in murdering the other person even though you did not pull the trigger.

Whatever circumstance you find yourself in, there may be a valid defense or legitimate mitigating circumstances that an experienced NY criminal defense attorney can pursue to exonerate or assist you. The longer it takes to develop your defense or provide the District Attorney with mitigating circumstances, the more difficult it may become to get you where you want to be.

You did not show up for your scheduled trial in Manhattan Criminal Court, a court date where your criminal defense attorney was to file motions in Brooklyn Supreme Court, or a date to discuss a deal in White Plains City Court. Not only do you run the risk of a bench warrant being issued for your immediate arrest, you may also ultimately face an additional charge of Bail Jumping.

Punishable by up to a year in jail as a misdemeanor and up to seven years as a felony, Bail Jumping occurs when you have been released from custody or you are allowed to remain at liberty and you fail to return to court on the return date or voluntarily within thirty days thereafter.

Unfortunately, this New York criminal offense is pretty straight forward...the judge tells you to return on a particular date, you fail to do so within thirty days and now you face an additional charge. If you find yourself in this situation you will need an experienced New York criminal defense attorney to assist you in working yourself out of your predicament.

It is important to note that there may be mitigating reasons as to why you did not return and a defense to your actions. However, the law is clear in that the prosecution does not have to prove that you intentionally did not return to court.See People v. Eifell. In other words, if you fail to appear during the thirty days after your court date, it does not matter under the law that you did so because you forgot, you were sick or you intentionally stayed away. Moreover, if during the time you failed to return to court the initial case against you was dismissed, the prosecution can still charge you with Bail Jumping. See Eifell.

Fortunately, there is a statute of limitations that the prosecution must adhere to when charging Bail Jumping. If you are charged with a misdemeanor, the prosecution can only bring a Bail Jumping charge within two years after the initial thirty days and five years after the initial thirty days if you were charged with a felony. See CPL 30.10(2).

Regardless of the facts surrounding your case, if you find yourself in a predicament where you have failed to return to court, a bench warrant was issued for your arrest, or you are facing a charge of Bail Jumping in New York City or Westchester County, you owe it to yourself to retain a New York criminal defense attorney who knows how the process works, understands the crimes and is ready to advocate for your rights, liberty and integrity.

Alain Robert and Renaldo Clarke are not the first and probably not the last people to scale a large building or historical landmark in New York. Nor are they the first people to need the assistance of an experienced criminal defense attorney to get them out of a serious predicament in Manhattan. In fact, not too long ago, Jebb Corliss attempted to leap from Empire State Building. From a personal standpoint, climbing buildings and BASE jumping is certainly an intimidating (dare I say crazy?) proposition, but from a legal standpoint, what, if any, crimes are committed in New York State when an individual is arrested for these acts? If recent history is any indication, the most serious offense that prosecutors try to pursue is the charge of Reckless Endangerment.

Penal Law § 120.25, Reckless Endangerment in the First Degree, is a felony punishable by up to seven years in state prison. A person is guilty of Reckless Endangerment in the First Degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. A person is guilty of Reckless Endangerment in the Second Degree, Penal Law § 120.20, when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. So, the question is simple (or maybe not!)….Did these stunts fall into the terms of either statute?

On March 4, 2008, the First Department answered this question when the Court reviewed the dismissal of an indictment filed against Corliss where he was charged with Reckless Endangerment in the First Degree for attempting to parachute from the Empire State Building. In ultimately determining that the indictment should not be dismissed in its entirety and the prosecution could proceed with the charge of Reckless Endangerment in the Second Degree, the First Department followed the Court of Appeals Decision in People v. Feingold. The Court found that for the First Degree charge to stand there must be "an utter disregard for the value of human life - a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not."

In finding that Corliss’ actions were within the realm Reckless Endangerment in the Second Degree the Court further stated:

"Climbing over the security fence, to a position where, according to one security guard, he appeared ready to jump off the building, in itself put many people at risk. Not only were 30-to-40 mile per hour winds gusting out of the north, making mishaps more likely, but even an accidental misstep, or a hand or object reaching through the security fence and accidentally pushing, rather than grabbing him, could have sent defendant into the air, where a faulty parachute would result in a likelihood of death not only for defendant but for people on the ground. Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents. There were also risks that an object carried by or attached to defendant, or an object deployed through the fence by security guards to prevent defendant from jumping, could accidentally fall, and any such object would become a lethal projectile along the way. Additionally, the actions defendant took created a risk of serious physical injury to building security staff whose job it was to try to stop him from making the jump, and even bystanders in the vicinity were endangered by the ensuing struggle."

Although Corliss’ actions were somewhat different than that of Robert or Clarke, it appears that future climbers and jumpers may make it safely off their respective buildings, but the justice system may pose an entirely new danger. Whether they parachute down to the street or are escorted by the police, a potential misdemeanor charge or greater may be their prize.

Tampering with a Witness (New York Penal Law Sections 215.10, 215.11, 215.12 and 215.13) and Intimidating a Victim or a Witness (New York Penal Law Sections 215.15, 215.16 and 215.17) are distinct crimes that often confuse defendants, defense attorneys and prosecutors throughout the New York area from Brooklyn, Queens and the Bronx to the cities of White Plains, Yonkers and New Rochelle in Westchester County. An experienced defense attorney can help explain the differences in the two statutes, listen to your concerns and questions, and formulate a plan to develop the best possible defense for you.

A person is guilty of Tampering with a Witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce that person from absenting himself from or avoid testifying at the proceeding (such as a trial). In the alternative, that person knowingly makes a false statement or deceives with the intent to affect the other individual’s testimony. The different levels of severity of this crime (an “A” misdemeanor punishable by up to one year in jail to a “B” felony punishable by up to 25 years state prison) are distinguished in part by whether there are threats of physical injury or actual physical or serious physical injury.

Intimidating a Victim or a Witness, on the other hand, occurs when a person, knowing that another individual possesses information relating to a criminal transaction and, other than in the course of the criminal transaction, wrongfully compels or attempts to compel the other individual from communicating that information to the police, a grand jury, prosecutor or court by instilling a fear of physical injury or actually damaging property of that person. The different levels of the severity of this crime (an “E” Felony punishable by up to four years in state prison to a “B” felony punishable by up to 25 years in state prison) are distinguished in part by whether there are threats of physical injury or actual physical or serious physical injury.

A review of these two similar, but distinct, statutes makes it clear that Tampering with a Witness relates to testifying or being a witness in a proceeding such as a grand jury presentation, hearing, or trial while Intimidating a Victim or a Witness deals with preventing an individual from sharing information with law enforcement.

It is important to understand the differences between the statutes in order to develop a concise and tailor made defense set for your needs. Jeremy Saland, a former prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office, is available to explain the process, the charges, and to answer your questions for these and any other criminal charges you or your family may face.

You have seen people being arrested and defendants being arraigned before a judge. You have seen New York City criminal defense attorneys advocating for their clients while prosecutors try to throw them in jail. Of course, you have seen that all on television where the Manhattan District Attorney’s Office is glorified through “Law and Order.” While the show is intriguing, the one hour program should not be your source of legal training and education.

Putting “Law and Order” aside, a significant piece of almost all felony cases is the Grand Jury (the Grand Jury can be avoided through what is commonly called an “SCI” or Superior Court Information. This will be addressed on a later date). The Grand Jury consists of no less than 13 and no more than 23 persons. The function of the Grand Jury is to hear evidence and to take action with respect to the evidence presented. After hearing the evidence, the Grand Jury can indict a person for an offense, direct a prosecutor to file a prosecutor’s information with the local criminal court, direct the prosecutor to file a request for removal to the family court, dismiss the charges before it, or submit a Grand Jury report.

The Grand Jury experience can be an intimidating for any witness. It is important to consult with an experienced criminal defense attorney who can advise you of your rights and your options. Every defendant has a right to testify if he or she wishes, but be advised…there is no judge in the Grand Jury and your attorney cannot speak before that body. Additionally, you may subject yourself to additional charges including, but not limited to, perjury. As a former prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office who presented in the neighborhood of 100 or more cases to the Grand Jury and as an attorney who has represented clients before the Grand Jury, Jeremy Saland can assist you in determining whether you should exercise your right to testify and help you avoid any pitfalls you might encounter.