New York Criminal Lawyer Blog

One of the most common crimes prosecuted by Assistant District Attorneys in New York (Manhattan, Brooklyn, Queens, Bronx and beyond) is the offense of Assault in the Third Degree pursuant to New York Penal Law 120.00. When one is accused of Assault in the Third Degree, the prosecution must set forth certain elements. One critical element is that the complainant or victim must have suffered physical injury. Generally, "physical injury," as defined under section 10.00(9) of the New York Penal Law, is an "impairment of physical condition or substantial pain." Having presented this definition, is a complaint sufficient accusing you of Assault in the Third Degree if it merely states that the complainant suffered "substantial pain" as a result of your actions, but without "fleshing out" the "substantial pain?" Is more needed for the prosecution's case to survive a motion to dismiss from your New York criminal defense attorney?

According to a Manhattan Criminal Court Judge, merely asserting that a complainant suffered "substantial pain" without more is not sufficient. In People v. A. S., decided May 11, 2010, the complaint against the accused alleged as follows:

"Deponent [a police officer] is informed by a person known to the District Attorney's Office [the complainant] that said defendant approached said informant and shoved and hit said informant about the body with his fist, causing substantial pain."

In analyzing whether or not to dismiss the complaint, the Court noted that "'petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' are not acts that constitute assault. (See Philip A., 49 N.Y.2d at 200 (quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330); People v. Chiddick, 8 N.Y.3d 445, 448 [2007].)"

Upon reviewing the complaint and applicable case law, the Court stated:

"In the instant matter, the court must consider whether the allegations and all reasonable inferences therefrom are sufficient to establish that the complaining witness experienced substantial pain and therefore suffered physical injury. 'Substantial pain' is 'more than slight or trivial pain' but 'need not…be severe or intense.' (Chiddick, 8 N.Y.3d at 447.) The Court in Chiddick identified 'several factual aspects…that can be examined to decide whether enough pain was shown to support a finding of substantiality[,]' including: (1) the injury that the defendant inflicted, viewed objectively, (2) the complaining witness's subjective description of what he or she felt, (3) whether the complaining witness sought medical attention, and (4) the motive of the offender. (Id. at 447-48.)

Here, the only allegation as to the alleged assault is that the defendant shoved and hit the complainant about the body with his fist. The accusatory instrument alleges that this caused the complaining witness substantial pain. The court concludes that the utter absence of any description of the injuries allegedly experienced by the informant/complainant renders this accusatory instrument defective, the element of physical injury not being sufficiently alleged."

The above decision by the court to dismiss the complaint against the defendant in this matter was based in both law and facts as set forth in that particular complaint. Whether this decision as well as the Chiddick case are applicable in your criminal matter is something that cannot be addressed through a blog entry, but an issue that you should consider discussing with your own legal counsel.

For more information on the crime of Assault in New York, please follow the highlighted link. Additional information can be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm. Founded by former Manhattan prosecutors, the New York criminal defense lawyers at Crotty Saland LLP represent the accused throughout the New York Cit region.

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

According to New York Penal Law 265.25

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

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

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

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

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

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

Criminal defense attorneys and lawyers throughout New York City regularly deal with the various crimes relating to and degrees of Assault found in Article 120 of the Penal Law. The most common, Assault in the Third Degree ( New York Penal Law 120.00), is a misdemeanor offense punishable by up to one year in jail. A more serious crime, Assault in the Second Degree (New York Penal Law 120.05), is a felony offense punishable by up to seven years in state prison. Although it will be discussed further below, one of the more common reasons why an intentional misdemeanor Assault in the Third Degree is "elevated" to a felony Assault in the Second Degree is because a "dangerous instrument" is used during the commission of the lesser crime. While there are various legal reasons to raise the level of the crime, where that basis is the use of a "dangerous instrument," the actual injury inflicted for the misdemeanor and felony level crime is no different. As will be explained below, if you punch someone in the eye and give him a black eye that swells shut you may face the misdemeanor crime. If you do the same thing, but use the heel of your shoe, a baseball bat or even the door of your car, your crime may be elevated to a felony because your use of a "dangerous instrument." With this in mind, I will first deal with the applicable definitions of the crimes of Assault in the Third and Second Degrees as well as what constitutes a "dangerous instrument." Once that is done, I will address a few court decisions that have addressed when an instrument is considered "dangerous" under the law and, as a result, and individual had his or her misdemeanor Assault charge raised to a felony offense.

NY PL 120.00(1) - Assault in the Third Degree

"A person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person."

NY PL 120.00(2) - Assault in the Second Degree

"A person is guilty of Assault in the Second Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument."

NY PL 10.00(13) - Definition of Dangerous Instrument

“'Dangerous instrument'” means any instrument, article or substance, including a “'vehicle'” as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury."

Now that you have the definitions, continue reading for the analysis...

Continue reading " New York's Assault in the Second Degree & Your Criminal Defense: How Prosecutors Can "Bump Up" Assault in the Third Degree (NY PL120.00) to a Felony of Assault in the Second Degree (NY PL120.05(2))" »

It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are "restrain" and "abduct." Today's entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.

§ 135.00 Unlawful Imprisonment, Kidnapping and Custodial Interference; definitions of terms

The following definitions are applicable to this article:

1. “Restrain” means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined “without consent” when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.

2. “Abduct” means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.

3. “Relative” means a parent, ancestor, brother, sister, uncle or aunt.

Unlawful Imprisonment in the First and Second Degrees (NY Penal Law 135.05 and 135.10) after the jump...

Continue reading "Unlawful Imprisonment in the First (NY Penal Law 135.10) & Second (NY Penal Law 135.05)Degrees: A New York Criminal Defense Overview" »

The Brooklyn District Attorney's Office has announced that along with the 105 count indictment against Watson Joachin and Ryan Woodard for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.

According to to the Brooklyn District Attorney's Office:

"The indictment includes charges for the sale or possession of 46 guns – including 28 semiautomatic pistols, six revolvers, three assault rifles, four sawed-off shotguns, and five rifles – to undercover detectives. On four occasions, detectives purchased a total of 40 guns. A fifth sale was arranged, but instead of carrying it out, officers raided the defendant’s Brooklyn safe house and 2 confiscated six additional guns. Through the investigation, ten additional guns were taken off the streets."

"Investigators believe the guns, worth more than $40,000, were primarily purchased in Florida. Some were brand new, with safety stickers and barrel plugs affixed. Others had been defaced, meaning their serial numbers had been removed."

The defendants are charged with Criminal Sale of a Firearm in the First Degree, Criminal Sale of a Firearm in the Second Degree, Criminal Sale of a Firearm in the Third Degree, Criminal Possession of a Weapon in the First Degree, and Criminal Possession of a Weapon on the Second.

Criminal Possession of a Weapon in the First Degree, pursuant to NY Penal Law 265.04, and Criminal Sale of a Firearm in the First Degree, pursuant to NY Penal Law 265.13, are both "B" felonies punishable by up to 25 years in prison. Criminal Sale of a Firearm in the Second and Degree, pursuant to NY Penal Law 265.12, and Criminal Possession of a Weapon in the Second Degree, pursuant to NY Penal Law 265.03, are both "C" felonies punishable by up to 15 years in state prison. Criminal Sale of a Firearm in the Third Degree, pursuant to NY Penal Law 265.11, is a class "D" felony punishable by up to 7 years in state prison.

While I can only speculate as to the scope of the evidence, investigations such as this are often accompanied with "wires," video surveillance, search warrants and other recording devices. These defendants, innocent until proven otherwise, have a long road ahead of them and are charged with crimes that the Brooklyn District Attorney's Office will like vigorously pursue for significant sentences.

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

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Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can "bump up" or raise the level of your crime from a misdemeanor to a felony. The basis of this "bump up" to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Pursuant to Penal Law section 265.02(1), a person is guilty of Criminal Possession of a Weapon in the Third Degree if such person commits the crime of Criminal Possession of a Weapon in the Fourth Degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime. That is right...if you were ever convicted of a misdemeanor Trespass, Petit Larceny for shoplifting, or even Theft of Services for jumping a turnstile and you are now arrested for having a switchblade in your pocket, prosecutors can charge you with a felony. The ramifications are enormous as the misdemeanor is punishable by up to one year in jail and the felony by up to seven years in state prison.

If you have a prior criminal record and you have been arrested for the misdemeanor offense of Criminal Possession of a Weapon the Fourth Degree do not compound a bad situation. Not only may you be charged with a misdemeanor for possessing the alleged weapon even without the intent to use it unlawfully (weapons such as metal knuckles, gravity knives and switchblades are "per se" weapons or automatically considered weapons under NY law regardless of how they are being used), but you may find yourself charged with a felony as well.

Crotty Saland, LLP is a New York City criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland, LLP represents clients in all criminal matters from weapon crimes to white collar offenses.

As I have explained to my readers numerous times in the past, mere possession of a loaded firearm outside your home or place of business without a permit is punishable as a "C" violent felony. This offense carries a minimum sentence of three and one half years in state prison if that possession is without a license and the district attorney does not make you an offer. Whether you mistakenly brought the gun to New York from a state you had a license thinking it was legal (give Plaxico Burress a ring on that) or you knowingly had a stolen revolver, the potential crime is the same. However, consult with your NY criminal defense attorney because this charge, while more severe than other crimes, is not the only charge you may face.

Pursuant to Penal Law section 265.02, you can be charged with a "D" violent felony punishable by a minimum of two years and up to seven years in state prison for possessing an unloaded firearm. Specifically, a person is guilty of Criminal Possession of a Weapon in the Third Degree when such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun. This crime does not require that the gun be loaded.

According to the Penal Law, "Deface" means to remove, deface, cover, alter or destroy the manufacturer's serial number or any other distinguishing number or identification mark. It does not matter whether the numbers are changed or scratched out.

To make matters worse and as I have noted in an earlier entry, according to Penal Law section 265.15, the possession by any person of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that such person defaced the same.

If you have been arrested or charged with a crime relating to possessing a weapon, contact the former Manhattan prosecutors and criminal defense attorneys at Crotty Saland, LLP.

Follow Crotty Saland, LLP on Twitter at DefenseLawyerNY.

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Crotty Saland, LLPs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether "In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law §§ 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?"

The Court answered the question of knowledge by finding that "[a]lthough the statute includes no express element of mental culpability and the offense has often been referred to as a crime of 'strict liability,' existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon."

Even beyond the Court's decision that knowledge is an element of the crime, a review of the jury instructions for the charge of 265.01 as it relates to switchblade knives further illustrates the knowledge requirement. A person is guilty of violating this statute when “that person knowingly possesses any ... switchblade knife.” The jury charge also states that “[a] person knowingly possesses [a switchblade knife] when that person is aware that he or she is in possession of such [switchblade knife]” (CJI 2d N.Y. Penal Law § 265.01[1] ).

Although the First Department's apparently requires that some form of knowledge be established for a conviction of this offense, each case needs to be examined on an individual basis. Whether there is a valid defense or not, your criminal counsel must do his "homework" and ascertain the strongest approach to protecting your rights. This case and others like it may be that defense you are looking for.

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

Another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the "serious physical injury." Unlike mere "physical injury" such as a black eye or bloody cut lip, "serious physical injury" requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause "serious physical injury," but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused "serious physical injury," then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

The nuances of each and every Assault charge in the New York Penal Law are extensive. It would take hours of discussion to go through each. That being said, it is imperative that the time is spent analyzing the specific charges levied against you or a loved one to make sure that the elements of each crime charged are satisfied. The skilled criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP will take the time to conduct this thorough examination and take you through the process in order to present the strongest defense and set forth the most compelling arguments to preserve your rights, liberty and integrity. We know that each case requires this attention and our results speak for themselves.

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Plaxico Burress, the former All-Pro wide receiver for the New York Giants, pleaded guilty in Manhattan Supreme Court today to Attempted Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 110/265.03. Although Burress had been facing a minimum of 3.5 years in state prison, prosecutors agreed to offer a lighter sentence of 2 years in state prison followed by 2 years of post-release supervision.

Despite Burress' best efforts for "jury nullification," a Grand Jury indicted him for an offense that did not require any intent to commit a crime. In other words, his mere possession of the loaded firearm outside his home or place of business without a permit would have landed him behind bars for up to 15 years. From a legal standpoint, although the minimum sentence on a plea was 3.5 years, by allowing Burress to plea to the attempted crime, as opposed to the actual completed crime, reduced the offense from a "C" violent felony to a "D" violent felony. Under New York law, a sentence of 2 years is a legal disposition for "D" violent crimes. Additionally, the term of post release supervision is mandatory regardless of which offense he pleaded to.

The Manhattan District Attorney's Office certainly did not treat Burress as the hometown hero. At the same time, he wasn't treated more severely than any other denizen of the city under the same set of circumstances. If, for example, the police merely arrested Burress for carrying a loaded firearm licensed outside of the state or the police arrested him for possessing a gun with an out of state permit locked away in a case to check at an airport, then a 2 year sentence would certainly be very harsh and arguably unjust. Under those examples, a defendant may take a felony plea, but a criminal defense attorney may be able to negotiate a misdemeanor deal as well. While not typical, people charged with the same or similar crimes have even avoided a criminal conviction all together if there are enough mitigating factors.

Burress' case, while the same technical crime, is clearly distinguishable from those circumstances. Here, Burress not only possessed a loaded firearm without a permit in New York, but his permit lapsed out of state. To ratchet up the severity of this offense even further, he endangered the lives of others by inadvertently firing the gun inside a nightclub. Unfortunately, these facts along with the injury he suffered compounded the situation and elevated the gravity of the offense in the eye's of the prosecution.

This case highlights the severity and seriousness of crimes involving guns. While each case is unique, if you possess a loaded firearm without a permit while you are walking the streets of New York you are putting yourself in grave danger with the law. Mitigating circumstances may reduce the crime or the sentence, but as Burress knows all too well, even the best attorneys may not be able to save you from yourself.

Regardless of the particular misdemeanor you are accused of perpetrating, it is imperative that you obtain the assistance of an experienced New York criminal defense lawyer to guide you through the process, analyze the case and set forth particular defenses. While it may not be apparent to you, your best defense might be right in front of you. In the case of People v. Buchy, a Westchester County Village Justice found that he needed to look no further than the document right in front of him. Fortunately for Mr. Buchy, the information against the defendant contained hearsay and the court dismissed the complaint.

By way of background, Criminal Procedure Law section 100.40(1)(c) sets forth the requirement that an information (the written complaint against the accused) must contain "[n]on-hearsay allegations of the factual part of the information, and/or of any supporting depositions [to] establish, if true, every element of the offense charged and the defendant's commission thereof." In other words, if the facts are established with hearsay, the case must be dismissed.

In the Buchy case, the information alleged that the defendant perpetrated Aggravated Harassment after he called the complainant and left a threatening message. However, the call was made from a blocked number and the complainant could not identify the caller. It was not until a detective obtained phone records and informed the complainant who the caller was, that the defendant was identified. This fact was set forth in the the body of the information.

As a result, the court dismissed the case and found that:

"The identity of the caller was a fundamental element of the charge. Because [the complainant's] statement concerning the identity of the caller was based on hearsay, the detective's quoted statement in the supporting deposition, the information does not comply with CPL 100.40 (1) (c). The People's contention that the detective's knowledge came from phone business records which are admissible as business records at trial, does not overcome the fact that the imparting by him of that knowledge to [the complainant] constituted hearsay.

While each case requires its own unique factually and legal analysis, this particular case make it overwhelmingly clear that an experienced legal review is often necessary to identify the holes in a case. While the facts may have been strong and clearly against the defendant, the information failed to set forth the legal requirements establishing sufficiency. If you find yourself or a loved one accused of any offense, let the former Manhattan prosecutors at Crotty Saland, LLP work with you to protect your rights, freedom and integrity.

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

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

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

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

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

The courts reasoning after the jump...

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

Now that the Manhattan Grand Jury has voted an indictment in the gun possession case against Plaxico Burress, Burress and his attorney only have a few ways for him to avoid any jail at all. While this is a highly unlikely scenario (like any New Orleans Saints team winning the Super Bowl), outside of "jury nullification," some legal analysts and attorneys believe that another means for Burress to attack the Criminal Possession of a Weapon charge can be found in the United States Supreme Court's decision in District of Columbia v. Heller. In that decision, the United States Supreme Court found that individuals had a constitutionally protected right based in the Second Amendment to possesses firearms even if a local DC ordinance implementing a ban on guns said otherwise. Sounds great for Burress, right? Well...not so fast.

The United States Supreme Court decision in Heller slapped down a particular ordinance in the District of Columbia that amounted to a ban on arms. As noted in a decision published today in People v. Kenneth Kirby, a Suffolk County District Court judge found that:

"New York State Penal Law §265 under which the Defendant is charged does not effect a complete ban on handguns but rather has in effect a licensing requirement to legally possess a handgun (see, PL §265.20[a][3]). In the matter at hand, the Defendant traveled from Texas with a handgun allegedly given to him by his grandfather for the purposes of self-protection. It is further alleged the Defendant does not possess a valid New York State license to possess a handgun in his residence in New York. Licensing is an acceptable regulatory measure and unless one holds a license to so possess in New York, possession of a firearm remains a criminal act."

Well, if the Brooklyn decision involving Heller was first down, the Suffolk decision was second down, Burress may go for it again with Heller on third down in Manhattan Supreme Court. Unfortunately, the United States Supreme Court has already found that the Second Amendment does not bind the states and does not represent an unlimited right.

This is looking like fourth and long.

Robert Morgenthau has a well coached team. He certainly had an advantage out of the gate with a lot of “Division I” prosecutors. When it came time to hit the field, his pass rush was relentless and his secondary was all over Plaxico Burress. In fact, Burress didn’t stand much of a chance of corralling in the “long ball” of "jury nullification." Did Burress fumble before a Manhattan Grand Jury or was his quarterback sacked before he could toss the ball the distance of the field? I don’t know. I wasn’t there. Regardless, the Manhattan District Attorney’s Office has a “Giant” lead going into the fourth quarter and I don't believe that Burress will display any game winning heroics.

So what happened? What kind of second half should we expect?

As I explained to Sports Illustrated Online, when Burress testified he attempted to sway the Grand Jury to not just understand how he lacked any criminal intent, was remorseful and the firearm was legally purchased/possessed in another state, but that the Grand Jury should disregard that law. This is the concept of "jury nullification." Unfortunately for Burress, the law of Criminal Possession of a Weapon is quite clear. Criminal intent is not an element of NY Penal Law 265.03(3). Let me make that clear in case you missed it or I stuttered…Criminal intent is not an element of NY Penal Law 265.03(3). That's right, merely possessing a loaded firearm outside one’s home or place of business and without a permit to do so is a “C” violent felony punishable by a minimum of 3.5 years and a maximum of 15 years in prison.

There have been some attorneys who believe Burress did the right thing by testifying in the Grand Jury. One self impressed legal blogger even boldly exclaimed that Burress' attorney “nailed” it (boy was he foolish...I hope he has never told a client that "he nailed it" before!). If it worked and Burress had convinced the Grand Jury that an indictment was not the best route, his attorney would certainly be covered in Gatorade right now.

The countless coaches of the criminal courts can argue whether the strategy to put Burress in the Grand Jury was the right decision, but I think it is fair to say that in Burress’ case, once negotiations fell apart, what was his choice? Take two years or try to beat the case in the Grand Jury. Arguably, from a career perspective, how could Burress not have fought the case? 3.5 years or 2 years to his football career may have been a permanent termination of his contract, a/k/a, career, either way. That being said, if he recognized the gravity of the evidence against him and had taken responsibility early, he would have served a significant portion of his time already. While I am confident Burress and his attorney grasp the strength of the case, I am also confident they recognize what is/was at stake. For all of us reading this article and surfing the web…it’s much easier to play armchair quarterback then actual quarterback.

So where does this leave Burress? The prosecution may or may not re-offer the 2 years now that the Grand Jury has indicted him. As a prosecutor in Manhattan for 7 years I rarely, if ever, made the same offer post-indictment. Even it was re-made, Burress might reject it anyway. His attorney will certainly attack the case legally: Was the Grand Jury proceeding defective? Although it is not likely, do New York’s weapon statutes go too far as to fly in the face of the Second Amendment as we saw in the District of Columbia v. Heller (In Heller, the District of Columbia’s ban on an entire class of arms was found to be unconstitutional. A Brooklyn Supreme Court Judge recently found that the decision had no bearing on the New York statute)?

Maybe Burress can convince a trial jury he is remorseful and he lacks any criminal intent. As noted (again!), however, criminal intent is not an element. Even so, he may argue that he is an athlete, had a “bull’s eye” on his back and only had the gun for self defense. I mean, he is Plaxico Burress! As compelling as that sounds, if I still had on my “prosecutor hat” (they took it from me along with my “get out of jail free card” when I resigned), I would have a field day with this argument.

Is it Burress’ position that if you are an athlete, in the public eye, drive a nice car, have nice jewelry, etc. you should be held to a different standard (can someone say “ego?”)? Is there a “reasonable person standard” that dictates your “average Joe” can’t carry a gun if he wears Gap jeans and drives a Honda unless he has a permit, but an “affluent person standard” that states that if you are famous, drive a Mercedes or have some “bling,” you don’t need a permit? Moreover, if he was so concerned and affluent, what was he doing out without security or why didn’t he apply for a permit like everyone else who legally carries a firearm in NYC?

Taking this argument further, Burress likely argument is that he would only have used the gun if he was confronted or put in real imminent and life threatening danger. Yet, who would establish this level of danger? If two men approached him merely with their fists and said “give us your earring,” could he respond with the force of a firearm? Is that a legal self defense? Obviously, this is a bare bones assessment and brandishing or using a firearm may ultimately constitute a legal self defense under the right set of facts, but a hypothetical situation that never could truly be answered unless it actually happened.

Only time will tell us what happens to Burress’ freedom and future. He will be arraigned in Manhattan Supreme Court on the indictment. His attorney will file a motion or motions to challenge the Grand Jury proceeding and to make other legal arguments. I would anticipate that behind the scenes the conversations will still take place as to plea deals. It may take four, five or six months before we find out whether Burress’ attorney was successful with his motions or the case becomes one of the trials of the decade and Burress the unfortunate central protagonist in a ready-made Law and Order special.

The game is not over...yet. We have only reached half time. Burress has a tremendously skilled attorney and advocate. In fact, one of the best. But I'll tell ya' what...I wouldn’t want to be in Burress’ cleats right now.

The Manhattan based criminal defense law firm, Crotty Saland, LLP, is pleased to announce that Sports Illustrated Online and the Vault.Com have once again sought out one of our criminal defense attorney's insight regarding Plaxico Burress' gun possession case (Criminal Possession of a Weapon in the Second Degree pursuant to New York Penal Law 265.03). Jeremy Saland, one of the criminal defense attorneys, drafted two articles for the Vault.Com regarding the Grand Jury proceeding in general as well as an analysis of Mr. Burress' decision to testify before that body. Moreover, CNNSI.Com utilized Mr. Saland's experience as a former Manhattan prosecutor and criminal defense attorney in their piece on Plaxico Burress as well.

Crotty Saland, LLP is a criminal defense firm representing clients throughout the NYC area for white collar and violent crimes. Started by two former Manhattan prosecutors, Crotty Saland, LLP utilizes the experience they have from both sides to zealously advocate for their clients, develop legal strategies and implement their clients' defenses.

In the even that you or a loved one is under investigation, arrested or charged with any crime, contact Crotty Saland, LLP.

Your family is looking for an experienced New York City criminal defense lawyer because you are alleged to have followed someone around for a few hours intimidating them. You threatened to strike someone with a bat and severely hurt them. Although shots were not fired, you threatened another person with a firearm and placed him in fear for his life. While each of these sets of facts may establish numerous crimes, all of them may establish some degree of Menacing in the First, Second or Third Degrees pursuant New York Penal Law 120.15, 120.14 and 120.13 as follows:

NY Penal Law § 120.15

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.

Menacing in the third degree is a class B misdemeanor.

Penal Law § 120.14

A person is guilty of menacing in the second degree when:

1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or

3. He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued.

Menacing in the second degree is a class A misdemeanor.

Penal Law § 120.13

A person is guilty of menacing in the first degree when he or she commits the crime of menacing in the second degree and has been previously convicted of the crime of menacing in the second degree or the crime of menacing a police officer or peace officer within the preceding ten years.

Menacing in the first degree is a class E felony.

Because the degree of the crime directly relates to the term of potential imprisonment (see our sentencing chart for further information), it critical that you consult with an experienced criminal defense attorney about these offenses. It may be that you have a valid legal defense. Regardless of your defense, the former prosecutors at Crotty Saland, LLP know that its note merely your liberty that is at stake when you are accused of these crimes, but your rights and integrity.

Crotty Saland, LLP, one of the top New York City and Manhattan based criminal defense firms, is pleased to announce the dismissal of the criminal charge of Assault in the Third Degree, pursuant to NY Penal Law 120.00(1), against our client. The case, a difficult one to defeat, involved an alleged altercation between our client during a "road rage" type incident.

After our client's car was struck by the complainant's vehicle, our client, driving a mini-cooper, confronted the complainant over the incident. Our client exited the mini-cooper and approached the other vehicle. To the "big" surprise of the complainant, the man who stepped out of the mini-cooper was 6'10 and 320 pounds (I can't speculate how he got into that mini-cooper). As the incident unfolded, the police claimed they observed our client strike the complainant through the window of the car. Ultimately, our client was arrested.

Despite the "big" issues in the case, the case in its entirety was dismissed after almost eight months of legal wrangling. Although it took some time, the client and his family were more than pleased with the outcome.

If you or a loved one is in need of an experienced criminal defense lawyer for a violent or white collar crime, contact the criminal defense attorneys and former prosecutors at Crotty Saland, LLP.

NY criminal defense lawyers and attorneys who handle Assault cases in New York City should take notice. In People v. Sergio Garcia, 2009NY017018, a Manhattan Criminal Court Judge recently upheld the facial sufficiency of a complaint alleging Assault in the Third Degree, pursuant to Penal Law 120.00(1), where the defendant "punched [an officer] in the chest, thereby causing [that officer] to appear to lose his breath momentarily."

According to Penal Law 120.00(1), a person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person. Additionally, physical injury requires impairment of physical condition or substantial pain.

In finding the complaint against the defendant sufficient, the court stated that:

"Causing someone to be unable to breath, albeit momentarily, clearly supports an impairment of a person's physical condition, i.e. - breathing, which in the case at bar is directly attributable to the defendant's alleged actions. In the medical field (and as every First Class Boy Scout is trained) it is well settled that among the three most exigent medical "hurry cases" for first aid purposes are 1) heart attack, 2) severe bleeding and 3) impairment of breathing. Such conditions are considered to be potentially life threatening as they relate to fundamental systems necessary to the continuation of bodily function. The even momentary compromise of any such function, is of great concern to the overall integrity of the human body. Such compromise therefore clearly fits within the meaning of the statue."

It is important to note that although this case extends the definition of "impairment of physical condition," it is not a case that is controlling on other courts in Manhattan or other jurisdictions such as Brooklyn or the Bronx. In other words, this decision is not an appellate decision that binds lower courts in any New York City court. Nonetheless, it is an important decision that at a minimum sets forth the idea that one must not suffer a broken nose, bloody lip or black eye to be the victim of Assault in the Third Degree under the law in New York. Clearly, the bar dictating injury may be much lower.

Because courts can view facts and the law differently even within the same building, it is imperative to be represented by experienced criminal defense attorneys who, like the former prosecutors at Crotty Saland, LLP, are able to assess the facts before them, develop a plan of attack and implement a strong and viable criminal defense.

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With the recent media attention over the gun possession charge against Plaxico Burress (he is back in Manhattan criminal court this coming week, but the matter will be adjourned until September because there is no deal in place), New York criminal defense attorneys, such as the former Manhattan prosecutors and criminal defense lawyers at Crotty Saland, LLP, are keeping an eye on how the charge of Criminal Possession of a Weapon resolves itself in this case. In fact, Jeremy Saland, one of the founding partners who served for seven years under Robert Morgenthau, has been immersed in the case since its inception as a legal analyst on gun crimes as it relates to Mr. Burress for CNNSI.Com, the New Jesey Star-Ledger, and the AM NY. While Crotty Saland, LLP has been extremely successful in representing individuals charged with carrying a loaded firearm, the best defense is knowing the law in New York State so that you do not put yourself in a situation where you may violate the law. Therefore, the subject of this entry is going to deal with certain legal presumptions that apply to gun possession that are found in the New York Penal Code.

Pursuant to Penal Law 265.15 there are certain legal presumptions that apply to guns in connection with one's intent to use that firearm unlawfully as well as defacement of the firearm. While this entry will not deal with every presumption, I will address some of the more common ones as follows:

Continue reading "NY Criminal Defense and Presumptions: Criminal Possession of a Weapon - Guns, Pistols and Firearms" »

You have just been arrested for Criminal Possession of a Weapon for possessing a loaded firearm, gun, rifle or revolver. You tell your NY criminal defense attorney that the handgun was not loaded. After all, you had the ammunition locked away in the same carrying case as the gun while checking it at JFK or Laguardia Airports, but the bullets were not physically in it. In a different scenario, you explain to your criminal defense lawyer that your handgun was in a holster and empty while the bullets where in a pouch in your other pocket. How is it, you ask, that you are being charged with Criminal Possession of a Weapon in New York if the ammunition was not actually inside the gun?

The answer to this question is a fairly simple one. Pursuant to Penal Law Section 265.00(15), "Loaded Firearm" is defined under the NY Penal Law as "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge the firearm." See People v. Walston
147 Misc.2d 679 (Kings County 1990) (Possession of shotgun shell where the shotgun was present was sufficient to find the shotgun loaded.)

While the definition and law listed above may be a shock to you, the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have successfully represented and avoided criminal records for numerous individuals who possessed "loaded" firearms where they wrongfully believed they were "unloaded." This mistake, even with a valid permit from another jurisdiction, is potentially devastating for anyone. The firearm you were about to drive out of the state or properly check at the airport can land you behind bars for a minimum of 3.5 years and a maximum of 15 years. Before making this life altering gaffe, you owe it to yourself to become educated on the gun laws in New York and to contact experienced criminal defense attorneys to help you navigate the murky waters of New York State's gun laws.

The best and top criminal defense attorneys in NY fight tenaciously for their clients. Whether that fight is a legal brawl or it rears its head in a more creative way, the former Manhattan prosecutors at Crotty Saland, LLP know how to ascertain the best path to a successful criminal defense. In fact, a client charged with Assault in the Third Degree, PL 120.00, just benefited from our experience.

Briefly, our client was charged with Assault in the Third Degree after he allegedly broke the complainant's nose with his fists. At arraignment, the prosecution asked for bail in the multiple thousands of dollars, but we convinced the judge to release or "ROR" our client. Even before our client saw the judge for the first time, we locked a witness (the complainant's own friend) into his statement that the complainant was drunk and threw a glass mug at the defendant. Further investigation revealed the complainant's aggressive past as well as the complainant's serious mental health problems. Our findings directly went to not only the complainant's credibility, but violent nature. Although the defendant was about four inches taller and fifty pounds heavier than the complainant and there was no preserved evidence of the defendant's injuries from the complainant, our investigation helped convince the prosecutor that the complainant may have been the initial aggressor and the defendant acted in self defense. As a result, despite breaking the complainant's nose and admitting to striking the complainant, our client accepted a disposition where ultimately an Adjournment in Contemplation of Dismissal will prevent him from having (rightfully) any criminal record. Baring an outright dismissal, this ultimate dismissal after the adjournment term is a tremendous result and vindication for our client that he was not a guilty party. As a young man who worked at a top 10 international law firm, our client was not only saved from the embarrassment of the allegations and a criminal record, but he walked away with his career, livelihood and future secure.

If you are accused of a crime or under investigation for any offense, contact the former Manhattan prosecutors at Crotty Saland, LLP.

The top criminal defense attorneys in New York and New York City know there are many ways to "skin a cat" in order to achieve the best results for their clients in a criminal case. Sometimes we use "honey" and "sometimes" it is vinegar. A recent decision in Manhattan Criminal Court involving the charges of Assault in the Third Degree (Penal Law 120.00(1)) and Reckless Driving (Vehicle and Traffic Law 1212) strengthen the "vinegar" approach by adding another judicial decision to our criminal defense arsenal of cases to utilize in a client's criminal defense.

In People v. Warmann DiPoumbi, 2008NY068631, decided April 28, 2009 and published in the New York Law Journal on May 7, 2009, a Manhattan Criminal Court Judge dismissed the charges of Assault and Reckless Driving based, in part, for facial insufficiency. The complaint alleged that the defendant drove through a stop sign without stopping. After the police stopped the defendant, the defendant opened the car door and the door struck the police officer causing "swelling and substantial pain."

Continue reading "One of the Best Ways to Beat Your Assault and Reckless Driving Case in NY - Challenge Facial Sufficiency" »

The best criminal defense attorneys and lawyers know that the laws regarding Criminal Possession of a Weapon as it relates to loaded firearms, guns, pistols and revolvers in New York are some of the strictest and most severe in the nation. Unless you can either beat the case or work out a favorable disposition, if your are charged with Criminal Possession of a Weapon for possessing a loaded firearm outside your home or place of business and you do not have a permit to do so...you will face a minimum of 3.5 years in prison if convicted. It is just that simple.

Fortunately, the NY criminal defense lawyers and former Manhattan prosecutors at Crotty Saland, LLP have handled a significant number of these cases from both the defense and law enforcement side giving us a unique perspective on weapon crimes. This experience and knowledge was recently put to the test for the second time in as many weeks and once again we got a tremendous result.

Our client, a woman from the West Coast, was charged with Criminal Possession of a Weapon for possessing a loaded firearm outside her home and without a permit in New York. Although she lacked the permit in New York, we were able to establish that our client purchased the gun legally, had a permit in her home state, lacked a criminal record, and other mitigating factors. Without going into specific details (our "trade secrets" one might say!!!) we were able to negotiate a non-criminal deal for our client despite the fact that she was alleged to have physically possessed the loaded pistol. That's right - no criminal record or jail at all...not even a day of community service!

As I always note, the results in one particular case do not guarantee the same results on a different case with the same or similar charges. What Crotty Saland, LLP does guarantee, however, is that we will tenaciously fight for our clients, utilize our traning and experience as prosecutors and defense attorneys, and work with you to put forth a compelling defense to maintain your freedom, integrity and livelihood.

When you are charged with Criminal Possession of a Weapon for possessing a revolver, pistol, gun or other firearm, you need your NY criminal defense attorney to fight relentlessly for you. Sometimes that "fight" may be more creative than adversarial, but the best criminal defense lawyers must persevere on behalf of their clients regardless of the case. As NY criminal defense attorneys and former Manhattan prosecutors, we at Crotty Saland, LLP know this because we have successfully fought for our clients under the harshest circumstances. Not only have our clients benefited as a result of our knowledge and experience, but Crotty Saland, LLP has been sought out by CNNSi.Com, the Times-Ledger and the AM NY as legal analysts on the crime of Criminal Possession of a Weapon. Practicing what we preach and utilizing our experience, Crotty Saland, LLP is pleased to announce that we obtained an Adjournment in Contemplation of Dismissal for our client who was charged with Criminal Possession of a Weapon.

Our client faced the charge of Criminal Possession of a Weapon for possessing a loaded firearm in NYC. The complaint was very strong in that it was alleged that our client personally possessed both the revolver and the ammunition. Knowing that our client would face a minimum of 3.5 years in state prison if he was convicted, we put together an extensive "package" for the prosecution detailing many factors that should, and did, mitigate the severity of the offense and even the culpability of our client. We did so in an expedient manner and reached a disposition with the District Attorney's Office by the first adjournment after our client was arraigned in criminal court. Not only were we able to obtain a tremendous disposition on his behalf (the case is to be dismissed and sealed), it was completed quickly so that our client could put the incident behind him and move on with his life and career. Equally if not most importantly, our client's freedom remained intact.

Although the above case is unquestionably a success at many levels, each case is unique and requires diligent analysis so that the best defense can be implemented. What is successful in one criminal case involving the same charge may not be in another. Whatever the accusation or circumstances, Crotty Saland, LLP is ready and able to examine the facts, consult with you and your family and work to do what we can to preserve your liberty, integrity and livelihood.

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Any NY criminal defense attorney who has “been around the block” even just one time should be able to advise you that one of the key components to Assault in the 3rd Degree, unlike Harassment in the Second Degree, is that you inflict or cause a physical injury to another person. Well, what happens if you strike or hit someone and you don’t bust their lip, give them a black eye or, or cause any pain at all? Guess what…your weakness or their toughness could be a blessing to you!

While you can certainly be charged with Attempted Assault, a “B” misdemeanor punishable by up to 90 days jail, there is another offense lingering out there in the New York Penal Law. That offense is Harassment in the Second Degree. According to NY Penal Law 240.26:

A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Although there are numerous different elements than Assault, one of the most glaring differences is that Harassment in the Second Degree does not require that you cause any physical injury, substantial or otherwise, to the victim. Having established, in general, how the crimes are different, the best part is…if you strike someone and don’t cause any injury (go wimps!) you may be charged with Harassment, merely a violation and not a crime. That is right. Harassment is a violation and not a crime. Although it is punishable by up to fifteen days jail (that doesn’t mean you will get it), no matter what your sentence, you will not get a criminal record as a result. Therefore, a plea to Harassment in the Second Degree will not be an offense where you will ever have to say to an employer, friend or family member that you have been convicted of a crime.

Although Harassment in the Second Degree is not a crime, that does not mean that you should roll over and accept a plea to this offense. Maybe it is an appropriate disposition and maybe it is not, but either way, a full legal analysis and an aggressive criminal defense must be implemented before accepting any deal. The criminal defense attorneys at Crotty Saland, LLP stand ready to do just that and whatever else it take to legally protect your liberty, integrity and rights.

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The felony charge of Criminal Possession of a Weapon as it relates to pistols, guns, revolvers and firearms, has been receiving the undivided attention of the media, criminal defense attorneys and even politicians since Plaxico Burress' arrest. In fact, at the time of Burress' arrest for gun possession in New York, many of these media outlets reached out to Crotty Saland, LLP to discuss the nature of the gun charge as well as the ramifications of the offense. CNNSI.Com as well as the AM New York utilized Jeremy Saland's experience as a former Manhattan Prosecutor and as a NY criminal defense attorney to analyze the incident and explain the applicable law.

Once again, Mr. Saland's knowledge and experience prosecuting and defending gun crimes was sought out by the media. The New Jersey Star-Ledger interviewed Mr. Saland and requested his legal analysis in the paper's coverage of Mr. Burress' court date earlier today.

As we know now, Mr. Burress' case was in fact adjourned into a "holding pattern" in Manhattan Criminal Court where the prosecution will likely do one of four things. The first possibility between today and Mr. Burress' next court date is that Mr. Burress may be indicted by the Grand Jury on the "C" felony where he faces between 3.5 to 15 years in state prison. A second possibility is that Mr. Burress agrees to accept an "SCI" or a Superior Court Information. This would allow Mr. Burress to avoid an indictment, but will permit him to plea to a lesser felony offense with less possible incarceration. A third option would be that the prosecution reduces the charges from a felony to a misdemeanor where the maximum term of jail would be one year. A fourth, albeit less likely option, would be for an alternate plea to be worked out where Mr. Burress would plea to a higher level crime and assuming he complies with certain requirements he would be able to withdraw the plea and enter a new plea to a lower level crime.

Like our readers, we do not know what conversations are taking pace between the parties behind closed doors. Whatever they may be, there is no guarantee as to what the end result will be. If you find yourself in a similar situation or charged with any crime, the criminal defense attorneys at Crotty Saland, LLP will make one very important guarantee - We will zealously fight for you to protect your rights and do our best to make all options available for your defense.

The NY criminal defense attorneys at Crotty Saland, LLP are routinely contacted by or represent people charged with Criminal Possession of a Weapon as it relates to switch blades and gravity knives. Individuals charged with this crime recognize very quickly that prosecutors in Manhattan, Brooklyn, Queens and the Bronx take these matters extremely seriously.

According to Penal Law 265.01(1), a person is guilty of Criminal Possession of a Weapon in the Fourth Degree when he possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star.

There are many factors that are critically important when analyzing whether or not you have a valid or legitimate defense to this crime. First and foremost, your criminal defense attorney should determine whether or not the search and seizure of your person was valid. Assuming it is, the second issue that needs to be addressed is whether or not the weapon you are alleged to have possessed actually falls within the definition in the penal law relating to that particular type of weapon. The the third issue is whether or not you "knowingly" possessed that weapon. For this particular entry we will address the definition of certain weapons. The other legal matters will be addressed at a later date.

Dealing with the first issue, whether the weapon you possess is the same as that defined in the penal law, we must go right to the applicable statute. Pursuant to Penal Law 265.00 and its various subsections, the following definitions establish the crime of Criminal Possession of a Weapon:

4. "Switchblade knife" means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.

5. "Gravity knife" means any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.

5-a. "Pilum ballistic knife" means any knife which has a blade which can be projected from the handle by hand pressure applied to a button, lever, spring or other device in the handle of the knife.

5-b. "Metal knuckle knife" means a weapon that, when closed, cannot function as a set of metal knuckles, nor as a knife and when open, can function as both a set of metal knuckles as well as a knife.

Having these definitions readily available is so important to your defense. If you are accused of having a gravity knife, but instead of the blade opening with the force of gravity you have to pull it out, then it is probably not a gravity knife. If you are accused of possessing a switchblade, but it is a lock blade type knife then obviously it is not a switch blade. Moreover, if the knife does open with the force of gravity and is in fact a gravity knife, but you are accused of possessing a switchblade knife, then although your possession may be a crime, because you are charged with the wrong type of knife, a criminal defense attorney's motion to dismiss will be successful unless there is a superseding complaint drafted by the prosecutor.

Although one would think that all criminal defense attorneys make sure that the weapon their client is accused of possessing operates in the manner and fits the description of that particular weapon in the statute, this simple step is not always taken. While there may be a valid reason, confirmation of this fact is critical for the reasons described above. Equally significant, and a matter that will be discussed in the second entry dealing with this issue, is whether or not you "knowingly" possessed the weapon assuming it is in fact a weapon as described in Penal Law 265.00.

The NY criminal defense attorneys at Crotty Saland, LLP do their best to keep on top of the changes in criminal statutes and new court decisions regarding those statutes. When there is a new law or pertinent decision by the courts regarding any criminal law we do our best to relay that to our readers. One such crime, Assault in the Second Degree pursuant to PL 120.05(12), has been added to New York's criminal books as of June 2008.

Pursuant to PL 120.05(12), Assault in the Second Degree, a person is guilty of this offense when "with the intent to cause physical injury to a person who is sixty five years of age or older, he or she causes such injury and the actor is more than ten years younger than that person." This new crime is a "D" felony punishable by up to seven years in state prison.

What this crime does is elevate what was previously the crime of Assault in the Third Degree, an "A" misdemeanor punishable by up to one year in jail, to a felony in certain limited situations. Specifically, if you intentionally cause physical injury to an older person and you are more than ten years younger than that person your actions may send you to state prison where before your actions in the worst case scenario might send you to jail for up to one year. In short if you assault a young person and cause physical injury you may be guilt of Assault in the Third Degree, a misdemeanor. If your actions and the physical injury are exactly the same, but the victim is sixty five and you are at least ten years younger, under the new statute you are facing a felony.

Clearly, the legislature has taken a stance on protecting people sixty five years old and older. While we can all agree that every person needs protection from assailants and older people are more vulnerable, this statute gives prosecutors a significant "bite" behind their "bark." In the event you are accused of Assault or any violent crime, contact the NY criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP to help you navigate the criminal waters.

Having been prosecutors in the Manhattan District Attorney’s Office for a combined fourteen years, the NY criminal defense attorneys at Crotty Saland, LLP have experienced a vast number of the offenses from Disorderly Conduct, Forgery and Grand Larceny to Burglary, Kidnapping and Assault. While our experience and knowledge is a tremendous asset for our clients, we always encourage our clients to educate themselves on the criminal law as well. There is little doubt that having a basic understanding of New York criminal law is the best defense to keep you from getting in trouble in the first place.

One particular crime that is somewhat common is the crime of Burglary. When many people think of Burglary, they don’t recognize how easy it is to get caught up in one of the most serious violent crimes. Depending on the level of the offense, Burglary ranges from a “D” felony punishable by up to seven years to a “B” felony punishable by up to twenty five years in state prison.

According to Penal Law 140.20, one is guilty of Burglary in the Third Degree when one knowingly enters or remains unlawfully in a building with intent to commit a crime therein. A simple reading of this statute makes it clear how easy it is to get caught up in this crime. If you enter a building without permission to do so and you have the intent to commit a crime you can be charged with Burglary. It is very important to understand that you merely need to have the intent to commit a crime while there…it does not have to be completed. A great way to look at this is if you go into a building that houses a clothing store and you are not supposed to be inside it and you intend to steal the clothes…you can be charged with Burglary. That’s correct. You do not have to actually lay one finger on those clothes.

While it seems that this offense is clear in its scope, a further review of Burglary may alter your view. Pursuant to this article, a “building” is also defined as an enclosed motor truck or an enclosed motor truck trailer. You read that right. If you break into a truck that has an enclosed back (your “average” work or business truck similar to a UPS or moving truck) you are committing Burglary in the Third Degree. While this offense is a “D” felony punishable by up to seven years, if you enter an apartment where someone sleeps at night, then the crime is elevated to a “C” felony punishable by a minimum of three and one half years and a maximum of fifteen years. In fact, if you enter a building that houses some dwellings and businesses, for legal purposes, if the building contains any dwellings you can be charged for the more serious “C” felony.

Although this entry is just the Burglary basics, I will address the different degrees, definitions, and cases addressing this offense in the future. Until then, if you find yourself or a loved one charged with Burglary or any other crime, contact Crotty Saland, LLP to fight for your rights, integrity and liberty.

Despite a criminal defense attorney's best efforts, a Brooklyn State Supreme Court Justice ruled in a decision published yesterday that the United States Supreme Court's decision in the District of Columbia v. Heller does not prevent New York State from regulating guns, pistols and firearms within its boundaries.

Defendant, Albi Abdullah, was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law 265.01(1). The defendant had been arrested after police found him violation of an order of protection. When asked whether he had any weapons, the defendant admitted that he had a gun in a kitchen cabinet. The police then located an unloaded .25 caliber handgun.

The defendant's criminal defense attorney moved to dismiss the Criminal Possession of a Weapon charge arguing that "PL 265.01 is unconstitutional and that such charge constitutes a violation of defendant's Second Amendment right to keep and bear arms in his home for self protection, pursuant to the US Constitution., Amendments II and XIV; and pursuant to the holding of the US Supreme Court in District of Columbia v. Heller, 128 Sup Ct 2783 (2008). Defendant further supports his claim of unconstitutionality on the alleged arbitrary and capricious nature of the City's gun licensing process as managed by the New York City Police Department." The prosecution responded by arguing that "Heller, by its own terms, is neither applicable to nor binding upon the States, and that it cannot be interpreted to mean that the Second Amendment bars a state's reasonable regulation of gun possession." The court ultimately reviewed the case and agreed with the prosecution.

In denying the defendant's motion to dismiss, the court recognized that:

"The Supreme Court did specifically hold in Heller that the District of Columbia's ban on the possession of handguns in the home violates the Second Amendment (128 Sup Ct at 2821-22) but the Court also stated that the right to keep and bear arms as secured by the Second Amendment is not unlimited (supra, at 2816) and that the Second Amendment is neither applicable to nor binding upon the States (Heller, supra, 2812-13). The Court then chose not to address the validity of the District of Columbia's licensing requirement (supra, at 2819) and hypothesized that 'Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.'(supra, at 2822)."

The court further found that:

"Because New York does not have a complete ban on the possession of handguns in the home and because the District of Columbia is a federal enclave and not a State, Heller is distinguishable and its holding does not invalidate New York's gun possession laws or regulations. The Second Amendment has been recently held not to apply to the States and is not incorporated into the Fourteenth Amendment. (See Bach v. Pataki, 408 F 3d 75, 86 [2nd Cir, 2005]; Parker v. District of Columbia, 478 F 3d 370,391, n. 13 [DC Circuit, 2007]) Therefore, in New York, possession of a firearm remains a criminal act, pursuant to Penal Law Article 265, unless one holds a license to so possess, pursuant to Penal Law 265.20(3)."

Clearly, Heller's scope is not unlimited and does not prevent NY from regulating hand guns and other firearms. In fact, New York State's regulations are "alive and well." Arguably, NY has some of the most strict and severe gun laws in the nation. Mere possession of a loaded and unlicensed firearm outside one's business or home is punishable as a "C" violent felony by a minimum of 3.5 years in state prison to 15 years. That particular charge does not even require a showing that you had the intent to use the weapon unlawfully.

Whatever charge you are accused of, whether it be a violent crime of gun possession or a white collar crime relating to fraud, don't compound a criminal matter by retaining inexperienced counsel. Contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP so we can begin helping you get where you want and need to be.

Lillo Brancato, best know as the young man divided between his father and the mob in a "Bronx Tale" and the "Sopranos," was acquitted of Second Degree Murder by a Bronx jury. Brancato's criminal defense strategy may have helped him dodge a term of imprisonment that likely would have landed him behind bars for decades, but he is still likely to see some serious time in an upstate prison.

The jury found Brancato guilty of Attempted Burlgary in the First Degree, a class "C" violent felony. For those people who are not NY criminal defense attorneys or familiar with the criminal justice system, Burglary in the First Degree is a "B" violent felony that requires a minimum sentence of five years state prison and a maximum twenty five years state prison. Because he was convicted of this offense as an attempt and not a completed crime, the crime is lowered one degree to a "C" felony. Therefore, Brancato faces a minimum of three and one half years to fifteen years in state prison at his sentence. This potential sentence is the exact same sentence that Plaxico Burress faces if he is convicted for allegedly possessing the loaded firearm in Manhattan a few weeks ago. That being said, while both crimes are "C" violent felonies, Brancato's sentence will likely be much more severe and closer to the higher end of the spectrum because of the terrible and unfortunate death of a police officer.

Regardless of Brancato's sentence, nobody can bring back Officer Daniel Enchautegui or ease the suffering of his family. As noted by Brancato's defense counsel, ``[t]here was never going to be smiles. This is not a case that warrants that.''

According to the media, New York Giants All Pro wide receiver Plaxico Burress is turning himself in to the New York City Police Department for shooting himself in the leg this past weekend in Manhattan. As of now, it appears that he will be charged with Criminal Possession of a Weapon, a class "C" felony, punishable by a minimum of 3.5 years in state prison to a maximum of 15 years.

Unfortunately for Mr.Burress, the criminal law and consequences have changed significantly in recent years. The "old" law required that prosecutors prove not only that you possessed a loaded firearm (handgun, pistol, etc.), but that you had the intent to use it unlawfully against another. Now, the mere possession of a loaded firearm outside your home or place of business constitutes the same level crime. That is, possession alone is a "C" felony and the prosecution does not have to prove in any way that you, or in this case Plaxico Burress, intended to use that gun unlawfully against another person. Only 2-3 years ago, under the same set of facts, Mr. Burress would likely have been charged "only" with a "D" felony punishable by a minimum of 2 years in state prison and a maximum of seven years if the prosecution could not establish that the gun was possessed with the intent to use it unlawfully.

Although the charges and penalties are harsher then they were in the past, skilled criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland, LLP, know how to analyze and pick apart a prosecutor's criminal case. While on its face the charges against Plaxico Burress seem overwhelming (hey, he shot himself in the leg!), not everything is as clear as it seems. While we don't know all the facts, questions and issues that will likely arise over the next few days might give prosecutors pause. For example, where is the gun and bullet that were part of the shooting? If the gun was not recovered in Manhattan, such as where a person is stopped with the firearm, is there a witness who can establish that the shooting took place at a particular location in the jurisdiction? In the alternative, is there a video? While nobody is likely to contest that there was a shooting, there needs to be some form of evidence that incident took place and the firearm was possessed in Manhattan.

While there are many ways to attack a prosecutor's case, an experienced and skilled eye is needed to find and investigate each detail. Time will tell whether Plaxico Burress' criminal defense attorney will be able to find or expose such a weakness. Irrespective of the outcome of his matter, if you find yourself in any criminal predicament, Crotty Saland, LLP is ready to aggressively fight to protect your rights, freedom, livelihood and integrity.

A Brooklyn Supreme Court Judge sentenced Nixzaliz Santiago, the mother of 7-year-old Nixzmary Brown, to 43 years state prison today after she was convicted on October 17, 2008 for Manslaughter. Her husband, and the girl's stepfather, had previously been convicted for the same offense and received 29 years. In fact, it is Mr. Santiago that dealt the fatal blow after Nixzmary took yogurt from the fridge without permission. It is no surprise to this NY criminal defense attorney and former Manhattan prosecutor that Ms. Santiago received a harsher sentence than her husband.

According reports, Judge DiMango stated to Ms. Santiago at her sentence that she "may not have delivered the fatal blow, but . . . it was in your power to prevent the effects of it...[w]ere it not for your failure to act, Nixzmary Brown would have probably not died from that blow that day."

Under NY State law, two separate defendants may be liable for the same act as accomplices even though there actual conduct or involvement differed. In other words, the "getaway" driver and the "stick up" guy at the bank may have had different roles, but they aided and assisted each other in reaching their common goal. While the law does not apportion levels of guilt, if they are both convicted, a judge has the ability to decide who is more culpable and who should be punished more severely.

In the tragic case of Nixzmary Brown, the little girl's death was the result of both of her parents' actions. Despite looking at them equally in the eyes of the law as far as their guilt, Judge DiMango overwhelming felt that the child's mother could have stopped the horrific event and ultimate death from happening. We can all agree to disagree on who is more culpable and argue that one parent's actions were worse than the other's, but there are a few things that cannot be disputed. Crimes against children are not tolerated at any level in New York and little Nixzmary Brown's death was appalling, heartbreaking, and a blemish for us all.

Criminal Possession of a Weapon in the Third Degree, a "D" Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to "elevate" weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That's right...any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

Well, what if you recently pleaded guilty to a crime, but you have not been sentenced when you are arrested for possessing that switchblade? Does this plea without a sentence equate to a previous conviction for the purpose of this statute?

As a general rule, when someone is deemed a predicate felon (a prior felony offense that will elevate a current felony offense) they must have been sentenced on the prior case (within the past 10 years) before their arrest on the new case. See People v. Morse.

This past June, however, the Court of Appeals upheld a felony conviction for Criminal Possession in the Third Degree, Penal Law 265.02(1), where the defendant had pleaded to an assault and had yet to be sentenced. Prior to his sentence he was re-arrested and indicted for swinging a machete at another individual. Rejecting the defendant's argument that one must be sentenced before they are deemed to be convicted, the Court of Appeals stated that "[s]ection 265.02 seems to embody the Legislature's judgment that an illegal weapon is more dangerous in the hands of a convicted criminal than in possession of a novice...regardless of whether sentence has yet been imposed for the prior crime." See People v. Montilla.

Make no mistake, while one must be sentenced on a prior crime before being found to be a "predicate felon" for the purpose of elevating the new felony crime, where the crime charged is a misdemeanor Criminal Possession of a Weapon, the defendant need not be sentence to raise the crime from a misdemeanor to a felony. Obviously, the level of exposure increases significantly with the felony charge. Therefore, retain an experienced and skilled criminal defense attorney to advocate for your rights and get you where you need to be.

You are carrying .22 caliber bullets in Manhattan or .38 caliber rounds in Brooklyn, but you don't have a permit to possess a handgun or pistol that utilizes the ammunition or to possess any firearm at all. Well, you may not have violated New York State Penal Law for Criminal Possession of a Weapon, but you are in violation of the New York City Administrative Code.

According to Administrative Code Section 10-131(i)(3) it is unlawful for any person not authorized to possesses a pistol or revolver within the city of New York to possesses pistol or revolver ammunition. Similarly, pursuant to Administrative Code Section 10-131(i)(4) it is unlawful for any person to authorized to possess a pistol or revolver of a particular caliber within the city of New York to possess pistol or revolver ammunition of a different caliber. Both of these Administrative Code violations are punishable as misdemeanors.

Although possessing the actual pistol or revolver without a permit is a significantly more serious offense punishable by at least three and one have years prison, the fact that New York City has its own laws to punish individuals who it deems are dangerous should be a wake up call to everyone. It's not merely the firearm that can land you behind bars, but the possession of the ammunition.

In the event you find yourself in situation similar to that described above, whether it be for possession of a pistol or only the bullets, contact a skilled criminal defense attorney who will not only advocate for you, but fight to make sure your rights are secured and your future preserved.

Joseph Petcka, the defendant charged with beating a cat to death in Manhattan, was neither convicted or acquitted by the jury that heard his case. Instead, the jury "hung" on the charges against him.

As a former prosecutor in the Manhattan District Attorney's Office and a criminal defense attorney, I can tell you that more often than not, prosecutors are unhappy with this outcome. For prosecutors, the side that has the burden of proof, it is a sign that at least one of the jurors believed the cases was not proven beyond a reasonable doubt. Whether it was one juror or eleven, the prosecution must now decided whether or not to bring all the witnesses back to testify again or cut the defendant a good deal to dispose of the matter. Depending on the type of case, the time, expense, or difficulty in re-trying it may be overwhelming.

For a defendant and his or her attorney, a hung jury is often looked at differently. Obviously, an acquittal is the final adjudication that is sought, but a hung jury re-affirms possible weaknesses in a prosecutor's case and gives the defense significant insight into what to expect in the event there is a second trial. In a way, it may be a bargaining chip for the defense to seek a better deal compared to what was previously offered or to try to convince the prosecution to drop their case all together.

While it is hard to speculate what Joseph Petcka's next step may be, each side needs to recognize the advantages and disadvantages of trying the case a second time. Unlike the unfortunate cat that was mangled, Mr. Petcka will "live" to fight another day.

In the event you need a skilled criminal defense and trial attorney, contact the Law Office of Jeremy Saland to assist you in your fight to preserve your rights, integrity and freedom.

As a criminal defense attorney and former prosecutor who was an original member of the Identity Theft Unit, I have seen people charged with Resisting Arrest, Penal Law 205.30, along with underlying crimes ranging from Assault, DWI and Grand Larceny to Robbery, Trespassing, and Marijuana Possession. As the cases proceeded and went to trial, sometimes those underlying charges would not stick and the only remaining offense was the Resisting Arrest. An interesting issue that faced many defense attorneys and prosecutors was whether a person can be convicted of Resisting Arrest in New York and not the underlying charge. Simply put, the answer is yes.

Before dissecting this issue, the first thing to do is to define the crime of Resisting Arrest. Pursuant to the Penal Law, 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."

For our purposes of determining whether a conviction for Resisting Arrest may be legal despite no conviction for the underlying crime, the important element is "authorized arrest." Where there is an "authorized arrest" a conviction for Resting Arrest can be had where there is no conviction on the underlying charges. In other words, if there is probable cause to arrest a person for the crime of Assault and the person resists and is therefore charged with Resisting Arrest, the Resisting Arrest charge may be able to stand alone as long as there was probable cause to initially make the arrest. See People v. Volition; See also People v. Laltoo.

Despite the fact that a Resting Arrest charge can stand alone, each case must be analyzed and examined on its own set of facts. Merely because it is legally permissible to stand alone does not mean in each case it should. A criminal defense attorney can assist you in not only understanding the "rules" of Resisting Arrest, but when it may be challenged with the intention of having the charged dismissed.

New York Penal Law Section 110.00 establishes that a defendant is guilty of an attempt to commit a crime when, "with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Well, if you are accused of attempting to commit a robbery in Brooklyn, an assault in the Bronx, or a burglary in Manhattan, this definition offers little assurance and even less guidance. That is why you need an experienced criminal defense attorney and former prosecutor to fight for your rights and hold the prosecution to their burden of proof.

While mere preparation, with nothing else, is not enough to establish an attempt to commit a crime, if an individual comes "dangerously close," courts usually find that that the attempt has gone far enough. To help fully understand when there is an attempt to commit a crime that is "dangerously close" we will deal with attempt in the context of the crime of Attempted Murder.

It is safe to say that pointing a loaded gun at another is not sufficient to satisfy the elements of attempt. Other facts must be provided such as having the finger on the trigger or pulling it. In fact, the First Department in New York has held that there was no attempt to commit the crime of Murder when a defendant pointed a loaded gun at an officer without any evidence that the defendant at least had his finger on the trigger or came very near the accomplishment of the crime. The First Department did find sufficient that there was an attempt to complete a crime, however, when ballistics records showed that the trigger had been pulled, a bullet had been fired, the gun was pointed at the police officer and there were thirteen rounds in the magazine, but none in the chamber.

As recent as last month, the 4th Department held that there was an attempt to commit the crime of Murder when the defendant was found near the home of his intended victims. The defendant was standing near a loaded gun with the trigger lock removed. Additionally, the defendant had a list in his pocket of how he planned on killing his victims. This, the majority argued, was beyond mere preparation and was "dangerously close."

Obviously, there is no clear cut rule as to how far one must go to attempt a crime. To make sure that the prosecution has the evidence to prove beyond a reasonable doubt that your activities are "dangerously close," you need an experienced criminal defense attorney to stand up to the prosecution and fight zealously for your rights.

Mount Kisco (Westchester County) police officer George Bubaris was acquitted of the charges of Manslaughter and Criminally Negligent Homicide in White Plains. The case has divided communities and received significant media attention due to the exposure of the issues that exist between immigrant communities throughout New York and local law enforcement.

The case began after Rene Perez, a homeless and undocumented immigrant from Guatemala, died in April 2007. Prosecutors claimed that Mr. Perez died as a result of an abdominal injury sustained by Officer Burbaris. The defense, on the other hand, argued that it was the Mr. Perez's life style that caused the injuries. Although there was no dispute as to the injury that ultimately caused the death of Mr. Perez, the prosecution and the defense argued not only as to who caused the injury, but when it occurred. Clearly, the defense was able to persuade the jury that there was reasonable doubt as to this critical point and Officer Burbaris' actions.

Although Bubaris allegedly made some damaging statements, including that he was going "hunting" presumably for immigrants, Perez had a long record of arrests, getting drunk and making 911 calls.

Unfortunately, in a case such as this, there are no winners, but only losers. While Officer Burbaris was acquitted of the charge, there will remain a significant number of people, especially those in the immigrant community, who will still demand answers and hold him accountable. As a former prosecutor and a practicing criminal defense attorney, I am all too familiar with the reality of the criminal process and the ramifications of a mere accusation of any crime. It is not just your rights you need to protect, but your liberty, integrity, and livelihood.

As a former prosecutor in the Manhattan (New York County) District Attorney's Office and one of the first Assistant District Attorneys in the Identity Theft Unit, I have seen a significant amount of outright stupid moves that have resulted in arrests for crimes ranging from Assault and Gun Possession to Criminal Possession of Stolen Credit Cards and Criminal Possession of Forged Instruments. Recently, in Brooklyn Supreme Court, a defendant was unable to convince the Court that that his arrest for Robbery was not supported by probable cause and that the knife recovered from his person violated his constitutional rights. His arrest and legal problems came to be because the defendant was just not thinking.

Back in January 2006, the defendant was on a subway platform urinating - the "boneheaded" move. Seeing that the defendant was violating both the Penal Law and New York City's Administrative Code, an officer approached him and asked for identification. The defendant produced identification and later stated he was on parole. The officer then asked if the defendant had anything on him that could hurt him and the defendant produced a carpet knife. Alarmed, the officer then cuffed the defendant.

After cuffing the defendant, the officer noticed a bulge in the defendant's pocket where he recovered a larger knife. Ultimately, the defendant was arrested and brought to Central Booking where the officer saw that he matched a sketch for a subject of a robbery. After investigating the matter further, the defendant was charged with the Penal Law Crime of Robbery.

In upholding the arrest and search of the defendant, the Court stated that probable cause existed because at the time the officer observed the defendant urinating he could have either arrested him or issued a summons. Since a "safety frisk" was authorized under these circumstances, it was acceptable that the officer asked if the defendant possessed anything that could hurt him. The Court further reasoned that once the defendant pulled out the carpet knife the officer could have cuffed him. Once doing so, the officer observed the bulge and what appeared to be a possible handle of a knife. Therefore, the officer would have been "derelict" in his duties if he ignored the bulge.

Unfortunately, the entire chain of events were put into play due to the defendant's one initial bad decision. In the event you make a mistake that may have severe consequences, you should retain experienced counsel to attempt to fix that mistake by aggressively fighting for your rights, your freedom, and your future.

Christoper Carter was acquitted in New York County (Manhattan) Criminal Court after a jury found the prosecution did not prove he committed the crime of Assault in the Third Degree, a misdemeanor punishable by up to one year in jail, beyond a reasonable doubt.

While many people know the basics about this story, the case is centered around an altercation at a sports club. Stuart Sugarman and Christopher Carter were both members of Equinox, a gym in New York. During a spin class Sugarman became loud and apparently rude. To quiet him down, Carter allegedly lifted Sugarman's bike and /Sugarman hit the wall, fell to the floor, and damaged discs in his back. As a result of this incident, the police and Manhattan District Attorney's Office charged Carter with Assault in the Third Degree.

This case is interesting on its own merits, but it also gives us the opportunity to examine the crime of Assault in the Third Degree. The first issue one must analyze in a Third Degree Assault case is whether Carter (or any defendant) caused physical injury to a complainant. The second is whether he intended to cause physical injury or, in the alternative, he was reckless in causing physical injury to the complainant.

Dealing with the first issue, physical injury is described as impairment of one's physical condition or substantial pain. However, merely stating someone suffered pain without more may not be enough to withstand an experienced criminal defense attorney's motion to dismiss or an argument to a jury that physical injury was not proven beyond a reasonable doubt. In fact, the Court of Appeals, the highest court in New York State, has found that physical injury was not established where a complainant was punched repeatedly but could not articulate and specify the pain. The case cited here is not alone on an island. There are a countless cases following this decision and cases which can be put to use in defending your matter.

Even assuming the complainant suffered physical injury, the second issues is whether the defendant's actions were intentional or reckless. The key element for intentional behavior is that the defendant must have acted in a manner where his "conscious objective" was to cause a particular result. As stated above, if the defendant was accused of acting reckless, then it must be proven beyond a reasonable doubt at trial that he was aware of and consciously disregarded a substantial and unjustifiable risk that a particular result would occur or that such circumstances existed. It is important to note that the risk must be of such nature that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

As will be discussed in another entry and on a later date, there are may cases interpreting the meaning of both intentional and reckless. For the purpose of generally understanding Assault in the Third Degree, however, it should be sufficient for now to recognize that there must be a specific and articulable injury along with an intentional action or reckless behavior that caused that injury.

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.

The New York City Police Department (NYPD) finally arrested Mark McIntosh and charged him with three counts of Grand Larceny, three counts of Robbery, and one count of Resisting Arrest. McIntosh allegedly snatched purses from six women standing on subway platforms throughout New York City including Manhattan and Brooklyn. Not only was McIntosh brazen enough to grab the purses during rush hour, he often fled into the subway tunnels to escape.

According to the NYPD and the Manhattan District Attorney's Office, McIntosh often stayed at a homeless shelter in Manhattan's East Village. Not only was McIntosh identified in lineups, McIntosh apparently did something that any person accused a crime should not do...he made incriminating statements.

This case raises a few interesting issues and lessons (not including the obvious...secure your personal belongings while on the subway!). First, if you are arrested of a crime do not speak to the police. Immediately ask for an attorney. Second, there is often a fine line between Grand Larceny from the person and Robbery. In short, Robbery requires force and can be elevated significantly if, among other things, an injury occurs or a weapon is used. Grand Larceny, on the other hand, is the taking of property from another's person without any force or injury. To the accused, however, the big difference is not the actual definitions of the crime. While a conviction for Grand Larceny could be a sentence of up to four years in state prison a conviction for the lowest degree of Robbery is a seven year sentence in state prison. The highest degree of Robbery, Robbery in the First Degree, is punishable by up to twenty five years state prison.

If you or a loved one is charged with any of these types of crimes you should seek immediate assistance from an experienced criminal defense attorney.

6 Year old Taylor Webster died at Mount Sinai Hospital in New York and her foster mother, Joanne Alvarez, was charged with Criminally Negligent Homicide (Penal Law 125.10 – an “E” Felony with no mandatory minimum jail sentence) after Ms. Alvarez gave her a prescription fentanyl “pain patch.” Unfortunately, Taylor’s body could not handle the medications in the patch used for people aged 16 and older and she passed away.

As a former prosecutor in the Manhattan District Attorney’s Office and an experienced criminal defense attorney, I am all too familiar with this type of case where everyone suffers and tragedy reigns. From a legal perspective, the charge of Criminally Negligent Homicide, as opposed to “murder,” appears to be the appropriate charge. Unlike a crime that requires an act to be intentional, meaning a person’s conscious object was to engage in particular conduct, Ms. Alvarez, at his point, is facing charges requiring a different mental state.

Criminal negligence, unlike an intentional or reckless mental state, requires that a person conduct themselves in a manner with respect to particular statute and that person fails to perceive a substantial and unjustifiable risk that a particular result will occur or that particular circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Unfortunately, without all the facts made available to the public, we can only speculate as to whether her conduct was a gross deviation and she failed to perceive an unjustifiable risk. Did the medication have documentation stating that it should not be used on a child under 16 and if so what were/are the stated dangers? Did Ms. Alvarez have a prescription for the drug and does she have access to or use prescription medication for other children in her care? Did she consult with a physician or keep checking on Taylor as she slept? Has she been warned or cited in the past for similar behavior? Again, we can only speculate as to the full set of facts, but it appears clear that her actions were not intentional, i.e., her goal was not to kill a child. Irrespective of her mental state, Taylor unfortunately passed away.