New York Criminal Lawyer Blog

November 4, 2017

The Differing Degrees of Criminal Diversion of Prescription Medication and Prescriptions: NY Penal Law Article 178

The prescription drug epidemic may not be as rampant as the crack and cocaine abuse in the 80s and 90s, but it is no less harmful and frightening. Whether a drug is Oxycodone, Xanax, Hydrocodone, Adderall or some other prescribed controlled substance or narcotic, the potential harm to the abuser, his or her family and the community-at-large is great. Because of this, law enforcement from the NYPD in New York City to smaller police departments, as well as the District Attorneys prosecuting crime in the associated jurisdiction, have sought to disrupt the illegal trade and sale of these drugs. That is where the crime of Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law Article 178, becomes part of law enforcement’s arsenal to combat the illegal sale, possession and trade of prescription drugs.

This blog entry will identify and address the differences between the varying degrees of Criminal Diversion of Prescription Medication – NY PL 178.10, NY PL 178.15, NY PL 178.20, NY PL 178.25 – and potential punishment associated with each crime.

November 1, 2017

Aggravated Harassment Arrests: Does a “Conditional Threat” Satisfy the “True Threat” Requirement of NY PL 240.30

by Jeremy Saland

While not always a domestic crime or family offense, arrests for Second Degree Aggravated Harassment in New York are fairly common in the marital, parent-child and intimate partner context. However, whether the partners have a sexual, physical or familial relationship is of no consequence. Business partners, friends and acquaintances can all run afoul of New York Penal Law 240.30. Simply, the relationship between the parties is fairly irrelevant.

If the nature of the relationship is irrelevant in a Second Degree Aggravated Harassment prosecution, what about how a threat is made? Does a clearly bogus threat violate the law irrespective of whomever the recipient may be? What about a joking threat? For that matter, what constitutes a “true threat?” This blog entry will not merely address this last question, but briefly examine whether a conditional threat is the same as a true threat for the purpose of PL 240.30.

October 27, 2017

Must a Firearm be Operable to Prove a Violation of Criminal Possession of a Weapon or Criminal Possession of a Firearm

by Jeremy Saland

Sometimes, if not routinely, a common sense or every day definition does not comport with those found in the New York Penal Law. Whether statutorily defined or established pursuant to legal precedent and decisions, what may seem clear to you may actually be quite different in a court of law. As your criminal lawyer can easily explain, in the eyes of the New York Penal Law, a loaded firearm does not require a bullet in the chamber, magazine, clip or, for that matter, physically in the gun at all. Instead, according to the law practiced in New York State criminal courts involving crimes such as Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03, a loaded firearm is one that is capable of being loaded, for example, with bullets or ammunition in the same case. Despite what a layperson may think, the law treats these types of “loaded” pistols, revolvers, and other firearms the same. In fact, while a loaded firearm can violate PL 265.03, an unloaded firearm is a distinct crime of Criminal Possession of a Firearm, New York Penal Law 265.01-b(1), carrying a significantly lesser potential sentence upon conviction.

Keeping this common sense-criminal code dichotomy in mind, what about operability? Does it matter in the eyes of the criminal law – and the prosecuting District Attorney – whether your gun can fire or discharge a bullet? Simply, is operability a mandatory element of any firearm crime found in New York Penal Law Article 265?

October 24, 2017

Accused of Stealing Prescriptions and Forging Doctors Signature: Client Avoids Multiple Felonies and Pleads to One Class “B” Misdemeanor without Jail or Probation

by Jeremy Saland

Its very easy to assume the worst about people. Its equally easy to stand in judgement of someone you do not know. After all, if they have done something wrong they are guilty and should be punished accordingly. However, that is not the reality of the world. There is a sea of grey between the two islands of black and white. There are human factors, life experiences and even mental health issues that impact how we conduct ourselves. Sometimes, even the good do bad. It could be you. Your sibling. Your child.

October 20, 2017

Drug Possession Arrests in New York: Is a Lab Test Needed to Sustain a Charge of PL 220.03

by Jeremy Saland

The state of the New York Penal and Criminal Procedure laws as practiced in New York courts is overly restrictive and burdensome. What says you? According to whom? The state of the New York Penal Law and Criminal Procedure Law as practiced in New York courts is overly lenient and broad!

The beauty of asking two different people the same question, especially in New York, is that you will get two different answers. Irrespective of one’s personal view, any spectator or active participant in the criminal justice system will likely tell you that on any given day you can likely see both of these perspectives play out in courtrooms from New York City to Buffalo. Without addressing the validity of the above conclusions or what might happen from day to day, there is one area of law that, right or wrong, that is stacked against the accused. Merit and reasoning aside, law enforcement can charge you, the accused, with the most minimal amount of evidence and corroboration while prosecutors can draft a legally sufficient complaint or information charging you with a drug crime in New York such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, based on nominal evidence. How can law enforcement sustain a charge of PL 220.03 so easily you ask? Because if the police say you possessed drugs and explain their reasoning in boilerplate language as to why they believe it’s a controlled substance, then barring any other infirmities the information (complaint) against you is legally sufficient and will likely overcome a motion to dismiss.

October 16, 2017

I am a Victim of Blackmail and Extortion: Does it Matter that My Blackmailer Lives Outside New York

by Jeremy Saland

One not need a JD from Harvard, or any legal degree at all, to recognize that Blackmail and Extortion, fundamentally the same thing, are crimes. Codified in the New York State Penal Law under Article 155, Extortion is a form or means by which a person commits Grand Larceny, a felony. By default, no matter the property type or amount secured by Blackmail in New York, Penal Law 155.30(6) makes any extorter or blackmailer guilty of a class “E” felony upon conviction. If the value of the property secured by the blackmailer is north of $3,000, $50,000 or $1 million, so is the extorter’s exposure to significant lengths of incarceration on greater felonies. Moreover, if violence is part of the extorter’s conduct, the offense level can also be increased.

Sometimes the crime of Extortion is easy to identify, investigate and prosecute. Other times the target is either hard to identify, find or legally pursue within the bounds of the law. Whether you, as a victim, go to Federal, New York State or local law enforcement, or you retain an Extortion lawyer to fend off a wrongdoer so he or she ceases and desists, is your decision. However, the question addressed in this blog entry is potentially a complicated one on its face, but one easily addressed by the law. If you reside in New York, but your blackmailer lives out of state, can her or she still be prosecuted by a District Attorney or can your New York Extortion attorney still attempt to stop your victimizer with a cease and desist letter or other legal means?

October 13, 2017

How do I Expunge or Seal My Criminal Conviction for Identity Theft: Does CPL 160.59 Apply to NY PL Sections 190.78, 190.79 and 190.80

by Jeremy Saland

The term “identity theft” is one that makes anyone and everyone cringe. After all, there are few people who have not been effected by a fraud crime relating to Identity Theft. Unfortunately, when many people hear of this offense they often think large scale fraud involving social security numbers, bank accounts and thousands, if not many more, dollars. If you have been convicted of an Article 190 crime such as Third, Second or First Degree Identity Theft, then you don’t need a criminal lawyer or sealing attorney to advise you how adversely having such a conviction on your criminal record has impacted getting a job, securing a promotion, or merely finding solid employment. Fortunately, your question of whether you can seal or expunge a conviction for Identity Theft in New York can finally be answered. While most convictions that are neither legally defined as violent crimes nor considered sex offenses are initially eligible for sealing pursuant to New York Criminal Procedure Law 160.59, the same cannot be said for expungement. Do not panic. While New York does not expunge criminal convictions and “only” potentially seals certain crimes, sealing can potentially “erase” your criminal conviction from public view and New York Penal Law 190.78, 190.79 and 190.80 are all likely NY CPL 160.59 eligible offenses.

October 9, 2017

NYC Admin. Code 19-190: The Legality of the Due Care Standard for Right of Way Arrests

by Jeremy Saland

New York City Administrative Code 19-190, generally defined as failing to exercise “due care” and violating the right of way of pedestrians and cyclists, is a relatively new statute drafted and passed by New York City. Not codified in the New York Penal Law, legislation drafted and passed by the State Legislature and New York State Governor, AC 19-190 is an unclassified misdemeanor. While a conviction can land a person in jail, aka, Rikers Island, it is generally not the sentence of imprisonment that is of grave concern, but the fact that a criminal administrative code violation is indelible. In other words, whether you are convicted of a New York State Tax crime, New York State Penal Law offense or New York City Administrative Code misdemeanor, you will have a permanent criminal record. This blog entry will address some of the legal issues that have arisen since the enactment of AC 19-190.

October 6, 2017

Can a New York State Judge Seal a Conviction for a Per Se DWI if I Blew Above a .08: DWI and NY CPL 160.59

by Jeremy Saland

Unlike DWI arrests in New York where you refuse to “blow,” there are other DWI or DUI crimes that are based on evidence of a person having a BAC of .08 or more. These drunk driving crimes are codified in New York Vehicle and Traffic Law 1192.2. While VTL 1192.2 is the same misdemeanor offense as a Common Law or Refusal DWI of VTL 1192.3, they are also different. These former DUI crimes are not based on whether you were staggering, unsteady on your feet and had slurred speech, but simply on whether your BAC was equal to or exceeded .08 even if you did not exhibit any of the indicia of intoxication. This blog entry addresses the conviction sealing eligibility issues found in New York Criminal Procedure Law 160.59 as it relates to a VTL 1192.2 arrest and conviction. Further, this article briefly examines whether you can seal a DWI conviction and, if so, how you file an application to seal your DWI.

October 3, 2017

Aggravated Harassment and Criminal Conviction Sealing: Is NY PL 240.30 an NY CPL 160.59 Eligible Offense

by Jeremy Saland

I called my ex-girlfriend dozens of times and was ultimately convicted of Second Degree Aggravated Harassment. There was an order of protection issued, but I completed my anger management without any problems. Can I now get my criminal record cleaned and erased? Can I purge or seal a conviction for New York Penal Law 240.30? Does it matter I was incarcerated for three months and then had to complete three years probation?

With the passage and implementation of New York Criminal Procedure Law 160.59, “Sealing of Certain Convictions,” what was once an irrevocable and permanent blemish on one’s criminal record may no longer be the case. Instead of answering “yes” when an employer inquires about a criminal record, should you successfully seal an eligible conviction, New York Executive Law 296(16) precludes most potential employers from asking about your sealed criminal conviction or mandating that you divulge any information about the same.