Criminal Defense

December 17, 2012

Resisting Arrest: The Necessity of an Authorized Arrest & the Right to Object to Unlawful Police Conduct

One of the most frustrating crimes that New York criminal lawyers must defend against is the crime of Resisting Arrest. Although New York Penal Law 205.30 is not as serious a crime as a felony offense, it is frustrating because for every legitimate Resisting Arrest charge that is prosecuted, there are also many violations of NY PL 205.30 that do no not warrant prosecution. For example, if someone is being disorderly or even legally confrontational with the police, a police officer may attempt to arrest that person. Should that person pull his or her arm away while the police try to handcuff him or her, the officer may decide to elevate a “non-case” into a misdemeanor. To be clear, I am in no way insinuating that the police charge this crime wrongfully with regularity, but one would be naive to think that violations of NY PL 205.30 are always based in legal arrests or based upon the spirit of the statute.

What each and every defendant and criminal lawyer must understand about the crime of Resisting Arrest is that a person is guilty of this crime only if he or she intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person. A critical component of any Resisting Arrest arrest (that sounds kind of funny, doesn’t it?!) is that the actions not only be intentional and as a means to prevent a police officer from making an arrest, but the arrest must be an authorized one. If it is not authorized, then the arrest for violating New York Penal Law 205.30 is not valid.

November 26, 2012

New York Penal Law 190.23: False Personation & Legally Sufficient Criminal Complaints

by Jeremy Saland

Sometimes, when we are frustrated, we tend to get “cute” or “fresh.” While talking back to your mother or a friend may get you further into an argument, doing the same with the police can make a bad situation exponentially worse. Its not just a bad attitude that can aggravate a legal situation, but should you give false information to the police in New York upon your arrest, you may find yourself charged with False Personation. A “B” misdemeanor crime punishable by jail, False Personation (New York Penal Law 190.23) is a potentially serious offense.

Fortunately, as serious a crime that False Personation may be, not all bogus answers can lead to a criminal prosecution. You are guilty of NY PL 190.23 if you are advised of the consequences of misrepresenting your name, date of birth or address to the police, you actually misrepresent that information with the intent of preventing the officer from ultimately obtaining the accurate information. While the type of behavior that is criminal seems fairly straight forward, a recent New York Criminal Court decision out of Brooklyn sheds some light on the issue of how prosecutors prove this crime.

October 2, 2012

Self Defense in a New York Assault Case: Justification & Initial Aggressor

by Jeremy Saland

New York Assault arrests easily make up the majority of violence related crimes in New York as a singular group of offenses. Whether the crime is a Domestic Violence offense, a bar fight constituting Third Degree Assault, a misdemeanor Desk Appearance Ticket or a more serious Second or First Degree Assault where either a weapon is used or an alleged victim suffered a serious physical injury, Assault crimes expose those accused to potentially long terms of incarceration. Because of this, it is critical for your New York Assault lawyer or criminal defense attorney to identify potential defenses and pursue the same as soon as he or she is retained. After all, witnesses may forget what happened, defensive injuries may heal over time and other evidence may just be lost.

Before addressing the affirmative defense of “self defense,” also called the defense of “justification,” in a New York Assault arrest, I want to briefly address New York Assault law. Generally, the basic idea or concept of a New York Assault case is that you intentionally (there are reckless crimes as well) cause physical injury to another person. These actions are the elements of Assault in the Third Degree (New York Penal Law 120.00). What enhances the misdemeanor offense to the felony crimes of Second Degree Assault (New York Penal Law 120.05) or First Degree Assault (New York Penal Law 120.10) are such factors as the nature of an injury being classified as “serious physical injury” or the use of a dangerous instrument or weapon during the crime.

September 14, 2012

Arrested for Domestic Violence in New York: Understanding the Process, Crimes and Procedures

by Jeremy Saland

New York Domestic Violence crimes are some of the most serious offenses found anywhere in the criminal law (and rightfully so). Well beyond allegations of Assault, these crimes cover a wide spectrum of conduct. Regardless of the offense charged, the significance of a New York Domestic Violence arrest or accusations is evident in its handling by the branches of law enforcement. For example, the New York City Police Department (NYPD) has specially trained Domestic Violence officers that work in their respective precincts directly with those who are victims of Domestic Violence crimes. In the City’s District Attorney’s Offices (Manhattan, Brooklyn, Queens, etc.), prosecutors are either specially trained to manage Domestic Violence cases or they may be assigned to a Domestic Violence unit.

As important as it is for law enforcement to investigate, arrest and prosecute offenders of abuse, an allegation against a “family member” does not mean the believed crime actually occurred. As much as we are all quick to judge what we may read in the news and assume that an accused is a batterer of a spouse, child, etc., it is imperative to recognize one is innocent until proven otherwise. Regardless of the crime, sometimes it takes your wrongful arrest or a false accusation against a family member before this principle hits home.

August 31, 2012

When Remaining Silent May be Your Best Criminal Defense: Making Graffiti & the New York Police Department’s Vandal Squad

by Jeremy Saland

Every so often there is a story that is worth repeating when it comes to criminal defense in New York. As I have noted countless times in my blog entries and directly to clients, speaking to a detective or police officer with the NYPD or an Assistant District Attorney without a criminal defense attorney is usually a terrible mistake. Remember, you always have a right to request a lawyer. Whatever you say, if it can be construed as damaging in any way, will be used against you. Again, not only do I know this from my experience representing clients throughout New York City, Westchester County and other jurisdictions, but many cases that I prosecuted as an Assistant District Attorney in Manhattan were enhanced because targets of investigations or those arrested either thought they were smart enough to talk themselves out of a situation, minimized their actions through half-truths or just made admission. If you take home anything from this New York criminal law blog entry, remember to think before you speak.

The anecdote worth sharing recently occurred in a Manhattan precinct where our client was arrested in NYC for his alleged involvement in making graffiti. The crimes associated with this offense and common arrest charges for graffiti include the obvious, Making Graffiti (New York Penal Law 145.60), Criminal Mischief in the Fourth Degree (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). Alternatively, if the graffiti arrest involves a felony a higher degree of Criminal Mischief in the Fourth Degree may be charged.

March 29, 2012

New York Gravity Knife Arrests & DATs: When a Search May be Illegal

by Jeremy Saland

What is a Gravity Knife? Is it illegal to have a gravity knife on my person under New York Law? Under what circumstances can the New York Police search me on a Manhattan Street or a Queens subway station? Once I am arrested for possessing a gravity knife is it possible to get a Desk Appearance Ticket or will I be processed through the system? As an experienced New York criminal lawyer, I often hear these types of questions and answer the same. In this blog post I hope to address at least one of these issues by examining a Brooklyn criminal case involving Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01).

Criminal Possession of a Weapon in the Fourth Degree is a Class “A” misdemeanor. Sure it’s not a felony, but it is punishable by up to one year in jail and will stay on your permanent record. Further, it is rare that an offer of any kind is made at a defendant’s arraignment in most jurisdictions. Because it is highly that a “slap on the wrist” will make a knife case go away – gravity knife or switchblade knife – it is critical to have a basic understanding of the law. There are eight sections under NY P.L. 265.01, which specify the circumstances under which an individual will be found guilty for possessing certain weapons. Without getting into the details here, you are guilty of Criminal Possession of a Weapon in the Fourth Degree if you possess certain weapons that are classified by statute as automatically criminal regardless of your intent. These weapons include a stun gun, gravity knife, switchblade, bludgeon, metal knuckle and dagger.

March 4, 2012

New York Penal Law 205.30: Is Dismissal of Other Arrest Charges a Criminal Defense to Resisting Arrest

by Jeremy Saland

Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.

In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.

February 28, 2012

New York Gambling Record Crimes: Must Prosecutors Allege in an NY PL 225.15 Complaint that You Did Not Possess the Records for Personal Use?

by Jeremy Saland

Depending on the facts and circumstances, gambling in New York, outside of Native American Reservations and the horse tracks, is an illegal enterprise. Unlike Las Vegas, gambling in New York City or elsewhere in the State of New York can land you in jail and the winner of a criminal record. New York is no stranger to organized gambling schemes, illegal “bookies” taking bets, or underground gambling enterprises. As a New York criminal lawyer representing clients in Manhattan, Queens, Westchester and the surrounding boroughs and counties, I know that while gambling offenses are not as common as many other crimes, prosecutors and police are constantly on the lookout for and target gambling offenders. Today I want to examine a recent Bronx County criminal case involving the violation of New York gambling laws: Possession of Gambling Records in the Second Degree, pursuant to New York Penal Law 225.15(2).

Under NY PL 225.15(2) a person is guilty of Possession of Gambling Records in the Second Degree when, with knowledge of the contents or nature thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise. Possession of Gambling Records is a class “A” misdemeanor, punishable by up to one year in jail and a fine. Remember, even without ever stepping into jail as a part of a sentence, Possession of Gambling Records is a crime that will stay on your permanent. Now, if the records are of the kind used in a bookmaking scheme or enterprise and total more than five thousand dollars the charge escalates to a much more dire case. That is, Possession of Gambling Records in the First Degree, pursuant to New York Penal Law 225.20, is a felony. While the misdemeanor variety of gambling crimes is punishable by up to one year in jail, the felony variety is punishable by up to one and one third to four years in state prison.

January 20, 2012

When Police Conduct a Post Arrest Search Without an Arrest: Challenging Illegal Searches in New York

by Jeremy Saland

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are “searched incident to your lawful arrest” where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple “nothing” case evolve into something so serious…

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

January 19, 2012

Prosecuting a Domestic Assault Case without a Victim: The Excited Utterance Rule in New York

by Jeremy Saland

The common perception is that most of the work of a New York criminal attorney comes in zealously representing their clients at trial while trying to enter a reasonable doubt in the mind of a jury or a judge. While that is certainly a role played by criminal attorneys in New York, the truth is that many times experienced New York criminal lawyers raise challenges to a case at a much earlier stage. For instance, a criminal attorney may challenge the arrest itself as improper, or the sufficiency of the charges brought by the Assistant District Attorney. As most of you know, the police standard for making a proper arrest is probable cause. Furthermore, in New York an Assistant District Attorney (the prosecutor) must present non-hearsay factual allegations (e.g. a victim’s account, or a witness’ statement, or an arresting officers’ observations) that provide reasonable cause to believe that the defendant committed each element of the offense being charged. It is important to note that the level of proof required at a stage prior to trial (to properly charge a defendant) is much lower than the reasonable doubt standard required to convict a defendant.

I presented the above background because I want to examine a recent New York criminal case, People v. Jamel Harris, 2011QN011459, NYLJ 1202503770549 at *1 (Crim., QU, Decided July 13, 2011), in which the defendant challenged the sufficiency of the charges brought against him because he believed they were based on uncorroborated hearsay. Mr. Harris, the defendant, was charged with Assault in the Third Degree, pursuant to NY PL 120.00(1), Harassment in the Second Degree pursuant to NY PL 240.26(1), Petit Larceny pursuant to NY PL 155.25 and Criminal Possession of Stolen Property in the Fifth Degree NY PL 165.40. A person is guilty of Assault in the Third Degree if he intended to, and did cause, physical injury to another person. Petit Larceny is when you steal property worth $1000 or less. Harassment in the Second Degree is established if the prosecution could show that the defendant was intending to annoy, alarm, or harass the victim by subjecting that person to physical conduct. And lastly, a person is guilty of Criminal Possession of Stolen Property if he/she knowingly possesses stolen property with the intent to benefit him/herself.