Non-Violent Crimes

July 18, 2010

Reckless Endangerment in New York – NY Penal Law 120.20: When Does Acting Recklessly Constitute a Crime in NY?

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

Reckless Endangerment in the Second Degree – NY PL 120.20

July 14, 2010

New York Penal Law 145.65: What is an “Instrument” for the Purposes of Possession of Graffiti Instruments

by Jeremy Saland

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

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

May 20, 2010

Promoting Gambling in NY (NY PL 225.05 & 225.10): Who Can be Charged with New York Penal Law 225.05 and 225.10

by Jeremy Saland

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

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

May 5, 2010

Making Graffiti (NY PL 145.60), Possession of Graffiti Instruments (NY PL 145.65) & Your Criminal Defense: Does it Matter Under New York Law if You Did Not Intend to Damage Any Property or it in Fact was not Damaged?

by Jeremy Saland

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

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

April 20, 2010

Criminal Impersonation & Your Criminal Defense: New York Penal Law Sections 190.25 & 190.26

by Jeremy Saland

Before the dawn of identity theft laws, the crime of Criminal Impersonation, pursuant to New York Penal Law sections 190.25 and 190.26, was the weapon of the assistant district attorney to prosecute fraud crimes related to one’s identification or persona in New York. This entry will address the crime of Criminal Impersonation in Second Degree (NY PL 190.25) and Criminal Impersonation in the First Degree (NY PL 190.26). A second entry will address legal decisions applicable to these laws.

Criminal Impersonation in the Second Degree – New York Penal Law 190.25

April 16, 2010

NY Penal Law Sections 250.45 & 250.50: Your Criminal Defense & Unlawful Surveillance in the Second Degree & First Degrees

by Jeremy Saland

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

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

March 9, 2010

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

by Jeremy Saland

Whether a vehicle is stolen or being driven without permission of the owner, one particular crime that may be charged in New York is Unauthorized Use of a Vehicle in the Second and Third Degrees pursuant to New York Penal Law sections 165.06 and 165.05 respectively. While other crimes may have been perpetrated, such as Grand Larceny in the Fourth Degree, an “E” felony punishable by up to four years in state prison, Unauthorized Used of a Vehicle, the “joyriding statute,” is defined as follows: NY PL 165.05(1) – Unauthorized Use of a Vehicle in the Third Degree

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

December 31, 2009

Exercising Your Miranda Rights in New York: Why it is Important to Consider Consulting with Your Criminal Defense Attorney Before Speaking to the Police

by Jeremy Saland

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

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

October 28, 2009

Bank of New York Melon Computer Tech Adeniyi Adeyemi Indicted for Identity Theft of 150 Employees and $1 Million Fraud

by Jeremy Saland

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

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

October 2, 2009

Extortion and Grand Larceny in New York: Your Criminal Defense & an Analysis of NY Penal Law 155.05(2)(e), 155.30(6) and 155.40(2)

by Jeremy Saland

With the recent Extortion attempt of David Letterman by Robert “Joe” Halderman fresh in our minds, now would be a good time to share with my readers what constitutes Extortion under New York State law. As a New York criminal defense attorney and former Manhattan prosecutor who supervised the investigation and prosecution of multiple individuals charged with the Extortion of an NBA All Star, I am intimately familiar with Extortion as it is defined under New York Penal Law section 155.05(2)(e) and under Grand Larceny in the Fourth and Second Degree pursuant to New York Penal Law sections 155.30(6) and 155.40(2) respectively.

Before proceeding with an analysis of the Extortion statute, it is important to note that Extortion is specifically defined under section 155.05(2)(e) of the New York Penal Law. Like larceny by trick, false promise and common law larceny, Extortion is a means by which a larceny is perpetrated. According to NY Penal Law 155.05(2):