Non-Violent Crimes

September 15, 2009

Attempted Tampering with Physical Evidence (New York Penal Law ､110.00/215.40): Does the Complaint Need To Establish the Existence of the Contraband?

According to New York Penal Law ､215.40(2), a person is guilty of Tampering with Physical Evidence when “[b]elieving that certain evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.” New York criminal defense attorneys, such as the former Manhattan prosecutors at Saland Law PC, can tell you that this crime is often charged as Attempted Tampering with Physical Evidence in an all too common scenario played out on the streets of New York City when a person discards contraband (marijuana, cocaine, heroin or even a weapon such as a knife or gun) after being confronted by the police. The question that exists in these cases is must the complaint charging the individual establish the officer’s knowledge as to what the evidence is as well as the basis of that knowledge?

In a decision rendered on July 8, 2009 in Manhattan Criminal, People v. Anthony Estrada, 2009NY005091, a man was alleged to have thrown marijuana leaves up into the air as the police attempted to arrest him. As a result, the the officer was unable to recover the alleged contraband. In dismissing the complaint, the court found, among other things, that the officer did not establish that the substance in question was marijuana.

May 18, 2009

NY Trespass Dimsmissed – Court Agrees with Criminal Defense Attorney – Complaint Facially Insufficient

by Jeremy Saland

A New York City criminal defense lawyer has successfully argued in Brooklyn Criminal Court that the pending Trespass charges, pursuant to Penal Law ､140.15, ､140.10(a) and ､140.05, against his client should be dismissed for facial insufficiency. The Brooklyn Criminal Court decision in People v. Darrell Weatherspoon, 2008KN076633, was published last week. For those readers who do not have access to this material, the New York criminal defense attorneys at Saland Law PC, will summarize this important legal decision for you.

By way of background, a person is guilty of Criminal Trespass in the Second Degree pursuant to PL ､140.15 when he knowingly enters or remains unlawfully in a dwelling. A person is guilty of Criminal Trespass in the Third Degree pursuant to PL ､140.10(a) when he knowingly enters or remains unlawfully in a building upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders. Lastly, a person is guilty of Trespass, a violation pursuant to Penal Law ､140.05, when he knowingly enters or remains unlawfully in or upon premises. A person enters or remains unlawfully in or upon premises when he is not licensed or privileged to do so.

March 29, 2009

Perjury and Inconsistency as a Crime: Why You Should Consult with a NY Criminal Defense Attorney

by Jeremy Saland

If you are a witness or a defendant in a criminal matter in a metro-NY court you should always consult with a NY criminal defense attorney before talking with law enforcement. In fact, you should always be prepared to testify in the event that you are called to do so. Even if you are not a target of a Grand Jury investigation or a case in Criminal or Supreme Court, an innocent mistake or an inconsistency in your testimony may have serious ramifications. The last thing you need is the prosecution to charge you with Perjury. Consulting with criminal defense attorneys, such as the former Manhattan prosecutors at Saland Law PC, is an investment in your time that will give you both a piece of mind and likely steer you clear of a Perjury charge.

Generally, Perjury occurs if you swear falsely. If you do so, you may be charged with a misdemeanor with a maximum sentence of one year in jail. For the purpose of this entry, however, we will address Perjury in the context of the court room or Grand Jury. In such a situation, you may be charged with Perjury in the First Degree. A person is guilty of Perjury in the First Degree when he or she swears falsely and when his or her false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made. Perjury in the First Degree is a “D” felony punishable by up to seven years in state prison.

March 13, 2009

NY Criminal Defense: Making Graffiti, Possession of Graffiti Instruments & Criminal Mischief Part I

by Jeremy Saland

The New York criminal defense attorneys at Saland Law PC know firsthand how the NYPD has been aggressively pursuing people accused of graffiti and graffiti related crimes. The NYPD’s Vandal Squad, based out of Brooklyn, is hell bent on cleaning up New York. While we can all agree that keeping New York clean and safe is a tremendous task of great importance, the pursuit of this goal does not give the police the permission to violate individual rights. Unfortunately, we at Saland Law PC have seen this happen on more than one occasion in the past two or three months. In a series of entries I will discuss the potential crimes associated with graffiti, the consequences of a conviction, general ways to best defend yourself, and some of the experiences we have had as criminal defense attorneys. The first entry in this series will address the potential crimes or offenses related to making graffiti and their consequences. These crimes are Criminal Mischief, Making Graffiti, and Possession of Graffiti Instruments.

Criminal Mischief in the Fourth through Second Degrees, pursuant to Penal Law sections 145.00, 145.05 and 145.10, are crimes that can be charged in connection with graffiti offenses as well as when property is damaged through other means. As it applies to graffiti crimes, a person is guilty of this Criminal Mischief in the Fourth Degree when having no right to do so or reasonable grounds to believe that he has such a right, he intentionally damages the property of another person. If an individual intentionally damages another person’s property and the damage exceeds $250 or $1,500, then they are guilty of Criminal Mischief in the Third and Second Degrees respectively. Criminal Mischief in the Fourth Degree is an “A” misdemeanor punishable by up to one year jail. Criminal Mischief in the Third Degree is an “E” felony punishable by up to four years in state prison. Criminal Mischief in the Second Degree is a “D” felony punishable by up to seven years in state prison.

February 9, 2009

NY Penal Law 240.20: Disorderly Conduct – Not an ACD, but a Good Non-Criminal Disposition

by Jeremy Saland

A skilled New York criminal defense attorney may be able to beat your criminal case outright or work out a great deal for his or her clients in the face of overwhelming evidence. Sometimes there is a technicality requiring dismissal of the case such as a speedy trial issue or a facial insufficiency problem with the accusatory instrument. Other times, through hard work and perseverance, your criminal defense attorney may be able to get you a deal that avoids any criminal record at all. While an Adjournment in Contemplation of Dismissal (ACD)is the ultimate goal in a case where a deal is reached, a second option is a Disorderly Conduct plea.

As previously discussed in an earlier entry, an ACD will result in your case being dismissed and sealed within six months to a year. Although a Disorderly Conduct will not be dismissed, a plea to this charge will result in a conviction for a violation. Not only is a violation not a crime, but the violation will be sealed as well.

January 20, 2009

NY Criminal Defense: Judge Dismisses Reckless Endangerment, Attempted Tampering With Physical Evidence & Obstruction of Governmental Administration

by Jeremy Saland

A Manhattan (NY County) Criminal Court Judge recently agreed with a NY criminal defense attorney and dismissed an entire criminal complaint against the defendant. The judge dismissed the charges of Reckless Endangerment, Attempted Tampering with Physical Evidence and Obstruction of Governmental Administration after the judge found the complaint facially insufficient.

In People v. Edward Beam, 2008NY046855, the information/complaint alleged that a police officer observed the defendant holding “what appeared to be a marijuana cigarette.” Shortly thereafter, the police officer approached the defendant and the defendant ran into traffic “where multiple vehicles were in motion.” Ultimately, the officer observed the defendant throw the item he held in his hand (the alleged marijuana) to the ground and the police officer was unable to recover it.

January 10, 2009

Orders of Protection and Restraining Orders: A Valid Criminal Defense if the Criminal Case Occurs After a Family Court Disposition

by Jeremy Saland

Generally, one violates an order of protection and is guilty of Criminal Contempt if one fails to abide by the regulations set forth in the order of protection / restraining order. Unfortunately, as the NY criminal defense attorneys and former domestic violence prosecutors at Saland Law PC, can tell you, there are often countless issues that come to the forefront in these cases that require a skilled attorney to resolve. One interesting issue that arises is whether a prior finding of guilt in Family Court for violating an order protection precludes a criminal prosecution for Criminal Contempt on the same matter. In other words, does double jeopardy apply?

The general answer to this question was answered by the Court of Appeals in People v. Wood, 95 NY2d 509 (2000). In that matter, the defendant made phone calls and harassed the complainant in violation of both a Family Court and Criminal Court order of protection. The offense before both courts related to the same conduct. The Court of Appeals held that the finding of contempt in Family Court triggered double jeopardy protections because that finding of contempt, although not criminal, is punitive in nature. Therefore, the prosecution was prevented from commencing a criminal action for Criminal Contempt under the same set of facts for the same set of circumstances.

December 5, 2008

Criminal Mischief – NY Penal Law 145.00: Lacking Intent as a Defense

by Jeremy Saland

You have just been arrested for Criminal Mischief, NY Penal Law 145.00 and you are waiting to see the judge after going through Manhattan Central Booking. Earlier in the day you got into a fight and threw a metal garbage bin from the corner of the street at some guy. Fortunately, you missed him, but the can hit a parked car causing a scratch that will cost the owner $200 to repair. You tell your NY criminal defense attorney that you intended to hit the guy and you never wanted to damage the vehicle. Well, your criminal defense attorney, if he is skilled and experienced, may have some good news for you.

According to Penal Law 145.00, a person is guilty of Criminal Mischief in the Forth Degree when, having no right to do so nor any reasonable ground to believe the he has such a right, he, under subsections (1) and (3), intentionally damages property of another person or recklessly damages property of another person in an amount exceeding two hundred fifty dollars.

November 7, 2008

NY Criminal Defense – Endangering the Welfare of a Child ､260.10: Merely Leaving a Child Home Alone

by Jeremy Saland

When representing clients in matters involving Endangering the Welfare of a Child, Penal Law ､260.10 New York criminal defense attorneys routinely deal with a host of different facts and circumstances. Sometimes a parent’s activity clearly violates the statute when, for example, the child is assaulted. Other times, however, the actions which rise to the level of Endangering the Welfare of a Child are not clear. Recently, on August 6, 2008, Judge Michael Gerstein of the Kings County (Brooklyn) Criminal Court, held that leaving a child home alone may constitute Endangering the Welfare of a Child pursuant to PL ､260.10.

In People v. Carmen Reyes, 2008KN019196, a four year old child was left home alone for fifteen minutes. Ms. Reyes’ criminal defense attorney made a motion to dismiss the complaint for facial insufficiency arguing, in part, that prosecution provided no facts that would support the contention that the Defendant knowingly acted in a manner that would be dangerous to the child.

October 31, 2008

NY Criminal Defense – Trespass in NY: Difference Between NY Penal Law ､140.15 and ､140.10

by Jeremy Saland

Each statute in New York Criminal Law has its own nuances. Sometimes particular subsections point to different theories of the same crime while other statutes, although similar on their face, are distinct and separate crimes. Some of these differences are very obvious to the non-legal observer while others require the analysis of a NY criminal defense attorney.

One example of this “issue” of whether the crime is merely a distinct theory or a unique charge, is evident in the NY Penal Law in reference to the crime of Trespass. Specifically, there are multiple crimes involving trespassing. Two of these offenses deal with the crime as a misdemeanor offense as opposed to either a violation or a felony. These crimes are ､140.10, Criminal Trespass in the Third Degree, and ､140.15, Criminal Trespass in the Second Degree.