Other Crimes

January 21, 2010

Resisting Arrest: New York Penal Law 205.30 & Your Criminal Defense

It is fairly common in the courts throughout New York City (Manhattan, Brooklyn, Queens and the Bronx) for criminal defense attorneys to represent clients charged with Resisting Arrest, pursuant to NY Penal Law 205.30. While it certainly can be a legitimate charge, very often the police will add this charge on top of the original offense if a defendant merely “resists” by backing away, swinging his or her arms up and not complying with an officers demands. Do not be mistaken that the law in NY requires a fist fight or shoving to satisfy the elements of Resisting Arrest. No physical violence or injury is necessary.

According to Penal Law 205.30:

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.

November 16, 2009

Predicate Felons and Second Felony Offenders in NY: How Does a Non-NY Felony Alter Your Status?

by Jeremy Saland

Any NY criminal defense attorney experienced in New York criminal law should be able to explain to you that if you are a predicate felon in New York State and charged with a non-controlled substance offense, a second felony conviction will land you in state prison even if your offense is “merely” and “E” Felony. In other words, if you are a predicate felon, as will be explained below, a sentence of state prison is mandatory on felony plea.

Pursuant to New York Penal Law Section 70.06, for one to be deemed a predicate felon or second felony offender, one must have a prior felony conviction in the past ten years. In the event you were incarcerated or on probation, the ten years starts from the completion of your incarceration. This only applies to felonies and not prior misdemeanors. Therefore, while a judge or prosecutor might take the prior misdemeanors into consideration when arranging for a disposition or determining a sentence, from a technical standpoint, the prior misdemeanors will not impact your sentence on a new felony (from a practical standpoint it often does).

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?

by Jeremy Saland

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.

September 8, 2009

Nurses, Physicians, Architects and other Professionals: What are the Reporting Requirements / Ramifications of an Arrest or Conviction?

by Jeremy Saland

In the past year alone, the Manhattan based criminal defense firm of Saland Law PC has represented a significant number of professionals including physicians, nurses, teachers and architects in addition to lawyers and individuals employed in finance. For many of these professionals, there are serious issues that may arise from a criminal case beyond the potential of incarceration.

For certain professionals, New York State requires that they certify and meet licensing requirements. The Office of the Professions is a tremendous source of information and includes applications that may be downloaded for re-certification and licensing. Even if you do not need to re-certify, you and your attorney can review the applications for particular professions to ascertain what is an acceptable disposition for your case as it relates to your career. It is important to note, however, that these licensing requirements are not the only place you should look. If, for example, you are employed by a hospital, that hospital may have additional reporting requirements relating to arrests and/or convictions. Therefore, it is imperative to not only review the information retrieved from the Office of the Professions website, but the literature, contracts, and licensing requirements from you specific employer.

July 29, 2009

The New York Grand Jury, Plaxico Burress and Any Person Accused of a Crime: Beyond a Possible Indictment What Happens Behind Closed Doors

by Jeremy Saland

As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many New York criminal defense attorneys do not. The following entry will address some of what happens in this “secret proceeding.”

What is the Grand Jury

July 16, 2009

Endangering the Welfare of a Child: Must Harmful Conduct Be Direct at the Child?

by Jeremy Saland

As a NY criminal defense attorney I have drafted numerous entries dealing with the crime of Endangering the Welfare of a Child. It is a serious crime with ramifications beyond the criminal law and a crime that people from all walks of life – from lawyers and physicians to construction workers and bus drivers – can face. Once again I am writing an entry on this crime. Only a few weeks ago, a noteworthy New York criminal court decision, and one you should be aware of, regarding Endangering the Welfare of a Child was handed down.

In People v. People v. Franklin Lora, 2008NY083374, decided March 26, 2009, the defendant, in the presence of his two children under the age of five, allegedly placed a gun to his wife’s head and threatened to kill her. The defendant’s attorney argued that the complaint against his client should be dismissed for facial insufficiency because the defendant’s conduct was directed at the wife and not the children. In other words, because the children merely were present and not part of the underlying crime that was the basis of the endangerment, the charge of Endangering the Welfare of a Child cannot stand.

June 1, 2009

“Miranda Warnings,” Your Right to Remain Silent and Your NY Criminal Defense

by Jeremy Saland

Whether you are under investigation for a white collar crime or have already been arrested for a weapon crime, it is imperative to retain an experienced New York criminal defense attorney before you talk with law enforcement. It may be that without an admission or statement on your part to the police or FBI, law enforcement has no case against you…that is right…nothing. Whatever the circumstances, whether you voluntarily go to a precinct to talk to the police to “clear the air” or you are already under arrest, you may be waiving your rights and jeopardizing your case. Even more importantly, your fatal mistake may cost you your freedom. Unfortunately for one particular defendant in Nassau County, he learned this lesson the hard way.

In a decision rendered on May 8, 2009, a Nassau County District Court Judge ruled in People v. Alfredo Pena, 2008NA011705, that a defendant’s statements were not the result of a “custodial interrogation” and therefore admissible and not obtained in violation of his rights. This “custodial interrogation” is the key element or principle in New York’s cases involving Miranda and admissions. In the Pena case, the police were investigating the defendant for the crime of Harassment through phone calls. The defendant went to the station voluntarily, waited for about 45 minutes until the detective was available and ultimately made admissions of his involvement. During this entire period of time the defendant was never handcuffed or forced to remain in the precinct. Moreover, no threats or promises were made and the defendant was not arrested. Shortly thereafter, the defendant was read his Miranda warnings, which he voluntarily waived, and he spoke further with the police. Ultimately, as you have probably guessed by now, the police arrested the defendant and the prosecutors indicated that they were going to use all the admissions against the defendant at trial. After motions were made by the defendant’s counsel, a Huntley Hearing (a hearing where a judge determines the admissibility of a defendant’s statement) was ordered and conducted.

May 28, 2009

Animal Abuse in NY: Failure to Obtain Medical Treatment for Pet May Violate Agriculture and Market Law Section 353 (A.M.L. ､353)

by Jeremy Saland

Although not a commonly seen charge by criminal defense attorneys in New York City, the former Manhattan prosecutors at Saland Law PC know that violations of Agriculture and Market Law Section 353 (A.M.L. ､353) are far from atypical. A.M.L. ､353 provides, in relevant part:

“A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misdemeanor.”

April 27, 2009

Endangering the Welfare of an Incompetent or Physically Disabled Person: NY Does Not Require an Intent to Injure

by Jeremy Saland

Recently, a Queens County Criminal Court Judge in People v. Gloria Johnson-Noble, 2008QN038495, denied a defendant’s motion to dismiss the criminal charge of Endangering the Welfare of an Incompetent or Physically Disabled Person. Through her criminal defense attorney, the defendant, a certified nurses assistant, had argued that although the accusatory instrument set forth that she struck an 86 year old woman with dementia on her arm and face, she did not have the intent to injure her.

According to NY Penal Law ､260.25, a person is guilty of Endangering the Welfare of an Incompetent or Physically Disabled Person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect.