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January 16, 2012

Criminal Contempt in New York: Refusal to Testify & Its Ramifications in a Criminal Case

In criminal trials in the state of New York, the People (a.k.a. the prosecution) bear the burden of proving that the defendant has committed the charged offense beyond any reasonable doubt. Obviously, the role of the criminal lawyer in New York is to controvert, challenge and poke holes in People’s case. Many times in criminal trials the strongest evidence of guilt in the prosecution’s arsenal is the direct testimony of a witness. Therefore the District Attorney’s Offices, whether it be one of the five borough/counties– Manhattan, Brooklyn/Kings, the Bronx, Staten Island/Richmond, or Queens– or surrounding counties– Westchester or Rockland — must be empowered to compel these “material witnesses” to testify. A subpoena is that legal tool, which empowers the State of New York to compel testimony by a witness. Of course, even if you’ve been subpoenaed to testify in a New York criminal trial, you don’t necessarily have to testify.

Most of us don’t need a NY criminal defense attorney to tell us what the Fifth Amendment is, but many times people do confuse the scope of the Amendment. The Fifth Amendment only protects individuals from self-incrimination. That is, if your boyfriend was charged with burglary and you are subpoenaed to testify as to his whereabouts on the night in question, but you had nothing to do with the burglary and your truthful testimony will in no way incriminate (admit guilt of a crime) you, then you can potentially be compelled to testify.

January 6, 2012

Prosecuting a Case of Third Degree Assault (NY PL 120.00) without a Victim: The Excited Utterance Rule in New York

by Jeremy Saland

As a New York criminal attorney who works on behalf of clients in the criminal trial courts throughout the New York City area–from the boroughs of Brooklyn, Queens and Manhattan into the counties of Westchester and Rockland– I pick up on the strategies employed by the respective District Attorney’s Office. Equally important, having served as a Manhattan prosecutor for over seven years, I witnessed first hand Assistant District Attorneys pursuing these strategies. As I also saw them, I’ve noticed a trend amongst Assistant District Attorney’s trying to corroborate the allegations in a complaint and further cases even where a complainant is not cooperative. A recent case, The People v. Joseph Valentine, 2009KN083896, NYLJ 1202516492758, at *1(Criml, KI. Decided September 8, 2011) is a great illustration of this trend and thus is a case worth examining in this blog.

Mr. Valentine was charged with Assault in the Third Degree pursuant to NY PL 120.00(1), Menacing in the Third Degree pursuant to NY PL 120.15, Criminal Obstruction of Breathing or Blood Circulation (choking) pursuant to NY PL 121.11(a), and Harassment in the Second Degree pursuant to NY PL 240.26(1). The arresting officer had responded to a “radio-run” (911 call) for a family dispute. The complainant, Ms. Ingram, who is the defendant’s girlfriend, was outside of the house hysterically crying and explained to the officer that Mr. Valentine had choked her.

April 4, 2011

Potential Fines for Felony Criminal Convictions in New York: NY PL 80.00

by Jeremy Saland

If a conviction for a felony in New York was not bad enough, New York Penal Law section 80.00 sets forth the potential fines that could accompany a felony plea or a felony conviction. Pursuant to New York Penal Law 80.00(1), a court can fine a defendant the greater of (a) five thousand dollars ($5,000) or (b) two times the amount of the monies or property that the defendant gained from his or her crime. If there is a felony conviction for a drug or marijuana offense, there is a distinct and separate fine schedule.

“Gain” is defined not merely by what was misappropriated, whether it be money or property, but by the value obtained less what has been returned. In other words, if $10,000 was stolen, but $2,500 was returned to a victim, the “gain” would be $7,500. Should the evidence not clearly establish this gain, your New York criminal lawyer may demand a hearing on the issue where the court can ascertain the appropriate number.

February 20, 2011

Potential Fines in New York for Misdemeanor & Violation Convictions: New York Penal Law Section 80.05

by Jeremy Saland

Most experienced New York criminal lawyers will be able to tell you potential incarceratory punishments for felonies, misdemeanors and violations without hesitation. For example, in New York, an “E” felony is punishable by up to four years in state prison while and “A” misdemeanor is punishable by up to one year in a county or city jail (in New York City such as Manhattan or Brooklyn, county “time” is served on Rikers). Aside from a term of imprisonment, however, what are the potential fines associated with pleas or convictions for particular crimes? This entry will address those fines that may be levied for misdemeanor and violation convictions as set forth pursuant to New York Penal Law section 80.05. Fines for Class A Misdemeanors Convictions in New York

For class “A” misdemeanors, the highest misdemeanor degree, a court can fine a defendant in an amount not to exceed one thousand dollars ($1,000.00). Although limited to violations of section 215.80 of the New York Penal Law, the court may impose a fine double the value or amount of the property that was disposed of by the defendant in an unlawful manner.

October 3, 2010

Rights to Your Property Affected Because of a New York Order of Protection: The “Forman Hearing” & Your Criminal Defense

by Jeremy Saland

It is common throughout New York City and the region for judges to grant prosecutors’ requests for orders of protection whereby no contact between a complainant and defendant is permitted. These “full” orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don’t even know each other and are complete strangers. What is concerning for the accused, however, is where a “full” order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, “full” orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?

Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your “personal or property rights will be directly and specifically affected,” by a “full” order of protection, your attorney can request a “Forman Hearing.” Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused’s burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).

September 14, 2010

A Criminal Defense to Reckless Endangerment: Factual Impossibility and New York Penal Law Sections 120.20 & 120.25

by Jeremy Saland

Reckless Endangerment, New York Penal Law sections 120.20 and 120.25, is either an “A” misdemeanor punishable by up to one year in jail or a “D” felony punishable by up to seven years in state prison. While I have defined Reckless Endangerment in the First and Second Degrees in other entries, if one acts reckless and causes a substantial risk of serious physical injury or death (or they act with a depraved indifference to human life), they are setting themselves up for this charge. Having said that, merely acting stupid does not mean one acted reckless in the eyes of the law. For example, speeding in a car after consuming alcohol may not be “reckless” in the eyes of the law even though you may ultimately be convicted of DWI. Other elements should be present and “fleshed out” in the accusation. In the scenario above, one may be driving dangerously, but where there other cars or pedestrians in the street? Did the accused almost hit them? How fast was he or she speeding? What were the road conditions? There are other important facts before one’s actions give rise to at least a “substantial risk” of not merely a small injury, but serious physical injury or a grave risk of death.

Keeping with the theme of what constitutes a the crime of Reckless Endangerment in New York, a question that is often addressed is whether or not factual impossibility is a defense to the crime in New York of Reckless Endangerment in the Second or First Degree. That answer is generally yes. A great non-legal way to look at this is as follows:

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:

January 25, 2010

New York’s 100 Centre Street: The Manhattan Criminal Court From Felony Arraignment & Misdemeanor Desk Appearance Tickets to Court Appearances & Your Criminal Defense

by Jeremy Saland

Regardless of the crime or crimes you are charged with in New York County (Manhattan), the arrest process or a desk appearance ticket (DAT) will ultimately land you along with your criminal defense attorney at 100 Centre Street…the nexus of all criminal prosecutions in Manhattan. 100 Centre Street is where you will be taken from a precinct or Central Booking for your arraignment before a Manhattan criminal court judge (on certain occasions a case is arraigned in the Midtown Community Court). If your criminal defense lawyer is unable to resolve your case at your arraignment, whether you are initially charged with a misdemeanor or a felony, 100 Centre Street is where you will return for the immediate future for court appearances.

Elizabeth Crotty and Jeremy Saland, the founding partners at Saland Law PC, have walked the halls of 100 Centre Street and 1 Hogan Place (the District Attorney’s Office that is attached to the courts) for nearly a combined 20 years as Assistant District Attorneys in Manhattan under Robert Morgenthau and as criminal defense attorneys in New York City. Our experience as prosecutors and criminal defense attorneys has given us a unique perspective having seen and worked in the criminal justice system from both sides. Although we can’t share everything in a blog entry, here are some important things you need to know if you are arrested, issued a desk appearance ticket (DAT) or waiting for an arraignment in Manhattan’s 100 Centre Street:

January 4, 2010

The Tireless Pursuit of Justice: Robert Morgenthau

by Jeremy Saland

To those of us that know him or worked for him, Robert Morgenthau, a/k/a, the “Boss,” was and will continue to be the personification of justice and the pursuit of its principles. In his three and a half decade journey as the Manhattan District Attorney fighting crimes in the streets as well as the “suites” of Manhattan and beyond, Mr. Morgenthau did not bend to public pressure or perception, staying focused on his goal.

Whether a case grabbed the headlines and captivated the public or was only known to the single mother victimized by an abusive partner, Mr. Morgenthau sought to have each case, victim and witness treated with the highest level of professionalism, dignity and respect. Regardless of the media coverage, one thing rang true amongst all of his cases. To each victim, his or her case was the most important. Justice demanded that they be treated accordingly.