New York Criminal Lawyer BlogAlthough sex crimes prosecutors and New York criminal defense attorneys defending individuals investigated for and accused of Article 130 crimes including Rape, Sexual Abuse, Sexual Misconduct, and Forcible Touching respectively are aware of the September 1, 2024, changes to the New York Penal Law, it is equally likely that those not versed in these statutes are ill-informed at best. With this in mind, this blog entry will highlight the significant changes to the various crimes and legal definitions found in this section of the criminal code so that you can better understand the future of sex crimes prosecutions in New York. To that end, following terms have been repealed, renamed, substituted, or even incorporated into new statutes: sexual intercourse, vaginal sexual contact, anal and oral conduct and contact, Criminal Sexual Act, and Rape. While each of these definitions are critical to understanding the law and its application going forward, what most will likely see as the biggest take away is the new and far more expansive definition of what constitutes the non-violent and violent felonies of Third, Second and First Degree Rape.
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NYC Crane Collapse: Another Potential Prosecution or Merely an Non-Criminal Accident
According to reports, NYC is once again under siege from a wayward construction crane that collapsed from its perch near Hudson Yards. Though six people were injured, there were fortunately no deaths nor serious injuries after the crane caught fire, broke down, and cascaded towards the street below. Carrying sixteen tons of concrete, the crane, according to the NY Post, appears to be owned by the Lomma Crane Company. The now deceased James Lomma was previously indicted for Manslaughter and other crimes after a crane he owned crushed a man in 2008. A Manhattan jury acquitted him of those charges in 2012.
With the above in mind, beyond potential civil exposure, could the crane company owner face criminal charges for this second Lomma crane accident? Without knowing what the evidence will reveal – the cause of the fire, the condition of the crane, whether the crane had been inspected and up to date with repairs, how it was secured, etc. – one cannot say whether the NYPD would arrest a proprietor and the Manhattan District Attorney’s Office would pursue criminal charges. However, what crimes could a crane owner or operator face in light of the fact that despite there being no deaths or serious injuries, a multi-ton crane could have wreaked havoc and worse on New Yorks below.
Damned the Abused Mother of Three, but to Your Abuser, with the Clean Slate Act, New York Apologizes to Thee
Sure, I was being a bit tongue-and-cheek with the title to this blog entry, but the more I read about the Clean Slate Act (A. 1029A and S.211), a potential law that will automatically seal all misdemeanor and felony convictions other than sex crimes, the more I fear New York may have again lost its way in pursuit of a just and righteous end. No, the criminal justice system will not be sending criminals from our courthouses with babka in hand while telling their victims not to let the door hit them on the way out, but someone has to tap the brakes before we find ourselves with indelible regret that no statute can seal.
Did the NYC to West Palm JetBlue Coronavirus Passenger Commit a Crime by Boarding a Plane Pending a COVID-19 Diagnosis?
While being selfish is not criminal, is potentially exposing others to the coronavirus, knowing that you may be infected with COVID-19, a violation of the New York Penal Law? What if you were concerned enough to be tested for the coronavirus and were awaiting the results? What if before you confirmed one way or another whether you were sick and infected, you boarded a JetBlue flight from New York’s JFK Airport to West Palm Beach, Florida? What if that plane carried 114 passengers and crew? What if there were countless news reports about voluntary quarantines, the concerns over air travel, how the disease spreads, and, most importantly, the potential for illness or even death? Sadly, this is not a “what if” hypothetical. The real questions should be whether this passenger committed a crime, and more specifically, Reckless Endangerment in the Second Degree pursuant to New York Penal Law 120.20.
New York Hate Crime Anti-Terrorism Act: A Cursory Review of the Potential Domestic Terrorism Crime
At his State of the State address, New York Governor Andrew Cuomo formally rolled out his proposal to codify the Hate Crime Anti-Terrorism Act and combat anti Semitic and other discriminatory attacks. Encompassing more stringent elements than his late summer consideration of the law, the Governor views this future offense as a class “A1” violent felony. The statute, if passed by the legislature and ultimately incorporated into the Penal Law, would be punishable by life in prison without the possibility of parole.
While by no means an examination of the law since none has yet been codified, the following is a brief review of the potential crime as addressed in a recent New York Law Journal article.
Child Custody in New York Family Court: Physical, Legal and Joint Custody
One of the fundamental distinctions in Family Law that often goes overlooked by the lay person and is only truly understood when a Family law attorney or New York child custody lawyer is consulted, is physical vs. legal custody as addressed in New York Family Court Act Article 6. Generally speaking, physical custody has to do with where the child or children primarily reside, and legal custody has to do with decision-making and child-rearing issues. While joint physical is fairly uncommon, due to the obvious practical difficulties for a child in many common circumstances, so-called “joint” legal custody is much more frequently ordered and/or agreed to. To a substantial degree, getting the visitation or “parental access” right is critical to making joint custody work.
NYC AC 19-190: Legal Sufficiency of New York City’s “Right of Way” Law
A law that without question has a good intent and goal, New York City’s Right of Way law, codified as Administrative Code 19-190, has seen its fair share of legal challenges by criminal defense lawyers throughout the City of New York. Although the law that has criminal sanctions does not apply to the State of New York, those drivers in Manhattan, Brooklyn, Bronx and Queens are within the law’s jurisdiction. A recent Appellate Term Decision from the Second Department did not ultimately address the constitutionality of NYC Admin. Code 19-190, but whether a bare minimum complaint reciting the statute with limited factors sufficiently and legally supports this non-New York Penal Law crime.
The Consequences in New York For Refusing a Chemical Breath Test in a DWI Arrest
As embarrassing a Drunk Driving, DWI or DUI arrest in New York may be, a conviction for any VTL 1192 crime is exponentially worse. Not only is there potential for incarceration and jail as well as significant fines and fees, a plea or post trial conviction for VTL 1192 also will result in a suspension of your license to drive and an installation of an ignition interlock device on your vehicle. In some situations it is not merely the suspension you will have to contend with, but a revocation of your drivers license in New York by the New York State Department of Motor Vehicles or DMV.
Revocation of your license for a first time offender for a DWI crime usually involves the offense of VTL 1192.3, sometimes known as either Common Law DWI or a Refusal DWI. The latter of these “types” of DWI, and the subject of this blog entry, addresses those crimes where you, after being advised of your rights and the consequences of failing to comply with a request to “blow,” refuse to provide a breath sample. More specifically, this blog addresses how, if all, your refusal can be used against you in a criminal prosecution.
What is the Standard for Legal Sufficiency in an NY PL 220.03 Complaint: Evidently Kinda’ Low
The types of drugs that routinely flow through New York City and throughout other New York municipalities range from unlawfully possessed prescription drugs such as Oxy and Adderall to the more common cocaine, heroin, MDAM, Ecstasy and Molly. The law is generally clear and a criminal defense attorney you need not when determining what controlled substances you can (or cannot) possess. For that matter, you neither need a drug lawyer nor your mother to advise you that you can’t have any of these narcotics barring a prescription (or at all) unless your goal is trying to violate a New York drug crime.
You may enjoy getting hopped up, rolling, taking a bump or just getting annihilated and, by all means, that is your decision. It is not my job, as a criminal lawyer, to be your father and lecture you on the ills of drug use and abuse. Its my job to help you when you call me panicked after your arrest. That said, before doing so, just hear me out. Know that there are very real consequences to your actions well beyond those that may land you in handcuffs and before a judge.
Brief pseudo-lecture aside, the purpose of this blog entry is not to address the direct and collateral consequences to drug use and arrests in New York, but to make it clear how low the threshold is for prosecutors to proceed on criminal charges when you are accused of violating New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. In fact, as this blog will make clear, neither Assistant District Attorneys nor police officers need to actually test the drug in any capacity to draft a legally sufficient complaint charging you with this drug crime. What does this mean to you? The law can take you right past Go and directly to Jail in the game of Monopoly that has unfortunately become your life.
New York Disorderly Conduct: NY PL 240.20 and the “Public” Element
In the State of New York a violation is defined as an offense for which a defendant can be sentenced to no more than 15 days in jail. Disorderly Conduct (New York Penal Law 240.20) is a violation of the New York State Penal Code. A Disorderly Conduct conviction can have wide ranging consequences for most people ranging from community service and fees to incarceration (not likely in most scenarios) and damage to a professional career. Disorderly conduct should only be charged when you act in a way that provokes public disorder. Furthermore, you can be charged with Disorderly Conduct as long as you intend to cause “public inconvenience, annoyance or alarm, or recklessly creat[e] a risk thereof.” Therefore, if you do not provoke or intend to provoke, public disorder then a Disorderly Conduct arrest should not stand on its own two feet. This was exemplified in the case of People v. Zuckerberg.