Violent Crimes

November 21, 2013

A Potential Defense to Harassment & Menacing: When the Scope of a Crime is to Large

Regardless of the degree of the crime, Menacing is an extremely serious offense as both a misdemeanor and a felony. Not as serious, but an offense worthy of concern, Harassment in the Second Degree is an arrest charge that should in no way be taken lightly. New York criminal lawyers know that a conviction for either of these offenses will likely leave you reeling for years to come. Because of this, finding legal and evidentiary ways to challenge these arrests are always on the forefront of any defense. The below case is just one example of a legal based approach to these Menacing and Harassment.

The court in People v. Boyette, 2013 NY Slip Op. 23314 addressed the “scope-of-time,” that encompasses an allegation and how it relates to both Menacing and Harassment. In Boyette, the defendant was convicted of, among other things, 2nd Degree Menacing and 2nd Degree Harassment. On appeal, the Appellate Term reversed and dismissed the charges against the defendant.

September 30, 2013

If the Police Solely Observe a Knife Clip is it a Sufficient Basis for them to Arrest You for NY PL 265.01 in New York?

by Jeremy Saland

If you could not merely search the NewYorkCriminalLawyerBlog.Com, but review transcripts from suppression hearings and examine New York criminal court complaints, it is likely that you would find a very common theme amongst individuals arrested for possessing illegal knives in New York pursuant to New York Penal Law 265.01(1) (often drafted as PL 265.01 on a New York City Desk Appearance Ticket). Whether the knife in question is a gravity knife opening with the force of gravity or a switchblade knife, it is “comically” common how often the police assert they observed a knife clip on the outside of a pocket, stopped that person and then removed the knife in question. While the stop and search may be legal, and therefore an arrestee’s basis for challenging his or her stop and search may fail, a recent decision may be very helpful in combating what some may argue is the over policing, and the ultimate over prosecution, of individuals who unknowingly possess certain illegal knives. Although technically illegal, many of the people arrested and given a DAT for PL 265.01 are accused of this crime after they legal purchased the blade from a reputable and established company without any belief that they could ultimately be committing a crime in New York.

In an appeal from Queens County Criminal Court, People v. Victor M. Cruz, 2011-990 Q CR, NYLJ 1202597502421, at *1 (App. Tm., 2nd, 11th, 13th, Decided April 8, 2013) directly addressed whether the clip of a knife, without any other indicia the potential contraband is a gravity knife, is sufficient to give the police the authority to stop and search a person for violating the class A misdemeanor Criminal Possession of a Weapon in the Fourth Degree pursuant to NY PL 265.01. In Cruz, the defendant was charged with with two counts of Fourth Degree Criminal Possession of a Weapon among other violations of the law. According to the record, the police pulled the defendant over for a traffic infraction and asked for the standard license and registration. The police further asked if the defendant had any weapons which he responded to in the negative. Looking into the vehicle, the arresting officer observed a clip of a knife attached to the defendant’s pant pocket.

September 17, 2013

If the Police Fail to Establish their Training and Experience in Your Gravity Knife Arrest is it Grounds for Dismissal: Facial Sufficiency & PL 265.01

by Jeremy Saland

If you are reading this blog entry regarding a gravity knife arrest in New York City or any other jurisdiction or municipality, there is a good chance you were stopped innocently walking down the street or driving your car and the police saw the knife’s clip outside your pocket. After stopping you, the police flipped the knife around, flicked their wrists and tried as hard as they could (it may have been fairly easy or awfully difficult) to open the knife with the use of gravity. Whether they did it on their first attempt or the police were only successful after numerous tries, the officers placed you under arrest, finger printed you and charged you with possessing a gravity knife in violation of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(1). If it was your first offense and you have no criminal record (and you can provide a local address in the New York City area), the police may have given you a NYC Desk Appearance Ticket with the top offense charge of PL 265.01.

Assuming you consult with a criminal attorney or New York City weapon defense lawyer for the Fourth Degree Criminal Possession of a Weapon DAT, you will likely be asked numerous questions about the legal basis of your stop as well as what transpired when the police tested the knife. Ultimately, however, when you go before a judge for your arraignment (this is where you are formally accused and advised of your criminal arrest charges), the legal work of your attorney will really begin. Certainly your lawyer may want to ask to see the actual knife (it will take some time), but within the four corners of the complaint against you there may be fertile ground for dismissal. One potential basis is how the actual complaint is drafted. It must sufficiently establish a “knife which has a blade [that] is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” For the purpose of this blog entry we will briefly address how the police establish that a knife in question is in fact a gravity knife as defined by the New York Penal Law. More specifically, if the police merely test the knife, but do not establish their training and experience in identifying these weapons, will the complaint be facially sufficient? After all, how can you affirmatively test something that you have no training or experience in identifying or handling?

July 31, 2013

Felony Gun & Pistol Possession in NY: PL 265.01-b(1) & PL 265.01-b(2)

by Jeremy Saland

Not mean to be a political statement in any way, the following is arguably a simple “fact.” Prosecutors in New York City and the surrounding suburbs have little sympathy and compassion for individuals arrested for firearm and weapon crimes. This assertion can be attributed to those crimes where a gun, pistol or other weapon is stolen and defaced or where the gun in question is legally registered, but not within the borders of New York City or New York State. The message is clear from these District Attorneys. Do not bring unlicensed firearms into their respective jurisdictions even if it is legally owned and carried elsewhere. If you do, you will be arrested and prosecuted for a wide range of potential felony crimes including Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02), Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01)and the newest member of the “illegal firearm family,” Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)).

Prior to the enactment of NY PL 265.01-b(1), Criminal Possession of a Firearm, in order for an illegally possessed gun or pistol to be bumped from a misdemeanor to a felony crime, the firearm had to be possessed outside the home or place of business and be loaded (it must always be operable as well). If it was not harsh enough that New York law deems a gun loaded even when ammunition may not be inside the weapon, the New York Penal Law has created an even more sever punishment for possessing a firearm without any ammunition at all. To be very clear, if you possess a gun or a pistol in New York without a permit, you will no longer have the “luxury” of facing only a misdemeanor crime. Instead, your knowing possession of the illegal and operable firearm is an “E” felony and carries a sentence by as much as four years in prison. Again, it makes no difference in the eyes of the law if the firearm is stolen or one that you legally owned in Iowa, Alabama or California because if you do not have a license or permit in New York (or New York City), your possession is a violation of the law.

July 13, 2013

You Assaulted Me! Understanding New York Misdemeanor Assault Crimes (PL 120.00) Beyond Common Perception

by Jeremy Saland

One of the most common questions that arise in the practice of New York criminal law from the perspective of both a prosecutor (Assistant District Attorney) and a criminal defense attorney or lawyer is when an assault is an Assault (note the big scary capitalization of the word). That’s right. When does an accused’s conduct go from noncriminal in nature to actions that are legally sufficient to establish the crime of Assault in the Third Degree?

Is a slap different than a closed fist punch in the eyes of the New York Penal Law? What about a shove, kick or pinch? Do any of these constitute a misdemeanor offense punishable by as much as a year in jail? At what point has your conduct and resulting injury reached the level of New York Penal Law 120.00, Assault in the Third Degree? Generally speaking, you are guilty of NY PL 120.00(1) if and when you intentionally cause physical injury to another person, but how far are courts willing to go under pressure by Assistant District Attorney’s to prosecute those they believed have committed a crime?

July 5, 2013

The Zealous Prosecution of New York Gun and Firearm Cases: When an Injury may not be Caused by Criminal Conduct

by Jeremy Saland

Everyone is scared of guns. After all, some horrific incidents have corroborated why many lawmakers in New York believe the strict firearm laws of the New York Penal Law are necessary. While there is little doubt that firearms in the wrong hands are overwhelmingly dangerous and laws must be enacted and enforced to protect the public and prevent the misuse of weapons, a blanket fear of firearms does not necessitate over zealous prosecutions. Just as the owner of a lawfully registered out of state firearm can be charged with a felony for attempting to legally check his weapon at a NYC airport (JFK Airport, for example), other individuals may be charged with weapon crimes that really are not consistent with the hyper-technical conduct of the accused.

In People v. Evans, 2013 NY Slip Op 1950 – NY: Appellate Div., 4th Dept. 2013, a judge convicted the defendant for Assault in the Second Degree where the crime was based in the reckless possession of a weapon. There, the gun in question was a saw offed shotgun that accidentally misfired and struck another person. Pursuant to New York Penal Law 120.05(4), it is punishable by as much as a seven years in prison if you “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” The question before the Appellate Court was not whether the possession of the weapon in and of itself was illegal, but whether or not it was used in a reckless manner resulting in the serious physical injury.

May 6, 2013

New York Criminal Lawyers Get Dismissal of Client’s Weapon Possession Arrest of PL 265.01(2)

by Jeremy Saland

With the amount of blog entries I have recently drafted relating to New York weapon crimes including those involving New York firearm laws and knife arrests, one would think that the criminal lawyers at Saland Law PC spend their days solely defending clients against misdemeanor (New York Penal Law 265.01) and felony (New York Penal Law 265.02 and 265.03) weapon arrests. While we certainly do our best to keep ourselves up to date on the ever changing laws and regulations involving New York weapon crimes, this area of law is remains a significant piece of our criminal defense practice. Irrespective of how often we represent clients accused of possessing legally owned firearms at JFK or LaGuardia airports or gravity knives on the streets of NYC, there can be little dispute that many weapon statutes in New York are enforced with greatest of intentions, but often against honest, “clean” and law abiding people.

In a recent example of a “regular Joe” being ensnared in a New York weapon crime, Saland Law PC represented an attorney accused of possessing a knife with a blade exceeding four inches. Further, when arrested with possessing this knife, both the police and prosecutors at the District Attorney’s Office charged our client with violating New York Penal Law 265.01(2). Not the “per se” section of the New York Penal Law, this subsection of Fourth Degree Criminal Possession of a Weapon makes it a crime (in substance) to possess any dangerous instrument (it has a very liberal definition) unlawfully against another person. Keep in mind…under the right circumstances a can of Red Bull or your backpack could be considered a dangerous instrument.

April 29, 2013

All “Weapons” are not Equal: Understanding Subsection Two of Fourth Dgree Criminal Possession of a Weapon (NY PL 265.01(2))

by Jeremy Saland

New York State is on tough place to face a criminal charge. Yea, there are always concerns with New York’s “strict liability” crimes where knowledge, as opposed to intent to commit a crime, is a sufficient basis for an arrest and conviction, but in the realm of New York City and the greater New York State, there are other seemingly innocent actions or items that can form the basis of a criminal arrest. Unlike possessing a gravity knife or switchblade knife where it matters not whether the knife was to be used to cut cardboard or human flesh (see New York Penal Law 265.01(1) – Fourth Degree Criminal Possession of a Weapon), other weapon offenses relate specifically to how you used the item or object in question. So…that pillow, iphone or sneaker may be just as dangerous in the eyes of the law as a set of brass knuckles. Simply stated, you are guilty of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2), if you possess a dangerous or deadly instrument with the intent to use that instrument against another person in an unlawful manner.

To help better understand the misdemeanor weapon crime of NY PL 265.01(2), the following case is a good place to start. While no criminal lawyer would expect that you, as an accused person charged with a misdemeanor offense and given a Desk Appearance Ticket (which does qualify as an arrest, by the way), will read all the relevant statutes and cases, educating yourself prior to speaking to a criminal defense attorney will certainly land you in a better place.

April 23, 2013

NYC Firearm & Gun Arrests: Can You Get Your Firearm or Gun Back from the Police if it was Seized After Your Arrest at JFK or LaGuardia Airports

by Jeremy Saland

Among many concerns that someone arrested for possessing a loaded (or unloaded) firearm, pistol, revolver or similar gun at a New York City airport may face, is how, if at all, the firearm can be returned subsequent to a resolution of the criminal case. Whether you are charged with a misdemeanor gun possession charge at New York’s JFK Airport for possessing an unloaded firearm without any ammunition (New York Penal Law 265.01 – Criminal Possession of a Weapon in the Fourth Degree) or you are arrested for a felony gun possession at LaGuardia Airport for possessing a loaded firearm (the bullets need not actually be in the gun) and charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), the likely answer to this questions is fairly clear. As part of the potential plea, offer or even non-criminal disposition, the Queens County District Attorney’s Office is not going to return that firearm back to you even if it was lawfully owned, registered and permitted in your home state. A case directly on point is the Matter of the Application of Shahin Khoshneviss v. the Property Clerk of the New York City Police Department, 2010 NY Slip Op 30299(U).

In Khoshneviss, the former defendant sought the return of his .45 caliber firearm and magazine clip that the New York City Police Department vouchered. The NYPD came into possession of the firearm after Port Authority Police Officers arrested him at LaGuardia Airport. Like many “regular” and law abiding citizens, Khoshenviss had declared his firearm for transportation on his flight to California from New York City. Ultimately, prosecutors charged Khoshneviss with Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The former felony is punishable by a minimum of three and one half years in prison while the latter misdemeanor is punishable by no more than one year on Rikers Island. Fortunately, Khoshneviss was not convicted of either a misdemeanor or felony, but pleaded instead to a non criminal violation of Disorderly Conduct.

March 31, 2013

Per Se Weapons & Fourth Degree New York Weapon Crimes: Defining Bludgeon and Identifying Defense Practices in a NY PL 265.01 Arrest

by Jeremy Saland

There are countless means in which a non-weapon, if used in a particular way, becomes a weapon in the eyes of the law. In New York, a tree branch, spoon, pair of shoes or just about anything else, if used in violent and assaultive way, can be the basis of an arrest for Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2). Beyond the offense of PL 265.01(2), there are specifically identified items or objects that are automatically weapons irrespective of the manner in which they are used. The two most common weapons outside of firearms are gravity knives and switchblade knives. Possession of these weapons in New York City, Westchester County or, for that matter, Lake Placid, all constitute a violation of Criminal Possession of a Weapon in the Fourth Degree pursuant to subsection one of PL 265.01. Whether your arrest is for NY PL 265.01(1) or NY PL 265.01(2), the crime is punishable by a year in jail. Whether your best defense to a weapon arrest is to mitigate your conduct, attack the search or challenge whether the object in question is in fact a weapon, is something critically important to address at the earliest stage possible with your own New York criminal lawyer or New York weapon attorney.

When deciding how to defend against an arrest for PL 265.01(1), if you are immediately processed or receive a New York City Desk Appearance Ticket is really not that important. If the police or prosecutors are wrong on the law, the vehicle or manner of your arrest and prosecution is of no significance. Instead, an examination of the evidence is critical. While the following case does not identify when a knife, for example, qualifies as a gravity knife, it does address one of the enumerated weapons of Fourth Degree Criminal Possession of a Weapon. Therefore, the message of the case, if not the actual weapon in question, is important to understand.