Violent Crimes

August 10, 2012

Defending a New York Felony Assault Arrest: Small Scars, Lacerations & Second Degree Assault (NY PL 120.05)

New York Assault lawyers and criminal defense attorney who routinely practice in New York’s criminal courts see Assault prosecutions involving the entire spectrum of injuries. For example, common Third Degree Assault (New York Penal Law 120.00) allegations occur after two people get into a fist fight. Maybe one person took a worse lickin’ and received a punch to a jaw that left him soar and bruised. Alternatively, during another melee a spouse had scratches to his or her neck or arm with some redness. As long as prosecutors can establish intent to cause a physical injury and the actual suffering of a physical injury (generally described as substantial pain and illustrated throughout numerous blog entries in Saland Law PC’s NewYorkCriminalLawyerBlog.Com), NY PL 120.00 is proveable. What is more difficult, however, is establishing the level of injury required to achieve an arrest, indictment and conviction for Second Degree Assault according to New York Penal Law 120.05. In this felony level Assault, the degree of injury is defined as serious physical injury.

Whether one deems it fortunate or unfortunate, prosecutors often attempt to push the law in a manner favorable to their goals. Sometimes this comes in the form of “overcharging” a defendant for a crime to help achieve a plea. Regardless, if prosecutors cannot prove the level of injury required by statute, then the Assault charge should either be reduced or dismissed. In People v. Ricky Trombley, 104135, NYLJ 1202564193232, at *1 (App. Div., 3rd, Decided July 12, 2012), an Appellate Court did just that.

July 9, 2012

Second Degree Harassment: What Can Happen to an NY PL 240.26 Charge When Your Initial Arrest was Unauthorized

by Jeremy Saland

While some New York criminal lawyers, prosecutors and judges use the term “fruit of the poisonous tree,” the wording is not nearly as important as the concept in criminal law. That is, if initial conduct by a police officer is unauthorized, for example, the recovery of contraband or property may not be used against the accused. On a similar note, if the police made an unlawful arrest and you refuse to be handcuffed during that unauthorized arrest, then the charge of Resisting Arrest, pursuant to New York Penal Law 205.30, is not sustainable (Keep in mind that such a determination is not always clear. Certainly, resisting at the time of your arrest because you believe that the arrest is unauthorized is not a smart thing to do!). This blog entry will deal with a similar variation of this theme while addressing the violation of Harassment in the Second Degree pursuant to New York Penal Law 240.26(1).

By way of background, and before addressing the legal decision on this topic, a person is guilty of Harassment in the Second Degree (NY PL 240.26) if and when that person has the intent to harass, annoy or alarm another person and, according to subsection one, that person strikes, shoves, kicks or subjects that other person to any physical contact. Further, attempting or threatening to do the same is sufficient to form the basis of Second Degree Harassment.

June 14, 2012

Drake – Brown Beatdown: Possible Criminal Arrests & Charges After Club WIP Bar Fight in Manhattan

by Jeremy Saland

According to reports, rapper-singers Drake and Chris Brown, along with their respective entourages, OD’d in testosterone and supposed manhood at Manhattan’s club W.I.P. Whether it was the result of one too many cocktail, it is alleged that Drake taunted Brown over the former’s “between the sheets dancing” with the over-hyped songstress, Rihanna. If reports are true, the sensitive Brown and sophomoric Drake engaged in bottle tossing mayhem that resulted in what appears to be some fairly serious injuries. Although this blog entry will not address the civil liability of SoHo’s club W.I.P. or the two Top 40 knuckleheads for the alleged brawl, there certainly could be arrest charges in Manhattan should the police and prosecutors be able to identify individuals and their conduct during the “chivalrous bout” over Rihanna’s honor.

If the police can identify the person who instigated the melee as well as those who were involved in and advanced the shenanigans, prosecutors must also be able to establish their respective actions. Not addressing all of the issues that would arise in a prosecution, what are some of the charges a defendant could face should everything fall into place for the Manhattan District Attorney’s Office?

May 20, 2012

Gravity Knife Arrests in New York: Is a Police Officer’s Mere Conclusion that You Possessed a Gravity Knife Sufficient to Support a NY PL 265.01 Complaint

by Jeremy Saland

The most common crime involving weapon arrests in New York is likely Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 265.01(1). This specific subsection involves per se weapons defined by statute. If you broke this crime down further in terms of the type of weapon involved in a New York City – Manhattan, Brooklyn, etc., prosecution, you would likely find gravity knives and switchblade knives on the top of the list. From personal experience as a New York criminal lawyer and former Manhattan prosecutor, I have seen hundreds of these offenses prosecuted in the criminal courts through NYC Desk Appearance Tickets (DATs) as well as “full” arrests.

For better or worse, the police and Assistant District Attorneys are fairly efficient when prosecuting misdemeanor weapon cases. Sometimes it appears that the complaint charging the accused with a crime is “cookie cutter” in nature. That is, it seems like boiler plate language is used with minimal “fill in the blank” requirements. In fact, some of these crimes, as well as other offenses including Petit Larceny and Criminal Possession of Stolen Property (NY PL 155.25 and NY PL 165.40 respectively), use pre-drafted and box checked supporting depositions. From an untrained eye it seems that all the thought and diligence is taken out of the process.

May 13, 2012

Is Proof of an Out of State Firearm Permit or License a Defense to the Charge of NY PL 265.03 – Criminal Possession of a Weapon in the Second Degree?

by Jeremy Saland

As a preliminary matter before addressing the issue and court decision in this blog entry, I want to briefly state the law of possessing unlicensed firearms, guns, revolvers, pistols, etc. in the State of New York. Pursuant to New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, it is a felony offense to possess a loaded firearm in New York outside your home or place of business without a license to do so. If convicted, someone with no prior criminal history would face a minimum of 3.5 years to 15 years in state prison.

Having briefly addressed the law in New York, I want to discuss a recent criminal decision that stemmed from Queens County in New York City. In the People v. Dwayne McLaren, 2159/2010, NYLJ 1202552954788, at *1 (Sup., QU, Decided April 27, 2012), the defendant argued the court erred by denying him his Due Process right to a fair trial by precluding him from introducing into evidence the fact that he possessed a valid license to carry a concealed and loaded weapon in neighboring Connecticut.

May 8, 2012

Presuming Criminal Intent when Possessing a Non Per Se Weapon: Understanding New York Penal Law Article 265 Crimes

by Jeremy Saland

There are few crimes – misdemeanor or felony – that are as fiercely prosecuted by Assistant District Attorney’s throughout New York than weapon crimes. Whether the offense is of the misdemeanor variety (NY PL 265.01) and involves a gravity knife or the crime is of the felony level and involves possession of an unlicensed and loaded firearm (NY PL 265.03), prosecutors routinely take hard stances against alleged offenders. In response, New York criminal lawyers and defense attorneys who represent clients in weapon crimes find themselves either searching for a defense that exonerates a client, sufficiently challenges the legality of the allegation or mitigates the accused’s conduct.

An issue that often arises in New York weapon crimes involves those offenses that require an “intent to use unlawfully” verses those crime that are per se based on the type of weapon possessed. The latter crimes are weapon offenses that are unlawful merely based on the type. In other words, these crimes violate the law even if you displayed no hint or desire for wrongdoing.

March 29, 2012

New York Gravity Knife Arrests & DATs: When a Search May be Illegal

by Jeremy Saland

What is a Gravity Knife? Is it illegal to have a gravity knife on my person under New York Law? Under what circumstances can the New York Police search me on a Manhattan Street or a Queens subway station? Once I am arrested for possessing a gravity knife is it possible to get a Desk Appearance Ticket or will I be processed through the system? As an experienced New York criminal lawyer, I often hear these types of questions and answer the same. In this blog post I hope to address at least one of these issues by examining a Brooklyn criminal case involving Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01).

Criminal Possession of a Weapon in the Fourth Degree is a Class “A” misdemeanor. Sure it’s not a felony, but it is punishable by up to one year in jail and will stay on your permanent record. Further, it is rare that an offer of any kind is made at a defendant’s arraignment in most jurisdictions. Because it is highly that a “slap on the wrist” will make a knife case go away – gravity knife or switchblade knife – it is critical to have a basic understanding of the law. There are eight sections under NY P.L. 265.01, which specify the circumstances under which an individual will be found guilty for possessing certain weapons. Without getting into the details here, you are guilty of Criminal Possession of a Weapon in the Fourth Degree if you possess certain weapons that are classified by statute as automatically criminal regardless of your intent. These weapons include a stun gun, gravity knife, switchblade, bludgeon, metal knuckle and dagger.

March 14, 2012

NFL’s Brandon Marshall Accused of Assault in NYC: Potential Crimes, Punishment & Defenses

by Jeremy Saland

Athletes, just like the people who pay to watch them catch balls, shoot baskets and swing bats, sometimes put themselves in compromising situations. Brandon Marshall, a star wide receiver recently traded from the Miami Dolphins to the Chicago Bears, is no different. According to the NY Post, Marshall is accused of punching a woman, Christin Myles, in the face during a late night (actually, an early morning) fracas. It is alleged that Marshall socked the young woman with enough force to give her a black eye. The fight is alleged to have occurred at a club in New York City’s Chelsea neighborhood.

Assuming the allegations are true, Manhattan prosecutors would likely charge Marshall with a top count of misdemeanor Assault in the Third Degree. New York Penal Law 120.00(1) is an intentional crime where you strike another person and cause that person a physical injury. The physical injury element requires substantial pain. Redness, swelling, and a more serious black eye would be enough to reach this threshold. Assuming there is a conviction, you would end up with a sentence ranging from community service or a conditional discharge to three years probation or as much as one year in jail.

February 20, 2012

The Value of Investigating a New York Assault Arrest: New York Criminal Lawyers Obtain Dismissal of Felony Assault Case

by Jeremy Saland

Any New York criminal lawyer can tell you an allegation is merely an allegation. It is not proof beyond a reasonable doubt, or, for that matter, proof of much at all. Whether you are arrested for a fight involving a neighbor or a stranger, the burden on the prosecution is to not only establish the probable cause that legitimized a police arrest for Assault, but also they burden is on the People to prove a case beyond a reasonable doubt. Despite this legal requirement and the recognition that an arrest is not proof of any guilt, allegations are often devastating. For a client of Saland Law PC, this pain was overwhelming until our New York criminal lawyers were able to secure a dismissal in his felony Assault case.

Prosecutors charged our client with Assault in the Third Degree (New York Penal Law 120.00) after our client allegedly struck another man and opened up a laceration on his forehead. Normally a misdemeanor crime, this Third Degree Assault was prosecuted as a felony due to the allegation that the barrages of punches were part of a verbal tirade against the complainant because of the alleged victim’s perceived homosexuality. Under New York State law, a misdemeanor crime can be elevated to a felony offense if it is classified as a “hate crime.”

February 5, 2012

Do Puncture Wounds from being Stabbed Automatically Establish Serious Physical Injury in a New York Felony Assault Case?

by Jeremy Saland

Generally speaking, the practice of criminal law is neither scientific nor mathematical. While a New York criminal lawyer may be methodical in his or her dissection of legal issues and the use of prior cases decisions to prove a particular point of law, criminal law in New York is constantly morphing and growing. Whenever advocating for a particular point of law, having the most recent court rulings on the particular issue at hand is critical. It can make the difference between being charged “as is” or obtaining a dismissal or reduction of your case from a felony to a misdemeanor.

One area of New York criminal law where the principles above are illustrated is in the arena of New York Assault crimes. Essential to any New York Assault case, whether it be Assault in the Third Degree (New York Penal Law 120.00), Assault in the Second Degree (New York Penal Law 120.05) or Assault in the First Degree (New York Penal Law 120.10), is the existence of some form of injury. The threshold for this injury is “physical injury” in misdemeanor NY PL 120.00 crimes and “serious physical injury” for crimes involving the felony offense of NY PL 120.05. Whether or not the prosecution is able to prove “serious physical injury” as opposed to the lesser “physical injury” makes the difference between facing up to seven years in state prison or one year in a local or county jail such as Rikers Island (not that any institution is where you would want to be).