Violent Crimes

January 21, 2011

New York Robbery in the First Degree: What Constitutes “Displaying” a Firearm or Gun Under New York Criminal Law

Robbery in the First Degree is one of the most serious and violent crimes in the New York Penal Law handled by both prosecutors and New York criminal lawyers. In fact, if you threaten the use of force to take property and you possess a firearm or gun, then your crime is a “B” felony punishable by a minimum of five years in state prison and a maximum of twenty five years for a first time offender. It is important to note that to be convicted of this crime you need not actually possess this firearm. Instead, you need only to “display[] what appears to be…a firearm” to be convicted of New York Penal Law 160.15(4). This entry will address a recent New York State First Department Appellate Division decision addressing what actions constitute and are sufficient to establish “display[ing] what appears to be…a firearm.”

In People v. Douglas Welsh, indictment number 2963/2008, the defendant was convicted after testimony from a restaurant employee that the defendant entered the premises and demanded money from the cash register or he would shoot the employee in the face. Further testimony revealed that the defendant collected money and gestured with one hand while the other hand was bent at the elbow and stayed in the same position as if something (a gun) was being held waist level. Moreover, the employee could not see that hand at waist level because it was behind the counter. After trial, the defendant was convicted of Robbery in the First Degree under the subsection above for displaying what appeared to be a firearm. The defendant appealed from that conviction arguing that the evidence was not sufficient to establish that he displayed what appeared to be a firearm.

January 10, 2011

Unlwafull Imprisonment in New York: New York Penal Law Sections 135.05 and 135.10

by Jeremy Saland

The New York criminal defense lawyers at Saland Law PC, a New York City criminal defense firm founded by two former Manhattan prosecutors, recently drafted a criminal law information page for the crimes of Unlawful Imprisonment in the First Degree (New York Penal Law 135.10) and Unlawful Imprisonment in the Second Degree (New York Penal Law 135.05). While not a substitute for a consultation with your own criminal defense attorney or an “advice” page, the Unlawful Imprisonment criminal law page is a good educational starting point for anyone accused of or arrested for this crime. Armed with the basic information as to how the degrees of the crime differ as well the critical difference between the legal terms of “restrain” and “abduct,” the information page can give you the basis to have an educated conversation with your attorney regarding the degrees of Unlawful Imprisonment and how they compare to the more serious offense of Kidnapping. Armed with this knowledge, you and your New York criminal defense attorney can the ascertain and implement the appropriate defense in your case.

The New York criminal defense attorneys at Saland Law PC represent the accused throughout New York City and the region. Commentary on cases in the news as well as legal analysis of court decisions and criminal statutes can be found on the New York Criminal Lawyer Blog.

January 2, 2011

New York Burglary Crimes: Does the Prosecution Need to Establish Your Intent to Commit a Particular Crime

by Jeremy Saland

Regardless of the degree, Burglary in New York (NY Penal Law sections 140.20, 140.25 and 140.30) requires that at the time you unlawfully enter or remain in a building you also have a simultaneous intent to commit a particular crime. Well, not really…This entry deals with the question of what the prosecution must prove regarding an accused burglar’s criminal intent and whether or not they must prove the intent to commit a specific crime.

The Court of Appeals, New York’s highest court, has addressed this issue in the past and answered it in a clear and decisive way. Prosecutors do not need to establish the particular crime that the accused intended to commit when he or she either unlawfully entered or remained in the building. The Court went as far as asserting that “[h]ad the Legislature intended [that the prosecution prove a specific crime] it could easily in revising the Penal Law have inserted the word ‘specified’ or the word ‘particular’ between ‘a”‘ and ‘crime.'” People v. Mackey, 49 N.Y.2d 274 (1980)

December 19, 2010

Making a Misdemeanor Assault in the Third Degree a Second Degree Felony in New York: When an Object Becomes a “Dangerous Instrument” & a Weapon

by Jeremy Saland

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be “bumped up” to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a “dangerous instrument.” As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as “dangerous instruments” where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a “deadly weapon” or a “dangerous instrument,” then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a “deadly weapon” or “dangerous instrument.”

December 14, 2010

New York Criminal Defense Lawyers Get Another Top Result: Assault in the Third Degree (New York Penal Law 120.00) Dismissed

by Jeremy Saland

It is unquestionably the best outcome or as close as one can get. Saland Law PC, a Manhattan based criminal defense firm founded by two New York criminal defense attorneys and former Manhattan prosecutors, obtained a dismissal of all charges against a client accused of Assault in the Third Degree (New York Penal Law 120.00). Our client, a doctor, was alleged to have “pummeled” another man in a dog run after a dispute involving their dogs. The complainant had two alleged “witnesses,” actually friends, who claimed they saw the entire incident. Although the complainant had no visible injuries (we requested picture numerous times to no avail) and was seen in fine health the following day by witnesses not tied to either party, the prosecution was bent on going forward. Compounding matters, the complainant’s personal injury attorney called our client within days to see if our client wanted to settle to avoid a lawsuit (he received a resounding “no”).

Fortunately, at least three or four independent witnesses (not friends with either party) saw the incident and asserted that our client never struck anyone. Despite providing these witnesses to the prosecution, the District Attorney’s Office only offered a Harassment violation. Because our client did no wrong and the complainant saw him as a deep pocket for his lawsuit (not only did the “victim” fail to tell the prosecution he was suing, our investigation revealed this was not the first time he sued someone else or was involved in litigation), our client refused this offer.

November 21, 2010

The Elements of Burglary (New York Pena Law 140.20, 140.25 & 140.30): Defining “Dwelling” & Your Criminal Defense

by Jeremy Saland

In non legal terms, it is very easy to look at Burglary in New York (New York Penal Law sections 140.20, 140.25 and 140.30) as trespassing in a building that you entered or remained in with the purpose or goal of committing any type of crime. Although there are significant nuances and elements differentiating the degrees of Burglary that should be discussed with your New York criminal defense attorney, it is critical to understand the law of Burglary in New York because there are vast differences in the potential punishment amongst the three degrees of this crime.

One of the significant differences, for example, between a charge of Burglary in the Third Degree (NY PL 140.20) and Burglary in the Second Degree (NY PL 140.30), is that the building entered is a “dwelling.” If your conduct is the same, but instead of an office building you enter a dwelling, the crime will be “bumped up” to the Second Degree Burglary. If this occurs, the mere fact that you entered a “dwelling” will raise the potential sentence from a maximum of seven years in prison to a maximum potential sentence of fifteen years with a mandatory minimum of three and one half years. Knowing the ramifications, this entry will take a step back and lightly dissect how a “dwelling” is defined.

November 13, 2010

Stalking in the Fourth Degree: New York Penal Law 120.45 & “Reasonable Fear”

by Jeremy Saland

Any crime or offense in New York where violence is perceived or carried out is a serious offense. Experienced New York criminal defense lawyers who handle violent felonies and misdemeanors often represent clients in Criminal Possession of a Weapon and Assault cases. Not seen as often, but potentially as serious, is the crime of Stalking. Briefly, Stalking in New York ranges from a “B” misdemeanor (New York Penal Law 120.45) punishable by up to 90 days jail to a “D” felony (New York Penal Law 120.60) punishable by up to seven years in prison. Between these two crimes are Stalking in the Third Degree (New York Penal Law 120.50) and Stalking in the Second Degree (New York Penal Law 120.55). The following entry will define and address Stalking in the Fourth Degree as it relates to “reasonable fear.” Although addressing “reasonable fear” in the context of Stalking in the Fourth Degree, this entry is relevant to the other degrees as well.

Generally, one is guilty of Stalking in the Fourth Degree when one intentionally and without a legitimate purpose, engages in a course of conduct directed towards an individual person and knows, or reasonably should know, that his or her actions:

October 30, 2010

Burglary and Robbery Laws in New York: Articles 140 & 160 of the New York Penal Law

by Jeremy Saland

Saland Law PC, a New York criminal defense firm founded by two former Manhattan prosecutors, is pleased to announce the completion of the Burglary (NY Penal Law 140.20, 140.25 and 140.30) and Robbery (New York Penal Law 160.05, 160.10 and 160.15) information pages. Although no substitute for an in depth legal and factual discussion with your New York criminal defense attorney, the Burglary and Robbery pages contain significant information to begin your education into these crimes.

Burglary and Robbery are the two crimes that people often confuse. Generally, Burglary involves the unlawful entering of a building with the intent to commit a crime. Usually, this crime is a theft. Robbery, on the other hand, is a forcible stealing from an individual. Each of these crimes have numerous “escalation factors” including whether there was more than one person involved in the crime, whether there were any weapons involved and whether a non participant was injured.

June 11, 2010

New York Penal Law 120.00 (Assault in the Third Degree) & Your Criminal Defense: Is A Complaint Sufficient if it Merely Alleges “Substantial Pain?”

by Jeremy Saland

One of the most common crimes prosecuted by Assistant District Attorneys in New York (Manhattan, Brooklyn, Queens, Bronx and beyond) is the offense of Assault in the Third Degree pursuant to New York Penal Law 120.00. When one is accused of Assault in the Third Degree, the prosecution must set forth certain elements. One critical element is that the complainant or victim must have suffered physical injury. Generally, “physical injury,” as defined under section 10.00(9) of the New York Penal Law, is an “impairment of physical condition or substantial pain.” Having presented this definition, is a complaint sufficient accusing you of Assault in the Third Degree if it merely states that the complainant suffered “substantial pain” as a result of your actions, but without “fleshing out” the “substantial pain?” Is more needed for the prosecution’s case to survive a motion to dismiss from your New York criminal defense attorney?

According to a Manhattan Criminal Court Judge, merely asserting that a complainant suffered “substantial pain” without more is not sufficient. In People v. A. S., decided May 11, 2010, the complaint against the accused alleged as follows:

March 29, 2010

Gunshot Wounds & Stabbings: Who is Required to Report These Injuries (New York Penal Law 265.25)

by Jeremy Saland

New York State requires under certain circumstances that specific injuries or wounds must be reported to the police. In fact, pursuant to New York Penal Law section 265.25, failure to report certain wounds by individuals such as an attending or treating physician (mandated reporters) is an “A” misdemeanor punishable by up to one year in jail.

According to New York Penal Law 265.25