Violent Crimes

February 12, 2010

New York’s Assault in the Second Degree & Your Criminal Defense: How Prosecutors Can “Bump Up” Assault in the Third Degree (NY PL120.00) to a Felony of Assault in the Second Degree (NY PL120.05(2))

Criminal defense attorneys and lawyers throughout New York City regularly deal with the various crimes relating to and degrees of Assault found in Article 120 of the Penal Law. The most common, Assault in the Third Degree ( New York Penal Law 120.00), is a misdemeanor offense punishable by up to one year in jail. A more serious crime, Assault in the Second Degree (New York Penal Law 120.05), is a felony offense punishable by up to seven years in state prison. Although it will be discussed further below, one of the more common reasons why an intentional misdemeanor Assault in the Third Degree is “elevated” to a felony Assault in the Second Degree is because a “dangerous instrument” is used during the commission of the lesser crime. While there are various legal reasons to raise the level of the crime, where that basis is the use of a “dangerous instrument,” the actual injury inflicted for the misdemeanor and felony level crime is no different. As will be explained below, if you punch someone in the eye and give him a black eye that swells shut you may face the misdemeanor crime. If you do the same thing, but use the heel of your shoe, a baseball bat or even the door of your car, your crime may be elevated to a felony because your use of a “dangerous instrument.” With this in mind, I will first deal with the applicable definitions of the crimes of Assault in the Third and Second Degrees as well as what constitutes a “dangerous instrument.” Once that is done, I will address a few court decisions that have addressed when an instrument is considered “dangerous” under the law and, as a result, and individual had his or her misdemeanor Assault charge raised to a felony offense.

NY PL 120.00(1) – Assault in the Third Degree

December 11, 2009

Unlawful Imprisonment in the First (NY Penal Law 135.10) & Second (NY Penal Law 135.05)Degrees: A New York Criminal Defense Overview

by Jeremy Saland

It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are “restrain” and “abduct.” Today’s entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.

､ 135.00 Unlawful Imprisonment, Kidnapping and Custodial Interference; definitions of terms

November 23, 2009

Florida to New York Firearm Trafficking Ring Disarmed: Brooklyn DA Announces Arrest and 105 Count Indictment

by Jeremy Saland

The Brooklyn District Attorney’s Office has announced that along with the 105 count indictment against Watson Joachin and Ryan Woodard for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.

According to to the Brooklyn District Attorney’s Office:

November 22, 2009

The “Bump Up”: Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02(1))and Your Criminal Defense

by Jeremy Saland

Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Pursuant to Penal Law section 265.02(1), a person is guilty of Criminal Possession of a Weapon in the Third Degree if such person commits the crime of Criminal Possession of a Weapon in the Fourth Degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime. That is right…if you were ever convicted of a misdemeanor Trespass, Petit Larceny for shoplifting, or even Theft of Services for jumping a turnstile and you are now arrested for having a switchblade in your pocket, prosecutors can charge you with a felony. The ramifications are enormous as the misdemeanor is punishable by up to one year in jail and the felony by up to seven years in state prison.

September 26, 2009

Criminal Possession of a Weapon (New York Penal Law 265.02): Defaced Gun, Revolver, Pistol and Firearm

by Jeremy Saland

As I have explained to my readers numerous times in the past, mere possession of a loaded firearm outside your home or place of business without a permit is punishable as a “C” violent felony. This offense carries a minimum sentence of three and one half years in state prison if that possession is without a license and the district attorney does not make you an offer. Whether you mistakenly brought the gun to New York from a state you had a license thinking it was legal (give Plaxico Burress a ring on that) or you knowingly had a stolen revolver, the potential crime is the same. However, consult with your NY criminal defense attorney because this charge, while more severe than other crimes, is not the only charge you may face.

Pursuant to Penal Law section 265.02, you can be charged with a “D” violent felony punishable by a minimum of two years and up to seven years in state prison for possessing an unloaded firearm. Specifically, a person is guilty of Criminal Possession of a Weapon in the Third Degree when such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun. This crime does not require that the gun be loaded.

August 30, 2009

NY Criminal Defense & Criminal Possession of a Weapon (PL 265.01) Part II: Switch Blade Knife, Gravity Knife, Pilum Ballistic Knife & Metal Knuckle Knife

by Jeremy Saland

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Saland Law PCs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law い 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”

August 26, 2009

Assault in the Third Degree (New York PL 120.00) and Assault in the Second Degree (New York PL 120.05): Differences in the Crimes and Your Criminal Defense

by Jeremy Saland

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

August 20, 2009

Plaxico Burress Pleads Guilty to Attempted Possession of a Loaded Gun: Local Sports Hero to Receive Two Years in Prison at Sentencing

by Jeremy Saland

Plaxico Burress, the former All-Pro wide receiver for the New York Giants, pleaded guilty in Manhattan Supreme Court today to Attempted Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 110/265.03. Although Burress had been facing a minimum of 3.5 years in state prison, prosecutors agreed to offer a lighter sentence of 2 years in state prison followed by 2 years of post-release supervision.

Despite Burress’ best efforts for “jury nullification,” a Grand Jury indicted him for an offense that did not require any intent to commit a crime. In other words, his mere possession of the loaded firearm outside his home or place of business without a permit would have landed him behind bars for up to 15 years. From a legal standpoint, although the minimum sentence on a plea was 3.5 years, by allowing Burress to plea to the attempted crime, as opposed to the actual completed crime, reduced the offense from a “C” violent felony to a “D” violent felony. Under New York law, a sentence of 2 years is a legal disposition for “D” violent crimes. Additionally, the term of post release supervision is mandatory regardless of which offense he pleaded to.

August 14, 2009

Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1), Dismissed Due to Hearsay

by Jeremy Saland

Regardless of the particular misdemeanor you are accused of perpetrating, it is imperative that you obtain the assistance of knowledgeable counsel to guide you through the process, analyze the case and set forth particular defenses. While it may not be apparent to you, your best defense might be right in front of you. In the case of People v. Buchy, a Westchester County Village Justice found that he needed to look no further than the document right in front of him. Fortunately for Mr. Buchy, the information against the defendant contained hearsay and the court dismissed the complaint.

By way of background, Criminal Procedure Law section 100.40(1)(c) sets forth the requirement that an information (the written complaint against the accused) must contain “[n]on-hearsay allegations of the factual part of the information, and/or of any supporting depositions [to] establish, if true, every element of the offense charged and the defendant’s commission thereof.” In other words, if the facts are established with hearsay, the case must be dismissed.

August 13, 2009

Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00)

by Jeremy Saland

Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone’s lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it…accomplice liability.

Under New York law, one is liable for the acts of another when: