Articles Posted in Violent Crimes

A Brooklyn Supreme Court Judge sentenced Nixzaliz Santiago, the mother of 7-year-old Nixzmary Brown, to 43 years state prison today after she was convicted on October 17, 2008 for Manslaughter. Her husband, and the girl’s stepfather, had previously been convicted for the same offense and received 29 years. In fact, it is Mr. Santiago that dealt the fatal blow after Nixzmary took yogurt from the fridge without permission. It is no surprise to this NY criminal defense attorney and former Manhattan prosecutor that Ms. Santiago received a harsher sentence than her husband.

According reports, Judge DiMango stated to Ms. Santiago at her sentence that she “may not have delivered the fatal blow, but . . . it was in your power to prevent the effects of it…[w]ere it not for your failure to act, Nixzmary Brown would have probably not died from that blow that day.”

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Joseph Petcka, the defendant charged with beating a cat to death in Manhattan, was neither convicted or acquitted by the jury that heard his case. Instead, the jury “hung” on the charges against him.

As a former prosecutor in the Manhattan District Attorney’s Office and a criminal defense attorney, I can tell you that more often than not, prosecutors are unhappy with this outcome. For prosecutors, the side that has the burden of proof, it is a sign that at least one of the jurors believed the cases was not proven beyond a reasonable doubt. Whether it was one juror or eleven, the prosecution must now decided whether or not to bring all the witnesses back to testify again or cut the defendant a good deal to dispose of the matter. Depending on the type of case, the time, expense, or difficulty in re-trying it may be overwhelming.

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As a criminal defense attorney and former prosecutor who was an original member of the Identity Theft Unit, I have seen people charged with Resisting Arrest, Penal Law 205.30, along with underlying crimes ranging from Assault, DWI and Grand Larceny to Robbery, Trespassing, and Marijuana Possession. As the cases proceeded and went to trial, sometimes those underlying charges would not stick and the only remaining offense was the Resisting Arrest. An interesting issue that faced many defense attorneys and prosecutors was whether a person can be convicted of Resisting Arrest in New York and not the underlying charge. Simply put, the answer is yes.

Before dissecting this issue, the first thing to do is to define the crime of Resisting Arrest. Pursuant to the Penal Law, a person is guilty of Resisting Arrest when “he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.”

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New York Penal Law Section 110.00 establishes that a defendant is guilty of an attempt to commit a crime when, “with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” Well, if you are accused of attempting to commit a robbery in Brooklyn, an assault in the Bronx, or a burglary in Manhattan, this definition offers little assurance and even less guidance. That is why you need an experienced criminal defense attorney and former prosecutor to fight for your rights and hold the prosecution to their burden of proof.

While mere preparation, with nothing else, is not enough to establish an attempt to commit a crime, if an individual comes “dangerously close,” courts usually find that that the attempt has gone far enough. To help fully understand when there is an attempt to commit a crime that is “dangerously close” we will deal with attempt in the context of the crime of Attempted Murder.

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Mount Kisco (Westchester County) police officer George Bubaris was acquitted of the charges of Manslaughter and Criminally Negligent Homicide in White Plains. The case has divided communities and received significant media attention due to the exposure of the issues that exist between immigrant communities throughout New York and local law enforcement.

The case began after Rene Perez, a homeless and undocumented immigrant from Guatemala, died in April 2007. Prosecutors claimed that Mr. Perez died as a result of an abdominal injury sustained by Officer Burbaris. The defense, on the other hand, argued that it was the Mr. Perez’s life style that caused the injuries. Although there was no dispute as to the injury that ultimately caused the death of Mr. Perez, the prosecution and the defense argued not only as to who caused the injury, but when it occurred. Clearly, the defense was able to persuade the jury that there was reasonable doubt as to this critical point and Officer Burbaris’ actions.

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As a former prosecutor in the Manhattan (New York County) District Attorney’s Office and one of the first Assistant District Attorneys in the Identity Theft Unit, I have seen a significant amount of outright stupid moves that have resulted in arrests for crimes ranging from Assault and Gun Possession to Criminal Possession of Stolen Credit Cards and Criminal Possession of Forged Instruments. Recently, in Brooklyn Supreme Court, a defendant was unable to convince the Court that that his arrest for Robbery was not supported by probable cause and that the knife recovered from his person violated his constitutional rights. His arrest and legal problems came to be because the defendant was just not thinking.

Back in January 2006, the defendant was on a subway platform urinating – the “boneheaded” move. Seeing that the defendant was violating both the Penal Law and New York City’s Administrative Code, an officer approached him and asked for identification. The defendant produced identification and later stated he was on parole. The officer then asked if the defendant had anything on him that could hurt him and the defendant produced a carpet knife. Alarmed, the officer then cuffed the defendant.

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