Violent Crimes

December 1, 2008

A Legal Leg to Stand On? Plaxico Burress Shoots Self in Thigh – Manhattan DA to Charge with Criminal Possession of a Weapon

According to the media, New York Giants All Pro wide receiver Plaxico Burress is turning himself in to the New York City Police Department for shooting himself in the leg this past weekend in Manhattan. As of now, it appears that he will be charged with Criminal Possession of a Weapon, a class “C” felony, punishable by a minimum of 3.5 years in state prison to a maximum of 15 years.

Unfortunately for Mr.Burress, the criminal law and consequences have changed significantly in recent years. The “old” law required that prosecutors prove not only that you possessed a loaded firearm (handgun, pistol, etc.), but that you had the intent to use it unlawfully against another. Now, the mere possession of a loaded firearm outside your home or place of business constitutes the same level crime. That is, possession alone is a “C” felony and the prosecution does not have to prove in any way that you, or in this case Plaxico Burress, intended to use that gun unlawfully against another person. Only 2-3 years ago, under the same set of facts, Mr. Burress would likely have been charged “only” with a “D” felony punishable by a minimum of 2 years in state prison and a maximum of seven years if the prosecution could not establish that the gun was possessed with the intent to use it unlawfully.

November 12, 2008

Nixzaliz Santiago, Mother of Nixzmary Brown, Senteced to 43 Years State Prison

by Jeremy Saland

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.”

October 28, 2008

NY Criminal Defense – Criminal Possession of a Weapon: Elevating NY Penal Law 265.01 to 265.02

by Jeremy Saland

Criminal Possession of a Weapon in the Third Degree, a “D” Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to “elevate” weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That’s right…any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

October 20, 2008

NY Criminal Defense – Possession of Revolver or Pistol Ammunition in NY: A Crime Even Without a Gun

by Jeremy Saland

You are carrying .22 caliber bullets in Manhattan or .38 caliber rounds in Brooklyn, but you don’t have a permit to possess a handgun or pistol that utilizes the ammunition or to possess any firearm at all. Well, you may not have violated New York State Penal Law for Criminal Possession of a Weapon, but you are in violation of the New York City Administrative Code.

According to Administrative Code Section 10-131(i)(3) it is unlawful for any person not authorized to possesses a pistol or revolver within the city of New York to possesses pistol or revolver ammunition. Similarly, pursuant to Administrative Code Section 10-131(i)(4) it is unlawful for any person to authorized to possess a pistol or revolver of a particular caliber within the city of New York to possess pistol or revolver ammunition of a different caliber. Both of these Administrative Code violations are punishable as misdemeanors.

September 26, 2008

Joseph Petcka: New York Criminal Jury Hangs on Criminal Charges

by Jeremy Saland

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.

July 23, 2008

Resisting Arrest in NY: Conviction if Underlying Crime Dismissed?

by Jeremy Saland

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.”

July 13, 2008

Attempt to Commit a Crime in New York: Murder

by Jeremy Saland

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.

June 17, 2008

Mount Kisco Police Officer George Bubaris: Not Guilty of Manslaughter and Criminally Negligent Homicide

by Jeremy Saland

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.

June 9, 2008

Brooklyn Robbery Charge: Simple Mistake Leads to Huge Consequences

by Jeremy Saland

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.

June 3, 2008

Not Guilty of Assault: Manhattan Case of Christoper Carter and Stuart Sugarman

by Jeremy Saland

Christoper Carter was acquitted in New York County (Manhattan) Criminal Court after a jury found the prosecution did not prove he committed the crime of Assault in the Third Degree, a misdemeanor punishable by up to one year in jail, beyond a reasonable doubt.

While many people know the basics about this story, the case is centered around an altercation at a sports club. Stuart Sugarman and Christopher Carter were both members of Equinox, a gym in New York. During a spin class Sugarman became loud and apparently rude. To quiet him down, Carter allegedly lifted Sugarman’s bike and /Sugarman hit the wall, fell to the floor, and damaged discs in his back. As a result of this incident, the police and Manhattan District Attorney’s Office charged Carter with Assault in the Third Degree.