New York Criminal Lawyer BlogThere are countless arrests for Assault in the Third Degree, New York Penal Law 120.00, Assault in the Second Degree, New York Penal Law 120.05, and Assault in the First Degree, New York Penal Law 120.10, charges every year in New York City. An issue that arises incredibly frequently, and one that many criminal lawyers must contend, involves the misdemeanor crime of Assault in the Third Degree prosecutions. That question, a genuine legal one, is what amounts to “substantial pain” in the eyes of the New York criminal code? The reason that this is such a common issue is that one requirement for Assault in the Third Degree under the New York State Penal Law is that the victim suffered a “physical injury.” The law in New York is that, in addition to more obvious injuries like broken bones, only requires that an alleged victim suffer “substantial pain” as one kind of “physical injury.” Interesting for many reasons, not least of which is that pain is such a subjective thing, there is a legal threshold that the prosecution must meet. If your bone is broken, it’s either broken or it isn’t – it’s an objective standard. Pain is far more nebulous, and leaves a lot of room for interpretation both in terms of the person allegedly suffering as well as a judge who will review a criminal complaint for legal sufficiency.
Articles Posted in Violent Crimes
New York Criminal Contempt and the Protected Person’s Residence: Trying to Build a Case without a Victim
Orders or Protection are perhaps the most frequent basis for Criminal Contempt charges in New York. Such charges and criminal cases have become so routine, that the actual complaints charging a defendant with such an offense can become so pro forma as to become almost meaningless. However, the accusations in even the simplest, most routine criminal complaint are of critical importance to a New York Criminal Contempt arrest and case. One way in which a person can violate the terms of a typical Order of Protection is by going to the protected person’s home. This can even include standing outside the front door of the protected person’s apartment building. Irrespective of the context, it is possible that the protected person is not willing to cooperate with law enforcement, and did not want the defendant arrested in the first place. In that scenario, the prosecution will often attempt to rely on other witnesses to the crime, such as family, friends, bystanders or police officers. However, this can often create gaps and shortcomings in information and support for the allegations, which can manifest themselves in the criminal complaints themselves. This was precisely the situation presented to the trial Court in People v. Friedman, 48 Misc.3d 817 (Queens Co. Crim Ct. 2015).
What is a “Dangerous Instrument” for the Purpose of Weapon Possession, Assault and other Crimes in New York
The term “dangerous instrument” is used throughout the New York State Penal Law as an elements of certain criminal charges, typically violent felonies such as Assault in the Second Degree, New York Penal Law 120.05(2), but for other misdemeanor crimes such as Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(2). From the context of the criminal statutes in which the term is used, it is easy to understand that the term “dangerous instrument” is basically referring to the use of a weapon. But what qualifies as a weapon and how is it different from a “dangerous instrument?” Not a complete analysis of the law nor a substitute for a consultation with your criminal lawyer, the following helps answers this question.
NYC Arrest for Second Degree Assault and Second Degree Strangulation Ends in Dismissal of All Domestic Violence Charges in Court
Accused of strangling and slamming the complainant’s head into a radiator during a domestic violence dispute, a recent Saland Law PC client faced up to seven years in prison after being arrested for and charged with Second Degree Assault, New York Penal Law 120.05, and Second Degree Strangulation, New York Penal Law 121.12. Quite serious felony crimes in New York, the criminal lawyers and former Manhattan prosecutors at Saland Law PC had their hands full. Our client, who maintained his/her innocence, refuted the objectively serious allegations from the onset of his/her arrest. Hauled into an NYPD precinct, questioned by detectives and both booked and arraigned on these two felonies, the District Attorney’s Office asserted in the felony complaint that not only did our client strangle the complainant until he/she lost consciousness, but our client repeatedly slammed the complainant’s head into a radiator in the neighborhood of fifteen time, gouged at the alleged victim’s eyes and punched him/her in the nose. Not only did the complainant black out twice, but our client also allegedly brandished scissors while threatening to kill his/her domestic partner. Facing a minimum of two years in prison and a maximum of seven years incarcerated if convicted of either PL 120.05 or PL 121.12, the New York domestic violence attorneys at Saland Law PC expected the worst at arraignment, but what seemed to be an objectively horrific incident if true, slowly evolved into a case that was far from what it seemed.
New York Crimes Involving Houses of Worship and Religion: Felonies Against Churches, Mosques, Temples and Synagogues
Tension between religious groups and ignorance about others’ religious beliefs can manifest its head in very ugly and illegal ways. Sometimes it is violence against individuals who share a different religion while other times the target of these attacks are the physical houses of worship – synagogues, churches, mosques, temples and other places for prayer. Regardless, New York State gives the police and District Attorneys the tools to protect people rightfully practicing their religion and their respective places for prayer. Whether punishable as misdemeanors or felonies, the following blog entry briefly identifies and discusses some of the chargeable offenses that one could face upon arrest for damaging or defacing a house of worship or obstructing those who seek to exercise their freedom of religion.
Stalking in the Fourth Degree: New York Penal Law 120.45 and Creating a Reasonable Likelihood of Fear as Opposed to Fear Itself
Fourth Degree Stalking charges in New York are often very unique and fact-specific circumstances, which tend to give rise to a multitude of legal issues in the course of a prosecution. Prior relationships between defendants and alleged victims, unduly suggestive photo identifications, First Amendment protections, whether odd behavior truly rises to the level of criminal acts – these are just some of the issues that New York Stalking defense lawyers can find themselves confronting on behalf of a client in the context of Stalking charges. In the recent case of People v. Todd, 2017 NY Slip Op 51656(U) (2d Dept. 2017), the appellate court grappled with many of these issues.
Criminal Contempt in New York and the Identity of the Protected Person: What Role Does “Victim” Identity Have in a Criminal Complaint
Misdemeanor and Felony Criminal Contempt crimes and charges in New York, New York Penal Law 215.50 and New York Penal Law 215.51 respectively, often arises in the context of alleged violations of Orders of Protection. An Order of Protection is often issued by a Criminal or Family Court, and orders one person to refrain from contacting or being near a specific protected person or persons. In order to charge a person with violating an Order of Protection, the criminal complaint against that defendant must adequately allege the identity of the protected person, as well as what the defendant allegedly did that violated the terms of the Order of Protection. It may seem obvious that the prosecution must specify who the acts were committed against, and how they know that’s who it is, but a failure to make that allegation sufficiently was exactly the issue presented to the trial Court in People v. Pandiello, 54 Misc.3d 496 (NY Co. Crim Ct. 2016). This entry will address the significance of a protected party’s identity when prosecutors charge any one of New York Penal Law sections 215.50, 215.51 or 215.52.
Differentiating Aggravated Cruelty to Animals and Torturing Animals: NY AML 353-a[1][i] v. NY AML 353
Animal cruelty, whether in violation of a criminal statute or an otherwise intentional, callous and malicious act or acts, is simply horrendous. Whether one wears the hat of a District Attorney, criminal defense lawyer, judge or person who merely cares about the well-being of others living things, committing acts of violence and seeking to cause pain to animals is unconscionable. When you commit certain acts against animals, regardless of the size, age, or health of the same, your actions may be punishable as a crime pursuant to Agriculture and Markets Law 353 or 353-a[1][i]. These crimes, “Overriding, Torturing and Injuring Animals” and “Aggravated Cruelty to Animals” respectively, are class “A” misdemeanors and “E” felonies. While the former is punishable by as much as one year in a county jail, the latter has a potential sentence of up to four years in prison.
The issue addressed by this blog is to briefly describe the two offenses and differentiate the crimes.
Aggravated Harassment Arrests: Does a “Conditional Threat” Satisfy the “True Threat” Requirement of NY PL 240.30
While not always a domestic crime or family offense, arrests for Second Degree Aggravated Harassment in New York are fairly common in the marital, parent-child and intimate partner context. However, whether the partners have a sexual, physical or familial relationship is of no consequence. Business partners, friends and acquaintances can all run afoul of New York Penal Law 240.30. Simply, the relationship between the parties is fairly irrelevant.
If the nature of the relationship is irrelevant in a Second Degree Aggravated Harassment prosecution, what about how a threat is made? Does a clearly bogus threat violate the law irrespective of whomever the recipient may be? What about a joking threat? For that matter, what constitutes a “true threat?” This blog entry will not merely address this last question, but briefly examine whether a conditional threat is the same as a true threat for the purpose of PL 240.30.
Must a Firearm be Operable to Prove a Violation of Criminal Possession of a Weapon or Criminal Possession of a Firearm
Sometimes, if not routinely, a common sense or every day definition does not comport with those found in the New York Penal Law. Whether statutorily defined or established pursuant to legal precedent and decisions, what may seem clear to you may actually be quite different in a court of law. As your criminal lawyer can easily explain, in the eyes of the New York Penal Law, a loaded firearm does not require a bullet in the chamber, magazine, clip or, for that matter, physically in the gun at all. Instead, according to the law practiced in New York State criminal courts involving crimes such as Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03, a loaded firearm is one that is capable of being loaded, for example, with bullets or ammunition in the same case. Despite what a layperson may think, the law treats these types of “loaded” pistols, revolvers, and other firearms the same. In fact, while a loaded firearm can violate PL 265.03, an unloaded firearm is a distinct crime of Criminal Possession of a Firearm, New York Penal Law 265.01-b(1), carrying a significantly lesser potential sentence upon conviction.
Keeping this common sense-criminal code dichotomy in mind, what about operability? Does it matter in the eyes of the criminal law – and the prosecuting District Attorney – whether your gun can fire or discharge a bullet? Simply, is operability a mandatory element of any firearm crime found in New York Penal Law Article 265?