Violent Crimes

October 27, 2017

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?

September 24, 2017

Understanding the Difference Between Second Degree Criminal Possession of a Weapon and Criminal Possession of a Firearm

by Jeremy Saland

New York State has numerous laws and crimes regulating the use and possession of firearms and other weapons. Whether one is supportive of these statutes such as the Safe Act or not, these laws are some of the most rigid and strict in the nation. While they are all codified in New York Penal Law Article 265, the crimes vary from class “A” misdemeanors to class “B” felonies. There is little dispute that the most common of these offenses is Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(1). However, the types of per se objects that qualify as weapons, including gravity and switchblade knives, may be serious, but not as significant as their firearm related brethren. Of these crimes, those likely prosecuted the most in New York City and at both LaGuardia and JFK Airport in Queens are Second Degree Criminal Possession of a Weapon, New York Penal Law 265.03, and Criminal Possession of a Firearm, New York Penal Law 265.01-b. With that in mind, this blog entry addresses some of the most significant differences between two crimes that are somewhat similar and regularly prosecuted, but drastically different in their potential sentence and punishment upon a conviction.

July 31, 2017

Another JFK Airport Firearm Case Dismissed: Military Vet’s Arrest for Checking Pistol at Airport Gets ACD’d

by Jeremy Saland

Despite having top training and experience in what is the most stressful of life situations and the respect of his friends, neighbors and nation as a veteran of the armed forces, nothing prepared a recent Saland Law PC client for the overwhelming fear and concern that resulted from an arrest at New York’s JFK Airport after he tried to check a lawfully owned firearm. Yes, our client followed the TSA’s guidelines prior to arriving at the airport to fly to Colorado where a new job awaited the following morning. Yes, our client made sure the firearm was stored away in a hard sided and locked cases consistent with the airline’s regulations. No, he was not remotely prepared for what would happen next.

A criminal and violent person our client was not, but instead a regular person, no different than you or me, exercising what he believed was his Second Amendment rights to possess a firearm licensed in another state. Unfortunately, despite his far from nefarious intentions, an arrest by the Port Authority Police Department and prosecution by the Queens County District Attorney’s Office was the last thing our client expected when his biggest concern to date on a flight was whether he should book an isle or window seat or have pretzels or chips with his Coke. Not a commentary on the state of firearm laws, the NRA, or Congress’ plan to allow conceal carry permits to cross state lines, this blog entry addresses how good people can unintentionally run afoul of the law and the efforts necessary to protect their good name, liberty and future.

July 5, 2017

New York Second Degree Assault Felony Arrest Ends in Non-Criminal Disorderly Conduct Violation

by Jeremy Saland

Sometimes people make bad mistakes. Really bad mistakes. When youth is mixed with alcohol and testosterone is running through one’s veins, there is a often a toxic mix that can end in disaster. Unfortunately, a recent client who retained the New York criminal lawyers at Saland Law PC learned this the hard way after the NYPD arrested our client in Manhattan charging our client with Second Degree Assault, New York Penal Law 120.05, and other crimes. Our client, a recent college graduate, got into a confrontation with anther person at a NYC bar and allegedly attempted to smash a glass mug on the person’s head or face, but instead the glass was alleged to have bounced and shattered on the face of a nearby person. As a result, the unintended victim whom our client was alleged to have struck suffered significant injuries to his jaw structure and bone as well as numerous stitches to close the wound from the broken glass. Hauled off to court and arraigned before a judge on two separate counts of Second Degree Assault under the theory that a dangerous instruments was used to cause a physical injury and that it was our client’s actual intent to cause a serious physical injury, our client faced a potential indelible felony conviction and as much as seven years in a New York State prison. As unfortunate as those circumstances may have objectively been, the New York criminal defense attorneys and former prosecutors at Saland Law PC were able to secure not merely a downward departure from a felony to a misdemeanor, but our client was ultimately sentenced to a Disorderly Conduct, New York Penal Law 240.20. In the end, our client did not sustain a criminal record.

June 26, 2017

Free Speech vs. Aggravated Harassment: True Threats and New York PL 240.30

by Jeremy Saland

Second Degree Aggravated Harassment, New York Penal Law 240.30, is a fairly common misdemeanor crime charged by the NYPD and prosecuted by Assistant District Attorneys throughout the City of New York. A common Domestic Violence crime, but not always a “DV” offense, an arrestee can be prosecuted by means of a trip to Central Booking for up to 24 hours or a Desk Appearance Ticket whereby the accused merely spends a few ours in custody at the precinct of arrest. Simply, none of these scenarios is appealing.

Not a full analysis of all legal challenges and issues associated with NY PL 240.30, the question addressed by this blog entry briefly touches on what constitutes free speech and whether one communication can be grounds for committing Second Degree Aggravated Harassment if it is not a “true threat” of physical harm.

June 17, 2017

What is a Violent Crime in New York: Perception, Reality and NY CPL 70.02

by Jeremy Saland

“Violence” and “violent” are both ugly words. In the New York Penal Law and New York Criminal Procedure Law, offenses that can cause catastrophic injuries, traumatic physical and emotional wounds and even death are designated as violent crimes. While each one of us may have a subjective view of what violent means in the context our respective lives, New York Criminal Procedure Law 70.02 specifically defines and differentiates New York violent crimes from all other offenses. The relevancy as to what is a violent crime and what is an “ordinary” offense is critical to any criminal case as well as to how a criminal defense attorney manages his representation of a client. As a preliminary matter, sentencing for violent crimes differ from other offenses and for those who want to pursue the sealing of their criminal record for up to two convictions in accordance with New York Criminal Procedure Law 160.59, any violent offense precludes such a remedy.

May 2, 2017

Third Degree Assault and Obstruction of Breathing Circulation Dismissed: New York Criminal Lawyers Keep Client’s Record Clean

by Jeremy Saland

There is no better feeling than vindicating or exonerating a client who comes to you passionately asserting that the crime he or she is accused of is a crime that he or she did not commit. Yes, a complainant can make an allegation, but as we all know assertions made by one party are not always true. In most cases, because the police were not at the scene of an incident when you committed an alleged crime, the police officer or detective has to make a decision as to whether or not there is probable cause to make an arrest. Sometimes right in their determination and sometimes wrong, unfortunately for those who fall into the latter category of arrests, a pending criminal case can, and often does, disrupt your life as the matter winds through the New York City or other courts from arraignment to resolution. For a recent client defended by the New York criminal lawyers and former Manhattan prosecutors at Saland Law PC, what started off as a horrific evening in jail in Manhattan’s infamous “Tombs” waiting to see a judge, ended in the best possible manner. The District Attorney rightfully dismissed the crimes of Third Degree Assault, New York Penal Law 120.00, Criminal Obstruction of Breathing Circulation, New York Penal Law 121.11, Third Degree Menacing, New York Penal Law 120.15, and other offenses.

January 17, 2017

Second Degree Aggravated Harassment: Is Threatening to Hurt Someone Always a Threat to Cause Physical Harm

by Jeremy Saland

While I certainly do not condone violence, if you punch someone two or three times in the face with a clenched fist, bloody up their mouth and cause them to go to the hospital for a stitch or two, an allegation of Third Degree Assault would likely survive a criminal defense attorney’s motion to dismiss the charge of New York Penal Law 120.00(1). No, it doesn’t mean you will not or cannot have defense at trial (self defense for example), but from a legal perspective your conduct satisfies the elements of the crime almost on its face. Again, you may still try, but seeking a dismissal for legal sufficiency will likely be quite difficult. Despite this, not all crimes or criminal conduct is so clear. When a court has to examine words used, the intent of those words and the reasonable implications of your speech, the court has much more to juggle than determining your intent when you balled up your fist. This more difficult type of review happens with a greater degree of regularity in cases involving Second Degree Aggravated Harassment pursuant to New York Penal Law 240.30. A class “A” misdemeanor, Aggravated Harassment in the Second Degree is a crime often seen, but is not exclusive to, New York Domestic Violence cases. Where an arrest or allegation does not involve a familial or intimate relationship, the police will consider issuing the accused a Desk Appearance Ticket. Regardless of how a PL 240.30 case is prosecuted, words, and how they are reflected in a criminal court complaint, matter. This blog entry will address how words and statements that may seem threatening on their face may not in fact violate certain sections of the New York criminal law.

January 7, 2017

No Direct Proof I Caused Him Any Pain or Physical Injury: Circumstantial Third Degree Assault Arrests in New York

by Jeremy Saland

New York Penal Law 120.00 is New York’s misdemeanor Assault crime. As a result, any time a complainant or alleged victim makes an claim that another person struck, hit, punched, etc., him or her, prosecutors will routinely add Third Degree Assault to the list of crimes on a criminal court complaint. Similarly, Second Degree Harassment, New York Penal Law 240.26, is a violation that is not a legal “lesser offense,” but an offense nonetheless that Assistant District Attorneys will throw at the accused. Because PL 120.00, a misdemeanor carrying a sentence of up to one year in jail, is a gravely concerning charge whether by Desk Appearance Ticket or full on arrest and processing, it is imperative to do your best to challenge your arrest at every stage of the criminal process well before you on trial. One of the means to do so at the earliest stage is for your criminal defense attorney to file a motion arguing that the complaint against you is legally of facially insufficient to support the elements and crime of Assault in the Third Degree. On avenue your criminal lawyer may pursue is arguing that on the face of the complaint the prosecution failed to establish that as a result of your alleged actions, even if true, you caused the “victim” to suffer a physical injury and substantial pain.

January 2, 2017

Menacing with a Dangerous Instrument v. Weapon Possession in NY: Is an Operable Weapon Required for Both Crimes

by Jeremy Saland

It is well settled, and worth getting out of the way right from the start, that operability or a working weapon is generally an essential part of a Criminal Possession of a Weapon charge and crime pursuant to New York Penal Law Article 265. In substance, this means that if a person is accused of possessing a firearm illegally, one of the central elements it that the firearm – gun, pistol, revolver – actually be capable of letting off a shot. This is most easily confirmed through a ballistics test by the police department. If the firearm is incapable of shooting and the ballistics test confirms this failure, then the firearm will not qualify as a firearm for the purpose of certain sections of Criminal Possession of a Weapon. Should it not be operable, your criminal defense attorney would move for a dismissal of the Grand Jury indictment or the criminal court complaint.

While the above may seem great to an accused person, his or her criminal defense lawyer may have some bad news . Yes, an indictment or criminal court complaint may not be legally sufficient, for example, charging New York Penal Law 265.01, New York Penal Law 265.02 or New York Penal Law 265.03, but unless you are solely charged with possessing a weapon or dangerous instrument, does inoperability mean that all other crimes that you face that are associated with that weapon fail as well? The short answer is a resounding “no.”