New York Criminal Lawyer BlogThere are “ugly” crimes and there are “uglier” crimes in the State of New York. Any offense that involves a threat of or actual violence falls in the latter category. Because of this, when crimes such as Assault, Stalking and Menacing are the foundation of an arrest in New York City or anywhere in the State of New York, it is critical to attack the allegation in any means legally permissible. Whether by challenging the evidence or procedure or mitigating conduct, should you not exercise your rights you may find yourself convicted of a stigmatizing crime. Addressing the offense of Menacing in the Third Degree (information about other Menacing degrees or the crimes of Assault and Stalking is available on the New-York-Lawyers.org website and this blog), one normally thinks of a scary looking man brandishing some sort of weapon or dangerous instrument making threats of physical violence accompanied by some sort of a demand. Because there is no stereotypical criminal case of New York Penal Law 120.15, every criminal defense attorney must be prepared to analyze any allegation, set of facts or evidence to ascertain whether or not the complaint against his or her client is legally sufficient and whether or not proof exists beyond a reasonable doubt.
Articles Posted in Violent Crimes
New York Menacing Crimes: Does a Threatening Photograph Displaying a Weapon Violate NY PL 120.14
There are many violent crimes in the New York Penal Law that may not be considered felonies, but are extremely serious crimes nonetheless. Menacing in the Second Degree, New York Penal Law 120.14(1), is one such crime. Right or wrong, better or worse, the NYPD or other local law enforcement and police departments will err on the side of caution and make an arrest even if you later have a viable defense to challenge the accusation. Punishable by a sentence of up to one year in jail and exacerbated by many additional collateral issues that you and your criminal lawyer will discuss, the law requires that to be guilty of Second Degree Menacing, you must “intentionally place[] or attempt[] to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a… dangerous instrument…” Well, it seems fairly clear. If you threaten someone in this manner, you are guilty of this crime. But an interesting question is as follows. What if you do not behave in this manner in front of the intended or alleged victim, but instead share or provide a photograph depicting this menacing behavior? Can that photograph constitute a violation of PL 120.14? Fortunately, a recent court decision addressed this issue. In People v. Stone, 43 Misc. 3d 705 (2014) a court addressed whether a picture of the defendant, in a ski mask and holding a knife, was sufficient to satisfy the display requirement of Menacing in the Second Degree. Continue reading
“Touching” vs. “Holding”: The Minimum Threshold for Violating New York Penal Law 121.11 Obstruction of Breathing and Blood Circulation
Criminal Obstruction of Breathing and Blood Circulation is a serious charge. As criminal lawyers who have handled these cases, we can say without hesitation that here is simply no other way to view the offense. In the State of New York, a defendant commits the crime of Criminal Obstruction of Breathing and Blood Circulation when, as defined in New York Penal Law 121.11(a), he/she, with intent to impeded the normal breathing or circulation of the blood of another person, he/she applies pressure on the throat or neck of such person. Yes, that is it. Nothing more. The definition of this crime leads to an interesting issue. That is, how long must a defendant hold pressure on the victim’s throat to commit a Criminal Obstruction of Breathing and Blood Circulation offense (Penal Law 121.11) and how much evidence must the People (Assistant District Attorneys) provide for their case to survive a motion to dismiss on facial sufficiency grounds. In the case of People v. Reyes, 2014 NY Slip Op 50789 (2014), a New York City Court examined these issues.
Is Third Degree Assault (NY PL 120.00) a “Lesser Offense” of Second Degree Strangulation (NY PL 121.12)
Third Degree Assault, New York Penal Law 120.00, is a relatively straight forward offense. Although the application and interpretation of the law always has its wrinkles, one is guilty of Assault in the Third Degree when one intentionally, or recklessly, causes physical injury to another. Physically injury is generally identified as some form of substantial pain. A class “A” misdemeanor with a sentence of up to one year in jail, PL 120.00 is the lowest of the violent New York Assault type crimes. A much more serious offense handled by prosecutors and criminal attorneys that is punishable by as many as seven years in prison, Second Degree Strangulation, New York Penal Law 121.12, occurs when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11, and thereby causes stupor, loss of consciousness or any physical injury.
Facial Insufficiency & Dismissal: When NY Criminal Complaints Charging Reckless Endangerment & Criminal Obstruction of Breathing or Blood Circulation Meet the Minimum Legal Standard
Facial Sufficiency is a vital consideration in the field of Criminal Law (one of many, of course). If a misdemeanor information (some people call it a complaint) is facially insufficient then the misdemeanor information is considered jurisdictionally defective and should be dismissed. In order for a misdemeanor information to be facially sufficient the misdemeanor information must, when viewed in a light most favorable to the People (the District Attorney or prosecution), contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged. CPL §§100.15[3]; 100.40[1][b] and [c].
New York Third Degree Assault: Legal Sufficiency and Prosecutions of NY PL 120.00 with an Uncooperative Victim
I the realm of criminal prosecutions in New York City’s Criminal Courts and New York State’s local Town and Village Courts, one of the most common offenses that are pursued by police and prosecutors is the crime of Third Degree Assault pursuant to New York Penal Law 120.00. This crime can be quite a serious offense even where the degree of an injury is well below the felony threshold. For example, one can punch another person square in the face and break that person’s nose or strike someone hard enough to cause an ugly laceration and welt, but the crime will remain a misdemeanor Assault int the Third Degree. Whether that injury sustained causes a bloody hemorrhage or only a small bruise, as long as there is physical injury and substantial pain the accused will face up to one year in jail on an NY PL 120.00 arrest or conviction (NOTE: In New York City – Manhattan, Brooklyn, Queens, etc., first time offenders may be issued a NYC Desk Appearance Ticket (DAT) when arrested, but the charge and potential punishment is no less grave).
Due to the direct and collateral consequences to an arrest for PL 120.00 even without a conviction, it is critical to collect evidence and move forward with your defense at the beginning of the process. While one way your criminal lawyer will pursue your defense may be through speaking with witnesses (even the complainant) or securing videos or photographs, another means of attack is through the charging document (called the criminal court complaint or criminal court information). The following legal decision addresses one such attempt to challenge the legal sufficiency of an information while also shedding some light on how prosecutors can pursue criminal cases without the assistance of the victim him or herself.
Jury Finds Saland Law PC Client Not Guilty After Trial: Client Exonerated of Knife Point Kidnapping, Unlawful Imprisonment & Stalking
All too often, criminal defendants face a rightful presumption of innocence coupled with a wrongful assumption of guilt. The greater the severity of the arrest, indictment or allegation, the stronger the negative inference. Although this should not be the case, as New York criminal lawyers this is the reality that we see many of our clients face. In fact, for one particular Saland Law PC client, this presumption-assumption issue followed him for a year after he was arrested and indicted for Kidnapping in the Second Degree (New York Penal Law 135.20), Unlawful Imprisonment in the First Degree (New York Penal Law 135.10) and Stalking in the Second Degree (New York Penal Law 120.55). Fortunately, however, with diligence and hard work, our client’s presumption of innocence prevailed and the assumption of guilt was put to rest after a jury acquitted our client after trial of Kidnapping, Stalking and Unlawful Imprisonment.
On its face, the allegations against our client were horrific. It was alleged that our client kidnapped his ex-wife at knife point after he used a ruse to deliver her furniture from their former apartment to her home that she shared with her mother and daughters (from a different relationship) on her birthday. The complainant claimed that she had no idea our client was going to move her property, did not have plans with him on her birthday, had no contact with him other than responding to his unwanted texts and calls, and only got inside his vehicle after threats of violence were made. Doubling down, the complainant asserted our client brandished a knife and threatened to kill the complainant as well as her daughters and mother. Driving up to Bear Mountain, the complainant contended she only escaped after convincing our client to go to a diner where she then reached out for help from waitstaff. Compounding the accusation, numerous waitstaff stated that they heard our client repeat the threat to kill the complainant’s mother. Complicating matters further, upon arrest zip ties, duct tape and a rope were recovered form our client’s car. No knife was ever recovered.
New York Penal Law 120.05: Can One Punch Lead to a Felony Second Degree Assault
On numerous occasions I have addressed how prosecutors can overcharge crimes or think out of the box to get to a particular result. Sometimes it is warranted and other times it is not. Similarly, sometimes the end result is proper while other times it is a violation of the law. One of the areas where prosecutors get creative is in the arena of New York weapon crimes. More specifically, when an accused uses a dangerous instrument. Not necessarily unique to this area of law, one of the reason why New York criminal lawyers often see Assistant District Attorneys handling cases in this way is because if a defendant commits a misdemeanor Assault (Third Degree Assault pursuant to New York Penal Law 120.00) and does so with a dangerous instrument, the crime can be kicked up to a felony assault (Second Degree Assault pursuant to New York Penal Law 120.05). Similarly, even if a defendant acts recklessly and causes a serious physical injury with a dangerous instrument (not intentionally) felony conduct could be prosecuted. Why does all of this matter? Not only is a felony a more serious crime in terms of a criminal record, but a misdemeanor offense is punishable by as much one year in jail while the felony crime is punishable by up to seven years in prison.
In People v. McElroy, 55-2013, NYLJ 1202644557795 (Sup., Kings Ct’y Decided February 20, 2014) the defendant, who was intoxicated at the time, got into a fare dispute with a taxicab driver. The defendant paid the fare with a credit card, then exited the vehicle without signing the credit card receipt. The driver also exited and blocked defendant’s movement with outstretched arms insisting that defendant sign the receipt. Evidence at trial showed that defendant refused to sign and instead punched the driver in the head once or twice. The driver fell backwards, hit his head on the concrete sidewalk, and sustained fractures and severe brain injury. At the time of this decision, the driver was on life support and unresponsive. The jury convicted defendant of Assault in the Second Degree, by recklessly causing serious physical injury by means of a dangerous instrument (Penal Law §120.05(4)). The defendant appealed.
Second Degree Kidnapping: Analysis of an Attempt to Commit New York Penal Law 135.20
The crime of Kidnapping, New York Penal Law 135.20, is one of the worst “sounding” crimes one can be accused of. Most people, whether you are a prosecutor, criminal lawyer, juror, teacher, carpenter or justice of the criminal court (or any professional in between), instinctively think the worse when such an accusation or arrest is made. Sometimes the evidence supports such an assumption while other times it clearly does not. Regardless, as I routinely note, an arrest is not proof of guilt beyond a reasonable doubt. That burden of proof always remains with the District Attorney. Commentary behind us, the following entry helps further define and decipher the law of Second Degree Kidnapping, New York Penal Law 135.20, and its various elements.
In People v. Denson, NYLJ 1202643604584, (App. Div., 1st, Decided February 18, 2014), the Appellate Division wrestled with the crime of Attempted Kidnapping in the Second Degree. Here, the facts established that defendant, a known (and formerly convicted) pedophile, made several calculated efforts to lure the victim, a 10-year old girl, to his apartment. On several occasions, the defendant asked the victim out to get ice cream, to go ice-skating, and to the movies. However, it was defendant’s insistence that the victim go to his apartment after he offered her his keys that gained the attention of the mother, who phoned the police. The lower court convicted the defendant of Second Degree Attempted Kidnapping; the defendant appealed.
Revenge Porn in New York: Aggravated Harassment, Dissemination of an Unlawful Surveillance Image or any other Crime?
“Revenge Porn” has entered the vernacular of every day New Yorkers and it appears as if it is here to stay. With the proliferation of social media, Revenge Porn, and the pictures or videos that it consists of, reeks havoc on the people who are reflected or portrayed in the online imagery. While there very well may be civil avenues to hold perpetrators of Revenge Porn accountable for their postings and sharing, what, if any, criminal remedies exists? Is there a Revenge Porn statute or crime in the New York Penal Law? For better or worse, the answer is no, but does that mean those who post Revenge Porn are free from arrest or prosecution in New York City or New York State?
In People v. Barber, 2013NY059761, NYLJ 1202644738008, at *1 (Crim., NY, Decided February 18, 2014), the defendant allegedly posted nude photographs of the complainant, his former girlfriend, to his own Twitter account and shared the same with his ex-girlfriend’s employer and sister. This was done without the complainant’s consent. As a result of this conduct, the New York County (Manhattan) District Attorney’s Office charged the defendant with Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1)(a), Dissemination of an Unlawful Surveillance Image in the Second Degree, New York Penal Law 250.55 and Public Display of Offensive Sexual Material, New York Penal Law 245.11(a). The defendant brought a motion to dismiss all charges. Although the Court found that defendant’s conduct was despicable, it nevertheless determined that the defendant did not violate any criminal statute for which he was charged.