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Articles Posted in White Collar Crimes

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Just as different facts and evidence can result in different arrests, charges and outcomes, different courts can analyze similarly charged cases and reach different conclusions as to legal sufficiency. In the realm of fake identification cases in New York, this could not be more accurate. Very briefly, you are guilty of Criminal Possession of a Forged Instrument in the Third Degree, New York Penal Law 170.20, if you know that the instrument you possess is fake and fraudulent, it is fake and fraudulent and that you possess it with the intent to deceive another (review PL 170.20 for the actually legal language). The lowest of the Criminal Possession of a Forged Instrument crimes, PL 170.20 is nonetheless a misdemeanor that is both punishable by as much as one year in jail and is not expunged from your criminal record upon conviction. That is correct. Having a fake ID or drivers license whether its to buy beer or something much more serious such as possessing a fraudulent passport, the crime is at minimum a misdemeanor and can be prosecuted as a felony Second Degree Criminal Possession of a Forged Instrument.

An issue that often pops up in arrests for fake IDs, drivers licenses and passports, is how the prosecution can prove each of these elements beyond a reasonable doubt from the knowledge to the intent to deceive another person where the acts or statements by themselves do not reflect this knowledge or intent. In a recent blog entry I addressed People v. Hightower where the court concluded that by the nature of the particular fake military ID that had the defendant’s picture and depicted a computer chip instead of an actual one, the People satisfied their burden in establishing the defendant’s knowledge and intent to deceive another. Why else would one have such an identification? Fortunately, however, not all “hope” is lost. A similar case and decision ended up on the other side of the issue in finding that a fake international drivers license by itself did not satisfy the legally sufficient threshold.

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A fake identification is grounds for arrest whether you’re a college student at Columbia or NYU, a high school kid visiting New York City or you are a foreign national in need of some form of ID to work. Simply, there is nothing found in New York Penal Law 170.20 or New York Penal Law 170.25 that mandates an evil intent to perpetrate a terroristic or immigration fraud crime. While prosecutors in a respective District Attorney’s Office and the NYPD or local police department may pursue a criminal case however they deem fit, as a preliminary matter whenever you have a fake passport or drivers license the crime technically is a class D felony pursuant to PL 170.25. As such, a conviction not only allows for up to two and one third to seven years in prison, but a felony conviction is life altering. Fortunately (relatively speaking), in the scenario of a young man or woman who may have that ID for the purpose of going to a club or bar, as opposed to some other nefarious reason, the crime is often prosecuted through a Desk Appearance Ticket in New York City whereby the accused must return at a later date to face arraignment with their criminal lawyer on the charge of PL 170.20, a misdemeanor.

Putting aside whether a Criminal Possession of a Forged Instrument arrest is prosecuted as a felony for a second degree crime or as a misdemeanor for a third degree offense, what are the elements that must first be established with probable cause and ultimately beyond a reasonable doubt? Following the language of the misdemeanor PL 170.20 that is the baseline of these crimes prior to any felony enhancements, the language is as follows: You are guilty of Third Degree Criminal Possession of a Forged Instrument when you have knowledge that it is forged and you have the intent to defraud, deceive or injury another person, you possess or utter that particular forged instrument.

This blog entry will further analyze the crime of PL 170.20 in the context of a fake identification and the thresholds that much be reached by the District Attorney’s Office to secure a conviction.

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“Hate” is a relative term in this context, but its fairly reasonable to assert the NYPD (or any police department), District Attorneys and local, city and Supreme Court criminal judges hate Identity Theft. Its not such a great leap for a New York Identity Theft attorney, an accused or a bail bondsman to make. What is there to like about it? It costs New York City, New York State and the United States, both privately and governmentally, hundreds of millions or billions of dollars? And no, merely because you are accused of a New York Identity Theft crime amounting to merely a few hundred or a few thousand dollars will not give you a pass. To that end, one recent Saland Law PC client is likely ecstatic that multiple stupid mistake did not land the client in prison for a minimum of two to four years. Not only was this client arrested in Brooklyn (Kings County) and facing indictment for multiple counts of Second Degree Identity Theft (New York Penal Law 190.79), Second Degree Forgery (New York Penal Law 170.10) and a handful of misdemeanors including Petit Larceny (New York Penal Law 155.25), Fifth Degree Criminal Possession of Stolen Property (New York Penal Law 165.40) and Third Degree Identity Theft (New York Penal Law 190.78), but this client was previously convicted of Third Degree Grand Larceny (New York Penal Law 155.35) thirteen months earlier in Manhattan (New York County). While the New York criminal lawyers and Identity Theft attorneys at Saland Law PC did not represent the client on prior the felony conviction, due to this conviction any new felony plea would require a minimum of two to four years in prison and a potential maximum of three and one half to seven years in prison. Due to the diligence and advocacy of Saland Law PC, the crash and burn finality as mandated by law upon a conviction was completely avoided.

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Every which way you look, one prosecutorial agency is enforcing a Federal or State law that forbids, prevents or punishes illegal gambling. It may be a lucrative business if you don’t get caught, but as soon as you do it is not uncommon to find yourself charged with Money Laundering and Enterprise Corruption crimes that can take a relatively lesser misdemeanor or felony to a class B felony punishable by up to eight and one third to twenty-five years in prison. While this blog entry will not address those more significant collateral crimes associated with gambling rings that touch New York (even if the accused reside elsewhere), this article will review the critical difference between being a “player” and “promoter” when charged with New York Penal Law 225.30, Possession of a Gambling Device and how you and your criminal defense attorney may chose to attack the gambling related charges.

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The crime of Commercial Bribe Receiving in the Second Degree carries severe consequences including a year in jail and the decimation of your career. It should go without saying that it is crucial for the prosecution to prove every element of the crime charged whether you have been arrested in Manhattan, Brooklyn, Queens or anywhere else in the State of New York. In order for a judge or jury to convict you of Commercial Bribe Receiving in the Second Degree (New York Penal Law 180.05) the State must prove that an employee, agent or fiduciary, without consent of his/her employer or principal, solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his/her conduct in relation to his/her employer’s or principal’s affairs. (Penal Law 180.05) The key to this crime is not the payment of money but rather the agreement or understanding under which the alleged bribe receiver accepts or agrees to accept a benefit.

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New York’s “Blue Sky Law,” The Martin Act, prohibits “[a]ny fraud, deception, concealment, suppression, false pretense or fictitious or pretended purchase or sale” in “the issuance, distribution, exchange, sale, negotiation or purchase … of any securities or commodities.” Codified by New York Business Law section 352, the Martin Act packs a punch in terms of punishment and consequences. Because of this, one of the critical components to any defense is to determine whether prosecutors can prove beyond a reasonable doubt that you violated each element  and every of the crime or the offenses that are routinely prosecuted alongside the Martin Act. As addressed in a previous blog entry discussing the requisite intent to defraud (or lack thereof in Martin Act cases), courts have given prosecutors more room to prosecute securities crimes as opposed to confining or restraining them. This blog entry will address not whether one must have an intend to defraud as analyzed in the earlier entry, but the latitude given to law enforcement in defining what constitutes fraud.

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Its not likely that either New York State prosecutors or New York criminal defense attorneys see many of these types of offenses as they are more commonly prosecuted by Federal prosecutors, but New York State has a government defrauding statute on the books. Codified in New York Penal Law 195.20, it is a felony crime to defraud the government. Defrauding the Government is a Class E felony. Like all felonies of this severity or level, a conviction for this offense does not carry a mandatory term of incarceration, but due to the nature of the crime it certainly would not be surprising for a judge to sentence a convicted defendant to prison. If that happened, the exposure an accused would face would be as great as one and one third to four years in a New York State prison.

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Whether prosecuted as a felony or misdemeanor, the crimes of Forgery and Criminal Possession of a Forged instrument are offenses in the New York Penal Law that carry significant terms of jail and imprisonment ranging from one year in jail to fifteen years in prison. Sometimes defenses to a Forged Instrument or Forgery arrest are fairly straight forward for your criminal lawyer or fraud defense attorney while other times articulating a defense is quite difficult. At bottom, irrespective of whether you are charged with the misdemeanor crimes of New York Penal Law 170.05 (Forgery in the Third Degree) or 170.20 (Criminal Possession of a Forged Instrument in the Third Degree), or you indicted for the felony crimes of 170.10 (Forgery in the Second Degree) or 170.25 (Criminal Possession of a Forged Instrument in the Second Degree), prosecutors must prove beyond a reasonable doubt that you had the intend to defraud.

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The Martin Act, New York General Business Law 352 and related subsections, is the hammer in a prosecutor’s toolbox to investigate and prosecute securities fraud in New York State. The New York State Legislature passed this “blue sky law” to regulate fraudulent securities transactions and to provide the New York Attorney General (a prosecutor with jurisdiction anywhere in the State of New York), with grounds to bring a civil law suit against perpetrators of financial fraud. In 1932 the act was expanded to allow the Attorney General to bring criminal charges, and request criminal sanctions, against perpetrators of financial fraud.

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Having the FBI knocking on your door at 6 in the morning can be the most frightening experience in your life.  They enter, start searching through your most personal belongings, take your papers, records, phone and computers and leave.  This is what happened to one of Saland Law’s recent clients (we’ll call him “Dave” – not his real name).  He reached out to us a short time afterwards, when we put our experience and knowledge to work.  After some initial investigation, we discovered that the U.S. Attorney’s Office for the Southern District of New York was investigating an international computer hacking ring and that they believed Dave was involved.  They initially intended on charging Dave with the serious felony of Computer Hacking under Title 18, United States Code, Section 1030(a)(i), which carries a potential sentence of 10 years in federal prison.

After a diligent and thorough examination of the evidence and Dave’s background, it became clear that Dave was not an international computer hacker.  Rather, Dave was a down on his luck twenty-something, who had a troubled past.  Dave had a difficult upbringing, growing up in a violence-filled household, child welfare agents constantly around.     Dave witnessed abuse of his mother by his father and his sister’s suicide attempt.  Dave sunk into deep depression.  He spent more and more time and energy on the computer, eventually suffering an addiction to computer gaming and usage.  Dave hit rock bottom when he wandered onto a website that promoted computer hacking – it described how to do it, and sold software that enabled the hacking.  In a weak moment, Dave purchased the software and began to use it to look at other’s computer files, including his girlfriends.  Dave wasn’t proud of his conduct, but because of his addiction, he couldn’t help himself.  Dave didn’t try to steal credit card information, or his victim’s identification.  Rather, he was only falling deeper into his computer addiction. Continue reading

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