New York Criminal Lawyer Blog

April 16, 2018

University Graduate Charged with Felony Computer Crimes and Burglary at Former College Offered Opportunity for Non-Criminal Disposition

When you are accused of and arrested for a crime or crimes you did not commit, fear can give way to paralysis. Whether you are charged in a New York City Criminal Court with felonies due to a misunderstanding that is based in false presumptions, or even if there is some truth but not full accuracy to each offense drafted in your felony complaint, you and your criminal lawyer have significant work ahead. Remaining frozen with fear is not a viable option.

Yes, you may have made a mistake and technically broken the law, but when all the facts are examined and evidence reviewed, the gravity of the allegations may not ultimately match the charges you face. Finding him/herself in a similar predicament, a recent Saland Law PC client had no choice but to “push back” in a thoughtful and respectful manner against such a felony complaint. Relying on both a legal sufficiency and mitigation defense, our client never lost sight of her/his exposure even if the the charged crimes were in part based on a wrongdoing unsupported by the evidence from a prosecutorial discretion perspective. After being charged with numerous crimes including Third Degree Burglary, Criminal Possession of Computer Related Materials, Computer Trespass and other crimes for allegedly accessing university computers and downloading certain materials, prosecutors agreed to offer a disposition that will ultimately give our client the opportunity to end the criminal case without a criminal criminal conviction dirtying his otherwise pristine criminal record.

April 12, 2018

Burglary and Attempted Assault Charges Dismissed: Felony Arrest Results in Disorderly Conduct

by Jeremy Saland

You’re were drunk at a bar. Maybe it was just a bit more than one bourbon, on scotch and one beer. What spirits you imbibed and the exact amount is fairly irrelevant. What matters, however, is that after your were told to leave you did so, but came back angry, red faced and as violent as were sloppy. Instead of holding your liquor like a man or woman, you behaved as if it was your first rodeo and whatever muscles and fighting experience you had (or didn’t have), you morphed into a half 1980s Arnold Schwarzenegger and half modern day UFC brawler. There is little doubt your hangover was epic, but not necessarily from the actual alcohol. When your dry mouth and throbbing head gave way to the realization you had marks on your wrists from being handcuffed and the floor you slept on was not in fact your bed, the reality of what occurred the night before began to set. Unfortunately for a Saland Law PC client, while the reality of the circumstances and arrest were far less graceful than the poetic story line shared here, the substance of the incident was quite similar. Initially charged with Third Degree Burglary, New York Penal Law 140.20, and Attempted Third Degree Assault, New York Penal Law 110/120.00(1), a bad night at a bar became a dark future of uncertainty in the New York criminal justice system.

April 7, 2018

Criminal Obstruction of Breathing or Blood Circulation: New York Penal Law 121.11

by Jeremy Saland

One of the more serious misdemeanor crimes you can be arrested for in New York, Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11(a) and New York Penal Law 121.11(b), is often charged in the context of a New York Domestic Violence arrest. Although a prosecution for PL 121.11 need not be domestic and familial in nature, regardless of whomever the alleged victim is if you are convicted in a New York City Criminal Court or a Justice Court somewhere in a municipality in Westchester, Rockland or any other county, the potential sentence is the same. That is, not only can you face up to one year in a county jail, but there are other penalties ranging from probation, anger management programs, community service and even fines. This blog entry will address the crime of Criminal Obstruction of Breathing or Blood Circulation not in terms of how courts interpret the law, but in the event you faced a jury or bench trial accused of PL 121.11, the jury instructions that will be read to the jury or followed by a judge in rendering a decision.

April 2, 2018

Photo Arrays and In Court Identification: Understanding the Law in New York

by Jeremy Saland

A new law has recently gone into effect in New York State which fundamentally changes a basic tenant of New York Criminal Practice. New York was the only state in the United States that still did not allow evidence of a prior identification made by a witness via a photo array to be introduced at trial. The thought by New York criminal lawyers has always been that presentation of a photo array to a jury would suggest that the defendant has been in trouble before – why else would they have a photo of him at the time of the identification procedure. This was deemed to be unfair to the defendant and improper. However, many felt that this concern was outdated, and New York decided to join the vast majority of other states in allowing for the prior photo array to be introduced at trial, but with very strict requirements on how the photo array is compiled and how the identification procedure is conducted. Strict requirements or not, this new allowance will have a wide-reaching and significant impact on criminal prosecutions in New York City, including Manhattan, Brooklyn, the Bronx and Queens, and all the way “upstate” to Rockland County, Westchester County, Putnam County and beyond.

March 29, 2018

New York Penal Law 120.14: Understanding the “Physical Menace” Element of a New York Menacing Arrest

by Jeremy Saland

Menacing in the Third Degree, New York Penal Law 120.15, is a B misdemeanor in New York punishable by up to 90 days in jail. “Menacing” refers to a crime in which a person intentionally places another person in fear for their physical safety by “physical menace.” The question then follows, “What is physical menace and how do New York courts interpret the Penal Law with regard to menacing?” The answer seems simple enough (but as your criminal lawyer can attest to, nothing in the New York Penal Law is so simple) – some physical act that is menacing. As generic and easy as that sounds, this leaves a good deal of room for interpretation. If a person calmly reaches into their pocket, it’s certainly a physical act, but is it menacing? The answer will almost always depend on the particular facts and circumstances of a given case.

March 24, 2018

Physical Injury Requirement for Misdemeanor Assault in New York: Substantial Pain and PL 120.00

by Jeremy Saland

There 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.

March 19, 2018

New York DWI and DUI Crimes: Difference Between Operating and Driving a Motor Vehicle

by Jeremy Saland

In New York, one requirement of a DWI Offense, such as Vehicle and Traffic Law 1192(2) or 1192(3), is that the person accused of drinking and driving was “operating” the motor vehicle. “Operating” is an interesting choice of words. It’s worth noting that the drafters of the statute deliberately chose this word rather than the more conversational “driving.” This may seem like an arbitrary distinction, but any competent DWI lawyer can tell you it is not. Add to the legal analysis the complexities of cases where the person charged with a DWI was never actually observed driving the car, you can see how things can get “hairy.” Having a criminal defense attorney with expertise in the area of DWI is critical in identifying the shortcomings and complexities of a DWI case and ensuring that your rights are protected along the way.

March 14, 2018

Corrupting the Government: A Brief Legal Primer of New York Penal Law Section 496

by Jeremy Saland

Crimes involving elected and other public officials can be some of the most complex and highly charged cases in the criminal justice system. Whether the accused is a local Spring Valley, Rockland County mayor or trustee, a New York City judge, or a New York State Senator in Albany, these cases can attract the public eye (and ire) as well as the full focus of a District Attorney’s Office like no other. Generally speaking, public corruption refers to situations in which a government official demands, accepts, solicits or agrees to accept something of value in return for their influence or power. Public officials charged with public corruption crimes not only face the penalties associated with a conviction, such as state prison or probation, but also embarrassment, humiliation, the end of a career or removal from office. In fact, recent legislation can also strip them of their pensions. Having a New York criminal defense attorney who is experience with the unique implications and political dynamics of these kinds of prosecutions, as well as the distinctive issues often presented at a trial on these charges, is essential.

March 9, 2018

NYC AC 19-190: Legal Sufficiency of New York City’s “Right of Way” Law

by Jeremy Saland

A law that without question has a good intent and goal, New York City’s Right of Way law, codified as Administrative Code 19-190, has seen its fair share of legal challenges by criminal defense lawyers throughout the City of New York. Although the law that has criminal sanctions does not apply to the State of New York, those drivers in Manhattan, Brooklyn, Bronx and Queens are within the law’s jurisdiction. A recent Appellate Term Decision from the Second Department did not ultimately address the constitutionality of NYC Admin. Code 19-190, but whether a bare minimum complaint reciting the statute with limited factors sufficiently and legally supports this non-New York Penal Law crime.

March 4, 2018

NY PL 145.00 v. NY PL 145.05: Monetary Threshold for Felony Criminal Mischief Charges in New York

by Jeremy Saland

It may be on a non-violent crime, but an arrest for Criminal Mischief in New York can be either a misdemeanor or a felony. What should be of significant concern to anyone charged with a New York Penal Law Article 145 crime is how easily a Fourth Degree Criminal Mischief, New York Penal Law 145.00, can morph into a Third Degree Criminal Mischief, New York Penal Law 145.05.

What property or belongings of any significance exist in our lives these days that are worth less than $250. If your friend broke something that belongs to you in the course of an argument, is there anything worth less than $250 that would prompt you to call the police? A used iPhone 7 that is more than a year old runs around $400 on eBay. Moreover, is there anything of any importance that costs less than $250 to repair? What this means is that, in New York, almost anything a person intentionally breaks that doesn’t belong to them can result in a felony charge punishable by up to 4 years in state’s prison, even with no prior criminal record.