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Sometimes good people do terribly bad things, regular people make incredibly poor choices, and bad situations find everyday people who did nothing much at all. No matter how they got there, when the handcuffs are locked around their wrists and a Grand Jury hands down an indictment, they face the same dire consequences within the confines of New York’s criminal justice system.

Regardless of the bucket a recent Saland Law client could point to, he found himself in desperate need of an experienced criminal defense lawyer. Facing the Class “D” violent felonies of Second Degree Assault, Penal Law 120.04, and Second Degree Strangulation, Penal Law 121.12, and a presumptive mandatory two to seven years in prison, our client, a professional working for a large organization, knew his life, liberty, and career were all in jeopardy.

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So, you were arrested at the Phish concert outside New York’s Madison Square Garden after NYPD police officers grabbed you with a balloon allegedly filled with nitrous oxide. Maybe you did not even have a balloon in your hand, but were simply next to the nitrous tank when the police handcuffed and placed you under arrested. Though you may have “lucked out” and received a Desk Appearance Ticket or DAT instead of spending the night and early morning in Manhattan’s Central Booking, either of which is a far lousier option than getting lost in “Tweezer” or “You Enjoy Myself” at MSG, now you find yourself in another arena – the criminal justice system. So, with DAT in one hand and a wasted concert ticket in the other, the question remains: what are the crimes of Public Health Law 3380, Inhalation of Certain Toxic Vapers or Fumes, and Penal Law 270.05, Unlawfully Possessing or Selling Noxious Material, and since when did the NYPD start arresting concertgoers for these crimes?!

The following blog entry can’t tell you why the NYPD changed its tune to start enforcing these laws, but will break down the crimes of PHL 3380 and NY PL 270.05, their elements, the penalties, and some defenses, to these crimes.

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According to reports, NYC is once again under siege from a wayward construction crane that collapsed from its perch near Hudson Yards. Though six people were injured, there were fortunately no deaths nor serious injuries after the crane caught fire, broke down, and cascaded towards the street below. Carrying sixteen tons of concrete, the crane, according to the NY Post, appears to be owned by the Lomma Crane Company. The now deceased James Lomma was previously indicted for Manslaughter and other crimes after a crane he owned crushed a man in 2008.  A Manhattan jury acquitted him of those charges in 2012.

With the above in mind, beyond potential civil exposure, could the crane company owner face criminal charges for this second Lomma crane accident? Without knowing what the evidence will reveal – the cause of the fire, the condition of the crane, whether the crane had been inspected and up to date with repairs, how it was secured, etc. – one cannot say whether the NYPD would arrest a proprietor and the Manhattan District Attorney’s Office would pursue criminal charges. However, what crimes could a crane owner or operator face in light of the fact that despite there being no deaths or serious injuries, a multi-ton crane could have wreaked havoc and worse on New Yorks below.

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Usually, one of the first questions clients ask me in my capacity as a criminal defense lawyer after they have  been arrested by the NYPD or Port Authority Police for possessing a loaded firearm is, “What is the penalty is for carrying a gun in New York City?” and “How long do you go to jail for having a gun in New York even if you have a conceal carry permit in [Texas, Florida, North Carolina, Connecticut, Virginia…]?”. While a conviction for Criminal Possession of a Weapon in the Second Degree, Penal Law 265.03, can saddle you with a sentence for as long as 15 years in prison, with a compulsory minimum of three and a half years if the firearm is “loaded” (bullets needn’t be in the weapon for it to be “loaded” as a matter of law”), a judge can hand down punishment of up to four years behind bars for Criminal Possession of a Firearm, Penal Law 265.01-b(1), even when there is no ammunition at all.

With this type of exposure in mind, Saland Law is incredibly grateful, though not as much as our client after her arrest for Penal Law 265.03, prosecutors took the time to truly review what I presented, examine our client’s case, and advance the matter for dismissal in the interest of justice. While a non-criminal Disorderly Conduct violation or Adjournment in Contemplation (ACD) of dismissal after six months would have been considered a “win” assuming there was no legal impediment to the case, such as in cases I have handled in Queens County where unknowing travelers checked their firearms with the TSA at either JFK or LaGuardia Airport, and downward departures and re-pleaders to non-criminal pleas in other counties such as Manhattan and elsewhere, Brooklyn prosecutors went the extra mile to make an objectively just decision on a case that appeared ugly if one did not do one’s “homework”.

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Whether or not law enforcement shocked Rex Heuermann when they arrested the architect outside his midtown Manhattan office for murdering the “Gilgo Four”, Suffolk County prosecutors’ application to keep the alleged “Long Island Serial Killer” behind bars without bail tells a damning and compelling narrative of the beachside homicides. Called the “Manorville Butcher” and “Craigslist Ripper” in the media, a Suffolk County Grand Jury indicted Heuermann, a resident of Massapequa, on three counts of both First and Second Degree Murder for the deaths of Melissa Barthelemy on or about July 10, 2009, Megan Waterman on or about June 6, 2010, and Amber Costello on or about September 2, 2010. Although Suffolk County District Attorney Raymond A. Tierney has not charged Heuermann with the murder of Maureen Brainard-Barnes, or other murders some believe are tied to Heuermann, his application to have Heuermann remanded, or held without bail, made it clear that their investigation into Brainard-Barne’s death “is continuing and is expected to be resolved soon.”

The following is a brief examination of the joint investigation by county, state, and federal law enforcement, the evidence and techniques pursued to secure it, and the crimes and penalty Heuermann faces. As we learn more and find out what, if anything, search warrants at Heuermann’s home reveal, there may be many more questions asked, but hopefully more answered as well.

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Sure, I was being a bit tongue-and-cheek with the title to this blog entry, but the more I read about the Clean Slate Act (A. 1029A and S.211), a potential law that will automatically seal all misdemeanor and felony convictions other than sex crimes, the more I fear New York may have again lost its way in pursuit of a just and righteous end. No, the criminal justice system will not be sending criminals from our courthouses with babka in hand while telling their victims not to let the door hit them on the way out, but someone has to tap the brakes before we find ourselves with indelible regret that no statute can seal.

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No matter what side you find yourself in terms of whether Jordan Neely’s homicide at the hands of Daniel Penny on a Manhattan subway was the result of a lawful response to an imminent threat, a violent overreaction by a fellow straphanger, or something in between, there is one undeniable fact – Neely’s passing was as unnecessary as it was tragic. Period. There is no other reasonable interpretation nor view. Setting aside this truth, along with the raw emotions of the incident and questions about race which permeate it, however, leaves us with an important question that needs answering: what crime(s), if any, did Penny commit.

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When Queens criminal lawyers think of the “no fly list”, they very well might think of something other than individuals the government doesn’t want in or around an airplane or airport, whether JK, LaGuardia, or elsewhere. Instead of a list consisting of people, criminal defense attorneys have a different list – one consisting of Penal Law 265.01, 265.01-b(1), and 265.03, among other weapon crimes codified in Article 265. If you are unfortunate enough to find yourself under arrest by the Port Authority Police, your Desk Appearance Ticket (DAT), or the criminal court papers in the event you unlawfully possessed a firearm and are hauled into Central Booking, will reveal your particular charges. Ranging from misdemeanor Fourth Degree Criminal Possession of a Weapon, Penal Law 265.01(1), for batons, knuckles, and switch blades, to the far more serious Second Degree Criminal Possession of a Weapon, Penal Law 265.03, for a loaded and unlicensed firearm, remember…ignorance of the law is no defense.

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Due to the nature of the underlying allegations and elements of the offenses themselves, there are certain crimes in New York that carry with them a horrendous stigma. Both misdemeanors and felonies, many of these crimes are New York Penal Law Article 130 sex offenses and include Forcible Touching, Penal Law 130.52, on the “lesser” end, and varying degrees of Rape on the more violent side of the spectrum. While it would be hard to disagree that individuals convicted of these crimes are deserving of our collective scorn for their sexual misbehavior and abuse of another, what is unjust is our cavalier willingness to strip these individuals, often men, of their presumption of innocence. Instead of treating and holding them to the same standard we are entitled and would demand for our loved ones, we, without pause, saddle them with something far worse – not a mere presumption but a firmly held determination of their guilt right out of the box. Fortunately for a recent Saland Law client accused of Forcible Touching by a former co-worker, despite this presumption of his guilt and months of challenging the arrest, prosecutors finally dismissed the case against him on the merits.

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As one of a select few attorneys with practical experience protecting victims of Blackmail and Extortion both online and off, and a lawyer with real-world experience prosecuting these same perpetrators, I am routinely asked how to stop Sextortion on Instagram, what a person can do about Sextortion on Facebook, and if there is a way to put an end to social media Blackmail where intimate images have been weaponized by a former “friend”, real or fake. Unfortunately for online victims, especially teens sextorted on Instagram, Snapchat, Facebook, Reddit, WhatsApp, and even TikTok, the fear of humiliation and exposure is all consuming. Fortunately, however, with the right guidance and counsel, there is an out and a means to close the door on what is likely the most traumatizing experience of your and their life.

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