New York Criminal Lawyer BlogSecond Degree Aggravated Harassment, New York Penal Law 240.30, is one of the most widely charge crimes that often teeters between a violent and non violent offense. Not only are the alleged threats made in an NY PL 240.30 investigation relevant down to the exact words used and the context of declaration, but this offense is just as likely to involve a Desk Appearance Ticket based arrest as it is a Domestic Violence crime or charge. Just as local courts and attorneys have grappled with Second Degree Aggravated Harassment crimes, so has New York State’s highest court, the Court of Appeals. While the following is not an analysis of a Court of Appeals decision, this blog entry does address what constitutes a “true threat” and, pursuant to a different subsection of the crime, “no legitimate purpose” when establishing Aggravated Harassment in the Second Degree at the pleading stage of New York Penal Law 240.30 arrest.
Marijuana Crimes: Can the Police Merely Allege a Public Location or Public View without Giving More Detail as to the Location of an Incident
Not necessarily relevant to every criminal offense found in the New York Penal Law, many arrests and crimes stem from what the police see in public or plain view. Whether officers with the NYPD or other local police agency stop your car and see a knife inside the vehicle from their vantage point or you’re walking down the street with a marijuana in your hand, the location of your criminal possession of cocaine, marijuana, or a firearm is often relevant not merely to the legality of your stop, arrest and search, but the crime itself. The following case involving an arrest for Fifth Degree Marijuana Possession, NY PL 221.10, is an example of this element and how a criminal complaint against you must be drafted in order to survive (or not survive) a motion to dismiss by your criminal defense attorney.
If the Police Refuse to Accommodate Your Request to Call Your Attorney in a New York DWI Arrest Can the Results of a BAC Test be Thrown Out
Whenever a person learns that I am a New York criminal lawyer and New York DWI attorney, one of the first questions they ask is whether or not they should “blow” if they are ever stopped or arrested for the crime of drunk driving in New York. Drunk driving, a crime of the New York Vehicle and Traffic Law, is codified as VTL 1192 and in various subsections. When I respond to this question, the first answer I usually give (its more of a statement) is don’t drive drunk or impaired and you won’t ever need to know the answer to this question. Prosecutors and police take this crime very seriously and its not “OK” to put others at risk when you are behind the wheel. Taking off my “regular guy” cap and putting on my criminal defense attorney hat, the analysis changes. While I cannot answer whether you or anyone else should provide a breath sample for the portable breath test (PBT) or an intoxilyzer without having a specific set of facts, the better question is what, if anything, the must the police do upon your request to speak with or call your attorney prior to “blowing”? If the police fail to provide you an opportunity and you ultimately submit to a test, what if any recourse do you have?
New York DWI Arrests and Convictions: NY VTL 1192 Prosecutions When You are Not in the Car or Vehicle
It seems as if issues involving DWI, DUI and DWAI arrests routinely “pop up” all over the country and here in both New York State and New York City. The obvious reason as to why this happens is because DWI is an extremely serious, avoidable and potentially catastrophic offense. Whether you are charged with VTL 1192.4, VTL 1192.3 or VTL 1192.2 (or a felony DWI offense), the consequences to your career, financial future, and family is significant. Wrongfully accused or not, you must not only be prepared to defend yourself against the accusation of driving drunk, but you must have at least a general understanding of the law. This particular NY DWI blog entry will deal with the scenario where an accused drunk driver exits his or her vehicle prior to the police arriving and, therefore, the police cannot observe or confirm the accused was actually driving the vehicle in violation of VTL 1192. The question that we are left to tangle with is whether or not the prosecution can sustain a charge of Driving While Intoxicated or Driving While Ability Impaired circumstantially.
Reckless Driving and Resisting Arrest Misdemeanors Dismissed: Client Wrongfully Arrested and Maced
Like in any profession, from teachers to doctors and lawyers to carpenters, there are a few bad apples. Sometimes the consequence of a bad apple is more than a mouthful of unpalatable food. In the realm of law enforcement, a bad apple can mean a night (or a lot more) in jail and a face full of mace. Sadly, this scenario is exactly what a client of Saland Law PC faced when a police officer with the NYPD falsely arrested our client, stated our client had a warrant out for our client’s arrest, pepper sprayed our client and then charged our client with violating VTL 1212 (Reckless Driving) and NY PL 205.30 (Resisting Arrest). Fortunately, however, with the strong advocacy from our New York criminal lawyers, prosecutors agreed to review the case, speak with the arresting officer and dismiss the criminal complaint.
Can You Blow Below the Legal Limit and Be Charged with a NY DWI: BAC Levels and Criminal Complaints
Its widely known by New York DWI lawyers, prosecutors, judges and regular every day people that the legal limit for a BAC in a drunk driving, DWI or DUI case is .08. If your BAC is.08 or greater, regardless of where you may reside in New York from the City to the suburbs, you will be charged with violating New York Vehicle and Traffic Law 1192.2. Unlike the common law variety of New York Vehicle and Traffic Law 1192.3 that relies on certain indicia of intoxication (water blood shot eyes, slurred speech, unsteady gate), VTL 1192.2 relies solely on scientific reading from DWI equipment such as an intoxilyzer. The question posed in this particular NY DWI blog entry is if you in fact blow below a .08 can you still be charged with DUI or DWI based on a VTL 1192.3 Offense. That is, even if scientifically your are well below the legal threshold, can the police still arrest and prosecutors still charge you a DWI misdemeanor?
NY Criminal Contempt: Can You Violate an Order of Protection Even if You Do Not Enter the Protected Premises Specified in the Restraining Order
New York Penal Law 215.50, Second Degree Criminal Contempt, is a crime that prosecutors are quick to charge and often for good cause. However, regardless of the subjective view of an Assistant District Attorney or a police officer with the NYPD or any police department outside New York City, cases must still be proven beyond a reasonable doubt whether you’re in Westchester, Rockland or Gotham. At earlier stages of litigation, the accusatory information – the complaint – must be legally sufficient or your case should not “pass go.” Therefore, mere allegations must be supported by some form of evidence or alleged facts. Tying this back to Second Degree Contempt, an “A” misdemeanor punishable by as much as one year in the county jail (can you say “Rikers Island?!”), the four corners of the accusatory instrument must legally support that there was a valid order of protection, the parameters of that order and how you violated the order. In a recent case out of White Plains, New York, the a court rendered a decision giving a broad interpretation of an order of protection and a defendant’s conduct that is worth reviewing and directly on point with the title of this blog entry.
What Types of Statements on Their Face Are Sufficient Threats for the Purpose of Second Degree Aggravated Harassment, PL 240.30(1)(b)
Whether its in the context of a Domestic Violence case with a former partner or lover or a co-worker in Manhattan, Queens or Brooklyn, those nasty, threatening or plain ugly and uninvited texts, emails or phone calls may be more than a mere annoyance. In fact, depending on the conduct, you will be arrested, you will see a judge and you will need a New York criminal defense lawyer experienced in and knowledgable about Aggravated Harassment in the Second Degree, New York Penal Law 240.30. Let’s be very clear. Second Degree Aggravated Harassment is a serious crime. The NYPD will arrest you based on an allegation. If there is corroboration or you make an admission, things can go from bad to worse. A class “A” misdemeanor, NY PL 240.30, although unlikely, could land you in a jail for up to one year even if you receive a Desk Appearance Ticket. Because of the severity and seriousness PL 240.30, this blog entry will attempt to further explain what conduct rises to criminal activity.
Can Prosecutors Avoid the Permission to Make Graffiti Element in a Possession of a Graffiti Instrument Arrest Pursuant to NY PL 145.65
Whether its an unapproved mural or a small tag, in order for a judge or jury to convict you of Possession of a Graffiti Instrument, New York Penal Law 145.65, an Assistant District Attorney must prove beyond a reasonable doubt: (1) your intent to damage property (2) your possession of any tool, instrument or compound designed to etch, paint, cover… or otherwise place a mark upon a piece of property and (3) you knew you had no permission or authority to do so. Although this definition seems fairly straight forward, the question presented in this blog entry is whether or not the prosecution can circumvent the third element of PL 145.65 and prove the crime of Possession of Graffiti Instruments where the intent to damage property is clear and the tools in question are those for actually making graffiti.
Possession in an Apartment Where Drugs are Found: Can Presence Alone Support an Arrest and Prosecution for NY PL 220.03 or NY PL 2201.16
If there are drugs found in your Manhattan apartment and you are inside that apartment, you are guilty of possessing those drugs, correct? If the police execute a search warrant and you reside in the in the Brooklyn home where drugs, such as cocaine, heroin or marijuana are found, you are guilty of possessing those controlled substances, right? After all, the police found the contraband in your apartment so you must be responsible. If the amount is fairly small of a controlled substance then there is no reason why the police should not arrest you for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03. If the police believe you had the intent to sell the cocaine, heroin or other drug then they should arrest you for intending to sell those drugs pursuant to Criminal Possession of a Controlled Substance in the Second Degree, New York Penal Law 220.16. To give you some perspective on these crimes, PL 220.03 is an “A” misdemeanor punishable by a year in jail and PL 220.16 is a “B” felony punishable by one to nine years in a New York State prison. For good measure, let’s add some more perspective to the questions asked above. Your mere presence, without actual possession, may not be enough for the prosecution to sustain any criminal charge against you. Obviously you should consult with your own New York criminal lawyer or criminal defense attorney versed in drug crimes, but the following analysis of a recent court decision is right on point.