New York Criminal Lawyer Blog

April 20, 2015

Intentionally Switching Medications for Profit: A Pharmacist’s Exposure to New York State Health Care Fraud Article 177 Felonies

Healthcare Fraud (a/k/a Health Care Fraud) is crime vigorously pursued by local District Attorney’s Office and the New York State Attorney General. The basic idea or theme behind any New York Penal Law Article 177 crime, investigation or arrest is that a defendant “with intent to defraud a health care plan… knowingly and willfully provided materially false information … for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information …, [the defendant] or another person received payment in an amount [to which the defendant or another person was] not entitled.” Depending on the nature or aggregate value of the payment received, Healthcare Fraud in New York State (it is irrelevant if alleged fraud occurs in Manhattan, Brooklyn, Queens, White Plains, Yonkers or Albany) is either a misdemeanor or a felony offense. Once an individual is alleged to have received from a single health plan at least $3,000.00, the crime graduates to the class “E” felony of Health Care Fraud in the Fourth Degree. This crime is punishable by as much as four years in prison. Obviously, should the aggregate amount be greater, the felony and incarceration exposure increases significantly.

With this general understanding of New York’s Health Care Fraud statute, the following blog entry will provide a little more insight into what actions can be the basis of a criminal violation.
In People v. Khan, 18 NY 3d 535 (2012), the Court of Appeals grappled (that may be an overstatement) with the nature of proof required for a conviction under the Health Care Fraud statute. There, the New York City Police Department (NYPD) and the New York City Human Resources Administrations conducted an undercover investigation of NYC Pharmacy, Inc. NYC Pharmacy Inc. is a pharmacy located in Upper Manhattan.

April 13, 2015

Endangering the Welfare of a Child: Can any Custodian be Liable for and Guilty of NY PL 260.10 or Must Prosecutors Establish Control and Care

by Jeremy Saland

In New York, or any state for that matter, arrests involving children carry with them the worst stigma. Obviously, crimes that involve sexual or physical harm are by far and away the most serious, but the stain of an arrest can linger even if your conduct is nowhere near or similar to these offenses. While on its face Endangering the Welfare of a Child, New York Penal Law 260.10, is a “nasty” crime, your conduct need not be that significant to run afoul of the law. In fact, the New York criminal lawyers and New York Endangering the Welfare of a Child attorneys at Saland Law PC have represented more than one client over the years for leaving a child alone briefly to merely follow through with an every day activity such as running into a store for a couple of minutes. Smart? Maybe not. Worthy of a criminal conviction? No.

Well, beyond the crime of PL 260.10, even if the conduct itself is criminal, who is responsible for the child in question? What if, for example, a child was left unattended and you, as a cousin, neighbor, uncle, sibling or other party came to secure the child after the police had been called. Is your mere offer to take responsibility of the child also a reflection of your culpability for leaving the child alone? What must prosecutors do to establish the nature and extent of the defendant’s control and care? A recent decision from the Bronx Criminal Court answers this exact question.

April 9, 2015

ACD Dismissal for NYC Man Charged with PL 220.16 Felony Possession of 71 Pills of Xanax & Alprazolam Along with a Half Pound of Marijuana

by Jeremy Saland

Drug, controlled substance and narcotics crimes in New York may not be punished to the same magnitude as the Rockefeller Drug Laws of the past, but any New York Penal Law Article 220 crime in New York City or in a suburban New York State county still carries a significant punishment. Where a person is charged with a “B” felony possession of a controlled substance with the intent to sell (New York Penal Law 220.16, Criminal Possession of a Controlled Substance in the Third Degree), the sentence for a first time offender is one to nine years in a New York State prison. If the potential for years of prison and incarceration was not enough, a permanent ‘”scarlet letter” of a felony drug conviction may be enough to scare any young man or woman straight. Although all of us expect to stay far from the mistakes that could land us with a Criminal Possession of a Controlled Substance or Criminal Sale of a Controlled Substance arrest or conviction, nobody is perfect. In fact, even if we never possess cocaine, heroin or any other controlled substance, its possible for prosecutors and police officers to still attempt to hold us accountable for the actions of others. Yes, being in the wrong place at the wrong time can be the basis of an arrest, prosecution and criminal conviction in the world of narcotics. One such provision of the New York Penal Law that allows this, NY PL 220.25(1), permits a finder of fact to presume that all people in a vehicle knowingly possessed controlled substances found therein as long as the drugs were not on a specific person. Unfortunately, this is the scenario a Saland Law PC client found himself in having no knowledge of any drugs in the car where he rode as a passenger.

March 29, 2015

Client Arrested in New York with Two Unlicensed Firearms and Hundreds of Rounds of Ammunition Receives ACD Dismissal & “Nullified” Arrest

by Jeremy Saland

New York City’s JFK and LaGuardia airports see their fare share of criminal activity. The airports are crawling with federal, state and local law enforcement ready to swoop down at the first sign of some wrong doing. One of the seemingly growing crimes that the Port Authority Police Department, TSA and airline ticketing agents seem to be ready, willing and able to pounce on is the crime of Criminal Possession of a Weapon. More specifically, the crime that is routinely prosecuted is Criminal Possession of a Weapon in the Second Degree pursuant to New York Penal Law 265.03. Obviously each fact pattern is different, but the themes generally run the same. You are a legal or registered firearm owner in California, Florida, Texas or some other state. You are visiting New York City , Manhattan, Queens, Brooklyn, Long Island, the Hudson Valley or a neighboring state such as New Jersey, Connecticut or Pennsylvania. Nobody stopped you from coming to this jurisdiction or advised you that you couldn’t bring your revolver, pistol or other gun to the State of New York. Why would you expect anything would be different when you packed up the gun, separately carried the ammunition and checked your firearm at the airport for your journey home? Why? Well, sadly the answer is clear and now you need a New York firearm lawyer and criminal defense attorney to mitigate your “wrongful” conduct from a statutory violent felony with mandatory incarceration to something that will not destroy your future or livelihood.

March 25, 2015

Alleged NYC Craigslist Adderall Seller Avoids Felony Conviction for PL 220.31 & Receives No Jail & No Probation

by Jeremy Saland

Selling adderall online on sites such as Craigslist is an extremely serious drug felony in New York. For that matter, selling adderall or other controlled substances to an undercover cop or any other buyer online or in person is criminally devastating. It is of no consequence whether or not you have a prescription for these “study aids” or not. At its core, an illegal drug sale is an illegal drug sale. If you are arrested in New York for selling “Pep Pills,” “Beans,” “Uppers” or any amphetamine or dextroamphetamine, you certainly will receive a boost in clarity coming from your jail cell, a prosecutor, the judge and even your criminal defense lawyer. What will be clear, however, is not the upper you get from ingesting adderall, but the reality that you now face one to two and a half ( 1 to 2.5 ) years in prison followed by one year post release supervision as a individual without any criminal history at all. Broken down to the simplest level, an arrest, indictment and conviction for Criminal Sale of a Controlled Substance in the Fifth Degree, New York Penal Law 220.31, is a crime that can, and often does, lead to a combination of incarceration, probation, and destruction of careers and livelihoods. How you implement your defense and the strength of that defense will decide if you are able to walk away unscathed, reduce the crime you are charged with or spend time “upstate.”

March 18, 2015

Menacing without Physical Threats: Can Words Alone be the Basis of a NY PL 120.15 Menacing Arrest & Conviction

by Jeremy Saland

There 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.

March 13, 2015

New York’s Martin Act and the Expansive Meaning of “Fraud” and “Fraudulent Practice”

by Jeremy Saland

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.

March 8, 2015

JFK Airport Firearm Arrest Ends in Non Criminal Violation: Accused Avoids 3.5 to 15 Years on NY PL 265.03 Conviction

by Jeremy Saland

Who ever thought legally owning a firearm, licensed handgun, revolver or other pistol would land you in jail? Your airline carrier didn’t tell you when you called or searched online. JetBlue, Delta or American airlines didn’t stop you when you checked it before you flew into New York City. There was nothing on a website dedicated to LaGuardia or JFK Airports that properly advised you. Even the TSA website proved useless. Believing you were compliant with the criminal and firearm laws of New York State, what did you do? You got arrested for checking your broken down, unloaded firearm properly locked in a hard side case before boarding your flight home. Sadly, the nightmare began when the gate agent called the Port Authority Police, without giving you any indication of your wrongdoing, as you waited with friends or family to get your boarding pass. Never suspecting you would need a New York firearm attorney or New York criminal defense lawyer, your life went from being a “regular” person to an accused criminal arrested and charged with violating New York Penal Law 265.03. Twelve, fifteen or even twenty four hours after sitting in Central Booking, you finally saw a Criminal Court Judge in Queens count who may even have set bail on your charge of violating Second Degree Criminal Possession of a Weapon. Whether you were released or not, the three and one half to fifteen years you now face is rightfully terrifying.

March 4, 2015

New York Penal Law 195.20: New York State’s Public Corruption Crime of Defrauding the Government

by Jeremy Saland

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.

February 25, 2015

New York Menacing Crimes: Does a Threatening Photograph Displaying a Weapon Violate NY PL 120.14

by Jeremy Saland

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