New York Criminal Lawyer BlogThe 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.
Charges Against New York Assembly Speaker Sheldon Silver Explained — What is Honest Services Fraud?
It’s all over the newspaper today, with headlines like “BombShel” and “Silver Lining Crook Book,” that the long-time Speaker of the New York State Assembly, Sheldon Silver, has been hit with fraud and corruption charges by U.S. Attorney for the Southern District of New York, Preet Bharara. Everyone is talking about the accusations – Silver allegedly received millions of dollars over about a dozen years from two law firms for referrals in exchange for political favors. But what, exactly, is Silver charged with?
Silver has been charged with five counts in a criminal complaint. First, keep in mind that a criminal complaint is merely the beginning of a criminal prosecution in federal court. In order for the U.S. Attorney’s Office to pursue this case, they will have to present evidence before a grand jury, which would have to vote an indictment. Only then could the case proceed to trial. Many have said that the government could indict a ham sandwich – and in this case, given the details in the criminal complaint, appears to be a likely scenario.
One other possibility is that Silver could enter into a plea bargain with the U.S. Attorney’s Office and plead guilty to what is called an Information. It has the same legal power and effect as an indictment, but would not require the U.S. Attorney to present evidence to a grand jury. Only time will tell which way it will go. Continue reading
“Touching” vs. “Holding”: The Minimum Threshold for Violating New York Penal Law 121.11 Obstruction of Breathing and Blood Circulation
Criminal Obstruction of Breathing and Blood Circulation is a serious charge. As criminal lawyers who have handled these cases, we can say without hesitation that here is simply no other way to view the offense. In the State of New York, a defendant commits the crime of Criminal Obstruction of Breathing and Blood Circulation when, as defined in New York Penal Law 121.11(a), he/she, with intent to impeded the normal breathing or circulation of the blood of another person, he/she applies pressure on the throat or neck of such person. Yes, that is it. Nothing more. The definition of this crime leads to an interesting issue. That is, how long must a defendant hold pressure on the victim’s throat to commit a Criminal Obstruction of Breathing and Blood Circulation offense (Penal Law 121.11) and how much evidence must the People (Assistant District Attorneys) provide for their case to survive a motion to dismiss on facial sufficiency grounds. In the case of People v. Reyes, 2014 NY Slip Op 50789 (2014), a New York City Court examined these issues.
Is Third Degree Assault (NY PL 120.00) a “Lesser Offense” of Second Degree Strangulation (NY PL 121.12)
Third Degree Assault, New York Penal Law 120.00, is a relatively straight forward offense. Although the application and interpretation of the law always has its wrinkles, one is guilty of Assault in the Third Degree when one intentionally, or recklessly, causes physical injury to another. Physically injury is generally identified as some form of substantial pain. A class “A” misdemeanor with a sentence of up to one year in jail, PL 120.00 is the lowest of the violent New York Assault type crimes. A much more serious offense handled by prosecutors and criminal attorneys that is punishable by as many as seven years in prison, Second Degree Strangulation, New York Penal Law 121.12, occurs when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11, and thereby causes stupor, loss of consciousness or any physical injury.
Federal Computer Hacking (18 USC 1030) Is Not Always What It Seems: Client Gets Federal Misdemeanor and No Jail
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
Admissibility of Your Portable Breath Test Taken at the Scene of Your DWI Arrest at a New York Criminal Trial
In New York State from Manhattan and Brooklyn to Yonkers and White Plains, drunk driving, driving while intoxicated, DWI, DUI, or any way you want to describe it, VTL 1192 is an extremely serious offense. Simply, not only is a violation of New York State Vehicle and Traffic Law section 1192 a criminal offense, but a conviction will result in the suspension or revocation of your license, fines and a risk of probation or jail. Even without the public stigma associated with this crime, the collateral consequences are significant both to your career and within your community. Because of the grave consequences resulting from an arrest or conviction for an section of VTL 1192, consulting with and retaining an experienced New York State or New York City DWI attorney as well as having a general understanding of New York DWI and DUI law is critical. This blog entry will provide you with a general understanding of one of the many issues that arise in a DWI case. That is, whether or not the field sobriety test / portable breath test you agreed to take at the scene of your arrest for DWI can be used against you at trial.
Federal Healthcare Fraud Investigations on the Rise
Recently, we discussed the history of the Medicare Fraud strike forces set up by the U.S. Department of Justice, Fraud Section, in an effort to combat what was perceived as rampant fraud in the healthcare system. Recently, local U.S. Attorneys across the country have copied the structure and format of the strike forces within their own offices.
Take for example David Hickton, the U.S. Attorney for the Western District of Pennsylvania, in Pittsburgh, who created his own “mini-strike force.” He has enlisted four assistant U.S. attorneys from his office to focus exclusively on health care fraud investigations and prosecutions. He has support from the Pittsburgh Division of the FBI, which is one of the two federal law enforcement agencies charged with investigating health care fraud. He has also reached out to the HHS-OIG, the Department of Health and Human Services, Office of the Inspector General, the other federal agency investigating the medical industry, asking them to dedicate special agents to the Pittsburgh area.
The idea is to focus manpower on one of the largest and most complex industries in the country in an effort to gain expertise while eradicating millions, if not billions of dollars of fraud, waste and abuse in the healthcare industry. Continue reading
Does Failing to Allow Police in Your Apartment Without a Warrant or an Emergency Constitute Obstruction of Governmental Administration (PL 195.05)
Simply, we can all appreciate and respect the fact that just as the police act on calls, information and statements with the goal of providing safety and security to residents of New York, there are times when the police are not needed or warranted. Practically speaking, it is often difficult for law enforcement to ascertain whether their services and presence is truly necessary without further investigation. Many times it is essential for the police to get involved while other times it is not. An interesting question arises where the police come to your house and want to gain access. In such a circumstance, can you deny them entry and if you do deny them access, can you be prosecuted for a crime such as Obstructing Government Administration in the Second Degree (New York Penal Law 195.05)? Addressing this exact circumstance (but remember each case is unique and the facts of the case dictate what law applies), People v. Holmes, 2014 NY Slip Op 51099 (NY Crim. Ct.) sheds some light on this issue.
Study Aids and Pain Relief for Sale: New York Felony Crimes Involving the Illegal Sale and Possession of Adderall
It is likely not lost on your criminal attorney or New York criminal defense lawyer. The same can certainly be said about the undercover police officer who purchased “study aids” from you after seeing your advertisement on Craigslist. Even more concerning, it is likely not the prosecutor’s (Assistant District Attorney) or the judge’s first rodeo fighting controlled substance crimes in New York. Simply, the felony sale or possession of Adderall, and a subsequent arrest or indictment for Penal Law 220.06 or Penal Law 220.31, has the potential to absolutely destroy your future. You need not be pitching crack on a corner or cocaine at high class function to feel law enforcement’s weight on your shoulders. Whether or not you sold one pill (or 50), search warrants were executed at your residence or you were found to be in possession of prerecorded buy money (the cash with matching serial numbers provided by detectives or the police during an alleged purchase), you will face as much as one to two and one half years in prison followed by one year post release supervision. If convicted, this criminal record will be here to stay.
Facial Insufficiency & Dismissal: When NY Criminal Complaints Charging Reckless Endangerment & Criminal Obstruction of Breathing or Blood Circulation Meet the Minimum Legal Standard
Facial Sufficiency is a vital consideration in the field of Criminal Law (one of many, of course). If a misdemeanor information (some people call it a complaint) is facially insufficient then the misdemeanor information is considered jurisdictionally defective and should be dismissed. In order for a misdemeanor information to be facially sufficient the misdemeanor information must, when viewed in a light most favorable to the People (the District Attorney or prosecution), contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged. CPL §§100.15[3]; 100.40[1][b] and [c].