New York Criminal Lawyer Blog

November 4, 2013

Unlawful Surveillance – PL 250.45: From “Up Skirts” to Bathroom Recorders – Must All Defendants Register as Sex Offenders Upon Conviction

Every criminal arrest or conviction has a collateral consequence. Obviously, some are more severe than others. While an arrest can be humiliating, a conviction can strip us of many rights we take for granted, destroy our ability to continue in our career or set a chain of events into action that ultimately result in our deportation. One crime that often has these secondary consequences is the New York felony crime of Second Degree Unlawful Surveillance. Unlawful Surveillance in the Second Degree, New York Penal Law 250.45, is routinely viewed by prosecutors in an extremely different light than the accused (as noted by the intensity of these prosecutions). While a defendant may argue this was a crime of opportunity by an otherwise “good” person, a police officer, detective or Assistant District Attorney, is more likely to view this crime as a premeditated and malicious act. Yes, your criminal lawyer or Unlawful Surveillance defense attorney may seek to convince a prosecutor that the recording was one act, a prosecutor may counter that it was many acts. In fact, it is fairly common for prosecutors to execute search warrants on mobile phones and other recording devices. When or if they find evidence of the current arrest charge or past acts, its is equally common for prosecutors to stand firm with a felony charge.

Irrespective of the above arguments in an Unlawful Surveillance case by either your criminal lawyer or the prosecutor, avoiding a felony conviction is critical. Yes, a felony can land in prison, but long after your case is over, NY PL 250.45 has significant ramifications. New York State Correction Law § 168-a[2][e] establishes that a person convicted of subdivision two (2), three (3) or four (4) of New York Penal Law 250.45 is a “sex offender.” As such, if you are convicted, like a rapist or child molester, you must comply with the New York State Sex Offender Registration Act (“SORA”). While your level may not be as high as those individuals convicted of the crimes I just mentioned, to a certain extent, registration is registration. The level wont matter to your neighbors, employer, etc. You are deemed a sexual predator by society.

October 30, 2013

When Sharing Cigarettes is a Crime: The Low Level Threshold for Prosecuting Endangering the Welfare of a Child (NY PL 260.10) in New York

by Jeremy Saland

Whether its the Administration of Children’s Services (also called “ACS”), the New York City Police Department or a prosecutor from Manhattan to Brooklyn or anywhere in the State, being accused of a crime that endangers or threatens a child’s well being is a serious matter. Arguably, even the mere allegation without an arrest for Endangering the Welfare of a Child (New York Penal Law 260.10) is enough to brand you in your community, neighborhood or building with a “scarlet letter.” Its is safe to say that at the first sign of any investigation or impending arrest, consulting with your Child Endangerment lawyer or criminal defense attorney may be one of the smartest moves you can make. After all, even your innocent and reasonable statement in your own defense can be construed as something more sinister.

Beyond discussing the allegations of child neglect or even a more serious criminal Assault against a child with your New York criminal defense attorney, educating yourself on the criminal statutes and how courts interpret the laws is also critical. What is the threshold for Endangering the Welfare of a Child? How far must you go and must your actions be intentional? The following recent case decision may not answer every question you have about this “A” misdemeanor, but certainly sheds light on how non-violent conduct can land you in jail for up to one year.

October 16, 2013

Brooklyn DWI Arrest Leads to Disorderly Conduct Due to Potential Mistrial After Cross Examination

by Jeremy Saland

Saland Law PC, a New York City criminal defense firm founded by two former DWI prosecutors and DWI defense attorneys, is pleased to announced a resolution to a case a long time in the making. Although the initial offer required a plea to the misdemeanor crime of VTL 1192.3 (also called “common law DWI”) with an opportunity to later re-plea to Driving While Ability Impaired (“DWAI”) pursuant to New York VTL 1192.1, our client rejected this deal and proceeded to trial. In the midst of the cross examination by Saland Law PC of the New York City Police Department officer who effectuated the arrest, the prosecution offered our client a plea to Disorderly Conduct (New York Penal Law 240.20). Instead of facing a potential conviction that would require our client taking the DDP, being fined hundreds of dollars and having our client’s license suspended, our client’s case was immediately sealed without any conditions.

After the prosecution conducted their direct examination of the officer who arrested our client for DWI (sometimes called “DUI”), Saland Law PC cross examined the witness on numerous inconsistencies between the police paperwork and his testimony. For example, the officer testified at a earlier hearing that the accused drunk driver was traveling westbound on the Belt Parkway, but later contradicted himself. Even more significant, the officer testified inconsistently between the initial hearing and paperwork regarding “watery blood shot eyes.” At trial, the officer testified our client’s eyes were clear. Further, while the prosecution stated in substance that our client drank numerous glasses of wine during the opening statement, the officer testified that our client only admitted to drinking one glass. The list of inconsistencies extended well beyond what is addressed above, but not all of these errors were exposed before the prosecution made an offer mid-trial.

September 30, 2013

If the Police Solely Observe a Knife Clip is it a Sufficient Basis for them to Arrest You for NY PL 265.01 in New York?

by Jeremy Saland

If you could not merely search the NewYorkCriminalLawyerBlog.Com, but review transcripts from suppression hearings and examine New York criminal court complaints, it is likely that you would find a very common theme amongst individuals arrested for possessing illegal knives in New York pursuant to New York Penal Law 265.01(1) (often drafted as PL 265.01 on a New York City Desk Appearance Ticket). Whether the knife in question is a gravity knife opening with the force of gravity or a switchblade knife, it is “comically” common how often the police assert they observed a knife clip on the outside of a pocket, stopped that person and then removed the knife in question. While the stop and search may be legal, and therefore an arrestee’s basis for challenging his or her stop and search may fail, a recent decision may be very helpful in combating what some may argue is the over policing, and the ultimate over prosecution, of individuals who unknowingly possess certain illegal knives. Although technically illegal, many of the people arrested and given a DAT for PL 265.01 are accused of this crime after they legal purchased the blade from a reputable and established company without any belief that they could ultimately be committing a crime in New York.

In an appeal from Queens County Criminal Court, People v. Victor M. Cruz, 2011-990 Q CR, NYLJ 1202597502421, at *1 (App. Tm., 2nd, 11th, 13th, Decided April 8, 2013) directly addressed whether the clip of a knife, without any other indicia the potential contraband is a gravity knife, is sufficient to give the police the authority to stop and search a person for violating the class A misdemeanor Criminal Possession of a Weapon in the Fourth Degree pursuant to NY PL 265.01. In Cruz, the defendant was charged with with two counts of Fourth Degree Criminal Possession of a Weapon among other violations of the law. According to the record, the police pulled the defendant over for a traffic infraction and asked for the standard license and registration. The police further asked if the defendant had any weapons which he responded to in the negative. Looking into the vehicle, the arresting officer observed a clip of a knife attached to the defendant’s pant pocket.

September 17, 2013

If the Police Fail to Establish their Training and Experience in Your Gravity Knife Arrest is it Grounds for Dismissal: Facial Sufficiency & PL 265.01

by Jeremy Saland

If you are reading this blog entry regarding a gravity knife arrest in New York City or any other jurisdiction or municipality, there is a good chance you were stopped innocently walking down the street or driving your car and the police saw the knife’s clip outside your pocket. After stopping you, the police flipped the knife around, flicked their wrists and tried as hard as they could (it may have been fairly easy or awfully difficult) to open the knife with the use of gravity. Whether they did it on their first attempt or the police were only successful after numerous tries, the officers placed you under arrest, finger printed you and charged you with possessing a gravity knife in violation of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(1). If it was your first offense and you have no criminal record (and you can provide a local address in the New York City area), the police may have given you a NYC Desk Appearance Ticket with the top offense charge of PL 265.01.

Assuming you consult with a criminal attorney or New York City weapon defense lawyer for the Fourth Degree Criminal Possession of a Weapon DAT, you will likely be asked numerous questions about the legal basis of your stop as well as what transpired when the police tested the knife. Ultimately, however, when you go before a judge for your arraignment (this is where you are formally accused and advised of your criminal arrest charges), the legal work of your attorney will really begin. Certainly your lawyer may want to ask to see the actual knife (it will take some time), but within the four corners of the complaint against you there may be fertile ground for dismissal. One potential basis is how the actual complaint is drafted. It must sufficiently establish a “knife which has a blade [that] is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” For the purpose of this blog entry we will briefly address how the police establish that a knife in question is in fact a gravity knife as defined by the New York Penal Law. More specifically, if the police merely test the knife, but do not establish their training and experience in identifying these weapons, will the complaint be facially sufficient? After all, how can you affirmatively test something that you have no training or experience in identifying or handling?

September 13, 2013

Good Golly Ms. Molly: Ecstasy & Related Drug Crimes in New York City (PL 220.03)

by Jeremy Saland

What is a “molly” or “Molly”? Yes, it is a drug and some form of narcotic or controlled substance, but how does that translate into New York criminal law? Must you sell a molly or is mere possession of a molly enough to be arrested and convicted of a crime? Simply put, while selling a molly (it is actually ecstasy or 3,4-methylenedioxy-N-methylamphetamine) is no doubt a felony (note, money need not be exchanged for a felony sale to transpire according to New York criminal law), possession of a small amount for “personal use” is considered a misdemeanor offense. That crime, Criminal Possession of a Controlled Substance in the Seventh Degree, is an “A” misdemeanor. New York Penal Law 220.03 carries a possible sentence of up to one year in jail. If your arrest (this includes a Desk Appearance Ticket or DAT) is in New York City – Manhattan, Brooklyn, Queens or the Bronx – and you are sentenced to any time in jail, you will spend your time on the beautiful Rikers Island. You need not take my word on this issue. Ask any New York City criminal lawyer or New York drug crime attorney.

As insignificant as possession of ecstasy or a molly may seem to be, in the eyes of prosecutors, judges and those involved in New York’s criminal justice system, there is no difference between the possession of ecstasy and heroin or cocaine. Mere possession, even without any significant weight or amount, violates NY PL 220.03 as described above. Although I am not currently aware of any changes in the policy of District Attorneys Offices in the New York City area, it would not be shocking that even first time offenses are examined more closely and scrutinized since the overdose deaths during the Electric Zoo festival in Manhattan.

August 27, 2013

Illegally Using an Employer’s Credit Card or Colleague’s Check Part II: Possible New York Crimes

by Jeremy Saland

In a prior bog entry, I addressed some of the potential felony arrest charges you can face if you commit credit card fraud, debit card fraud or check fraud in New York. As a New York criminal lawyer and former Manhattan Assistant District Attorney, I have either prosecuted or defended hundreds of these crimes involving stolen or fake credit cards, bogus checks and other alleged scams netting a few dollars to millions of dollars. While certain crimes associated with check fraud and credit card fraud in New York are not necessarily impacted by the value of the ill gotten gains (Forgery, Criminal Possession of a Forged Instrument and Falsifying Business Records – see other blog entries and New-York-Lawyers.org for information on these offenses), the degree of other crimes and offenses share a direct correlation with the associated theft or larceny. Beyond the “D” and “E” felonies listed above, these crimes include Grand Larceny and felony Criminal Possession of Stolen Property.

Grand Larceny: Credit Card, Debit Card & Check Fraud

July 31, 2013

Felony Gun & Pistol Possession in NY: PL 265.01-b(1) & PL 265.01-b(2)

by Jeremy Saland

Not mean to be a political statement in any way, the following is arguably a simple “fact.” Prosecutors in New York City and the surrounding suburbs have little sympathy and compassion for individuals arrested for firearm and weapon crimes. This assertion can be attributed to those crimes where a gun, pistol or other weapon is stolen and defaced or where the gun in question is legally registered, but not within the borders of New York City or New York State. The message is clear from these District Attorneys. Do not bring unlicensed firearms into their respective jurisdictions even if it is legally owned and carried elsewhere. If you do, you will be arrested and prosecuted for a wide range of potential felony crimes including Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02), Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01)and the newest member of the “illegal firearm family,” Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)).

Prior to the enactment of NY PL 265.01-b(1), Criminal Possession of a Firearm, in order for an illegally possessed gun or pistol to be bumped from a misdemeanor to a felony crime, the firearm had to be possessed outside the home or place of business and be loaded (it must always be operable as well). If it was not harsh enough that New York law deems a gun loaded even when ammunition may not be inside the weapon, the New York Penal Law has created an even more sever punishment for possessing a firearm without any ammunition at all. To be very clear, if you possess a gun or a pistol in New York without a permit, you will no longer have the “luxury” of facing only a misdemeanor crime. Instead, your knowing possession of the illegal and operable firearm is an “E” felony and carries a sentence by as much as four years in prison. Again, it makes no difference in the eyes of the law if the firearm is stolen or one that you legally owned in Iowa, Alabama or California because if you do not have a license or permit in New York (or New York City), your possession is a violation of the law.

July 27, 2013

I Used My Employer’s or Colleague’s Checkbook or Credit Card to Make a Purchase: Potential New York Crimes Part I

by Jeremy Saland

Fraud involving credit cards, debit cards and checks is rampant in New York City and New York State. It is likely that a day does not go by where a person is arrested for a crime relating to check or debit card fraud. After all, its fairly easy in terms of perpetrating and the results are often instant. It is not until days, weeks or months later that a complainant victim catches on or the police are notified. Unfortunately for the accused fraudster, that immediate gratification of a purchase or cash is grounds for an arrest and potentially incarceration for a litany of crimes and offenses found in the New York Penal Law. Although as a New York criminal lawyer and former Manhattan prosecutor I have encountered in some capacity all of these crimes, the creativity of the means by which these frauds are perpetrated never ceases to amaze me. While this blog entry will not address the different scams, it will address many of the potential crimes you can face if you commit credit card, debit card or check fraud in New York. Second Degree Forgery: NY PL 170.10

When you sign the receipt for the debit card or credit or you endorse or draft the check, you are altering or completing what is legally construed as a “written instrument.” Further, when doing so, you are affecting a legal right and interest. As a result, you are committing a “D” felony of Forgery in the Second Degree (New York Penal Law 170.10) that is punishable by up to seven years in prison. There is no monetary relevancy placed on the item you attempted or in fact purchased for this particular charge. The mere signing or apparently signing the name of the account holder along with these other elements that satisfies the felony offense of PL 170.10. Second Criminal Possession of a Forged Instrument: NY PL 170.25

July 22, 2013

A Review of First Degree Falsifying Business Records: How Actions of a Third Party Can Still Violate NY PL 175.10(1)

by Jeremy Saland

While felony arrests and investigations involving Second Degree Forgery (New York Penal Law 170.15) and Second Degree Criminal Possession of Forged Instrument (New York Penal Law 170.25) are two of the more common fraud crimes in New York City and New York State, there are certainly many more crimes involving deceit and fraud that are prosecuted by Assistant District Attorneys and defended against by New York criminal lawyers. One of these crimes, Falsifying Business Records in the First Degree (New York Penal Law 175.10), may not be as serious as the felony Forgery and Forged Instrument crimes, but an arrest for this felony is one that can land a first time offender with no criminal history behind bars for an extended period of time. In fact, the punishment and sentence for this “E” felony of First Degree Falsifying Business Records is as much as four years in prison. This blog entry will specifically address subsection one of First Degree Falsifying Business Records (NY PL 175.10(1)) and how indirect actions or secondary results can still be criminal.

Generally, a person is guilty of PL 175.10 when he or she has an intent to defraud that involves the commission or intent to commit another crime or the concealment of another crime and when he or she makes or causes a false entry to be made in the business record of an enterprise. Wordy? Maybe, but at its core and in non legal terms, if you are trying to hide a theft or commit a larceny and in the course of this crime you intentionally make false entries in the records of a business, you would be guilty of felony Falsifying Business Records (this is merely an example and would need further vetting to see if the crime was actually committed and each element satisfied).