New York Criminal Lawyer Blog

January 27, 2013

NY DWI Laws: Can You Be Arrested & Convicted of Drunk Driving in New York Without Being in Your Vehicle

While nobody wants to find themselves as the subject of a New York DWI or DUI arrest, I don’t think anyone could legitimately argue that New York drunk driving laws are firm, serious and potentially devastating for a good reason. As a New York DWI lawyer and DUI attorney as well as a former Manhattan prosecutor assigned to the DWI Unit, I have seen some ugly cases where terrible accidents resulted from driving while intoxicated. Simply, New York VTL 1192 and its various subsections serve a very legitimate purpose in protecting the public.

With the understanding that the laws to protect our roads serve a tremendous purpose, one should not ignore or disregard the fact that people are accused of driving drunk when they may not be remotely intoxicate or impaired. Even assuming there is consumption of alcohol, that consumption may not rise to a criminal level. Regardless of your reason to challenge an arrest for DWI, police must act properly and you have the ability to exercise your rights and protect the same. Was there sufficient probable cause for the police to stop you? Was the intoxilizer or chemical test conducted wrongfully or was the machine not in proper working order? Despite the contention of the police that you failed a field sobriety test, was his or her opinion skewed or is there a non-alcohol related reason why you could not keep your balance? While the following case did not end up favorable to the defendant, can an argument be made that where the police do not find you in your vehicle or your vehicle is not moving (driving), there is not enough sufficient evidence to find you guilty of DWI?

January 22, 2013

Long Island Dentist Arrested for Reckless Endangerment: Is Intoxication Automatic Proof of Recklessness during any Medical Type Procedure

by Jeremy Saland

While the Suffolk County District Attorney’s Office will not be resolving the age old question of whether a dentist is in fact a “doctor” (I do not want to be accused of being an antidentite by-the-way), DA Thomas J. Spota’s Herculoids (a little homage to Hana Barbara, folks), will soon be addressing whether a dentist can be criminally reckless if he or she performs procedures on a patient while intoxicated. According to reports, police arrested Robert B. Garelick, a Lindenhurst dentist, for Second Degree Reckless Endangerment (New York Penal Law 120.20) after he was accused of this exact conduct.

An “A” misdemeanor, Reckless Endangerment in the Second Degree is punishable by a year in jail. You are guilty of NY PL 120.20 if you recklessly engage in conduct which creates a substantial risk of serious physical injury to another person. To be clear, your conduct is not sufficient if it “may” or can “possibly” cause any type of injury, but creates a substantial risk of a physical injury that is legally classified as serious.

January 22, 2013

Marijuana as Prison Contraband: Who Knew Marihuana was so Dangerous?

by Jeremy Saland

The vast majority of those involved in New York’s criminal justice system, from the officers serving the NYPD and Assistant District Attorneys to judges and criminal defense lawyers, would likely not place marijuana (“marihuana” in the New York Penal Code) in the same realm of contraband such as heroin, cocaine and other controlled substances. While there certainly could be many vigorous debates on the legalization of marijuana, the bottom line is that possessing certain aggregated quantities or possessing any amount of marihuana in public is a crime. The question that arises in some circumstances, however, is not whether possession is illegal, but how dangerous that possession of marijuana can be.

Although the debate over marijuana’s dangers makes for great dinnertime conversations, “danger” or “dangerous” is not an element of Criminal Possession of Marihuana. That’s right. Prosecutors need not prove beyond a reasonable doubt that Mr. Green Leaf is dangerous in any capacity. That is not to say, however, that “danger” is not always irrelevant. When marihuana possession is the central evidence or underlying criminal activity in an arrest for Promoting Prison Contraband, the degree of “danger” is critical.

January 8, 2013

Arrests for Marijuana Possession in New York: Understanding the Difference Between a Criminal and Non-Criminal Offense

by Jeremy Saland

Although wrongfully classified by many people as a narcotic drug crime, arrests in New York City and throughout the State of New York for possession of a marijuana (or marihuana as it is referred to in the New York Penal Law) are a distinct and separate category of crime. Criminal Possession of a Controlled Substance crimes, unlike Criminal and Unlawful Possession of Marijuana, are much more broad as they include an enormous spectrum of drugs ranging from cocaine to heroin and more “trendy” contraband such as ecstasy. Regardless of the drug, if you possess one of these substances you would be charged with Seventh Degree Criminal Possession of a Controlled Substance (New York Penal Law 220.03) as long as you lacked the intent to sell the substance and the weight was not classified as felonious. It makes no difference if the drug is in your hand and open to public view or buried in your pocket. Just ask any person arrested outside a Phish concert at MSG in Manhattan or at a Disco Biscuits concert right around the corner.

Unlike controlled substances, marihuana crimes in New York (or more correctly the crimes for which you are arrested and charged) relate directly to how you possess the contraband.Obviously, weight is relevant when ascertaining if the crime is a felony or misdemeanor, but the vast majority of offenses are defined by how the marijuana is possessed.

December 30, 2012

Stealing the Identity of a Non-Existant Person in New York: Understanding New York’s Identity Theft Statute (NY PL Article 190)

by Jeremy Saland

If not the fastest growing crime, Identity Theft is exploding in New York at a pace that is equal to or greater than almost all other offenses. As a former Manhattan prosecutor who was one of the original members of the first Identity Theft Unit and as a New York criminal lawyer who represents clients accused of New York Penal Law sections 190.78, 190.79 and 190.80, prosecutors are becoming as creative in investigating New York Identity Theft crimes as the accused are alleged to perpetrate the offenses.

As an Assistant District Attorney, I spearheaded an investigation into a large scale Identity Theft ring that involved individuals giving others permission to “steal” their identities for the benefit of third parties. An interesting theory not clearly addressed in the New York Penal Law, the defense attorneys who represented the accused did not challenge the indictment on the grounds that the evidence did not support Identity Theft in the First Degree. Years later, a similar, yet different, issue is now before the court. That is, can you steal the identity of a person who does not exist? People v. Debranche, 2012 NY Slip Op 22359, Criminal Court of the City of New York, New York County, attempts to answer this question.

December 24, 2012

Tinted Windows Defense: Challenging an Arrest and the “Fruits” of a Potentially Unlawful Search

by Jeremy Saland

Those who have never been accused of a crime often fail to recognize the value or importance of the criminal defense lawyer to the justice system. Some even have pretty nasty things to say about the defense bar. Having said that, when the police wrongfully arrest a person who may have not committed a crime, people are mortified. Sadly there is a disconnect. But for the advocacy of a criminal lawyer, the abuse, fraud or simple and honest mistake on the part of law enforcement may have gone unnoticed. People v. Wilfegher Dumay, 2012KN024855, NYLJ 1202575279850, at *1 (Crim., KI, Decided October 4, 2012), exemplifies these issues and the importance of a criminal lawyer who wants to do more than merely attempt to work out a “deal.”

In Dumay, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511.1) an unclassified misdemeanor. In sort, the defendant was allegedly driving with a suspended license. The defendant argued first that there was no reasonable suspicion to stop Dumay’s car. Alternatively, the defendant sought a hearing (often called a “Dunaway Hearing”) to challenge the probable cause to stop the defendant’s vehicle and suppress the evidence obtained as a result of an illegal stop and search. More specifically, the DMV abstract or record of the defendant’s suspension. Although the court denied to motion to dismiss, for the reasons stated below the court granted the hearing to determine whether or not probable cause existed to stop and arrest the defendant.

December 17, 2012

Resisting Arrest: The Necessity of an Authorized Arrest & the Right to Object to Unlawful Police Conduct

by Jeremy Saland

One of the most frustrating crimes that New York criminal lawyers must defend against is the crime of Resisting Arrest. Although New York Penal Law 205.30 is not as serious a crime as a felony offense, it is frustrating because for every legitimate Resisting Arrest charge that is prosecuted, there are also many violations of NY PL 205.30 that do no not warrant prosecution. For example, if someone is being disorderly or even legally confrontational with the police, a police officer may attempt to arrest that person. Should that person pull his or her arm away while the police try to handcuff him or her, the officer may decide to elevate a “non-case” into a misdemeanor. To be clear, I am in no way insinuating that the police charge this crime wrongfully with regularity, but one would be naive to think that violations of NY PL 205.30 are always based in legal arrests or based upon the spirit of the statute.

What each and every defendant and criminal lawyer must understand about the crime of Resisting Arrest is that a person is guilty of this crime only if he or she intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person. A critical component of any Resisting Arrest arrest (that sounds kind of funny, doesn’t it?!) is that the actions not only be intentional and as a means to prevent a police officer from making an arrest, but the arrest must be an authorized one. If it is not authorized, then the arrest for violating New York Penal Law 205.30 is not valid.

December 11, 2012

Challenging a New York Arrest for a Strangulation Crime: Reduction of NY Penal Law 121.12 to NY Penal Law 121.11

by Jeremy Saland

Since the New York State legislature created new violations of the Penal Law and criminal code involving Strangulation and Related Crimes, prosecutors throughout New York City and the suburbs have been bringing these cases at very serious clips. It seems that any time there is allegation of one party grabbing, pushing or even touching the neck area of another person, prosecutors charge either the misdemeanor crime of Criminal Obstruction of Breathing or Blood Circulation (New York Penal Law 121.11) or felony Second Degree Strangulation (New York Penal Law 121.12). While Strangulation is a more serious offense than Obstruction of Breathing or Blood Circulation, both crimes (even mere allegations) can destroy the life and career of any professional. Further, because of the nature of the crimes, orders of protections (restraining orders) are routinely granted by criminal court judges that keep families a part. Make no mistake. While these crimes are very real offenses and ones that prosecutors, the NYPD and all branches of law enforcement should take seriously, an accusation or allegation by law enforcement does not mean you actually committed or are guilty of these or any offense.

While this blog entry will generally address the crimes of Obstruction and Strangulation, the entry will briefly analyze a legal decision out of the Appellate Division Fourth Department that addressed a critical distinction between NY PL 121.11 and NY PL 121.12. The reduction of a felony Strangulation in the Second Degree to a misdemeanor Obstruction of Breathing or Blood Circulation can mean the difference between your family visiting you in some upstate correctional facility and you remaining free of any incarceration.

November 30, 2012

New York Gun Possession Lawyers Get Dismissal in Airport Loaded Firearm Possession Arrest

by Jeremy Saland

There are few things worse than believing you are compliant with the law, but quickly learning you are not. Even more concerning, when the crime involves the possession at an airport of a “loaded” firearm or gun that you believe is properly secured with the ammunition removed, things can look bleak very quickly. Unfortunately, this is the exact scenario a client of the New York criminal lawyers at Saland Law PC faced.

Our client, an individual involved in marketing with publicly known clients, had visited New York for only a few days. An avid sportsman, in terms of going to the range, our client brought his pistol to New York City during his stay. Although our client never used the weapon and kept it in a hard sided case with the ammunition stored separately inside, our client unwittingly violated New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree. In fact, while a reasonable person would believe he or she was in compliance with the law and kept the gun unloaded, the New York criminal law has much more liberal definition of when a weapon is armed. That is, if the weapon is capable of being loaded, such as where the bullets are in the same carrying case, the firearm is loaded for the purpose of a New York weapon arrest and prosecution. As a result, when our client checked his bags and notified airport staff at John F. Kennedy (JFK) Airport (the same would occur if this transpired at LaGuardia Airport) that he had an unloaded firearm, he was detained and arrested.

November 26, 2012

New York Penal Law 190.23: False Personation & Legally Sufficient Criminal Complaints

by Jeremy Saland

Sometimes, when we are frustrated, we tend to get “cute” or “fresh.” While talking back to your mother or a friend may get you further into an argument, doing the same with the police can make a bad situation exponentially worse. Its not just a bad attitude that can aggravate a legal situation, but should you give false information to the police in New York upon your arrest, you may find yourself charged with False Personation. A “B” misdemeanor crime punishable by jail, False Personation (New York Penal Law 190.23) is a potentially serious offense.

Fortunately, as serious a crime that False Personation may be, not all bogus answers can lead to a criminal prosecution. You are guilty of NY PL 190.23 if you are advised of the consequences of misrepresenting your name, date of birth or address to the police, you actually misrepresent that information with the intent of preventing the officer from ultimately obtaining the accurate information. While the type of behavior that is criminal seems fairly straight forward, a recent New York Criminal Court decision out of Brooklyn sheds some light on the issue of how prosecutors prove this crime.