New York Criminal Lawyer Blog

December 24, 2012

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

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.

November 3, 2012

Using a Belt to Strike a Child: Can Your Actions Constitute Assault, Endangering the Welfare of a Child & Weapon Possession?

by Jeremy Saland

Any crime that involves a child is often given extra scrutiny by prosecutors, judges and even New York criminal lawyers. Compounding matters, if that crime also includes allegations of Assault and Criminal Possession of a Weapon, there is a real concern for the accused whether or not the complaint is baseless or completely accurate in its totality. Not only are Endangering the Welfare of a Child (New York Penal Law 260.10), Third Degree Assault (New York Penal Law 120.00) and Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01) misdemeanors punishable by up to one year in jail (Rikers Island or the Westchester County Jail, for example), but where the crime involves a family member, Orders of Protection can bar you from your home and from any contact with your family.

In People v. Jose Barreiro, 2012KN013315, NYLJ 1202576305750, at *1 (Crim., KI, Decided October 18, 2012), the defendant was charged with multiple crimes including those listed above. Whether the purpose of Barreiro’s alleged actions was to ultimately discipline his child or merely to just hurt him, is of potentially little consequence. It was alleged that the defendant struck his twelve year old son with a belt. More specifically, Barreiro struck his son in the legs causing brusing and swelling. The complaint further claimed that these actions caused substantial pain to the child and that the child feared future physical injury.

October 25, 2012

25 Defendants Arrested & Indicted in Queens Gambling Bust: DA Claims PinnacleSports.Com, JazzSports.Net, Wager4You.Com and PlayHera.Ag Violated Criminal Laws

by Jeremy Saland

Queens District Attorney Richard Brown has once again flexed his prosecutorial muscle and demonstrated that the epicenter of white collar crime may have shifted to one of New York’s outer boroughs. According to a press release, Queens prosecutors obtained an indictment charging Enterprise Corruption (one of New York’s most serious non-violent criminal charges), Money Laundering, Promoting Gambling and other felony offenses against alleged illegal gambling crews. According to prosecutors, the 25 men and women caught up in the sweep are not mere gamblers, but are involved in an international gambling conspiracy.

These new arrests are not the first time, nor likely the last, DA Brown has vigorously pursued illegal gambling operations. Netted in the alleged $50 million conspiracy are:

October 23, 2012

E4AKorea.Com & E4ANYC.Com Target of NYPD Sting: More Arrests on the Horizon?

by Jeremy Saland

In what one can easily describe as anti-climactic after the imposition of more than a million dollars bail, the 50 Shades of Grey-worthy prosecution of Anna Gristina has evidently left law enforcement clamoring for more salacious prosecutions. Fortunately, law enforcement can satisfy this empty void with the arrest of alleged pimp William Thomas. While pursuing crimes in the “streets as well as the suites” has apparently changed to crimes in “streets as well as the sheets,” not all escort related arrests are treated the same. In fact, the Manhattan District Attorney’s Office secured a more reasonable and appropriate $10,000 bail for Thomas after his arrest for Promoting Prostitution.

According to the New York Post, an undercover police officer (who likely protested that he was assigned to the hard work of masquerading as a “John” pursuing a fetish for attractive Asian women instead of taking guns and drugs off the streets), met with Thomas after searching for escorts through www.E4AKorea.com and www.E4ANYC.com. It was through these websites that the NYPD and Manhattan prosecutors claim that Thomas advertised services of his nubile associates for up to $300 an hour.

October 13, 2012

Mere Presence of a Child in a Physical Dispute: When Conduct Not Aimed at a Child is the Basis for a New York Endangering the Welfare of a Child Arrest

by Jeremy Saland

People are arrested for Endangering the Welfare of a Child (New York Penal Law 260.10) based on a variety of allegations. While some are clear and obvious, other crimes in New York and arrests for Endangering the Welfare of a Child are not so blatant.

In People v. Nadine Brown, 2012QN029277, NYLJ 1202572202951, at *1 (Crim., QU, Decided September 5, 2012), the complainant in an arrest that charged, among other crimes, Endangering the Welfare of a Child, stated that the defendant spat on her, pulled her hair and stopped her from calling 911. Further, the defendant allegedly slapped a cell phone from the complainant’s hand and threw a glass picture frame at her causing the picture frame to break. Compounding matters, and the factual allegations that formed the basis of the motion to dismiss, the above incident was alleged to have transpired in the presence of the complainant’s six year old child.

October 7, 2012

Reckless Driving (NY VTL 1212) & DWI (NY VTL 1192): Is Evidence of Intoxication Per Se Proof of Recklessnes in a New York DUI Arrest

by Jeremy Saland

New York State has very strict DWI and DUI laws. The crimes that constitute Driving While Intoxicated and Driving Under the Influence range from misdemeanor offenses to felonies. In many of these drunk driving arrests, the police or prosecutors seek to enhance charges based on a variety of circumstances. In fact, where a “normal” DWI for having a .08 or higher blood alcohol content is a violation of VTL 1192.2, there is an automatic enhancement to a felony if a child under the age of sixteen is in the vehicle. You and your New York DWI lawyer will obviously need to assess the landscape of your case and determine the best defense to prevent a lapse in judgement from becoming a crime that lands you in a New York State prison.

In addition to the using “Leandra’s Law” to increase potential charges in a New York DUI and DWI arrest, another crime that is often alleged in a drunk driving incident is the crime of Reckless Driving (VTL 1212). A question that inevitably comes up in these cases is whether or not the conduct of the accused was in fact reckless or whether the prosecution is hanging its proverbial hat on the fact that the true underlying allegation is a DWI. Depending on the factors, your New York DUI lawyer will likely argue that barring other reckless elements, the mere allegation that you were driving drunk does not satisfy the requirements of a Reckless Driving offense.