New York Criminal Lawyer Blog

November 3, 2012

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

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.

October 2, 2012

Self Defense in a New York Assault Case: Justification & Initial Aggressor

by Jeremy Saland

New York Assault arrests easily make up the majority of violence related crimes in New York as a singular group of offenses. Whether the crime is a Domestic Violence offense, a bar fight constituting Third Degree Assault, a misdemeanor Desk Appearance Ticket or a more serious Second or First Degree Assault where either a weapon is used or an alleged victim suffered a serious physical injury, Assault crimes expose those accused to potentially long terms of incarceration. Because of this, it is critical for your New York Assault lawyer or criminal defense attorney to identify potential defenses and pursue the same as soon as he or she is retained. After all, witnesses may forget what happened, defensive injuries may heal over time and other evidence may just be lost.

Before addressing the affirmative defense of “self defense,” also called the defense of “justification,” in a New York Assault arrest, I want to briefly address New York Assault law. Generally, the basic idea or concept of a New York Assault case is that you intentionally (there are reckless crimes as well) cause physical injury to another person. These actions are the elements of Assault in the Third Degree (New York Penal Law 120.00). What enhances the misdemeanor offense to the felony crimes of Second Degree Assault (New York Penal Law 120.05) or First Degree Assault (New York Penal Law 120.10) are such factors as the nature of an injury being classified as “serious physical injury” or the use of a dangerous instrument or weapon during the crime.

September 23, 2012

Batchuta the Tiger’s Playmate Arrested for Trespass: Insanity Defense for David Villalobos’ Bronx Zoo Escapade?

by Jeremy Saland

David Villalobos, the young man arrested for allegedly wanting to “become one” with a Bronx Zoo tiger, is far from the first New Yorker to commune so closely with nature. Antoine Yates, a/k/a, the “Tiger Man of Harlem,” has that distinct “honor.” In fact, as a prosecutor in the Manhattan District Attorney’s Office, I was the Assistant District Attorney that handled Mr. Yates’ case. Unlike Villalobos, Mr. Yates was indicted for numerous crimes including felony Reckless Endangerment in the First Degree (New York Penal Law 120.25). Ultimately, because Ming the tiger had free range inside a large sprawling apartment in a public housing complex where children, building employees and other residents were potentially accessible, Yates pleaded guilty to felony Reckless Endangerment. Now retired Supreme Court Justice Budd Goodman sentenced Yates to five years probation along with a few months on Rikers Island.

Despite the similarity in the apparent love of all things Animal Planet, Villalobos’ case is starkly different. That is, while his actions certainly imperiled his own health, children, police officers an other denizens of New York City were not potential prey. In fact, unlike an apartment where a housing employee may have access and enter the premises only to be surprised by a large feline (let’s not forget the cayman who took up residence outside the bathtub), Villalobos had to drop down approximately seventeen feet above to access the Bronx Zoo tiger den. Simply, Villalobos only endangered himself.

September 20, 2012

New York Criminal Lawyers Obtain Non-Criminal Resolution in Manhattan Felony Drug Arrest

by Jeremy Saland

New York drug crimes and the former “Rockefeller Drug Laws” were, and currently are, some of the strongest criminal laws on the books. In fact, New York drug attorneys and New York criminal lawyers often face down sentences where clients may be looking at mandatory imprisonment. For example, if you possess certain weights of drugs or you sell even an insignificant and personal use amount of cocaine (one might rightly argue there is no such thing as insignificant), you will face a presumptive minimum of one year and a maximum of nine years in state prison. While a first time offender convicted for Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law 220.39) or Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law 220.16) faces significant incarceration, even lesser offenses can carry similar punishment.

Regardless of the crime and sentence one may face for a New York drug crime arrest, those accused of these crimes may be pawns in a bigger scheme or otherwise good people who have been caught up in a terrible situation. Not only is it incumbent upon your criminal lawyer to advocate as strongly as possible, but it is equally important for him or her to ascertain whether the best defense to your New York City or suburban drug arrest is to challenge the legality of searches, probable cause and other evidence or to mitigate the conduct for which you are accused.

September 14, 2012

Arrested for Domestic Violence in New York: Understanding the Process, Crimes and Procedures

by Jeremy Saland

New York Domestic Violence crimes are some of the most serious offenses found anywhere in the criminal law (and rightfully so). Well beyond allegations of Assault, these crimes cover a wide spectrum of conduct. Regardless of the offense charged, the significance of a New York Domestic Violence arrest or accusations is evident in its handling by the branches of law enforcement. For example, the New York City Police Department (NYPD) has specially trained Domestic Violence officers that work in their respective precincts directly with those who are victims of Domestic Violence crimes. In the City’s District Attorney’s Offices (Manhattan, Brooklyn, Queens, etc.), prosecutors are either specially trained to manage Domestic Violence cases or they may be assigned to a Domestic Violence unit.

As important as it is for law enforcement to investigate, arrest and prosecute offenders of abuse, an allegation against a “family member” does not mean the believed crime actually occurred. As much as we are all quick to judge what we may read in the news and assume that an accused is a batterer of a spouse, child, etc., it is imperative to recognize one is innocent until proven otherwise. Regardless of the crime, sometimes it takes your wrongful arrest or a false accusation against a family member before this principle hits home.

September 10, 2012

Dismissing a New York DWI Arrest Based Solely on an Admission: DUI Crimes in the Context of CPL 60.50

by Jeremy Saland

Sometimes the best defense to a New York DWI arrest or any DUI related crime may be right in front of your face. That is, the evidence against you may be strong – you blew above a .08, you were swerving in your vehicle and had blood shot eyes – but the four corners of the criminal complaint do not properly establish the crime of drunk driving. Instead of your New York DWI lawyer factually challenging the allegations and contesting your BAC at a hearing or trial, the first step in your defense may be filing a motion with the court to have your case dismissed for facial insufficiency. In other words, regardless of all of the evidence that may or may not come out at trial, the legal complaint against you is not sufficient enough to move the VTL 1192 case forward.

In People v. Dwight Padmore, 2011KN048590, NYLJ 1202570516971, at *1 (Sup., NY, Decided September 5, 2012), the strategy implemented by the criminal defense was just as described above. If, as the defendant’s criminal lawyer believed, the criminal court complaint charging DWI (Vehicle and Traffic Law 1192.3) was insufficient, then prosecutors should be barred from moving the criminal case forward with this complaint. In a fairly unique set of facts, the complaint (which became an “information” once all hearsay was removed) stated in substance that the arresting officer observed the defendant standing behind a car that had been damaged. The defendant admitted to driving and swiping the vehicle and that friends had driven his vehicle away. Further the defendant agreed to pay for the damages that the officer observed. Beyond this description, the police officer further gave the “catch all” description of the defendant’s believed intoxication indicating that he had watery blood shot eyes and smelled from alcohol.