New York Criminal Lawyer Blog

July 2, 2012

New York VTL 511 Arrests: Understanding the Knowledge Element in Third Degree Aggravated Unlicensed Operation of a Motor Vehicle

Driving with a suspended license in New York may seem like no big deal, but Aggravated Unlicensed Operation of a Motor Vehicle (Vehicle and Traffic Law 511, a/k/a VTL 511), is not only serious, but a criminal offense. Although not a part of the New York Penal Law, VTL 511 is an unclassified misdemeanor punishable by up to thirty days in jail. As such, should you be arrested for Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree and ultimately convicted of VTL 511 in New York, you will have a permanent record. It makes no difference whether the issuing state for your license is New York or elsewhere.

Whether a police officer arrests you for VTL 511 and gives you a New York City Desk Appearance Ticket or processes you through court that same day, the law is the same. In a nutshell, if you operate a motor vehicle in New York while your license or privilege to do so in this state is suspended or revoked (and you know or have reason to know), you are guilty of Third Degree Aggravated Unlicensed Operation of a Motor Vehicle. Although the law is fairly clear, how can you “beat” a VTL 511 case if in fact your license to drive in New York is suspended? While I wish there was a catch all answer, the following case demonstrates the significance not merely of the actual suspension or revocation, but the critical element of knowledge in an unlicensed driving allegation. Simply asked, if the People (prosecution) can prove your license was revoked or suspended, do they still need to establish your knowledge of the same? The answer to this question is found the recent decision of People v. Krystal Francis, 10257/2010, NYLJ 1202558131182, at *1 (Sup., KI, Decided May 29, 2012).

June 19, 2012

Obstructing Governmental Administration in the Second Degree: Understanding What Types of Actions Validate a NY PL 195.05 Arrest

by Jeremy Saland

All crimes in New York, whether you are arrested in Manhattan or somewhere in Westchester County, have specific elements that prosecutors must prove beyond a reasonable doubt. While some elements are fairly straight forward, other elements have their own legal definitions or case decisions that are utilized to explain or further define them. One of those offenses that is better understood in the context of legal decisions is the crime of Second Degree Obstructing Governmental Administration. An “A” misdemeanor, a person convicted of New York Penal Law 195.05 faces up to one year in jail. Using the examples above, if that conviction occurred in Manhattan or anywhere in New York City, the time served would be on the infamous Rikers Island. Incarceration in White Plains, New Rochelle, Yonkers or anywhere in Westchester County would be served in the Westchester County Jail.

Regardless of whether, probation, community service or time served is a sentence for NY PL 195.05, prosecutors must have enough evidence to establish the crime and have a legally sufficient complaint. To do so, a misdemeanor complaint must allege (in substances) that you intentionally obstructed or impaired the administration of law or other governmental function or prevented or attempted to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.

June 14, 2012

Drake – Brown Beatdown: Possible Criminal Arrests & Charges After Club WIP Bar Fight in Manhattan

by Jeremy Saland

According to reports, rapper-singers Drake and Chris Brown, along with their respective entourages, OD’d in testosterone and supposed manhood at Manhattan’s club W.I.P. Whether it was the result of one too many cocktail, it is alleged that Drake taunted Brown over the former’s “between the sheets dancing” with the over-hyped songstress, Rihanna. If reports are true, the sensitive Brown and sophomoric Drake engaged in bottle tossing mayhem that resulted in what appears to be some fairly serious injuries. Although this blog entry will not address the civil liability of SoHo’s club W.I.P. or the two Top 40 knuckleheads for the alleged brawl, there certainly could be arrest charges in Manhattan should the police and prosecutors be able to identify individuals and their conduct during the “chivalrous bout” over Rihanna’s honor.

If the police can identify the person who instigated the melee as well as those who were involved in and advanced the shenanigans, prosecutors must also be able to establish their respective actions. Not addressing all of the issues that would arise in a prosecution, what are some of the charges a defendant could face should everything fall into place for the Manhattan District Attorney’s Office?

June 10, 2012

Establishing Unauthorized Use of a Computer & Third Degree Identity Theft in New York Courts

by Jeremy Saland

Prosecutors, judges and New York criminal lawyers are seeing more and more arrests for Identity Theft and Unauthorized Use of a Computer. As misdemeanors, Identity Theft in the Third Degree (New York Penal Law 190.78) and Unauthorized Use of a Computer (New York Penal Law 156.05) are very serious and very real crimes in New York. In fact, not only is a conviction for one of these crimes permanent, but a sentence for up to one year in jail is on the table.

Very briefly, one is guilty of NY PL 190.78 when one knowingly, along with a desire to defraud another, assumes the identity of another person or uses that person’s personal identifying information and either commits another “A” misdemeanor crime (such as unauthorized Use of a Computer) or uses credit or obtains money or property of another person. One is guilty of NY PL 156.05 when one accesses or uses a computer, computer service or computer network without permission.

June 3, 2012

Tiger Woods’ Agent, Mark Steinberg, Arrested for Aggravated DWI in Ardsley, New York: A Practical Criminal Law Analysis of NY DWI Law

by Jeremy Saland

Mark Steinberg, Tiger Woods’ agent, was arrested Saturday evening in the Westchester County town of Ardsely, New York for drunk driving and DWI. According to reports, Steinberg allegedly recorded a .18 on the intoxilyzer. The legal limit in New York State is .08. Once a driver blows .18 or higher on a breathalyzer, the misdemeanor offense is enhanced in terms of potential punishment while possible offers are limited by law from standard Driving While Intoxicated and DWI arrests.

Briefly, Vehicle and Traffic Law (VTL) 1192.2 is New York’s typical DWI statute when the police are able to obtain a reading of ones breath/blood alcohol content, or BAC, of .08 or greater. At one’s arraignment, the court will suspend the driver’s license or privilege to drive in New York for thirty days and require that the defendant meet with a therapist for an assessment. This assessment will address alcohol use, possible abuse and potential treatment. In limited circumstances, the court can conduct a “Hardship Hearing” if the suspension would cause and an extreme hardship for the defendant to get from his or her home to work or school. In such circumstances, a court will not grant this limited conditional license to drive unless the defendant establishes inability to obtain alternative means of travel. It is worth noting that at the Hardship Hearing a defendant must provide evidence beyond his or her own testimony to corroborate and establish the extreme hardship.

June 3, 2012

Foreign Nationals Visiting NYC: How to Deal with Unresolved NY Arrests and Desk Appearance Tickets Still Pending After Leaving the United States

by Jeremy Saland

There are few things more frightful and concerning than being arrested in a nation where you do not reside. Compounding matters, because the United States has a unique criminal justice system, you may not have any idea about the arrest process and what you may face whether you were charged with a crime in New York City (Manhattan, Brooklyn, Queens, etc.), White Plains or some other jurisdiction. Not only will you have to contend with collateral immigration issues of your arrest such as how to renew your visa (if you can), what will you do if you plan on leaving New York and returning home before your case is resolved? For example, if you are issued a Desk Appearance Ticket (DAT) to return to Manhattan Criminal Court weeks after you go back to your home nation, how will you avoid a Bench Warrant from being issued and an arrest upon your return to the United States? Even if you wanted to stay and fight your case, what will happen if you overstay your visa?

Before addressing the issues mentioned above, please note that this blog entry merely addresses misdemeanor crimes in New York and not felony offenses in the context of an arrest of a foreign national. Not only are felony crimes much more serious, but these crimes have a separate set of procedural rules that may not be applicable to their misdemeanor brethren. Having addressed that, some of the more common misdemeanor arrests that foreign nationals face and those I have defended against as a New York criminal lawyer have been shoplifting (Petit Larceny – New York Penal Law 155.25 and Criminal Possession of Stolen Property in the Fourth Degree – New York Penal Law 165.40), possession of drugs such as cocaine, heroin or other controlled substances (Criminal Possession of a Controlled Substance in the Seventh Degree – New York Penal Law 220.03), jumping a turnstile or failing to pay a cab driver (Theft of Services – New York Penal Law 165.15) and possession of a marijuana joint or pipe open to public view (Criminal Possession of Marijuana – New York Penal Law 221.10). Far from an exhaustive list, if you, as a foreign national, provided a local address, the NYPD officer who arrested you may have given you a Desk Appearance Ticket (DAT) for your return to court on a future date. You will not be processed through “the system” in the same manner as if you committed a felony or a similar misdemeanor without establishing ties to New York City.

May 20, 2012

Gravity Knife Arrests in New York: Is a Police Officer’s Mere Conclusion that You Possessed a Gravity Knife Sufficient to Support a NY PL 265.01 Complaint

by Jeremy Saland

The most common crime involving weapon arrests in New York is likely Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 265.01(1). This specific subsection involves per se weapons defined by statute. If you broke this crime down further in terms of the type of weapon involved in a New York City – Manhattan, Brooklyn, etc., prosecution, you would likely find gravity knives and switchblade knives on the top of the list. From personal experience as a New York criminal lawyer and former Manhattan prosecutor, I have seen hundreds of these offenses prosecuted in the criminal courts through NYC Desk Appearance Tickets (DATs) as well as “full” arrests.

For better or worse, the police and Assistant District Attorneys are fairly efficient when prosecuting misdemeanor weapon cases. Sometimes it appears that the complaint charging the accused with a crime is “cookie cutter” in nature. That is, it seems like boiler plate language is used with minimal “fill in the blank” requirements. In fact, some of these crimes, as well as other offenses including Petit Larceny and Criminal Possession of Stolen Property (NY PL 155.25 and NY PL 165.40 respectively), use pre-drafted and box checked supporting depositions. From an untrained eye it seems that all the thought and diligence is taken out of the process.

May 13, 2012

Is Proof of an Out of State Firearm Permit or License a Defense to the Charge of NY PL 265.03 – Criminal Possession of a Weapon in the Second Degree?

by Jeremy Saland

As a preliminary matter before addressing the issue and court decision in this blog entry, I want to briefly state the law of possessing unlicensed firearms, guns, revolvers, pistols, etc. in the State of New York. Pursuant to New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, it is a felony offense to possess a loaded firearm in New York outside your home or place of business without a license to do so. If convicted, someone with no prior criminal history would face a minimum of 3.5 years to 15 years in state prison.

Having briefly addressed the law in New York, I want to discuss a recent criminal decision that stemmed from Queens County in New York City. In the People v. Dwayne McLaren, 2159/2010, NYLJ 1202552954788, at *1 (Sup., QU, Decided April 27, 2012), the defendant argued the court erred by denying him his Due Process right to a fair trial by precluding him from introducing into evidence the fact that he possessed a valid license to carry a concealed and loaded weapon in neighboring Connecticut.

May 8, 2012

Presuming Criminal Intent when Possessing a Non Per Se Weapon: Understanding New York Penal Law Article 265 Crimes

by Jeremy Saland

There are few crimes – misdemeanor or felony – that are as fiercely prosecuted by Assistant District Attorney’s throughout New York than weapon crimes. Whether the offense is of the misdemeanor variety (NY PL 265.01) and involves a gravity knife or the crime is of the felony level and involves possession of an unlicensed and loaded firearm (NY PL 265.03), prosecutors routinely take hard stances against alleged offenders. In response, New York criminal lawyers and defense attorneys who represent clients in weapon crimes find themselves either searching for a defense that exonerates a client, sufficiently challenges the legality of the allegation or mitigates the accused’s conduct.

An issue that often arises in New York weapon crimes involves those offenses that require an “intent to use unlawfully” verses those crime that are per se based on the type of weapon possessed. The latter crimes are weapon offenses that are unlawful merely based on the type. In other words, these crimes violate the law even if you displayed no hint or desire for wrongdoing.

April 25, 2012

New York DWI & DUI Arrests: When the Police Fail to Establish “Operation” & Probable Cause in a VTL 1192 Case

by Jeremy Saland

I don’t know how many times I can say it, but New York drunk driving crimes and driving while intoxicated arrests have enormous ramifications. Compounding matters, criminal attorneys and New York City DWI lawyers often face evidence that is videotaped and based in chemical tests that is difficult to controvert. Even when prosecutors have what appears to be strong evidence of a DUI, the best defense may not be challenging the ultimate determination as to whether the person in question was driving drunk or had a chemical test result .08 or greater. Instead, the best defense may be attacking whether the police had the authority, ability or probable cause to arrest the accused in the first place. This precise issue – probable cause to arrest – was exactly what was litigated in People v. Dwight Ramsey, 069905C2009, NYLJ 1202549717499, at *1 (Sup., BX, Decided April 16, 2012) and worthy of a review in this blog entry.

In Ramsey, the defendant was arrested for violating VTL 1192 (the misdemeanor DWI crime in New York) after the police observed him in his vehicle with a woman. Upon approaching the car, the police claimed they noticed the smell of alcohol, the key in the ignition and ultimately the defendant’s inability to stay balanced. The defendant contended, in substance, that the key was not in the ignition, he was going to get some music CDs with the woman, he had not violated and traffic laws or parking regulations and ultimately the police lacked probable cause to arrest him.