New York Criminal Lawyer Blog

August 19, 2012

Criminal Possession of a Weapon Defense: Does the “Car & Automobile Presumption” for New York Firearm & Gun Possession Apply if the Weapon is Inoperable?

There are few crimes that prosecutors in New York take as seriously as those involving the illegal possession of firearms, revolvers, pistols, glocks and other weapons. In fact, not only is it an “automatic” felony in New York to possess a loaded firearm outside your home or place of business without a permit to do so, but even if you are lawful gun owner and permit holder in another state, you must have permission from New York to possess that firearm here. Should you fail to secure a New York permit (there are different types of permits that allow certain types of possession), you can and likely will be arrested for Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). This crime, a “C” violent felony, is punishable by a mandatory minimum term of 3.5 years in a New York State prison and a maximum term of 15 years. This law holds true whether or not you are trying to check your firearm properly at JFK or LaGuardia Airports on a flight out of New York City (see recent cases prosecuted by the Queens County District Attorney’s Office) or you are merely trying to do the “right thing” by “turning in” your gun at Ground Zero in lower Manhattan upon realizing that your possession is not legal or proper (see recent cases prosecuted by the Manhattan District Attorney’s Office). While the important and commendable intent and purpose of the criminal statutes found in Article 265 are there to curb illegal gun sales, gun trafficking and gun violence, it unfortunately also gives District Attorney’s Offices the ability to hammer (or threaten to do the same) otherwise law abiding citizens who are not familiar with New York’s strict gun laws.

Colloquy aside, whether you are a resident of New Hampshire riding in a vehicle with another person who legally owns a firearm in that state or you are a passenger in a vehicle with someone who has a defaced firearm that he or she plans on using in a “stick up,” can you be charged for possessing that firearm even though it was not on your person or in your actual physical possession? The general answer to this question is found in a New York Penal Law 265.15(3). The presence in an automobile (with some exceptions) of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found (again with some exceptions such as the firearm being found on the person of another passenger or driver). Taking this question or issue a step further, what if the firearm found in that vehicle is inoperable? Does the presumption still apply to guns that do not work? The answer appears to be that it does not.

August 10, 2012

Defending a New York Felony Assault Arrest: Small Scars, Lacerations & Second Degree Assault (NY PL 120.05)

by Jeremy Saland

New York Assault lawyers and criminal defense attorney who routinely practice in New York’s criminal courts see Assault prosecutions involving the entire spectrum of injuries. For example, common Third Degree Assault (New York Penal Law 120.00) allegations occur after two people get into a fist fight. Maybe one person took a worse lickin’ and received a punch to a jaw that left him soar and bruised. Alternatively, during another melee a spouse had scratches to his or her neck or arm with some redness. As long as prosecutors can establish intent to cause a physical injury and the actual suffering of a physical injury (generally described as substantial pain and illustrated throughout numerous blog entries in Saland Law PC’s NewYorkCriminalLawyerBlog.Com), NY PL 120.00 is proveable. What is more difficult, however, is establishing the level of injury required to achieve an arrest, indictment and conviction for Second Degree Assault according to New York Penal Law 120.05. In this felony level Assault, the degree of injury is defined as serious physical injury.

Whether one deems it fortunate or unfortunate, prosecutors often attempt to push the law in a manner favorable to their goals. Sometimes this comes in the form of “overcharging” a defendant for a crime to help achieve a plea. Regardless, if prosecutors cannot prove the level of injury required by statute, then the Assault charge should either be reduced or dismissed. In People v. Ricky Trombley, 104135, NYLJ 1202564193232, at *1 (App. Div., 3rd, Decided July 12, 2012), an Appellate Court did just that.

August 6, 2012

UPDATED – Stephanie Pratt’s Boyfriend Faces Possible New York Felony Assault Charges: Trumped Up Arrest Charges or Viable Case Against Julien Chabbott?

by Jeremy Saland

In what appears to be a failed low speed getaway, the boyfriend of dime-a-dozen reality “star” Stephanie Pratt was arrested yesterday for allegedly rolling over the foot of a police officer in Manhattan. According to earlier reports, Julien Chabbott was charged with Second Degree Assault (New York Penal Law 120.05(3)), Vehicular Assault (New York Penal Law 120.03) and Obstruction of Governmental Administration (New York Penal Law 190.50). However, it appears that only the misdemeanor crimes of Third Degree Assault and Obstruction of Governmental Administration are being prosecuted. While I am confident Manhattan District Attorney Cyrus Vance, Jr. did not envision he would be juggling cases of such magnitude upon being elected as Manhattan’s chief prosecutor, I am equally confident he and his office will get to the bottom of this allegedly bone-headed move (just accept the ticket, man!!!).

As a preliminary matter, Chabbott apparently lacks the minimum level of common sense one would expect from the average self-absobred twenty-something who can only afford a zip car. If a police officer is issuing you a ticket, don’t get in his or her face, grab the ticket from his or her hand or…wait for it…drive away as he or she is standing immediately next to or in front of your car. While stupidity is fortunately not a crime, Chabbott’s alleged charades may be. So, instead of sleeping at nearly 1:00 am, let me quickly and briefly dissect some of the potential charges.

August 2, 2012

Don’t Take That Picture!! Understanding NY PL 250.45 & Unlawful Surveillance

by Jeremy Saland

In its most common form, Unlawful Surveillance in New York City (or just about anywhere), usually rears its head as a building superintendent putting a camera in the bathroom or a store employee setting up a video recording system in an area where people change. Having said that, an arrest for Unlawful Surveillance need not be in such places. Even lesser conduct and video recording can result in a criminal charge. In fact, one has to look no further than the arrest of Adam Levinson, a urology professor at New York’s prestigious Mount Sinai Hospital’s school of medicine. It is alleged that Dr. Levinson used a pen camera to peak up strapphangers’ skirts that traveled the labyrinth of subway passages in New York’s subterranean underground. Although this was not a stationary video camera placed in a vent or disguised as a clock, Levinson’s alleged technique is no less criminal.

According to reports, Dr. Levinson was initially held on $15,000 bond (no, not the James variety even with an otherwise nifty spy camera). Because the accusation is that he was attempting to or actually taking pictures up women’s skirts, prosecutors are charging Dr. Levinson with the “E” felony offense of Unlawful Surveillance in the Second Degree. New York Penal Law 250.45(2) is committed when a person, for his (usually) or her own sexual arousal or for the sexual gratification of another, intentionally uses or installs (or allows the same) an imaging device. Further, that person must surreptitiously view or record his or her target dressing or undressing. Alternatively, this viewing or recording must be of the sexual or intimate parts of that person in a place and time when that person reasonably believes he or she is entitled to privacy. Lastly, the target or victim must either have no knowledge of the surveillance or not give consent.

July 23, 2012

New York DWI Primer: Assessing the Legality of a New York DWI Checkpoint Arrest

by Jeremy Saland

Whether you are operating a motor vehicle in Manhattan, Brooklyn, Westchester or anywhere else in New York State, the DWI laws are all the same. For example, if you “blow” and register a .08 or higher BAC, you will face a per se arrest charge of Driving While Intoxicated pursuant to New York Vehicle and Traffic Law 1192.2. As a New York DWI lawyer I have seen District Attorney’s Offices vary in their respective offer thresholds (meaning how high a blow is tolerated) when an individual is arrested for DWI, DUI or drunk driving. However, New York DWI law limits what may ultimately be offered in these DUI cases and what a defendant is required to do in order to regain their your driving privileges.

Beyond potential offers, the manner in which your arrest for DWI occurred in New York may also be relevant in the ultimate resolution. Certainly, if you were observed swerving and almost striking a car or person it is more likely the offer will be more severe if one is made at all. What if, however, your stop and arrest was a product of a checkpoint? While the checkpoint itself is not indicative of the type of offer, if any, you will receive, the checkpoint’s legality and validity is critical. If for some reason you are arrested for Aggravated DWI for blowing a .18, for example, and you were stopped pursuant to a police checkpoint, prosecutors would likely not make you any offer. However, if you had a potent legal defense, such a valid challenge to the checkpoint procedure and implementation, an offer may not be needed at all. Challenging the checkpoint and ultimate search and seizure of your person, as difficult as it may be, is an avenue that should not be ignored. Although it failed in the case below, the following decision offers a good, but very basic, primer on DWI checkpoints.

July 16, 2012

Criminal Diversion of Prescription Medication: Dismissing NY PL 178.10 for Failure to Establish Reasonable Cause

by Jeremy Saland

In substance, New York Penal Law 178.10, Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, prohibits one from knowingly transferring a prescription medication in exchange for anything of value if the individual should have reasonably known that the recipient had no medical need for the medication. This Fourth Degree Criminal Diversion is an “A” misdemeanor and is punishable by a year in jail. For many individuals arrested for NY PL 178.10, whether or not a jail sentence is served is secondary to the potential of being forever saddled with a criminal record even if he or she never steps foot inside a jail cell. Whether a misdemeanor criminal conviction will lead to a termination of employment, a loss of a professional license or certification or cause a myriad of long term collateral issues, properly handing a New York Criminal Diversion of Prescription Medications arrest or charge is critical. While no Criminal Diversion attorney or New York drug lawyer can guarantee a particular defense will ever work, covering each and every base will certainly increase your likelihood of success when challenging the charge against. The following case is an example of this approach where the charge of New York Penal Law 178.10 was ultimately dismissed due to a failure of the prosecution to establish reasonable cause that prescription medication was actually transferred.

In People v. Tracey Dubois, 2012NY020323, NYLJ 1202558131222, at *1 (Crim., NY, Decided May 25, 2012), the police arrested and charged Dubois with violating New York Penal Law 178.10 after he allegedly sold the prescription medication Vistaril (hydrazine hydrochloried) to another individual. In support of the arrest and charge, the New York City police officer claimed that he observed Dubois transfer a small object to another individual in exchange for money. Additionally, the police officer further asserted in the complaint that after a pat-down, his sergeant found a bottle containing nineteen (19) pills of Vistaril in Dubois’ front right pants pocket. Furthermore, the officer contended that Dubois told him in substance the pills were prescription sleeping pills and that he saw an opportunity to sell them. Dubois moved to dismiss the charges against him on the grounds that the facts failed to provide enough evidence to support he had committed the crime of Criminal Diversion of Prescription Medication in the Fourth Degree.

July 9, 2012

Second Degree Harassment: What Can Happen to an NY PL 240.26 Charge When Your Initial Arrest was Unauthorized

by Jeremy Saland

While some New York criminal lawyers, prosecutors and judges use the term “fruit of the poisonous tree,” the wording is not nearly as important as the concept in criminal law. That is, if initial conduct by a police officer is unauthorized, for example, the recovery of contraband or property may not be used against the accused. On a similar note, if the police made an unlawful arrest and you refuse to be handcuffed during that unauthorized arrest, then the charge of Resisting Arrest, pursuant to New York Penal Law 205.30, is not sustainable (Keep in mind that such a determination is not always clear. Certainly, resisting at the time of your arrest because you believe that the arrest is unauthorized is not a smart thing to do!). This blog entry will deal with a similar variation of this theme while addressing the violation of Harassment in the Second Degree pursuant to New York Penal Law 240.26(1).

By way of background, and before addressing the legal decision on this topic, a person is guilty of Harassment in the Second Degree (NY PL 240.26) if and when that person has the intent to harass, annoy or alarm another person and, according to subsection one, that person strikes, shoves, kicks or subjects that other person to any physical contact. Further, attempting or threatening to do the same is sufficient to form the basis of Second Degree Harassment.

July 2, 2012

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

by Jeremy Saland

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?