New York Criminal Lawyer Blog

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?

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.

April 23, 2012

DA Vance: Grip Entertainment’s PA to NY Sex & Prostitution Ring Trafficked Women in Multi-Hundred Thousand Dollar Scheme

by Jeremy Saland

Manhattan District Attorney Cyrus Vance, Jr. has struck again in his pursuit of eradicating the worlds oldest illegal profession outside of Reno, Nevada. According to New York City newspapers as well as the New York County DA’s Office website, Anna Gristina has some new proverbial bedfellows in Grip Entertainment’s Vincent George, Jr., Vincent George, Sr., Asama Ahmad, Qabari Gaber, Theo Jones, David Lombardo, Assaf Nahomove and Sokol Perkaj. In varying capacities, each of the men face at least one count of Promoting Prostitution. Of significant concern for others, prosecutors claim that “johns” or men who paid for the prostitutes, will be prosecuted in coming days.

It is alleged that at least both Georges pimped out women in a prostitution ring that reached far beyond the Island of Manhattan. Prosecutors claim that the Georges father-son duo created Grip Entertainment as a front to launder money they illegally obtained through sex trafficking. Assisting them were six livery drivers – Ahmad, Gaber, Jones, Lombardo, Nahomove and Perkaj.

April 9, 2012

Alec Baldwin’s Alleged Stalker Charged with Second Degree Aggravated Harassment & Fourth Degree Stalking: A Review of the NY Criminal Statutes

by Jeremy Saland

Alec Baldwin, the brash Long Island native known equally for his comedic skills, left leaning politics and abrasive rants against his daughter and a flight attendant, seems to be a victim of stalker. According to the Manhattan District Attorney’s Office and numerous media outlets, Genevieve Sabourin has been “hot to trot” with the eldest of the Baldwin clan. Unfortunately for the Canadian Sabourin, Baldwin is not interested in the 40 year old, but with the 28 year old Hilaria Thomas with whom he recently had a child. Even potentially more upsetting for the accused stalker, Sabourin now faces the wrath of Cyrus Vance, Jr. as his prosecutors filled a criminal court complaint charging her with numerous crimes including two counts of Aggravated Harassment in the Second Degree (New York Penal Law 240.30) and two counts of Stalking in the Fourth Degree (New York Penal Law 120.45). Regardless of whether or not Sabourin is ultimately convicted, the Manhattan Criminal Court will issue an Order of Protection or Restraining Order preventing Sabourin to have any contact what-so-ever with Baldwin. Unless the case is dismissed in some capacity, this Order of Protection will remain in place until the case is resolved and then a final Order will be issued.

The conduct that is the basis of these crimes stems from Sabourin’s alleged pursuit of Baldwin that including texting her love for the “30 Rock” actor as well as a desire to have his child. Compounding matters, it is alleged that Sabourin went to Baldwin’s home in Manhattan where she hoped to make further contact. This is not the first time law enforcement claims that Sabourin chased Jack Ryan as she recently tried to engage the actor at his Hamptons home.

April 8, 2012

New York Refusal and Common Law DWI Arrests: When Your BAC May be Admissible Against You Even After You Refuse to “Blow”

by Jeremy Saland

Section 1192 of the New York Vehicular and Traffic Law (VTL 1192 ) sets forth what constitutes Operating a Motor Vehicle While Under the Influence of Alcohol or, as most people call it, Drunk Driving, DWI or DUI. The consequences of a conviction can be life changing in terms or a criminal record, but also on one’s ability to drive a vehicle in New York. Having represented a variety of clients in all types of DWI arrests in New York City and Westchester County from Aggravated Driving While Intoxicated to Driving While Ability Impaired, I understand that often time the process may not always seem fair to defendant driver accused of criminal activity. That is, as a DWI criminal defense attorney I must ensure that the prosecution and police are upholding my client’s Constitutional rights rather than just eagerly seeking a conviction because some characteristic of intoxication is believed to be present. After all, you might have a legitimate reason for having bloodshot eyes, being unable to perform a finger to nose test or having the scent of what seems to be alcohol on your breath. It is crucial to ensure that fair and legitimate procedures are used when determining if you, as a driver or operator, was indeed intoxicated or under the influence.

On this very point, I’d like to discuss a recent criminal ruling out of Kings County [Brooklyn]. The case- People v. Andrei Hargobind, 2009KN024543, NYLJ 1202544857362, at *1 (Crim., KI, Decided February 29, 2012)- involved charges of VTL 1192(1) “Driving While Ability Impaired,” VTL 1192(3) “Driving While Intoxicated,” and VTL 1180(A) “Maximum Speed Limits.” The main issue was whether or not The People (prosecution) could introduce at trial the results of a “portable intoximeter breath test” given to the defendant at the time and place of his arrest (along the highway).

April 3, 2012

Is an Arrest for NY PL 220.03 or NY PL 221.01 Sufficient if the Police Fail to Base Their Conclusion on Training & Experience

by Jeremy Saland

Drug arrests for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03, may come in the form of a Desk Appearance Ticket (DAT) or a full 24 hour processing through the system. No matter how you were arrested, however, there are certain mandatory requirements that must be within the four corners of any criminal court complaint. Similar to arrests for marijuana, NY PL 220.03 arrests in Manhattan, Brooklyn, Queens, or any other county in New York City or New York State, involve the possession of certain “banned” drugs such as cocaine, heroin, ecstasy and other narcotics. Irrespective of that controlled substance, in order for prosecutors and Assistant District Attorney’s to have a viable and legal complaint against you, language in that complaint (actually called an “information” once it is legally sufficient), must reflect “proof” that the drugs in questions are in fact drugs. Anyone can merely guess based on appearance or smell, but the law requires more than mere speculation.

The law involving drug possession crimes (whether NY PL 220.03 for controlled substance or NY PL 221.10 for marijuana) definitely favors the prosecution. Years ago, before People v. Kalin, 12 NY3d 225 (2009), courts required that a laboratory analysis or field test be filed with a criminal court complaint in order to remove any legal impediments preventing the prosecution from proceeding with criminal charges. In other words, if prosecutors failed to provide a lab report or field test confirming the presence of heroin, cocaine, ecstasy or marijuana, a defendant would ultimately be able to obtain a procedural dismissal of the charges. As noted above, Kalin altered this rule by permitting the police, when drafting a complaint or signing off on its accuracy, to assert that the drug or marijuana recovered was that particular contraband based on their observations, training and experience (or some combination of this).

March 29, 2012

New York Gravity Knife Arrests & DATs: When a Search May be Illegal

by Jeremy Saland

What is a Gravity Knife? Is it illegal to have a gravity knife on my person under New York Law? Under what circumstances can the New York Police search me on a Manhattan Street or a Queens subway station? Once I am arrested for possessing a gravity knife is it possible to get a Desk Appearance Ticket or will I be processed through the system? As an experienced New York criminal lawyer, I often hear these types of questions and answer the same. In this blog post I hope to address at least one of these issues by examining a Brooklyn criminal case involving Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01).

Criminal Possession of a Weapon in the Fourth Degree is a Class “A” misdemeanor. Sure it’s not a felony, but it is punishable by up to one year in jail and will stay on your permanent record. Further, it is rare that an offer of any kind is made at a defendant’s arraignment in most jurisdictions. Because it is highly that a “slap on the wrist” will make a knife case go away – gravity knife or switchblade knife – it is critical to have a basic understanding of the law. There are eight sections under NY P.L. 265.01, which specify the circumstances under which an individual will be found guilty for possessing certain weapons. Without getting into the details here, you are guilty of Criminal Possession of a Weapon in the Fourth Degree if you possess certain weapons that are classified by statute as automatically criminal regardless of your intent. These weapons include a stun gun, gravity knife, switchblade, bludgeon, metal knuckle and dagger.

March 24, 2012

How Long After a NY Arrest for DUI / DWI Can the Police Return to Your Vehicle to Retrieve Alcohol?

by Jeremy Saland

As an experienced New York DWI lawyer, I have served many clients who faced drunk driving charges (a.k.a. driving while intoxicated, driving while under the influence, operating a motor vehicle while intoxicated) under New York’s Vehicle and Traffic Laws (VTL) 1192. I have seen many fact patterns and legal issues when representing these clients throughout New York–be it in Manhattan, the Bronx, Brooklyn, Queens, or out in a surrounding county such as Westchester. Naturally then, I was very intrigued when I came across a unique fact pattern in a case from Richmond County (Staten Island) that raised an interesting legal question that has seemed to “pop” up more and more often over the past few years in the DWI context as well as in other arrests. That case is People v. Iryna Tashbaeva, 2011RI003472, NYLJ 1202541705231, at *1 (Crim., RI, Decided January 31, 2012) issue: search and seizure.

In Tashbaeva, the defendant was charged with Operating a Motor Vehicle While Intoxicated pursuant to NY VTL 1192.2 and NY VTL 1192.3. These standard Driving While Intoxicated (DWI) charges are misdemeanors, which are considered a crime and will stay on your permanent record. The former crime is charged when your arrest for DWI or DUI relates to a “blow” of .08 or higher while the latter crime involves “common law” or “refusal” DWIs where there is no scientific reading of BAC. If it is a first time offense, the penalty is a fine of $500 to $1,000, no more than one year in jail, a mandatory license revocation for six months, a potential of three years probation, a driver responsibility assessment of $250 a year for three years, and a requirement to attend a Victim Impact Panel. Further, in order to reinstate your ability or right to drive, you will have to take the DDP. In short (and not surprisingly) getting convicted for DWI has serious long-term consequences far beyond the next day’s hangover.

March 21, 2012

When Being the Village Idiot is a Crime: Alleged OWS Member, Jordan Amos, Dumps Human Waste in ATM Vestibule

by Jeremy Saland

Although it is not codified in the New York Penal Law, being a moron, putz or schmuck is arguably a damn serious offense and an epidemic plaguing many communities. If the allegations against Jordan Brooks Amos are true, then he should be thrilled that being an idiot is not a crime. According to the Web Crims, as well as many media outlets, Amos, a possible member of the 99% and Occupy Wall Street, really showed JP Morgan Chase who is boss. Well, at least he made some poor maintenance men and women who work at JP Morgan miserable and unhappy when he allegedly dumped a large bucket of urine and feces inside a ATM station in lower Manhattan. That’ll show the “fat cats,” Amos!

While I sometimes go off track with my blog, the purpose is not to comment on political groups, opinions or leaders. In my years as a Manhattan prosecutor and New York criminal defense attorney, I have certainly had the opportunity to form or articulate opinions. Here, however, I try to stick to the evidence (or lack thereof) and law. Whether Amos and his alleged cronies are members of #OWS or #IMAJERK is fairly irrelevant. If true, poring human waste in a place where regular working people go to access their money to pay bills and entry level or corporate employs go to work to support their families is just, well, stupid regardless of your political agenda.