New York Criminal Lawyer Blog

March 4, 2012

New York Penal Law 205.30: Is Dismissal of Other Arrest Charges a Criminal Defense to Resisting Arrest

Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole “A” misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and “real” these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.

In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege “facts” (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be “authorized,” or in other words it a lawful arrest.

February 28, 2012

New York Gambling Record Crimes: Must Prosecutors Allege in an NY PL 225.15 Complaint that You Did Not Possess the Records for Personal Use?

by Jeremy Saland

Depending on the facts and circumstances, gambling in New York, outside of Native American Reservations and the horse tracks, is an illegal enterprise. Unlike Las Vegas, gambling in New York City or elsewhere in the State of New York can land you in jail and the winner of a criminal record. New York is no stranger to organized gambling schemes, illegal “bookies” taking bets, or underground gambling enterprises. As a New York criminal lawyer representing clients in Manhattan, Queens, Westchester and the surrounding boroughs and counties, I know that while gambling offenses are not as common as many other crimes, prosecutors and police are constantly on the lookout for and target gambling offenders. Today I want to examine a recent Bronx County criminal case involving the violation of New York gambling laws: Possession of Gambling Records in the Second Degree, pursuant to New York Penal Law 225.15(2).

Under NY PL 225.15(2) a person is guilty of Possession of Gambling Records in the Second Degree when, with knowledge of the contents or nature thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise. Possession of Gambling Records is a class “A” misdemeanor, punishable by up to one year in jail and a fine. Remember, even without ever stepping into jail as a part of a sentence, Possession of Gambling Records is a crime that will stay on your permanent. Now, if the records are of the kind used in a bookmaking scheme or enterprise and total more than five thousand dollars the charge escalates to a much more dire case. That is, Possession of Gambling Records in the First Degree, pursuant to New York Penal Law 225.20, is a felony. While the misdemeanor variety of gambling crimes is punishable by up to one year in jail, the felony variety is punishable by up to one and one third to four years in state prison.

February 20, 2012

The Value of Investigating a New York Assault Arrest: New York Criminal Lawyers Obtain Dismissal of Felony Assault Case

by Jeremy Saland

Any New York criminal lawyer can tell you an allegation is merely an allegation. It is not proof beyond a reasonable doubt, or, for that matter, proof of much at all. Whether you are arrested for a fight involving a neighbor or a stranger, the burden on the prosecution is to not only establish the probable cause that legitimized a police arrest for Assault, but also they burden is on the People to prove a case beyond a reasonable doubt. Despite this legal requirement and the recognition that an arrest is not proof of any guilt, allegations are often devastating. For a client of Saland Law PC, this pain was overwhelming until our New York criminal lawyers were able to secure a dismissal in his felony Assault case.

Prosecutors charged our client with Assault in the Third Degree (New York Penal Law 120.00) after our client allegedly struck another man and opened up a laceration on his forehead. Normally a misdemeanor crime, this Third Degree Assault was prosecuted as a felony due to the allegation that the barrages of punches were part of a verbal tirade against the complainant because of the alleged victim’s perceived homosexuality. Under New York State law, a misdemeanor crime can be elevated to a felony offense if it is classified as a “hate crime.”

February 15, 2012

The Legal Burden in Establishing a Working “Weapon” in New York Criminal Court: NY PL 265.01

by Jeremy Saland

From gravity knives to switchblade knives, whether in Manhattan, Brooklyn, Queens or out in Westchester County, as an experienced New York criminal lawyer I have frequently seed defendants charged with Criminal Possession of a Weapon in the Fourth Degree. A misdemeanor, CPW 4, pursuant to New York Penal Law 265.01, is punishable by up to a year in jail. Often times, the alleged offenders are not taken into full custody (traditional arrest, spending a night in jail), but instead are issued a Desk Appearance Ticket (largely issued to NY residents to make it easier on the police, who can issue the ticket and release the ‘defendant’ from their custody without having to send the offender to central booking). More important than procedure, however, is the fact that District Attorney’s Offices in the New York City area consider Criminal Possession of a Weapon one of the most serious types of misdemeanor offenses. This fact is reflected in tough and limited offers and plea deals at arraignment (the first time one sees a judge) regardless of whether a DAT was issued or not.

Briefly, a person is guilty of NY PL 265.01, if that person possesses a weapon specified in the statute (such as a gravity knife or switchblade knife). An individual’s intended used of the “weapon” is not a factor in their guilt. That is, even if you don’t intend to harm anyone, if you have a knife that is deemed a weapon in your possession, you are guilty of the crime. Logically then, mounting a defense against Criminal Possession of a Weapon in the Fourth Degree rests largely on showing that the search and recovery of the weapon was improper, the weapon was not in your possession or showing that in fact the item is not a weapon.

February 10, 2012

Breaking Down a New York City Desk Appearance Ticket & DAT

by Jeremy Saland

Although the New York City Police (NYPD) can easily arrest you and send you to Central Booking for any misdemeanor or “E” felony, in certain circumstances they can, and will, give you a Desk Appearance Ticket (often called a “DAT” or “Appearance Ticket”) instead. While you have still been arrested, whether your criminal lawyer secured this DAT for you or the police were just being reasonable in light of the allegations, you will be sent home after your fingerprints are taken. This blog entry addresses the “white paper” or “white ticket” that you were given and some routinely asked questions about what is contained therein. What is the Physical Desk Appearance Ticket

Before breaking down your DAT or Desk Appearance Ticket, it is critical to understand that it is NOT the complaint or criminal papers that will ultimately be filed against you. Instead, the DAT is a note or document that merely informs you that you must appear in a particular court on a particular date. Should your name, address or even the offense charged be incorrect, it in no way invalidates your DAT. In fact, if you lose the Appearance Ticket it would not adversely impact the prosecution’s case in any way. If you appear in New York City Criminal Court without this DAT, the court staff will locate the official criminal complaint against you. If you do not appear, on the other hand, a judge will likely order a bench warrant for your immediate arrest.

February 5, 2012

Do Puncture Wounds from being Stabbed Automatically Establish Serious Physical Injury in a New York Felony Assault Case?

by Jeremy Saland

Generally speaking, the practice of criminal law is neither scientific nor mathematical. While a New York criminal lawyer may be methodical in his or her dissection of legal issues and the use of prior cases decisions to prove a particular point of law, criminal law in New York is constantly morphing and growing. Whenever advocating for a particular point of law, having the most recent court rulings on the particular issue at hand is critical. It can make the difference between being charged “as is” or obtaining a dismissal or reduction of your case from a felony to a misdemeanor.

One area of New York criminal law where the principles above are illustrated is in the arena of New York Assault crimes. Essential to any New York Assault case, whether it be Assault in the Third Degree (New York Penal Law 120.00), Assault in the Second Degree (New York Penal Law 120.05) or Assault in the First Degree (New York Penal Law 120.10), is the existence of some form of injury. The threshold for this injury is “physical injury” in misdemeanor NY PL 120.00 crimes and “serious physical injury” for crimes involving the felony offense of NY PL 120.05. Whether or not the prosecution is able to prove “serious physical injury” as opposed to the lesser “physical injury” makes the difference between facing up to seven years in state prison or one year in a local or county jail such as Rikers Island (not that any institution is where you would want to be).

January 31, 2012

NY DMV Clerk Arrested For Fraudulently Issuing Drivers Licenses to Individuals Including Convicted Felon

by Jeremy Saland

It is almost as if he is shooting fish in a barrel. Manhattan District Attorney, Cyrus Vance, Jr., has made another big splash announcing the arrest and indictment of a New York State Department of Motor Vehicle’s (“DMV”) clerk who is alleged to have unlawfully processed at least three drivers license applications. It is claimed by prosecutors, who are understandably concerned about this type of conduct, that one of the individuals who fraudulently obtained a license had previously been convicted of a felony and deported from the United States. Clarence Jenkins, the DMV clerk indicted for the alleged scheme, is charged with three counts each of Criminal Possession of a Forged Instrument in the Second Degree, a class D felony, Issuing a False Certificate, a class E felony, and Official Misconduct, a class A misdemeanor. If convicted, the accused faces up to seven, four and one year in custody on each respective offense.

In acknowledging the danger of illegally issuing New York State drivers licenses to those who are not entitled to them, DA Vance stated “… [Jenkins] may have jeopardized public safety.” Whether as a New York criminal lawyer I agree with the prosecution’s ultimate determination as to how to handle the case and seek a potential plea or sentence, DA Vance is certainly correct in his assertion. Unlike a minor attempting to get a license for the purpose of going to a bar or purchasing alcohol, fraud such as that alleged here has the potential for grave danger. Fortunately, it does not appear from the press release that this is the case.

January 26, 2012

Manhattan DA Investigating Ray Kelly’s Son, New York City Newsman Greg Kelly, for Rape

by Jeremy Saland

Rookie term Manhattan District Attorney, Cyrus Vance, Jr., has found himself in a position that is anything but envious. According to multiple reports, DA Vance’s main referral source for business, New York City Police Department Commissioner Ray Kelly, is also the father of an accused rapist. Greg Kelly, the co-host of Fox 5’s “Good Day New York,” is alleged to have raped a woman this past October in Manhattan. Although it is claimed that the alleged victim’s boyfriend initially confronted Commissioner Kelly about his son’s unwanted sexual conduct with his roughly thirty-year old girlfriend, the investigation was properly turned over to the District Attorney’s Office to ensure a fair and honest investigation by an agency with no ties to Greg Kelly. Far from atypical and likely the best decision for the investigation into the newsman’s guilt or innocence, Assistant District Attorney’s in the Sex Crimes Bureau will determine how and if the case will proceed to an arrest or indictment.

Obviously, Greg Kelly, through his counsel, strenuously denies the wrongdoing. Although any allegation of a sex crime is potentially debilitating and an embarrassing stigma, should the accused be convicted of a rape crime in New York the actual punishment is much worse than any public shame. While the manner in which Greg Kelly is accused of raping the complainant is not yet clear, there are generally three degrees of this crime. Regardless of the degree, rape must include penetration, aka “sexual intercourse,” even if slight.

January 25, 2012

New York DWI Arrests & Trials: New York City Judge Allows Portable Breath Tests Results at Drunk Driving (DUI)Trial

by Jeremy Saland

Facing a Drunk Driving, DUI or DWI criminal arrest in New York can be an extremely frightening experience for any individual especially for an accused who does not have an experienced New York DWI lawyer at their side. Whether one is arrested and charged with Driving While Intoxicated in Manhattan, Queens, Brooklyn, the Bronx or out in the counties of Westchester or Rockland, the consequences of a conviction can be severe and life-changing. Therefore, when facing any of the DWI crimes found under NY Vehicle and Traffic Law (VTL) 1192, it is extremely important to understand your legal rights so that you can mount the best possible defense. In this blog post I want to explore whether a New York court will allow the prosecution to utilize the results from a portable breathalyzer or intoxilyzer administered by the arresting officer during an initial stop at a DWI trial.

A recently decided New York County (Manhattan) criminal case, took up this exact legal issue. In People v. Jones, 2010NY061507, NYLJ 1202504258080, at *1 (Crim., NY Decided July 18, 2011) the defendant, Kareem Jones, was tried before a jury on charges of Driving While Intoxicated (DWI) pursuant to NY VTL1192(3) (also called “Common Law DWI”) and Driving While Ability Impaired (DWAI) pursuant to NY VTL 1192(1). As you might expect, one is guilty of DWI when they operate a motor vehicle in an intoxicated condition. If convicted the defendant can face up to one year in jail, a suspension of their license, fines, and probation for three years. Further, the law requires that an interlock device be placed on the convicted’s vehicle. On the other hand, one is guilty of DWAI if they operate a motor vehicle while impaired by the consumption of alcohol. DWAI is an infraction and is often charged as a lesser offense of the other DWI crimes listed under VTL 1192.

January 20, 2012

When Police Conduct a Post Arrest Search Without an Arrest: Challenging Illegal Searches in New York

by Jeremy Saland

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are “searched incident to your lawful arrest” where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple “nothing” case evolve into something so serious…

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.