New York Criminal Lawyer Blog

January 19, 2012

Prosecuting a Domestic Assault Case without a Victim: The Excited Utterance Rule in New York

The common perception is that most of the work of a New York criminal attorney comes in zealously representing their clients at trial while trying to enter a reasonable doubt in the mind of a jury or a judge. While that is certainly a role played by criminal attorneys in New York, the truth is that many times experienced New York criminal lawyers raise challenges to a case at a much earlier stage. For instance, a criminal attorney may challenge the arrest itself as improper, or the sufficiency of the charges brought by the Assistant District Attorney. As most of you know, the police standard for making a proper arrest is probable cause. Furthermore, in New York an Assistant District Attorney (the prosecutor) must present non-hearsay factual allegations (e.g. a victim’s account, or a witness’ statement, or an arresting officers’ observations) that provide reasonable cause to believe that the defendant committed each element of the offense being charged. It is important to note that the level of proof required at a stage prior to trial (to properly charge a defendant) is much lower than the reasonable doubt standard required to convict a defendant.

I presented the above background because I want to examine a recent New York criminal case, People v. Jamel Harris, 2011QN011459, NYLJ 1202503770549 at *1 (Crim., QU, Decided July 13, 2011), in which the defendant challenged the sufficiency of the charges brought against him because he believed they were based on uncorroborated hearsay. Mr. Harris, the defendant, was charged with Assault in the Third Degree, pursuant to NY PL 120.00(1), Harassment in the Second Degree pursuant to NY PL 240.26(1), Petit Larceny pursuant to NY PL 155.25 and Criminal Possession of Stolen Property in the Fifth Degree NY PL 165.40. A person is guilty of Assault in the Third Degree if he intended to, and did cause, physical injury to another person. Petit Larceny is when you steal property worth $1000 or less. Harassment in the Second Degree is established if the prosecution could show that the defendant was intending to annoy, alarm, or harass the victim by subjecting that person to physical conduct. And lastly, a person is guilty of Criminal Possession of Stolen Property if he/she knowingly possesses stolen property with the intent to benefit him/herself.

January 16, 2012

Criminal Contempt in New York: Refusal to Testify & Its Ramifications in a Criminal Case

by Jeremy Saland

In criminal trials in the state of New York, the People (a.k.a. the prosecution) bear the burden of proving that the defendant has committed the charged offense beyond any reasonable doubt. Obviously, the role of the criminal lawyer in New York is to controvert, challenge and poke holes in People’s case. Many times in criminal trials the strongest evidence of guilt in the prosecution’s arsenal is the direct testimony of a witness. Therefore the District Attorney’s Offices, whether it be one of the five borough/counties– Manhattan, Brooklyn/Kings, the Bronx, Staten Island/Richmond, or Queens– or surrounding counties– Westchester or Rockland — must be empowered to compel these “material witnesses” to testify. A subpoena is that legal tool, which empowers the State of New York to compel testimony by a witness. Of course, even if you’ve been subpoenaed to testify in a New York criminal trial, you don’t necessarily have to testify.

Most of us don’t need a NY criminal defense attorney to tell us what the Fifth Amendment is, but many times people do confuse the scope of the Amendment. The Fifth Amendment only protects individuals from self-incrimination. That is, if your boyfriend was charged with burglary and you are subpoenaed to testify as to his whereabouts on the night in question, but you had nothing to do with the burglary and your truthful testimony will in no way incriminate (admit guilt of a crime) you, then you can potentially be compelled to testify.

January 11, 2012

When Can the Police Question & Arrest You for a DWI or DUI in New York: A Criminal Lawyer Analysis

by Jeremy Saland

Sometimes, as a criminal defense attorney in New York, the best way to zealously represent your client against criminal charges is to challenge the admissibility of evidence before the trial begins. This strategy can be particularly effective when a defendant faces any one of the Driving While Intoxicated (DWI) charges listed under NY Vehicle and Traffic Law (VTL) 1192. It is important to remember that no matter its weight or strength, if the evidence (whether it be contraband found on a defendant or statements made by him/her) was not obtained by legal means by the police, then it will not be admissible in a criminal court. That is, if an individual’s Constitutional rights were violated in the apprehension of evidence, whether it be during a New York DWI, DUI or other criminal arrest, then it will be excluded. A recent case in the Kings (Brooklyn) County Criminal Court, People v. Licelle Lovelle, 2010 KN068463 NYLJ 1202516648515, at *1 (Sup., KI, Decided September 14, 2011) raised some very interesting legal issues regarding the admissibility of evidence in a DWI case. Whether or not this case is useful in your tool box when defending against a drunk driving arrest is something worth exploring with your criminal lawyer.

Ms. Lovelle was charged with Operating a Motor Vehicle While Under the Influence of Alcohol Or Drugs and other DWI charges pursuant to VTL 1192 including Driving While Impaired – VTL 1192.1, Driving While Intoxicated Per Se – VTL 1192.2, and “Common Law DWI” – VTL 1192.3. The defendant’s criminal lawyer called for a suppression hearing arguing that the arresting officer violated the defendant’s Constitutional rights while obtaining evidence. Specifically the defense argued that Lovelle’s 5th Amendment rights were violated because the officer took statements without issuing proper Miranda warnings.

January 6, 2012

Prosecuting a Case of Third Degree Assault (NY PL 120.00) without a Victim: The Excited Utterance Rule in New York

by Jeremy Saland

As a New York criminal attorney who works on behalf of clients in the criminal trial courts throughout the New York City area–from the boroughs of Brooklyn, Queens and Manhattan into the counties of Westchester and Rockland– I pick up on the strategies employed by the respective District Attorney’s Office. Equally important, having served as a Manhattan prosecutor for over seven years, I witnessed first hand Assistant District Attorneys pursuing these strategies. As I also saw them, I’ve noticed a trend amongst Assistant District Attorney’s trying to corroborate the allegations in a complaint and further cases even where a complainant is not cooperative. A recent case, The People v. Joseph Valentine, 2009KN083896, NYLJ 1202516492758, at *1(Criml, KI. Decided September 8, 2011) is a great illustration of this trend and thus is a case worth examining in this blog.

Mr. Valentine was charged with Assault in the Third Degree pursuant to NY PL 120.00(1), Menacing in the Third Degree pursuant to NY PL 120.15, Criminal Obstruction of Breathing or Blood Circulation (choking) pursuant to NY PL 121.11(a), and Harassment in the Second Degree pursuant to NY PL 240.26(1). The arresting officer had responded to a “radio-run” (911 call) for a family dispute. The complainant, Ms. Ingram, who is the defendant’s girlfriend, was outside of the house hysterically crying and explained to the officer that Mr. Valentine had choked her.

January 2, 2012

Arrested for Drug Possession in New York: Criminal Lawyer Analysis of Overzealous Police Searches

by Jeremy Saland

Getting caught with illegal drugs in New York can be a frightening affair and one which certainly requires the assistance of an experienced criminal lawyer. Whether in the Bronx, Manhattan, Queens or Brooklyn, Assistant District Attorneys and judges can (and often do) stick to the book. Sometimes defending yourself against a misdemeanor or felony charged of Criminal Possession of a Controlled Substance can seem like an uphill battle. If you had the drugs – heroin, cocaine, etc., on your person or in your car, then there is nothing you can do right? Well, not exactly. In fact, not at all. Remember that the New York Constitution has strict guidelines regarding the ways in which NYPD officers can obtain evidence. New York has adopted standards arguably at least equal to and if not more protective of individual liberty then the standards set by federal cases. In this blog post, through the examination of a recent Bronx criminal case- People v. Sincere Pinckney, 75334C-10, NYLJ 1202514446063, at *1 (Sup., BX, Decided September 9, 2011)- I will elucidate (great word, huh?) some of the basic framework for measuring the legality of the intrusiveness of a police action in New York. The case provides a great illustration of circumstances under which evidence will be suppressed because it was unlawfully obtained in violation of the NY Constitution and the 4th Amendment.

In People v. Sincere Pinckney, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to VTL 511.1(a), Operating a Motor Vehicle Without a License pursuant to VTL 509.1, and Unlawful Possession of Marijuana pursuant to NY PL 221.05. It should be noted that in New York marijuana related offenses are specifically carved out from and identified as separate from Controlled Substances crimes (possession of cocaine or heroin, for example) found in Article 220. Unlawful Possession of Marijuana is actually not even a “crime,” (Criminal Possession of Marijuana is a crime) but rather a violation. Nonetheless, although Pinckney involves a marijuana charge, the standard for what constitutes an unreasonable police intrusion resulting in the suppression of evidence will apply to more serious contraband cases (e.g. possession of cocaine or ecstacy).

December 29, 2011

Tennessee Woman Arrested for Possessing & “Checking” Loaded Firearm at Ground Zero: Analysis of NY PL 265.03 & Its Strict Enforcement

by Jeremy Saland

To do the “right thing” almost always takes courage. The path of least resistance it is not. In New York City, where gun crime seems to have been relatively rampant over the past year recently culminating in the tragic death of New York City Police Officer Peter Figoski, District Attorneys are frothing at the mouth with every new firearm arrest. While often time zealous prosecution is more than reasonable in gun and violent crime cases, other times law enforcement in New York City can’t see the forest from the trees. For the sake of Meredith Graves, a nurse from Tennessee who “checked” her legally owned handgun with the police at Ground Zero, let’s hope that Manhattan District Attorney Cyrus Vance, Jr. not only can see this recent gun possession arrest for what it truly is – an honest mistake about New York laws – but also ignores the general guidelines he and his office have imposed on weapon cases.

Before addressing the allegations against Ms. Graves, one must understand and have a grasp on New York’s criminal statutes involving the possession of firearms without a permit. According to New York Penal Law 265.03(3), you are guilty of Criminal Possession of a Weapon in the Second Degree (CPW 2) if and when you possess a loaded firearm (a pistol, revolver, handgun, etc.) that is both loaded and outside your home or place of business and you do so without a permit. There are two critical concepts or rules that apply to these cases. First, you need not possess any intent to use that firearm unlawfully or against another person. Second, case law establishes that “loaded,” in the eyes of the court, is far more liberal than its literal meaning. In fact, if the firearm is capable of being loaded and the ammunition is locked in a carrying case with your gun (but not physically in it), then that gun is considered loaded for prosecution purposes. One last, but unavoidable point. As a “C” violent felony, NY PL 265.03 is punishable by a mandatory minimum of three and one half years in prison for a person without absolutely no criminal history. Compounding matters, a judge could sentence a defendant to as many as fifteen years in custody.

December 28, 2011

New York DWI Law: Is Speeding, Glassy Eyes & an Admission Enough to Sustain a Common Law DWI Conviction in NY (VTL 1192.3)

by Jeremy Saland

New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous “types” of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer’s arrest.

In an all too common scenario, maybe you were speeding up the FDR on Manhattan’s East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it’s already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial “couple of drinks.” While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to “blow” up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.

December 23, 2011

Beyond Mitigating a DWI Arrest: New York DUI & DWI Suppression Law

by Jeremy Saland

New York State laws are tough when it comes to Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Police, prosecutors, and judges strictly enforce these types of drunk driving offenses, which are listed under NY Vehicle and Traffic Law (VTL) 1192. Most New York criminal defense attorneys, when representing clients facing DWI crimes in Manhattan, the Bronx, Brooklyn, Queens, or Westchester County, will often try to broker a plea agreement with the respective District Attorney’s Office. The hope is to lessen the potential punishment and fines, avoid jail time and/or a long-term loss of the defendant’s driver’s license. Further, because of the recent changes in New York DWI law (see Leandra’s Law) that require the installation of an ignition interlock device, it is always critical to identify the best defense to a DWI or DUI arrest to mitigate collateral consequences. While pleading a case to a lower offense may be the best defense, there are other viable options to consider when mounting a defense to a New York DWI or DUI charge. For instance, what if the entire police stop was deemed unconstitutional as an illegal search and seizure? A recent case from the criminal court in Geneva, New York brought to light this very interesting – and case specific – legal question.

The case, People v. Palermo, NYLJ 1202519418737, at *1 (City of Geneva, Decided September 28, 2011), involved a man who was arrested after failing a series of sobriety field tests. Employing a savvy tactic, the defense requested a Probable Cause and Suppression Hearing, contending that the police officer lacked probable cause to arrest the defendant. Let’s pause from the case for a moment for a Constitutional Law refresher. The Fourth Amendment of the United States Constitution guards citizens against any unreasonable search and seizure. Over the years the Supreme Court has outlined the parameters of what is reasonable and what is unreasonable. Generally, a police officer must have much more than a “hunch” to stop a driver on the road, and, obviously, an officer must have probable cause to ultimately arrest the driver. Though probable cause can be a fuzzy legal standard, the basic idea is that the officer possessed a reasonable belief that a person has committed a crime. Now because the United States likes to protect its citizens’ rights (as does New York!), the judicial system employs what is called the Exclusionary Rule: evidence collected in violation of a defendant’s constitutional rights, or any “fruits” of the illegal search or seizure, will be inadmissible (excluded) from a prosecution in a criminal court.

December 16, 2011

DA Vance: Multiple New York Identity Theft Crews Defraud UJA Federation Donors & Others

by Jeremy Saland

Stealing more than mere shekels, multiple alleged Identity Theft and check fraud rings pilfered $2 million from high worth individuals including the accounts of UJA-Federation donors. Although Hank Greenberg may not have noticed a few thousand dollars here or there, the alleged fraudsters are getting more than an “Oy Vey” from Manhattan District Attorney Cyrus Vance, Jr. for their alleged identity thieving. In fact, some of the nearly sixty defendants arrested or accused of various crimes are facing charges including Grand Larceny in the First Degree, a “B” felony punishable by a mandatory minimum of one to three years in prison. The maximum for this crime is eight and one third to twenty five years, but these numbers are all skewed should any of these men or women have prior felony records from the past ten years. While alleged gang association does not necessarily mean a criminal past, prosecutors further claim the many of those arrested in New York were members of the Bloods and Crips.

According to the New York County press release as well as numerous media outlets, the scheme (like many involving Identity Theft) was fairly east to perpetrate. For Example, Tracy Nelson, an employee of the UJA Federation, processed donor checks. This access to sensitive and financial information gave her the opportunity to allegedly take pictures and copy account information of donor checks. It is further claimed by DANY prosecutors that Nelson then sold the copies to other thieves who would open fraudulent checking accounts or credit cards with this information.

December 9, 2011

DA Vance: Chase Bank Teller Helps Himself to a Quarter Million Dollar Pre-Christmas Bonus

by Jeremy Saland

According to New York City’s top prosecutor, a Manhattan Chase Bank teller’s passion for the Benjamins may have cost him much more than the $240,000 he is alleged to have swindled from his employer. Unfortunately for Sephoen Tsang, a Chinatown branch worker, Manhattan District Attorney Cyrus Vance, Jr. has escalated the “war” on white collar crimes in recent months with equal passion to Tsang’s alleged thieving ways.

It is claimed by prosecutors that Tsang made numerous fake and false entries into the computer system at Chase Bank regarding the movement of $243,000 in funds. Although prosecutors claim that internal computer systems records from November 29, 2011 appear as if Tsang moved $243,000 from his teller drawer to the bank vault and and then again to the ATM machines, these transactions never transpired. Instead, the money was allegedly stolen outright.