New York Criminal Lawyer Blog

October 24, 2011

The Confluence of Robbery & Weapon Crimes in the New York Penal Law: Possessing and Displaying a Firearm During a Theft

As discussed previously on this blog site, Robbery, under NY Penal Law section 160.00, is defined as “forcible stealing.” Thus it differs from other theft crimes for which force is not an element. In this legal context, “forcible” means threatening or using physical force. The force element can be satisfied in any number of ways: from a simple threatening fist pump and pushing a victim repeatedly into a corner to waiving a box cutter and brandishing a weapon in the victim’s face. Of course, if an alleged thief brandishes a “firearm” [i.e. a gun; for specific legal definition see: NY Penal Law 265.00(2)] at a Robbery in the New York City area or Westchester County, the severity of the crime is heightened. Any experienced New York criminal attorney knows that prosecutors in New York are tougher on defendants who perpetrate felonies while carrying firearms, guns, pistols or any type of weapon. If you brandish a weapon in New York during a forcible theft (i.e, a “Robbery”) you will, at the very least, face charges of Robbery in the Second Degree (NY Penal Law Section 160.10) – a class C felony with a possible sentence ranging from three and one half to fifteen years in prison – and you may face charges of Robbery in the First Degree (NY Penal Law Section 160.15) – a class B felony punishable from five to twenty five years in state prison. These terms of imprisonment are for first time offenders.

A critical component with regards to carrying a firearm during a Robbery, is whether that gun is loaded. Under NY Penal Law 160.10(2)(b) if a robber “displays what appears to be…a firearm” then that alleged robber will be convicted of Robbery in the Second degree. On the other hand, a defendant can only be convicted of Robbery in the First Degree if that firearm was loaded and “a shot readily capable of producing death or other serious physical injury could be discharged” (NY Penal Law 160.15(4)). Therefore, if what appears to be a gun is brandished during a Robbery and the defendant is charged with Robbery in the First Degree, a New York criminal lawyer will always raise the affirmative defense that the gun was not loaded (or not a gun at all) and thus not a deadly weapon. If it can not be proven beyond a reasonable doubt that the firearm was indeed a loaded and deadly weapon, then the defendant may only be convicted of Robbery in the Second Degree. As noted above, this can mean significantly less time on a prison sentence especially when multiple counts/charges are levied against the defendant (as will almost always be the case).

October 20, 2011

Is it a Crime in New York to Use an Expired or Revoked Credit Card? NY PL 165.40(2) & NY PL 155.30(4)

by Jeremy Saland

Crimes involving credit cards and debit cards are growing throughout New York City and the region. For example, using another person’s credit card may constitute the crime of Identity Theft. Possessing a fake or fraudulent credit card likely violates Criminal Possession of a Forged Instrument. Even more common than these offenses, possessing a stolen credit card or stealing the same is either Criminal Possession of Stolen Property or Grand Larceny respectively. While the felony crimes listed above are all fairly common, not all credit card crimes in New York are that obvious. As will be addressed in this blog entry, what if you possess a stolen credit card, but the credit card is no longer valid or is expired? If you cannot use the credit card, is that a defense to Criminal Possession of Stolen Property in the Fourth Degree pursuant to New York Penal Law 165.45(2)? Will your criminal lawyer have more than just a bark, but in fact a bite in his attempt to invalidate the allegations or have your indictment dismissed?

Directly on point, People v. Johnson, 50 A.D.3d 379 (First Dept. 1995) addressed these questions about the possession of stolen credit cards that had since expired. In Johnson, the defendant had been convicted after trial in a Manhattan Supreme Court for felony possession of a stolen credit card. The crime, as noted above, was Criminal Possession of Stolen Property in the Fourth Degree. At trial, testimony established that the defendant tried to make at least one purchase with credit card that was expired. In one of his many arguments, the defendant’s attorney claimed that a conviction for this crime could not stand in light of the fact that the credit card in question was not and could not be used. Although the argument seemed reasonable (after all, you cannot withdraw money or make purchases from an expired credit card or debit card and therefore, no real injury would be sustained by the true card holder), the trial court gave no such instruction to the jury. Ultimately, the jury convicted the defendant for this and other crimes. Not the end of the process, the defendant appealed the conviction.

October 17, 2011

Paying Off a Public Official: A New York Criminal Lawyer’s Analysis of New York’s Bribery Crimes

by Jeremy Saland

Bribing a public official to get your way in New York–whether it be a police officer in Brooklyn, a New York City councilman in Manhattan or some government official in Westchester County– can easily result in a felony conviction. While it is undeniable that at certain points in New York’s infamous history bribing public officials was an accepted practice, New York has come a long way since the days of “Boss Tweed” and the corruption of Tammany Hall. Most New Yorkers don’t necessarily need an accomplished New York attorney to tell them what a bribe is, but clarifying the legal definition of Bribery in the New York Penal Law is something that should be fully examined with the assistance of a New York criminal lawyer. Article 200 of the New York Penal Code sets forth “Bribery Involving Public Servants And Related Offenses.” A person is guilty of Bribery in New York when they offer or give any benefit to a public servant with an understanding that the public servant will be influenced and thereby change their action (e.g. a vote, an investigation etc.). In other words, if you give money to a councilmen influencing him to vote to approve your zoning change, you have committed Bribery under New York law. The degree of Bribery (Third Degree Bribery – NY PL 200.00; Second Degree Bribery – NY PL 200.03; or First Degree Bribery – NY PL 200.04) depends on the value of the bribe given, as well as the purpose of the bribe. For instance, any bribe made for the purposes of influencing an investigation, arrest, detention, prosecution or incarceration of a class A felony will automatically constitute Bribery in the First Degree. This is a class B felony with a mandatory term of incarceration punishable up to a maximum of twenty-five years. As you can see, Bribery in New York City and across the State is not to be taken lightly.

Bribery is often times a white collar crime and seen in the context of a businesses or individual trying to influence politicians or other City agencies to gain a profit for themselves. Such corruption is not just a thing of mafia movies and thrilling novels (although, Bribery is often associated with Enterprise Corruption). A great example of such a Bribery case in New York is People v. Mitchell, 40 App. Div.2d 117 (1972). Mitchell worked for a garbage disposal company which held the contract for the City of Troy. Mitchell met with the Mayor of Troy, offering $500 a month if the mayor used his influence to keep the garbage contract with Mitchell’s company. Wisely, the Mayor recorded the conversation and thus Mitchell was convicted of Bribery in the Third Degree (NY PL 200.00). A pretty clear cut case of bribery. Nonetheless, notice here that Mitchell only made an offer hoping that the mayor would use his influence to get others to vote along with him. There was no money exchanged and it was not a guarantee that Mitchell’s garbage company would receive the contract. This illustrates that one can be convicted of Bribery with just an offer, hoping to garner influence from the public servant.

October 12, 2011

When New York Credit Card & Debit Card Theft May Not be a Felony: Possession & Theft of ATM Cards

by Jeremy Saland

Any New York criminal lawyer will tell you that the best way to avoid an arrest, indictment or conviction is to steer clear of any and all criminal conduct. While that may sound easy, often time individuals make mistakes or get caught up in criminal acts that they truly had no intention of getting involved with in the first place. Two particular crimes that prosecutors can elevate from less serious conduct into felony crimes are the theft of credit or debit cards and the possession of stolen debit or credit cards. These two felony crimes, New York Penal Law 155.30(4) and 165.45(2), are violations of Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth Degree. Simply, if you steal a credit card or debit card or possess a stolen debit card or credit card then you will face up to four years in prison. Each individual card is a separate chargeable offense. As a result, if you have three stolen credit cards, for example, each individual credit card possession constitutes a separate and distinct crime with its own potential punishment.

Cases involving felony credit card theft and criminal possession of a stolen debit cards truly illustrate the value of both educating yourself on the law and retaining an experienced criminal lawyer to defend you against the criminal allegation. As the following case demonstrates, in terms of credit card and debit card crimes, mistakes can be made by both inexperienced criminal attorneys as well as their prosecutorial counterparts. Here, the question is clear. Are all debit cards, credit cards, and ATM cards created equal? The answer is clear, but often difficult to fully grasp.

October 7, 2011

Operation Swiper: Queens DA Notches 111 Person Indictment in International Identity Theft Scheme

by Jeremy Saland

Well before I became a New York criminal lawyer, I served for over seven years as a prosecutor in the Manhattan District Attorney’s Office. During that time, I was appointed to the Identity Theft Unit upon its creation as well as the Major Case section where I investigated criminal networks immersed in multi-million dollar Identity Theft schemes. Many of these schemes crossed continents and involved dozens of individuals. None, however, were as large scale in terms of the number of people charged and arrested in Queens County. In fact, according to the Queens County District Attorney’s Office, District Attorney Richard Brown may have the “honor” of spearheading the largest Identity Theft scheme in the history of such cases in terms of individuals involved. That number, to be precise, is one hundred eleven. These defendants were indicted by a Queens Count Grand Jury for their various degrees of involvement in forged credit card and Identity Theft rings. While the crimes of Forgery, Criminal Possession of a Forged Instrument and Identity Theft are all felonies with a serious bite, prosecutors have flexed their muscles by also obtaining indictments for Enterprise Corruption, New York’s RICO statute.

Although “only” eighty-six of the defendants are in custody, Queens prosecutors claim that fake and fraudulent credit cards were created and used by these individuals to steal well north of thirteen million dollars during a sixteen month period. Thousands of American Express, Visa, MasterCard and Discover Card customers were the alleged victims. Additionally, some of the crew are even alleged to have perpetrated burglaries and robberies at Kennedy Airport and the Citigroup Building in Long Island City where they allegedly netted close to a million dollars of ill-gotten gains.

October 4, 2011

Yaasmin Hooey – Former Finance Director for Greater New York Girl Scout Council – Arrested for Stealing More than Cookies

by Jeremy Saland

According to reports, Yaasmin Hooey, the former finance director for the Girl Scout Council of Greater New York, was arraigned today in Manhattan Supreme Court after the NYPD arrested her on an open indictment charging Grand Larceny and Embezzlement. It is alleged that Hooey skimmed over $300,000 by depositing 65 checks from the Girl Scouts and depositing those checks in her account. Trying to be “cute” and citing the obvious while also being firm with his words, New York County District Attorney Cyrus Vance stated, “Nonprofits are not personal cookie jars.” Although it is easy to jest, the allegations are no laughing matter. In fact, among many felony charges, Hooey faces Grand Larceny in the Second Degree. A conviction for this “C” felony crime is punishable by up to fifteen years in prison. Compounding matters, it is alleged that Hooey also failed to report $142,000 in New York State taxes.

According to the Manhattan District Attorney’s Office, Hooey did not use the allegedly stolen funds to tend to a sick family member or some other noble cause. Instead, Metro-North Railroad tickets, a gym membership, and clothing, cosmetic laser procedures, and cruises were paid for from the ill gotten gains. Prosecutors further claim that Hooey spent $13,000 on a diamond ring in over $18,000 at bars and restaurants. Unfortunately for Hooey, prosecutors’ jobs have been relatively easy as wires and checks were deposited from Girl Scout accounts into personal accounts. In other words, the “paper trail” was not that long.

October 2, 2011

Occupy Wall Street: What Disorderly Conduct & Other Criminal Arrests Mean to a Protester’s Future

by Jeremy Saland

We can all agree to disagree on the merits, impact and value of Occupy Wall Street sit-ins, protests and mere presence in lower Manhattan. Whether protesters blocking the Brooklyn Bridge hurt the blue collar and regular working class person trying to get to and from work or their actions truly intensified the light on certain Wall Street practices is certainly up to debate. However, one thing we can all likely agree on is that any arrest, whether it be for Disorderly Conduct (NY PL 240.20), Resisting Arrest (NY PL 205.30) or Obstructing Governmental Administration (NY PL 190.05), can have serious impacts to the futures of those arrested years after they have left the streets of New York City behind. While a summons for Disorderly Conduct is probably the least of their concerns, Resisting Arrest and Obstruction of Governmental Administration are both misdemeanors. How Manhattan District Attorney Cyrus Vance decides what to do with these cases is yet to be seen, but the potential for these men and women to damage their futures is great.

Disorderly Conduct: New York Penal Law 240.20 Although not a precise legal definition, if you are disorderly and cause public inconvenience or alarm, obstruct the flow of traffic or act in a violent manner, the NYPD and prosecutors can charge you with Disorderly Conduct. Not a crime, a conviction for this offense would not give you a criminal record. What is concerning, however, is if you are printed for Disorderly Conduct or any crime and you ultimately plea to this violation, there is a real possibility that it will show up on future background checks. While a Disorderly Conduct seals (or should seal), there has been litigation over arrest charges and pleas to Disorderly Conduct showing up months and years after the cases are resolved. No New York criminal lawyer can tell you whether your case will properly seal or seal in a manner as to prevent the public from learning of your arrest charges. Regardless, before taking a plea to a violation of Disorderly Conduct have a long and in depth conversation with your counsel as to the ramifications and collateral consequences of such a plea.

September 28, 2011

Nassau DA Rice: Emory Student Sam Eshaghoff Paid Thousands to Use Fake Drivers License & Cheat SAT on Long Island

by Jeremy Saland

The pressure and drive to exceed in school never ends. Instead of studying a little longer and a little harder, however, the answer for some students is figuring out the best shortcut. According to the Kathleen Rice and the Nassau County District Attorney’s Office, Sam Eshaghoff, a former University of Michigan and current Emory student, was arrested after sitting for the SAT on behalf of at least a half a dozen high school students in exchange for thousands of dollars. Not a full fledged criminal enterprise, but more than an amateur operation, its further alleged that Eshaghoff sat for the SAT on Long Island at schools where administrators would not know the real students. Further, it is claimed that Eshagoff was armed with fake and phony New York State drivers licenses.

As interesting and as appealing as this case is, I have witnessed these types of scams on a much larger and even an international scale. As a Manhattan prosecutor, I led the investigation and prosecution of approximately two dozen individuals for either fraudulently taking or paying another person to take the GRE, GMAT and TOEFL. Education Testing Service (ETS) administers these examinations as well as the SAT. The Manhattan criminal enterprise, which extended well beyond the borders of New York and the United States, was extensive. Using faking passports at examinations centers and providing fraudulent diplomas, recommendation letters, transcripts, bank statements and other materials to universities and colleges throughout the United States, hundreds of students began their studies not on merit, but on fraud. In fact, the investigation revealed these students enrolled at NYU Stern School of Business, Columbia University Teachers College, Baruch College, UCLA, University of Michigan, Tulane Medical School, Canada’s McGill University and many other prestigious institutions.

September 25, 2011

Robbery Crimes & Robbery Laws in New York: Defining the Use & Threat of Force

by Jeremy Saland

In common parlance, if someone stole from you, you would likely say that you had been robbed. However, under New York law, “Robbery” is more than just taking property from another (generally defined as larceny); Robbery is forcible stealing. To be convicted of Robbery (New York Penal Law Sections 160.05, 160.10, and 160.15) throughout the New York City area, the prosecution must prove that the defendant used physical force, or threatened the use of immediate force. This is true whether you are arrested for Robbery on the glitzy streets of Manhattan’s Upper East Side or the gritty streets of Brooklyn. In other words, if someone leaves their pocketbook on a coat hanger at a bar and you snatch it up, you have not committed robbery. On the contrary, if you punch that same person in the face at a bar and grab the pocketbook, then you have committed Robbery. Unlike larceny, all Robbery charges (Robbery in the First, Second, or Third Degree) are felony charges (classes “B”, “C”, and “D” respectively) with terms of prison ranging up to 25 years.

Of course, in the examples above determining whether force was used is as simple as determining whether the defendant’s fist struck the victim’s face. But what kind of evidence is sufficient to establish the element of “immediate threat of force” in a New York criminal court. This is an important distinction because an experienced New York criminal lawyer may be able to reduce a robbery charge to a lesser petit larceny charge, if they can show that, in fact, no threat of harm was used. This is precisely what the criminal attorney in People v. Spencer, 255 A.D.2d 167 tried to do. Spencer was charged with Robbery in the Second Degree (NY Penal Law section 160.10), but his attorney claimed that no threat of force was used and therefore Petit Larceny (NY Penal Law Section 155.25) was the only legally viable charge. The court found that the evidence showed that the defendant intimidated the victim standing “chest to chest” with the victim, and backing him up against a subway pole. The court found that the defendant’s actions amounted to an “immediate threat of physical force.” The Spencer case demonstrates that an immediate threat of force will be inferred from threatening behavior. A defendant does not necessarily have to make an actual verbal threat or perform an overt threatening action (like a threatening fist pump). Instead, the court will analyze the circumstances as a whole and determine, as it did in Spencer, whether a normal person would fear for immediate physical danger from the actions taken by the defendant.

September 21, 2011

New York Penal Law 120.05(6) – Assault in the Second Degree: Raising a Misdemeanor to a Felony

by Jeremy Saland

The New York Penal Law provides for in excess of ten different subsections of felony Assault in the Second Degree pursuant to section 120.05. While the most common felony Assault crimes handled by New York criminal lawyers are those involving the intent and actual causing of serous physical injury or the use of a dangerous instrument to cause a physical injury (NY PL 120.05(1) and NY PL 120.05(2) respectively), there are many more equally serious crimes set forth in this section. Unfortunately for those attorneys who are not regular practitioners of criminal law or focused in the criminal courts of New York, these offenses may “unexpectedly” pop up in a case before he or she is prepared to represent the client in an Assault arrest or indictment.

New York Penal Law 120.05(6) is one of these less common, but equally serious, subsections of Assault in the Second Degree. According to NY PL 120.05(6), you are guilty of Assault in the Second Degree if either during the course of committing, furtherance of or immediate flight from a felony, you cause physical injury to another person. Additionally, if another participant in the felony causes physical injury to another person, then you are also guilty of Assault in the Second Degree.