New York Criminal Lawyer Blog

September 21, 2011

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

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.

September 17, 2011

New York Criminal Lawyers Avoid Criminal Record for Client Charged with Two White Collar Felonies in Manhattan Court

by Jeremy Saland

The New York criminal lawyers and former Manhattan prosecutors at Saland Law PC are pleased to announce that one of our clients pleaded guilty to a violation of Disorderly Conduct after being charged with two felonies of Grand Larceny in the the Third Degree (NY PL 155.35) and Identity Theft in the First Degree (NY PL 190.80) as well as three misdemeanor counts of Forgery in the Third Degree (NY PL 170.05). If convicted, not only would our client have a felony record, but he would have faced up to two and one third to seven years in prison.

It was alleged that our client had perpetrated “credit card fraud” after he randomly received a pre-approved credit card application in his mailbox addressed to another person. Upon completing the application, our client allegedly opened a secondary credit card account under his name. Upon doing so, prosecutors claimed that our client purchased a Honda Accord and filled out a loan application for that vehicle in the amount of $25,000. Using the credit card he allegedly obtained fraudulently, our client charged $7,000 as payment to Honda. As a result of these alleged actions and upon recognition by the creditor bank that there were issues with the use of the credit card, detectives from the New York City Police Department arrested our client. Shortly thereafter, prosecutors charged our client with these felonies in Manhattan.

September 13, 2011

Grand Larceny in New York: How to Ascertain Value of Stolen Property & Degree of Larceny – NY Penal Law 155.20

by Jeremy Saland

As both a New York criminal lawyer and as a Manhattan prosecutor, I have faced the issue of determining the legal value of property in a Grand Larceny case that was not readily apparent. While a theft of cash or certain property is easily ascertainable based on market value or the actual value of the currency, some items are not as clear. Fortunately, for prosecutors, criminal attorneys, victims and the accused, New York’s theft statutes set forth a guideline to follow. More specifically, certain written instruments, not including such items as some public and corporate bonds, have a value as calculated as established in New York Penal Law 155.20(2).

Regardless of whether or not a written instrument has actually been issued or delivered, a value has to be placed on those items to determine not only the degree of the Grand Larceny charged in a New York court, but to also come up with a restitution number should “payback” be part of any disposition. Accordingly, NY PL 155.20(2) deciphers the calculations as follows:

September 9, 2011

Jason Itzler, of NY Confidential Fame, Arrested Again for Allegedly Running a Manhattan Escort Service

by Jeremy Saland

According to the New York Post, Jason Itzler, the self described “King of All Pimps” behind New York Confidential, was arrested again after prosecutors picked up the convicted felon for Promoting Prostitution, Money Laundering and Criminal Sale of a Controlled Substance. Itzler had previously been convicted in New York County upon a plea of guilty to Money Laundering and Promoting Prostitution. Ultimately, Itzler served less than two years in state prison. Because he is a predicate felon, should prosecutors be successful the second time around, prison is mandatory for itzler. In an interesting side story at the time and currently worth noting, Itzler’s counsel, Paul Bergrin, pleaded guilty to a misdemeanor. It was alleged that the attorney took over his client’s business and ran the escort service after his client was incarcerated. Bergrin is currently facing trial in New Jersey Federal Court on other matters.

It is alleged that Itzler re-created an online escort service in Manhattan. At some point he also is alleged to have sold cocaine.

September 5, 2011

DWI & DUI In New York: Should You “Blow” or Take a Breathalyzer if Arrested for Drunk Driving in New York

by Jeremy Saland

Drunk Driving in New York – whether called DWI or DUI – is such a serious crime in New York City and throughout the State of New York that specific court rooms are set up solely to prosecute alleged drunk drivers. Many of these defendants wondered at the time of their arrest whether or not they should “blow” into a breathalyzer or intoxylizer. When I first started my career as a Manhattan prosecutor I heard this question asked and I routinely hear it asked to me today as a criminal lawyer. In fact, New York DWI lawyers and DUI attorneys constantly are bombarded with the question of whether or not a person should “blow” or refuse to take the breathalyzer when arrested for DWI. So what is the answer? Should you or should you refuse or blow when arrested for VTL 1192?

Background on New York City DWI Arrests First, it is imperative to understand that when you are initially arrested for Driving While Intoxicated in New York, police officers often have a machine in their vehicle. The result from this breathalyzer is not admissible in a New York criminal court. Therefore, whether you blow a .16 or .06, it will not be used against you in a court proceeding. However, the reading obtained will assist in forming the basis or probable cause for your ultimate VTL 1192 or DWI arrest.

August 31, 2011

Forgery, Falsifying Business Records & Fraud Crimes in New York: Defining “Intent to Defraud” & Your Criminal Defense

by Jeremy Saland

A critical element of numerous fraud crimes in New York is one’s “intent to defraud.” This specific language is often in the criminal statute itself and is an essential part of numerous crimes prosecutors must prove beyond a reasonable doubt including the crimes of Forgery (New York Penal Law sections 170.05 through 170.15), Criminal Possession of a Forged Instrument (New York Penal Law sections 170.20 through 170.30) and Falsifying Business Records (New York Penal Law sections 175.05 through 170.10). More times than not, “intent to defraud” is associated with some form of theft or stealing. While larceny is often the criminal act or motivation behind the “intent to defraud,” the law is much more broad. In fact, “intent to defraud” is not defined in the New York Penal Law. Instead, it is defined through case law.

According to Black’s Law Dictionary (not the New York Penal Law), “intent to defraud” means an “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power…” The Court of Appeals, New York’s highest level court, has made it overwhelming clear that “intent to defraud” does not require an intent to steal, but can be formulated “for the purpose of leading another into error or disadvantage.” People v. Briggins 50 N.Y.2d 302, 309 (1980) (concurring opinion)(Jones, J.). Taking this even further, other legal decisions have fortified that “intent to defraud” need not be tied to an underlying Grand Larceny (Article 155 of the New York Penal Law) type scheme. In fact, in People v. Kase 53 N.Y.2d 989 (1981), “intent to defraud” was found where a defendant filed a false statement with a public agency. In that case, there was no desire or attempt to steal or obtain any amount of wealth. Instead, the defendant sought to interfere and disrupt the State’s ability to carry out the law.

August 27, 2011

Extortion in New York State: An Affirmative Defense to NY Penal Law 155.05(2)(e) and 155.40(2)

by Jeremy Saland

In an earlier entry relating to Extortion, a subset of Grand Larceny, I identified and differentiated the difference between the Grand Larceny Extortion statutes found in New York Penal Law sections 155.05(2)(e) and 155.40(2). This entry will deal with the criminal defense to the crime of Extortion in NY that is established by statute. Whether this affirmative defense is relevant or applicable to the Grand Larceny and Extortion allegation in your particular case, that is something to identify and asses with your New York criminal defense attorney and Extortion lawyer.

Pursuant to New York Penal Law section 155.15(2):

August 23, 2011

A Former Manhattan Prosecutor’s View of the DSK Indictment, Dismissal & Debacle

by Jeremy Saland

In the end, the Dominique Strauss Kahn case ended where it all began…the gutter. Detectives with the New York City Police Department arrested the former IMF leader and paraded him before the media. Manhattan District Attorney Cyrus Vance, Jr. obtained an indictment only to dismiss it months later. The press published their “gotch-ya'” photographs while tarring and feathering the accused Frenchman. A sixty-two year old French presidential candidate was exposed as an apparent womanizer possessing an overactive libido and a lifestyle that skirted criminality. A sympathetic immigrant woman who cried rape, but was caught in a web of half-truths and inconsistencies, may be more of a perjurer and victimizer than an actual victim. And lastly, an attorney, who stood to personify the protector of the voiceless victims of sex crime while simultaneously pocketing millions in a civil suit, looked at best ill prepared to manage the intensity of what may be the most sensational criminal case of the decade. At worst, this same attorney may have been a co-conspirator in his clients now debunked claims.

It is likely that one could ask fifty criminal lawyers their respective opinions about whether or not prosecutors rushed into the Grand Jury. It is equally likely that you would, or at least could, get fifty differing and reasonable responses. When asked by various news reporting agencies, I have always maintained that the case should not have been presented to the Grand Jury. Instead, prosecutors should have sought a bail package to avoid having their legal hand forced (it is interesting to note in the extensive Dismissal on Recommendation (DOR) filed by the Manhattan District Attorney’s Office, a detailed analysis of the complainant’s failings is given, but no reference whatsoever to the bail discussions). A bail package, similar to the one agreed to post-indictment, would have absolutely circumvented this P.T. Barnum affair that will forever scar a man with a wrongful indictment. Moreover, at no point in the DOR, or to my knowledge in any statement, did prosecutors assert that they believed the witness or the evidence in the case beyond a reasonable doubt prior to stepping into the Grand Jury. Clearly this is now the case, but the omission from the time of the indictment is concerning. Prosecutors should not be presenting evidence before that body in any case unless they subjectively and objectively believe the evidence will reach this level of certainty.

August 14, 2011

Drinking & Dashing in New York City: Failure to Pay Bar Tab Not a Theft of Services Crime (NY PL 165.15)?

by Jeremy Saland

On a daily basis, tourists and everyday denizens of New York City are either arrested or given Desk Appearance Tickets for violating New York Penal Law 165.15, Theft of Services. An “A” misdemeanor punishable by up to one year in jail, Theft of Services arrests and Desk Appearance Tickets routinely involve a passenger in a cab or a diner at a restaurant who fails to pay his or her tab or bill. While any arrest is concerning, and often requires the assistance of a criminal attorney to navigate the process, what exacerbates a Theft of Service arrest is that it can have a significant impact on professional licenses, certifications and immigration.

Putting aside the potential consequences of a Theft of Services arrest in New York City, there is a small (very small) body of cases that question whether or not it is a violation of New York Penal Law 165.15(2) if you drink at a bar and fail to pay your bill. In pertinent part, subsection two of NY PL 165.15 states that you are guilty of a crime if you intend to avoid payment for restaurant services and actually do not pay for those services. Well, according to People v Sei Young Choi, 170 Misc.2d 598 (Queens Cty Crim. Ct 1996), this may not always be the case in the alcohol and pub/tavern context.

August 8, 2011

Stealing Money You Never Had: Determining the Degree of Grand Larceny in a Fraudulent Bank Deposit & Theft Scheme

by Jeremy Saland

On its face, the Grand Larceny statutes in New York are relatively straightforward. That is, a simple review of various sections of the New York Penal Law may not require the assistance of a New York theft attorney or grand larceny lawyer. Although the statutes may seem clear, what becomes confusing are the various legal decisions that may impact an arrest, indictment or conviction for crimes including New York Penal Law section 155.30 or 155.35. It is theses decisions that may make a non-defense a viable one or a seemingly easy defense one that will not assist you in your case.

In a relatively unique fact pattern, what if you are alleged to have stolen from a bank by depositing bogus checks directly with a teller or empty envelopes into an ATM machine? As a result of your fraud, the bank credits your account the amount of the deposit you claim you made. Therefore, until the bank recognizes that you falsely inflated your account with these valueless deposits, you have access to money that is not truly in the account or even in existance. Knowing you have access to fraudulently obtained funds, you withdraw money from the account. In such a situation, the issue is fairly simple. Is the value of the theft, and as a result the degree or level of your crime, determined by the amount you fraudulently deposited without actual financial backing or the amount withdrawn by you in excess of your legitimate balance? Fortunately, People v. Esquilin, 37 A.D.3d 197 (1st Dept. 2007) addresses just that.