New York Criminal Lawyer Blog

July 7, 2011

New York Identity Theft Crimes: Can One Perpetrate Identity Theft in NY Where Permission is Given to Use Personal Identifying Information

As a prosecutor in the Manhattan District Attorney’s Office for over seven years, I supervised and led investigations, arrests, indictments into complex identity theft and fraud related crimes and schemes. One of those investigations and indictments resulted in the conviction of numerous individuals who posed as professional graduate school entrance examination test-takers. These defendants created fake passports and use the identification information of the legitimate prospective student to sit for the GMAT, GRE, TOEFL and other examinations. Indicted for the crimes of Criminal Possession of a Forged Instrument, Falsifying Business Records and Identity Theft, none of the attorneys who represented the accused challenged the crime of Identity Theft based on the theory that their respective client was given permission and authority by the legitimate student to use that student’s personal information to cheat the colleges and universities. If nothing else, the idea that one cannot commit identity theft because one was given permission to use the personal information, albeit to defraud a third party, was worth pursuing in a court of law in light of the other overwhelming evidence. While other crimes may have been perpetrated, an argument could have been made that Identity Theft was not one of them.

Generally, you are guilty of Identity Theft in New York (New York Penal Law 190.78) in New York when, with the intent to defraud, you present yourself as another person by using that person’s personal identifying information. In doing so, also obtain goods, money or some other form of property. This crime is enhanced through the value of the property or goods, as well as through other means to the crimes of New York Penal law 190.79 and New York Penal Law 190.80.

July 5, 2011

Report: Manhattan DA to Dismiss Charges Against Dominque Strauss-Kahn

by Jeremy Saland

Dominque Strauss-Kahn, the French national and former head of the IMF, may be celebrating his own Independence Day accompanied with a display of fireworks that would revival any July 4th celebration. According to the New York Post, DSK could “walk” as early as his next court date after Manhattan prosecutors have come to realize there are major credibility issues with the maid from the Sofitel. Not only would a dismissal call into questions the zealousness of prosecutors who rushed into the Grand Jury to obtain an indictment, but the grand finale could have both political and financial ramifications for many parties involved. The encore to this international spectacle would be the consequences of a perceived gaffe on public confidence.

According to the New York Post, a source familiar with the investigation by the Manhattan District Attorney’s Office stated that “[W]e all know this case is not sustainable. Her credibility is so bad now, we know we cannot sustain a case with her.” If recent stories and articles can be believed, this revelation by DA Cyrus Vance’s team seems reasonable. There have been reports in various media sources that the maid’s conversations with an inmate on Rikers were recorded where it was learned that she was seeking to benefit financially from the arrest. Furthermore, allegations that the maid was “servicing” DSK voluntarily and has done so or has tried to to so with other customers recently came to light. If these claims were not enough, reports have further asserted that the maid had numerous accounts with significant deposits that could be tied to “improper” activities. Should have or could have prosecutors known this before heading into the Grand Jury? I do not know the answer, but this may only be the beginning of what appears to be an exoneration and vindication for DSK and a significant blemish for the fabled Manhattan District Attorney’s Office.

July 4, 2011

Drunk Driving Crimes in New York: VTL 1192(4) Driving While Impaired by Drugs

by Jeremy Saland

While not as commonly seen by DWI lawyers in the New York City area, Vehicle and Traffic Law 1192(4), Driving While Ability Impaired Drugs, is no less serious than an arrest for any other DWI or DUI crime. Having said that, those attorneys not experienced in New York’s drunk driving and drinking and driving laws can further the misinformation about this offense. The following blog entry will address some of the issues and elements of this crime. As always, please remember that this blog entry is no substitute with an in depth consultation with your own New York criminal lawyer.

The Elements of VTL 1192(4) – Driving While Ability Impaired Drugs

June 29, 2011

An Undeserved Rap: Raymond Velasquez Charged with Reckless Endangerment & Other Crimes in NYC Court

by Jeremy Saland

Make no mistake. 34 year old wannabe rapper, Raymond Velasquez, is a little past his “aspiring” years, but deserves some credit for his energy and ambition. While his arrest for disrupting NYC traffic and intentionally disregarding the police may not be worth the attention he has brought upon himself, prosecutors in Cyrus Vance’s Manhattan District Attorney’s Office may have been equally ambitious in their charging decisions. Certainly, it appears that Mr. Velasquez, aka, “CI Joe” was disorderly and there is a strong argument that he trespassed when he climbed the utility pole, but is the Alicia Keys lover boy guilty of Reckless Endangerment?

According to New York Penal Law section 120.20, one is guilty of Reckless Endangerment in the Second Degree when he or she acts so recklessly that his or her conduct creates a substantial risk (not just any risk) of serious physical injury (not just any injury). Now, digging a little deeper, let’s examine some critical definitions here. First, “substantial” is obviously more likely than a mere “chance” or “possibility.” More importantly, “serious physical injury,” according to the New York Penal Law, is not just any injury, but one that could cause death.

June 29, 2011

Voiding an Arrest in a New York Shoplifting, Weapon or Drug Case: NY CPL 170.55 & the ACD “Nullity”

by Jeremy Saland

Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a “Dis Con” could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one’s time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

June 24, 2011

Is Merely Entering and Exiting a Building Five Minutes Later Enough to Establish Probable Cause for a Trespass Arrest in New York

by Jeremy Saland

When all the criminal laws in New York are reviewed, Trespassing in the Third Degree, pursuant to New York Penal Law section 140.10, certainly is not one of the more complex laws. Having said that, it does not mean that complex legal issues will not arise for both New York criminal defense attorneys or prosecutors. Generally, one is guilty of Criminal Trespass in the Third Degree when he or she knowingly enters or remains unlawfully in a building and that property or building is fenced in, enclosed in a manner to exclude intruders or is a public housing project with the rules “conspicuously posted.” Not a complete list of all means where one can be charged with Trespassing, the question posed in this entry is whether or not merely entering and exiting a housing project after five minutes is sufficient to establish the basis to ultimately stop, question and arrest a person. Fortunately, a Brooklyn Criminal Court judge recently answered this question.

In People v. Ortiz, 2010KN086039, NYLJ 1202495789148, a police officer accused a young woman of Criminal Trespass in the Third Degree. After going through the arrest and trial process, the case proceeded to hearings where a judge determined whether or not probable cause existed to arrest the accused.

June 18, 2011

Can Prosecutors in New York Use the BAC Breath Test Taken at the Scene of a DWI Arrest Against You at Trial

by Jeremy Saland

In New York City it is routine that an arrest for DWI, DUI or driving while intoxicated is accompanied by an on the scene intoxilyzer or BAC breath test. In other words, before you ever meet with your criminal lawyer or are handcuffed in the back of a police car, officers with the NYPD will administer an intoxilyzer test in the field. Although prosecutors, and DWI lawyers, often cite the results of this test to their advantage when possible, the legal question is as follows:

Can a breathilyzer or intoxilyzer test result be taken at the scene of a DWI arrest be used against an individual charged with a New York DUI crime such as VTL 1192.2 (Driving While Intoxicated) or VTL 1192.2-a (Aggravated Driving While Intoxicated)?

June 14, 2011

Courthouse Jargon: Understanding “Lawyer Talk” in the New York City Courts

by Jeremy Saland

No criminal lawyer can say they have heard it all before (there is always a new and interesting wrinkle popping up in a case somewhere), but one thing is fairly consistent within the walls of the New York City courts. The judges, prosecutors and criminal defense attorneys from Manhattan to Brooklyn and Queens to the Bronx routinely use their own unique language. While it certainly is not Cantonese, Greek or Hebrew, for most of those people charged with a crime, it could just as well be. While the following is far from a complete list of “criminal lawyer slang,” it should at least be somewhat educational in its scope and address genuine legal terms. Obviously, consult with your own New York criminal lawyer as to your specific case and how these terms may or may not apply.

ACD

June 10, 2011

New York Gambling Crimes: Accused Gets ACD After Charged with Felony Promoting Gambling in the First Degree

by Jeremy Saland

District Attorneys and prosecutors through New York City – Manhattan, Brooklyn, Queens, Bronx and Staten Island – routinely utilize their “long arms” to attack criminal schemes and grab targets of crime well beyond the borders of Gotham. Often times, New York criminal lawyers represent those accused of frauds and criminal transactions even though they never set foot in New York. Whether the crime is Enterprise Corruption, Grand Larceny or Money Laundering, theses defendants are prosecuted as if they had perpetrated their conduct right here in New York.

Beyond the crimes listed above, one of the more common crimes prosecuted beyond the borders of New York are crimes involving gambling. Of these gambling crimes, the felony of Promoting Gambling in the First Degree (NY PL 225.10) is one of the most typical. Generally, you are guilty of Promoting Gambling in the First Degree when you profit or knowingly advance from unlawful gambling activity. In addition to these elements, you must also be involved in bookmaking where you receive more than five bets valued in excess of $5,000 over the course of any given day. Not only is NY PL 225.10 a felony, but it is punishable by up to four years in state prison.

June 6, 2011

Legal Impossibility: Can a Conviction Stand for Possessing Stolen Property if the Property is Part of a Police Sting

by Jeremy Saland

In New York State, if you knowingly possess property and that property is held by you for your benefit or to impede its recovery by the rightful owner, then the crime of Criminal Possession of Stolen Property has been perpetrated. This is true whether the possession of the property is in the context of taking a wallet off of a bar in White Plains, taking cash from a table at a restaurant in Brooklyn or shoplifting from a department store anywhere in New York City. Having said that, there is an interesting and critically important fact that can downgrade your offense. In other words, if you are charged with the “A” misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree (New York Penal Law 165.40), the crime may be knocked down to a lesser “B” misdemeanor of Attempted Criminal Possession of Stolen Property (New York Penal Law 110/165.40). The legal concept that forms the basis of this downgrade is known as legal impossibility. Often times this legal concept occurs in the area of sting operations set up by the police, but is not exclusive to sting operations.

The Court of Appeals, the highest level court in the State of New York, has grappled with the issue of legal impossibility in the past and has done so specifically in the context of Criminal Possession of Stolen Property. In People v. Zaborski, 59 N.Y.2d 863 (1983), the Court upheld or re-affirmed a lower appellate court’s decision that where police set up a sting involving the fencing of stolen property by supplying the property that was previously stolen, the completed crime of Criminal Possession of Stolen Property was not perpetrated and could not be perpetrated. The Court stated that “[a]t common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods.” Simply put, you cannot steal property that is not in fact stolen even though at one point it may have been. The Court further elaborated on the issue of legal impossibility and stated that “[a]lthough the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf.”