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You thought you were doing all the right things, but you were arrested at an airport in New York (usually in Queens at either LaGuardia airport or John F. Kennedy – JFK – airport) for possessing a loaded firearm or gun. Your life just went from 0 to 60 mph in two seconds and you are now charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03). Often called CPW 2, possessing a loaded firearm, even without any malicious, “bad,” or criminal intent, is punishable by a mandatory 3.5 years in state prison if it is possessed outside your home and place of business. Sadly, you may have a permit in your home state, the firearm, gun, revolver or pistol may have been in a proper hard sided and locked case with the ammunition removed and you may have even attempted to check it with an agent at the counter. Unfortunately, New York law is clear. Possessing a loaded firearm outside your home or place of business in New York State without a permit in New York is a felony punishable by up to 15 years in prison. Compounding matters, you may have made the reasonable assumption that your gun or firearm was not loaded because you removed a clip, cartridge or ammunition from the firearm. However, because you stored those bullets in the same carrying case, New York law considers the firearm loaded.

In the event that you are arrested in Queens at one of the airports, you will be taken to central booking and to the Queens Courthouse. Make no mistake, your innocent error of believing it was “OK” to possess that gun in New York will be lost on the the Queens prosecutors at your arraignment. While they are merely doing their jobs, they will likely ask for bail. Whether you retain a New York criminal defense attorney experienced in weapon crimes such as NY PL 265.03 or you utilize a public defender, it is critical to convince the judge that little or no bail is necessary to ensure your return to court.

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Tyco, BCCI, Barclays…the storied tradition of the Manhattan District Attorney’s Office continues to this very day. Ranging from a few sheckles to over $10,000, 59 taxi cab drivers have been arrested by law enforcement in an unparalleled scheme after they finished working their twelve hours shifts for cranky New Yorkers. According to District Attorney Cyrus Vance, the alleged evil offenders bilked passengers out of a collective $235,000. Despite these allegations, according to at least one individual with knowledge of the case, it is plausible that some of the accused may be victims of an imperfect system that did not properly calibrate, calculate or maintain the correct fees. Others, including a man alleged to have stolen over $10,000, may not have such a defense or the sympathy of any New Yorker who has been scammed by a cabbie.

Facing the charges of Scheme to Defraud in the First Degree, an “E” felony punishable by up to four years in prison, and Petit Larceny, an “A” misdemeanor punishable by up to one year in jail, many of these cab drivers have bigger and greater collateral issues to be concerned about. Not only do they run the risk of forfeiting their ability to drive a cab and provide for their families, but if they are not citizens they will certainly have immigration consequences as well.

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Braylon Edwards, the New York Jets star wide receiver, was arrested and charged in Manhattan after being stopped for suspicion of Driving While Intoxicated (DWI / DUI) and drunk driving. Although it is not clear what, if any, field sobriety tests were administered, reports indicate that Edwards blew a .16 on the Intoxilyzer (a Breathalyzer device). The likely charges are VTL 1192.2 for registering .08 or above, VTL 1192.3 (“Common Law DWI”) based on the observations of the police officer which may have included watery blood-shot eyes, slurred speech, etc., and VTL 1192.1 (Driving While Ability Impaired). DWI in New York pursuant to VTL 1192.2 and 1192.3 are both misdemeanors. VTL 1192.1 is a violation and would not result in a criminal conviction.

While it is too early to give a full analysis of Edwards’ DWI case, as a general rule, Manhattan prosecutors do not make non-criminal offers on DWI arrests where the BAC level is as high as .16. While it is common for offers of VTL 1192.1 (a traffic infraction) to be made on DWIs in the vicinity of .08 to .12, it is significantly more difficult to get an offer the higher one’s BAC is. Other factors prosecutors examine include the defendant’s history and whether there were any elements of the offense that would enable them to charge additional crimes such as Reckless Endangerment (DWI by itself is not necessarily “reckless” in the eyes of the law. Other factors of criminality must be present such as speeding / weaving through traffic, barely avoiding pedestrians, etc.). Moreover, although Edwards did not blow a .18, if he had done so, Aggravated DWI would be charged further limiting possible dispositions.

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You were arrested or given a New York Desk Appearance Ticket in Manhattan, Brooklyn, Queens or anywhere else in the New York City region for shoplifting, Petit Larceny or Criminal Possession of Stolen Property (New York Penal Law sections 155.25 and 165.40). You are understandably concerned and upset. You contacted an experienced New York criminal defense lawyer because you are rightfully concerned about how this arrest will impact your future and you want to keep your record clean.

As you and your New York criminal defense attorney discuss the facts of your case you begin to get agitated about how you were treated. You, like many before, are upset that store security stopped, searched, questioned and even asked you to sign documents without answering your questions fully or advising you of your rights. Compounding matters, you felt threatened and compelled to sign these papers they put before you. Store security may have even rummaged through your personal belongings and bags. Is this OK? Were the security officers permitted to act in this manner? What about your rights?

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Reckless Endangerment, New York Penal Law sections 120.20 and 120.25, is either an “A” misdemeanor punishable by up to one year in jail or a “D” felony punishable by up to seven years in state prison. While I have defined Reckless Endangerment in the First and Second Degrees in other entries, if one acts reckless and causes a substantial risk of serious physical injury or death (or they act with a depraved indifference to human life), they are setting themselves up for this charge. Having said that, merely acting stupid does not mean one acted reckless in the eyes of the law. For example, speeding in a car after consuming alcohol may not be “reckless” in the eyes of the law even though you may ultimately be convicted of DWI. Other elements should be present and “fleshed out” in the accusation. In the scenario above, one may be driving dangerously, but where there other cars or pedestrians in the street? Did the accused almost hit them? How fast was he or she speeding? What were the road conditions? There are other important facts before one’s actions give rise to at least a “substantial risk” of not merely a small injury, but serious physical injury or a grave risk of death.

Keeping with the theme of what constitutes a the crime of Reckless Endangerment in New York, a question that is often addressed is whether or not factual impossibility is a defense to the crime in New York of Reckless Endangerment in the Second or First Degree. That answer is generally yes. A great non-legal way to look at this is as follows:

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Although it rears its head in other areas of New York criminal law, violations of a defendant’s right to counsel (right to remain silent) seem disproportionately greater in the area of New York graffiti crimes including Making Graffiti (New York Penal Law 145.60), Criminal Mischief (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). While I cannot base my opinion on any scientific data, as a New York graffiti crimes criminal defense lawyer, I have litigated and addressed the issues regarding right to counsel numerous times in this specific arena. In fact, one of the New York City District Attorney’s Offices recently dropped five of six cases against our client after I successfully argued that the client’s right to counsel was violated by the New York City Police Department’s Vandalism (Vandal) Squad. The argument was based in the doctrine of “Related Matters.”

In the case mentioned above, our client had been arrested by police after he was allegedly observed with a spray paint can. A person had called indicating someone was in the process of spray painting. Our client was alleged to have made a particular tag at that location. Weeks later, after he was arraigned and had been assigned counsel, but had yet to retain Saland Law PC, the Vandal Squad stopped our client on the street and confronted him with photographs. These photographs were of the same alleged tag at other locations. During his street interrogation by about six officers and detectives from the Vandal Squad, our client “admitted” to spraying the tag at the other locations. As a result, he was once again arrested and charged with five new cases regarding the same tag as the first arrest that was currently pending in criminal court.

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Make no mistake about it. If you “dine and dash,” leave a Manhattan cab driver high and dry without paying, jump a turnstile in Brooklyn or even use cable without permission, you will be either arrested or issued a NY Desk Appearance Ticket (DAT) for Theft of Services pursuant to New York Penal Law 165.15. If you are a New York City teacher or or any other person using a student or senior MetroCard, you will will face the same charge as well. Assuming you did not have permission to receive the services without paying, the conversation you have regarding Theft of Services (NY PL 165.15) with your New York criminal defense attorney or lawyer will be fairly simple. Not a DNA case, this crime is often summed up as either a misunderstanding between you and the victim or the result of a plainly stupid move on your part. The problem is, regardless of whether you were issued a New York Desk Appearance Ticket or arrested, if you are convicted of Theft of Services you will have a criminal record that will not be expunged or merely go away.

Potential Punishment & Collateral Consequences of Theft of Services (NY Penal Law 165.15)

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According to various reports, David Mejias, the Democrat New York State Senate candidate running against Republican Senator Kemp Hannon in Long Island’s 6th Senate District, was arrested earlier today after an alleged “domestic type” incident involving an ex-girlfriend. Mr. Mejias is charged with multiple misdemeanors including Menacing in the Second Degree (New York Penal Law 120.14), Reckless Endangerment in the Second Degree (New York Penal Law 120.20) and Stalking in the Third Degree. These crimes are all “A” misdemeanors punishable by up to a year in jail. While bail was set at $1000, District Attorney Kathleen Rice appointed a special prosecutor due to her relationship with the defendant.

It is alleged that Mr. Mejias, the defendant, drove past his ex-girlfriend and abruptly stopped his vehicle. This caused the ex-girlfriend, the alleged victim / complainant, to do the same with her car. At that point it is further alleged that Mr. Mejias exited his vehicle and and yelled and screamed as he approached the alleged victim. The complainant was able to drive away, but the defendant is alleged to have followed her. After she was able to elude the accused, the ex-girlfriend reported the case to the police and the police arrested Mr. Mejias.

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Caroline Giuliani, the former New City Mayor’s daughter, obtained an adjournment in contemplation of dismissal (ACD) in court earlier today whereby her case will be dismissed and sealed in six months. New York’s Eyewitness News consulted New York criminal defense attorney Jeremy Saland as an “expert” in the arena of New York shoplifting and Petit Larceny (New York Penal Law 155.25) cases.

As noted in the news clip, Mr. Saland indicated that such a disposition is fairly typical where the alleged theft does not exceed $100. However, although it was not mentioned during the broadcast, Mr. Saland further explained that in the event the theft is alleged to have exceeded $100 dollars, the standard offer in Manhattan is often a less forgiving Disorderly Conduct. Furthermore, if the crime involves an alleged theft of $500 to $1000, then the standard offer is at best a “B” misdemeanor of Attempted Petit Larceny.

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One of the more common violent crimes charged in New York is Criminal Possession of a Weapon pursuant to New York Penal Law sections 265.01, 265.02 and 265.03. While the lower level weapon crimes often relate to the possession of knives or similar instruments (gravity knives and switchblades), the more serious weapon crimes usually relate to the possession of a “firearm.” Obviously, because they do not reside here, many out-of-state residents who travel to New York are unfamiliar with the strict gun and weapon laws in New York City. Unbeknown to them, even bringing their duly licensed pistol, revolver or handgun from their home state into New York will result in an arrest for possession of that firearm. Sadly, gun owners who legally possess their weapons out of state are routinely arrested in New York City airports (Queens County) such as LaGuardia Airport or John F. Kennedy (JFK) Airport. What was an innocent mistake is now a serious felony punishable in most circumstance by a mandatory minimum of 3.5 years in state prison.

Just like other areas of law, New York weapon and gun laws have their own terms, definitions and legal decisions. In other words, while you might think your gun is not loaded because the ammunition is not in a magazine or cylinder of a gun, the gun is actually loaded in the eyes of New York law because the firearm is capable of being loaded. Another term that causes some confusion, but is critically important to understand, is what constitutes a “firearm” in New York.

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