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Criminal Possession of a Controlled Substance…Criminal Sale of a Controlled Substance…heroin, crack-cocaine and cocaine (note that marijuana is not a Controlled Substance crime). Your NY criminal defense attorney has heard of these crimes before and it is likely you have as well. However, what we have all learned and grown accustomed to over the years may no longer be valid. Why? The old Rockefeller drug laws in NY have drastically changed. We, the NY criminal defense lawyers at Saland Law PC, have reviewed the applicable statutes as they relate to to the possession and sale of drugs and will address some of these changes in our first entry on this subject.

Pursuant to the first change in the Rockefeller drug laws, “B” drug felonies found in Penal Law section 220.39 – Criminal Sale of a Controlled Substance in the Third Degree and New York Penal Law section 220.16 – Criminal Possession of a Controlled Substance in the Third Degree, required a mandatory term of imprisonment for a first time felony offender between one and nine years. The recent change now permits sentences that are a mix of probation and jail or even straight probation. Moreover, Willard, an inpatient drug treatment program and facility, is available for these first time offenders. Another change provided by the amended statutes authorizes courts to placed defendants convicted of the “B” drug crimes into SHOCK incarceration where previously a judge did not have the ability to do so. Previously, the NYS Department of Corrections had the authority to make this determination and could deny SHOCK even if a judge requested it.

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In New York State, Grand Larceny is one of the most common white collar crimes that prosecutors charge. Although the level of the crime can range from Grand Larceny in the Fourth Degree (NY PL 155.30(1)) punishable by up to 4 years in prison to Grand Larceny in the First Degree (NY PL 155.42) punishable by up to 25 years prison, the following is a New York Grand Larceny “primer” as the law applies to the value of property allegedly stolen. For further information on different sections of the Grand Larceny statute and how the law may impact your particular defense, follow the links below. Having said that, Grand Larceny in New York is defined as follows:

Grand Larceny in the 4th Degree – New York Penal Law Section 155.30(1)

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It is common throughout New York City and the region for judges to grant prosecutors’ requests for orders of protection whereby no contact between a complainant and defendant is permitted. These “full” orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don’t even know each other and are complete strangers. What is concerning for the accused, however, is where a “full” order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, “full” orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?

Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your “personal or property rights will be directly and specifically affected,” by a “full” order of protection, your attorney can request a “Forman Hearing.” Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused’s burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).

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Leandra’s Law in New York has made the consequences of a misdemeanor Driving While Intoxicated (DWI or DUI) conviction that much more severe. If it wasn’t clear that prosecutors and judges in New York have had a zero or minimal tolerance policy for the crimes of Vehicle and Traffic Law (VTL) 1192, Leandra’s Law has done away with those questions. As of August 15, 2010, anyone convicted of a DWI misdemeanor not only faces the potential fines, programs and other penalties, but now one must place a mandatory ignition interlocking device on one’s car for at least six months.

The ignition interlock device required by Leandra’s law must be blown into prior to the car starting. Moreover, at random times during the vehicle’s operation, the device requires a sampling to prevent the vehicle from shutting down. It is interesting to note that not only must the individual convicted of New York DWI / DUI (VTL 1192) have this device placed in their vehicle, but they are not permitted to drive other vehicles that do not have the apparatus set up. In the event you do so or tamper with the interlock device, you will face new and additional misdemeanor charges.

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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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