New York Criminal Lawyer Blog

January 21, 2010

Resisting Arrest: New York Penal Law 205.30 & Your Criminal Defense

It is fairly common in the courts throughout New York City (Manhattan, Brooklyn, Queens and the Bronx) for criminal defense attorneys to represent clients charged with Resisting Arrest, pursuant to NY Penal Law 205.30. While it certainly can be a legitimate charge, very often the police will add this charge on top of the original offense if a defendant merely “resists” by backing away, swinging his or her arms up and not complying with an officers demands. Do not be mistaken that the law in NY requires a fist fight or shoving to satisfy the elements of Resisting Arrest. No physical violence or injury is necessary.

According to Penal Law 205.30:

January 20, 2010

Long Island Contractor Paid $140K, But Fails to Build Home Addition

by Jeremy Saland

According to the Queens County District Attorney’s Office, Ron Scott, a Long Island contractor and the owner of US Builder NYC and a representative of Phoenix International Construction Company, is alleged to have defrauded a 74 woman out of $140,000. Mr. Scott is charged on a criminal court complaint with Grand Larceny in the Second Degree (NY PL 155.40), Criminal Possession of Stolen Property in the Second Degree (NY PL 165.52) and a violation of the New York State Lien Law. Each of the theft related charges are “C” felonies punishable by a maximum of 5 to 15 years in state prison and are associated with the theft or possession of stolen property valued in excess of $50,000, but $1,000,000 or less.

According to the District Attorney’s Office press release, Mr. Scott was paid this money in both a personal check and bank check after he contracted to build an addition on the home of a Queens woman. It is alleged that the woman paid Mr. Scott this money nearly two years ago and that once deposited, the money was used by Mr. Scott to pay old debts. To date, the work has not been completed.

January 17, 2010

Manhattan White Collar Criminal Defense Firm Gets Dismissal & Misdemeanor After Client Accused of Two Thefts Totaling $70,000

by Jeremy Saland

Saland Law PC, a Manhattan based white collar criminal defense firm representing clients throughout the New York City region, is pleased to announce another tremendous result for a client in the arena of fraud and theft allegations. Our client, charged on two separate dockets, allegedly defrauded approximately $35,000 from one individual and approximately $35,000 from a second individual. Prosecutors charged our client with twenty-five felonies in the two criminal court complaints including Grand Larceny in the Third Degree (NY PL 155.35), Forgery in the Second Degree (NY PL 170.10), Criminal Possession of a Forged Instrument in the Second Degree (NY PL 170.25) and Identity Theft in the First Degree (NY PL 190.80). Prosecutors alleged that our client stole these monies through drafting checks without permission and using credit cards, including a corporate business card, without authority to do so. Despite the large value of the alleged theft, approximately $70,000 between two people, Saland Law PC attacked the veracity of one of the complainants as well the length of time between the incident and the reporting of the theft. Moreover, investigation revealed that this complainant may have been trying to “hide” money from his spouse. After further investigation and challenging the prosecution regarding their ability to prove the $35,000 theft beyond a reasonable doubt, prosecutors dismissed all of the charges. Although we were not as successful with the second felony case as we were with the first case, Saland Law PC negotiated a tremendous disposition on the second matter as well. In the second case, prosecutors agreed to a misdemeanor plea for Petit Larceny (the “shoplifting” statute) as well as Criminal Possession of Stolen Property. Although the complainant and prosecutors presented us with documentation for a significant portion of the $35,000 as well as a signed stipulation by our client that she in fact owed these monies, we successfully argued that despite the admission and documentation, the facts of the case would establish that the complainant was not being forthright. Even if true, the value of the alleged loss was exaggerated and our client signed the agreement under duress. Fortunately, through our investigation and diligence, we were able to corroborate our position thereby weakening the ability of the prosecution to prove the theft and the loss amount beyond a reasonable doubt. After all of our efforts working with our client for over a year to avoid a felony or jail, the court sentenced our client on the misdemeanor plea to three years of probation (no jail) and $20,000 in total restitution. As this client learned, each case is unique and requires its own analysis and defense. Whether it takes one month or one year, some felony fraud cases can be negotiated to a lesser offense while others ultimately may not. Furthermore, some cases may require a trial to prove one’s innocence where a real risk may be present of a conviction and accompanying jail. Whatever result you are seeking and whether or not it is actually attainable, it is imperative that your counsel be a knowledgeable and a zealous advocate who keeps you informed throughout the process as it unfolds.

January 13, 2010

Don’t Use that Canceled Credit / Debit Card: NY Penal Law 165.17 – Unlawful Use of a Credit Card or Debit Card

by Jeremy Saland

It has happened to the best of us….even those who check their accounts daily. Maybe you just inadvertently went over your limit on your credit card or debit card. Well, in New York if you knowingly try to use that credit or debit card and it is “no good,” i.e., revoked or canceled, you may be charged with Unlawful Use of a Credit Card or Debit Card pursuant to New York Penal Law Section 165.17. While not as serious as the felony of possessing a stolen debit or credit card, this offense is still a crime.

According to the New York Penal Law 165.17 – Unlawful Use of a Credit or Debit Card:

January 9, 2010

Loaded Firearm Recovered Outside Vehicle: NY Supreme Court Finds that Possession of Firearm “Car Presumption” (NY PL 265.15) Still Applies

by Jeremy Saland

As I have noted in the past, possession of contraband, whether it is narcotics or a loaded firearm, may be constructively possessed or based on a legal presumption found in the New York Penal Law. In the area of Criminal Possession of a Weapon in the First, Second, Third and Fourth Degrees, pursuant to New York Penal Law sections 265.04, 265.03, 265.02 and 265.01 respectively, that legal presumption is codified in New York Penal Law section 265.15. Although subject to certain nuances which must be addressed in each case by your criminal defense attorney, the following is one specific legal presumption found in New York Penal Law 265.15(3) as it relates to this blog entry and a recent court decision:

“The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, large capacity ammunition feeding device, defaced firearm, defaced rifle or shotgun, defaced large capacity ammunition feeding device, firearm silencer, explosive or incendiary bomb, bombshell, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack, plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances: (a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his or her trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his or her possession a valid license to have and carry concealed the same.”

January 6, 2010

Escape from New York: Man Slips Chain Gang in Staten Island While ABC Cameras Roll

by Jeremy Saland

Naquan Thompson, a 22 year old man arrested for an alleged Robbery in Staten Island, New York, decided that life on the chain gang wasn’t for him. As police escorted him and his chain gang fellows to Criminal Court, Mr. Thompson decided he would slip the cuffs and take off running. Unfortunately for young Thompson, WABC-TV cameras happened to be filming at the exact moment he broke free.

After hiding out for nearly 30 minutes, the NYPD arrested Mr.Thompson near the ferry where they found him with a broken ankle. Mr. Thompson has compounded his tenuous situation well beyond his fractured ankle. Now, Mr. Thompson potentially faces a new charge of Escape.

January 4, 2010

The Tireless Pursuit of Justice: Robert Morgenthau

by Jeremy Saland

To those of us that know him or worked for him, Robert Morgenthau, a/k/a, the “Boss,” was and will continue to be the personification of justice and the pursuit of its principles. In his three and a half decade journey as the Manhattan District Attorney fighting crimes in the streets as well as the “suites” of Manhattan and beyond, Mr. Morgenthau did not bend to public pressure or perception, staying focused on his goal.

Whether a case grabbed the headlines and captivated the public or was only known to the single mother victimized by an abusive partner, Mr. Morgenthau sought to have each case, victim and witness treated with the highest level of professionalism, dignity and respect. Regardless of the media coverage, one thing rang true amongst all of his cases. To each victim, his or her case was the most important. Justice demanded that they be treated accordingly.

December 31, 2009

Exercising Your Miranda Rights in New York: Why it is Important to Consider Consulting with Your Criminal Defense Attorney Before Speaking to the Police

by Jeremy Saland

As a former prosecutor in the Manhattan District Attorneys Office and as a criminal defense attorney in New York City, I could probably write a book on the stupid things people say when confronted by the police. Maybe they think they are going to talk themselves out of trouble or maybe they are just nervous, but the end result is often the same….they get themselves in deeper water and often end up being placed under arrest. A defendant in Queens County charged with Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03(1) and 265.03(3)), learned this lesson the hard way.

In People v. Virgilio Rodriguez, 2632/08, decided June 23, 2009, police responded to “shots fired.” When they arrived at the location the officers asked what happened and some individuals pointed to the defendant and stated that the officers should ask him. Upon asking the defendant what happened the defendant admitted that he shot off his gun and then voluntarily brought the officers to his office a few feet away and retrieved his gun from the desk drawer. The police placed the defendant under arrest and brought him to the precinct and ultimately central booking. During this time, the family obtained a criminal defense attorney for the defendant and the attorney filed a notice with the court (a letter indicating that the defendant has counsel). Despite this, the police questioned the defendant on video. Ultimately, the defendant’s attorney challenged both the statement at the scene as well as the video statement. Unfortunately for the defendant, the court ruled that his statement was admissible as it was made at the scene voluntarily and while the police where investigating. In a close to literal sense, the defendant shot himself in his foot for opening his mouth at the scene.

December 28, 2009

Brooklyn Travel Agent Allegedly Pockets $26,000 After Pocketing Money Instead of Booking Clients’ Reservations

by Jeremy Saland

According to the Brooklyn (Kings County) District Attorney’s Office, a Brooklyn, New York Grand Jury indicted Peter Galin on 27 counts of Grand Larceny in the Third Degree, Grand Larceny in the Fourth Degree, Scheme To Defraud in the First Degree and Petit Larceny. Galin, a travel agent and proprietor of TravelCenterOnline.Com, is alleged to have defrauded 12 clients by taking their money and using it for his personal use as opposed to booking and arranging for their travel and vacations. It is alleged that clients paid Mr. Galin between $400 and $5,500 for travel plans that were never made. Despite being given receipts for his services, Mr. Galin’s clients allegedly received nothing at all. One such client arrived at the airport on the scheduled day of departure to learn that no airline reservations had been made.

If convicted at trial, Mr. Galin faces no mandatory minimum sentence, but up to 2 and 1/3 to 7 years in state prison on the top charges.

December 24, 2009

Leandra’s Law Is Official: New York VTL 1192.2-a(b) / VTL 1192(2a)(b) Makes it a Felony to Drive Drunk (DWI / DUI) with a Child 15 Years Old or Younger

by Jeremy Saland

Make no mistake. New York DWI / DUI laws have just gotten significantly harsher. In fact, pursuant to New York Vehicle and Traffic Law (VTL) section 1192.2-a(b) / 1192(2a)(b), otherwise know as Leandra’s Law, a misdemeanor Driving While Intoxicated is “bumped up” to a felony offense if you perpetrate the “drunk driving” crimes of VTL 1192.2, VTL 1192.3, VTL 1192.4 or VTL 1192.4(a) and a child 15 years old or younger is in that vehicle.

More specifically, one can be charged with felony DWI / DUI pursuant to VTL 1192.2-a(b) / VTL 1192(2a)(b) when that person either has a BAC of .08 or greater, is intoxicated due to drug or alcohol ingestion or is “common law” DWI. Although often more difficult to prove due to the lack of scientific evidence, “common law” DWI refers to cases where an individual does not give a reading or sample of breath, urine or blood, but the police articulate the individual’s intoxication due to certain characteristics such as unsteadiness on one’s feet, slurred speech, the smell of alcohol, and watery-blood shot eyes, etc.