New York Criminal Lawyer Blog

October 19, 2009

Criminal Diversion of Prescription Medication (NY Penal Law 178.10, 178.15, 178.20 and 178.25): Is the Defendant’s Own Statement Sufficient to Establish the Nature of the Prescription Drug?

A crime that has been on the rise as of late is the offense of Criminal Diversion of Prescription Medication pursuant to Article 178 of the New York Penal Law. While street level dealers are often involved in this crime, Criminal Diversion of Prescription Medication can arguably be viewed as the “white collar” crime of the narcotics world. Recently, in a case pending in Manhattan Supreme Court, a judge addressed the issue regarding the means by which the prosecution must establish the presence of a particular prescription medication. The question raised was whether or not it is sufficient to establish that a particular substance is a prescription medication if that fact is established solely by the statements of the accused and without further corroboration. In other words, has the prosecution met its burden by using the statements of a “seller” who says the drugs are a particular prescription medication without expert testimony or a laboratory report?

According to Judge Marcy Kahn, in People v. Khan, 3299/2008:

October 15, 2009

Breaking Down State Senator Hiram Monserrate’s Conviction of Reckless Misdemeanor Assault

by Jeremy Saland

A Queens County Supreme Court Judge acquitted Hiram Monserrate of felony Assault and convicted the embattled state senator of Assault in the Third Degree, a misdemeanor. More specifically, the judge found him guilty of New York Penal Law 120.00(2). According to the New York Penal Law, an individual is guilty of 120.00(2) when he or she recklessly causes physical injury to another person. This offense differs greatly from 120.00(1) which requires that a person intentionally causes physical injury to another person. Regardless of the theory of the case, anyone convicted of a misdemeanor Assault faces up to one year in jail. However, a judge has the discretion to sentence that person to no jail at all. While the court has not sentenced Senator Monserrate, a full order or protection was issued thereby preventing him to have any contact with the victim of his crime.

While I did not sit in the courtroom listening to the testimony, the decision rendered by the court does not surprise me. If Senator Monserrate had been convicted of the felony, the state would have been thrust into terrible turmoil and a horrendous stalemate. Removing Senator Monseratte from his seat would have resulted in 31-30 standoff in the state senate. Did this fact impact the court’s decision? Did the judge “split the baby” by finding Mr. Monserrate guilty of a crime, but a significantly lesser offense? Are we over analyzing his decision and, at bottom, the facts just did not support the People’s case?

October 15, 2009

Georgia Man Indicted for Posing as a Fake Attorney: Alleged to Have Pepetrated Immigration Scheme Against over a Dozen Clients in New York

by Jeremy Saland

It seems like “immigration fraud” and individuals purporting to be attorneys is the crime du jour in Manhattan and New York City lately. The most recent individual accused of a fraudulent immigration scheme is Wilmer Rivera Melendez. According to the Manhattan District Attorney’s Office, Mr. Melendez purported to provide immigration services to New Yorkers as an employee of W&R Immigration Services. Mr. Melendez claimed that W&R, an alleged non-profit organization located in Covington, Georgia, could assist people in immigration issues. It is even alleged that Mr. Melendez filed applications and petitions with the United States Citizenship and Immigration Service (USCIS) on behalf of undocumented individuals. These individuals were allegedly fooled into believing Mr. Melendez had practiced law for 20 years and, as a result, agreed to wire money into Mr. Melendez’s bank account.

According to the Manhattan District Attorney’s Office:

October 15, 2009

New York State Criminal Tax Fraud in the Fifth Through First Degree: NY Tax Law ､ 1802 through ､ 1806 & Your Criminal Defense

by Jeremy Saland

The New York criminal defense attorneys and lawyers at Saland Law PC have successfully represented clients in a wide range of white collar crimes. While past success is no guarantee of future results, the former Manhattan prosecutors at Saland Law PC have had tremendous success representing clients in matters relating to New York State criminal tax fraud. In fact, we recently had a multi-million dollar tax fraud investigation by a NYC District Attorney’s Office dropped where our client failed to file returns for over a half a dozen years. Whether the case was prosecuted as a Grand Larceny or pursuant to the tax code as New York State Criminal Tax Fraud, the ramifications to the accused is enormous in both terms of incarceration and reputation. Because we strongly believe that education is the best means to avoid getting involved in crime, the following is an overview of Criminal Tax Fraud in the Fifth Degree (NYS Tax Law ､ 1802), Criminal Tax Fraud in the Fourth Degree (NYS Tax Law ､ 1803), Criminal Tax Fraud in the Third Degree (NYS Tax Law ､ 1804), Criminal Tax Fraud in the Second Degree (NYS Tax Law ､ 1805) and Criminal Tax Fraud in the First Degree (NYS Tax Law ､ 1806):

Definition of “Tax Fraud Acts” (NYS Tax Law ､ 1801)

October 14, 2009

Saland Law PC’s Elizabeth Crotty to Speak to New York Self Storage Association Regarding Storage of Contraband

by Jeremy Saland

Saland Law PC, a Manhattan based criminal defense and complex civil litigation firm, is pleased to announce that Elizabetth Crotty is speaking at New York Sefl Storage Association’s Annual Convention and Membership Meeting tomorrow in Westchester County. Ms. Crotty will be discussing the ramifications of storing contraband in self storage facilities. Moreover, she will address nuisance abatement laws and how local police departments enforce those laws and ordinances.

October 14, 2009

Realtor Claims to Own Manhattan Building: Sale of Property Lands Him in Jail

by Jeremy Saland

NY criminal defense attorneys are always being confronted with indictments and complaints against their clients for a wide variety of alleged fraudulent schemes. One such scheme just resulted in the indictment of Henry Vargas for the sale of a commercial building he claimed to own, but in fact, according to the Manhattan District Attorney, he did not.

Manhattan District Attorney Robert Morgenthau issued a press release alleging that during the past two years, Henry Vargas claimed to be the owner of 21-41 Lenox Avenue, a commercial building near Central Park. Although Mr. Vargas was not the owner of the property, it is alleged that he present forged documents to fool attorneys, business developers and other professionals into believing he had a controlling interest in the property.

October 11, 2009

Can Your Inability to Urinate be the Basis of a DWI (VTL 1192.3) Refusal?

by Jeremy Saland

Many New York criminal defense attorneys have handled cases with unique, if not “funny” sets of facts. While no criminal accusation is a laughing matter, criminal defense attorneys always have to be ready to handle situations that fall outside every day parameters. In the context of Driving While Intoxicated (DWI) pursuant to Vehicle and Traffic Law section 1192.3, one criminal defense lawyer and the court were confronted with such a situation. In that case, People v. Krivak, a Rockland County, New York Village Justice addressed the following issue: Is one’s inability to urinate for the purpose of submitting to a chemical test a legal “refusal.”

Briefly, and by way of background, New York permits the prosecution of individuals who are deemed to be driving while intoxicated even if their BAC is not recorded. This offense is often referred to as “Common Law DWI” and is found in the Vehicle and Traffic Law under section 1192.3 Police and prosecutors establish this crime by asserting that the accused had certain characteristics such as watery and blood-shot eyes, the smell of alcohol, slurred speech and unsteadiness on their feet. If a person refuses to take a chemical test to ascertain if and the amount of alcohol in their system, their failure to do so may legally be construed as a refusal. This refusal can then be used at a trial as evidence of the defendant’s guilt.

October 8, 2009

Escort Ring Nailed in the Burbs: Westchester County DA Busts Up “High End” Prostitution Crew

by Jeremy Saland

As long as the world’s oldest profession is profitable, the police and prosecutors will continue to go on the offensive to busting up and tearing down escort and prostitution rings. Unfortunately for Kenneth Fuina and Shawana Smith, they were the targets of such an investigation by the Westchester County District Attorney’s Office that spanned two years. Now, Fuina and Smith are sitting in a White Plains jail cell on $100,000 bail each and facing the charge of Promoting Prostitution in the Third Degree, a class “D” felony punishable by up to 2 and 1/3 to 7 years in state prison. A third defendant, Genevieve Peattie, was released from jail but is charged with a misdemeanor of Prostitution.

According to reports, it is alleged that Kenneth Fuina and Shawana Smith ran a website for high end call girls charging between $600 to $2000 for one or more hours of “GFE” or a full service sexual encounter otherwise known as “Girl Friend Experience.” The girls were recruited and their services were offered through a website, www.discreetcompanions.moonfruit.com. Once a client contacted Fuina or Smith, it is alleged that the girls were sent out to hotels in Westchester cities such as White Plains, Rye, Rye Brook and Tarrytown.

October 8, 2009

Brooke Astor’s son Anthony Marshall Convicted in Grand Larceny and Forgery Scheme: Manhattan Judge to Sentence Defendant to Mandatory State Prison

by Jeremy Saland

Convicted of Grand Larceny in the First Degree in Manhattan Supreme Court, a New York trial jury has sealed Anthony Marshall’s fate. Prosecutors called over seventy witness during the course of the trial that addressed whether or not Marshall was involved in forging Brooke Astor’s signature and stealing her fortunate as she suffered from dementia and lived in squalor. In the end, the jury found that Marshall had bilked his own mother out of millions of dollars.

Unfortunately for Marshall, a conviction for Grand Larceny in the First Degree is an enormous defeat especially for an 85 year old man. By law, the minimum sentence he faces will be 1 to 3 years in state prison while the maximum Marshall could face is 8 and 1/3 to 25 years. If Marshall had been acquitted of this charge and “merely” convicted of Grand Larceny in the Second Degree, Forgery in the Second Degree, Falsifying Business Records in the First Degree and other crimes on the indictment, he would have not faced mandatory prison. While we certainly can only speculate what a judge might sentence and individual to, by law Marshall could have gotten nothing more than a conditional discharge or even no probation and up to 1 and 1/3 to 4, 2 and 1/3 to 7 or 5 to 15 depending if he were convicted of the “E,” “D,” or “C” felonies respectively. Compounding an already ugly case, Marshall still faces a pending civil case.

October 7, 2009

13 People Indicted on 263 Counts of Fraud Related Crimes: 18 Month Investigation Between Brooklyn DA and Secret Service

by Jeremy Saland

After correctly speculating as to some of the possible charges, the Brooklyn District Attorney’s Office has issued a press release regarding today’s announcement that 13 people have been indicted for a wide ranging criminal enterprise that spanned states and countries. As I have noted in the past, criminal defense lawyers in New York are seeing more and more of these types of crimes being swept up in large scale investigations. This certainly will not be the last of such investigations and prosecutions.

According to the Brooklyn District Attorney’s Office: