New York Criminal Lawyer Blog

October 5, 2009

Disorderly Conduct in NY: Reckless Behavior Sufficient to Establish Violation

Just about every NY criminal defense attorney has either represented a client charged with Disorderly Conduct or worked out a disposition where Disorderly Conduct was offered in lieu of a top count plea. In the criminal courts of New York City, “Disorderly Conduct” can be heard throughout the hallways and courtrooms before the judge bangs his gavel to start the day until the last cases are called in the evening.

Recently, a NY County Criminal Court judge addressed Disorderly Conduct in denying a defendant’s motion to dismiss. In People v. Derrick Diaz, 2008NY062928, the complaint alleged that the police “observed the defendants yelling and screaming and behaving in a violent, tumultuous, and threatening manner, as follows: pushing at police officers and causing a disturbance. Defendant’s [sic] conduct created a public disturbance/inconvenience in that it caused a crowd to gather, disruption of the normal flow of traffic, and people to express alarm.”

October 2, 2009

Extortion and Grand Larceny in New York: Your Criminal Defense & an Analysis of NY Penal Law 155.05(2)(e), 155.30(6) and 155.40(2)

by Jeremy Saland

With the recent Extortion attempt of David Letterman by Robert “Joe” Halderman fresh in our minds, now would be a good time to share with my readers what constitutes Extortion under New York State law. As a New York criminal defense attorney and former Manhattan prosecutor who supervised the investigation and prosecution of multiple individuals charged with the Extortion of an NBA All Star, I am intimately familiar with Extortion as it is defined under New York Penal Law section 155.05(2)(e) and under Grand Larceny in the Fourth and Second Degree pursuant to New York Penal Law sections 155.30(6) and 155.40(2) respectively.

Before proceeding with an analysis of the Extortion statute, it is important to note that Extortion is specifically defined under section 155.05(2)(e) of the New York Penal Law. Like larceny by trick, false promise and common law larceny, Extortion is a means by which a larceny is perpetrated. According to NY Penal Law 155.05(2):

October 2, 2009

David Letterman Extortion Attempt: Robert “Joe” Halderman Charged with Attempted Grand Larceny in the First Degree

by Jeremy Saland

There certainly is no proper or correct way to extort someone, but don’t ever take a check…especially one that was specifically written to bounce once deposited. Unfortunately for Robert “Joe” Halderman, nobody told him that the 2 million dollar check he received from David Letterman was the set up for a punchline that led to his arrest. If convicted of Grand Larceny in the First Degree by Extortion, the television funny man could have the last laugh as Mr. Halderman watches Mr. Letterman in syndication for up to the next 5 to 15 years in state prison.

Having been a Manhattan prosecutor for 7 years and the lead prosecutor on the extortion attempt of an NBA All Star, I have handled the exact same case under similar facts. Instead of individuals seeking a multi-million dollar check in exchange for a video of the basket ball player, Mr. Halderman sought 2 million dollars for “screenplay treatment” and to keep a years old fling with a staffer secret.

September 28, 2009

Bus Driver Arrested in Queens with Kids on Bus: Charged with Reckless Endangerment & DWAI

by Jeremy Saland

The Queens County District Attorney’s Office has announced the arrest of a bus driver charged with DWAI (VTL 1192.1), Reckless Endangerment (NY Penal Law 120.20) and Attempted Endangering the Welfare of a Child (NY Penal Law 110/260.10) after an assistant principal at the school allegedly noticed the smell of alcohol on the bus driver’s breath. It is further alleged that the bus driver, Lakhram Omwathatth, was unsteady on his feet and had watery-bloodshot eyes. Making matters significantly worse and compounding an already terrible situation, it is alleged that five students were on the bus waiting to be driven from school. That being said, it appears that Mr. Omwathatth had driven the bus to school without the students and was arrested prior to leaving with them. Mr. Omwathatth blew a .037 on the intoxilyzer, well below the legal limit. He is further alleged to have stated that he consumed Nyquil and a “non-alcoholic Dr. Pepper.”

I don’t think that anyone could disagree with District Attorney Richard Brown’s statement regarding the importance of protecting children. DWI is one of the most serious crimes with horrific consequences to innocent victims. Moreover, DWI is a preventable crime with some common sense and responsibility. However, regardless of how horrendous the situation may be, i.e, the presence of children in a school bus, the prosecution still has the legal burden of proving a case beyond a reasonable doubt. In this particular case, I believe the prosecution has stretched to find an applicable “A” misdemeanor to charge the defendant with.

September 28, 2009

New York White Collar Crime: Insurance Fraud in the Fifth Through First Degree (NY Penal Law 176.10 – 176.35) & Your Criminal Defense

by Jeremy Saland

Chubb, Kemper, Allstate, Geico…the name of the insurance company makes no difference at all. It is your actions, regardless of the insurance provider, that may land you in an upstate prison cell for perpetrating Insurance Fraud. As we at Saland Law PC have said time and time again, we are available to assist our clients day or night. That being said, your best defense is not necessarily a top criminal defense firm, but knowing the law and keeping yourself from needing a New York criminal defense attorney in the first place.

Before dissecting the penal law, the following are some important definitions that are the basis to the charge of Insurance Fraud:

September 26, 2009

Criminal Possession of a Weapon (New York Penal Law 265.02): Defaced Gun, Revolver, Pistol and Firearm

by Jeremy Saland

As I have explained to my readers numerous times in the past, mere possession of a loaded firearm outside your home or place of business without a permit is punishable as a “C” violent felony. This offense carries a minimum sentence of three and one half years in state prison if that possession is without a license and the district attorney does not make you an offer. Whether you mistakenly brought the gun to New York from a state you had a license thinking it was legal (give Plaxico Burress a ring on that) or you knowingly had a stolen revolver, the potential crime is the same. However, consult with your NY criminal defense attorney because this charge, while more severe than other crimes, is not the only charge you may face.

Pursuant to Penal Law section 265.02, you can be charged with a “D” violent felony punishable by a minimum of two years and up to seven years in state prison for possessing an unloaded firearm. Specifically, a person is guilty of Criminal Possession of a Weapon in the Third Degree when such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun. This crime does not require that the gun be loaded.

September 23, 2009

8 More Arrested in “Levy Enterprise” Insurance Fraud Ring

by Jeremy Saland

Attorney General Andrew Cuomo announced the arrest of eight more individuals in connection to the insurance fraud ring known as the “Levy Enterprise.” Seven of the people charged are hospital employees who allegedly obtained personal information of patients. The employees then sold this information or received bribes to share the information. The information was then allegedly used by third parties “to lure patients into receiving unnecessary treatment and then submit over a million dollars in phony personal injury claims to insurance carriers.” The eighth person, an attorney, is also alleged to have perpetrated this scheme.

According to the Attorney General:

September 20, 2009

Credit Card Debt Settlement: Client Avoids Bankruptcy and Prosecution

by Jeremy Saland

Credit card card debt can dig you down into a whole that you cannot escape from. However, instead of declaring bankruptcy, there are alternatives ways to settle, manage or consolidate your credit card debt.

Recently, a client came into the office regarding a balance of $26,970.30 that he had outstanding on a credit card. Each month the minimum payment was escalating due to punishing interest rates on his balance. Not only was he unable to make the payments, he also had been using his deceased mother’s credit card. The credit card company was in the “driver’s seat” because not only was the client in mounting debt, but if he did not pay they could have reported his activities to law enforcement. It is one thing to not have the means to make payments, but it is another to be using a deceased individual’s credit card.

September 19, 2009

Untaxed Cigarette Sting Leads to 21 Arrests: Defendants Charged with Criminal Tax Fraud, Forgery & Other Crimes

by Jeremy Saland

A year long Westchester County investigation ended in the arrest of 21 people for their alleged involvement in the sale and transportation of untaxed cigarettes. It is alleged that during the course of the investigation, the defendants purchased $16 million worth of unstamped cigarettes from undercover officers. It is further alleged that a confidential informant assisted in targeting numerous individuals whose total sales and purchases exceeded nine million unstamped cigarettes. These illegal transactions equated to a New York State cigarette excise tax stamp fraud of approximately $21 million.

According to the Westchester County District Attorney’s Office:

September 15, 2009

Attempted Tampering with Physical Evidence (New York Penal Law ､110.00/215.40): Does the Complaint Need To Establish the Existence of the Contraband?

by Jeremy Saland

According to New York Penal Law ､215.40(2), a person is guilty of Tampering with Physical Evidence when “[b]elieving that certain evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.” New York criminal defense attorneys, such as the former Manhattan prosecutors at Saland Law PC, can tell you that this crime is often charged as Attempted Tampering with Physical Evidence in an all too common scenario played out on the streets of New York City when a person discards contraband (marijuana, cocaine, heroin or even a weapon such as a knife or gun) after being confronted by the police. The question that exists in these cases is must the complaint charging the individual establish the officer’s knowledge as to what the evidence is as well as the basis of that knowledge?

In a decision rendered on July 8, 2009 in Manhattan Criminal, People v. Anthony Estrada, 2009NY005091, a man was alleged to have thrown marijuana leaves up into the air as the police attempted to arrest him. As a result, the the officer was unable to recover the alleged contraband. In dismissing the complaint, the court found, among other things, that the officer did not establish that the substance in question was marijuana.