New York Criminal Lawyer Blog

June 2, 2008

Tatum O’Neal: Criminal Possession of a Controlled Substance 7th Degree – Possession of Crack-Cocaine

*** For further information regarding an arrest or issuance of a Desk Appearance Ticket for Criminal Possession of a Controlled Substance in the 7th Degree (NY Penal Law 220.03), and your criminal defense, please review the articles on drug quantity, constructive possession of drugs and the necessity of a laboratory analysis by law enforcement***

New York State has multiple degrees of drug possession offenses when an individual is accused of possessing a controlled substance. Mere possession in New York, whether it is in Manhattan, White Plains, Brooklyn or the Bronx, is at least a misdemeanor regardless of your purpose of having the drugs. In other words, having any amount of crack, heroin, cocaine, or other drugs, is punishable a by up to one year in jail even if you possessed it for personal use. Depending on the weight of the drugs and your intent, the crime can be prosecuted as Criminal Possession of a Controlled Substance in the First Degree punishable by a significant term of imprisonment. For the purposes of this entry, we will discuss only Penal Law Section 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree.

May 30, 2008

Tampering with a Witness and Intimidating a Witness: Two Distinct Crimes in New York State

by Jeremy Saland

Tampering with a Witness (New York Penal Law Sections 215.10, 215.11, 215.12 and 215.13) and Intimidating a Victim or a Witness (New York Penal Law Sections 215.15, 215.16 and 215.17) are distinct crimes that often confuse defendants, defense attorneys and prosecutors throughout the New York area from Brooklyn, Queens and the Bronx to the cities of White Plains, Yonkers and New Rochelle in Westchester County. An experienced defense attorney can help explain the differences in the two statutes, listen to your concerns and questions, and formulate a plan to develop the best possible defense for you.

A person is guilty of Tampering with a Witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce that person from absenting himself from or avoid testifying at the proceeding (such as a trial). In the alternative, that person knowingly makes a false statement or deceives with the intent to affect the other individual’s testimony. The different levels of severity of this crime (an “A” misdemeanor punishable by up to one year in jail to a “B” felony punishable by up to 25 years state prison) are distinguished in part by whether there are threats of physical injury or actual physical or serious physical injury.

May 27, 2008

Speedy Trial: How Much Time is a “Reasonable” Amount of Time for New York Prosecutors to Prepare for Trial?

by Jeremy Saland

A Manhattan Judicial Hearing Officer recently ruled in People v. Moustapha Diagne, that prosecutors in New York County (Manhattan) failed to adhere to speedy trial requirements set forth under the New York State Criminal Procedure Law. Therefore, the case against the defendant was dismissed. Specifically, the prosecutor did not file a “certificate of readiness” (a document declaring a prosecutor ready for trial and stopping the speedy trial clock from ticking) in a matter that was adjourned for approximately four months after motion practice ended, but before a hearing or trial commenced. Although this decision is not controlling over judges in other counties in New York State such as Westchester, Brooklyn, Bronx and Queens, it is a well thought out argument that an experienced defense attorney could add to his arsenal of weapons to attack a prosecutor’s case and defend his client.

By way of background, prosecutors are required to be ready for trial and in 90 days from arrest, less excludable time. One example of excludable time is where a defense attorney makes motions (papers filed on a defendant’s behalf to challenge evidence and the sufficiency of the criminal complaint) and a prosecutor responds to the motions. However, when a case is adjourned after motions, the law does not say precisely how much time is included or excluded within this 90 day period prior to trial.

May 24, 2008

Suozzi: Making Names, Addresses and Photographs Public for DWI Arrests in NY

by Jeremy Saland

Nassau County Executive Tom Suozzi plans on releasing the names of all people arrested for DWI (driving while intoxicated) over the Memorial Day weekend. Hopefully, executives, legislators and other politicians in Westchester, Rockland, Manhattan, Bronx, Brooklyn, Queens and Staten Island don’t follow in his foot steps in circumventing the criminal justice system. Not only does he plan on releasing these folks’ names and addresses, but he is providing the local media with their photographs and urging them to release this information.

We can all agree that DWI is an extremely dangerous and potentially a life altering/ending crime for the driver of a vehicle as well as passengers and others on the road. There is just no excuse for it. However, releasing the accused’s name prior to a conviction is not only presuming guilt instead of innocence, but is nothing short of a smear and scarlet letter. Now, we can all agree to disagree, but maybe Mr. Suozzi should be more tactful, professional, and less grand standing in his pursuit of finding a deterrent for what is objectively a terrible crime. If Mr. Suozzi wants to deter people (and rightfully so) from this behavior and insists on making public names, photographs and addresses, then why not at least wait until there is a conviction and why not do it regularly as opposed to doing it for one holiday weekend? Anyone can be arrested for a crime anytime. An arrest is not evidence of guilt.

May 22, 2008

NY Subway Mugger Arrested: Charged with Grand Larceny, Robbery and Resisting Arrest

by Jeremy Saland

The New York City Police Department (NYPD) finally arrested Mark McIntosh and charged him with three counts of Grand Larceny, three counts of Robbery, and one count of Resisting Arrest. McIntosh allegedly snatched purses from six women standing on subway platforms throughout New York City including Manhattan and Brooklyn. Not only was McIntosh brazen enough to grab the purses during rush hour, he often fled into the subway tunnels to escape.

According to the NYPD and the Manhattan District Attorney’s Office, McIntosh often stayed at a homeless shelter in Manhattan’s East Village. Not only was McIntosh identified in lineups, McIntosh apparently did something that any person accused a crime should not do…he made incriminating statements.

May 19, 2008

Criminally Negligent Homicide in New York: Taylor Webster

by Jeremy Saland

6 Year old Taylor Webster died at Mount Sinai Hospital in New York and her foster mother, Joanne Alvarez, was charged with Criminally Negligent Homicide (Penal Law 125.10 – an “E” Felony with no mandatory minimum jail sentence) after Ms. Alvarez gave her a prescription fentanyl “pain patch.” Unfortunately, Taylor’s body could not handle the medications in the patch used for people aged 16 and older and she passed away.

As a former prosecutor in the Manhattan District Attorney’s Office and an experienced criminal defense attorney, I am all too familiar with this type of case where everyone suffers and tragedy reigns. From a legal perspective, the charge of Criminally Negligent Homicide, as opposed to “murder,” appears to be the appropriate charge. Unlike a crime that requires an act to be intentional, meaning a person’s conscious object was to engage in particular conduct, Ms. Alvarez, at his point, is facing charges requiring a different mental state.

May 16, 2008

The Grand Jury in New York State Part I

by Jeremy Saland

You have seen people being arrested and defendants being arraigned before a judge. You have seen New York City criminal defense attorneys advocating for their clients while prosecutors try to throw them in jail. Of course, you have seen that all on television where the Manhattan District Attorney’s Office is glorified through “Law and Order.” While the show is intriguing, the one hour program should not be your source of legal training and education.

Putting “Law and Order” aside, a significant piece of almost all felony cases is the Grand Jury (the Grand Jury can be avoided through what is commonly called an “SCI” or Superior Court Information. This will be addressed on a later date). The Grand Jury consists of no less than 13 and no more than 23 persons. The function of the Grand Jury is to hear evidence and to take action with respect to the evidence presented. After hearing the evidence, the Grand Jury can indict a person for an offense, direct a prosecutor to file a prosecutor’s information with the local criminal court, direct the prosecutor to file a request for removal to the family court, dismiss the charges before it, or submit a Grand Jury report.

May 13, 2008

New York Criminal Diversion of Prescription Medication and Fraud

by Jeremy Saland

If you have the misfortune of being accused in New York of any degree of the crime of Criminal Diversion of Prescription Medications and Prescriptions, it is imperative that you retain an attorney experienced in handling fraud related to prescription medications. As a skilled defense attorney and former prosecutor with the Manhattan District Attorney’s Office under Robert Morgenthau, I am able to aggressively challenge a prosecutor’s evidence to get the best disposition possible.

Whether you are charged with Criminal Diversion of Prescription Medications and Prescriptions in the First Degree, punishable by up to 15 years in prison, or the lowest offense of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, punishable by up to one year in city or county jail, a skilled attorney will advise you of your potential defenses in order to try to beat the case or get you the best deal while maintaining your livelihood and integrity.