New York Criminal Lawyer Blog

Is Proof of an Out of State Firearm Permit or License a Defense to the Charge of NY PL 265.03 - Criminal Possession of a Weapon in the Second Degree?

Sun, 13 May 2012 06:46:08 -0500

As a preliminary matter before addressing the issue and court decision in this blog entry, I want to briefly state the law of possessing unlicensed firearms, guns, revolvers, pistols, etc. in the State of New York. Pursuant to New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, it is a felony offense to possess a loaded firearm in New York outside your home or place of business without a license to do so. If convicted, someone with no prior criminal history would face a minimum of 3.5 years to 15 years in state prison.

Having briefly addressed the law in New York, I want to discuss a recent criminal decision that stemmed from Queens County in New York City. In the People v. Dwayne McLaren, 2159/2010, NYLJ 1202552954788, at *1 (Sup., QU, Decided April 27, 2012), the defendant argued the court erred by denying him his Due Process right to a fair trial by precluding him from introducing into evidence the fact that he possessed a valid license to carry a concealed and loaded weapon in neighboring Connecticut.

Before jury selection, the prosecution made an application to prevent the defendant from introducing any evidence at trial his Connecticut license for the weapon he possessed when arrested in New York. The Court found that since the prosecution alleged that the defendant intended to use the firearm against another person and the People relied on the statutory presumption found in Penal Law 265.15(4), the jury should be permitted learn of the defendant's Connecticut license for the same weapon. This evidence could be material to the defendant's mental state of intent. However, having said that, beyond the subsection of New York Penal Law 265.03 that deals with an intent to use unlawfully, maintaining a Connecticut license or permit is not relevant. The subsection that merely deals with possession of a firearm simply requires that the defendant knowingly possessed that weapon in New York.

The court further explained:

"While the defendant is correct that his mental state at the time of his arrest was a critical element of the crime charged, he is mistaken in contending that the fact that he was a holder of a Connecticut pistol license had any bearing on whether or not his possession of the weapon in New York State, on December 12, 2009, was a 'knowing' possession or not. A person knowingly possesses a firearm when he is aware that he possesses a firearm. Therefore, the fact that a person may possess a license to possess a firearm is immaterial to whether or not that person is aware that he is in possession, actual or constructive, at the time and place in question. To have allowed evidence of the pistol license before the jury would have been improper, since the only purpose in doing so would have been to engender sympathy for the defendant."

Although this court decision may be beneficial in the context of malicious or violent gun crimes and offenses, it has little to no value where the allegation is of the "strict liability" variety (mere possession). For example, if you have a license to possess and carry a gun, revolver or pistol in Florida, California or Texas and you attempt to properly secure that firearm when checking into your flight at either JFK or LaGuardia airports, you will likely not be accused of a unlawful intent subsection and this case will have no value. At the same time, because you would likely be charged with the straight possession crime, this decision would not benefit you either.

While it may seem that the cards are stacked against you in a case involving the possession of a loaded and unlicensed firearm outside your home or place of business...your assessment would be right. However, make no mistake. There are ample legal decisions that may be used to your benefit and preliminary issues that cannot be ignored. How did it come to be that the firearm was recovered? Was there an improper search? Assuming the search was valid, is the firearm operable? Further, is the alleged possession constructive or actual? Was the revolver in a vehicle? Was the pistol open for others to see? Was the gun in a home? Beyond the legal issues, are there factual or evidentiary problems that the prosecution may face and that your criminal attorney can exploit? If not, can your criminal lawyer mitigate your conduct to lessen the allegation of Criminal Possession of a Weapon in the Second Degree? These are just some of the many questions and issues you will encounter and address should you find yourself arrested or indicted for New York Penal Law 265.03.

To learn more about New York gun crimes and weapon offenses such as Criminal Possession of a Weapon, follow the highlighted links above or go directly to Crotty Saland PC's Weapon Crime Information page at the Crotty Saland PC website linked below. There you will not only find analysis of statutes, but legal assessment of cases and decisions that have a direct impact on the application and interpretation of those laws.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC have successfully represented numerous individuals charged with and accused of possessing firearms and other weapons in New York City, New York airports and the surrounding municipalities.

Presuming Criminal Intent when Possessing a Non Per Se Weapon: Understanding New York Penal Law Article 265 Crimes

Tue, 08 May 2012 05:10:32 -0500

There are few crimes - misdemeanor or felony - that are as fiercely prosecuted by Assistant District Attorney's throughout New York than weapon crimes. Whether the offense is of the misdemeanor variety (NY PL 265.01) and involves a gravity knife or the crime is of the felony level and involves possession of an unlicensed and loaded firearm (NY PL 265.03), prosecutors routinely take hard stances against alleged offenders. In response, New York criminal lawyers and defense attorneys who represent clients in weapon crimes find themselves either searching for a defense that exonerates a client, sufficiently challenges the legality of the allegation or mitigates the accused's conduct.

An issue that often arises in New York weapon crimes involves those offenses that require an "intent to use unlawfully" verses those crime that are per se based on the type of weapon possessed. The latter crimes are weapon offenses that are unlawful merely based on the type. In other words, these crimes violate the law even if you displayed no hint or desire for wrongdoing.

In People v Campos, 2012 NY Slip Op 02267, an interesting scenario evolved. There, the defendant sought to overturn his conviction for Criminal Possession of a Weapon in the Third Degree for possessing a machete. More specifically, he argued the evidence did not establish his unlawful intent.

The allegations against Campos for which he was ultimately convicted centered on evidence that he possessed a machete. Campos waived the machete in the air and at a building across. Further, Campos screamed angrily at a witness. Ultimately, Campos crossed the street and banged on a gate of a closed store with the machete.

In ultimately upholding the defendant's conviction for Criminal Possession of a Weapon in the Third Degree (As a bump up for a second felony offender), the court noted that by itself, a machete is not a per se weapon such as those set forth in New York Penal Law 265.01(1). The court also stated that possessing a machete is only criminal if and when the person who possess the large blade intends to use it unlawfully against another person. If he or she does so, that person would minimally be violating New York Penal Law 265.01(2).

The court further explained:

"'The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against anothe' (Penal Law 265.15[4]). The statute does not define the term 'dangerous knife,' but in context a dangerous knife is a knife that may be 'characterized as a weapon' (Matter of Jamie D., 59 NY2d 589, 592 [1983]). A knife, such as a machete, that has nonviolent uses 'may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon" (id. at 591)."

"There was ample evidence that, at the time of the incident, defendant possessed the machete as a weapon. Defendant carried the machete at a time and place where its use for a lawful purpose such as agriculture was highly unlikely, he brandished it as a weapon, he tried to conceal it from the police, and he told the police he carried it as a weapon, albeit for defensive purposes....Even without the presumption, the circumstances support an inference of unlawful intent. Defendant argues that there was no one on the street for defendant to attack. However, the trier of fact could have reasonably concluded that defendant intended to use the machete to assault or menace someone in either or both of the two buildings at which he directed his angry shouting and actions."

As made clear by this case as well as the statutes and other decisions referenced, intent may not always be clear. In fact, few things are in the criminal law. In certain circumstances, your intent may be presumed based on your conduct or other factors. What a court or jury will decide in your case and how the statutes and legal decisions will be applied is something that you and your counsel should prepare for at the earliest stage in the criminal process.

To better educate yourself on the crimes, statutes and legal decisions that are the foundation of New York weapon crimes found in Article 265, follow the highlighted links above or go directly to the general section for New York Weapon Crimes at CrottySaland.Com.

Founded by two former New York County Assistant District Attorneys, the New York criminal lawyers at Crotty Saland PC represent clients accused of weapon crimes through New York City and the surrounding communities.

New York DWI & DUI Arrests: When the Police Fail to Establish "Operation" & Probable Cause in a VTL 1192 Case

Wed, 25 Apr 2012 15:28:48 -0500

I don't know how many times I can say it, but New York drunk driving crimes and driving while intoxicated arrests have enormous ramifications. Compounding matters, criminal attorneys and New York City DWI lawyers often face evidence that is videotaped and based in chemical tests that is difficult to controvert. Even when prosecutors have what appears to be strong evidence of a DUI, the best defense may not be challenging the ultimate determination as to whether the person in question was driving drunk or had a chemical test result .08 or greater. Instead, the best defense may be attacking whether the police had the authority, ability or probable cause to arrest the accused in the first place. This precise issue - probable cause to arrest - was exactly what was litigated in People v. Dwight Ramsey, 069905C2009, NYLJ 1202549717499, at *1 (Sup., BX, Decided April 16, 2012) and worthy of a review in this blog entry.

In Ramsey, the defendant was arrested for violating VTL 1192 (the misdemeanor DWI crime in New York) after the police observed him in his vehicle with a woman. Upon approaching the car, the police claimed they noticed the smell of alcohol, the key in the ignition and ultimately the defendant's inability to stay balanced. The defendant contended, in substance, that the key was not in the ignition, he was going to get some music CDs with the woman, he had not violated and traffic laws or parking regulations and ultimately the police lacked probable cause to arrest him.

Both the defense and prosecution had an opportunity to argue their points at a hearing conducted before the court. Ultimately, the court held that the police lacked probable cause for an arrest. In part, the reasoning was as follows:

"The crux of probable cause here is whether Defendant was 'operating' his vehicle in a manner foreseen by article 31 of the Vehicle and Traffic Law. The term 'operate' is broader then the term 'drive' and is established upon proof beyond a reasonable doubt that Defendant had recently driven the vehicle or by proof he was seated at the wheel with the motor running and with a present intention of placing the vehicle in operation (see generally, People v. Dalton, 176 Misc. 2d 211 [2nd Dept., App. Term, 1998]).8 (See generally, People v. Haddock, 2001 NY Slip Op 40138U [Nassau County. Dist. Ct., 1st Dist., 2001] [Mapp hearing required where ignition was not engaged)(see also, People v. Hopkins, 22 Misc. 3d 1137A [Just. Ct., Lockwood Twn, 2009])(but see, People v. Key, 81 AD2d 805 [1st Dept. 1981])."

"In this instance, because the hearing record lacks evidence that Defendant had either moved or intended to move his vehicle when the police approached, Defendant convinces that his privacy expectation was violated and the police lacked probable cause to search the vehicle or to arrest him. Consequently, the vehicle search produced only tainted evidence that must be suppressed. Further, the Court concludes Defendant's reasonable privacy expectation in his automobile was violated because no
evidence exists Defendant moved or intended to move his car from the location where he parked the vehicle the night before (see generally, People v. Nicodemus, 247 AD2d 833 [1998] [rules regarding standing for automobile passengers]) (see generally also, People v. Ramirez-Portoreal, 88 NY2d 99 [1996]) (see generally. People v. Bradford, 61 AD3d 1419 [4th Dept. 2009])."

In finding that no probable cause to arrest existed, the defendant was also able to obtain the suppression of the intoxylizer (chemical testing device) results that followed. Ultimately, his case was dismissed.

The Ramsey decision underscores many important elements in a New York DWI case. First, as with any crime, prosecutors must have probable cause to arrest you. If they do not, the evidence used against you may all ultimately be suppressed as "fruit of the poisonous tree." Further, It is critical to understand the distinction in New York law between "operation" and "driving." The law requires the former which does not necessarily encompass the latter. Whether Ramsey will help you attack a prosecutor's contention that you were "operating" a motor vehicle or not, is something to discuss with your counsel. In the right case, it may make the difference between a DWI conviction and walking away from a potentially crippling allegation.

To learn more about the nuances, rules, and elements of New York DWI laws and DUI crimes, follow the links above to specific content on the New York DWI Information Page. There you will find information on the various DUI statutes, Hardship hearings, DMV Refusal Hearings, legal decisions interpreting the law and much more relevant information.

Established by two former Manhattan prosecutors who both served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm. The New York criminal lawyers at Crotty Saland PC represent clients for DWI and DUI arrests throughout New York City and many of the surrounding suburbs.

DA Vance: Grip Entertainment's PA to NY Sex & Prostitution Ring Trafficked Women in Multi-Hundred Thousand Dollar Scheme

Mon, 23 Apr 2012 19:22:18 -0500

Manhattan District Attorney Cyrus Vance, Jr. has struck again in his pursuit of eradicating the worlds oldest illegal profession outside of Reno, Nevada. According to New York City newspapers as well as the New York County DA's Office website, Anna Gristina has some new proverbial bedfellows in Grip Entertainment's Vincent George, Jr., Vincent George, Sr., Asama Ahmad, Qabari Gaber, Theo Jones, David Lombardo, Assaf Nahomove and Sokol Perkaj. In varying capacities, each of the men face at least one count of Promoting Prostitution. Of significant concern for others, prosecutors claim that "johns" or men who paid for the prostitutes, will be prosecuted in coming days.

It is alleged that at least both Georges pimped out women in a prostitution ring that reached far beyond the Island of Manhattan. Prosecutors claim that the Georges father-son duo created Grip Entertainment as a front to launder money they illegally obtained through sex trafficking. Assisting them were six livery drivers - Ahmad, Gaber, Jones, Lombardo, Nahomove and Perkaj.

Prosecutors believe that George, Sr. and George, Jr., ran their illicit business from Allentown, Pennsylvania into Manhattan and Queens. Prostitutes met prospective and actual customers at a variety of upscale locations from high-end bars to classy hotels. Prostitutes even pursued their one-hour paramours outside strip clubs. In an attempt to hide their conduct, it is believed that prostitutes used fake names and business cards offering their professional masseuse services (It is interesting to note that practicing a profession that requires a license without that licenses - such as law or massage - yes massage, is an "E" felony. Prostitution is "only" a misdemeanor.).

Not nearly as high-end or upscale as the alleged Mommy Madam's enterprise, prosecutors claim that the prostitutes charged between $200 and $500 a "date" and returned the vast majority of those monies to the George clan. The livery cab drivers who facilitated the enterprise are also believed to have profited. Supporting DA Vance's assertion as to the magnitude of this criminal organization, over $200,000, along with ten vehicles (including two Mercedes), was seized.

Beyond the relatively large financial magnitude of the crime, of greater concern to prosecutors was the allegation that the women who worked for the Georges were not just abused emotionally, but physically as well. In fact, prosecutors assert that some of the women had their street names branded on their bodies while at least one woman was burned with a bar code. Certainly, if true, this conduct should upset and anger even the regular chorus of people who believe that prosecutions into escort organizations and their consenting adult clients is a waste of tax-payer dollars. While a misunderstanding of the law, how these crimes are perpetrated and their collateral consequences are often wrongfully and willfully disregarded, nobody can ignore allegations such as the alleged physical abuse claimed here.

Manhattan District Attorney Cyrus Vance, Jr. took this case as an opportunity to understandingly speak out against the terrible abuse and trafficking of sex workers stating:

"Along with our partners in law enforcement and the advocate community, we've made it easier for prostituted individuals to report crime and obtain services. It's part of an evolving approach that my Office's Human Trafficking Program is bringing to this issue, and one that addresses the modern day realities in prostitution and trafficking cases."

While the Manhattan District Attorney's Office is commendably trying to reach out to abused women, it still remains a fierce enforcer of New York's Prostitution laws. In fact, women charged with Prostitution are often offered plea deals closely scrutinized by supervisors in a manner atypical of other misdemeanor offenses. Prosecutors routinely require either a misdemeanor plea and a subsequent withdrawal or a violation plea that demands at least some waiver of sealing. Sadly, as a result, sometimes these women may be victimized again after being saddled with dispositions that can adversely impact immigration status and careers long after they break away from their illegal past. Hopefully, these women who may or may not be part of a trafficking organization and are "just" women who have other mental health or substance abuse issues will be able to utilize the services of the Human Trafficking Program.

Whatever happens to the men caught in this newest sex-for-pay scandal, the crimes they face are some of the most serious in New York State. Sex Trafficking, pursuant to New York Penal Law 230.34, is a "B" felony punishable by mandatory state prison and up to twenty-five years in custody. Briefly, the Georges are guilty of this crime if they advance or profited from Prostitution by either using force or engaging in any scheme to compel or induce the person being patronized to engage in Prostitution activity by means of instilling a fear in that person if the demand is not complied with, the Georges will cause physical injury, serious physical injury, or death to a person; or perform any other act which would not in itself materially benefit the Georges but which is calculated to harm the person who is patronized materially with respect to her health, safety, or immigration status.

In addition to this "B" felony, the men are charged with one or more crime including Money Laundering and Promoting Prostitution, "C" and "D" felonies respectively.

To educate yourself about the crimes listed above - including Escort, Solicitation or Prostitution offenses, follow the highlighted links are review the websites and blogs linked below.

Established by two former Assistant District Attorneys with the Manhattan District Attorney's Office, the New York criminal lawyers at Crotty Saland PC represent clients accused of or arrested for all crimes throughout the New York City region.

Alec Baldwin's Alleged Stalker Charged with Second Degree Aggravated Harassment & Fourth Degree Stalking: A Review of the NY Criminal Statutes

Mon, 09 Apr 2012 11:47:49 -0500

Alec Baldwin, the brash Long Island native known equally for his comedic skills, left leaning politics and abrasive rants against his daughter and a flight attendant, seems to be a victim of stalker. According to the Manhattan District Attorney's Office and numerous media outlets, Genevieve Sabourin has been "hot to trot" with the eldest of the Baldwin clan. Unfortunately for the Canadian Sabourin, Baldwin is not interested in the 40 year old, but with the 28 year old Hilaria Thomas with whom he recently had a child. Even potentially more upsetting for the accused stalker, Sabourin now faces the wrath of Cyrus Vance, Jr. as his prosecutors filled a criminal court complaint charging her with numerous crimes including two counts of Aggravated Harassment in the Second Degree (New York Penal Law 240.30) and two counts of Stalking in the Fourth Degree (New York Penal Law 120.45). Regardless of whether or not Sabourin is ultimately convicted, the Manhattan Criminal Court will issue an Order of Protection or Restraining Order preventing Sabourin to have any contact what-so-ever with Baldwin. Unless the case is dismissed in some capacity, this Order of Protection will remain in place until the case is resolved and then a final Order will be issued.

The conduct that is the basis of these crimes stems from Sabourin's alleged pursuit of Baldwin that including texting her love for the "30 Rock" actor as well as a desire to have his child. Compounding matters, it is alleged that Sabourin went to Baldwin's home in Manhattan where she hoped to make further contact. This is not the first time law enforcement claims that Sabourin chased Jack Ryan as she recently tried to engage the actor at his Hamptons home.

In order for prosecutors to have a viable case against Sabourin they must prove beyond a reasonable doubt both Aggravated Harassment in the Second Degree and / or Stalking in the Fourth Degree. These crimes are punishable by up to one year and ninety days in jail respectively.

Sabourin is guilty of NY PL 240.30 if, with the intent to harass, threaten or annoy, she either communicated by telephone or written form in a manner likely to cause annoyance or alarm to Baldwin. Alternatively, she did the same by initiating a communication in written, electronic or telephonic means. This conduct would obviously include text messages. Additionally, a separate subsection of Harassment in the Second Degree is perpetrated if Sabourin actually made phone calls with no purpose of a legitimate conversation even if she never spoke with Baldwin.

Sabourin is guilty of NY PL 240.30 if, she intentionally, and with not legitimate purpose, engaged in a course of conduct towards Baldwin and she knew that her actions would likely cause reasonable fear for Baldwin's health, safety of Baldwin's property or member of his family. Alternatively, Sabourin's actions actually cause or caused material harm to Baldwin's mental health where her conduct was based in following or calling him. The last potential theory or subsection of Fourth Degree Stalking occurs where the accused, here Sabourin, initiated contact in person or by telephone at the victim's place of employment and caused reasonable fear that the complainant's employment would be impacted. These last two theories require that Sabourin was previously clearly advised to cease contact with and conduct towards Baldwin.

Whether or not Sabourin ultimately pleads to a crime or is offered a lesser non-criminal disposition, it is likely, as noted above, an Order of Protection will prevent her from having any contact with Baldwin. Should she not follow the court's order, Sabourin would find herself hauled back into criminal court where she could face either a misdemeanor or felony charge of Criminal Contempt. For that reason alone, this case may remain on in the tabloids for weeks and months to come.

To learn about the crimes of Aggravated Harassment, Stalking and Criminal Contempt, either follow the links above or read about these and other crimes on the blogs and websites listed below.

Crotty Saland PC is a New York criminal defense firm. Established by two former Manhattan Assistant District Attorneys, the New York criminal defense attorneys at Crotty Saland PC represent clients in all stages of criminal litigation in New York City and the suburban counties.

New York Refusal and Common Law DWI Arrests: When Your BAC May be Admissible Against You Even After You Refuse to "Blow"

Sun, 08 Apr 2012 06:23:48 -0500

Section 1192 of the New York Vehicular and Traffic Law (VTL 1192 ) sets forth what constitutes Operating a Motor Vehicle While Under the Influence of Alcohol or, as most people call it, Drunk Driving, DWI or DUI. The consequences of a conviction can be life changing in terms or a criminal record, but also on one's ability to drive a vehicle in New York. Having represented a variety of clients in all types of DWI arrests in New York City and Westchester County from Aggravated Driving While Intoxicated to Driving While Ability Impaired, I understand that often time the process may not always seem fair to defendant driver accused of criminal activity. That is, as a DWI criminal defense attorney I must ensure that the prosecution and police are upholding my client's Constitutional rights rather than just eagerly seeking a conviction because some characteristic of intoxication is believed to be present. After all, you might have a legitimate reason for having bloodshot eyes, being unable to perform a finger to nose test or having the scent of what seems to be alcohol on your breath. It is crucial to ensure that fair and legitimate procedures are used when determining if you, as a driver or operator, was indeed intoxicated or under the influence.

On this very point, I'd like to discuss a recent criminal ruling out of Kings County [Brooklyn]. The case- People v. Andrei Hargobind, 2009KN024543, NYLJ 1202544857362, at *1 (Crim., KI, Decided February 29, 2012)- involved charges of VTL 1192(1) "Driving While Ability Impaired," VTL 1192(3) "Driving While Intoxicated," and VTL 1180(A) "Maximum Speed Limits." The main issue was whether or not The People (prosecution) could introduce at trial the results of a "portable intoximeter breath test" given to the defendant at the time and place of his arrest (along the highway).

On the evening of the arrest, the Highway Patrol Officer conducted a field breath test using an Intoximeter Alco-Sensor FST device after pulling the defendant driver over to the side of the road. [The Intoximeter is a small portable breathalyzer that tests if you have alcohol in your system but does not give an exact percentage of BAC. It is not the same device or test that is later given at a precint.] The officer arrested the defendant based on the results and brought him back to the 78th Precinct. At the precinct the defendant refused to take a chemical breath test (a more reliable test that measures exact BAC).

Now, considering the severe consequences of a conviction of Driving While Intoxicated under VTL 1192, the accuracy of a portable Intoximeter device is critical if it will be the basis of a conviction. Also, while one is allowed by right to refuse a chemical breath test at the Precinct (as Mr. Harogobind did here) the defendant's license is automatically revoked until they have their day in court (a "Refusal Hearing"). Interestingly, in this case the People wanted to utilize the portable Intoximeter test to establish the guilt of the defendant in addition to establishing the right of the officer to request a chemical test at the Precinct.

The defense argued, citing People v. Thomas, 121 A.D.2d 73, 509 N.Y.S.2d 668 (4th Dept. 1986), that the Court should not allow the results of the Intoximeter test to be used as evidence because the test was unreliable. Instead, the Intoxylizer or similar instrument at a precinct should be the sole chemical guage of intoxication. If none is available, then no chemical results should be admissible. The Thomas Court had found that the results of an Alco-Sensor test were inadmissible at trial to prove intoxication because the device was a portable unreliable device. In order for the results to be allowed as evidence of actual intoxication the People had to lay out a "proper foundation demonstrating the reliability of the test." However, the Thomas Court ruled that the portable Intoximeter test could be used to establish probable cause as a basis for the arrest (i.e. that the officer had reasonable suspicion to believe that the defendant driver was driving while under the influence). The question still remained whether a portable breathalyzer test (PBT) could sustain a conviction of Driving While Intoxicated in New York (as opposed to merely establishing probable cause).

Though previous New York cases had decided that the results from a PBT were altogether inadmissible because it is capable of being moved, for example, the Hargobind Court here noted that the Commissioner of Health had recently included the Intoximeter on the approved list of devices. Due to this newer development and the guidelines pursuant to VTL 1194 (which lays out the circumstances under which blood alcohol testing is authorized and distinguishes field testing versus precinct testing) the Court allowed the trial to proceed on the condition that the People lay out a proper foundation for admission of the portable Intoximeter field test. Namely the People have to show that they observed the Defendant for 15 minutes (not drinking which would obviously affect the results), that the device was properly calibrated within six months (pre and post test), and that the other procedures and practices were followed pursuant to VTL 1194(2) (e.g. defendant was made aware of his right to refuse, warned of the consequences, and test/or refusal of, is videotaped).

The significance of this case, and others decided in the recent past, is evidence that the a Portable Breathalyzer test may be used in New York . If the People can lay a proper foundation for the device, NY criminal courts may allow the results to be admitted as evidence. For those accused of a "Refusal DWI" where no breath sample was given, this may be a double cures. Not only will your refusal trigger the revocation of your license, but the police and prosecutors may be able to circumvent your failure to provide a sample at the precinct.

To read and learn more about New York DWI laws, review the DWI section of our website and blogs or follow the links above and below. There you will not only find analysis of statutes, but practical reviews of laws and legal decisions.

The New York criminal defense attorneys and New York DWI lawyers at Crotty Saland PC represent clients charged with or arrested for DWI and DUI crimes throughout New York City, Westchester, Putnam and Rockland Counties. Prior to establishing the criminal defense firm, the two founding partners served as prosecutors in the Manhattan District Attorney's Office.

Is an Arrest for NY PL 220.03 or NY PL 221.01 Sufficient if the Police Fail to Base Their Conclusion on Training & Experience

Tue, 03 Apr 2012 05:23:02 -0500

Drug arrests for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03, may come in the form of a Desk Appearance Ticket (DAT) or a full 24 hour processing through the system. No matter how you were arrested, however, there are certain mandatory requirements that must be within the four corners of any criminal court complaint. Similar to arrests for marijuana, NY PL 220.03 arrests in Manhattan, Brooklyn, Queens, or any other county in New York City or New York State, involve the possession of certain "banned" drugs such as cocaine, heroin, ecstasy and other narcotics. Irrespective of that controlled substance, in order for prosecutors and Assistant District Attorney's to have a viable and legal complaint against you, language in that complaint (actually called an "information" once it is legally sufficient), must reflect "proof" that the drugs in questions are in fact drugs. Anyone can merely guess based on appearance or smell, but the law requires more than mere speculation.

The law involving drug possession crimes (whether NY PL 220.03 for controlled substance or NY PL 221.10 for marijuana) definitely favors the prosecution. Years ago, before People v. Kalin, 12 NY3d 225 (2009), courts required that a laboratory analysis or field test be filed with a criminal court complaint in order to remove any legal impediments preventing the prosecution from proceeding with criminal charges. In other words, if prosecutors failed to provide a lab report or field test confirming the presence of heroin, cocaine, ecstasy or marijuana, a defendant would ultimately be able to obtain a procedural dismissal of the charges. As noted above, Kalin altered this rule by permitting the police, when drafting a complaint or signing off on its accuracy, to assert that the drug or marijuana recovered was that particular contraband based on their observations, training and experience (or some combination of this).

A recent decision out of a Brooklyn Criminal Court may further move the law more favorably towards the prosecution. Although not an appellate court case, People v. Calvin Telfair, 2011KN033977, NYLJ 1202547195953, at *1 (Crim., KI, Decided March 22, 2012), addressed not whether a lab or field test was necessary to convert a legally insufficient criminal court complaint into a valid information, but to what extent the police needed to provide both information as to their experience and training that enabled their conclusion. In Telfair, the police officer determined that a substance recovered from the defense was crack cocaine based on his "training as a police officer in the identification of crack cocaine." Simply, the court held that the information (remember, this is a converted complaint), against the defendant was facially sufficient noting that the law does not require a recitation of both training and experience. Instead, citing People v. Santos, 17 Misc3d 520 (Crim Ct. NY Cty. 2007), the court noted "in order to correctly identify (a controlled substance) and to sufficiently allege its criminal possession, professional training OR prior experience are necessary." (emphasis added). That is, one or the other and not both.

What value, if any, the decision in Telfair has for you particular arrest or Desk Appearance Ticket for NY PL 220.03 depends on how the crime against you is drafted in your criminal court complaint / information. Certainly, this may be one of many issues that you address with your New York criminal lawyer as you determine what your best defense may be in your case. Is this defense procedural and technical or is your best defense one based on the improper or illegal actions of the police? Alternatively, if you are lacking these defenses, is the best route the mitigation of your alleged conduct? Again, whatever your unique defense may be and how the laws of New York State and legal decisions of her courts may further that defense cannot be answered in a blog entry. Consult with the criminal defense attorney you have retained to represent you in court. Remember, even if the complaint is legally sufficient, this is only the first stage in the process. To prove the case beyond a reasonable doubt at trial, prosecutors must ultimately get that lab test to confirm the possession of drugs.

To read further about New York drug crimes, Desk Appearance Tickets or the countless cases, legal decisions and statutes that make up the New York Penal Law, please follow the links above or any of the links below to Crotty Saland PC's websites, blogs and information pages.

Established by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing clients accused of crimes throughout New York City and the surrounding region.

New York Gravity Knife Arrests & DATs: When a Search May be Illegal

Thu, 29 Mar 2012 06:47:28 -0500

What is a Gravity Knife? Is it illegal to have a gravity knife on my person under New York Law? Under what circumstances can the New York Police search me on a Manhattan Street or a Queens subway station? Once I am arrested for possessing a gravity knife is it possible to get a Desk Appearance Ticket or will I be processed through the system? As an experienced New York criminal lawyer, I often hear these types of questions and answer the same. In this blog post I hope to address at least one of these issues by examining a Brooklyn criminal case involving Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01).

Criminal Possession of a Weapon in the Fourth Degree is a Class "A" misdemeanor. Sure it's not a felony, but it is punishable by up to one year in jail and will stay on your permanent record. Further, it is rare that an offer of any kind is made at a defendant's arraignment in most jurisdictions. Because it is highly that a "slap on the wrist" will make a knife case go away - gravity knife or switchblade knife - it is critical to have a basic understanding of the law. There are eight sections under NY P.L. 265.01, which specify the circumstances under which an individual will be found guilty for possessing certain weapons. Without getting into the details here, you are guilty of Criminal Possession of a Weapon in the Fourth Degree if you possess certain weapons that are classified by statute as automatically criminal regardless of your intent. These weapons include a stun gun, gravity knife, switchblade, bludgeon, metal knuckle and dagger.

In The People v. Jerome Whaley, 2010KN062606, NYLJ 1202541704453, at *1 (Crim., KI, Decided January 20, 2012), the defendant was charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to NY P.L. §265.01[1] because The People alleged that he possessed a gravity knife as defined by NY P.L. §265.00[5]: "any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring lever or other device." The arresting police officer, Officer Hoda, testified that he approached the defendant and another male while patrolling. The other male dropped heroin to the ground when the officers approached, and Officer Hoda saw something in Whaley's hand. Officer Hoda asked the defendant to open his hand and seized the knife. Importantly, the Officer testified that at the time he spotted the knife, he was not in fear of his personal safety. I emphasize this point because of the laws that govern when and how a police officer can make a proper search and seizure on a person. If the search or seizure is improper- if the Court finds that Officer Hoda did not obey the laws of New York when taking the knife- then the evidence (here the knife and testimony of its seizure) will be excluded from the case.

The Whaley court found that Officer Hoda did not have a right to search and take the gravity knife from the defendant. A police officer may stop and question a person when he/she reasonably suspects that such a person is committing, has committed, or is about to commit a crime. So here the police officers were permitted to stop and question Whaley and his friend. The real question was whether Officer Hoda had the right to grab Whaley's hand and demand that he show him the gravity knife. Under New York law a person can be stopped and frisked in what is called a "self-protective search for weapons" if an officer can point to particular facts that make him suspect that the individual is armed and dangerous. Furthermore, when it comes to a gravity knife, the detaining officer must have reason to believe the object observed is actually a gravity knife based on identifiable characteristics. Here the Whaley Court found that Officer Hoda did not act reasonably because his testimony proved that he did not fear danger and he described a general pocketknife, not the particular defining traits of a gravity knife. (Note a pocketknife, depending on the size of the blade and other factors, can be a legal instrument). Thus, the Whaley court did not allow the knife in as evidence.

Although only scratching the surface, what did we learn is this blog entry? Well, gravity knives are dangerous and illegal under Criminal Possession of a Weapon in the Fourth Degree. Mere possession is a crime. Police officers patrol our streets for our protection, but they are not above the law. When investigating- doing "searches and seizures"- the NYPD must obey these guidelines outlined in the Constitution and case law, otherwise the evidence- like the knife found in Whaley- will not be admitted at trial.

Whether your particular search was legal or illegal takes analysis well beyond that which is provided here. If there is a litigable defense as to this search, it may be your best defense. Alternatively, you may be able to mitigate your conduct down to a non-criminal resolution. Whatever your defense may be, educate yourself on the law and consult with your criminal attorney to put forth your strongest argument and to protect your future.

For further information on New York weapon crimes, statutes and laws, including Fourth Degree Criminal Possession of a Weapon and various other misdemeanor and felony charges, as well as New York Desk Appearance Tickets, review the links listed above and below.

Established in 2008, the New York criminal defense firm of Crotty Saland PC represents clients accused of weapon crimes in the New York City region. Upon graduating law school in 2000, the founding partners served for many years together as Manhattan prosecutors under Robert Morgenthau.

How Long After a NY Arrest for DUI / DWI Can the Police Return to Your Vehicle to Retrieve Alcohol?

Sat, 24 Mar 2012 05:51:58 -0500

As an experienced New York DWI lawyer, I have served many clients who faced drunk driving charges (a.k.a. driving while intoxicated, driving while under the influence, operating a motor vehicle while intoxicated) under New York's Vehicle and Traffic Laws (VTL) 1192. I have seen many fact patterns and legal issues when representing these clients throughout New York--be it in Manhattan, the Bronx, Brooklyn, Queens, or out in a surrounding county such as Westchester. Naturally then, I was very intrigued when I came across a unique fact pattern in a case from Richmond County (Staten Island) that raised an interesting legal question that has seemed to "pop" up more and more often over the past few years in the DWI context as well as in other arrests. That case is People v. Iryna Tashbaeva, 2011RI003472, NYLJ 1202541705231, at *1 (Crim., RI, Decided January 31, 2012) issue: search and seizure.

In Tashbaeva, the defendant was charged with Operating a Motor Vehicle While Intoxicated pursuant to NY VTL 1192.2 and NY VTL 1192.3. These standard Driving While Intoxicated (DWI) charges are misdemeanors, which are considered a crime and will stay on your permanent record. The former crime is charged when your arrest for DWI or DUI relates to a "blow" of .08 or higher while the latter crime involves "common law" or "refusal" DWIs where there is no scientific reading of BAC. If it is a first time offense, the penalty is a fine of $500 to $1,000, no more than one year in jail, a mandatory license revocation for six months, a potential of three years probation, a driver responsibility assessment of $250 a year for three years, and a requirement to attend a Victim Impact Panel. Further, in order to reinstate your ability or right to drive, you will have to take the DDP. In short (and not surprisingly) getting convicted for DWI has serious long-term consequences far beyond the next day's hangover.

What is interesting about Tashbaeva is that the arresting officer, Officer Tabora, had made a plain view observation of incriminating evidence (an open half empty bottle of Courvoisier, and a Sprite bottle filled with a mixture) inside the defendant's vehicle prior to arresting her for driving while intoxicated. However, after observing that the defendant exhibited the physical manifestations of intoxication (bloodshot eyes, slurred speech, alcohol smell etc.) and arresting her, officer Tabora decided to leave the vehicle on the side of Richmond Avenue where it had been stopped, and did not take the cognac and soda bottles. The following morning (about 8 hours later), after meeting with an Assistant District Attorney to draw up the criminal complaint, the police officer returned to the defendant's vehicle and picked up the two bottles. The officer then determined that the Sprite bottle did in fact contain a mixed alcoholic beverage.

Now, it's likely that (because you are not a lawyer) you are probably wondering what makes this interesting/controversial at all...Well, the Fourth Amendment of the United States Constitution protects individuals against a warrantless search and seizure...You know in the movies when they come to the door and ask for the warrant so the cops can come search the house. Yes, that warrant is issued by a judge after the cops give good reason (probable cause), and this protects us from having police search us or seize evidence whenever they have any suspicion or a lack thereof.

There are a few exceptions, which allow police to make a search or seizure without a warrant. One of these exceptions is the "plain view doctrine"--police may seize contraband or evidence of a crime when these items are in open view and the officer makes the observation from a lawful vantage point. Applying this doctrine to the facts here, it is clear that Officer Tabora may have been able to seize the bottle of Courveisier and Sprite when he had a "plain view" of them when questioning the defendant at the side of the road. He arguably had probable cause to believe that the alcohol bottles in the car were connected to the criminal activity (the drunk driving) that had just occurred. The problem here is that Officer Tabora did not retrieve the evidence at that time, but instead waited until the next day.

The Tashbaeva court stated that the "warrantless seizure" of both the cognac bottle and the Sprite bottle would have been permissible had the seizure taken place at or near the time of the defendant's arrest, but the court found that the "lapse of time" between Officer Tabora's initial observation and the retrieval of the bottles impacted "the legitimacy of the search." The vehicle was not under the custody of the police during the delay, nor was it secured by a continuous police presence. Thus, the court ruled that "the officer's previous plain view observation of the bottles did not provide the predicate for a warrantless seizure on the following day." In other words, because the lapse of time was too long and the car was left unsecured, Officer Tabora was not entitled to go into the car the morning after and retrieve the bottles. This of course meant that the bottles were inadmissible at trial (under the Exclusionary Rule any evidence retrieved by unlawful means is not allowed at a trial).

The plain view doctrine is an important exception that allows police to seize evidence, which is right in front of them while they are already in the process of a legal investigation. However, this does not give police the right to abuse this exception for their advantage. Some may look at Tashbaeva and think the defendant got off on a "technicality," but it is important to remember that by ruling against the People (and the officer) the court sends a clear message to the NY police: the plain view exception only applies if the evidence is seized immediately or kept in police custody. Having a large time lapse between the plain view observation and the seizure of the evidence, leaves room for abuse and would be a violation of the defendant's (yours or mine should be accused of any crime) Constitutional rights.

If you have been arrested for Driving While Intoxicated in New York or would like to further educate yourself on New York DWI laws and crimes, please follow any of the highlighted links. There you will find significant amount of information as to DUI crimes and laws as well as analysis of statutes and legal decisions.

The New York criminal and DWI defense firm of Crotty Saland PC was established by two former Manhattan prosecutors. Our New York DWI lawyers and attorneys represent those accused of drunk driving crimes throughout the New York City and suburban region.

When Being the Village Idiot is a Crime: Alleged OWS Member, Jordan Amos, Dumps Human Waste in ATM Vestibule

Wed, 21 Mar 2012 22:35:06 -0500

Although it is not codified in the New York Penal Law, being a moron, putz or schmuck is arguably a damn serious offense and an epidemic plaguing many communities. If the allegations against Jordan Brooks Amos are true, then he should be thrilled that being an idiot is not a crime. According to the Web Crims, as well as many media outlets, Amos, a possible member of the 99% and Occupy Wall Street, really showed JP Morgan Chase who is boss. Well, at least he made some poor maintenance men and women who work at JP Morgan miserable and unhappy when he allegedly dumped a large bucket of urine and feces inside a ATM station in lower Manhattan. That'll show the "fat cats," Amos!

While I sometimes go off track with my blog, the purpose is not to comment on political groups, opinions or leaders. In my years as a Manhattan prosecutor and New York criminal defense attorney, I have certainly had the opportunity to form or articulate opinions. Here, however, I try to stick to the evidence (or lack thereof) and law. Whether Amos and his alleged cronies are members of #OWS or #IMAJERK is fairly irrelevant. If true, poring human waste in a place where regular working people go to access their money to pay bills and entry level or corporate employs go to work to support their families is just, well, stupid regardless of your political agenda.

One might think it is ironic that I am being so vocal about something as relatively insignificant given the type and amount of crimes perpetrated in New York on a regular basis....and one might even have a point. However, if true, it just strikes me as sophomoric at best for a person to perpetrate a crime like this to advance their cause when they are hurting every day working people. But we digress...so...let's get back to the case assessment.

Although we know it when we see it or smell it (usually the latter comes first), the New York Penal Law actually defines "noxious material." These materials or matters are defined as any container that contains a substance that is able to generate offensive, noxious or suffocating fumes or gases. Factually and legally, human waste likely falls into this unsavory category.

A person is guilty of Unlawfully Possession of Noxious Material, New York Penal Law 270.05, if they possess noxious materials under circumstance evincing an intent to use those materials to cause physical injury to a person, cause annoyance to a person, damage property or disturb the public peace. Possession of noxious matter is presumptive evidence of intent to use it in the manner described. In other words, walking around with a vat of urine and feces is presumptive proof that you are up to no good with that foul concoction.

If Amos is found guilty of Unlawfully Possessing or Selling Noxious Material (he is actually charged with more serious crimes as well including Criminal Possession of a Weapon in the Fourth Degree for allegedly possessing a stun gun), he would face sentencing on a "B" misdemeanor to as much as 90 days in jail. For Amos, those 90 days would be spent on the island known as "Rikers" where he could be assigned to cleaning latrines.

If the allegations prove true, Amos and company have elevated the old adage of "its is better to be pissed off then to be pissed on" to an entirely different level. While "pissing on" hard working men and women at JP Morgan Chase, he likely and understandably "pissed off" Manhattan District Attorney Cyrus Vance, Jr. For that, and the allegations that he possessed a stun gun and was operating a vehicle with a suspended license, Amos has nobody to blame but himself. Sometimes taking responsibility for your actions (if true, of course) just stinks.

Crotty Saland PC is a New York criminal defense firm established by two former Manhattan Assistant District Attorneys.

Manhattan Gun Crimes & Meredith Graves: The Unforgiving Reality of a Second Degree Criminal Possession of a Weapon Charge

Mon, 19 Mar 2012 15:49:07 -0500

Did Meredith Graves get a "good deal" from Manhattan District Attorney Cyrus Vance, Jr. after she accepted his misdemeanor non-jail plea bargain? Did DA Vance do the "right thing" in offering a non-felony plea? Certainly, the technical answer to both of these questions is an unequivocal "yes." After all, it is not as if Graves, a registered nurse and fourth year medical student, had a legal defense. She could not argue the police lacked probable cause to arrest her or that the firearm in her possession was recovered as a product of an illegal search. Further, as we all know, ignorance of the law is no defense. The practical reality was that other than mitigation, no other true defense existed. In a case such as this, getting prosecutors to deviate down from a mandatory three and one half year sentence on a felony to no incarceration on a misdemeanor is significant.

Despite the fact that the offer is a heck of a lot better than the mandatory prison Graves would have faced if convicted of Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), there is a real issue that I believe prosecutors ignored in resolving this case. Yes, the Manhattan District Attorney's Office recognized that the firearm in Graves' possession was illegally possessed in New York, but it was not an "illegal gun." Graves had a licensed firearm with the proper permits from her home state (whatever they may be). If evidence established that the weapon was purchased illegally, defaced, used in a crime or was involved in weapon trafficking, DA Vance rightfully would have taken a less forgiving approach. Further, unlike an arrest where a firearm is recovered as a result of some other infraction or crime, Graves had attempted to turn in the firearm and check the weapon at Ground Zero when she learned she was unable to possess it there. It does not take a criminal lawyer to recognize that DA Vance took all of this into consideration when ultimately determining what he believed to be the best resolution to this case and deviating from a normal offer or deal.

Unfortunately, however, as good as an offer DA Vance made, his decision to still require a plea to a misdemeanor may have long term ramifications not only to Ms. Grave's, but to how people will react when they come to New York and later learn of the penalty associated with their possession of an otherwise legally purchased, registered or permitted firearm. Thinking "outside the box," would prosecutors and the police rather a school teacher, doctor, attorney or any hardworking and honest man or woman potentially lose their ability to work in their profession or provide for their family where no malicious, criminal or "evil" intent existed? Clearly, cases such as these are different that those involving narcotics, robbery, trafficking or other contraband activities. Further, if these men and women realize after they arrive in New York City that their previously legal possession is now illegal, do prosecutors want them to turn that firearm over to the police or hide away the gun due to the risk of a life long misdemeanor criminal record (at best)? If there is no amnesty and a person can potentially "get away" with the felony by hiding the gun as opposed to forcing themselves into Graves' legal predicament (not to mention the financial burden of paying bail and hiring a New York criminal lawyer), do prosecutors truly believe people will just admit to their indiscretions and turn the weapons into law enforcement? Without any amnesty in these unique situations, what are the risks to the life of police officers and others? We can agree to disagree, but it is certainly conceivable that an otherwise law abiding person with an out of state firearm permit will not fall on the sword and take a misdemeanor plea. This endangers everyone.

In lieu of demanding a misdemeanor conviction, could prosecutors have worked out a different deal that would have held Graves and hold similarly situated people accountable? Could a resolution have been reached that sent a message to those who learn of New York's gun laws after arriving here? The answer to both of these questions is a resounding "yes." I do not know what was discussed between Graves' attorney and the Manhattan District Attorney's Office, but instead of a potentially crippling criminal record, prosecutors could have offered an "alternate plea," for example. In such a circumstance, Graves, or a similarly situated defendant, could plead to a misdemeanor or even a felony. Assuming certain demands were met - community service, for example - and the accused did not get rearrested, prosecutors could then allow that person to withdraw the plea and receive a non-criminal disposition such as a Disorderly Conduct. If the accused ultimately failed to comply with the community service or was rearrested, a jail alternative would be available at sentencing and the accused would not be able to withdraw the plea. Arguably, this level of accountability and monitoring is much greater than a straight misdemeanor plea while also giving the accused the ability to not have a forever tarnished life. If prosecutors wanted to ensure the records were available should some other crime be perpetrated, they could have even required that sealing be waived upon the completion of the instituted requirements. In such a circumstance, prosecutors could look "tough on crime" by getting a plea, force accountability if the accused failed to uphold the agreement and also show greater compassion.

All prosecutors want to be tough on crime. All prosecutors want to be just and fair. While the Manhattan District Attorney's Office gets a conviction, albeit a misdemeanor, the result is that a trained medical professional will have to forever answer to a criminal record where she never exhibited malice or criminal intent. Graves' ability to work in New York, assuming she would want to return here, may be compromised even though she tried to do the "right thing" upon learning she could not possess the weapon she otherwise legally owned. For the safety and security of all denizens of New York City, I hope that other men and women follow Graves' path if they make this same mistake. Unfortunately, however, a reasonable person could certainly understand why, as a result of this plea deal, they would not.

To learn about New York's weapon and gun crimes, the following link to the Criminal Possession of a Weapon information page has significant materials on the crimes and legal decisions impacting the law.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent those accused of all crimes, including Criminal Possession of a Weapon, throughout the New York City area.

NFL's Brandon Marshall Accused of Assault in NYC: Potential Crimes, Punishment & Defenses

Wed, 14 Mar 2012 14:57:50 -0500

Athletes, just like the people who pay to watch them catch balls, shoot baskets and swing bats, sometimes put themselves in compromising situations. Brandon Marshall, a star wide receiver recently traded from the Miami Dolphins to the Chicago Bears, is no different. According to the NY Post, Marshall is accused of punching a woman, Christin Myles, in the face during a late night (actually, an early morning) fracas. It is alleged that Marshall socked the young woman with enough force to give her a black eye. The fight is alleged to have occurred at a club in New York City's Chelsea neighborhood.

Assuming the allegations are true, Manhattan prosecutors would likely charge Marshall with a top count of misdemeanor Assault in the Third Degree. New York Penal Law 120.00(1) is an intentional crime where you strike another person and cause that person a physical injury. The physical injury element requires substantial pain. Redness, swelling, and a more serious black eye would be enough to reach this threshold. Assuming there is a conviction, you would end up with a sentence ranging from community service or a conditional discharge to three years probation or as much as one year in jail.

What differentiates Third Degree Assault from Second Degree Assault as set forth in New York Penal Law 120.05, are two main elements. If, instead of your fist or leg, you strike someone with a bottle or cut someone with a knife while intending to cause a physical injury, the fact that a dangerous instrument or weapon is used bumps the crime up to a felony. Alternatively, if you intend to cause serious physical injury and do so when strike the person, your offense is felonious. Very briefly, the distinction between the two levels of injury are significant. While a physical injury can be a painful abrasion, a serious physical injury is one that causes a protracted impairment of a bodily function or disfigurement. To be clear, to satisfy the elements of the latter Second Degree Assault, merely punching a person and causing serious physical injury (a ruptured eye socket that impairs the victim's vision, for example) may not be enough. Prosecutors also have to establish your intent to not just cause physical injury, but an intent to cause a serious one. Again, there are two prongs to this type of Assault (an intent to cause serious injury and actually causing serious injury). Should they be successful in doing so, upon conviction you would face up to seven years in prison.

With a brief description of the allegations and an understanding of the law, the next question is what are Marshall's potential defenses. Assuming Myles failed to report the incident immediately, a delay in reporting always causes problems in Assault cases. If she was truly hurt, then why did she not contact the police or make a record of the incident? Is there another agenda at work? Further, the dispute is claimed to have occurred at 4:00 am at a bar. How intoxicated was Myles or her potential witnesses? Reports indicate that Marshall's wife was struck with a bottle and sustained serious injuries. Was Marshall defending her? Regardless of why he is alleged to have hit Myles, is there a video of the incident? All of these factors are directly relevant in ascertaining the strength and weakness of an Assault case such as the one that Marshal potentially faces.

Whether Marshall is ultimately arrested or the case goes nowhere, I am confident the tabloids will pick it up and share it with us. From what I have read, however, and assuming there is no video corroborating Myles, Marshall seems to be in as good as a place one can be when accused of a New York misdemeanor Assault crime.

To learn more about New York violent crimes and the various degrees of New York Assault, review the links above or any of the blogs and websites below.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent those accused of or investigated for crimes throughout the New York City region.

Report: Recruiting Director for VIP Life, Jaynie Baker, Indicted in UES "Mommy Madam" Escort Ring

Tue, 06 Mar 2012 22:35:18 -0500

If one of Gotham's leading tabloids is correct, the dragnet for alleged "Mommy Madam" Anna Gristina's pimping accomplice is one step closer to exposing its target. According to the NY Post, the Manhattan District Attorney's Office and the NYPD have their eyes set on 30 year old VIP Life matchmaking recruiter Jaynie Baker as the next arrest in the latest high end prostitution bust.

Despite all the hubbub, Gristina, and possibly Baker, is only charged with a "D" non-violent felony for Promoting Prostitution in the Third Degree. While prosecutors claim the mother of four scored millions of dollars during her time as a madam, she is not charged with Money Laundering, Enterprise Corruption or any other crime. As I stated in an earlier entry, this one count indictment is strikingly "odd." In the recent past, high end escort services and their proprietors have been charged with significantly more offenses and much more serious crimes than one "D" felony that does not even carry a mandatory state prison sentence.

Although I have no inside information and I can merely speculate based on the information in the newspapers and my years of experience as both a Manhattan prosecutor and New York criminal lawyer, there appears to be something more insidious (I just like the word to sex things up even if it is not the most appropriate) going on. If, as prosecutors claim, there were underage women involved in this prostitution ring, then an indictment would have been voted out conveying this crime. After all, according to reports, the case against Gristina has been vetted and investigated for five years. The dollars, manpower and time spent investigating this woman would certainly have resulted in enough evidence to charge her for a related crime if it was true and proveable.

What is more likely, and this is and educated guess, is that prosecutors are sitting on something or working towards something that is well above Gristina's "pay grade." While I do not believe that "something" or someone is alleged "D" felony co-conspirator Jaynie Baker, could it be that the two women are pawns or tools to land a much bigger fish such as the individual(s) in law enforcement who Gristina claimed protected her? Maybe there are politicians, business leaders or members of the bar who are somehow involved as Johns, enablers, uncharged co-conspirators, profiteers or protectors. If nothing else, I bet a lot of people are sweating that "black book". Is it possible or have has Gristina been advised that the Manhattan District Attorney's Office has the ability to be much more heavy handed should things not play out the way prosecutors would like?

This case is intriguing, in my opinion, for many reasons none of which is because Gristina is charged with the crime of Promoting Prostitution. As fun of a story as it may be, countless men and women have been arrested and indicted for these crimes and will continue to be well after everyone involved in this case has long since forgotten what transpired. What is more compelling is the air of mystery and a seemingly atypical path that got us here.

Whether Gristina ever gets out of Rikers to fight the allegations, she remains in custody, Baker becomes a cellmate recruiter on "The Island" (a/k/a, Rikers) or a combination of all the above, this is far from the last we have heard of this case. Arguably, since she is in jail on $2 million (a absurd amount that cannot be justified given the one count indictment, her family ties, metro-NY residence, ability to forfeit her passport and a candidate to wear an ankle monitor) and prosecutors are not likely to make her a good deal barring something transpiring beyond the four corners of the indictment, Gristina might even consider going to trial. After all, if there really are no other potential crimes (I don't believe this is the situation for whatever its worth), what more does she have to lose?

To educate yourself on New York's crimes involving Escort Services, Prostitution and Unlicensed Massage, follow the highlighted link.

A New York criminal defense firm founded by two former Manhattan prosecutors, Crotty Saland PC's criminal lawyers represents clients throughout the New York City area.

Prosecutors Claim Multi-Million Dollar Manhattan Madam Asserted Connections in Law Enforcement During Five Year Investigation

Mon, 05 Mar 2012 22:16:46 -0500

If New York was the Biggest Little City in the World, then prostitution would be a taxable source of pleasure for the state and federal government. New York City, however, is not Reno and Anna Gristina is not the proprietor of the infamous Bunny Ranch. According to Cyrus Vance, Jr.'s Manhattan District Attorney's Office, Gristina ran an enterprise that serviced well healed clients over a fifteen year period. In fact, according to Assistant District Attorneys, Gristina did not run a multimillion-dollar Gotham based prostitution ring alone. Instead, she ran her alleged brothel service with an at-large and unidentified co-defendant.

It is alleged that an Upper East Side apartment was a haven for late night and lunch time lovers who paid millions of dollars to Gristina over the course of fifteen years. It appears that prosecutors spent significant time and money pursuing Gristina and likely have powerful evidence. It is asserted that law enforcement sent in undercover police officers to investigate the alleged sexual fiascos (much to their chagrin and objection one would assume) as well as informants. Reports further indicate that there may be at least fifty hours of surveillance videos and recordings rated at least between "G" and "R" assuming there were no cams set up for a more detailed view. Unfortunately for Gristina, its is alleged that the madam even bragged that her connections in law enforcement would giver her a tip should Big Brother be onto her trysting scheme. Even Jason Itsler, the self proclaimed "King of all Pimps" did not not have that luxury (regardless, both have found themselves in custody during their alleged pimping careers).

While it does not appear that the $2 million bail is keeping Gristina in on an indictment that charges Enterprise Corruption, New York State's version of the RICO statute used in large scale fraud or criminal money making schemes, according to WebCrims, Gristina is charged with only one felony, Promoting Prostitution in the Third Degree. New York Penal Law 230.25(1) is a "D" felony and as such, the mother of four faces as much as two and one third to seven years in prison. Compounding matters, Gristina is not a citizen of the United States and would likely face deportation should she be convicted. Briefly, one is guilty of Promoting Prostitution in the Third Degree when that person knowingly advances or profits from prostitution. This advancement or profiting must be through the managing, supervising, controlling or owning of a house of prostitution or prostitution business. Alternatively, in lieu of a house or business, one must profit or advance from an enterprise involving prostitution activity by two or more prostitutes.

As a former Manhattan prosecutor and New York criminal lawyer, I am not surprised that District Attorney's Offices are pursuing these large scale prostitution enterprises. I have witnessed and been involved in these types of prosecutions as an attorney on both sides of the law. What surprises me, however, is the scope and length of this investigation in connection to the offense charged. That is, a "D" non-violent felony. For lack of a better term it seems "odd." It is likely that WebCrims is incorrect as to all of the charges contained in the indictment or there are aggravating factors such as possible human trafficking or underage prostitutes. Is somebody of "great significance" tied up in this case? Certainly, there are potential tax issues and crimes, but that can't be the reason this case was pursued over five years. It is not as if illegal firearms or narcotics were being taken off the streets. To be clear, I am in no way minimizing this indictment and investigation, but I believe there must be something beyond what we see on the surface. It would not surprise me to learn of human trafficking, underage escorts, police corruption or the involvement of someone of "great importance" as this case unfolds.

Whether other charges are brought, law enforcement officers are exposed in the criminal activity or we learn that Gristina's claims of connections were pure bluster, the ramifications and reality for Gristina are quite serious.

To learn about the numerous crimes from Prostitution and Patronizing a Prostitute to Permitting Prostitution and Promoting Prostitution, review the Escort and Prostitution Information Page.

A New York criminal defense firm established by two former Manhattan Assistant District Attorneys, the New York criminal lawyers at Crotty Saland PC represent those accused of and investigated for crimes throughout New York City and beyond.

New York Penal Law 205.30: Is Dismissal of Other Arrest Charges a Criminal Defense to Resisting Arrest

Sun, 04 Mar 2012 16:30:38 -0500

Sometimes Resisting Arrest, pursuant to New York Penal Law 205.30, is the top count or sole "A" misdemeanor crime charged in a criminal court complaint. Whether it is in New York County (Manhattan), Kings County (Brooklyn), Queens County, or Westchester County, an arrest for Resisting Arrest is certainly a charge worthy of concern. After all, NY PL 205.30, like any similarly situated crime, is punishable by a year in jail and a criminal record that will not be expunged. Sadly, just as serious and "real" these arrests may be (and they certainly can be), they are often added to lesser arrests or violations so that the police can hang a more serious crime over the head of the accused. Instead of merely charging you with Disorderly Conduct, when you pull you arm away or raise your hands as the police attempt to cuff you, law enforcement may decide to slap you with this sometimes bogus crime. Alternatively, where there is no legitimate offense to arrest you for, the police may accuse you of Resisting Arrest to validate and otherwise invalid arrest. Today I want to discuss a legal decision out of Kings County (Brooklyn) Criminal Court that centers around those times when Resisting Arrest is not a legally permissible charge. Whether or not this case is applicable to your defense, consult with your New York criminal lawyer.

In People v. Richard DeJesus, 2009-203 K CR, NYLJ 1202540313846, at *1 (App. Tm, 2nd, 11th and 13th NY, Decided January 20, 2012), the defendant was charged with Resisting Arrest (NY PL 205.30), Attempted Petit Larceny (NY PL 110.00/155.25), and Disorderly Conduct (NY PL 240.20[3]). On appeal, the defendant challenged the sufficiency of the accusatory instrument (the criminal court complaint) arguing that because the underlying crimes were not legitimate or sufficiently established, the Resisting Arrest charge must be dismissed. In plain English (not legalese) this means that the defendant challenged the initial document which laid out the charges at arraignment and which were the basis of the trial. An accusatory instrument has to allege "facts" (I use quotes because they are facts according to the police/prosecution) that could establish all the elements of each crime. An accusatory instrument alleging Resisting Arrest pursuant to PL 205.30 must state facts that if true, show that the defendant intentionally prevented or attempted to prevent the police officer form making an authorized arrest. Notice that the arrest must be "authorized," or in other words it a lawful arrest.

In his appeal, Richard DeJesus challenged just that-- claiming that there were not enough facts laid forth in the accusatory instrument to establish that the officer had probable cause to arrest him for either Attempted Petit Larceny or Disorderly Conduct. Now, a person is guilty of Attempted Petit Larceny when they take an action that comes "within dangerous proximity" to stealing property. For example, if a cop caught you trying to claw open a cash register you would likely be charged with Attempted Larceny (you hadn't actually taken the money yet, but you performed an act that came "within dangerous proximity" to the criminal end). In DeJesus the accusatory instrument alleged that the officer observed the defendant attempting to open the driver's side door of a car which did not belong to him and which defendant did not have the owner's permission to access. The court found that the sole act of attempting to open the car door did not constitute an act "within dangerous proximity" of stealing the car or an unidentified item in the car. Therefore, the accusatory instrument was not sufficient to establish that the arrest for Attempted Petit Larceny was a lawful arrest, so the defendant could not be charged for Resisting that Arrest.

Nevertheless, the DeJesus court still had to analyze the Disorderly Conduct charge to determine if the accusatory instrument laid out enough alleged facts to establish that that arrest was lawful. If it was a lawful arrest for Disorderly Conduct, even if not for Attempted Petit Larceny, the defendant could still be charged with Resisting Arrest. However, if it was not a lawful arrest then the charges would be dropped and the case dismissed. Now, a person is guilty of Disorderly Conduct § 240.20(3) "when with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" he uses abusive or obscene language or makes obscene gestures, in a public place. Here the accusatory instrument alleged that the defendant yelled at the arresting officer and used obscene language prior to the arrest, but it did not state that "the dispute extended beyond those two individuals." In short, the court found that the arrest for disorderly conduct was also unlawful, because the obscene language was not in a "public place."

Since the accusatory instrument did not include allegations establishing, if true, that the arrest for either Attempted Petit Larceny or Disorderly Conduct were legitimate/lawful, the defendant could not be charged with Resisting Arrest. DeJesus shows that courts will be fair to defendants and not blindly allow the police and prosecution to trample someone's rights just because they did not like that defendant's attitude or perceived actions. Simply, this courts and other have been clear. If the underlying arrest is not legitimate, then police cannot charge you with resisting arrest.

To better understand the crime of Resisting Arrest, the link above and these blog entries contain a significant amount of valuable information. Further information about Petit Larceny or Disorderly Conduct, is found through the respective links or by reading the blogs and websites below.

Founded by two New York criminal lawyers who each served in the Manhattan District Attorney's Office, Crotty Saland PC represents those accused of crimes throughout New York City and the region.