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What is the Process for Sealing a Criminal Record in New York?

As of October, 2017, many New York misdemeanor and felony convictions are eligible for sealing under Criminal Procedure Law Section 160.59.

What Happens When a Criminal Record is Sealed?

Sealing a criminal record is different from expungement. While expungement will clear a criminal record, sealing simply makes the conviction and related information inaccessible for most purposes. While most New York criminal records are available to the public, sealed records are accessible only to specific people under specific circumstances. These circumstances include:

The person who was convicted of the crime;

A parole officer, under specific limited circumstances;

An employer, if you are being considered for a job that involves carrying a gun; and

Police and prosecutors, only if they are able to obtain a court order

The First Step Toward Sealing Criminal Records

If you are hoping to have a criminal record sealed, the first step is to determine whether the conviction is eligible for sealing. This involves answering a series of question, including:

Has it been at least 10 years since you were sentenced or released from incarceration?

Do you have a more recent criminal conviction?

Do you have any current or pending criminal charges?

Is the crime you were convicted of eligible for sealing?

Although misdemeanor and felony convictions generally are eligible for sealing, there are several significant exceptions. For instance:

Violent felony convictions cannot be sealed

Certain domestic violence-related convictions cannot be sealed

Class A felony convictions cannot be sealed

Convictions based on an attempt to commit an crime ineligible for sealing cannot be sealed

Sex offenses under Article 130 of the Penal Law cannot be sealed

Homicide-related convictions cannot be sealed

Convictions for conspiracy to commit an ineligible crime cannot be sealed

A great many crimes are classified as “violent felonies” in New York, including serious Assault crimes, certain Weapons Possession charges, and high-level Kidnapping, Robbery and Burglary crimes.

Other restrictions apply as well. For example, an individual may have only two criminal convictions sealed, and only one of those convictions can be a felony.

An Experienced Criminal Defense Lawyer Can Help Seal Criminal Records

Note that many of the factors to be considered require subjective analysis. While it’s easy for the judge to check the dates and determine whether or not the 10-year threshold has been met, other pieces of the analysis are more nuanced and require judgment calls. Thus, the outcome of your bid to seal criminal records will depend in part on how well your application is put together, what language you’ve used, and the extent and nature of the supporting documentation you provide.

An experienced criminal defense attorney can guide you through the process, assembling the strongest application possible based on your specific circumstances. Give yourself every advantage by retaining a knowledgeable advocate who will fight to seal your criminal record.

Applying to Seal a Criminal Conviction

Once you have determined that your criminal conviction may be eligible for sealing, the next step is to assemble an application to seal the conviction. This application will include, among other things:

The certification of disposition for the conviction;

A sworn statement setting forth reasons the conviction should be sealed; and

Any other documents supporting the argument in favor of sealing

The application must then be served on the District Attorney, who has 45 days to make an objection.

Once the District Attorney has entered an objection or the time for making an objection has expired, the sentencing judge will review the application and determine whether the conviction should be sealed. The standard for this determination is set forth in the statute, and includes seven issues for consideration:

How much time has passed since your last conviction;

The seriousness of the crime and the specific circumstances, including eligibility of the crime;

The remainder of your criminal history;

Your character, including any efforts you have made to improve yourself and your life since the conviction;

Victim statements relating to the conviction you are attempting to seal;

The likelihood that sealing the conviction will enable rehabilitation or otherwise aid in helping you reintegrate as a productive member of society; and

Any risk to the public safety or the public’s perception of and respect for the law associated with sealing the conviction

#sealing criminal records nyc #criminal records new york #new york criminal defense attorney

What Should I Do If I’m Under Criminal Investigation in New York?

If you’re fortunate—or unfortunate—enough to learn that you’re under criminal investigation before charges are filed, you won’t want to waste that opportunity. An experienced criminal defense attorney can put that lead time to work for you by:

Conducting an independent investigation

Ensuring that you understand your rights and how to assert them

Create a protective barrier between you and investigators

Explain whether and how you should talk with investigators

Pitfalls of a Criminal Investigation

It’s only natural that someone facing a criminal investigation will want to do whatever is possible to avoid being charged with a crime. Unfortunately, most people don’t have sufficient understanding of the investigative process to adequately protect themselves. In fact, explaining, offering assistance and otherwise attempting to “clear up” the issue can help to build the case against you—even if you’re innocent.

Don’t take the chance that you will accidentally provide information or evidence that can be used against you.

You also won’t want to miss the opportunity for an experienced criminal defense attorney to:

Gather evidence

Identify witnesses for your defense

Negotiate for a lesser charge or penalty

Avoid prosecution altogether

Your criminal defense attorney will also make sure that you understand your rights and know how to handle encounters with law enforcement, minimizing the chances that you will inadvertently damage your case.

If you are under criminal investigation in New York, take control right now. Contact an experienced criminal defense lawyer.

Types of New York Criminal Investigations

When you think of criminal investigations, you may automatically think of the District Attorney, NYPD or local police department. However, the District Attorney and police are just some of the many state and federal agencies that may conduct criminal investigations in New York.

Some federal agencies empowered to conduct criminal investigations in New York include:

FBI (Federal Bureau of Investigation)

ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives)

DEA (Drug Enforcement Administration)

State authorities conducting criminal investigations include:

OAG (Office of the State Attorney General)

SIG (State Inspector General)

OMIG (Office of the Medicaid Inspector General)

New York State Police

In New York City, the primary investigative bodies are:

District Attorneys in Manhattan, Brooklyn, Queens, the Bronx and Staten Island

NYPD (New York City Police Department)

DOI (New York City Department of Investigation)

When one of these or any other agencies takes an interest in you and your activities, it’s serious cause for concern. However, not everyone who is investigated at the state, federal or local level is charged with a crime. And, not everyone who is charged with a crime is convicted. Getting help as early in the process as possible can maximize your opportunities for a favorable outcome.

An experienced criminal defense attorney can help. Contact my office right now to learn more.

Talk to a New York Criminal Defense Lawyer as Soon as Possible

When you hire an experienced criminal defense attorney, you give yourself the advantage of a knowledgeable advocate at your side. When you hire that attorney early in the investigation process, you give your lawyer the advantage of time to investigate and negotiate before you are charged with a crime. During the weeks or months that an investigation is underway, your attorney will have the opportunity to collect evidence, identify weaknesses in the case against you, speak with investigators and build a case on your behalf.

If You are Under Criminal Investigation, Contact an Attorney Today

A criminal investigation doesn’t necessarily always end in criminal charges. When the investigation is in its early stages and investigators have not yet determined what recommendation they will make to the Assistant District Attorney (ADA), your criminal defense lawyer may have ample opportunity to impact the outcome.

If you’re the target of a criminal investigation or otherwise involved in the investigation, don’t leave the next steps to chance.

Protect yourself. Talk to a criminal defense lawyer immediately.

#criminal investigations #nyc #criminal defense lawyer new york #new york criminal investigations

What Happens if You Violate an Order of Protection in New York?

An Order of Protection (OOP) is virtually always issued at the beginning of a criminal case in New York that involves Domestic Violence. In addition, OOPs are usually issued when a crime is committed against a person, whether or not the defendant and the complaining witness / victim know each other. The OOP will usually be in effect during the entire case and is likely to be part of any disposition and outcome.

It’s worth noting that the definition of Domestic Violence in New York is quite broad and may include crimes that you would not expect. Any crime may be classified as Domestic Violence if the defendant and the complaining witness / victim are related by blood or marriage or if the defendant and the complaining witness / victim are or have been in an intimate relationship. And, more than one person may be listed or protected by an OOP.

The Order of Protection prohibits the defendant from certain actions toward or contact with the victim / complaining witness and any other protected parties. In some states, a temporary restraining order (TRO) is used for this same purpose, but in New York the order entered in this situation is called an OOP.

When the order is issued at arraignment, the judge will typically explain the order, ask the defendant if he or she understands the scope of the order and then ask the defendant to sign it. That way, if the OOP is violated, the defendant will not be able to credibly claim that he or she was unaware of the order or did not understand what was prohibited.

Types of Orders of Protection

An Order of Protection may be full or limited.

Full Order of Protection

A full OOP in New York prohibits the defendant from having any contact with the protected party or parties. The prohibition includes going near a protected person, that person’s home, and that person’s place of employment or school. A full OOP also prohibits any type of contact, including telephone, text, social media, email and even communications via third parties.

Limited Order of Protection

A New York limited OOP only bars the defendant from committing a crime against a protected person. This may seem silly, since it is obviously already against the law for the defendant to commit a crime against the protected person, or anyone else. However, if a crime is committed in violation of the Order of Protection, the defendant may be charged with Criminal Contempt in addition to the underlying crime.

How Long Does an Order of Protection Remain in Effect?

An OOP entered at arraignment typically remains in effect for 6 months. In most cases, the OOP will not be terminated simply because the victim / complaining witness requests that it be dropped. If the case has not been resolved when the initial 6-month period expires, the Order of Protection will be extended for another 6 months. These extensions continue until a case is resolved. However, if a case is dismissed, then the OOP is vacated; it is as if it never existed.

Violation of a New York Order of Protection

When a person violates the OOP, which is a court order, he or she may be held in contempt of court. Criminal Contempt of Court may be a misdemeanor or a felony. One important point—and one key reason that limited OOPs are entered—is that in some circumstances, the Criminal Contempt charge may be more serious and carry a more significant sentence than the crime that violated the order. In other words, a defendant who violates an Order of Protection by committing a crime against a protected person may be punished more severely for violating the court order than for the crime itself.

Violation of an Order of Protection in a case involving Domestic Violence may also lead to an increase in or even revocation of bail.

Classification of Criminal Contempt Charges

Criminal Contempt in the Second Degree is a class A misdemeanor, and may be charged any time the defendant is charged with disobeying a lawful court order.

Criminal Contempt in the First Degree is charged only under specific circumstances. One is when the person has committed Criminal Contempt in the Second Degree, but has been convicted of Criminal Contempt within the preceding 5 years. The other situations in which the felony crime would be charged are when the defendant has violated the OOP by:

displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

by means of a threat or threats; or

repeatedly following such person; or

engaging in a course of conduct or repeatedly committing acts over a period of time; or

communicating or causing communication to be initiated with such person by mechanical or electronic means or otherwise, by telephone, or by telegraph, mail or any other form of written communication; or

repeatedly making telephone calls to such person, whether or not a conversation ensues, with no purpose of legitimate communication; or

striking, shoving, kicking or otherwise subjecting such other person to physical contact or attempting or threatening to do the same

Penalties for Violating an Order of Protection in New York

The class A misdemeanor crime of Criminal Contempt in the Second Degree is punishable by up to 1 year in jail. It is important to note that if the violation of the OOP involves a new crime, that crime may be punished separately, resulting in additional jail time.

The felony crime of Criminal Contempt in the First Degree is punishable by up to 4 years in prison. Again, additional crimes committed in the course of the violation may be charged separately.

In addition, a Criminal Contempt charge may result in the imposition of, an increase in or the revocation of bail in the underlying case.

If you’ve been charged with violating an Order of Protection, you can’t afford to wait and hope for the best. Contact our office today to learn more about how we can help.

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What are the Penalties for Insurance Fraud and Medicaid Fraud in New York?

In New York, the crime of Insurance Fraud occurs when someone knowingly and with the intent to defraud presents a false written statement or other evidence containing material misstatements of fact in connection with one of several insurance-related activities. Some common examples include making false representation in an application for insurance coverage or filing a false claim under an existing policy.

A person may also be guilty of Insurance Fraud if he or she causes such evidence to be presented, or prepares it in anticipation of it being presented for the same purposes.

This may occur in connection with any type of insurance, including, but not limited to:

Homeowner’s insurance

Medical insurance

Automobile insurance

Commercial insurance

Government-funded insurance

Medicaid Fraud in New York

The New York Medicaid program provides health coverage to New Yorkers who could not otherwise afford medical care. Eligibility is based on a number of factors, key among them the applicant’s income and assets. The most common type of Medicaid fraud occurs when an applicant makes misrepresentations in the application. This may mean understating income, hiding assets, or making other false representations intended to secure coverage when one isn’t actually eligible.

A medical provider may also be charged with Medicaid fraud based on the submission of claims for services not rendered.

In addition to the charges described below, a person accused of Medicaid fraud may be charged with Offering a False Instrument for Filing, a crime that involves knowingly submitting a document containing false information to a governmental entity.

If you are suspected of Medicaid fraud, you will likely receive a visit or letter advising you that your eligibility or a claim is under investigation. The best time to contact a criminal defense lawyer is immediately after receiving that notification.

Protect yourself from the start. Contact us as soon as you know you are under investigation for Medicaid fraud.

Penalties for Insurance Fraud in New York

A person suspected of committing a fraudulent insurance act in New York may be charged with Insurance Fraud and/or Larceny. Each of these crimes may be charged in one of five different degrees, depending on the value received (or that the defendant attempted to receive, if the fraud was unsuccessful).

Depending on the specifics of the case, past contacts with law enforcement and other factors, a skilled criminal defense attorney may be able to negotiate for a more favorable resolution to insurance fraud charges. For example, an attorney may be able to negotiate for a plea to a lesser offense. In some lower-degree cases, a non-criminal resolution may even be possible.

If you’ve been charged with Insurance Fraud, you can’t afford to wait and see. Contact us today.

Fraudulent insurance acts also often lead to Larceny charges. Under New York law, Larceny is the knowing or intentional taking of property belonging to another for an extended period of time or permanently.

As with Insurance Fraud, the degree charged and possible penalty for Larceny depend on the value of the property involved.

A Larceny or Insurance Fraud conviction carries serious consequences. If you’ve been charged with either crime or both, you can’t afford to delay. Talk to an experienced criminal defense lawyer right away.

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What are the laws surrounding Synthetic Marijuana in NYC?

Synthetic Cannabinoids, commonly referred to as Synthetic Marijuana, is an artificial alternative to marijuana. These synthetics are popular for two reasons:

They are often less expensive than natural marijuana; and

Possession of Synthetic Cannabinoids is covered by a different statute than possession of natural marijuana in New York, where the penalties may be less harsh.

Synthetic Marijuana and Synthetic Cannabinoids Go by Many Names, Including K2 and Spice

K2 and Spice are two of the most common Synthetic Cannabinoids, but there are literally hundreds of different street and shelf names (often referred to as “brands”), including some variations on K2 and Spice. Some common names include:

Spice Gold

Spice Diamond

Yucatan Fire

Solar Flare

K2 Summit

Genie

PEP Spice

Fire n” Ice

Bliss

Black Mamba

Bombay Blue

Zombie World

Penalties for Possession of K2 and Other Synthetic Cannabinoids

Unlike Possession of Marijuana, which may be a crime under the New York State Penal Law, Synthetic Marijuana and Synthetic Cannabinoids are covered by the New York Public Health Law. As such, possession of one of the above listed substances or the many other types of Synthetic Marijuana is a violation and not a crime. The maximum penalty for possession of Synthetic Marijuana or Synthetic Cannabinoids is 15 days in jail and/or a $250 fine.

Despite the lesser penalties and the fact that possession of these substances does not result in a criminal record, use of these synthetic alternatives can have serious consequences beyond the legal penalties.

Synthetic Cannabinoids are Dangerous

While most people agree that moderate use of natural marijuana is relatively harmless, and the national trend is toward legalization, reduced enforcement or reduction in penalties, the same cannot be said for K2 and other synthetic cannabinoids.

Some of the most common side effects of synthetic marijuana include:

Anxiety and paranoia

Hallucinations

Increased heart rate

Agitation

Vomiting and diarrhea

Insomnia

Seizures

Depression and suicidal thoughts

Extreme perspiration

Loss of appetite

Dehydration

Kidney damage

There have even been deaths associated with smoking Spice. Unfortunately, many people mistakenly assume that because these substances are described as Synthetic Marijuana, the effects and risks are no more serious than those associated with marijuana.

Synthetic Marijuana Can be Addictive

Synthetic Cannabinoids can trigger physical dependence in a fairly short period of time, and withdrawal from the substance can be extremely difficult. Many users have reported extreme weight loss during withdrawal.

Talk to a Criminal Defense Attorney if You’ve Been Caught with K2 or Spice

Although possession of Synthetic Marijuana / Cannabinoids is a violation and not a crime, it can result in jail time. The fact that you haven’t technically been convicted of a crime will likely be small comfort if you find yourself spending up to 15 days in jail.

If you’ve been caught with Synthetic Marijuana or Synthetic Cannabinoids, the smart thing to do is to get advice from a criminal defense attorney. As a former Manhattan Assistant District Attorney (ADA), attorney Andrew M. Stengel has the experience to guide you through the process and protect your rights.

Contact our office today to learn more about how we can help.

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Is Drone Use Legal in New York City?

As drones become increasingly popular and more readily available to the public, drone arrests are also increasing. Some run-ins between drone pilots and the law have made national news, including an unauthorized landing on the lawn of the White House. Locally, we’ve seen arrests for flying a drone near the Brooklyn Bridge and an accidental landing on the Empire State Building.

Of course, most drone enthusiasts don’t intend to break the law. They’re simply unfamiliar with the complex web of regulations surrounding flying a drone—especially within New York City. Nevertheless, the consequences can be serious.

New York Reckless Endangerment Charges

New York state law doesn’t address drones specifically. However, drone mishaps often result in Reckless Endangerment charges. Depending on the specific facts, Reckless Endangerment may be a misdemeanor or a felony.

Misdemeanor Reckless Endangerment

Reckless Endangerment in the Second Degree is charged when the defendant is accused of engaging in reckless behavior that creates a substantial risk of serious physical injury.

In this context, “serious physical injury” is defined as:

Substantial risk of resulting death;

Protracted disfigurement;

Protracted impairment of health; or

Protracted impairment of function of a bodily organ

As a practical matter, proving beyond a reasonable doubt that the defendant ignored a substantial risk of serious physical injury is often fairly simple. Flying a drone in a populated area may in and of itself suffice, since many drones are heavy enough to cause serious injury and may be at risk of crashing, being carried away by the wind or colliding with a person. Similarly, flying a drone near a roadway could easily lead to an automobile accident, whether by actually colliding with a vehicle or simply obstructing vision or creating a distraction.

The Second Degree crime is a class A misdemeanor, carrying a maximum possible sentence of 1 year in jail.

Felony Reckless Endangerment

Reckless Endangerment in the First Degree occurs when a person, acting with depraved indifference to human life, engages in conduct that creates a grave risk of death to another.

The felony charge is filed far less often than the Second Degree crime, as the higher burden is impossible to meet in most drone-related cases. However, given the unsettled state of drone law and evolving standards and technology, it is difficult to predict what type of charges may result in the future.

The First Degree crime is a class D felony, and may result in up to 7 years in prison even if the defendant has no criminal history.

Drones in New York City Parks

New York City Park Rules limit the use of drones in city parks. In short, drone use is prohibited in city parks except within certain specified areas. Drone and model airplane use is permitted in several parks in Staten Island, Queens and Brooklyn. Flying a drone in other city parks may result in a jail sentence of up to 90 days, a fine of up to $1,000, or both.

Federal Drone Regulation

The Federal Aviation Administration (FAA) regulates drone use. Although commercial use is more heavily regulated than recreational use, some restrictions apply to all drone users. For example, drone use is prohibited within 1.5 miles of any airport, and further restrictions apply within 5 miles. In addition, drones are not permitted to fly above 400 feet.

Common Sense in Drone Use

The law regarding drone use is evolving, but avoiding Reckless Endangerment charges may best be accomplished by simple common sense. Avoiding situations in which a drone mishap would present a danger to others, or where the drone may interfere with traffic or aircraft is key.

Talk to a New York Drone Attorney

While the unsettled nature of drone-related law creates some uncertainty, it also creates opportunities to fight charges stemming from drone use in New York. If you’ve been charged with a crime in connection with drone usage, call my office today to discuss your options.

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Is Teen Sexting Illegal in New York?

Both New York state law and federal law criminalize sending sexual images to or receiving sexual images from a boy or girl aged 16 or younger. In addition, possessing sexual depictions of a male or female aged 15 or younger is a crime. These are serious crimes in the state of New York. Conviction may result in jail time, a felony criminal record, and mandatory registration as a Sex Offender for 20 years or for life.

It is important to note that the defendant in a teen sexting case need not be an adult. One teenager sending sexual images to another or possessing sexual images of a significant other who falls within the protected age group is sufficient to support a criminal conviction.

Teen Sexting is a Felony in New York

Both crimes commonly charged in connection with sexting in New York are class D felonies. A class D felony carries a potential sentence of up to 7 years in prison, even for a first-time offender, and registration as a Sex Offender.

Disseminating Indecent Material to Minors in the First Degree

A person is guilty of Disseminating Indecent Material to Minors in the First Degree if he or she has intentionally engaged in electronic communications with a minor, and:

Known the content of the communication depicted or described nudity or sexual conduct; or

Invited or induced the minor to engage in sexual conduct, contact or performance

Although the standard sentence for first offense class D felony is 2 1/3 to 7 years in prison, the court has many alternative sentencing options, such as:

A split sentence of up to 6 months in jail and up to 5 years of probation;

Straight probation; or

A straight conditional discharge

Regardless of the sentence imposed, a person convicted of the class D felony crime of Disseminating Indecent Material to Minors will be subject to mandatory Sex Offender registration.

In some instances, when the defendant is aged 20 or younger, a diversion program may be available

Promoting Sexual Performance of a Child

A person is guilty of Promoting Sexual Performance of a Child when he or she produces, directs or promotes any performance that includes sexual conduct by a male or female under the age of 17. Key terms in this statute are defined as follows:

Promotes: broadly construed to including a variety of acts such as lending, delivering, publishing, distributing or offering to do any of the above

Performance: any photograph or video

Sexual Conduct: any type of sex, whether real or simulated, including masturbation or mere exhibition of genitals

As such, a single video or photograph transmitted by email, text, or social media is sufficient to support a conviction.

Like Disseminating Indecent Material to Minors, Promoting Sexual Performance of a Child carries a possible sentence of 2 1/3 to 7 years in prison for a first offender. However, the alternative sentencing options described above may also be available in connection with this charge. A conviction for Promoting Sexual Performance of a Child requires Sex Offender designation and registration.

Federal Teen Sexting Crimes

Federal law carries much harsher penalties for teen sexting crimes, some carrying mandatory minimum prison sentences. However, such crimes are more likely to be prosecuted in state court. Under the Federal Juvenile Delinquency Act (FJDA), juvenile prosecution in state court is deemed preferable to federal prosecution whenever possible.

Youthful Offender Status in Teen Sexting Crimes

Although a teenager may be charged with either of the above felonies, the way the charges are handled may differ depending on the age of the defendant. In New York, if the defendant is 16 or older, he or she will be prosecuted in the Supreme Court just as an adult would. However, someone under the age of 16 who is accused of the same crime will be prosecuted in Family Court.

When the person charged is 16, 17 or 18 years old, he or she may qualify for Youthful Offender status, even if charged as an adult. Although a person charged as a Youthful Offender may still face jail time, either of the charges discussed above will be downgraded to a class E felony, meaning a shorter possible jail sentence. Even more importantly, conviction of the class E felony as a Youthful Offender does not trigger mandatory Sex Offender registration.

A Teen Sexting Conviction Can Impact the Rest of Your Life

Though the incident itself may not seem serious to you, the charges and the lifelong consequences a conviction may carry are very serious. If you’ve been charged with a teen sexting related crime or your child has been accused, you can’t afford to gamble. Contact my office right now to learn more about how we can help.

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How Serious is a Criminal Sale of a Controlled Substance Charge in New York?

Not long ago in New York, a conviction for Criminal Sale of a Controlled Substance could mean a dramatically disproportionately harsh sentence. Fortunately, changes to the controlled substance laws in 2009 eliminated the draconian mandatory minimum sentences that were required for decades. Today, it is often possible for a criminal defense lawyer to negotiate for an alternative sentence, possibly even avoiding jail time completely.

Criminal Possession of a Controlled Substance is a Felony

Although New York laws regarding selling drugs aren’t as harsh as they once were, selling any quantity of any substance or compound on the state’s Controlled Substances Schedules is a felony. The seriousness of the charge and the possible penalties vary by type of controlled substance and quantity.

Criminal Sale of a Controlled Substance in the Fifth Degree

Criminal Sale of a Controlled Substance in the Fifth Degree is a class D felony. For a first offender, conviction can mean up to 2.5 years in prison, with harsher sentences for repeat offenders.

However, because the Fifth Degree crime may be charged any time a person “knowingly and unlawfully sells a controlled substance,” regardless of type or quantity, the court has a wide range of sentencing options. These include:

Comprehensive Alcohol and Substance Abuse Treatment (CASAT), which takes place in an alcohol and substance abuse correctional institution;

SHOCK, a 6-month, military-style boot camp followed by parole;

Judicial Diversion to in-patient or out-patient treatment in lieu of imprisonment;

Definite sentence of up to 1 year in jail;

Split sentence of up to 6 months in jail and up to 5 years of probation;

Probation for 3, 4 or 5 years; or

Conditional discharge for 3 years

Criminal Sale of a Controlled Substance in the Fourth Degree

As a class C felony, Criminal Sale of a Controlled Substance in the Fourth Degree carries a possible determinate sentence of up to 5.5 years in prison and an additional period of up to 2 years of post-release supervision for a person with no prior felony convictions.

The Fourth Degree crime is charged when certain drugs are sold in certain quantities, such as:

Ketamine in a quantity of 4,000 milligrams or more;

Methadone, in any quantity (though larger quantities may be charged in higher degrees);

Narcotic preparations (if sold to a person 21 years of age or older);

Concentrated cannabis;

Phencyclidine in a quantity of 50 milligrams or more; or

Phencyclidine in any quantity, if the defendant has previously been convicted of a controlled substances offense

Criminal Sale of Controlled Substances in the Fourth Degree is also charged when the defendant is accused of selling controlled substances of any kind on school grounds.

Criminal Sale of Controlled Substances in the Third Degree

Criminal Possession of a Controlled Substance in the Third Degree is a class B felony, meaning that a first-time offender could face up to 9 years in prison with an additional period of up to 2 years of post-release supervision.

The Third Degree crime is charged when the defendant is alleged to have sold:

Hallucinogens of 25 milligrams or more;

Hallucinogenic substances of 1 gram or more;

Lysergic acid diethylamide (LSD) of 1 milligram or more;

Any of the above listed substances in any quantity if the defendant has previously been convicted of a controlled substance offense;

Narcotic drugs;

Narcotic preparations sold to a person under the age of 21;

Phencyclidine of 250 milligrams or more;

Methamphetamine of 1/8 ounce or more

Although class B felony charges are serious and can carry a significant prison sentence, in many cases it is still possible to negotiate or argue for favorable alternative sentencing options, particularly if the defendant has little or no criminal history.

Criminal Sale of a Controlled Substance in the Second Degree

The Second Degree crime is a class A-II felony. At 10 years, the maximum sentence for a first offender is only slightly longer than the possible 9 years associated with the Third Degree crime. More significantly, Criminal Sale of a Controlled Substance in the Second Degree carries a minimum sentence of 3 years in prison with 5 years of post-release supervision. While some alternative sentencing possibilities remain, they are much more limited and more significant than those associated with the lesser degrees.

The Second Degree crime is based entirely on the type and quantity of substance, and is charged when the defendant is alleged to have sold:

Narcotic drugs of ½ ounce or more;

Hallucinogens of 125 milligrams or more;

Hallucinogenic substances of 5 grams or more;

Methamphetamine of ½ ounce or more;

Lysergic acid diethylamide (LSD) of 5 milligrams or more; or

Methadone of 360 milligrams or more

Criminal Sale of a Controlled Substance in the First Degree

The First Degree crime is a class A-I felony and a first offender may be sentenced to up to 20 years in prison. The minimum sentence is 8 years in prison and 5 years of post-release supervision.

Criminal Sale of a Controlled Substance in the First Degree is charged when the defendant is alleged to have sold:

Narcotic drugs of 2 ounces or more; or

Methadone of 2,880 milligrams or more

Fighting Controlled Substance Charges

Criminal Possession of a Controlled Substance charges typically stem from a search of the defendant’s car, person, personal belongings, home or other private space. However, the 4th Amendment to the United States Constitution strictly limits the circumstances under which law enforcement can conduct a search without permission.

When evidence is discovered through an illegal search, a skilled criminal defense attorney can often have that evidence suppressed. If key evidence is suppressed, the prosecution will often recognize that it cannot prove its case and dismiss the charges.

Get Help from an Experienced Criminal Defense Lawyer

A Criminal Sale of a Controlled Substance in New York can have life-altering consequences. On the other hand, it is often possible to significantly reduce the impact, whether through a plea bargain, an alternate sentencing option, or by fighting the charges at trial. Contact my office today for more information about how we can help.

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What Should I Do if I’ve Been Charged with Forgery in New York?

If you’ve been charged with a forgery-related crime in New York, the first step is to understand the charges against you and possible penalties. In New York, there are two separate forgery-related crimes, each of which may be charged in varying degrees.

New York Forgery Charges

Forgery charges are filed when a person is alleged to have falsely made, completed or altered an instrument with the intent to deceive or defraud another. Depending on the type of instrument involved, Forgery may be either a misdemeanor or a felony.

Forgery in the Third Degree

Forgery in the Third Degree is a class A misdemeanor, and the only New York Forgery charge that is a misdemeanor. In New York, a class A misdemeanor is punishable by up to 1 year in jail.

In order to obtain a conviction for the Third Degree crime, the Assistant District Attorney need only prove two elements—that the defendant:

Falsely made or completed an instrument;

With the intent to deceive another

It is important to note that the intent to deceive need not be directed toward a specific person; only a conscious intent to defraud is required.

Felony Forgery Charges

Forgery is charged as a felony when certain types of instruments are involved. If the defendant is accused of creating, completing or altering one of the following with the intent to deceive, the charge will be Forgery in the First Degree.

Bonds;

Securities;

Stocks;

Government-Issued Instruments for Value; or

Money

As a class C felony, the First Degree crime carries a possible penalty of up to 15 years in prison, even with no prior criminal history.

Forgery in the Second Degree is charged when the instrument in question is:

A credit card;

A deed or contract;

A record issued by or to be filed with a governmental unit;

A commercial interest such as a check or ticket;

A public transportation card; or

A prescription

The Second Degree crime is a class D felony and carries a sentence of up to 7 years for a first-time offender.

New York Criminal Possession of a Forged Instrument Charges

While Forgery requires that the defendant actually made, completed or altered the document, either misdemeanor or felony Criminal Possession of a Forged Instrument charges can result from knowing possession of a fake or altered instrument with the intent to defraud. As in the case of Forgery charges, the intent to deceive need not be specific.

Criminal Possession of a Forged Instrument in the Third Degree

Criminal Possession of a Forged Instrument in the Third Degree is a class A misdemeanor, carrying a possible penalty of up to 1 year in jail. To obtain a conviction in the Third Degree, the prosecutor must prove only that the defendant:

Knowingly possessed;

A forged instrument; and

With the intent to defraud another

Note that general intent to defraud is sufficient to establish the charge; no actual attempt is required.

Felony Criminal Possession of a Forged Instrument Charges

Criminal Possession of a Forged Instrument in the First Degree is charged when the defendant is alleged to have committed the crime of Criminal Possession of a Forged Instrument in connection with the same list of instruments associated with Forgery in the First Degree.

Like Forgery in the First Degree, Criminal Possession of a Forged Instrument in the First Degree is a class C felony, and even a first-time offender may face up to 15 years in prison.

Similarly, Forgery in the Second Degree involves the same list of instruments set forth in relation to Forgery in the Second Degree above. A class D felony, the Second Degree crime may mean up to 7 years in prison, even for a person with no criminal history.

Where the defendant is alleged to have possessed two or more forged credit or debit cards (or any combination thereof), a presumption arises that the defendant knew the instruments were forged and intent to defraud. This presumption, while rebuttable, makes the prosecution’s job much easier.

Get Help to Fight Forgery-Related Charges in New York

Forgery and Criminal Possession of a Forged Instrument charges can carry serious consequences in New York. The least serious of these crimes may mean up to 1 year in jail, with much longer sentences possible for the First and Second Degree crimes. In addition, this type of criminal conviction can have indirect consequences, such as disqualification from certain types of employment and licensing.

Fortunately, an experienced criminal defense attorney may be able to resolve forgery-related charges without jail time, or even without a criminal conviction. If you’re facing charges, call my office today.

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What Type of Things Lead to Weapons Possession Charges in New York?

Criminal Possession of a Weapon charges in New York arise under two different sets of circumstances in New York:

A person possesses a weapon specifically prohibited by the Criminal Possession of a Weapon statute; or

A person possesses any dangerous or deadly item with the intent to use it unlawfully against another person

Many weapons possession charges involving firearms in New York are classified as violent felonies, even though the weapon is merely possessed without being used, and carry mandatory minimum prison sentences.

Per Se Criminal Possession of a Weapon in New York

Simply possessing a weapon included on the long “per se” list in the Criminal Possession of a Weapon statute is sufficient to support a conviction for Criminal Possession of a Weapon in the Fourth Degree, a class A misdemeanor.

Penal Law Section 265.01 makes it illegal to possess:

A firearm;

An electric dart gun;

An electronic stun gun;

A gravity knife;

A switchblade;

A metal knuckle knife;

A cane sword;

A billy, blackjack, sand bag, sand club or bludgeon;

Plastic or metal knuckles;

Nunchucks; or

A wrist-brace-style slingshot

The statute also prohibits possession of a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun.

Possession of a Dangerous or Deadly Instrument

The Fourth Degree crime may also be charged when a person possesses a dangerous or deadly instrument with the intent to use it unlawfully against another person. It’s important to note that this charge may arise in connection with objects you would not normally think of as weapons. While the instrument in question may be a knife, gun or other conventional weapon, it may just as likely be a brick, a tire iron or other ordinary object that could be dangerous or deadly if used against another person like a broomstick.

Criminal Possession of a Firearm

Criminal Possession of a Firearm, a class E felony, is charged when a person is accused of possessing an unlicensed and unregistered firearm. However, under certain circumstances, the charge may be much more serious.

Criminal Possession of a Weapon in the Second Degree

The Second Degree crime is a class C violent felony and carries a mandatory minimum sentence of 3.5 years, even for a first offender. A conviction may mean up to 15 years in prison.

Criminal Possession of a Weapon in the Second Degree may be charged, among other circumstances, when:

A person possesses a loaded firearm outside of a home or place of business;

A person possesses more than 5 firearms; or

A person possesses a machine gun

Firearms and Criminal Possession of a Weapon in the First Degree

A person who possesses 10 or more firearms may be charged with Criminal Possession of a Weapon in the First Degree. The First Degree crime is a class B violent felony, and carries a mandatory minimum 5-year prison sentence for a first offense, with a possibility of up to 25 years in prison.

Firearms Operability in New York

One of the elements of felony firearm laws in New York is that the weapon must be operable. Operability means that “a firearm must be capable of discharging ammunition.” If a firearm cannot be fired, then it is not operable and a felony charge cannot be sustained.

Other Felony Weapons Possession Charges

In addition to the more common types of weapons listed above, felony Criminal Possession of a Weapon charges may stem from the possession of other items, including:

A bomb or explosive;

An assault weapon;

Multiple firearms;

A disguised gun; or

A firearm silencer

These charges carry mandatory minimum prison sentences of 2 to 5 years, and some carry possible sentences of up to 25 years.

Fighting New York Weapons Charges

The consequences associated with even a low-level Criminal Possession of a Weapon conviction in New York can be severe. Don’t assume that if you’ve been charged, you’ll be convicted—find out what defenses are available to you.

Many weapons charges stem from searches by police, which are strictly governed by both the U.S. Constitution and the New York Constitution. If the search was conducted illegally, any evidence obtained during the search may be suppressed—and that includes the weapon itself. This concept is known as "the fruit of poisonous tree."

Talk to a New York Criminal Defense Lawyer Right Away

If you’ve been charged with Criminal Possession of a Weapon, you have a lot at stake. Contact my office right now to learn more about your possible defenses and how we can help you protect your future.

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What is the Difference between Robbery and Larceny in New York?

The word “robbery” is often misused to describe a wide variety of theft crimes, including Larceny and Burglary. However, the crime of Robbery in New York is actually quite specific: a person commits Robbery when he or she forcibly steals property from another person by the use or threat of physical force.

Because Robbery involves direct contact with the victim and the use or threat of force, it is a more serious crime than many other theft-related crimes and carries more serious penalties.

Robbery is a Felony in New York

In the state of New York, there are no misdemeanor Robbery charges.

Robbery in the Third Degree

Robbery in the Third Degree, the least serious New York Robbery charge, is a class D felony. Although the standard sentencing range for a first-time offender convicted of a class D felony is 3 to 7 years in prison, the outcome is not always that severe.

Defending on the facts of the case and the defendant’s criminal history, a skilled criminal defense attorney may be able to negotiate or successfully argue for less serious consequences, including:

A 1-year jail sentence;

A split sentence of 6 months in jail and up to 5 years of probation;

3-5 years on probation; or

A conditional or unconditional release

Robbery in the Third Degree is the only New York Robbery crime that does not carry a mandatory minimum prison sentence.

Mandatory Minimum Sentences for Robbery

Robbery in the First Degree and Robbery in the Second Degree are charged when certain specific elements, described below, are present in the commission of a Robbery. Each of these charges carries a mandatory minimum prison sentence.

Robbery in the First Degree

The First Degree crime is a class B violent felony. The maximum possible sentence is 25 years in prison, with a mandatory minimum term of 5 years. There is also a required term of post-release supervision, ranging from 2.5 to 5 years.

In some circumstances, the penalties may be even more serious. For example, if the crime is related to Domestic Violence, the prison sentence may be indeterminate. Similarly, if the crime was sexually motivated, the period of post-release supervision may be longer than 5 years.

Robbery in the First Degree is charged when it is alleged that the defendant, in the commission of a Robbery or the immediate flight therefrom:

Was armed with a deadly weapon;

Displayed what appeared to be a loaded, operable firearm;

Caused serious physical injury to another person who was not a participant in the crime; or

Used or threatened the immediate use of a dangerous instrument

Robbery in the Second Degree

The Second Degree crime is a class C violent felony, carrying a maximum sentence of 15 years in prison and a mandatory minimum of 3.5 years.

Like Robbery in the First Degree, the Second Degree crime:

Requires 2.5 to 5 years of post-release supervision;

May result in an indeterminate sentence if related to Domestic Violence; and

May result in a longer period of post-release supervision if the crime was sexually motivated

Robbery in the Second Degree is charged when the defendant is alleged to have:

Been aided by another person, who was present during the commission of the crime;

Displayed a firearm or anything appearing to be a firearm during the crime or the immediate flight therefrom;

Physically injured a non-participant in the crime, during the commission of the crime or the immediate flight therefrom; or

Stolen a motor vehicle

That’s right, in order to be charged with Robbery in the Second Degree, a person does not actually have to display a firearm. That means if a person simulates a firearm, like extending a finger to imitate a gun inside of a coat or jacket, then the charge will be Robbery in the Second Degree.

The Difference Between Robbery and Grand Larceny From the Person

One of the many types of Grand Larceny in The Fourth Degree is called Grand Larceny From the Person. The crime involves taking property directly from a person without force or resistance. For example, a wallet from somebody’s back pocket or an item from a backpack that is worn from by a person. Grand Larceny from the Person is punished less severely as a class E felony.

If You’re Facing Robbery Charges, Talk to an Experienced Criminal Defense Lawyer

Even at the lowest level, Robbery is a serious charge in New York. A felony conviction can have a significant, long-term impact on your life, even beyond the sentence imposed. You owe it to yourself to thoroughly explore your options before taking the next step.

Call my office today to discuss your options, including the possibility that we can successfully fight the charges against you at trial and the likelihood of negotiating for a resolution that does not include a felony conviction or significant jail time.

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Is Marijuana Possession Still a Crime in New York?

The short answer is “yes”—while New York law does allow for medical use of marijuana under limited circumstances, possession outside that context is illegal. However, the consequences for possession of marijuana in New York are far less severe than the consequences for possession of controlled substances.

Whether possession of marihuana is a violation, a misdemeanor or a felony depends on both the quantity possessed and the circumstances of the possession. (Yes, New York refers to “marijuana” as “marihuana.”)

Non-Criminal Possession of Marijuana

Unlawful Possession of Marihuana (UPM) is a violation. That means a conviction of UPM in New York does not result in a criminal record.

The statute, which prohibits “knowingly and unlawfully possessing marihuana,” sets forth the following possible penalties:

First UPM Offense– A fine of not more than $100;

Second UPM Offense (within 3 years) – A fine of not more than $200; and

Third UPM Offense (within 3 years) – A fine of not more than $250 and up to 15 days in jail

However, as a practical matter, UPM alone is unlikely to result in jail time. In my years as a Manhattan District Attorney, I do not recall ever seeing a person sentenced to jail for UPM.

UPM with Other Criminal Charges

Although UPM alone rarely if ever carries jail time, a person charged with UPM will likely be facing other charges as well. Possession of small amounts of marijuana is most often discovered in the course of an arrest for another crime.

Misdemeanor Possession of Marijuana

Possession of more than 25 grams but not more than 8 ounces of marijuana is a misdemeanor, as is open possession of any amount of marijuana.

Criminal Possession of Marihuana in the Fifth Degree

The Fifth Degree crime is charged in two situations:

Possession of more than 25 grams but not more than 2 ounces of marijuana; or

Open possession of any amount of marijuana, burning or not

As a class B misdemeanor, Criminal Possession of Marihuana in the Fifth Degree carries a maximum possible sentence of 90 days in jail. It is often possible to avoid jail time for a first offense, but it is preferable to avoid a conviction altogether, since a class B misdemeanor is a criminal charge and conviction will result in a criminal record.

Criminal Possession of Marijuana in the Fourth Degree

Criminal Possession of Marihuana in the Fourth Degree is charged when the defendant is alleged to have possessed more than 2 ounces, but not more than 8 ounces, of marijuana. The Fourth Degree crime is a class A misdemeanor, carrying a maximum sentence of 1 year in jail.

Felony Possession of Marijuana in New York

The degree associated with a felony marijuana possession charge in New York is determined by the quantity of marijuana alleged to have been possessed. Charges and possible penalties are:

More than 8 ounces but not more than 16 ounces is charged as Criminal Possession of Marihuana in the Third Degree, a class E felony;

More than 16 ounces but not more than 10 pounds is charged as Criminal Possession of Marihuana in the Second Degree, a class D felony; and

More than 10 pounds is charged as Criminal Possession of Marihuana in the First Degree, a class C felony

Sentencing in Possession of Marijuana Cases

The maximum penalties for marijuana possession range from no jail time for a first UPM offense to up to 15 years for the First Degree crime. However, alternatives are often possible in marijuana possession cases, including plea bargains to lesser offenses, non-criminal resolutions, and a special alternative known as a Marihuana Adjournment in Contemplation of Dismissal (MACD).

Marihuana Adjournment in Contemplation of Dismissal (MACD) in New York

In New York, many low-level marijuana possession charges are resolved with a Marijuana Adjournment in Contemplation of Dismissal (MACD). Assuming the defendant successfully completes all requirements under the MACD, the charges will be dismissed and the case will be sealed in 12 months.

MACDs are employed most often in UPM and Fifth Degree Criminal Possession of Marihuana cases, but may also be an option for other marijuana-related crimes, so long as the defendant has not previously benefitted from an MACD.

Search and Seizure in Marijuana Possession Cases

Possession of marijuana is most often discovered and charged as the result of a police search. Because the constitutions of both the United States and the state of New York limit the circumstances under which law enforcement may conduct a search and the scope of such searches, it is often possible to fight possession charges by challenging the legality of the search.

The "fruit of the poisonous tree" doctrine requires that any evidence collected as the result of an illegal search excluded from evidence. In a marijuana possession case, this would mean that the marijuana itself could not be introduced as evidence. Often the loss of this evidence prompts the prosecution to dismiss the marijuana possession case.

Criminal Sale of Marihuana

Like Criminal Possession of Marihuana, the seriousness of a Criminal Sale of Marihuana charge in New York is generally determined by quantity.

Misdemeanor Sale of Marijuana

The least serious marijuana sale charge is Criminal Sale of Marihuana in the Fifth Degree, which is a class B misdemeanor. However, this crime is charged in only one limited circumstance: when the quantity was 1 marijuana cigarette or less than 2 grams and no money exchanged hands.

With that one limited exception, selling any amount of marijuana is at least a class A misdemeanor.

Felony Sale of Marijuana

Sale of any amount of marijuana greater than 25 grams is a felony. Criminal Sale of Marijuana in the Third Degree, charged in connection with quantities between 25 grams and 113 grams (4 ounces), is a class E felony. However, if the marijuana is sold to a person under the age of 18, the charge is bumped up to a class D felony.

Sale of between 4 and 16 ounces of marijuana is charged as Criminal Sale of Marijuana in the Second Degree, a class D felony, and the First Degree crime, charged in connection with the sale of any amount of marijuana in excess of 16 ounces, and is a class C felony. This differs significantly from the treatment of the sale of controlled substances, which is always a felony and may carry a sentence of up to 20 years in prison for a first offender.

Talk to a Marijuana Possession Attorney as Soon as Possible

Possible penalties and indirect consequences for Criminal Possession of Marihuana and related charges can be serious. Having an experienced criminal defense attorney on your side increases your options and your opportunity to protect your rights and your future.

If you’ve been charged with a marijuana-related crime, contact my office right away to learn more about your options, from negotiating for an MACD or reduced charge to fighting the charges against you at trial.

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What is a New York Desk Appearance Ticket?

A Desk Appearance Ticket in New York, often called a “DAT,” is a directive for a person who is arrested in New York but not held for arraignment and brought before a judge immediately to appear in court in a later date. The DAT date usually will be 1 to 3 months following the arrest.

Receiving a DAT is preferable to being held for arraignment for two reasons. First and most obvious, the DAT allows the defendant to avoid spending up to 24 hours in a holding cell. Second, a person issued a DAT has the opportunity to hire a criminal defense attorney before arraignment. The attorney can investigate, assess the case for weaknesses and perhaps negotiate with the prosecutor before the arraignment. This increases the likelihood that the case can be resolved favorably at the arraignment hearing.

However, not everyone who is arrested is eligible for a DAT.

Who Will Be Issued a Desk Appearance Ticket?

Whether or not a person may be issued a DAT depends in large part on:

The nature of the alleged crime;

A defendant’s criminal history;

The defendant bench warrant history; and

The defendant’s ability to prove his or her identity

In my experience, some of the crimes for which DATs are most often issued include:

Assault in the Third Degree (non-Domestic Violence related);

Possession of Marijuana (small quantities)

Criminal Possession of a Controlled Substance in the Seventh Degree

Petit Larceny; and

Turnstile Jumping also known as Theft of Services

There are exceptions, however. For example, a DAT will virtually never be issued for an Assault charge where domestic violence is involved.

The New York City Police Department’s Patrol Guide warns that DATs should not be issued when:

Domestic Violence

Harassment

Assault

Menacing; or

Stalking

As a practical matter, DATs are sometimes issued even when one of the above crimes is alleged. Generally, if the charge against you is not serious and you don’t have a significant criminal history, there is a good chance that you will be issued a DAT if you are able to produce valid, government-issued identification. However, in my years as a prosecutor in Manhattan, I never saw a DAT issued for an alleged Domestic Violence crime.

Appearing in Court on a New York DAT

When you are issued a DAT, you are required to appear in court at the date and time set forth in the document. Failure to do so will result to a bench warrant and arrest if a person has contact with law enforcement. Having already failed to appear for one scheduled court date, you may be required to post bail to secure your release.

What Happens at the DAT Court Date?

The scheduled court date on a DAT is for arraignment. The purpose of an arraignment is to make the defendant aware of the charges against him or her and to provide certain required notices. However, it is not unusual for a case to be resolved at the arraignment hearing, particularly if the defendant is working with a criminal defense attorney who has had the opportunity to prepare for the hearing and discuss the case with the prosecutor.

Some possible resolutions at the arraignment hearing include:

A plea bargain to a lesser charge;

A plea bargain to Disorderly Conduct, which is a violation and does not result in a criminal record; or

An Adjournment in Contemplation of Dismissal (ACD), which will result in the dismissal and sealing of the charges after 6 or 12 months, depending on the nature of the charged crime, so long as its terms are fulfilled

What if the Case Is Not Resolved at Arraignment?

If the charge is not resolved at arraignment, another court date will be scheduled. What happens at the next court date will vary depending on a variety of factors, including the nature of the charge, the evidence in the case and the technical or procedural issues before the court.

You will generally have from 6 to 12 weeks after the arraignment hearing to prepare for the next step in court. When you’re issued a court date several weeks in the future, it may seem that you have plenty of time to schedule an appointment with an attorney, but it’s in your best interests to act quickly. Your criminal defense lawyer will need time to review your case, possibly interview witnesses or examine other evidence, talk with you about your options and discuss the case with the prosecutor. The sooner you seek representation, the more your attorney can do for you before that next court date—and the more likely it is that the case will be resolved without yet another court appearance.

Talk to a New York Criminal Defense Lawyer Right Away

Whether you’ve been issued a DAT and ordered to appear for arraignment or you appeared for arraignment on your own and received another court date, the time to get help is now. Call my office today to learn more about how we can help.

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What Should I Do If I’m Charged with Identity Theft in New York

Prosecutors in New York take Identity Theft crimes very seriously. Depending on the specific facts of the case, Identity Theft may be charged as either a misdemeanor or a felony. However, even misdemeanor cases are treated seriously, and the Assistant District Attorney (ADA) may be less likely to offer a plea to reduced charges or other favorable resolution in an Identity Theft case.

What is New York Identity Theft?

In general terms, Identity Theft is charged when one person assumes the identity of another, either for the purpose of personal gain or to cause financial harm to another. “Assumes the identity of another” requires further explanation, as it may be much broader than the language implies.

For example, a person may be found to have assumed the identity of another if he or she presented himself or herself as that person by using their credit card number. Similarly, the use of another person’s social security number or other identifying information may constitute assumption of the identity of another.

Misdemeanor Identity Theft

Identity Theft in the Third Degree, a class A misdemeanor, is the only misdemeanor Identity Theft charge in New York law.

Identity Theft in the Third Degree

As a class A misdemeanor, Identity Theft in the Third Degree carries a maximum sentence of 1 year in jail. The misdemeanor crime is charged when the defendant is alleged to have, knowingly and with intent to defraud:

Obtained property, goods, or services; or

Used credit in the name of another person; or

Caused financial loss to another person; or

Committed a class A misdemeanor or higher level crime

Of course, not every Identity Theft conviction results in jail time. A person who has been convicted of Identity Theft in the Third Degree may be placed on probation for a term of 2 or 3 years. In some cases, although it is not common, a skilled criminal defense attorney may even be able to negotiate for an Adjournment in Contemplation of Dismissal (ACD), which may ultimately result in dismissal of the charge, or Disorderly Conduct, which is a violation and not a crime.

Felony Identity Theft Charges in New York

The primary difference between misdemeanor and felony Identity Theft charges in New York lies in the value of money or goods obtained, credit used or financial harm caused. However, there are a few specific Identity Theft crimes that are felonies regardless of value.

Identity Theft in the Second Degree

Identity Theft in the Second Degree is charged under the same circumstances as the Third Degree crime, except:

Where goods, services, property or money has been obtained, the value exceeds $500;

Where credit is used, the amount exceeds $500; or

Where financial losses are caused, they are in excess of $500

With regard to the use of the assumed identity in the commission of a crime, the Third Degree crime may be charged based on a misdemeanor, but the Second Degree felony charge requires that defendant have used another’s identity in the commission of, attempt to commit or while acting as an accessory to a felony.

Finally, the Second Degree crime is charged if the defendant commits the Third Degree crime, but has a related conviction within the preceding 5 years.

Identity Theft in the Second Degree is a class E felony, carrying a prison sentence of 1 1/3 to 4 years, with no prior felony convictions. It is, however, sometimes possible to negotiate for or successfully argue for a shorter prison sentence, probation in lieu of a prison sentence, a split sentence, or even a conditional discharge.

Identity Theft in the First Degree

Identity Theft in the First Degree occurs when a person commits the same acts described above, except that the value of goods, money, property, services, credit used or financial harm to another exceeds $2,000.

In addition, the First Degree crime is charged if:

The defendant is alleged to have knowingly and with intent to defraud another person assumed the identity of another and committed, attempted to commit or acted as an accessory to a Class D felony; or

The defendant is alleged to have committed the Second Degree crime, but has a related conviction within the preceding 5 years

Identity Theft in the First Degree is a class D felony. A person convicted of the First Degree crime may face up to 7 years in prison, assuming no prior felony convictions. However, as with the lesser degrees, it is sometimes possible to negotiate or argue for a substantially more favorable sentence.

An Experienced Identity Theft Lawyer Can Help

Identity Theft is serious business in New York, but with the help of a seasoned criminal defense attorney, you may be able to fight the charges, negotiate for a favorable plea agreement or get the charges reduced. In some cases, you may be able to avoid jail time altogether.

Don’t take chances. Call my office today.

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What Constitutes Forcible Touching or Sexual Abuse in New York?

Forcible Touching and Sexual Abuse laws in New York cover a range of criminal behavior in New York, including both misdemeanors and felonies. Some of these crimes, but not all, require registration as a Sexual Offender.

Forcible Touching in New York

Forcible Touching was criminalized in New York as part of the Sexual Assault Reform Act of 2000. As such, the crime is narrower than the terminology may suggest: many unlawful forcible touches are actually classified as Assault in New York.

Forcible Touching in the Second Degree refers to a specific sub-set of unwelcome touches, all of which are sexual in nature. These include intentionally and for no legitimate purpose:

Forcibly touching the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire; or

Subjecting another person to sexual contact for the purpose of gratifying the actor’s sexual desire or abusing or degrading such person while such person is a passenger on public or governmentally authorized private transit

Although Forcible Touching is a misdemeanor, the consequences may be more serious than those associated with many other misdemeanor charges. It is possible that a non-criminal plea will not be offered, even if the defendant has no criminal history. A conditional discharge may be a possible outcome, but will usually be tied to completion of a treatment program and/or performing community service.

What Type of Force Is Necessary To Charge Forcible Touching and What Are Sexual and Intimate Parts?

Two of the elements of the crime include “forcibly touching” and a person’s “sexual or other intimate parts.” Forcible touching includes but is not limited to, squeezing, grabbing, pinching and rubbing. But it is much broader. The element includes any level of force that is applied, such as a brush with the back of a hand. Sexual or other intimate parts extends to the obvious as well as person’s buttocks and thighs.

Places Where Forcible Touching in Usually Charged In New York

While Forcible Touching can be charged in any locale, whether in public or in private, the charge usually arises where there are crowds of people. In New York City, public transportation like subways and buses are common places where Forcible Touching arrests occur. Outside of New York City, Forcible Touching arrests occur at concerts and bars. But, to repeat, Forcible Touching can occur in any location like an uncrowded public sidewalk.

New York Sexual Abuse Crimes

While Forcible Touching relates to a fairly narrow range of behaviors and is always a class A misdemeanor, Sexual Abuse may be a misdemeanor or a felony.

Felony Sexual Abuse

Sexual Abuse in the First Degree is a class D violent felony, carrying a possible sentence of up to 7 years in prison for a first offender. A person convicted of Sexual Abuse in the First Degree is also required to register as a Sex Offender.

The First Degree crime is charged when a person is accused of subjecting another person to sexual contact:

By force;

When the other person is physically helpless and thus incapable of consent;

When the other person is under the age of 11; and

When the accused is 21 or older and the other person is under the age of 13

Despite the seriousness of the charge, the judge has discretion to apply alternative sentencing, including a conditional or unconditional discharge, a lengthy term of probation or a short jail sentence accompanied by long-term probation or a conditional discharge.

Misdemeanor Sexual Abuse

Sexual Abuse in the Second Degree is a class A misdemeanor, which carries a maximum sentence of up to 1 year in jail. However, the judge has alternative options similar to those described above.

The Second Degree crime occurs when a person subjects another to sexual contact while that other person is either:

Less than 14 years of age; or

Incapable of consent for some reason other than being less than 17 years of age

The Third Degree crime is a class B misdemeanor, carrying a maximum sentence of 90 days in jail. In order to prove Sexual Abuse in the Third Degree, the prosecution must establish only that the defendant subjected another person to sexual contact without that person’s consent. “Sexual contact” is defined as any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either.

Sex Offender Registration in New York

One of the most serious consequences associated with sex-related crimes in New York is the obligation to register as a sex offender. Sex Offender Registration in New York is mandatory for a period of 20 years or life, depending on the risk level assigned. Registration requirements are burdensome and limiting, and the simple failure to update an address in a timely manner is a felony.

While not every crime described above triggers a registration requirement, even a person convicted of Forcible Touching may be required to register under certain circumstances.

If You’ve Been Charged with a Sex Crime, Get Help Now

The consequences of a sex crime conviction can be serious, and go beyond the possibility of jail time and probation. A conviction for even a relatively minor sex crime could impact the rest of your life. If you’re facing Forcible Touching or Sexual Abuse charges, don’t take chances. Contact my office right now to find out how we can help.

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What are the Consequences of a Criminal Possession of Stolen Property Conviction in New York?

Criminal Possession of Stolen Property in New York may be charged in the First, Second, Third, Fourth or Fifth Degree. These classifications range from a class A misdemeanor, carrying a maximum penalty of 1 year in jail, to a class B felony, which could result in a sentence of up to 25 years in prison.

What is Criminal Possession of Stolen Property (CPSP)?

In New York, Criminal Possession of Stolen Property means simply that a person knowingly possesses stolen property and does not intend to return it to the rightful owner.

Most CPSP charges stem from Larceny, since a person who has stolen property necessarily possesses that stolen property. Quite often, the two crimes are charged together. In other cases, there may be insufficient evidence to charge the accused with Larceny, but the Assistant District Attorney (ADA) will push forward with Criminal Possession of Stolen Property charges. This usually occurs where there are no witnesses to the actual theft but a person is caught with property that does not belong to them.

Misdemeanor and Felony Criminal Possession of Stolen Property Charges

Although there are some special circumstances impacting the classification of certain CPSP crimes, the degree is most often determined by the value of the stolen property alleged to have been possessed.

Criminal Possession of Stolen Property in the Fifth Degree is a class A misdemeanor, carrying a maximum penalty of up to 1 year in jail.

With certain limited exceptions discussed below, the misdemeanor crime will be charged when the value of the property in question is $1,000 or less.

Criminal Possession of Stolen Property in the Fourth Degree is a class E felony, carrying a possible sentence of up to 4 years in prison.

The Fourth Degree crime is charged under two circumstances:

When the stolen property is valued at more than $1,000 and up to than $3,000; or

When the stolen property in question includes a debit card, credit card or public benefit card

Criminal Possession of Stolen Property in the Third Degree is a class D felony, carrying a possible penalty of up to 7 years in prison.

The Third Degree crime is charged when the property in question is valued at more than $3,000 and up to than $50,000.

Criminal Possession of Stolen Property in the Second Degree is a class C felony, and is punishable by up to 15 years in prison.

The Second Degree crime is charged when the stolen property alleged to be possessed has a value greater than $50,000 and up to $1,000,000.

Criminal Possession of Stolen Property in the First Degree is a class B felony, carrying a maximum sentence of 25 years in prison.

The First Degree crime is charged when the stolen property in question exceeds $1,000,000.

The Prosecution’s Burden of Proof in CPSP Cases

In Criminal Possession of Stolen Property cases, as in every criminal case, the prosecution has the burden of proving each element of the crime beyond a reasonable doubt. In the standard CPSP case, this means the prosecutor must prove that:

The property was stolen;

The defendant was in possession of the property;

The defendant knew he or she was in possession of stolen property; and

The defendant did not intend to return the property

However, where debit and credit cards are involved, the prosecution’s burden is a bit easier. Possession of two or more stolen debit or credit cards triggers a presumption that the defendant knew the cards were stolen. Thus, the prosecution has one less element to prove.

The defendant has the opportunity to rebut the presumption, but the shifting of the burden makes the prosecutor’s job easier.

Talk to a Criminal Defense Attorney about CPSP Charges

Criminal Possession of Stolen Property charges can carry serious consequences, and fighting charges can be challenging. With the help of an experienced criminal defense lawyer, you may be able to:

Secure a non-criminal plea agreement for low-level CPSP charges;

Reduce a felony charge to a misdemeanor;

Successfully rebut the presumption of knowledge in a credit or debit card case; or

Negotiate or argue for more favorable sentencing

If you’re facing Criminal Possession of Stolen Property charges, contact my office right away to find out how we can protect your rights and help you achieve the best possible outcome in your case.

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What is the Difference Between Trespass and Burglary in New York?

In simplest terms, the difference between Trespass and Burglary in New York is the intent to commit a crime inside a structure.

While each crime may be charged in varying degrees depending upon specific facts, the basic Trespass statute prohibits knowingly entering or remaining unlawfully in or upon premises.

In contrast, the lowest-level Burglary charge requires that the defendant knowingly enter or remain unlawfully in a building with the intent to commit a crime therein.

New York Burglary Charges

Although Burglary may be charged in the First, Second or Third Degree, all New York Burglary charges are felonies.

Burglary in the Third Degree

The least serious Burglary charge in New York is Burglary in the Third Degree. As described above, the Third Degree crime prohibits a person from:

Knowingly entering or unlawfully remaining;

In a building; and

With the intent to commit a crime inside

Although the crime may technically be charged in connection with any building where the defendant has no right to be, it is most often charged when:

The building in question is either commercial or residential; or

The defendant has been barred from entering the premises

The latter situation might arise, for example, if the defendant had been barred from entering a store after being previously caught for shoplifting, was issued a trespass notice and then returned to the store with the intent to commit another shoplift.

The Third Degree crime is a class D felony, which may mean up to 7 years in prison for a person with no previous criminal convictions.

Burglary in the Second Degree

The Second Degree crime includes the same basic elements as the Third Degree crime. However, to sustain a conviction for Burglary in the Second Degree, the prosecution must also establish either:

That the building in question was a dwelling; or

That while inside or in immediate flight, the defendant or another participant in the crime:

Displayed a firearm or something appearing to be a firearm;

Caused physical injury to any non-participant in the crime;

Used or threatened the immediate use of a dangerous instrument;

Was armed with a deadly weapon; or

Was armed with explosives

The second alternative above may be easier to prove than you might imagine. First, “something appearing to be a firearm” can mean anything from an unloaded firearm or realistic toy gun to a finger positioned inside a jacket to create the appearance of a gun. Second, a “dangerous instrument” may be anything that could be used to inflict death or serious injury, even if the item is not intended for that purpose. For example, a person threatening to hit another in the head with a rock would likely satisfy this requirement.

The Second Degree crime is a class C violent felony, and carries a mandatory minimum sentence of 3.5 years. Even a first-time offender may be sentenced to up to 15 years in prison, with an additional period of 2.5 to 5 years of post-release supervision.

When Is a Building a Dwelling for the Purposes of Burglary in the Second Degree?

In New York City, unlike many surrounding counties, some buildings are mixed use. That means the building has commercial tenants in one part, usually a store of some kind, and residential tenants above. In other words, mixed use buildings contain dwellings. So, if a person were to commit burglary in the commercial portion of a building where there are also apartments, they could be charged with Burglary in the Second Degree even if they never set foot inside any dwelling.

Burglary in the First Degree

The First Degree crime is charged when the defendant is alleged to have knowingly entered or remained unlawfully in a dwelling with the intent to commit a crime therein, AND the defendant or another participant in the crime:

Displayed what appeared to be a loaded, operable firearm;

Used or threatened the immediate use of a dangerous instrument;

Was armed with a deadly weapon;

Was armed with explosives; or

Caused a physical injury to a person who was not a participant in the crime

New York Trespassing Charges

Trespass charges in New York range from a violation with a maximum penalty of 15 days in jail or a $250 fine to a class D felony carrying a possible 7-year sentence for a first-time offender.

Misdemeanor Trespass Charges

Criminal Trespass is a class B misdemeanor if the property trespassed upon is:

Fenced or enclosed;

An elementary school;

A secondary school;

A children’s overnight camp;

Public housing, if the defendant’s presence violates posted rules;

Public housing, if the defendant has been told to leave by a housing police officer; or

A railroad zone posted “no trespassing”

This is often charged along with Theft of Services in a turnstile jumping case in New York City.

The crime is a class A misdemeanor when the defendant knowingly enters or unlawfully remains in a dwelling, or when a registered Level 2 or Level 3 Sex Offender enters or remains in a school where he or she knows a victim of the sex crime is registered or attends.

Felony Trespass Charges

Only Criminal Trespass in the First Degree is a felony. As a class D felony, the First Degree crime may result in up to 7 years in prison, even for a person with no criminal record.

The First Degree crime is charged when the defendant is alleged to have knowingly entered or remained unlawfully in the building and:

Possessed a deadly weapon, or knew another participant in the crime did;

Possessed an explosive, or knew another participant in the crime did; or

Possessed a firearm, rifle or shotgun and possessed or had ready access to ammunition, or knew another participant in the crime did

Contact an Experienced Criminal Defense Attorney Today

Whether you’ve been charged with Trespass and are hoping for a non-criminal resolution or are facing serious felony charges and need help identifying possible defenses and fighting the charges in court, an experienced criminal defense attorney can be your best resource. Contact my office today to learn more about how we can help.

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