Criminal arrests are upsetting to everyone but can be particularly problematic for financial and securities professionals because of the possible employment and licensure consequences.  Brokers, traders, bankers, financial advisors, and other financial professionals typically have to be licensed through FINRA, the Financial Industry Regulatory Authority.  Some of the most common licenses include Series 7 and Series 63, but there are many.  For those licensed professionals, criminal arrests and convictions may trigger updating of the U4 FINRA form.   (Note: Employers may also have company policies requiring disclosures above and beyond what is required by FINRA).  The registration form demands the following questions:

For the English version of this post, click here.

Como ex fiscales que ahora practican la defensa criminal, colectivamente hemos tratado con cientos de casos de drogas en los ultimos años. Cada uno de nosotros a visto personas de todos los orígenes y profesiones, entrar por las puertas tribunales para enfrentar cargos de drogas. Si la persona es detenida y “procesado por el sistema” o ha zido otorgado una multa (Desk appearance ticket “D.A.T.”)   que requiere aparecer frente ha un juez, para tener que volver al Tribunal en una fecha posterior, la experiencia puede ser desgarradora y las consecuencias embarazosa,  y incluso puede afectar la carrera y la vida familiar de esa persona.  El detalle mas importante que usted deve de saber es la importancia de tener un buen abogado. Hay cosas que un abogado puede hacer para amortiguar el golpe de una detención de drogas y reducir al mínimo las consecuencias perjudiciales que puede tener en su vida, tanto personal como profesional. Este blog se ocupa de casos de pequeñas cantidades de cocaína (otros puestos ocupan cargos de felonía y peso más graves), pero es importante recordar que no importa cuán pequeña es la cantidad de cualquier droga, siempre y cuando haya suficiente residuo de la sustancia que el NYPD pueda probar, un cargo por posesión de drogas puede ser trasmitido  en contra de usted. Lo que puede parecer residuo,  puede ser suficiente para la aplicación de la ley, y usted puede ser condenado con  un delito de cargo/delito menor clasificado A (misdemeanor, class A.)

Posesión de drogas de delito menor: si ha zido otorgado una multa (Desk appearance ticket “D.A.T.”). por tenencia simple de drogas, es más probable es que los cargos que enfrente sean:

Posesión de s 220.03 Penal de una sustancia controlada que figura en el séptimo grado.

Una persona es culpable de posesión criminal de una sustancia controlada

al séptimo grado cuando a sabiendas e ilegítimamente posee una sustancia controlada.

Posesión criminal de una sustancia controlada que figura en el séptimo grado es una

Un delito menor de clase A (misdemeanor). Una multa de este tipo no significa que los cargos no son serios, si no que tiene que presentarse en una corte distinta. Asi que no ignoren esas multas.

Siendo  la pocesion de sustancia controlada pequeña,  un delito de clase “A”, pueden hecharle hasta 1 año de cárcel, es imprescindible ponerse en contacto con un abogado inmediatamente y presentarse ante la corte en la fecha programada,  en caso de que usted no se presente, una orden para su arresto sera transmitida y girada. Como puede ver, las sanciones por incluso una pequeña cantidad de cocaína pueden ser severos…

El elemento de “posesión” es obviamente muy fácil de demonstrar si un oficial encubierto o policía observa ha una persona que posee la sustancia.  En la ciudad de Nueva York, nosotros vemos estos casos todo el tiempo. A menudo la policía observa a personas en vehículos o caminando por la calle oliendo cocaína de lámina de estaño, esto proporcionará causa inmediata para detener y encarcelar a la persona – y suele dejar a la policía con un caso muy fuerte. Otras veces los oficiales encubiertos en bares o restaurantes son testigos que ven a personas compartiendo una cantidad de cocaine, ellos pueden detener a todas las personas que tocan la sustancia. En los casos donde alguien tira al suelo o abandona una cantidad de cocaína, detectives o policía aún serán capaz de establecer un cargo de posesión de drogas, una vez que recuperan la sustancia y está confirmado que contienen una sustancia controlada. Por último, si la policía hace algunas observaciones que les dan una razón para sospechar que tienes drogas en tu bolsillo o en una bolsa, pueden detener te y recuperar esa sustancia (por ejemplo, donde observan que compraste de un vendedor momentos antes).

Después son detenidos o emitió un D.A.T., cualquier sustancia recuperada de TI o de un área que se observa lanzando pondrá a prueba por el laboratorio NYPD para confirmar lo que es, y lo suficiente de la sustancia existe para confirmar que en realidad es cocaína. Si tienen motivos para creer que puede haber suficiente de la droga para mantener un cargo de delito grave, la policía también pesará la sustancia. Si es por lo menos 500 miligramos, se abriran un número de cargos de posesión de drogas de felonía en contra suyo, donde las apuestas son mucho mayores.

Aunque hay formas de luchar contra un caso de posesión de drogas (desafiando las razones que la policía se detuvo y le buscaron) es el principal objetivo si un billete de apariencia del escritorio o arrestado por posesión de drogas de delito menor evitar la imposición de un récord criminal permanente. Durante años hemos asistido profesionales, abogados, empresario: personas de todas las profesiones, para evitar el perjuicio de incurrir en un récord criminal. Hay cosas que podemos hacer para ayudar, por lo que es imprescindible ponerse en contacto con un abogado criminal experimentado que puede guiarle por el proceso y ayudarle a lograr el mejor resultado posible.

There are three separate menacing statutes in New York, each specifying a different gravity of offense.  Menacing is often paired with Stalking (Penal Law section 120.45) and Aggravated Harrassment (Penal Law section 240.30) charges, but can be charged as a standalone offense.

The basic charge is Menacing in the third degree (Penal Law section 120.15) is defined as follows:

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.  Menacing in the third degree is a class B misdemeanor.

Menacing in the Second Degree (Penal Law section 120.14) is an example of a bump-up type charge.  There are three distinct aggravating factors which serve to elevate the charge to a class A misdemeanor, punishable by up to one year in jail.  These are (i) committing a third-degree menacing charge by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm (PL 120.14(1); (ii) by following a person or engaging in a course of conduct or repeatedly committing acts over a period of time which constitute a third-degree menacing charge (PL 120.14(2); and (iii) committing a third-degree menacing charge in violation of a duly served order of protection or stay-away order from a judge (PL 120.14(3).

Finally, there is a felony charge which bumps up a second-degree menacing charge where the person has been convicted of another second-degree menacing charge or the crime of menacing a police officer (PL 120.18) within two years of the commission of the present alleged offense.

Interestingly, the law was passed in 1994 and put into effect in 1995, to close what the legislature perceived to be a loophole in the anti-domestic violence laws and was passed as part of the “family protection and domestic violence intervention act of 1994.”  The law has been applied, however, to a variety of situations, not just those involving domestic violence or incidents between people who have had intimate access in the past, i.e. the ex-boyfriend/ex-girlfriend scenario.  For example, in Matter of Jason R. G., 23 A.D.3d 656 (2d Dep’t 2005), a person was prosecuted for chasing and threatening another person on the street with a knife.  In People v. Silva, 178 Misc.2d 538 (Bx. Co. Ct. 1998), a Bronx conviction was upheld where the defendant had threatened a police officer while touching his waistband after a drug-related conversation.

However, not all allegedly threatening conduct will constitute a violation.  In People v. Nwogu, 22 Misc.3d 201 (Qns. Co. Ct. 2008), Judge Lopresto held that a misdemeanor information was facially insufficient where it merely alleged that the defendant stood up and stated “I am going to blow up,” and that after he did so, a complainant observed the handle of a knife protruding from the defendant’s waistband.   The judge held that the defendant’s words were not directed at anyone in particular (which was required under the statute) and that nobody could have been placed in fear of death, imminent serious physical injury, or physical injury by merely observing the knife handle.  Moreover, the court held, there were insufficient allegations that the defendant intended to display the weapon, as any display as alleged in the complaint was inadvertent.  Moreover, proof of an injury alone will not suffice to validate a Menacing charge.  See Matter of Anisha McG., 27 A.D.3d 749 (2d Dep’t 2006).

If you have been arrested for this offense, you should speak with a menacing, stalking or aggravated harrassment lawyer in New York City.

Of those who are arrested in Manhattan for shoplifting and directed to appear in Midtown Community Court, we often encounter clients who fail to take the situation they are in seriously. These clients are arrested and issued Desk Appearance Tickets (D.A.T.s) and then released without going through the unpleasant experience of being transported to Central Booking. As we’ve stressed before in prior blogs, the D.A.T. is to be taken seriously – this blog deals specifically with appearance tickets issued in cases involving shoplifting where defendants are directed to appear in Midtown Court, located at 314 West 54th Street.

In the typical shoplifting case, the defendant is observed by store security guards (usually on camera in larger department stores such as Bloomingdale’s and Macy’s) either conceal merchandise openly on camera, or go to an area of the store where the cameras cannot film them and secret the items on their person, only to emerge seemingly empty-handed. Store security stops the individuals before they exit the store without paying (the law doesn’t require that they actually make it out of the store – a larceny only requires a “moving” of the property with an intent to permanently deprive the owner of it) and the police are notified. Usually, in cases where a New York State resident with valid identification with no arrest record is caught shoplifting, responding police officers will issue a Desk Appearance Ticket in lieu of “putting the accused through the system”, meaning they get to avoid sitting in a holding cell downtown for at least 24 hours before seeing a judge. This is where we see clients fail to take the situation seriously – (“they just gave me a ticket, what’s the big deal?”) – but the truth of the matter is these clients are generally charged with two class “A” misdemeanors, both of which are punishable by up to one year in jail – petit larceny, and its accompanying charge, criminal possession of stolen property in the fourth degree. Those charges are listed below:

§ 155.25 Petit larceny.

A person is guilty of petit larceny when he steals property.

Petit larceny is a class A misdemeanor.

§ 165.40 Criminal possession of stolen property in the fifth degree.

A  person  is  guilty of criminal possession of stolen property in the

fifth degree when he knowingly possesses stolen property, with intent to

benefit himself or a person other than an owner thereof or to impede the

recovery by an owner thereof.

Criminal possession of stolen property in the fifth degree is a  class

A misdemeanor.

The accused shoplifters in these cases are directed to appear several weeks later at 314 West 54^th Street at 9:30 a.m. to be arraigned on criminal charges. If no disposition is worked out by a lawyer on that day, all of the cases are then adjourned to continue towards trial at the Criminal Court on 100 Centre Street.

There are two primarily concerns that we stress to our clients in these cases – one is that their failure to appear on the return date in Midtown Court will result in a warrant being issued for their arrest (not a good thing). The other is that it is imperative to avoid incurring a criminal record in every case possible. In other words, if you’ve been charged with Petit Larceny and/or Criminal Possession of Stolen Property, it is important to hire an attorney who can work out a disposition for you which does NOT include a plea to any crime. The imposition of a criminal record is a devastating thing and can have serious collateral consequences.

At Galluzzo & Johnson LLP, our team of former prosecutors are experienced in dealing with these specific cases, both on the prosecution side and on the defense side – and have handled many cases at Midtown Community Court, which we are very familiar with. We have represented individuals from all walks of life and secured the bests results for them. If you or a loved one has been issued a D.A.T., contact our lawyers immediately and schedule a free consultation. Do not risk incurring a criminal record and jeopardizing your future.

Vehicular assault charges are usually added to felony or misdemeanor DWI complaints where there has been an injury to someone other than the driver of the vehicle as a result of an alcohol- or drug-related accident.  For example, in People v. Mojica, 62 A.D.3d 100, the defendant allegedly “drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer, Richard Poluzzi. Officer Poluzzi, who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007.”

The elements of the basic charge, PL 120.03, are as follows:

§ 120.03 Vehicular assault in the second degree.

A  person  is guilty of vehicular assault in the second degree when he

or she causes serious physical injury to another person, and either:

(1) operates a motor vehicle in violation of subdivision  two,  three,

four  or  four-a of section eleven hundred ninety-two of the vehicle and

traffic law or operates a  vessel  or  public  vessel  in  violation  of

paragraph   (b),   (c),  (d)  or  (e)  of  subdivision  two  of  section

forty-nine-a of the navigation law, and as a result of such intoxication

or impairment by the use of a drug, or  by  the  combined  influence  of

drugs  or of alcohol and any drug or drugs, operates such motor vehicle,

vessel or public vessel in a manner that causes  such  serious  physical

injury to such other person, or

(2)  operates  a  motor  vehicle with a gross vehicle weight rating of

more  than  eighteen  thousand  pounds  which  contains  flammable  gas,

radioactive  materials  or explosives in violation of subdivision one of

section eleven hundred ninety-two of the vehicle and  traffic  law,  and

such  flammable gas, radioactive materials or explosives is the cause of

such serious physical injury, and as a result of such impairment by  the

use of alcohol, operates such motor vehicle in a manner that causes such

serious physical injury to such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of

subdivision  one  of section 25.24 of the parks, recreation and historic

preservation law or operates  an  all  terrain  vehicle  as  defined  in

paragraph   (a)   of  subdivision  one  of  section  twenty-two  hundred

eighty-one  of  the  vehicle  and  traffic  law  and  in  violation   of

subdivision  two,  three,  four,  or  four-a  of  section eleven hundred

ninety-two of the vehicle and traffic law,  and  as  a  result  of  such

intoxication  or  impairment  by  the  use of a drug, or by the combined

influence of drugs or of alcohol and any drug or  drugs,  operates  such

snowmobile  or  all terrain vehicle in a manner that causes such serious

physical injury to such other person.

If it is established that the person  operating  such  motor  vehicle,

vessel,  public  vessel,  snowmobile  or all terrain vehicle caused such

serious physical injury while unlawfully intoxicated or impaired by  the

use  of  alcohol or a drug, then there shall be a rebuttable presumption

that, as a result of such intoxication  or  impairment  by  the  use  of

alcohol  or  a drug, or by the combined influence of drugs or of alcohol

and any drug or drugs, such person operated the motor  vehicle,  vessel,

public vessel, snowmobile or all terrain vehicle in a manner that caused

such serious physical injury, as required by this section.

Vehicular assault in the second degree is a class E felony.

The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5));  or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).

One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element.  An experienced New York DWI attorney would seemingly make that a top priority.  Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.

If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with top new york criminal defense lawyers before proceeding.

As former prosecutors who now practice criminal defense, we have collectively dealt with hundreds upon hundreds of drug cases over the years. Throughout these years each of us has seen people from all backgrounds and professions walk through the courtroom doors to face drug charges. Whether the person is arrested and “put through the system,” or issued a desk appearance ticket (“D.A.T.”) to return to court on a later date, the experience can be a harrowing one and the consequences can be embarrassing and even devastating to one’s career and/or family life. The silver lining is that there are things that a lawyer can do to dampen the blow of a drug arrest and minimize the detrimental consequences it may have on your life, both personal and professional. This blog deals with cases involving small amounts of cocaine (other posts deal with more serious felony and weight charges) but it is important to remember that no matter how small the amount of any drug, so long as there is enough of the substance for the NYPD to test, a charge for drug possession will stick. What may appear to you to be residue may still be enough for law enforcement to pin a misdemeanor on you.

First, a look at the applicable statue for misdemeanor drug possession – if you have been issued a D.A.T. for simple drug possession, this is most likely the charge that you face:

S 220.03 Criminal possession of a controlled substance in the seventh degree.

A person is guilty of criminal possession of a controlled substance in

the seventh degree when he knowingly and unlawfully possesses a

controlled substance.

Criminal possession of a controlled substance in the seventh degree is a

class A misdemeanor.

Being a class “A” misdemeanor, punishable by up to 1 year in jail, it is imperative to contact a lawyer immediately and to show up on your scheduled court date, otherwise a warrant will be issued for your arrest. As you can see, the penalties for even a small amount of cocaine can be severe…

The element of “possession” will be obviously very easy to prove if a police officer or undercover officer observes a person holding the substance, and in New York City we deal with these cases all the time. Often police observe individuals in cars or walking down the street sniffing cocaine out of tin foil – this will provide immediate cause to stop and detain the person – and usually leave the police with a very strong case. Other times undercover officers in bars will witness people in bathrooms sharing a quantity of cocaine and arrest every person who touches the substance. In cases where someone throws to the ground or abandons a quantity of cocaine, detectives or police will still be able to establish a charge of drug possession once they recover the item and it is confirmed to contain a controlled substance. Finally, if the police make certain observations that give them a reason to suspect that you have drugs in your pocket or in a bag you are holding, they may stop you and retrieve that substance (for instance, where they observe you buy from another individual moments before).

After you are arrested or issued a D.A.T., any substance recovered from you or an area you are observed throwing it to will be tested by the NYPD laboratory to confirm what it is, and so long as enough of the substance exists to confirm that it is in fact cocaine, you will be charged. If they have reason to believe there might be enough of the drug to sustain a felony charge, the police will also weigh the substance. If it is at least 500 milligrams, you will be charged with a number of felony drug possession charges, where the stakes are much higher.

While there are ways to fight a drug possession case (challenging the reasons the police stopped and searched you) the primary goal if you are issued a desk appearance ticket or arrested for misdemeanor drug possession is to avoid the imposition of a permanent criminal record. Over the years we have assisted professionals, lawyers, businessman – people of all walks of life – in avoiding the detriment of incurring a criminal record. There are things that we can do to help, so it is imperative to contact an experienced criminal lawyer who can guide you through the process and help you achieve the best possible result.

Traditionally, the crime of “Unlawfully Dealing with a Child” has been employed in cases involving the sale of alcohol to a minor, as subsection two of Penal Law Statute 260.20 makes it a class “A” misdemeanor to give or sell an alcoholic beverage to a person under the age of 21. Prosecutors and police are increasingly utilizing subsection 1 of that same statute, which deals with cases where people knowingly permit children to enter or remain in locations where certain illegal sexual activity is being conducted, or where “activity involving controlled substances” or marijuana is “maintained and conducted.” This blog entry deals with the portion of the section which pertains to the utilization of the charge in the context of drug cases.  The applicable language of the statute is as follows:

S 260.20 Unlawfully dealing with a child in the first degree.

A person is guilty of unlawfully dealing with a child in the first

degree when:

1. He knowingly permits a child less than eighteen years old to enter

or remain in or upon a place, premises or establishment where sexual

activity as defined by article one hundred thirty, two hundred thirty or

two hundred sixty-three of this chapter or activity involving controlled

substances as defined by article two hundred twenty of this chapter or

involving marihuana as defined by article two hundred twenty-one of this

chapter is maintained or conducted, and he knows or has reason to know

that such activity is being maintained or conducted.

(Unlawfully dealing with a child in the first degree is a class A misdemeanor)

Unlawfully Dealing with a Child in the First Degree is increasingly being charged by law enforcement in any case where narcotics are recovered in the vicinity of children, regardless of whether the elements of the charge are actually met. The most common fact pattern lately is as follows: the police department executes a search warrant at the home of a family, they “boom” the door in the middle of the night and arrest everyone inside and remove any children from the apartment. They search the entire apartment and recover a quantity of drugs from a container in the apartment and then charge one or more individuals with drug possession. For law enforcement, the mere fact that children were observed in an apartment where drugs were recovered is sufficient to levy this serious charge, however this is too broad an application of the crime. While police may believe that a child’s presence in a location where drugs are found (regardless of whether or not those drugs are in closed containers or packaged and hidden) is sufficient to make out this crime, a closer reading of the statue indicates otherwise. Indeed, the statute was enacted to punish people who permit children to witness harmful drug activity for obvious reasons. The law does not, however, have any applicability where drugs are secreted somewhere in an apartment and children happen to be present while they are there. Yet, law enforcement continues to levy this serious charge in situations they shouldn’t, and some prosecutors are going along with the idea that the charge should be pursued.

It should also be noted that a person has to “permit” a child to enter or remain in the place where the drug activity is being carried out. We have handled cases where individuals were charged with possessing drugs and unlawfully dealing with children where drugs were recovered from an apartment owned or rented by a third person, and where that third person’s children were present at the time police made the recoveries. It is hard to imagine how someone could rightfully be accused of permitting a child to remain in premises where drug activity was being carried out if they stashed drugs in a closed container and had no authority to permit the children of another  to enter or leave the location. Yet, law enforcement continues to charge the crime in any case where drugs and children happen to be under one roof, regardless of whether the elements of the statute are met.

Unlawfully Dealing with a Child is a serious crime with serious consequences, including significant jail time. If you or someone you know has been accused of committing this crime, contact an experienced criminal defense attorney immediately. 

The horrendous killing and dismemberment of Leiby Kletzky and subsequent arrest of Levi Aron has shocked New York.  In light of recent reports which suggest that Aron has been hallucinating and hearing voices, the question arises, “Will Aron actually be tried or be subject to normal criminal procedures for this murder?”  The arraignment judge apparently ordered Aron to undergo psychiatric testing.  What this means is that his lawyer most likely asked for a psychiatric examination under Article 730 of the Criminal Procedure Law.

  § 730.10 Fitness to proceed; definitions.
    As  used  in  this  article,  the  following  terms have the following
  meanings:
    1. "Incapacitated person" means a defendant who as a result of  mental
  disease  or  defect lacks capacity to understand the proceedings against
  him or to assist in his own defense.
    2. "Order of examination" means an  order  issued  to  an  appropriate
  director  by  a  criminal  court  wherein  a  criminal action is pending
  against a defendant, or by a family court pursuant to section  322.1  of
  the  family  court  act  wherein  a  juvenile  delinquency proceeding is
  pending against a juvenile, directing that such person be  examined  for
  the purpose of determining if he is an incapacitated person.

Thus, the issue that must be determined by the examination is whether Aron is an “incapacitated person.”  If Aron is, in fact, an incapacitated person, then he may be subject to procedures under section 730.50, under which he could be committed to the custody of the commissioner of mental health.  He would be entitled to hearings to determine whether he is still an incapacitated person a year after the initial order, and then one every two years or so following the first hearing.  If, on the other hand, he is not committed, then the prosecution would continue and the criminal action against him “must proceed.”

The question of whether or not Aron is “730″ is different from the question of whether he would attempt to mount a defense of “Mental Disease or Defect” should his case go to trial.  Remember that it would only get to this point if a psychologist had already determined that he was not an incapacitated person under the Criminal Procedure Law at the time the motion is made in court.  Rather, Mental Disease or Defect is an affirmative defense found in the Penal Law which essentially requires a showing of incapacity at the time of the killing:

  § 40.15 Mental disease or defect.
    In  any  prosecution for an offense, it is an affirmative defense that
  when the defendant engaged in the proscribed conduct, he lacked criminal
  responsibility by reason of mental  disease  or  defect.  Such  lack  of
  criminal  responsibility  means  that  at the time of such conduct, as a
  result of mental disease or defect, he lacked  substantial  capacity  to
  know or appreciate either:
    1. The nature and consequences of such conduct; or
    2. That such conduct was wrong.

Note that this is a time-specific standard.  In other words, a person could be capable of proceeding to trial under CPL 730, but ultimately be found not guilty by reason of insanity by successfully convincing a jury of the mental disease or defect at the time of the criminal conduct.

It is unclear whether this defense will realistically be available to Aron, given that the statement he purportedly gave to the police suggests some level of rational thought at the time he allegedly decided to murder Kletzky.

Never mind drug-dealing and violence – it appears the NYPD is cracking down on people who remain in New York City’s parks after closing time, despite the fact that signs which indicate closing times are often small and go unseen. As a result, we have seen an increase in the number of law-abiding citizens (including professionals and students) summoned to court to answer criminal – yes, criminal – charges for remaining in parks after closing time (Central Park and Prospect Park both close at 1 a.m.). While the lights in Central Park, for example, may remain on after closing and no gates or fences close to alert park-goers they need to leave, one can see how easy it may be for an unsuspecting New Yorker or tourist to find him/herself relaxing in a park after closing time, only to be stopped by a police officer and charged under section 1-03 of the New York City Park Rules and Regulations.

In some cased the police will watch someone walk into the park after closing time without warning them, and then immediately stop them and issue a summons (again, no fences close – you’d think the police would warn you). If you are issued such a ticket, you are probably charged under Park Rules and Regulations § 1-03, which is a misdemeanor. Believe it or not, if you are convicted of being in a park after closing time you will be left with a permanent criminal record. The lesson here is to take the summons seriously; as is the case with any summons, failing to return on the summons date will result in a warrant being issued for your arrest. If you or anyone you know has been issued a summons or a desk appearance ticket for this, contact an experienced criminal defense lawyer at Galluzzo and Johnson LLP to represent you.

§1-03 General Provisions

1. Hours of Operation
   1. Persons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at any park.
   2. Whenever a threat to public health or safety exists in any park resulting from any natural cause, explosion, accident or any other cause, or by riot or unlawful assembly or activity, the Commissioner may close the park or any part thereof to the public for such duration as he deems necessary to ensure the safety and well-being of the public.
   3. No person shall enter or remain in any park without the permission of the Commissioner when such park is closed to the public.

“Obstructing Governmental Administration,” (colloquially referred to as “O.G.A.”) is a very commonly charged crime in New York. While the penal law title is self-explanatory, the application of the charge might be broader than you think. Essentially, any act of intimidation or a physical or independently unlawful act which is committed with intent to obstruct governmental administration falls within the ambit of the statute, which lies in New York Penal Law § 195.05, and states as follows:

§ 195.05 Obstructing governmental administration in the second degree.

A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of  law or other governmental  function  or  prevents or attempts to prevent a public servant  from  performing  an  official  function,  by  means of intimidation,  physical  force  or  interference, or by  means of any independently unlawful act, or by means of interfering, whether  or  not physical  force  is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a  county, city,  town,  village,  fire district or emergency medical service or by means of releasing a dangerous animal under circumstances  evincing  the actor’s intent that the animal obstruct governmental administration.

Obstructing governmental administration is a class A misdemeanor.

“O.G.A.” covers a broad range of conduct; cases where convictions for O.G.A have been upheld include situations where defendants pulled the emergency brake on a subway car without any valid reason to do so, refused to move through a metal detector at a county courthouse in a manner which prevented others from entering, or ran on the “set” of an undercover “buy-and-bust” operation after being warned to leave and shouting that the police were present. While the statue requires “intimidation, or a physical or independently unlawful act,” merely refusing to cooperate with a police officer by giving information, or failing to turn over a driver’s license or registration when asked to do so will not fall within the ambit of the statute (although it might subject the actor to liability under the Vehicle and Traffic Law). Essentially, any act committed with the intent to frustrate the purpose or execution of an official acting in a lawful capacity can qualify, like smacking a summons book out of a police officer’s hand to prevent him or her from writing a ticket, for example.

Obstructing Governmental Administration seems to be committed most when street encounters between police officers and civilians go wrong. There are two scenarios where the charge is applied with the most frequency, the first being where civilians try to stop police officers from placing third parties under arrest, either by standing in between officers and the third parties, or by assaulting police officers and/or jumping on them to foil the detention (which also subjects the intervening person to the additional charge of resisting arrest, also a class “A” misdemeanor). Charges can be elevated to a felony if a person uses pepper spray or mace on the officer, or causes physical injury to the officer.

The second common scenario involves the swallowing of drugs in order to prevent officers from recovering them. While no actual “force” is used by the act of swallowing a bag or vial, courts have held that swallowing drugs in an attempt to avoid arrest for drug possession constitutes O.G.A., as well as the crime of “Tampering.” In either of these situation, the additional act of attempting to prevent the police or official actors from discharging their duties usually serves no purpose other than to escalate the situation, and results in additional charges for the police to bring to the District Attorney’s Office when these cases are being written up.

If you are charged with the crime of Obstruction of Governmental Administration, you should not hesitate to retain an experienced criminal attorney immediately. A conviction for O.G.A. results in the incurrence of a permanent criminal record, and is punishable by up to one year in jail.