New York Criminal Defense Blawg

“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.

Now that the warm weather is here, most native New Yorkers and tourists can enjoy the sunny weather by going to any one of our gorgeous parks to take in all of the historic sights and sounds the city has to offer.

Well, maybe not the sounds so much these days…You may have noticed green and white signs which are being placed in public areas by the Department of Parks and Recreations or the Central Park Conservancy, most notably in the Park’s Strawberry Fields, Bethesda Fountains and the Boathouse. The signs, which have been placed in areas where talented musicians play soothing music which enriches the city’s cultural value and history, designate the areas they are posted in as “Quiet Zones” and prohibit musical instrument playing in addition to playing music through amplifying devices. So, no radios or speaker systems to disturb the peace…but what about the gentle classical music you may have been accustomed to hearing when strolling through the park? You won’t hear it anymore, if the city can help it…So far this year cellists, saxophonists, violinists, guitarists, and flutists playing without any electric amplification have been issued summons by the Parks Department charging them with making unreasonable noise, and asked to cease playing music at all in these areas.

While the New York Civil Liberties Union has gotten involved in the matter to address the First Amendment issues associated with the city’s prohibition of music playing in our city, the fact of that matter remains that musicians are being summoned to criminal courts to answer to judges for their actions and pay fines. Presumably they are being charged under Parks and Recreations Regulations § 1-05, section (a) which deals with:

Noise; Musical Instruments; Sound Reproduction Devices

1. No person shall make, or cause or allow to be made, unreasonable noise in any park so as to cause public inconvenience, annoyance or harm. Unreasonable noise means any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivity or injures or endangers the health or safety of a reasonable person of normal sensitivity, or which causes injury to plant or animal life, or damage to property or business.
2. No person shall play or operate any sound reproduction device, as defined in §1-02 of these Rules, in any park without a permit from the Department of Parks & Recreation and any other City agency or agencies with pertinent jurisdiction. This paragraph (2) shall not apply to the regular and customary use of portable radios, record players, compact disc players, or television receivers, or tape recorders played or operated in full accordance with these Rules so as not unreasonably to disturb other persons in their permitted uses of the park, except that in areas designated by the Commissioner as “quiet zones,” such regular and customary use of sound reproduction devices shall be prohibited. Signs shall be posted in all quiet zones advising the public of such prohibition. Use of radios and other sound reproduction devices listened to solely by headphones or earphones, and inaudible to others, is permitted in all areas of the parks.

While subdivision two would apply where people are enhancing the volume of their music with speakers or amplifiers, subsection 1 applies to those who simply play their instruments with no sound enhancement. Subsection one, however, requires that the “unreasonable noise” cause “public inconvenience, annoyance or harm.” It’s hard to imagine a violinist in Central Park causing such harm…especially if people are surrounding the musician and giving him or her a few dollars for the performance.

If not charged under the Parks and Recreations Regulations, perhaps a police officer could charge a musician under Administrative Code  § 24-218, which classifies “making unreasonable noise” as a misdemeanor, meaning it can leave the person charged with a permanent criminal record and carries a potential sentence of up to 20 days imprisonment, and/or a fine of anywhere from $50 – $500.

So, before you pick up your instrument and perform in Central Park, or anywhere in the city for that matter, check to make sure you are not in a designated “Quiet Zone.” If you are, be prepared to be stopped by the police and issued a summons for violating the city’s new “noise” policy.

If you or someone you know has been given a summons to appear in court, accused of making “unreasonable noise” in violation of any New York statute, contact an experienced criminal lawyer from the firm of Galluzzo and Johnson to represent you.

Last week, New York City banned smoking in all city parks.  Legally speaking, they accomplished this by amending the New York City administrative code section 17-503, entitled Prohibition of smoking.  This section, by the way, is the same one that bans smoking in bars, the subway, retail stores, and several other indoor and outdoor locations.

The relevant parts of the smoking ban section read as folows:

c.  Smoking is prohibited in all indoor and outdoor areas of the following public places at all times:

3.  Any park or other property under the jurisdiction of the department of parks and recreation; provided, however, that this paragraph shall not apply to: (a) the sidewalks immediately adjoining parks, squares and public places; (b) any pedestrian route through any park strip, median or mall that is adjacent to vehicular traffic; (c) parking lots; and (d) theatrical productions.

It is interesting to note that several commentators on the law, including some of its principal backers, have stated that the hope is that the law will be self-enforcing.  This, however, does not seem to be a likely long-term solution, if the city hopes to truly enforce this provision.  After all, it would be extremely awkward, in some cases, to approach someone in a park and ask them to follow the anti-smoking law.  Most New Yorkers are too busy or wary of strangers to engage smokers in this way.  The likely outcome, then, would seem to be an eventual uptick in pink summonses and other enforcement of this law.  If you have received a summons for smoking in the park, you should have representation at 346 Broadway, or wherever your court appearance is scheduled.  Thus, if you have received such a summons, you should contact a lawyer experienced in dealing with all summons matters in New York City.

Being accused of driving under the influence of alcohol, marijuana, or any controlled substance in New York is not a matter to be taken lightly. A conviction for any DWI-related offense can have serious consequences, such as incurring a permanent criminal record, driver’s license suspension and/or revocation, payment of hefty fines, enrollment in counseling programs, requirement of the use of an ignition interlock mechanism, vehicle forfeiture, and/or incarceration. In fact, merely being charged with a DWI-related offense can impose a hardship upon a person before he/she is even convicted, as certain Vehicle and Traffic Law (“VTL”) provisions provide for immediate suspension of driver’s licenses which can disrupt a working person’s life. This post will explain the most commonly used DWI charges and the penalties associated with them so that you know what to expect if you or someone you know are in the position of facing a prosecution for DWI.

The basic component or “elements” of alcohol and drug related driving offenses are the following: (a) operation of a motor vehicle or vessel, (b) on a public highway or the waters of the State, (c) while in an impaired or intoxicated condition at the time of such operation, (d) due to the voluntary consumption of alcohol or drugs.

You might be surprised to learn that a person is deemed to “operate” a motor vehicle if he/she is behind the wheel while the engine is running. As such, there is no requirement that the person charged be observed “driving” the vehicle in the traditional sense that the vehicle be observed in motion. The law is clear that “operation” of a motor vehicle is established where there is a “present intention” of placing the vehicle in operation. Courts have found that people who are asleep at the wheel of a parked car with a key in the ignition and the engine running “operated” a vehicle for purposes of a DWI charge. In fact, courts have upheld convictions where drivers were asleep or unconscious at the wheel of vehicles which were parked in their own driveways as they were deemed to have operated a vehicle on a “public highway” – public highway including highways, private roads open to motor vehicle traffic, parking lots, and even driveways to residences.

As you can see from the summary of charges below, DWI offenses are very serious, and they carry severe penalties and consequences. If you or someone close to you has been accused of driving while impaired or intoxicated, contact an experienced criminal attorney immediately.

Some of the more common drinking and driving offenses:

VTL § 1192.1: “Driving while ability impaired.” This section states that no person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. “Impairment” means impairment to any extent of the physical and mental abilities needed to be possessed in order to operate a vehicle as a reasonable and prudent driver.

Penalties: This is the least severe of the DWI charges as it is a traffic infraction (not a crime) which is punishable by up to 15 days in jail, and/or a fine of $300-$500, and 90 day license suspension for first time offenders. Second offenders face up to 30 days in jail and increased fines and license revocation for 6 months, while third time offenders face up to 90 days in jail, as well as increased fines and 6 month license revocation.

VTL § 1192.2: “Driving while intoxicated, per se.” This section states that no person shall operate a motor vehicle while such person has .08 per centum or more by weight of alcohol in the person’s blood* as shown by chemical analysis of such person’s blood, breath, urine or saliva.

Penalties: first time offenders convicted under this section face up to one year in jail, and/or a fine of $500-$1000 and a mandatory license revocation of six months. The law may also require that an ignition interlock device be placed on any vehicle operated by the defendant for a specified period of time.

*Note: If a person has .18 of one per centum or more by weight of alcohol in their blood, they may be charged with aggravated driving while intoxicated, a misdemeanor which carries up to one year in jail and a fine of $10,000-$25,000.

VTL § 1192.3: “Driving while intoxicated (common law).” This section states that no person shall operate a motor vehicle while in an intoxicated condition, meaning the consumption of alcohol has caused impairment which renders that person incapable, to a substantial extent, of employing the physical and mental abilities which are needed to be possessed in order to operate a vehicle as a reasonable and prudent driver. There is no requirement that a person submit to a breathalyzer test for a charge under this section to apply.

Penalties: This is a class “A” misdemeanor which carries up to one year in jail and/or a fine of $500-$1,000, and a mandatory license revocation of six months.

VTL § 1192.4: “Driving while ability impaired by drugs.” No person shall operate a vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug.

Penalties: This is a class “A” misdemeanor for first time offenders, which carries up to one year in jail and/or a fine of $500-$1,000 and mandatory license revocation of 6 months.

Felony DWI: A person who operates a vehicle in violation of § 1192.2, 1192.3 or 1192.4 can be charged with a class E felony if he or has been previously convicted of any DWI misdemeanor, vehicular assault or vehicular manslaughter within the preceding ten years*.

Penalties: As a class “E” felony, incarceration of up to 4 years may be imposed, as well as a fine of $1,000-$5,000, and mandatory license revocation for 1 year.

*If a person has two such prior convictions, they may be charged with a class “D” felony which carries up to 7 years in jail and higher fines.

“Lenadra’s Law”: Under Leandra’s Law, first time offenders driving while intoxicated or impaired by drugs who have a child passenger younger than sixteen years old can be charged with a class E felony which is punishable by up to 4 years in jail. Intoxicated drivers or those under the influence of drugs who cause the death of a child younger than 16 in the car can be charged with a Class B felony, which is punishable by up to 25 years in prison. If such a driver causes serious physical injury to a child in their vehicle, they can be charged with a Class C felony, which is punishable by up to 15 years in prison.

We have previously discussed Assault in the Third Degree.  This post addresses the more serious felony charge of Assault in the Second Degree, under New York Penal Law section 120.05.  A common situation where this offense is charged is where a bar fight goes too far — someone uses a boot, a bottle, a knife or some other “dangerous instrument” or “deadly weapon” and someone else winds up getting hurt.  Of course, this post is not a substitute for the advice of New York assault attorneys who specialize in serious felony cases.

One of the striking things about the Assault 2 statute is how much longer it is than the Assault in the Third Degree offense:

 § 120.05 Assault in the second degree.
    A person is guilty of assault in the second degree when:
    1.  With intent to cause serious physical injury to another person, he
  causes such injury to such person or to a third person; or
    2. With intent to cause physical injury to another person,  he  causes
  such  injury  to  such  person or to a third person by means of a deadly
  weapon or a dangerous instrument; or
    3.  With  intent  to  prevent  a  peace  officer,  a  police  officer,
  registered  nurse,  licensed  practical  nurse,  sanitation  enforcement
  agent, a firefighter, including a firefighter acting as a  paramedic  or
  emergency  medical  technician  administering first aid in the course of
  performance of duty as such firefighter, an  emergency  medical  service
  paramedic or emergency medical service technician, or medical or related
  personnel  in a hospital emergency department, a city marshal, a traffic
  enforcement officer or traffic  enforcement  agent,  from  performing  a
  lawful  duty,  by  means  including  releasing  or failing to control an
  animal under circumstances evincing the actor's intent that  the  animal
  obstruct  the  lawful  activity  of  such peace officer, police officer,
  registered  nurse,  licensed  practical  nurse,  sanitation  enforcement
  agent,   firefighter,   paramedic,  technician,  city  marshal,  traffic
  enforcement officer or traffic  enforcement  agent,  he  or  she  causes
  physical injury to such peace officer, police officer, registered nurse,
  licensed  practical  nurse,  sanitation  enforcement agent, firefighter,
  paramedic, technician or medical or  related  personnel  in  a  hospital
  emergency  department,  city  marshal,  traffic  enforcement  officer or
  traffic enforcement agent; or
    4. He recklessly causes serious physical injury to another  person  by
  means of a deadly weapon or a dangerous instrument; or
    5.  For  a purpose other than lawful medical or therapeutic treatment,
  he  intentionally  causes  stupor,  unconsciousness  or  other  physical
  impairment  or injury to another person by administering to him, without
  his consent, a drug, substance or preparation capable of  producing  the
  same; or
    6.  In the course of and in furtherance of the commission or attempted
  commission of a felony, other than  a  felony  defined  in  article  one
  hundred  thirty  which  requires  corroboration  for  conviction,  or of
  immediate flight therefrom, he, or another participant if there be  any,
  causes  physical  injury to a person other than one of the participants;
  or
    7. Having been charged with or convicted of a crime and while confined
  in a correctional facility, as defined in subdivision three  of  section
  forty of the correction law, pursuant to such charge or conviction, with
  intent to cause physical injury to another person, he causes such injury
  to such person or to a third person; or
    8.  Being eighteen years old or more and with intent to cause physical
  injury to a person less than eleven years old, the defendant  recklessly
  causes serious physical injury to such person; or
    9.  Being eighteen years old or more and with intent to cause physical
  injury to a person less than seven years old, the defendant causes  such
  injury to such person; or
    10.  Acting at a place the person knows, or reasonably should know, is
  on school grounds and with intent to cause physical injury, he or she:
    (a) causes such injury to an employee of a  school  or  public  school
  district; or
    (b)  not  being  a  student  of such school or public school district,
  causes physical injury to another, and such other person is a student of
  such school who is attending or present for  educational  purposes.  For
  purposes  of  this  subdivision the term "school grounds" shall have the meaning set forth in subdivision fourteen  of  section  220.00  of  this

  chapter.
    11.  With  intent to cause physical injury to a train operator, ticket
  inspector,  conductor,  signalperson,  bus  operator  or  station  agent
  employed by any transit agency, authority or company, public or private,
  whose  operation is authorized by New York state or any of its political
  subdivisions, a city marshal, a  traffic  enforcement  officer,  traffic
  enforcement  agent  or sanitation enforcement agent, registered nurse or
  licensed practical nurse he or she causes physical injury to such  train
  operator,  ticket  inspector,  conductor,  signalperson, bus operator or
  station  agent,  city  marshal,  traffic  enforcement  officer,  traffic
  enforcement  agent,  registered  nurse  or  licensed  practical nurse or
  sanitation enforcement agent,  while  such  employee  is  performing  an
  assigned  duty  on,  or directly related to, the operation of a train or
  bus,  or  such  city  marshal,  traffic  enforcement  officer,   traffic
  enforcement  agent,  registered  nurse  or  licensed  practical nurse or
  sanitation enforcement agent is performing an assigned duty.
    12. With intent to cause physical injury to a person who is sixty-five
  years of age or older, he or she causes such injury to such person,  and
  the actor is more than ten years younger than such person.
    Assault in the second degree is a class D felony.

Some of the key concepts here are “serious physical injury” (as opposed to mere “physical injury”), as well as “deadly weapon” or “dangerous instrument.”

These terms are all defined in Penal Law section 10, the definition section of the New York Penal Law:

    9.  "Physical  injury"  means  impairment  of  physical  condition  or
  substantial pain.
    10.  "Serious  physical  injury" means physical injury which creates a
  substantial risk  of  death,  or  which  causes  death  or  serious  and
  protracted  disfigurement, protracted impairment of health or protracted
  loss or impairment of the function of any bodily organ.

The most basic charge listed here is under the first subsection, which calls for a person to intentionally cause serious physical injury to another person.  Thus, there is no strict requirement that a weapon be used under this subsection, as long as the person actually intended to cause serious physical injury.  As far as the actual injury is concerned, there are reported cases which held that serious physical injury was made out where the alleged victim suffered:

• Loss of an ear,  People v. Dingley, 50 A.D.2d 361 (3d Dep’t 1976);
• Fractured ribs and lung contusions,  People v. Rollins, 118 A.D.2d 949 (3d Dep’t 1986);
• Fractured humerus requiring weeks of immobilization, People v. Mohammed, 162 A.D.2d 367 (1st Dep’t 1990);
• Multiple lacerations to the face requiring sutures, People v. Edmonds, 267 A.D.2d 19 (1s’t Dept 1999);
• Nose fracture requiring surgery, People v. Willson, 272 A.D.2d 959 (4th Dep’t 2000);
• Gunshot wounds, People v. Garcia, 202 A.D.2d 189, (1st’ Dep’t 1994); and
• Loss of vision nine months after the incident, People v. Hirschhorn, 231 A.D.2d 591 (2d Dep’t 1996).

However, some cases go the other way.  Courts have found that the proof was insufficient in cases where the alleged victim suffered:

• A gunshot wound to the foot, People v. Bodford, 238 A.D.2d 928 (4th Dep’t 1997);
• Broken finger, People v. White, 283 A.D.2d 964 (4th Dep’t 2001); and
• Femur fracture, People v. Jerreld, 19 Misc.3d 595 (Co. Ct. 2008).

The bottom line is that the question whether the injury suffered was serious or not will depend on the particular facts and circumstances of your case.  If you or a loved one has a case where this is charged, you will need competent counsel to advise youa after reviewing any relevant medical records and studying the case law in this area.

Another hot topic in this area is the question of whether something constitutes a deadly weapon or a dangerous instrument for purposes of an Assault 2 charge under the second subdivision.

Those concepts are also defined in PL sec. 10.00:

    12. "Deadly weapon" means any loaded weapon from which a shot, readily
  capable of producing death or other  serious  physical  injury,  may  be
  discharged,  or  a  switchblade  knife,  gravity  knife, pilum ballistic
  knife, metal knuckle knife, dagger, billy, blackjack, plastic  knuckles,
  or metal knuckles.
    13. "Dangerous instrument" means any instrument, article or substance,
  including  a  "vehicle"  as that term is defined in this section, which,
  under the circumstances in which it is used, attempted  to  be  used  or
  threatened  to  be  used,  is  readily capable of causing death or other
  serious physical injury.

Again, these concepts, which can be absolutely crucial to a case, must be fully understood by a lawyer representing a defendant who has been charged under this subsection.  The following are examples of weapons that have been considered “deadly” for purposes of an Assault Charge:

• Stun gun, People v. MacCary, 173 A.D.546 (2d Dep’t 1991);
• Air pistol, People v. Jones, 54 A.D.2d 740 (2d Dep’t 1976); and
• A long, straight knife, People v. Blanchard, 55 A.D. 2d (3d Dep’t 1977).

However, even if the weapon allegedly used under a prosecution under that subsection, it will almost always be alleged that it is a “dangerous instrument.”  Examples include:

• A knife not even seen by the alleged victim, People v. Lawrence, 124 A.D.2d 597 (2d Dep’t 1986);
• An unseen object which caused a “deep laceration” to alleged victim’s head, People v. Pagan, 163 A.D.2d 681 (3d Dep’t 1990);
• An unseen blunt object, People v. McBride, 203 A.D.2d 85 (1st Dep’t 1994);
• The sidewalk, People v. Pedraza, 65 N.Y.2d 761 (1985); and
• Wire handle of a fly swatter, People v. Nehial, 227 A.D.2d 101 (1st Dep’t 1996).

However, in fewer instances, courts have held that the People did not meet their burden of establishing a dangerous instrument where the weapon alleged was:

• A “hard object,” People v. Peralta, 770 N.Y.S.2d 339 (1st Dep’t 2004);
• Teeth, People v. Owusu, 93 N.Y.2d 398 (1999); and
• Pepper spray, People v. Sinatra, 755 NYS2d 312 (2d Dep’t 2003).

The bottom line here is that there are arguments to be made on these issues, but only by experienced New York assault attorneys.

Having practiced criminal law for ten years, we have seen hundreds of cases in New York City where people have been arrested and charged with felonies or misdemeanors because they intentionally or recklessly caused damage to another person’s property. These cases frequently occur in domestic situations where an argument between family members, spouses or domestic partners escalates and someone punches a wall, breaks a window, or damages any personal property in a residence belonging to a spouse or relative. We’ve also seen many cases where people punch out or hurl objects into storefront windows, quite often because they’ve had too much to drink and sober up just in time to find themselves in handcuffs. Another common case involves disputes between automobile drivers, where one driver or passenger gets out of a vehicle after a traffic dispute over a parking spot or over who had the right of way, and ends up knocking off the opposing driver’s side view mirror, or uses an object to break windows or dent the vehicle. Making graffiti, while considered by many as a form of artistic expression and even beautification, is not so viewed by the NYPD and the DA’s office (See our prior blawg dealing with the nuances of graffiti charges in NY). Any case involving the damage of another person’s property is taken seriously by the District Attorney’s Office which will often seek to procure a sentence involving restitution to compensate the property owner for the damage, as well as community service, probation, or even a term of incarceration.

Here are some of the common charges which are applicable in these types of cases:

Criminal Mischief.

Criminal mischief is a broad crime encompassing intentional and reckless damage to property. The degrees are distinguished primarily by the monetary value of the damage caused. There are provisions for intentional and reckless damage to property, damage to abandoned buildings, even the use of explosives to cause damage. Anyone who damages the property of another will be charged under one of these sections:

S 145.00 Criminal mischief in the fourth degree.

  A person is guilty of criminal mischief in the fourth degree when,

having no right to do so nor any reasonable ground to believe that he

has such right, he:

  1. Intentionally damages property of another person; or

  2. Intentionally participates in the destruction of an abandoned

building as defined in section one thousand nine hundred seventy-one-a

of the real property actions and proceedings law; or

  3. Recklessly damages property of another person in an amount

exceeding two hundred fifty dollars.

  Criminal mischief in the fourth degree is a class A misdemeanor.

S 145.05 Criminal mischief in the third degree.

  A person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding two hundred

fifty dollars.

  Criminal mischief in the third degree is a class E felony.

 S 145.10 Criminal mischief in the second degree.

  A person is guilty of criminal mischief in the second degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding one thousand five hundred dollars.

  Criminal mischief in the second degree is a class D felony.

S 145.12 Criminal mischief in the first degree.

  A person is guilty of criminal mischief in the first degree when with

intent to damage property of another person, and having no right to do

so nor any reasonable ground to believe that he has such right, he

damages property of another person by means of an explosive.

  Criminal mischief in the first degree is a class B felony.

Auto Stripping. Where a person is charged with causing damage to an automobile, that person is subject to prosecution for Auto Stripping, even if the vehicle is abandoned. Prosecutors favor securing convictions for Auto Stripping in the Third degree because any future charge for Auto Stripping within 5 years is automatically bumped up to a E felony:

§ 165.09  Auto stripping in the third degree.

    A person is guilty of auto stripping in the third degree when:

    1.  He or she removes or intentionally destroys or defaces any part of a vehicle, other than an abandoned vehicle, as  defined  in  subdivision one of section one thousand two hundred twenty-four of the vehicle and traffic law, without the permission of the owner; or

    2. He or she removes or intentionally destroys or defaces any part of an abandoned  vehicle,  as  defined  in  subdivision one of section one thousand two hundred twenty-four of the vehicle and traffic law,  except that it is a defense to such charge that such person was authorized to do so pursuant to law or by permission of the owner.

    Auto stripping in the third degree is a class A misdemeanor.

Criminal Tampering.

This charge applies when someone breaks a payphone, or unlawfully tampers or makes a connection with property of a gas, electric, sewer, stream, water-works, or with the property of any public carrier or a public utility operated by a municipality or district:

S 145.14 Criminal tampering in the third degree.

  A person is guilty of criminal tampering in the third degree when,

having no right to do so nor any reasonable ground to believe that he

has such right, he tampers with property of another person with intent

to cause substantial inconvenience to such person or to a third person.

  Criminal tampering in the third degree is a class B misdemeanor.

S 145.15 Criminal tampering in the second degree.

  A person is guilty of criminal tampering in the second degree when,

having no right to do so nor any reasonable ground to believe that he

has such right, he tampers or makes connection with property of a gas,

electric, sewer, steam or water-works corporation, telephone or

telegraph corporation, common carrier, or public utility operated by a

municipality or district; except that in any prosecution under this

section, it is an affirmative defense that the defendant did not engage

in such conduct for a larcenous or otherwise unlawful or wrongful

purpose.

  Criminal tampering in the second degree is a class A misdemeanor.

S 145.20 Criminal tampering in the first degree.

  A person is guilty of criminal tampering in the first degree when,

with intent to cause a substantial interruption or impairment of a

service rendered to the public, and having no right to do so nor any

reasonable ground to believe that he has such right, he damages or

tampers with property of a gas, electric, sewer, steam or water-works

corporation, telephone or telegraph corporation, common carrier, or

public utility operated by a municipality or district, and thereby

causes such substantial interruption or impairment of service.

  Criminal tampering in the first degree is a class D felony.

Other possible charges arising out of situations involving property damage:

Reckless Endangerment of Property.

S 145.25 Reckless endangerment of property.

  A person is guilty of reckless endangerment of property when he

recklessly engages in conduct which creates a substantial risk of damage

to the property of another person in an amount exceeding two hundred

fifty dollars.

  Reckless endangerment of property is a class B misdemeanor.

Unlawfully posting advertisments.

S 145.30 Unlawfully posting advertisements.

  1. A person is guilty of unlawfully posting advertisements when,

having no right to do so nor any reasonable ground to believe that he

has such right, he posts, paints or otherwise affixes to the property of

another person any advertisement, poster, notice or other matter

designed to benefit a person other than the owner of the property.

  2. Where such matter consists of a commercial advertisement, it shall

be presumed that the vendor of the specified product, service or

entertainment is a person who placed such advertisement or caused it to

be placed upon the property.

  Unlawfully posting advertisements is a violation.

 Making Graffiti.

If you or anyone you know has been accused of damaging the property of another, contact an experienced criminal attorney immediately. At Galluzzo and Johnson LLP, our team of former prosecutors will work to negotiate the best result possible for you. It is important to have an experienced lawyer represent you in any matter which can result in incarceration, or subject you to having a permanent criminal record.

Many people are arrested for signing someone’s name on a contract, letter, or other writing each year.  However, forgery encapsulates much more than the act of simply another’s name.  In fact, as we can see from the following recent New York forgery news stories, there are several documented cases of forgery which do not fall readily to mind:

• A teacher falsifying a student’s report card;
• A DMV supervisor allowing for cheating on a commercial driver’s license test; and
• Forgery of prescriptions to obtain illegal drugs.

There are many different kinds of “forgery;” however, the purpose of this post will be to explain, in part, the reference of that term in the New York State Penal Law.

Of course, if you have been arrested for Forgery or Criminal Possession of a Forged Instrument in New York, you need to contact a seasoned Manhattan-based lawyer experienced in dealing with forgery cases.  As former prosecutors in the Manhattan D.A.’s office, the lawyers at Galluzzo & Johnson LLP are particularly suited to assist you in defending against any and all such charges.

Article 170 of the New York State Penal defines “Forgery and Related Offenses.”  In order to understand the charge in New York, it is important to look at the definition section of that article.  The definitions of “written instrument,” “complete written instrument,” “incomplete written instrument,” “falsely make,” “falsely complete,” “falsely alter,” “forged instrument,” and “electronic access device” as set forth in PL 170.00 are listed below.

    1.  "Written  instrument"  means  any instrument or article, including
  computer data or a  computer  program,  containing  written  or  printed
  matter  or  the  equivalent  thereof,  used for the purpose of reciting,
  embodying, conveying or recording information, or constituting a  symbol
  or  evidence  of  value,  right,  privilege  or identification, which is
  capable of being used to the advantage or disadvantage of some person.

 2. "Complete written instrument" means one  which  purports  to  be  a
  genuine  written  instrument fully drawn with respect to every essential
  feature thereof. An endorsement, attestation,  acknowledgment  or  other
  similar  signature  or  statement  is  deemed  both  a  complete written
  instrument in itself and a part of the main instrument in  which  it  is
  contained or to which it attaches.

    3.  "Incomplete  written  instrument"  means  one  which contains some
  matter by way of content or authentication but which requires additional
  matter in order to render it a complete written instrument.

    4. "Falsely make." A person "falsely makes" a written instrument  when
  he  makes  or draws a complete written instrument in its entirety, or an
  incomplete  written  instrument,  which  purports  to  be  an  authentic
  creation of its ostensible maker or drawer, but which is not such either
  because  the  ostensible  maker  or  drawer is fictitious or because, if
  real, he did not authorize the making or drawing thereof.

    5.  "Falsely  complete."  A  person  "falsely  completes"  a   written
  instrument  when, by adding, inserting or changing matter, he transforms
  an incomplete written  instrument  into  a  complete  one,  without  the
  authority  of  anyone  entitled  to  grant  it,  so  that  such complete
  instrument appears or purports  to  be  in  all  respects  an  authentic
  creation of or fully authorized by its ostensible maker or drawer.

    6.  "Falsely  alter."  A  person "falsely alters" a written instrument
  when, without the authority of anyone entitled to grant it, he changes a
  written instrument, whether it be in complete  or  incomplete  form,  by
  means  of  erasure,  obliteration,  deletion,  insertion  of new matter,
  transposition of matter, or in any other manner, so that such instrument
  in its thus altered form appears or purports to be in  all  respects  an
  authentic  creation  of  or  fully authorized by its ostensible maker or
  drawer.

    7. "Forged instrument" means  a  written  instrument  which  has  been
  falsely made, completed or altered.

    8.  "Electronic access device" means a mobile identification number or
  electronic serial number that can be used to obtain telephone service.

The basic forgery charge, as set forth in PL 170.05 is as follows:

  § 170.05 Forgery in the third degree.
    A person is guilty of forgery in the third degree when, with intent to
  defraud,  deceive  or  injure  another,  he  falsely makes, completes or
  alters a written instrument.
    Forgery in the third degree is a class A misdemeanor.

It should be noted here that the crime must pertain to the forgery of a written instrument, which, to summarize, would include any document which is capable of being used to the advantage or disadvantage of another person.  This seems like a fairly broad definition, because if you read it broadly, one can make an argument that just about any writing, other than something meant as a joke, could fit this definition.  It is also arguable that writing an email from someone else’s account which purports to be from the account-holder’s address, could technically be a forgery.  The point here is that forgery can be interpreted pretty broadly, and can actually be used to address a wide variety of alleged misconduct.

  § 170.20 Criminal possession of a forged instrument in the third degree.
    A  person  is  guilty of criminal possession of a forged instrument in
  the third degree when, with knowledge that it is forged and with  intent
  to  defraud,  deceive or injure another, he utters or possesses a forged
  instrument.
    Criminal possession of a forged instrument in the third  degree  is  a
  class A misdemeanor.

This charge can apply to cases where a bad check is passed or possessed, and generally speaking is usually tacked on in cases where the defendant is actually found in possession of the forged written instrument.

Finally, there are enhanced penalties in cases where the value of the forgery exceeds certain monetary threshholds.

If you or a loved one have been charged with a forgery-related charge, including identity theft, you should contact experienced forgery defense lawyers in New York.

A desk appearance ticket, or “D.A.T.” as it is commonly referred to, is a written notice issued and subscribed by a police officer or other public servant directing you to appear in criminal court in connection with an alleged offense. It can be issued under certain circumstances when a person is being accused of committing a violation, a misdemeanor, or even a limited selection of felonies. Police will generally not issue a D.A.T. to people who do not possess valid identification, have an arrest record, or are charged with any domestic violence related offense or driving while intoxicated. D.A.T.s are more commonly issued to first time arrestees charged with marijuana possession, shoplifting, and even knife possession.

So what exactly does the appearance ticket mean? The function of the D.A.T. is to secure your appearance before a criminal court judge to potentially face charges for a violation or crime at a future date. People who receive D.A.T.s avoid being put “through the system,” which means they don’t have to sit in jail for roughly 24 hours before being brought before a judge to be arraigned on charges. The only difference is the method in which they are brought to court to face the charges, so the fact that the word “ticket” is involved does not mean that the situation should be taken likely. The recipient of a D.A.T. still faces the threat of prosecution for crimes which can result in a permanent record and even jail, so the end result can be no different than that of the person who is booked and put through the system.

What should you do if you get a desk appearance ticket? Contact a lawyer immediately so that you can be represented on the “return date,” the date that the ticket indicates that you need to be present in criminal court (failure to show up on the return date will result in a bench warrant being issued). When you and your lawyer show up to court you will either find out what offense(s) the District Attorney’s Office is charging you with (which may or may not be the same as the charges that are on the ticket) OR you may be told that your papers are not ready, which means the D.A.’s office did not get around to drawing up the complaint, and you will be told to wait to hear the next date that you need to come back to court.

If the D.A.’s office has filed charges against you, than you will be arraigned on those charges and you will be in the same situation as those who are arrested, booked, and put through the system. Your case may proceed to trial, or a lawyer may be able to enter a plea to a lower charge on your behalf, but you will need an attorney present to do all of these things.

Other than the fact that you will need a lawyer to resolve your case if you end up being formally charged with a crime(s), an added benefit of being accompanied by a lawyer on your return date is that your case will be called much more quickly. For example, in Brooklyn criminal court, there are certain days where all of the D.A.T. matters are heard in one courtroom. The doors to the courtroom open at 9:30 a.m. and hundreds of people rush into the room, put their return sheets in a bin and then have to wait until their case is called in order, which can take all day. D.A.T. recipients accompanied by lawyers are asked to step up and indicate that they are already represented. With a lawyer you can almost certainly guarantee you will not be waiting until 4pm to have your case called.

If you or a loved one has been issued a desk appearance ticket, you should not hesitate to contact an experienced criminal attorney who can represent you on your return date and achieve the best possible outcome for you.

Many juveniles in New York City are arrested every week and given a family court summons for a crime that would otherwise subject him or her to a permanent criminal record.  A juvenile is “defined” in the Penal Law as a person under the age of sixteen years old.  To be more precise, it is actually a defense to a criminal charge that the defendant was less than sixteen at the time the offense was allegedly committed.  See Penal Law 30.00.  Often times juveniles are arrested for such offenses as Criminal Possession of Marijuana in the Fifth Degree, Penal Law 221.10, Unlawful Possession of Marijuana, Penal Law 221.05, Petit Larceny, Penal Law 155.25, Assault in the Third Degree, Penal Law 120.00, Criminal Mischief, Penal Law 145.00, and Making Graffiti, Penal Law 145.60.  However, in other cases, the charges can be more serious, especially where a victim has been killed or seriously injured or a felony charge, such as a drug sale, are involved.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters.  A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing.  The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing.  It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases.  If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases).   The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility.  The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call Galluzzo & Johnson LLP.

In New York state, it is illegal to possess and/or sell marijuana.  Unsurprisingly, the penalties for selling marijuana are generally more severe than they are for merely possessing.  Most people do not realize, however, that the definition of “sell” allows police to charge people with selling marijuana even though the “buyer” did not pay the “seller” any money.  Indeed, the definition of “sell,” from Penal Law Section 220.00(1), means “to sell, exchange, give or dispose or to another, or to offer or agree to do the same.”  (This definition applies to narcotics, controlled substances, and marijuana cases.  See Penal Law Section 221.00).  Thus, simply agreeing to sell marijuana, without money or marijuana changing hands, is encompassed by this definition.  In fact, the definition of sell would allow a police officer to charge someone with selling marijuana for merely giving a joint to a friend, or even for just passing it to another person for him to hold.

The least serious marijuana sale crime is Criminal Sale of Marihuana in the Fifth Degree (Penal Law Section 221.35) (Note: the Penal Law actually still uses the antiquated “marihuana” spelling rather than the more-commonly used “marijuana”).   That crime makes it a Class B misdemeanor punishable by up to 90 days in jail to “knowingly and unlawfully sell, without consideration, one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of two grams or less; or one cigarette containing marijuana.”  In cases where the amount of marihuana sold exceeds two grams or one cigarette, the person can be charged with Criminal Sale of Marihuana in the Fourth Degree, Penal Law Section 221.40, a Class A misdemeanor punishable by up to 1 year in jail.

Serious weight sales can merit felony charges punishable by state prison time.  Specifically,  it is a Class E felony to sell over twenty-five grams of marijuana (Criminal Sale of Marihuana in the Third Degree, Penal Law Section 221.45), a Class D felony to sell more than 4 ounces (Criminal Sale of Marihuana in the Second Degree, Penal Law Section 221.50), and a Class C felony to sell more than sixteen ounces (Criminal Sale of Marihuana in the First Degree, Penal Law Section 221.55).

Finally, it is also a Class D felony to knowingly and unlawfully sell marijuana to a person less then 18 years old (Criminal Sale of Marihuana in the Second Degree, Penal Law Section 221.50).

Undercover police officers routinely arrest people for selling marijuana in buy-and-bust and observation operations.  In the former, undercover officers use pre-recorded buy money to purchase marijuana on the street themselves from suspected dealers. In the latter, officers watch suspected dealers in the hopes of seeing them engage in a marijuana sale, and then attempt to arrest both the buyer and the seller to make their case.

If you or a loved one have been arrested for selling marijuana, or even just given a Desk Appearance Ticket (DAT), you should strongly consider contacting the attorneys at Galluzzo & Johnson LLP.  They have tremendous experience representing individuals charged with these types of cases all over New York City and the surrounding areas, and as former prosecutors, they are intimately familiar with the investigative techniques employed by law enforcement officers.