New York Criminal Defense Blawg

Generally speaking, an offer of an Adjournment in Contemplation of Dismissal (“ACD”) to resolve criminal charges is usually an attractive plea bargain offer to a criminal defendant. After all, pursuant to New York CPL 160.50, individuals receiving ACD’s usually have their cases dismissed and sealed and deemed nullities after six months (or one year in marijuana cases). However, acceptance of an ACD can have negative consequences concerning possible civil lawsuits for wrongful arrests.

As explained in one recent case in federal court, Freedman v. Monticello Police Department, 2003 WL13571 (S.D.N.Y. 2003) (Buchwald, J.), acceptance of an ACD precludes a civil action against police officers (or the municipality that employs them) for malicious prosecution. The reason for this is that an element of the tort of malicious prosecution is a “termination in favor of the accused,” and although an ACD is not an admission of guilt or a conviction, it is not considered to be a “termination in favor of the accused,” either.

That being said, that case also explained that an ACD does not preclude a plaintiff from succeeding on a false arrest claim, as that tort does not require a “termination in favor of the accused” as an element. So, the bottom line is that acceptance of an ACD can have some negative impact on the potential recovery in a lawsuit, but it is not fatal to the possibility of successfully recovering damages.

If you or a loved one believe that you were wrongfully arrested and are interested in pursuing a civil rights lawsuit, you should strongly consider contacting an experienced criminal defense and civil rights attorney immediately.

Federal law makes it a serious crime for certain prohibited persons to possess or sell firearms.  Under federal law, one can also expect to receive a very serious sentence for possessing certain types of illegal firearms or using a firearm in furtherance of some other crime, such as robbery or drug trafficking.  Below is a brief summary of some of the relevant statutes.

I. POSSESSION OF A FIREARM OR AMMUNITION BY A PROHIBITED PERSON

18 USC § 922(g) & (n). Punishable by up to 10 years imprisonment. May receive minimum sentence of 15 years without parole if offender has three or more prior convictions for a felony crime of violence (e.g. burglary, robbery, assault, possession of offensive weapons) and/or drug trafficking felony.

Elements

A. Possession or receipt of a firearm or ammunition;

B. By a subject who falls within one of the following categories:

1. Felon – (Additionally, persons awaiting trial on felony charges are prohibited from receiving firearms.);

2. Drug user or addict – (Often shown where paraphernalia seized, subject tests positive for drugs and/or subject claims drugs were possessed for personal use.);

3. Alien – (Includes illegal aliens and aliens lawfully admitted under non-immigrant visas, i.e., those aliens not admitted for permanent residence. This provision does not prohibit aliens who lawfully possess a so-called “green card” from possessing guns or ammunition.);

4. Is subject to a domestic restraining order – (The order must prohibit contact with an intimate partner, or child of the subject, and must have been issued only after a hearing of which the subject was notified and at which the subject had an opportunity to participate. The order must also find the subject poses a threat to the physical safety of the intimate partner or child or must prohibit the use, threatened use or attempted use of physical force.);

5. Has a prior conviction for domestic assault – (Includes a prior conviction for any assault or threatened use of a deadly weapon against a present or former spouse or partner or child or guardian of any such person. The subject must have been entitled to a jury trial and been represented by counsel in the prior proceeding or be shown to have waived those rights.);

6. Fugitive from justice – (Fled any state to avoid being prosecuted or to avoid testifying in any criminal proceeding.); or

7. Dishonorably discharged from the military; AND

C. The firearm or ammunition was transported across a state line at any time. [Note, that means at any point during the manufacture or supply chain prior to the sale of the firearm or ammunition, meaning that it does not need to have been actually  transported across state lines by the end user or person charged with possessing the items himself/herself).

II. KNOWINGLY SELL, GIVE OR OTHERWISE DISPOSE OF ANY FIREARM OR AMMUNITION TO ANY PERSON WHO FALLS WITHIN ONE OF THE ABOVE CATEGORIES:

18 USC § 922(d). Punishable by up to 10 years imprisonment.

III. USE, CARRY OR POSSESS A FIREARM IN RELATION TO OR IN FURTHERANCE OF A DRUG FELONY OR A FEDERAL CRIME OF VIOLENCE:

18 USC § 924(c). Punishment ranges from at least 5 years up to life imprisonment, without parole, or death if death results from use of firearm. Sentence must be served consecutive to any other sentence. Mandatory minimum sentence increases depending upon: the type of firearm involved (sawed-off gun, silencer, etc.); whether more than one offense was committed; and whether gun was simply possessed or was brandished or discharged.

IV. STOLEN FIREARM, AMMUNITION OR EXPLOSIVE:

18 USC §§842(h); 922(i), (j) & (u). Punishable by up to 10 years imprisonment.

A. May not receive, possess, conceal, store, pledge or accept as security for a loan, barter, sell or ship or transport across a state line any stolen firearm, ammunition or explosive.

B. May not steal or unlawfully take or carry away a firearm from the person or premises of a firearms licensee.

V. FIREARM IN A SCHOOL ZONE:

18 USC § 922(q)(2)(A). Punishable by up to 5 years imprisonment.

A. Except as authorized, may not possess or discharge a firearm in a school zone.

VI. KNOWINGLY POSSESS OR MANUFACTURE:

18 USC § 922(k), (o) & (v); 26 USC § 5861. Punishable by up to 5 or 10 years imprisonment, depending upon specific violation.

A. Any machine gun, fully automatic firearm or any part designed or intended exclusively for use in such weapon;

B. Any firearm silencer, including any device, or part thereof, designed to silence, muffle or diminish the report of a firearm;

C. Sawed-off shotgun with a barrel length of less than 18″ or overall length less than 26″;

D. Sawed-off rifle with a barrel length of less than 16″ or overall length less than 26″;

E. Destructive device;

F. Semi-automatic assault weapon manufactured after October 1, 1993; OR

G. Any firearm which lacks a serial number or contains an altered or obliterated serial number.

VII. SELL, DELIVER OR TRANSFER TO A JUVENILE:

18 USC § 922(x)(1). Punishable by up to 1 year imprisonment unless transferor had reason to believe juvenile would commit crime of violence with gun or ammunition then up to 10 years imprisonment.

18 USC § 922(b). A firearms licensee faces up to 5 years imprisonment.

A. May not sell, deliver or transfer a handgun or handgun-only ammunition to a person who is under age 18;

B. A person under age 18 may not possess a handgun or handgun-only ammunition;

(Certain exceptions apply to A & B, such as where juvenile possesses written permission of a parent.);

C. A firearms licensee may not sell any gun or ammunition to anyone under the age of 18 and may not sell a handgun or handgun ammunition to a person under the age of 21.

DEFINITION OF “FIREARM”:

Any weapon (including a starter gun) which will expel a projectile by means of an explosive or is designed or may be readily converted to do so. This includes the frame or receiver of any such weapon, any firearm muffler or silencer or any destructive device.

A “destructive device” includes any explosive, incendiary or poison gas — (i)bomb; (ii) grenade or (iii) similar device, or any combination of parts designed or intended to be converted into a destructive device, or from which a destructive device may be readily assembled. Does not include black powder or antique type firearms. 18 USC §921(3).

SUMMARY

Many of these offenses can also be prosecuted under state law, but the punishments under federal law tend to be more severe. As a result, many arrests for illegal firearms made by state or local law enforcement get referred to the federal authorities for prosecution under federal law.  Thus, one should never assume that a state-level arrest for an illegal firearm will not ultimately be prosecuted as a federal crime.

If you or a loved one have been arrested for a firearms offense, you should strongly consider contacting an experienced criminal defense attorney immediately, such as these attorneys available here.  

Attorneys are human beings and make mistakes just like everybody else.  Unfortunately for them, those mistakes that result in criminal arrests can have especially dire professional consequences.  In New York, New York State Judiciary Law § 90(4) requires attorneys to immediately report to the bar certain criminal convictions, and certain convictions can result in suspension or disbarment from the practice of law.

Judiciary Law § 90 explains the following:

4. a. Any person being an attorney and counsellor-at-law who shall  be
  convicted  of  a  felony  as defined in paragraph e of this subdivision,
  shall  upon   such   conviction,   cease   to   be   an   attorney   and
  counsellor-at-law, or to be competent to practice law as such.
    b. Whenever any attorney and counsellor-at-law shall be convicted of a
  felony  as  defined  in  paragraph  e  of this subdivision, there may be
  presented to the appellate division of the supreme court a certified  or
  exemplified  copy  of the judgment of such conviction, and thereupon the
  name of the person so convicted shall, by order of the court, be  struck
  from the roll of attorneys.
    c.  Whenever  an  attorney shall be convicted of a crime in a court of
  record of the United States or of  any  state,  territory  or  district,
  including  this state, whether by a plea of guilty or nolo contendere or
  from a verdict after trial or otherwise, the attorney shall file, within
  thirty days thereafter, with  the  appellate  division  of  the  supreme
  court, the record of such conviction.
    The  failure  of  the attorney to so file shall be deemed professional
  misconduct provided, however,  that  the  appellate  division  may  upon
  application of the attorney, grant an extension upon good cause shown.
    d. For purposes of this subdivision, the term serious crime shall mean
  any  criminal  offense denominated a felony under the laws of any state,
  district or territory or of the United States which does not  constitute
  a  felony  under the laws of this state, and any other crime a necessary
  element of which, as determined by statutory or common law definition of
  such crime, includes interference with the  administration  of  justice,
  false swearing, misrepresentation, fraud, willful failure to file income
  tax  returns, deceit, bribery, extortion, misappropriation, theft, or an
  attempt or conspiracy or solicitation of another  to  commit  a  serious
  crime.

e.  For  purposes  of this subdivision, the term felony shall mean any
  criminal offense classified as a felony under the laws of this state  or
  any  criminal  offense  committed  in  any  other  state,  district,  or
  territory of the United States and classified as a felony therein  which
  if committed within this state, would constitute a felony in this state.
    f. Any attorney and counsellor-at-law convicted of a serious crime, as
  defined in paragraph d of this subdivision, whether by plea of guilty or
  nolo  contendere  or  from  a verdict after trial or otherwise, shall be
  suspended upon the receipt by the  appellate  division  of  the  supreme
  court  of  the  record  of  such  conviction until a final order is made
  pursuant to paragraph g of this subdivision.
    Upon good cause shown the appellate division of the supreme court may,
  upon application of the attorney or on its own motion,  set  aside  such
  suspension  when  it  appears  consistent  with  the  maintenance of the
  integrity and honor of the profession, the protection of the public  and
  the interest of justice.
    g.  Upon  a  judgment of conviction against an attorney becoming final
  the appellate division of the supreme court shall order the attorney  to
  show  cause  why  a  final  order of suspension, censure or removal from
  office should not be made.
    h. If the attorney requests a hearing, the appellate division  of  the
  supreme  court shall refer the proceeding to a referee, justice or judge
  appointed  by  the  appellate   division   for   hearing,   report   and
  recommendation.

After  said hearing, the appellate division may impose such discipline
  as it deems proper under the facts and circumstances.
    5.  a.  If  such  removal or debarment was based upon conviction for a
  serious crime or upon a felony conviction as defined in subdivision four
  of this section, and such felony conviction was subsequently reversed or
  pardoned by the president of the United States, or governor of  this  or
  another  state  of  the United States, the appellate division shall have
  power to vacate or modify such order or  debarment,  provided,  however,
  that  if  such  attorney  or  counsellor-at-law  has  been  removed from
  practice in another jurisdiction, a pardon in  said  jurisdiction  shall
  not  be  a  basis  for application for re-admission in this jurisdiction
  unless he shall have been readmitted in the jurisdiction where pardoned.
    b. If such removal or debarment was based upon conviction for a felony
  as defined in subdivision four of this section, the  appellate  division
  shall  have  power  to  vacate or modify such order or debarment after a
  period of seven years provided that such person has not  been  convicted
  of a crime during such seven-year period.

c.  An  attorney  and  counsellor-at-law  who  has been convicted of a
  felony without the state and whose name has been struck from the roll of
  attorneys prior to July thirteenth,  nineteen  hundred  seventy-nine  by
  virtue  of the provisions of subdivision four of this section may, if he
  alleges  that  such  felony  committed  without  the  state  would   not
  constitute  a  felony  if  committed  within  the  state,  petition  the
  appellate division to vacate or modify such debarment. If the  appellate
  division   finds   that   the   felony   of   which   the  attorney  and
  counsellor-at-law  has  been  convicted  without  the  state  would  not
  constitute  a  felony  if  committed  within the state, it shall grant a
  hearing and may retroactively vacate or modify such debarment and impose
  such discipline as  it  deems  just  and  proper  under  the  facts  and
  circumstances.
    The attorney and counsellor-at-law shall petition for reinstatement by
  filing in the appellate division a copy of the order of removal together
  with  a  request  for  a  hearing  pursuant  to  the  provisions of this
  paragraph. Upon such application, the order of removal shall  be  deemed
  an order of suspension for the purposes of a proceeding pursuant to this
  paragraph.
    6.  Before an attorney or counsellor-at-law is suspended or removed as
  prescribed in this section, a copy of the charges against  him  must  be
  delivered  to  him personally within or without the state or, in case it
  is established to the satisfaction  of  the  presiding  justice  of  the
  appellate  division  of the supreme court to which the charges have been
  presented, that he cannot with due diligence be served  personally,  the
  same  may  be  served  upon him by mail, publication or otherwise as the 
  said presiding justice may direct, and he must be allowed an opportunity
  of being heard in his defense. In all cases where the charges are served
  in  any  manner  other   than   personally,   and   the   attorney   and 
  counsellor-at-law  so served does not appear, an application may be made
  by such attorney or in his  behalf  to  the  presiding  justice  of  the 
  appellate  division  of  the  supreme  court  to  whom  the charges were
  presented at any time  within  one  year  after  the  rendition  of  the 
  judgment,  or  final order of suspension or removal, and upon good cause 
  shown and upon such terms as  may  be  deemed  just  by  such  presiding 
  justice,  such  attorney and counsellor-at-law must be allowed to defend
  himself against such charges.

The justices of the appellate division in any judicial department,  or
  a  majority  of  them,  may  make an order directing the expenses of any
  disciplinary proceedings, and the necessary costs and  disbursements  of
  the petitioner in prosecuting such charges, including the expense of any
  preliminary  investigation  in  relation  to  professional conduct of an
  attorney and counsellor-at-law, to be paid out of funds appropriated  to
  the office of court administration for that purpose.
 
  6-a.  a.  Where  the  appellate  division  of supreme court orders the
  censure, suspension from practice or removal from office of an  attorney

or  counsellor-at-law  following  disciplinary  proceedings  at which it
  found, based upon a preponderance of the  legally  admissible  evidence,
  that  such  attorney  or  counsellor-at-law  wilfully misappropriated or
  misapplied money or property in the  practice  of  law,  its  order  may
  require  him or her to make monetary restitution in accordance with this
  subdivision. Its order also may require that he  or  she  reimburse  the
  lawyers'  fund for client protection of the state of New York for awards
  made to the person whose money or property was wilfully  misappropriated
  or misapplied.
    b. Monetary restitution, as authorized hereunder, shall be made to the
  person   whose   money  or  property  was  wilfully  misappropriated  or
  misapplied and shall be for  the  amount  or  value  of  such  money  or
  property,  as  found  in the disciplinary proceedings. In the event that
  such person dies prior to completion of  such  restitution,  any  amount
  remaining to be paid shall be paid to the estate of the deceased.
    c.  Any payment made as restitution pursuant to this subdivision shall
  not limit, preclude or impair any liability for  damages  in  any  civil
  action  or proceeding for an amount in excess of such payment; nor shall
  any order of the appellate division made hereunder  deprive  a  criminal
  court of any authority pursuant to article sixty of the penal law.
    d.  An  order  issued pursuant to this subdivision may be entered as a
  civil judgment. Such judgment shall be enforceable as a  money  judgment
  in  any  court  of competent jurisdiction by any person to whom payments
  are due thereunder, or by the lawyers' fund for client protection  where
  it has been subrogated to the rights of such person.
    e.  Where an attorney or counsellor-at-law is permitted to resign from
  office, the appellate division may, if appropriate, issue  an  order  as
  provided  herein requiring him or her to make payments specified by this
  subdivision.
    f. Notwithstanding any other provision of this subdivision,  no  order
  may  be  issued  hereunder  unless  the person required to make payments
  under such order first is given an opportunity to be heard in opposition
  thereto.

 7. In addition to the duties prescribed by section  seven  hundred  of
  the  county  law, it shall be the duty of any district attorney within a
  department, when so designated by the justices of the appellate division
  of the supreme court in such department,  or  a  majority  of  them,  to
  prosecute all proceedings for the removal or suspension of attorneys and
  counsellors-at-law  or  the  said  justices,  or  a majority of them may
  appoint any attorney and  counsellor-at-law  to  conduct  a  preliminary
  investigation  and to prosecute any disciplinary proceedings and, during
  or upon the termination of the investigation or proceedings, may fix the
  compensation to be paid to such attorney and counsellor-at-law  for  the
  services  rendered,  which  compensation  shall  be a charge against the
  county specified in his certificate and shall be paid thereon.
    8. Any petitioner or respondent in a disciplinary  proceeding  against
  an  attorney  or  counsellor-at-law  under this section, including a bar
  association or any other corporation  or  association,  shall  have  the
  right  to  appeal  to  the  court  of  appeals from a final order of any
  appellate division in such proceeding upon  questions  of  law  involved
  therein,  subject  to  the  limitations  prescribed  by section three of
  article six of the constitution of this state.

Thus, although there are certain expected penalties for felony and “serious crime” convictions, an attorney has the right to request a hearing before a referee, justice or judge on the issue of a suspension or disbarment, and their judgment or recommendation can be appealed.  Notably, an arrest by itself does not need to be reported to the bar, only those sorts of as convictions described above.  However, even in cases in which it is not mandatory for an attorney to make a report – for example, prior to conviction, or in cases that do not result in a criminal conviction, the bar may initiate a fitness inquiry of the attorney based upon the alleged conduct underlying the arrest.

The Judiciary Law further explains:

    9. No objection shall be taken to the appointment of any member of the
  bar to act as referee or judge in a disciplinary proceeding  under  this
  section  on the ground that he is a member of a bar association or other
  corporation or association which is the petitioner therein.
    10.  Any  statute or rule to the contrary notwithstanding, all papers,
  records and documents upon the application or examination of any  person
  for  admission  as  an  attorney  and  counsellor  at  law  and upon any
  complaint, inquiry, investigation or proceeding relating to the  conduct
  or discipline of an attorney or attorneys, shall be sealed and be deemed
  private  and  confidential.  However,  upon  good cause being shown, the
  justices of the appellate division having jurisdiction are empowered, in
  their discretion, by written order, to permit to be divulged all or  any
  part  of  such  papers,  records and documents. In the discretion of the
  presiding or acting presiding justice of said appellate  division,  such
  order  may  be made either without notice to the persons or attorneys to
  be affected thereby or upon such notice to them as  he  may  direct.  In
  furtherance  of  the purpose of this subdivision, said justices are also
  empowered, in their discretion, from time to time to make such rules  as
  they  may  deem necessary. Without regard to the foregoing, in the event
  that charges are sustained by the justices  of  the  appellate  division
  having  jurisdiction  in  any  complaint,  investigation  or  proceeding
  relating to the conduct or discipline of any attorney, the  records  and
  documents in relation thereto shall be deemed public records.

If you or a loved one are an attorney facing criminal charges, it is absolutely crucial that you contact an experienced criminal defense attorney with experience defending other attorneys.

Today, a ferry traveling from New Jersey to Pier 11 in Lower Manhattan and carrying 326 passengers (as well as 5 crew members) crashed into the pier at a high rate of speed causing numerous injuries.  As of the time of this post, two passengers were listed as being in critical condition.  This particular boat, operated by Seastreak LLC, a private ferry company, was involved in a terrible accident in 2003 that killed 11 people.  The question presented now is what sort of criminal or civil liability that company or its crew members might be facing as a result of this accident.

As a preliminary matter, it is virtually certain that dozens, if not hundreds, of passengers will be considering lawsuits against Seastreak for negligence.  Their attorneys will have to determine why the boat crashed (and may have the assistance of the Coast Guard or law enforcement in determining this question) and whether either the operation or maintenance of that boat somehow fell below acceptable minimum standards.  If so, then the passengers injured by the crash can expect significant monetary awards.

Law enforcement may have to determine whether any criminal liability should attach as well.  First and foremost, if any of the passengers ultimately die as a result of injuries sustained in the crash, then employees of the company could theoretically be looking at charges of Criminally Negligent Homicide, a Class E felony under Penal Law Section 125.10, or even worse, Manslaughter in the Second Degree, Penal Law Section 125.15(1) a Class C felony.

A person is guilty of Criminally Negligent Homicide when, with criminal negligence, he causes the death of another person.    ”A person acts with criminal negligence with respect to a result or to a circumstances described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” See Penal Law Section 15.05[4].

A person is guilty of Manslaughter in the Second Degree when he recklessly causes the death of another person.  ”A person acts recklessly with respect to a result or to a circumstances described by a statute defining an offense when he is aware of an consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but is unaware thereof solely by reason of voluntarily intoxication also acts recklessly with respect thereto.”  See Penal Law Section 15.05[3].  The driver of the boat might theoretically be charged with Assault in the Third Degree (Penal Law Section 120.00[3], a Class A misdemeanor) for negligently causing physical injuries to another person or persons by means of a dangerous instrument.

If the operators of the ferry were determined to have acted recklessly, then charges for Reckless Endangerment and Reckless Assault might also apply for any injuries caused to victims that were hurt but not killed.  A person is guilty of Assault in the Third Degree (Penal Law 120.00[2], a Class A misdemeanor) if he “recklessly causes physical injury to another person,” and can be charged with the Class D felony of Assault in the Second Degree (Penal Law 120.05[4]) where he “recklessly causes serious physical injury to another person by means of a … dangerous instrument,” such as a ferry, arguably.

Obviously, if the operators of the vessel were intoxicated at the time of the crash (though there is no such evidence available at this point), then a whole host of other criminal charges could apply as well, particularly under the Vehicular Homicide statutes in Chapter 125.

If you or a loved one were injured in the recent ferry crash, you should strongly consider contacting an experienced attorney to determine whether you may have a viable injury lawsuit against the ferry operators.

Many of our clients come to us after being issued Desk Appearance Tickets (“DAT”‘s) charging them with cocaine or other drug possession (the charge is usually “Criminal Possession of a Controlled Substance in the Seventh Degree” in violation of Penal Law section 220.03).  Most of these clients have just experienced their first arrest and are scared and embarrassed, not only because they’ve been handcuffed and detained for several hours, but because they are currently facing prosecution for a class “A” misdemeanor. The two pressing questions these clients usually have are: “what is going to happen to me” and “am I going to have a permanent mark on my record?” The answer to these questions depends on a variety of factors including the specific facts of the case and the client’s prior arrest history. Obviously, the first step for any person in this situation is to hire a lawyer who is experienced in handling these types of cases so as to avoid incurring any negative marks.

The first inquiry judges and prosecutors tend to make pertains to whether or not this is the client’s first arrest. A person who walks into court with no record will be in a better position to have their case “adjourned in contemplation of dismissal”, meaning the case will be dismissed and then sealed after a period of six months, assuming the client sustains no new arrests during that time. Client’s who receive such adjournments (“ACD”s) are usually required to complete community service or some form of drug treatment. A key benefit to an “ACD” is that there is no allocution (factual admission of guilt) and at the end of the six months the case is dismissed – rendering the arrest and prosecution a nullity. While this is obviously an ideal situation, clients who come into court on their second or third arrests will be less likely to receive such a favorable disposition in their case, and more aggressive steps will need to be taken in order to achieve the same goals. In addition to highlighting a client’s lack of/minimal criminal record, it is also helpful for an attorney to gather information about the client’s employment status, educational background, and any other relevant indicia of good character in order to persuade the judge or prosecutor that the client is deserving of a non-criminal disposition. The important thing to keep in mind is that the facts of every case are different. It’s up to your lawyer to highlight the relevant positive factors when making a solid pitch in order to secure the best positive outcome in any case.

If you or someone you know has been arrested or issued a desk appearance ticket, contact an experienced criminal lawyer immediately and set up a consultation so that you can adequately prepare your defense.

Criminal Contempt charges are very serious and can be quite difficult to defend against in some circumstances.  The overwhelming majority of the Criminal Contempt cases pursued by prosecutors involve violations of orders of protection, and usually are classified as “domestic violence,” meaning that the complainant and defendant are or were in some sort of romantic or familial relationship.

The least serious of these Criminal Contempt charges is Criminal Contempt in the Second Degree, Penal Law § 215.50, a class A misdemeanor punishable by up to one year in prison. The statute reads as follows:

A  person  is guilty of criminal contempt in the second degree when he
  engages in any of the following conduct:
    1. Disorderly, contemptuous, or insolent  behavior,  committed  during
  the  sitting of a court, in its immediate view and presence and directly
  tending to interrupt its proceedings or to impair the respect due to its
  authority; or
    2. Breach of the peace, noise, or other disturbance, directly  tending
  to interrupt a court's proceedings; or
    3.  Intentional  disobedience  or  resistance to the lawful process or
  other mandate of a court except in cases involving  or  growing  out  of
  labor  disputes  as  defined by subdivision two of section seven hundred
  fifty-three-a of the judiciary law; or
    4. Contumacious and unlawful refusal to be sworn as a witness  in  any
  court  proceeding  or, after being sworn, to answer any legal and proper
  interrogatory; or
    5. Knowingly publishing a false or  grossly  inaccurate  report  of  a
  court's proceedings; or
    6.  Intentional failure to obey any mandate, process or notice, issued
  pursuant to articles sixteen, seventeen, eighteen, or eighteen-a of  the
  judiciary  law,  or  to rules adopted pursuant to any such statute or to
  any special statute establishing commissioners of jurors and prescribing
  their duties or who refuses to be sworn as provided therein; or
    7. On or along a public street or sidewalk  within  a  radius  of  two
  hundred  feet  of  any  building  established  as a courthouse, he calls
  aloud, shouts, holds or displays placards or signs containing written or
  printed matter, concerning the conduct of a trial  being  held  in  such
  courthouse  or  the character of the court or jury engaged in such trial
  or calling for or demanding any specified  action  or  determination  by
  such court or jury in connection with such trial.

The most relevant subsection of the above statute is 3, as prosecutions under the other subsections are exceedingly rare.  It is this subsection that is used to prosecute violations of orders of protection, in that an order of protection is a “lawful mandate of a court”. Prosecutors typically prove violations of orders of protection by demonstrating that the defendant against whom an order of protection was in effect made contact in person, over the telephone, or via text message or email, with the person protected by the order.  These cases can be especially strong for a prosecutor because oftentimes the cooperation of the complaining witness is not even necessary to prove the violation.  After all, the prosecutor can sometimes introduce violating emails or telephone records or text messages without calling the complainant as a witness – representatives of the phone company or internet service provider can introduce these records as “business records.”

Sometimes, police officers or third party witnesses discover the complainants and defendants voluntarily being together (even living together) in violation of an order of protection.  In these cases, the defendant can be arrested and convicted even if the complainant witness explains that she invited the defendant over to see her.  This is because the complaining witness does not have the power or authority to negate an order of protection – only a judge can do that.  Thus, a prosecutor can convict a defendant for violating an order of protection – and send him to jail – even in cases in which the complainant badly wishes the defendant not to be convicted. Similarly, a defendant is not legally allowed to respond to a protected complainant via telephone, email or text, even if the complainant reaches out to him and begs him to respond.

The charges can be especially serious when defendants attempt to intimidate, assault or menace the people protected by orders of protection.  For example, Criminal Contempt in the First Degree, Penal Law Section 215.51, makes it a felony – punishable by state prison in excess of one year – where a defendant:

intentionally places or attempts  to  place  a  person  for  whose
  protection  such order was issued in reasonable fear of physical injury,
  serious  physical  injury  or  death  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
    (ii)  intentionally  places  or  attempts  to place a person for whose
  protection such order was issued in reasonable fear of physical  injury,
  serious  physical injury or death by repeatedly following such person or
  engaging in a course of conduct or repeatedly  committing  acts  over  a
  period of time; or
    (iii)  intentionally  places  or  attempts to place a person for whose
  protection such order was issued in reasonable fear of physical  injury,
  serious physical injury or death when he or she communicates or causes a
  communication  to  be  initiated  with  such  person  by  mechanical  or
  electronic means or otherwise, anonymously or otherwise,  by  telephone,
  or by telegraph, mail or any other form of written communication; or
    (iv)  with  intent  to  harass,  annoy, threaten or alarm a person for
  whose protection such order was issued, repeatedly makes telephone calls
  to such person, whether or not a conversation ensues, with no purpose of
  legitimate communication; or
    (v) with intent to harass, annoy, threaten or alarm a person for whose
  protection such order was issued, strikes, shoves,  kicks  or  otherwise
  subjects  such other person to physical contact or attempts or threatens
  to do the same; or
    (vi) by physical menace, intentionally places or attempts to  place  a
  person  for whose protection such order was issued in reasonable fear of
  death, imminent serious physical injury or physical injury.

A defendant can be charged with the even more serious Class D felony of Aggravated Criminal Contempt (Penal Law § 215.52) when he actually causes physically injury to someone protected by an order of protection.  Specifically, a person is guilty of this crime where:

1. in violation of a duly served order of protection, or such order of
  which  the  defendant has actual knowledge because he or she was present
  in court when such order was issued, or an order of protection issued by
  a court of competent  jurisdiction  in  another  state,  territorial  or
  tribal  jurisdiction,  he  or  she  intentionally  or  recklessly causes
  physical injury or  serious  physical  injury  to  a  person  for  whose
  protection such order was issued;

In addition to the potential jail sentences, convictions for Criminal Contempt can have other serious consequences for defendants.  First and foremost, judges routinely set very high bail for defendants with convictions for Criminal Contempt on their “rap sheets” (criminal records).  Also, people previously convicted of Criminal Contempt can face more serious “bump-up” felony charges if they are charged again with Criminal Contempt (see Penal Law Section 215.51[c] and Penal Law Sections 251.52[2] and [3]).

If you or a loved one have been accused of Criminal Contempt, you should strongly consider contacting an experienced criminal defense attorney immediately.

In response to the growing number of criminal incidents involving individuals under the influence of bath salts, both Houses of Congress passed S.3187, which President Obama signed off on shortly thereafter in July 2012. Subtitle D specifically places a federal ban on the use, possession, or manufacturing of synthetic drugs, that up until recently were sold legally in stores.  The compounds mephedrone and methylenedioxypyrovalerone (MDPV) – both contained in what are commonly known as bath salts - were two of the roughly thirty known compounds newly classified under Schedule I of the Controlled Substances Act. In addition, the law bans other compounds that could potentially be produced in the future, or have been created, but are not currently being used by manufacturers.

Are bath salts illegal in New York State?

Yes, although bath salts were once legally sold in stores, this is no longer the case; Gov. Cuomo recently passed legislation adding the ingredients found in bath salts to Schedule I of the Public Health Law. Under New York state law, there are five Schedules of controlled substances (contained in Public Health Law § 3306), and all of the controlled substances listed therein are illegal to possess without a prescription.  Some of the typical ingredients used in bath salts now fall under Schedule I, with methylendioxypyrovalerone (MDPV) being one ingredient in particular and mephedrone being another. Notably, even if the ingredient used is not expressly listed in the Public Health Law under § 3306, under § 3306(a) it states that: “Schedule I shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name, listed in this section.”  Moreover, someone who unlawfully possesses a controlled substance in New York is probably subject to prosecution for some violation of Penal Law Chapter 220. Thus, a possessor of a controlled substance containing a banned ingredient cannot avoid criminal prosecution by claiming that the “street name” of his contraband is not specifically mentioned in the Public Health Law.

I was found in possession of bath salts and arrested – what are the potential consequences for me?

That depends on several factors, most important of which are your criminal record and the quantity of bath salts you possessed at the time of your arrest.  The least serious charge is Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law Section 220.03), a class A misdemeanor punishable by up to one year in prison, that can be applied to any quantity of bath salts.  More serious felony charges can also apply depending on the aggregate weight of the substance.

What happens if I allegedly had intent to sell a controlled substance?

In those cases, you are likely to be charged with a felony.  Follow this link for more on this topic.  Moreover, New York state has recently enacted legislation that allows prosecutors to pursue cases (with civil penalties and fines) against retail establishments that sell the chemical precursors commonly used to make bath salts.

Drug charges and convictions can lead to prison sentences and significant career consequences.  Accordingly, if you or a loved one have been arrested or issued a Desk Appearance Ticket (DAT) for possessing or selling bath salts in New York City, it is essential that you speak to an experienced criminal defense attorney immediately.

Police officers are authorized to use lethal force under various life-threatening scenarios.  But sometimes, they make mistakes and shoot the wrong person, or shoot someone under the wrong circumstances. Police officers that make these sorts of tragic mistakes can face a wide variety of criminal charges, the most serious of which are contained in Chapter 125 of the Penal Law.  Two common charges are Manslaughter and Criminally Negligent Homicide (Penal Law Section 125.10).  The most relevant things to consider are: 1) the facts available to the officer at the time that he made his decision, 2) whether the decision to fire was reasonable under the circumstances, and 3) the harm suffered by the shooting victim.

For example, Ramarley Graham was recently shot and killed because the police officer supposedly believed that Graham had a weapon, though he did not. In the case of Ramarley Graham, the police officer was indicted for first- and second-degree manslaughter (Penal Law Sections 125.15 and 125.20) for recklessly causing the death of a young man in his apartment. Penal Law Chapter 15 explains recklessness thusly: “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.”  Generally speaking, recklessness is more difficult to prove than negligence, and thus the charge of manslaughter is more serious than the charge of criminally negligent homicide (Manslaughter in the First Degree is a Class B violent felony, and Criminally Negligent Homicide is a Class E felony).  Penal Law Chapter 15 further defines negligence: “A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

So, in short, the difference between recklessness and negligence in this context is whether the police officer that fired his weapon consciously disregarded the risk that he was making a mistake and fired anyway, or whether he simply did not realize that there was a risk that he was making a mistake.

In cases in which the shooting victim is not killed, such as in the case of James Austin (who was recently shot as an innocent bystander by some police in Brooklyn) then charges of Assault in the First or Second Degree can also be possible.  In particular, Assault in the Second Degree, Penal Law Section 120.05(4) is typically applicable: A person is guilty of Assault in the Second Degree when “he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.”  Notably, there is no criminal charge for “negligent assault,” though a police officer can still be sued in civil court for negligence in the absence of an applicable criminal charge.

If you or a loved one have been wrongfully shot by a police officer, you should strongly consider contacting an experienced criminal defense and civil rights attorney that has successfully defended complex criminal cases involving police shootings and pursued civil matters in federal court on behalf of the victims of police shootings.

Imagine the following scenario: You get into the back seat of a car with three of your friends – Alex is driving, Brian is in the front passenger seat, Chris is in the back seat behind the driver, and you’re sitting next to Chris behind Brian. The four of you drive off and Alex takes a left turn without signaling. Unfortunately, an unmarked (undercover) police vehicle is parked on the opposite corner and observes the traffic infraction. The police car activates its front grill lights and begins to follow the vehicle, ordering it to pull over. Brian pulls a silver semi-automatic handgun from his waistband, turns around and tosses it at your feet, urging you to kick it under his seat and out of view. You’re shocked – you no idea there was a gun in the car…in a panic, you kick the gun forward and out of sight.

The plain clothes police officers approach the car and ask everyone to step out. One of the officers flashes a light into the interior of the car and sees the reflection of a silver object under the front passenger seat. Without asking a question, he reaches under the seat and retrieves a silver handgun, which he determines to be loaded

Question: How do the police officers determine who to arrest? The answer is easy – they arrest everyone. Alex, Brian, Chris, and you are all jointly charged with Criminal Possession of a Weapon in the Second Degree in violation of Penal Law 265.03(1)(b), which is a class “C” felony, and which carries a maximum of 15 years in jail.

What is the police officers’ authority to do this? The answer is the “gun presumption” or “car presumption,” which allows the police to charge everyone in the car with possessing that one gun pursuant to statute. Penal Law 265.15 states as follows: “The presence in an automobile…of any firearm…is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon…is found.” The statute goes on to exclude the following scenarios:

“Except: (a) if such weapon…is found upon the person of one of the occupants therein;

(b) if such weapon…is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his or her trade, then such presumption shall not apply to the driver;

(c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his or her possession a valid license to have and carry concealed the same.

In other words, if an unlicensed gun is found in a vehicle and not on the person of one of the passengers (e.g., in their waistband), any and all occupants (except a duly licensed hired driver) will be charged with possessing that one gun. The fact that one gun can be “possessed” by more than one person may seem contrary to logic, but the law distinguishes between “possessing” something and owning it. In order to possess something you simply have to exercise “dominion or control” over it…i.e., be able to pick it up, kick it, use it, or hide it. There is no numerical limit on how many people may possess something.

This is a common theme in New York gun possession: even though the gun was “Brian’s,” the police never observed it on him – arguably they’d be eyeing you with more fervor as the owner since it was at your feet when the car was stopped. In any event, EVERY passenger in the case would be facing serious felony charges.

If you or someone you know has been arrested and charged with possessing a gun in a car, or any weapon for that matter, you need to hire an experienced criminal lawyer. Some jurisdictions such as Manhattan have very strict gun enforcement practices and recommend state prison in practically every gun case. Obviously, it is not a matter to take lightly, and it is a must to have an attorney in such a situation.

Departments stores like Macy’s and Bloomingdale’s are some of the most common places for petit larceny arrests to occur.  Similar arrests are also commonplace in such retailers as Century 21 and Saks Fifth Avenue.  Oftentimes a misunderstanding between a customer and overzealous security staff can lead to police involvement — even in cases where customers had absolutely no intent to steal anything at all.  Most often the customer will be a first-time arrestee and receive a Desk Appearance Ticket or a D.A.T.  (DAT).  The ticket will specify a return date where the customer will have to appear in Manhattan Criminal Court at 100 Centre Street or Midtown Community Court at 314 West 54th Street.  At that appearance, a criminal action will commence, and the customer will have to defend his or her case.  To make matters worse, even before the customer appears in court, he or she may receive a letter from Macy’s Loss Prevention stating that civil damages are owed under Section 11-105 of the General Obligation of the New York State Consolidated Laws.

Generally speaking, most people who are arrested at one of these department stores will be charged with violating New York State Penal Law section 155.25 — the Petit Larceny statute.  If, however, the value of the goods exceeds $1000, there is a chance that the case will be deemed and charged as a Grand Larceny under New York Penal Law section 155.30(1).  The latter violation is a felony which would require the indictment of a grand jury to proceed.  In many of those cases, the matter can be negotiated down to a lesser charge with the District Attorney’s office.

If you fall into the category of people unfortunate enough to have been arrested in Macy’s, Bloomingdale’s or another retail or department store, you should contact an attorney experienced in handling department store shoplifting cases who can help you deal with both your criminal case and the civil damages claim.