Identity Theft in the Third Degree

January 28, 2015,

Under the New York Penal Law, a person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons; or 2. commits a class A misdemeanor or higher level crime. Identity theft in the third degree is a class A misdemeanor.

Throughout New York City, from Manhattan and the Bronx to Queens and Brooklyn, prosecutors have seen an enormous increase in crimes relating to Identity Theft pursuant to New York Penal Law sections 190.78, 190.79 and 190.80. This increase in related crimes has resulted in extensive investigations and indictments of single individuals as well as global organizations such as the Western Express Cybercrime Group and its members. As a former Manhattan prosecutor who was the most senior ADA assigned to the Identity Theft Major Case Section upon that unit’s creation, I not only have extensive experience prosecuting and building cases against those accused of Identity Theft crimes, but representing those charged with these offenses as well. Before discussing scenarios involving these offenses, this entry will deal specifically with the crime of Identity Theft in the Third Degree (NY Penal Law 190.78) and the relevant underlying definitions. Future entries will address Identity Theft in the Second (NY Penal Law 190.79) and First Degree (NY Penal Law 190.80).

Under the New York Penal Law, offenses involving theft of identity; definitions. 1. For the purposes of sections 190.78, 190.79 and 190.80 of this article “personal identifying information” means a person’s name, address, telephone number, date of birth, driver’s license number, social security number, place of employment, mother’s maiden name, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person. 2. For the purposes of sections 190.78, 190.79, 190.80, 190.81, 190.82 and 190.83 of this article: a. “electronic signature” shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law. b. “personal identification number” means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person.

A New York Criminal Lawyer said that, Identity Theft involves knowingly assuming the identity of someone else by acting like them or using their personal information of theirs to commit fraud. It is similar to other fraud charges under New York criminal law. There are a variety of situations that can lead to identity theft charges. Identity theft can involve a misuse of identification to defraud, or steal money or property. It is also considered identity theft if an individual fraudulently represents themselves to get a job for which they are not legally qualified for, as in various immigration situations or other legal restrictions. There may be other reasons or motivations for one to “steal” the identity of another that may be prosecutable by law.


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Money Laundering in New York

January 26, 2015,

White collar crime" can describe a wide variety of crimes, but they all typically involve crime committed through deceit and motivated by financial gain. The most common white collar crimes are various types of fraud, embezzlement, tax evasion and money laundering. Many types of scams and frauds fall into the bucket of white collar crime, including Ponzi schemes and securities fraud such as insider trading.

Money laundering targets the specific act of concealing, or attempting to conceal, the ill-begotten proceeds of criminal activity. Courts have ruled that there must be some criminal activity involved that produced the profits before it can be money laundering. If, for example, you make $10,000 by selling a car and then try to hide that money from the IRS at tax time, you haven't committed money laundering. You've violated tax laws, but because the sale of the car was legal your actions do not count as money laundering.

According to New York Penal Law Section 470.25(1) a person convicted of Money Laundering under New York Penal Law Sections 470.05, 470.10, 470.15 or 470.20, may be sentenced to pay a fine up to “two times the monetary instruments which are the proceeds of specified criminal conduct.” It is the court that makes the finding or determination as to the value of the monetary instrument(s).

In determining how much a fine should be, the courts may examine many factors including: (1) the seriousness of the conduct, (2) whether the amount of the fine is disproportionate to the conduct in which the defendant is engaged, (3) the crime’s impact on the victims, and (4) the economic circumstances of the convicted person including the effect of the imposition of such a fine on the convicted person’s family.

It is important to note that according to NY Penal Law Section 470.25(2) that a fine levied against an individual based on NY Penal Law Section 470.25(1), “shall preclude the imposition of any other order or judgment of forfeiture or fine based on the same criminal conduct.”

Money Laundering in New York

January 24, 2015,

Money laundering statutes make it a crime to transfer money derived from almost any criminal activity (including organized crime, white-collar offenses, and drug transactions) into seemingly legitimate channels, in an attempt to disguise the origin of the funds. Money laundering occurs whenever a person attempts to conceal the source, destination, or identity of illegally obtained or acquired money. Money laundering is criminalized under both state and federal laws.

Money laundering applies when a person attempts to conceal illegally obtained funds, but it doesn't include merely spending money. If, for example, you make $1,000 selling stolen goods and then go out and buy something, you have not laundered any money. Though you have committed the crime of dealing in stolen goods, to be convicted of money laundering you'd need to try to conceal or disguise where the money originated, or otherwise disguise it.

The Supreme Court has ruled that in order to prove federal money laundering charges, prosecutors must show a person concealed money specifically to conceal the location, ownership, source, nature, or control of the money. It isn't money laundering, for example, to try to conceal money during transportation by putting it in a hidden place. Laundering would involve taking that money and trying to make it appear as if it came from a legitimate source.

As a former Manhattan prosecutor and a founding white collar criminal defense lawyer at Crotty Saland PC, I can confidently assert that District Attorney’s in NYC vigorously pursue all crimes. However, the reality of the financial crisis lends credence to the argument that white collar crimes, such as Money Laundering, are appealing targets of law enforcement due to the potential asset forfeiture or fines that can be levied against defendants. In the realm of Money Laundering, pursuant to NY Penal Law Sections 470.05, 470.10, 470.15 or 470.20, DWI prosecutors have the ability, based on statutes, to “disgorge” those convicted of this crime. In fact, pursuant to NY Penal Law Section 470.25, individuals convicted of Money Laundering can be fined in a significant amount in addition to other penalties including terms of state prison.

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Insurance Fraud in the Fifth through First Degree...cont

January 22, 2015,


Health care criminal fraud in the fourth degree under New York Penal Law S 177.10 states that: A person is guilty of health care fraud in the fourth degree when such person, on one or more occasions, commits the crime of health care fraud in the fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds three thousand dollars in the aggregate. Health care fraud in the fourth degree is a class E felony.

Health care fraud in the third degree under New York Penal Law S 177.15 states that: A person is guilty of health care fraud in the third degree when such person, on one or more occasions, commits the crime of health care fraud in the fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds ten thousand dollars in the aggregate. Health care fraud in the third degree is a class D criminal felony.

Health care fraud in the second degree under New York Penal Law S 177.20 states that: A person is guilty of health care fraud in the second degree when such person, on one or more occasions, commits the crime of health care fraud in the fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds fifty thousand dollars in the aggregate. Health care fraud in the second degree is a class C felony.

Health care fraud in the first degree under New York Penal Law S 177.25, states that: A person is guilty of health care fraud in the first degree when such person, on one or more occasions, commits the crime of health care fraud in the fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds one million dollars in the aggregate. Health care fraud in the first degree is a class B felony.

Health care fraud: affirmative defense, under New York Penal Law S 177.30 states that: In any prosecution under this article, it shall be an affirmative defense that the defendant was a clerk, bookkeeper or other employee, other than an employee charged with the active management and control, in an executive capacity, of the affairs of the corporation, who, without personal benefit, merely executed the orders of his or her employer or of a superior employee generally authorized to direct his or her activities.

Having a counsel can assist you with the following issues pertaining to your case; the prosecution in a medical fraud case must prove that the defendant acted with the intent to defraud a private or public insurer (or other health plan). The prosecution must also prove that the defendant knowingly and willfully provided false information for the purpose of requesting payment from a health plan for a healthcare item or service and, as a result, the defendant or another person received payment in an unjustified or excessive amount.

On discovery issues, because most medical fraud claims relate to the false or exaggerated medical conditions, discovery sometimes focuses on the health and diagnosis of an individual or group of individuals.

The key witnesses, Insurance experts and medical doctors are usually the primary expert witnesses relied upon in a medical fraud case.

Insurance Fraud in the Fifth through First Degree

January 20, 2015,

Fraud is stealing, which is a crime, and it is a crime that affects everyone. When people commit health care fraud crimes, those actions contribute to rising costs of health care. Reducing health care fraud and abuse can help contain rising health care costs.

The most common kind of fraud involves a false statement, misrepresentation or deliberate omission that is critical to the determination of benefits payable. The most common examples of health care fraud include, but are not limited to:

1.)Billing for services, procedures and/or supplies that were not provided;

2.) Ordering services that are unnecessary or unwarranted for the purpose of financial gain;

3.) the intentional misrepresentation of any of the following for purposes of manipulating the benefits payable: a.)The nature of services, procedures and/or supplies provided; b.) The dates on which the services and/or treatments were rendered; c.) The medical record of service and/or treatment provided; d.) The condition treated or diagnosis made; e.) The charges or reimbursement for services, procedures, and/or supplies provided; f.) The identity of the provider or the recipient of services, procedures and/or supplies.

By its nature, health care fraud revolves around the exploitation of patients and their health insurance information, and as such, it involves much more than financial loss. Fraud also involved the creation of false medical histories for the persons in whose names those false claims are filed. Depending on the nature of the fraud, some providers put patients at physical risk solely for the purpose of generating falsified claims.

The cost of health insurance fraud and abuse is estimated to be as much as $54 billion dollars each year. Efforts to identify and report fraud can save tens of millions of dollars. That’s why New York's health insurers, working with the New York Health Plan Association and the National Health Care Anti-Fraud Association, are joining together in a campaign to educate the public about fraud and its costs and to get consumers involved in the effort to reduce fraud.
Definition of terms on Health care fraud under New York Penal Law S 177.00 states that: The following definitions are applicable to this article: 1. "Health plan" means any publicly or privately funded health insurance or managed care plan or contract, under which any health care item or service is provided, and through which payment may be made to the person who provided the health care item or service. The state's medical assistance program (Medicaid) shall be considered a single health plan. For purposes of this criminal article, a payment made pursuant to the state's managed care program as defined in paragraph (c) of subdivision one of section three hundred sixty-four-j of the social services law shall be deemed a payment by the state's medical assistance program (Medicaid).

2. "Person" means any individual or entity, other than a recipient of a health care item or service under a health plan unless such recipient acts as an accessory to such an individual or entity.

New York Criminal Penal Law S 177.05 on Health care fraud in the fifth degree, states that: A person is guilty of health care fraud in the fifth degree when, with intent to defraud a health plan, he or she knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information or omission, he or she or another person receives payment in an amount that he, she or such other person is not entitled to under the circumstances. Health care fraud in the fifth degree is a class A misdemeanor.


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Nurses, Physicians, Architects and other Professionals...cont

January 18, 2015,

Employers can ask job applicants whether they have been convicted of a crime although federal anti-discrimination laws place some restrictions on the use of criminal histories. State law also prohibits employers, including the state and its political subdivisions, from taking certain actions against people who have their conviction records erased by an absolute pardon.
Many statutes authorize government agencies to revoke or suspend licenses or permits for conviction of a felony. But the law also restricts the ability of agencies to do so. A person is not “disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate, or registration is required to be issued by the state of Connecticut or any of its burglary agencies solely because of a prior conviction of a crime” (CGS § 46a-80(a)).

Connecticut law declares a public policy of encouraging employers to hire qualified ex-offenders (CGS § 46a-79). A person is not disqualified from state employment solely because of a prior conviction of a sex crimes. The state can deny employment or a license, permit, certificate, or registration if the person is found unsuitable after considering (1) the nature of the crime, (2) information pertaining to the degree of rehabilitation of the person, and (3) the time elapsed since the conviction or release (CGS § 46a-80). These statutes (CGS § 46a-79 et seq. ) prevail over agencies’ authority to deny licenses based on the lack of good moral character and to suspend or revoke licenses based on conviction of a crime. But they do not apply to law enforcement agencies, although an agency can adopt such a policy (CGS § 46a-81).

Many licensing and permit statutes authorize an agency to suspend or revoke a license or permit based on conviction of a felony, including the following. 1. Architects (CGS § 20-294). 2. Private detectives, watchmen, guards, and patrol services (CGS § 29-158). 3. Professions under the jurisdiction of the Department of Public Health specifically including healing arts, medicine and surgery, osteopathy, chiropractic, natureopathy, podiatry, physical therapists, nursing, nurse’s aides, dentistry, optometry, opticians, psychologists, marital and family therapists, clinical social workers, professional counselors, veterinary medicine, massage therapists, dietician-nutritionists, acupuncturists, paramedics, embalmers and funeral directors, barbers, hairdressers and cosmeticians, and hypertrichologists (CGS § 19-17 and various other statutes). 4. Attorneys (CGS § 51-91a). 5. Judges, family support magistrates, workers’ compensation commissioners (CGS § 51-51i). 6. Radiographers and radiologic technologists (CGS § 20-74cc). 7. Midwives (CGS § 20-86h). 8. Licensees for (a) electrical work; (b) plumbing and piping work; (c) solar, heating, piping, and cooling work; (d) elevator installation, repair, and maintenance work; (e) fire protection sprinkler systems work; (f) irrigation work; and (g) sheet metal work (CGS § 20-334). 9. Major contractors (CGS § 20-341gg). 10. Lead abatement consultants, contractors, and workers (CGS § 20-481). 11. Public Service Gas Technicians (CGS § 20-540). 12. Public Accountants (CGS § 20-281a). 13. Psychologists (CGS § 20-192). 14. Individuals and businesses selling insurance (CGS § 38a-702k)

In addition, statutes prohibit licensing a convicted felon as a pawnbroker (CGS § 21-40) or a professional bondsman (CGS § 29-145). A person convicted of a felony cannot be employed as an agent, operator, assistant, guard, watchman, or patrolman, subject to the general state policy (CGS § 29-156a). The Department of Consumer Protection can suspend, revoke, or refuse to grant or renew a permit for the sale of alcoholic liquor if convicted of a felony (CGS § 30-47).

CGS § 19a-80 allows the Public Health commissioner to suspend or revoke a day care provider's license if any employee having direct contact with children has been convicted of any felony in which the victim is under age 18.

In the past year alone, the Manhattan based criminal defense firm has represented a significant number of professionals including physicians, nurses, teachers and architects in addition to lawyers and individuals employed in finance. For many of these professionals, there are serious issues that may arise from a criminal case beyond the potential of incarceration.

For certain professionals, New York State requires that they certify and meet licensing requirements. The Office of the Professions is a tremendous source of information and includes applications that may be downloaded for re-certification and licensing. Even if you do not need to re-certify, you and your attorney can review the applications for particular professions to ascertain what an acceptable disposition for your case is as it relates to your career. It is important to note, however, that these licensing requirements are not the only place you should look. If, for example, you are employed by a hospital, that hospital may have additional reporting requirements relating to arrests and/or convictions. Therefore, it is imperative to not only review the information retrieved from the Office of the Professions website, but the literature, contracts, and licensing requirements from you specific employer.

Nurses, Physicians, Architects and other Professionals

January 16, 2015,

Nurses, Physicians, Architects and other Professionals: What are the Reporting Requirements / Ramifications of an Arrest or Conviction?


A New York Criminal Lawyer said that, criminal arrests are upsetting to everyone but can be particularly problematic for financial and securities professionals because of the possible employment and licensure consequences. Brokers, traders, bankers, financial advisors, and other financial professionals typically have to be licensed through FINRA, the Financial Industry Regulatory Authority. Some of the most common licenses include Series 7 and Series 63, but there are many. For those licensed professionals, criminal arrests and convictions may trigger updating of the U4 FINRA form.

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.

The rule provides that, 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 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 sex 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.

A convicted felon: 1. loses the right to become an elector and cannot vote, hold public office, or run for office, although he can have these rights restored; 2. is disqualified from jury service for seven years, or while he is a defendant in a pending felony case (CGS § 51-217); 3. loses the ability to have firearms; and 4. could lose a professional license or permit, although licensing agencies are restricted in their ability to revoke licenses because a person cannot be disqualified from engaging in any occupation, profession, or business for which a state license or permit is required solely because of a prior conviction of a crime except under certain conditions.

To Be Cont...

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NY Criminal Defense & Criminal Possession of a Weapon...cont

January 14, 2015,

A New York Criminal Lawyer said that, conviction of a criminal possession of a weapon case can also create significant problems for a defendant who is not a citizen, even if the defendant is a legal resident. Weapons (especially guns) convictions can cause a non-citizen to be deported, denied citizenship, or excluded from legal entry to the United States at the border. This can be true even if the conviction is for the A misdemeanor criminal possession of a weapon in the fourth degree. Of course a qualified immigration lawyer needs to be consulted with respect to any individual situation, but a non-citizen who is contemplating pleading guilty even to the misdemeanor form of criminal possession of a weapon needs to be aware of the potential difficulties.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter, must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”

The Court answered the question of knowledge by finding that “although the statute includes no express element of mental culpability and the offense has often been referred to as a crime of ‘strict liability,’ existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon.”

Even beyond the Court’s decision that knowledge is an element of the crime, a review of the jury instructions for the charge of 265.01 as it relates to switchblade knives further illustrates the knowledge requirement. A person is guilty of violating this statute when “that person knowingly possesses any switchblade knife.” The jury charge also states that “a person knowingly possesses a switchblade knife when that person is aware that he or she is in possession of such switchblade knife.

Although the First Department’s apparently requires that some form of knowledge be established for a conviction of this offense, each case needs to be examined on an individual basis. Whether there is a valid defense or not, your criminal counsel must do his “homework” and ascertain the strongest approach to protecting your rights. This case and others like it may be that defense you are looking for.

NY Criminal Defense & Criminal Possession of a Weapon

January 13, 2015,

In New York criminal possession of a weapon, for the purposes of "gun cases" is classified into three "degrees" or levels of seriousness. Criminal Possession of a Weapon in the Second Degree, Third Degree, and Fourth Degree. Criminal Possession of a Weapon in the Second Degree is a class C felony, Third Degree is a class D felony, and Fourth Degree is a class A misdemeanor. The class C felony is punishable by a maximum of 15 years in prison, the D felony by a maximum of 7 years in prison, and the A misdemeanor by a maximum of 1 year in jail. Also, there is a theoretical 1 year mandatory jail sentence on any felony gun conviction.

Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sand club, wrist-brace type slingshot or slingshot, shirked or "Kung Fu star"; or (2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or (3); or (4) He possesses a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense; or (5) He possesses any dangerous or deadly weapon and is not a citizen of the United States; or (6) He is a person who has been certified not suitable to possess a rifle or shotgun, as defined in subdivision sixteen of section 265.00, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer. Whenever a person is certified not suitable to possess a rifle or shotgun, a member of the police department to which such certification is made, or of the state police, shall forthwith seize any rifle or shotgun possessed by such person. A rifle or shotgun seized as herein provided shall not be destroyed, but shall be delivered to the headquarters of such police department, or state police, and there retained until the aforesaid certificate has been rescinded by the director or physician in charge, or other disposition of such rifle or shotgun has been ordered or authorized by a court of competent jurisdiction. (7) He knowingly possesses a bullet containing an explosive substance designed to detonate upon impact. (8) He possesses any armor piercing ammunition with intent to use the same unlawfully against another. Criminal possession of a weapon in the fourth degree is a class A misdemeanor.

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because.

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NY Penal Law 220.03, 221.10 and 221.40 ...cont

January 11, 2015,


In People v. Pernell Nunn, , decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether “the exercise of the court’s discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant’s constitutional right to due process? The answer and the case after the jump. Citing the Matter of Jahron S, 79 NY2d 632 (1992), a case involving the possession of drugs, Judge Wilson observed that “‘opinion as to the content of the vials containing alleged controlled substances is legally insufficient because it does not by itself establish the existence of a controlled substance.’ Id at 636. (Emphasis added.) This was the case even if the officer asserted that the substance recovered was crack cocaine based upon his ‘training and experience.'” In other words, to make the complaint sufficient, a laboratory analysis or field test was needed. However, Judge Wilson also recognized that this requirement was not a rule set in stone and that the Court of Appeals left “open the possibility that a deposition based on personal knowledge and expertness may, in unforeseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or its elements, or the special knowledge of the affiant” even without the accompanying chemical analysis. Id. At 640

Judge Wilson ultimately strayed from Kalin finding that due process trumps the ruling in that case. More specifically, the court feared that failure to provide a laboratory report or field test to confirm the presence of the drug would often lead to the incarceration of people and their unjust deprivation of their liberty and rights for extended periods of time prior to having the opportunity to have a trial on their matter.

The court concluded :“In fact, if Kalin is used to excuse the People from producing a field test or laboratory analysis before conversion of the complaint in all cases, there is a substantial risk of our participation in an ‘unchecked system of detention,’ which would carry ‘the potential to become a means for oppression and abuse.’ As stated in the dissent to Kalin, the Criminal Courts of the State of New York must continue ‘to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant.’ “Thus, in an effort to insure that each defendant receives the procedural due process they are guaranteed under the New York State and Federal Constitutions, this Court will continue to require the People to file a laboratory report or field test before a prima facie case is established in the majority of drug-related cases.”

NY Penal Law 220.03, 221.10 and 221.40 ...cont

January 10, 2015,


There are many tactics used by law enforcement to justify a drug possession charge, the process from the moment an arrest or “DAT” (Desk Appearance Ticket) is issued will be critical to the outcome of your case. While law enforcement sends the substance recovered from you to the lab to determine what it is, and whether the amount you had on your person is enough to charge you with a felony drug charge, you should be working actively with your criminal defense attorney before the first appearance.

After the Court of Appeal’s recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the “policy” that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant’s constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

The Controlled Substances Act is the federal drug policy that regulates the manufacture and distribution of controlled substances such as hallucinogens, narcotics, depressants, and stimulants. The Act categorizes drugs into five “Schedules” or classifications based on their potential for abuse, status in international treaties, and any medical benefits they may provide. Drugs classified in Schedule 1 are considered the most harmful substances with no medical benefits, and the rest descend from there: Schedule 1: Examples of Schedule 1 drugs include Ecstasy, LSD, and Heroin. Marijuana is also considered a Schedule 1 drug despite several studies done on its medical benefits. Schedule 2: Examples of Schedule 2 drugs include Cocaine and Morphine. Schedule 3: Examples of Schedule 3 drugs include Anabolic steroids, Vicodin, and Marinol, which is used to treat nausea caused by chemotherapy. Schedule 4: Examples of Schedule 4 drugs include Ambien, Xanax, and Valium. Schedule 5: Examples of Schedule 5 drugs include Lyrica and cough suppressants.


To Be Cont...

NY Penal Law 220.03, 221.10 and 221.40

January 9, 2015,

Possession or distribution of illegal drugs is considered a crime under federal and state laws which can result in criminal prosecution. The manufacturing of illegal drugs is considered a felony. The consequences of a conviction can include hefty fines and prison time. In addition, those who help to produce any kind of illegal drug may also be charged with the crime and are typically subject to consequences that are much more severe than possession of a drug for personal use.

Under the New York Penal Law, a person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to section thirty-three hundred eighty-one of the public health law; nor shall it be a violation of this section when a person's unlawful possession of a controlled substance is discovered as a result of seeking immediate health care as defined in paragraph (b) of subdivision three of section 220.78 of the penal law, for either another person or him or herself because such person is experiencing a drug or alcohol overdose or other life threatening medical emergency as defined in paragraph (a) of subdivision three of section 220.78 of the penal law. Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

Conviction of a Class A Misdemeanor for criminal possession of a controlled substance could result in up to 1 year in jail. The criminal defense attorneys at E. Stewart Jones are ready and able to defend your misdemeanor drug cases. It should be noted that if the possession charge is accompanied by another misdemeanor or felony charge, or preceded by previous charges or convictions, time in jail or prison can increase significantly. Our attorneys will work hard to present a strong defense to minimize time in jail, fines and or penalties.

Generally, a controlled substance is an illegal drug that can have a detrimental effect on a person's health and welfare. As a result, state and federal governments have seen fit to regulate these substances. A person caught possessing a controlled substance can be fined and held in prison by local, state, and federal law enforcement.

However, not all controlled substances are illegal in all circumstances many are prescribed to the general public and sold through pharmacies and dispensaries for legitimate medical treatment. To determine if a particular drug is legal, you should refer to the federal controlled substance schedules. Read on to learn more about the different controlled substances schedules and how state and federal governments enforce controlled substance laws.

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