H and H Bagels Owner Arrested...Cont

February 28, 2015,

Whatever the recipe, the dough was a little too sticky. According to the Manhattan District Attorney’s Office and a Grand Jury has indicted a bagel wholesaler for Grand Larceny, Offering a False Instrument for Filing and violating the labor law through unemployment insurance tax rate manipulation. Prosecutors allege that the bagel wholesaler, the owner of H & H Bagels, collected, but failed to pay, $369,318.77 withheld from his bagel business employees. This occurred during a six year period from 2003 through his arrest in 2009.

According to the Manhattan District Attorney’s Office: “The investigation further revealed that during the period of this criminal indictment, the bagel wholesaler filed State and City withholding tax returns under six successive company names. Sporadically, he made nominal payments to the New York State Department of Taxation and Finance even though he knew he was obligated to turn over all withheld tax. Through shell companies, he committed unemployment insurance tax rate manipulation by transferring a large segment of his workforce from an existing business to a new business for the purpose of obtaining a lower unemployment insurance tax rate. Although he formed a new company, many of the same workers were being employed at the new company and he was able to therefore obtain an advantageous rate for his unemployment insurance payments to the trust fund operated by the New York State Department of Labor.”

The first prosecution of unemployment insurance tax rate manipulation under the New York State Unemployment Tax Act (also known as the SUTA dumping statute) since it became effective on January 1, 2006, it was stated: “This case is a wakeup call to all employers who fail to fulfill their fiduciary obligation to pay over taxes withheld from their employee’s salaries. It also demonstrates how tax evasion hurts our workers when an employer deliberately fails to contribute the appropriate amount into the unemployment insurance trust fund.”

SUTA is the "State Unemployment Tax Act." SUTA Dumping is an attempt to manipulate businesses to get a lower contribution rate. Employers and their representatives engage in criminal SUTA dumping. They do this to get a lower contribution rate than their unemployment experience allows. This is illegal. Employers who meet either of the following conditions are involved in SUTA dumping if they knowingly attempt to manipulate businesses to get a lower contribution rate: Transferring some or all of their workforce to another business when they own, manage or control at least 10% of both businesses. Acquire another business for the sole purpose of getting a lower contribution rate when they were not previously liable for contributions

The Grand Jury indicted the bagel wholesaler on five counts of Grand Larceny in the Second Degree, a class C felony punishable by up to 15 years in prison; one count of Grand Larceny in the Third Degree, a class D felony punishable by up to 7 years in prison; three counts of Filing in the First Degree, a class E felony punishable by up to 4 years in prison; and two counts of a violation of Labor Law 、581(7)(c)(5) (Unemployment Insurance Tax Rate Manipulation), a class E felony also punishable by up to 4 years in prison.

Under the New York Penal Law, grand larceny in the second degree is committed by any person when he steals property and when:

1. The value of the property exceeds fifty thousand dollars; or
2. The property, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely. Grand larceny in the second degree is a class C felony.

Whatever the appropriate defense might be in this case, he should implement that defense immediately. The Money Laundering and Tax Crimes Unit, a highly skilled boutique unit of the Manhattan District Attorney’s Office, is represented by prosecutors and investigators with significant experience in these types of schemes. As is the case for many of these alleged crimes, the longer the matter progresses without ascertaining and implementing one’s defense, the more difficult it is to defend them.

H and H Bagels Owner Arrested

February 27, 2015,

Bagel Man Hides the Dough: H and H Bagels Owner Arrested for General Tax and Unemployment Insurance Tax Fraud

Insurance fraud occurs most often when an insured individual or entity makes a false or exaggerated insurance claim, seeking compensation for injuries or losses that were not actually suffered. Insurance fraud can also be committed upon customers, through 1) the sale of unlicensed or bogus insurance coverage to unsuspecting clients, or 2) an insurance broker or agent's diversion or theft of insurance premiums paid by clients.

Insurance fraud refers to any duplicitous act performed with the intent to obtain an improper payment from an insurer. Insurance fraud is committed by individuals from all walks of life. Law enforcement officials have prosecuted doctors, lawyers, chiropractors, car salesmen, insurance agents and people in positions of trust. Anyone who seeks to benefit from insurance through making inflated or false claims of loss or injury can be prosecuted. The pervasiveness of insurance fraud drives up costs for all consumers and costs the insurance industry billions of dollars each year. One authority estimates that the annual value of insurance fraud approaches $80 billion. Detecting insurance fraud is difficult because of the surreptitious nature by which the criminal perpetrates the fraud.

When someone collects unemployment insurance (UI) benefits by lying to the Department of Labor, he or she is committing fraud. We take UI benefits fraud very seriously. It is a crime that affects businesses and workers. It drives up UI costs to law-abiding businesses, and it leaves honest workers unprotected. We need every dollar to help those who honestly need these benefits.

Some examples of UI benefits fraud include:

• Providing false information or failing to disclose information on your application for benefits, including lying about how you lost your job
• Working while collecting unemployment benefits and inaccurately reporting your days and earnings
• Working any amount of time in a week while collecting benefits and telling us you did not work
• Earning more than $420 from employers in one week where benefits are collected and not correctly reporting true total earnings for that week
• Failing to be ready, willing and able to work (e.g., out of the area, on vacation, sick, suffering total disability) while collecting UI benefits
• Working "off the books" while collecting benefits
• Using another person's identity (e.g., name, social security number) to file fraudulent claims
• Helping another person file a false unemployment insurance claim
• Collaborating with an employer to illegally claim unemployment insurance benefits
Types of Insurance Fraud

Police and prosecutors typically refer to an insurance fraud scheme as either “hard fraud” or “soft fraud.” Hard Fraud: Someone deliberately fakes an accident, injury, theft, arson or other loss to collect money illegally from insurance companies. Crooks often act alone, but increasingly, organized crime rings stage large criminal schemes to steal millions of dollars. Soft Fraud: Normally honest people often tell "little white lies" to their insurance company for the purposes of filing or maximizing a claim. Many people think it's just harmless fudging. But soft fraud is a crime, and raises everyone's insurance costs.

To Be Cont...

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Your Right to Remain Silent...cont

February 26, 2015,

The Court held that the Court of Appeals erred in affirming the exclusion of respondent's initial statement and the gun because of Officer Kraft's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, it also erred in affirming the exclusion of respondent's subsequent statements as illegal fruits of the Miranda violation. This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.

Although criminal respondent was in police custody when he made his statements and the facts come within the ambit of Miranda, nevertheless on these facts there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, as long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it.

The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

We routinely file motions for our clients to obtain hearings to challenge the voluntariness of their statement to the police (this is called a Huntley Hearing). Yet, what role, if any, does sleeplessness or intoxication have on one’s ability to voluntarily give a statement to the police even if you, the accused, believe you are giving a voluntary statement. In other words, does sleeplessness or intoxication negate an otherwise voluntary admission?

A Supreme Court judge sitting in the Criminal Term in Brooklyn (Kings County) New York just dealt with this particular issue as to whether drug use and a lack of sleep could render an otherwise voluntary statement involuntary. In People v. Jeanine Harrington, decided in July 2009, the court found that “the mere fact that a confession is made under such circumstance does not necessarily render the admission inadmissible. It is a factor to be considered in determining whether the confession was, in fact, the product of a rational intellect and a free will.” In this particular case the defendant admitted to smoking crack and DWI being up all night. Even during the interview the defendant fell asleep. That being said, the defendant may have been “strung out,” but was consistent in her answers, did not request that questions be repeated and appeared aware at the time of her questioning.

Although the decision rendered by the court was not analyzed extensively from a legal perspective, it did give genuine insight into the fact that intoxication and sleep deprivation may not render your statement involuntary. The lesson any accused person should take from this case is that instead of regretting what you said and trying to legitimately fight the admissibility of your admission after the fact, it is a “wiser” move to consult with a DWI attorney beforehand. In the event you are unable to do so, asking to speak with an attorney will legally prevent the prosecution or police from questioning you further.

Your Right to Remain Silent

February 24, 2015,

Under the law, the Miranda warning, also referred to as Miranda rights or Miranda rule, is a right to silence warning given by police in the United States to criminal suspects in police custody or in a custodial interrogation before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination.

Miranda Rights were created in 1966 as a result of the United States Supreme Court case of Miranda v. Arizona. The Miranda warning is intended to protect the suspect’s Fifth Amendment right to refuse to answer self-incriminating questions.

It is important to note that Miranda rights do not go into effect until after an arrest is made. The officer is free to ask questions before an arrest, but must inform the suspect that the questioning is voluntary and that he or she is free to leave at any time. The answers to these questions are admissible in court.

If the suspect is placed under arrest and not read Miranda rights, spontaneous or voluntary statements may be used in evidence in court.

In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment and the Sixth Amendment right to counsel, through the incorporation of these rights into state law. Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person's statements as evidence against him or her in a criminal trial.

In the case of NEW YORK v. QUARLES, 467 U.S. 649 (1984) Respondent was charged in a New York state court with criminal possession of a weapon. The record showed that a woman approached two police officers who were on road patrol, told them that she had just been raped, described her assailant, and told them that the man had just entered a nearby supermarket and was carrying a gun. While one of the officers radioed for assistance, the other (Officer Kraft) entered the store and spotted respondent, who matched the description given by the woman. Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that "the gun is over there." Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona, 384 U.S. 436 . Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent's initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent's other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

To Be Cont...

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Grand Larceny in the Fourth Degree – NY Penal Law 155.30(5)

February 23, 2015,

When a Simple Petit Larceny or Petty Theft Becomes a Felony Grand Larceny in New York:

The laws governing larceny will usually contain sentencing options, either a list of possible sentences or a range of years, as well as fines or other alternative sentences. Judges can determine the appropriate sentence by examining the facts of the case and choosing the best penalty that falls within the bounds of the statute.

In a larceny case, the type of larceny will also greatly influence the severity of the sentence. Grand larcenies carry much longer sentences than do petit (or "petty") larcenies. Some states also impose different sentences based on the type of item that the defendant stole.

In New York, a misdemeanor theft or larceny can easily be enhanced to a felony in certain circumstances. In fact, pursuant to New York Penal Law Section 155.30(5), Grand Larceny in the Fourth Degree, it is a felony punishable by up to four years in state prison if you perpetrate the crime commonly known as “Grand Larceny from the Person.”

Under the New York Penal Law, Grand Larceny in the Fourth Degree is committed when a person steals property and that property, regardless of its nature and value, is taken from the person of another.

By contrast, in New York there are several degrees of grand larceny, determined mostly by the value of the stolen property. The penalties for these degrees of grand larcenies range from one to twelve years imprisonment, subject to a judge's discretion. Petit larcenies, however, are misdemeanors and punishable by a prison term of up to a year.

When deciding what sentence to impose within all the possibilities listed under a statute, judges will examine the facts of the case itself, as well as other aggravating and mitigating factors.

Aggravating factors tend to make the crime more serious. They typically include such things as the defendant's criminal history and whether or not the victim was particularly vulnerable, and the presence of aggravating factors usually results in a harsher sentence. Mitigating factors usually influence judges to hand down a more lenient sentence, such as when the defendant has taken responsibility for the crime or has no previous criminal history.

Like most states, New York classifies a theft or larceny crime according to the monetary value of the property involved. Let’s take a closer look at how larceny crimes are defined and penalized under New York law. Theft as Petit Larceny. The lowest-level theft offense in New York is called "petit larceny," or petty theft, which is the unlawful taking of property or services valued at no more than $1,000. New York law classifies petit larceny as a class A misdemeanor. (N.Y. Penal Law § 155.25.)

A sentence for conviction of a class A misdemeanor in New York may include imprisonment for a term not to exceed one year and a fine not to exceed $1,000. Theft as Grand Larceny in the Fourth Degree. If the value of the property or services stolen exceeds $1,000 or if the property is a firearm, motor vehicle, credit/debit card, or a few other specific types of property the offense is grand larceny in the fourth degree, a class E felony under New York law.
Conviction of a class E felony in New York carries a potential sentence of imprisonment for a term not to exceed four years, and a fine not to exceed the greater of $5,000 or double the amount of the offender's gain from the theft. (Penal Law § 70.00(2)(e), § 80.00(1).)
It is important to note that your theft need not be from another’s hand, pocket, wrist, etc. In fact, prosecutors often charge this crime where a person’s bag, backpack or purse is stolen even if the victim is not wearing that purse. Pursuant to People v. Haynes, 91 N.Y.2d 966 (1998), if a person is touching a bag, purse or backpack and a defendant takes that property, then this crime has likely been committed. A little vague, a better way to look at this hypothetical is that if a person is sitting on the strap of their bag or leaning against it as it is hanging over the chair, a defendant can be charged with this crime if they take the bag away as the strap is pulled from underneath or on top of the victim. It is important to note that the taking need not be violent or forceful. In fact, the victim might not know of the theft as the item is pulled away.

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A New York Criminal Defense Overview...cont

February 22, 2015,

135.00 Unlawful Imprisonment, Kidnapping and Custodial Interference; definitions of terms: 1. “Restrain” means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined “without consent” when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement. 2. “Abduct” means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force. 3. “Relative” means a parent, ancestor, brother, sister, uncle or aunt.

Under the New York Criminal Penal Law, Unlawful Imprisonment in the Second Degree is committed when a person who restrains another person. Unlawful Imprisonment in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

A person is guilty of Unlawful Imprisonment in the First Degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury. Unlawful Imprisonment in the First Degree is a class E felony punishable by up to four years in prison.

Unlike the differences between Kidnapping and Unlawful Imprisonment, the differences between Unlawful Imprisonment in the First and Second Degrees stems from the former requiring that the victim be exposed to a risk of serious physical injury. To make matters slight more complicated, serious physical injury has its own definition. Although I will not address that definition in this blog entry, it is important to understand that disfigurement or protracted loss of health falls in this definition. Therefore, if a victim was subject to a black eye or possible cuts and bruises, then the serious physical injury element would not be satisfied.

A New York Criminal Defense Overview

February 21, 2015,

Unlawful Imprisonment in the First (NY Penal Law 135.10) and Second (NY Penal Law 135.05) Degrees:

False imprisonment is the unlawful restraint of a person against her will by someone without legal authority or justification. For example, an armed bank robber yells at the customers to get down on the floor, threatening to shoot them if they try to leave. Since they know they might be killed if they try to leave, they are being held against their will. The captive bank customers may be able to claim damages, and the bank robber may be charged with the crime of false imprisonment. Even the police may be charged with false imprisonment if they exceed their authority such as detaining someone without justification.

It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are “restrain” and “abduct.” Today’s entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.

False imprisonment can come in many forms, including any threat or use of authority that confines you against your will. While physical force is often used, it is not required. Moreover, the restraint of a person may be imposed by physical barriers (such as being locked in a car) or by unreasonable duress (such as holding someone "within the bounds of a fixed area" over a long period of time).

A person claiming false imprisonment must have reasonably believed that he was being confined. A court will determine whether his belief was reasonable by determining what would a reasonable prudent person under similar circumstances would do or believe.

In addition, the person doing the confinement must have intended to confine, and not have the privilege to do so, such as shopkeepers who are permissibly investigating shoplifting at a store or civilians who have witnessed a felony.

To Be Cont...

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Defense Firm Gets Client “Slap on the Wrist” After Alleged Forgery and Grand Larceny

February 20, 2015,

Under the law, 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. More common crimes, like insurance fraud and tax evasion, also constitute white collar crimes.

Fraud and financial crimes are a form of theft/larceny that occur when a person or entity takes money or property, or uses them in an illicit manner, with the intent to gain a benefit from it. These crimes typically involve some form of deceit, subterfuge or the abuse of a position of trust, which distinguishes them from common theft or robbery. In today's complex economy, fraud and financial crimes can take many forms. The resources below will introduce you to the more common forms of financial crimes, such as forgery, credit card fraud, embezzlement and money laundering.

Many white collar crimes are frauds. Fraud is a general type of crime which generally involves deceiving someone for monetary gain. One common type of white collar fraud is securities fraud. Securities fraud is fraud around the trading of securities stocks, for example.

Securities fraud comes in many flavors, but one common type is "insider trading," in which someone with inside information about a company or investment trades on that information in violation of a duty or obligation. For example, an executive knows confidential information about an upcoming company earnings report decides to sell of a chunk of his stock in the company. That would be considered securities fraud, specifically, insider trading.

Another type of securities fraud is when someone seeks investment in a company by knowingly misstating the company’s prospects, health or finances. By luring an investor to put up money based on false or misleading information, the company and individuals within it commit securities fraud. False or misleading statements in public reports from publicly traded companies also can constitute securities fraud. To commit securities fraud, those speaking on behalf of the business must make these false statements with knowledge that they are false, or at least reasonably should know them to be false.

The crime of forgery generally refers to the making of a fake document, the changing of an existing document, or the making of a signature without authorization.

Forgery involves a false document, signature, or other imitation of an object of value used with the intent to deceive another. Those who commit forgery are often charged with the crime of fraud. Documents that can be the object of forgery include contracts, identification cards, and legal certificates. Most states require that forgery be done with the intent to commit fraud or theft/larceny.

The most common form of forgery is signing someone else's name to a check, but objects, data and documents can also be forged. Legal contracts, historical papers, art objects, diplomas, licenses, certificates and identification cards can be forged. Currency and consumer goods can also be forged, but that crime is usually referred to as counterfeiting.

In most jurisdictions, the crime of forgery is not charged unless the forgery is done with intent to deceive or the attempt to commit fraud or larceny. For instance, works of arts can be copied or replicated without any crime being committed unless someone attempted to sell or represent the copies as originals. Then the copies would become illegal forgeries.

Forgery can also involve the creation of fake or fraudulent documents. For example, it can involve photocopying a person’s signature and then artificially placing it on a document without their knowledge or consent. Perhaps the most famous case of forgery in the twentieth century took place in 1983 with the "discovery" of the Hitler diaries.

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Criminal Possession of a Weapon in the Third Degree

February 19, 2015,

Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or (2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or (3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or (5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person's home or place of business; or (6) Such person knowingly possesses any disguised gun; or (7) Such person possesses an assault weapon; or (8) Such person possesses a large capacity ammunition feeding device. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; or (9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or (10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction. Criminal possession of a weapon in the third degree is a class D felony.

Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Federal law regulates gun ownership to some degree, including placing restrictions on the ownership of certain types of firearms. The National Firearms Act (NFA), for instance, places restrictions on the sale or possession of short-barreled shotguns, machine guns, and silencers. In order to purchase one of these "NFA firearms or devices," owners must go through an extensive background check, purchase a tax stamp for the manufacture of the firearm or device, and register the weapon with the Bureau of Alcohol, Tobacco, Firearms, and Explosives' NFA registry. However, it should be noted that some states, including New York and California, have prohibited the ownership of these types of firearms and devices.

States also have laws that either allow or prohibit you from openly carrying a gun in public. These are called "open carry" laws. Generally, states fall into one of four categories: Permissive Open Carry States - Allow you to carry a gun without a permit or license. Licensed Open Carry States - Allow gun owners to carry firearms openly only after they are issued a permit or license. Anomalous Open Carry States - Carrying a gun openly may be generally lawful under state law, but local governments may pass their own gun laws that are more restrictive than the state's laws. Non-Permissive Open Carry States - Carrying a gun openly is against state law, or is legal only in limited circumstances (e.g., while hunting) or when legally used for self-defense.

If you have a prior criminal record and you have been arrested for the misdemeanor offense of Criminal Possession of a Weapon the Fourth Degree do not compound a bad situation. Not only may you be charged with a misdemeanor for possessing the alleged weapon even without the intent to use it unlawfully weapons such as metal knuckles, gravity knives and switchblades are “per se” weapons or automatically considered weapons under NY law regardless of how they are being used, but you may find yourself charged with a felony as well.

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Tampering with Public Records in the First and Second Degrees

February 17, 2015,

Criminal tampering, 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.
Under the New York Penal Law, a person is guilty of Tampering with Public Records in the Second Degree when, knowing that he does not have the authority of anyone entitled to grant it, he knowingly removes, mutilates, destroys, conceals, makes a false entry in or falsely alters any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant. Tampering with Public Records in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

A person is guilty of Tampering with Public Records in the First Degree when, knowing that he does not have the authority of anyone entitled to grant it, and with intent to defraud, he knowingly removes, mutilates, destroys, conceals, makes a false entry in or falsely alters any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant. Tampering with Public Records in the First Degree is a class D felony punishable by up to seven years in state prison.

The crucial difference between these two statutes and facing up to one year in jail or seven years in state prison hinges on only a few words. Those words are intent to defraud. The crime is divided into two degrees. The difference between the two degrees is that Tampering in the First Degree 175.25, unlike Tampering in the Second Degree [、 175.20, requires an intent to defraud. The seeming intent of the revisers was to distinguish, for example, the culpability of a person who tears up a public record in anger, from the person who calculatingly tampers with a public record as part of a fraudulent scheme.” Because of the discrepancy between the two offenses as to potential punishment, it may be central to your defense to challenge whether or not you had the “intent to defraud.” Even before that, however, your criminal defense attorney should examine whether the “public record” in question is in fact a “public record” under the law.

In the case of People v. Moore, defendant appealed from the judgment convicting her of the crimes of grand larceny in the second degree (two counts), grand larceny in the third degree (two counts), computer trespass (two counts), grand larceny in the fourth degree, falsifying business records in the first degree (eight counts), tampering with public records in the first degree (two counts), obstructing governmental administration in the second degree, criminal possession of stolen property in the fifth degree and attempted forgery in the second degree.

Defendant, a clerk and bookkeeper for the Town of Kinderhook, Columbia County, stole several hundred thousand dollars from the Town over a three-year period. She left that employment and performed similar tasks for the Town of Greenport, Columbia County, where she stole over $50,000. Defendant ultimately pleaded guilty to a 20-count indictment charging her with numerous offenses related to the thefts and her efforts to conceal them, with no promises being made as to the sentence. Supreme Court sentenced defendant to an aggregate prison term of 3 to 9 years and ordered her to pay restitution.

Defendant now appeals, arguing solely that the sentence imposed was harsh and excessive. We disagree. Supreme Court acknowledged that it had reviewed the letters written in support of defendant, the presentence investigation report, and indications that her crimes were motivated by a shopping addiction. It questioned her claim of addiction, however, and stressed the scope of her deceit in stealing massive sums of money from the two towns over several years. Under these circumstances, we perceive no extraordinary circumstances nor any abuse in discretion that would warrant a reduction of the sentence in the interest of justice.

The New York criminal defense attorneys and former Manhattan prosecutors with vast experience both prosecuting and defending individuals accused of white collar crimes. While most of the crimes criminal defense lawyers handle in the white collar arena relate to Grand Larceny type offenses, the scope of white collar crimes in New York State and NYC goes well beyond large thefts.

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Pleads to Grand Larceny in Manhattan Court: Must Pay $110,000 in Restitution....cont

February 16, 2015,

In this case, Defendant has failed to allege facts that would amount to denial of effective assistance of counsel. Contrary to Defendant's claim, it is well established that the failure to advise a criminal defendant of potential future sentence enhancements does not render a guilty plea invalid (see People v. Pierre, 80 AD3d 441 [1st Dept 2011]; People v. Watkins, 244 AD2d 269, 270 [1st Dept 1997]. Moreover, a defendant need not be advised of the collateral consequences of his guilty plea such as, "loss of the right to vote or travel abroad, loss of civil service employment, loss of a driver's license, [and] loss of the right to possess firearms" (see People v. Ford, 86 NY2d 397, 403 (1995), overruled on other grounds by People v. Peque, 22 NY3d 168 [*3](2013). [FN2] Thus, even if true, Defendant's allegations would not demonstrate ineffective assistance of counsel. Accordingly, based on the foregoing, Defendant's motion to vacate his conviction is denied without a hearing.

In another case decision, defendant a money adviser at JP Morgan Chase, pleaded guilty earlier today to Grand Larceny after admitting she stole over $100,000 from a client. According to reports, her scheme involved creating an ATM card for the client’s account without his knowledge. At her sentencing, defendant will receive 5 years probation and shall be required to pay back her ill-gotten gains by a specified date.

As a former Manhattan prosecutor who served in the same office that prosecuted defendant, I handled Fraud and Grand Larceny cases well into the multiple millions of dollars. As a criminal defense attorney I have represented clients in Grand Larceny crimes ranging from the tens of thousands of dollars to multiple millions of dollars. Even though I have handled cases on each side of the law, every case requires a unique defense. It is likely that the “paper trail” of evidence was overwhelming in defendant’s case and her approach to the case was to try to mitigate her crime. Was defendant dealing with substance abuse or mental health issues at the time she perpetrated the crime? Did defendant show remorse for her actions? What was her ability to repay back the victim and was he “on board” with the plea? All of these issues, and many more, were likely addressed and presented favorably to the District Attorney’s Office.
Certainly, we do not know what transpired between the defense attorney and the prosecution, but it is not likely in this set of facts that the defendant “challenged” the prosecution to go forward with the case while criminal defendant insisted on her innocence. Instead, it is likely that defendant did quite the opposite by presenting every reason why she should be afforded leniency.

As I have stated numerous times in my entries, sometimes our clients benefit when we fight with “vinegar” and other times we get tremendous results with “honey.” Regardless of our approach, over the past year we have obtained, among many other dispositions, an ACD (dismissal after 6 months) on a Grand Larceny case of $20,000 and a misdemeanor on a Grand Larceny theft involving $25,000. Moreover, two other clients received conditional discharges (no jail or probation) on two Grand Larcenies involving $5,000,000 and $52,000 respectively. Recently, another client had his case “dropped” by prosecutors after he had been investigated for tax fraud in the tens of millions of dollars.

Although the above results avoided criminal records and / or jail for each of our clients, each case is unique, and as noted, requires its own analysis to ascertain the appropriate defense. After all, what might work in one case could hinder your defense in another. Whatever her tactic, however, defendant will remain a free woman and a woman who will be able to move past this terrible incident.

Courts will look at the timing and locations of larcenies to determine whether they formed part of a single activity or multiple activities. If part of a single activity, only one larceny has occurred. If there were multiple activities, however, then there were also multiple larcenies.

The determination of the number of larcenies affects the number and severity of the larceny charges.

Pleads to Grand Larceny in Manhattan Court: Must Pay $110,000 in Restitution

February 15, 2015,

Larceny is what most people think of as common theft: it is the taking of someone else's property without the use of force from a location other than inside their home. Car theft forms a typical instance of larceny. The offense developed under the common law, but most states that still recognize the crime of larceny have codified its elements into their penal code. While each state has its own definition of criminal larceny (or theft), most of them incorporate the following elements in some form.

The Elements of Larceny are the following:

• The unlawful taking and carrying away of Someone else's property
• Without the consent of the owner and with
• The intent to deprive the owner of the property permanently

After a conviction for larceny (also called theft, depending on the state), the trial concludes with the sentencing phase to determine penalties and conditions of the conviction. At sentencing, a number of factors come into play to determine what penalty the defendant will receive. Those factors include the sentencing range laid out in the law itself, aggravating and mitigating factors and, for criminal larceny convictions, whether the crime amounted to grand or petit larceny.

In New York there are several degrees of grand larceny, determined mostly by the value of the stolen property. The penalties for these degrees of grand larcenies range from one to twelve years imprisonment, subject to a judge's discretion. Petit larcenies, however, are misdemeanors and punishable by a prison term of up to a year.

In one case, defendant pled guilty in Bronx Supreme Court to Grand Larceny in the Third Degree (PL §155.35[1]) in exchange for a promised indeterminate sentence of from 1 to 3 years imprisonment. On August 8, 1990, the Court sentenced Defendant to the promised sentence. Defendant did not file a notice of appeal and otherwise has fulfilled the terms of that sentence. However, Defendant is currently serving a 30 year sentence, imposed in 2006, for his conviction of "conspiracy to commit murder for hire and distribution and possession of cocaine" in the Southern District of New York.

Relying on Padilla v. Kentucky, 599 US 356 (2010)[FN1] but not claiming any immigration consequences related to the plea or that he is not a United States citizen, Defendant moves to vacate the New York grand larceny conviction. He alleges that he received ineffective assistance of counsel because his attorney failed to advise him that his guilty plea would have several collateral consequences, including ineligibility for a firearm permit, exclusion from certain aspects of employment, loss of housing, preclusion from voting while on parole/probation and potential future sentence enhancements on newly committed crimes.
Preliminarily, the People submit that Defendant has failed to sufficiently corroborate his claim in that he has failed to provide an affirmation from his attorney, Raymond Loving. Thus, pursuant to CPL §440.30(4)(d), the Court may deny Defendant's motion if an "allegation of fact essential to support the motion" is "made solely by the defendant." Furthermore, the People maintain that a defendant need not be advised of the collateral consequences of a guilty plea.
Pursuant to CPL §440.30(4)(a), upon considering the merits of the instant prayer, a court may deny a motion to vacate a conviction, without conducting a hearing, if the moving papers do not allege any ground constituting legal basis for the motion. In other words, even if the herein allegations are true, they do not establish any of the grounds for relief set forth in CPL §440.10(1).

To Be Cont...

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