Articles Posted in Criminal Procedure

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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.

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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.

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Perjury is considered a crime against justice, since lying under oath compromises the authority of courts, grand juries, governing bodies, and public officials. Other crimes against justice include Criminal Contempt of Court, Probation Violation, and tampering with evidence.

Perjury has become a part of everyday vernacular in New York and throughout the United States. Whether you sign something under “Penalty of Perjury” or you watch Law and Order, Perjury pops up everywhere. So, instead of rushing out to a criminal defense attorney after you have been charged, the following is a “primer” on the law of Perjury.

Under the New York Penal Law, a person is guilty of Perjury in the Third Degree when he swears falsely. Perjury in the Third Degree is a class A misdemeanor punishable by up to 1 year in jail.

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A person commits the crime of perjury in its most basic form when he or she “swears falsely.” Section 210 of the New York Criminal Penal Code defines the act of swearing falsely as occurring when a person makes a false statement which he or she does not believe to be true while either giving testimony or under oath in a subscribed written instrument (such as an affidavit or deposition). The seriousness of a perjury offense may increase depending on such factors as the materiality of the statement to the action, proceeding or matter involved; the setting where the criminal statement is made; and whether the law required that such statement be made under oath.

210.00 Perjury and related offenses; definitions of terms:

The following definitions are applicable to this article:

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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).

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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.

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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).

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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.

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Here, the allegations in the accusatory instrument state that the criminal defendant “threw down” the cigar to the ground. This allegation alone does not lend to the reasonable conclusion that defendant intended to conceal, alter, or destroy the cigar. Indeed, it is quite reasonable that the defendant merely intended to abandon the cigar or was through smoking it. Actions that frequently result in inference of intent to conceal, alter, or destroy include swallowing, while throwing is often found insufficient.

The act of throwing to the ground extends beyond the enumerated conduct that evinces tampering under the statute. Here, the defendant’s alleged conduct, throwing down the cigar after turning to run as the informant approached him, is inconclusive at best. First, because the People have failed to sufficiently allege facts indicating that the defendant reasonably contemplated, or did contemplate, a forthcoming official proceeding, defendant’s act of running can be viewed as indicative of concern other than fear of arrest or a proceeding resulting from illicit conduct. Second, as will be discussed below, because the People fail to adequately allege that defendant was smoking a marijuana cigar, his running and subsequent throwing down of the cigar are not reasonably construed as intent to conceal, alter, or destroy physical evidence that he believes is likely to be used in any official proceeding. Finally, the act of throwing something to the ground itself is not of a type, given the factual allegations provided, that leads to a reasonable inference of tampering. Simply, throwing a cigarette to the ground does not normally alter or destroy it, and it certainly does not conceal it. The officer’s inability to recover the cigar is not the measure for establishing this element. Therefore, the accusatory instrument does not adequately allege facts from which can be inferred the criminal defendant’s intent to prevent the recovery of physical evidence.

Courts have also addressed the sufficiency of allegations as to the nature of the physical evidence allegedly tampered with. Logically, such allegations inform whether the Court could reasonably infer the defendant’s intent to tamper or contemplation that his or her use or possession could lead to a prospective official proceeding, and is particularly applicable where the charge is one of attempted tampering.

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As the statute dictates, an essential element of the crime of Tampering with Physical Evidence is that the defendant believed that the physical evidence is about to be produced or used in an official or prospective official proceeding and that the criminal defendant intended to prevent such production or use. Determining whether the allegations in an accusatory instrument are sufficient to maintain such a charge is a factual inquiry for the reviewing court.

The defendant argues that the accusatory instrument is insufficient because it: 1) fails to establish that the defendant believed any physical evidence was about to be used in an official proceeding; 2) fails to establish that the defendant had an intent to prevent the production of such physical evidence; and 3) provides only conclusory allegations as to the defendant’s purported possession of a marijuana cigar. The People do not address any of the specific arguments raised by the defendant in their response. For the reasons that follow, and upon a review of the instant accusatory instrument and relevant case law, the Court agrees with the defendant that the information is insufficient, even taken in the light most favorable to the People.

In evaluating the sufficiency of the “prospective official proceeding” element of the Tampering with Physical Evidence statute, the inquiry is focused on whether such a proceeding could readily be contemplated by the defendant. In other words, there need not be an actual or prospective proceeding pending

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