Articles Posted in Criminal Procedure

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People v O.X.

The court held that the Appellate Order should be affirmed in this case. The question of this case is whether a 4th amendment consent to search a premises is a question of law or fact (People v. McFarlane 21 NY 3d 1034). The court said that the voluntariness of the consent in this instance is up for dispute. Although the court’s power to review the affirmed findings of fact are limited. The findings of the trial court are supported by the record (People v Morales 42 NY2d 129, 138 [1977]).

Judge Rivera stated that there was a home visit by law enforcement for the purposes of making a warrantless arrest. It is not justified by another exception of the warrant requirement.

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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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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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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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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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New York Penal Law S 215.35 on Tampering with physical evidence, defines the following terms:

1. “Physical evidence” means any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding.

2. “Official proceeding” means any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received.

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Defendants are the President and two other members of the Executive Board of the Uniformed Firefighters Association (UFA). They have been indicted for Reckless Endangerment in the Second Degree and related crimes arising from their role in calling the first strike of firemen in New York City history on November 6, 1973.

It appears therefrom that the UFA, for a time prior to the strike, had been engaged in negotiations with the City for a new collective bargaining agreement. During the pendency of these negotiations, its rank-and-file membership passed a resolution authorizing the Executive Board to conduct a mailed secret ballot of the membership to determine whether the Board should be enabled to call a total strike of the firefighters of the City of New York at a time and date to be determined by the Executive Board. The result was that New York City’s firefighters voted not to strike. Nevertheless, the defendants conspired to conceal the true outcome of the ballot from both the membership and the public and decided instead to falsely announce that the membership of the UFA had voted overwhelmingly in favor of a total strike. In conjunction with this initial deception, the criminal defendants planned and attempted to coerce the City to accept their contract terms by falsely representing the existence of the strike mandate to the City’s negotiators. Finally, on November 6, 1973, the defendants did in fact call and caused a virtual total strike of the firefighters of New York City–a strike that the firemen themselves, still ignorant of the true outcome of the ballot, had democratically voted against.

A fire then broke-out for five and a half hours throughout the city, desperate civilians and some police officers sounded alarms, lugged their own hoses, broke windows in smoke-filled buildings and prayed anxiously that the small force of non-striking firemen could get to the fires in time.

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