Articles Posted in Criminal Procedure

New York Penal Law 165.05 & 165.06: Unauthorized Use of a Vehicle & Your NY Criminal Defense

New York Penal Law Section 165.05 on Unauthorized use of a vehicle in the third degree, states that: A person is guilty of unauthorized use of a vehicle in the third degree when: 1. Knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent; or 2. Having custody of a vehicle pursuant to an agreement between himself or another and the owner thereof whereby he or another is to perform for compensation a specific service for the owner involving the maintenance, repair or use of such vehicle, he intentionally uses or operates the same, without the consent of the owner, for his own purposes in a manner constituting a gross deviation from the agreed purpose; or 3. Having custody of a vehicle pursuant to an agreement with the owner thereof whereby such vehicle is to be returned to the owner at a specified time, he intentionally retains or withholds possession thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement. of a gross deviation from the agreement” shall consist of, but not be limited to, circumstances wherein a person who having had custody of a vehicle for a period of fifteen days or less pursuant to a written agreement retains possession of such vehicle for at least seven days beyond the period specified in the agreement and continues such possession for a period of more than two days after service or refusal of attempted service of a notice in person or by certified mail at an address indicated in the agreement stating (i) the date and time at which the vehicle was to have been returned under the agreement; (ii) that the owner does not consent to the continued withholding or retaining of such vehicle and demands its return; and that continued withholding or retaining of the vehicle may constitute a class A misdemeanor punishable by a fine of up to one thousand dollars or by a sentence to a term of imprisonment for a period of up to one year or by both such fine and imprisonment.

Unauthorized use of a vehicle in the third degree is a class A misdemeanor.

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A person commits the crime of perjury in its most basic form when he or she “swear 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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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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Defendant, a 16 year old boy, is charged with petit larceny and criminal possession of stolen property both arising out of an alleged pocket-book snatch on May 1, 1978. He was arraigned the next day and held in bail pending a hearing which was held on May 18, 1978. Both charges are class A misdemeanors carrying a maximum penalty for non-youthful offenders of one year’s incarceration. Inasmuch as this 16 year old defendant has never been convicted of a crime or found to be a youthful offender, he is eligible for mandatory adjudication as a youthful offender carrying a maximum penalty of six months incarceration. In this instance, because he must be accorded this mandatory adjudication, the statute requires a single judge trial without a jury. Had the defendant already once been adjudicated a youthful offender thus placing his being treated as such on this occasion within the court’s discretion, he would be entitled to trial by jury.

Defendant now challenges the constitutionality of the statute depriving him of a jury trial. The court is here presented with a constitutional challenge to Criminal Procedure Law § 340.40(7) which denies trial by jury to a youth who is eligible for mandatory youthful offender treatment at the same time this right is available to any other defendant, a discretionary youthful offender included, who is charged with the same crime.

The limited power of trial courts to strike down a State statute as unconstitutional has been stated repeatedly. Particularly courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face.

In the latter part of 1992 and during the beginning of 1993, the office of the United States Attorney for the Southern District of New York was inquiring into allegations that substantial sums of money had been stolen from a certain Royalty Trust (the “Trust”), which fund was established to benefit the citizens of a certain Republic (the Republic). In connection with this criminal investigation, in February 1993, an investigator for the U.S. Attorney’s Office (the “US Investigator”), served “Y”, a resident of California, with a grand jury subpoena. Although Y did not ultimately testify before a federal grand jury, he took part in approximately four debriefings with federal prosecutors and investigators in the Southern District during the latter part of February and March 1993.

After one such debriefing on March 5, 1993, at the request of the U.S. Attorney’s Office and under the direction of US Investigator, Y telephoned defendant, an attorney residing in Florida. US Investigator recorded this call in the presence of, Y’s attorney at the time, Assistant U.S. Attorneys (hereinafter “AUSA”) A and B, and FBI Agent H. The federal authorities proposed making this call to defendant in Florida in an attempt to obtain information on past allegedly criminal activities involving the disappearance of Republic’s money and to gather information respecting what they believed to be on-going criminal behavior in connection with the solicitation of so-called “prime bank notes” and “standby letters of credit”. A review of the transcript of the taped conversation between Y and defendant reveals that both past and on-going activities were discussed during the call.

While that the federal government was investigating the Republic Trust matter, a civil litigation–initiated to recover Republic’s allegedly stolen money–was underway in the High Court of Justice in London. As part of this civil action, both defendant and Y were subpoenaed to give testimony in late December 1992. Shortly thereafter, Y talked with defendant about obtaining legal representation. Y learned that defendant had retained an attorney (the “Attorney”), a member of the Florida bar, to represent him in connection with the London litigation. Y could not specifically recall how defendant described the nature of Attorney’s representation, but he did remember that defendant spoke of the possible need for a criminal defense attorney in connection with the Republic Trust matter. Defendant also advised Y that if he needed a computer fraud lawyer, he should contact Attorney for a referral.

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The surety herein applies for an order under sections 597 and 598 of the Code of Criminal Procedure remitting the forfeiture of cash bail deposited by her for and on behalf of the defendant, who was theretofore charged with disorderly conduct in violation of subdivision 8 of section 722 of the Penal Law.

A New York Criminal attorney said that the facts explaining and excusing the defendant’s failure to appear for a hearing on April 30, 1953, have been fully set forth in the moving papers and warrant the exercise of discretion by this court in remitting the forfeiture of the bail deposit heretofore made by the surety if this court has the power to order such remission.

Upon the argument of the appeal, and in answer to the court’s inquiry as to why this motion was not made in the County Court of Queens County, the court was informed that that court had refused to entertain applications for remissions of forfeitures not originating in that court.

Numerous defendants were arrested in a series of raids in Chinatown, carried out by police officers armed with search warrants.

A New York Criminal lawyer said that the amended informations charge the defendants with the crimes of promoting gambling and possession of gambling devices in violations of sections 225.05 and 225.30 of the Penal Law, in that each defendant acted as a ‘Dealer,’ ‘Cutter,’ ‘Manager/Moneyman’ or ‘Security’; listing the gambling activities as ‘Poker,’ ‘Fantan’ and ‘Dominoes.’

In these omnibus motions the defendants move to dismiss the accusatory instruments upon the grounds (1) the specified gambling statutes are unconstitutional, and (2) the ‘People are guilty of selective and discriminatory prosecution.’ In the alternative the defendants move for (a) a preliminary hearing pursuant to section 170.75 of the Criminal Procedure Law, and (b) the suppression of the evidence seized.

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Policy considerations, however, may militate against entertaining an action for declaratory judgment that is instituted to challenge a criminal court’s ruling. On this basis, both declaratory relief and prohibition have been limited as a means for attacking penal statutes or court rulings. On reviewing the reasons underlying those decisions, it is concluded that the action here is proper. Declaratory relief, on the other hand, generally seeks a determination of rights before a “wrong” occurs, rather than collateral review of a court’s ruling. In that context, it has been used to test penal statutes. Two tacks have been taken in seeking declaratory relief with regard to criminal laws. First, some have sought a determination whether particular conduct violates some penal law. The other has been to test the constitutional validity of a statute. This court generally has held that the latter is proper; the former is more circumscribed.

With this in mind, it can be stated that a declaratory judgment attacking a criminal court’s interlocutory ruling may be granted when the controversy is over the validity of a statute, the determination of which does not require resolving any factual disputes, and there is no immediate attempt to prevent the criminal court from proceeding on the course which it has charted by its ruling. Furthermore, the criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases. Put another way, the situation must be one where it can be assumed that the question will recur in other prosecutions and the criminal court will decide it in the same way. Inasmuch as a defendant always has available a right to appeal, only an application for declaratory relief by the People should be entertained. The recurring nature of the issue, therefore, should pose a risk of significantly obstructing the task of administering criminal justice by imposing an undue burden on prosecutors and the courts. Although this court declines today to expressly limit when such an action may be brought, it is noted that this concern over obstructing the speedy resolution of cases suggests that it is most appropriate when the challenge is to a ruling on how a trial is to be conducted. This “procedural” type of question is also the sort that is likely to recur and to be decided in the same manner regardless of the facts underlying the criminal charges. On the other hand, mere evidentiary rulings would not be proper subjects. Finally, the appropriate parties do not include the individual defendant in the case where the challenged ruling was made; as to him or her, there is another pending proceeding and the controversy has been decided. As a corollary, the action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court.

Applying these factors to the instant proceeding, it is apparent that declaratory relief is proper. Judge ruled that CPL 340.40 (subd. 2) was unconstitutional as applied to prostitution defendants in New York City. The nature of the ruling clearly makes it one that will be repeated unchanged in future prosecutions. Its potential impact on the criminal justice system is manifest from Judge Erlbaum’s own decision. In 1979, a total of only 15 out of 14,247 prostitution cases went to trial in the Manhattan Criminal Court. It can be expected that, if jury trials were available, far more prostitution defendants would demand trials, which would overwhelm the courts and prosecutors by consuming large amounts of time for selecting juries and would cause unmanageable delays.

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Respondent is a Judge of the Criminal Court of the City of New York, New York County. In 1981, two women accused of prostitution, which carries a three-month maximum sentence, appeared before the respondent Judge and moved for trial by jury. The defendants argued that CPL 340.40 (subd. 2), directing that crimes punishable by not more than six months’ incarceration shall be heard before a Judge, was unconstitutional because it deprived them of their Sixth Amendment right to jury trial and denied them equal protection of the law. The court granted their motion, reasoning that, notwithstanding its relatively minor sentence, prostitution is a “serious” crime with a concomitant right to trial by jury. The defendants’ equal protection argument was not reached.

A New York Criminal Lawyer said that, petitioner, the District Attorney of New York County, commenced this proceeding to prevent respondent’s order from taking effect. Initially, the matter was instituted under CPLR article 78 to obtain a writ of prohibition. Petitioner moved to convert the proceeding into an action for declaratory judgment after this court stated that prohibition is not available to attack a criminal court’s ruling that a statute denying a trial by jury is unconstitutional. Special Term granted the motion to convert and declared that CPL 340.40 (subd. 2) is constitutional. The Appellate Division, First Department, affirmed, but without opinion.

The issues in this case are: first is the procedural propriety of an action seeking declaratory relief that, in effect, collaterally attacks a criminal court’s ruling. The other matter, assuming that the action is proper, is whether CPL 340.40 (subd. 2) violates the Sixth Amendment.

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