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A Closer Look at the New York Shoplifting Statutes

4/8/2014

Shoplifting is prosecuted in New York under two statutes, NY Penal Law § 155.25 – Petit Larceny and NY Penal Law § 165.40 – Criminal Possession of Stolen Property in the Fifth Degree. The statutes provides as follows:

§ 155.25 Petit Larceny: A person is guilty of petit larceny when he steals property. Petit larceny is a class A misdemeanor.
§ 165.40 Criminal Possession of Stolen Property in the Fifth Degree: A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof. Criminal possession of stolen property in the fifth degree is a class A misdemeanor.

While the Petit Larceny statute is straightforward the Criminal Possession of Stolen Property statute is a bit more nuanced. Notably, the NY Penal Law § 165.40 includes a prohibition against possessing stolen property with an “intent to impede recovery of the stolen item.” Practically, this enables proof of hiding the stolen object or another form of concealment to serve as evidence of the criminal possession.

Both NY Penal Law § 155.25 and § 165.40 serve as the “catch-all” statutes for the least serious criminal offenses relating to possession of stolen property and larceny. Both statutes are classified as A misdemeanors which can carry a sentence of up to one year incarceration. However, various factors can raise the accused criminal action to a more serious offense. For example, if the value of the stolen property exceeds one thousand dollars, the offense rises to NY Penal Law § 155.30 – Grand Larceny in the Fourth degree or NY Penal Law § 165.45 – Criminal Possession of Stolen Property in the Fourth degree. Each of these fourth degree crimes are classified as an E Felony and carry a potential period of incarceration of one and a half to two years.

With regard to both Larceny and Criminal Possession of Stolen property offenses, there are many factors which can increase the severity of the criminal charges and thereby escalate the resulting sentence. It is important to contact an attorney to understand the legal implications and determine the best strategy to fight the charges.

If you, or someone you know has been arrested and charged with Petit Larceny of Criminal Possession of Stolen Property, contact our office today to schedule a free consultation with one of our Criminal Defense Attorneys.

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Come Learn About The Home Buying Process

12/16/2013

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FIRST TIME HOME BUYER SEMINAR

Wednesday, December 18th 7:00 p.m.
Dougie’s BBQ
184 W. Englewood Ave Teaneck

Join
David Siegel, HLO for Citibank,
Marc Stein, Broker Owner of Links Residential
Judah Fuld, Esq. Real Estate Attorney

for an informative presentation about the home buying process

Learn: about the buying process, local markets, and meet local agents
Discover: How to evaluate mortgage options
Explore: the legal side of purchasing a home to ensure a smooth transaction

Space is limited. Please contact [email protected]

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How to Get Bail and Out of Jail

12/11/2013

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Bail is one of the issues most often on the minds of a defendant and their family. Read Judah Fuld's recently published article which outlines the strategies for convincing a judge to release the defendant without bail or to set as low a bail as possible. You can click here to go to article.

Should you or a friend need advice on bail, contact a criminal defense attorney to learn how to make a strong and persuasive bail application.

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A Look at New York's Robbery Statutes

10/1/2013

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New York takes a tough stance when it comes to Robbery and treats Robbery offenses more severely than other theft offenses. Theft crimes, such as Larceny, Fraud and Possession of Stolen Property are classified as either misdemeanors or felonies depending on the value of the stolen property. Robbery offenses, however, are all classified felonies. Even f the value of the stolen property is one dollar, the resulting Robbery charge is a felony offense. It is therefore crucial to understand the Robbery statutes and the actions which form the elements of these felony crimes.

New York Penal Law § 160.000, defines Robbery as forcible stealing. The New York Legislature describes forcible stealing as, when in the course of committing a larceny, a person uses or threatens the immediate use of physical force upon another for the purpose of either preventing resistance to the taking of the property of compelling the delivery of such property. Although all Robbery crimes are felonies, the legislature determined each felony classification based on a victim’s physical injuries, the number robbers present and whether the actor used or threatened use of a weapon.

The broadest Robbery offense is NY Penal Law § 160.05 Robbery in the Third Degree. A person is guilty Robbery in the Third Degree when he or she forcibly steals property. This is the most general of the three Robbery statutes and is classified as a D felony.

A person is guilty of NY Penal Law § 160.10 Robbery in the Second Degree, a class C felony, when he or she forcibly steals and either:

Is aided by another person actually present; or
In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a) Causes physical injury to any person who is not a participant in the crime; or (b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.

Finally, a person is guilty of NY Penal Law § 160.15 Robbery in the First Degree, a class B felony, when he or she forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime either:

Causes serious physical injury to any person who is not a participant in the crime; or
Is armed with a deadly weapon; or
Uses or threatens the immediate use of a dangerous instrument; or
Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.

If you or anyone you know has been arrested and charged with Robbery, you should immediately contact a Criminal Defense Attorney to discuss the case. The repercussions of a conviction are serious and can include a lengthy sentence of imprisonment. Call today for a free consultation with one of our criminal defense lawyers to learn how we can help.

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The Make-up of New York's A-I Drug Felonies

5/21/2013

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The New York Penal Law[1] contains three categorizations of offenses: felonies, misdemeanors and violations. Felonies are the most serious and are subdivided into five classifications: A, B, C, D & E felonies. For the purposes of sentencing, A felonies are subdivided in to A-I and A-II felonies. A-I felonies are the most severe offenses, carrying a minimum term of imprisonment of 15 – 25 years and a maximum of a life sentence.[2]

Of the nearly thirty controlled substance offenses and drug crimes, only three are classified as A-I felonies: (a) NY PL § 220.21 – Criminal Possession of a Controlled Substance in the First Degree, (b) NY PL § 220.43 - Criminal Sale of a Controlled Substance in the First Degree, and (c) NY PL § 220.77 - Operating as a Major Trafficker. The New York Legislature has classified these three offenses amongst the most serious criminal offenses which can carry a sentence of up to life imprisonment. It is worthwhile to take a moment to understand the elements and components of these three most egregious drug crimes.

The first two A-I Drug Felonies are relatively straightforward, as they are the First Degree forms of Criminal Sale of a Controlled Substance and Criminal Sale of Controlled Substance. The interesting difference is that the minimum threshold weight of a Controlled substance for selling is only 2 ounces, which is a quarter of the 8 ounce minimum threshold weight needed for the A-I possession charge.

A person is guilty of NY PL § 220.21 - Criminal Possession of a Controlled Substance in the First Degree in either of two ways, by knowingly and unlawfully possessing either:

One or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of 8 ounces or more; or
Methadone that weighs five thousand seven hundred sixty milligrams or more.

A person is guilty of NY PL § 220.43 - Criminal Sale of a Controlled Substance in the First Degree when he knowingly and unlawfully sells either :

One or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of 2 ounces or more; or
Methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

The final A-I drug felony is NY PL § 220.77 - Operating as a Major Trafficker. This statute is aimed toward those offenders who are involved in drug trafficking rings and organized crime. A person is guilty of Operating as a Major Drug Trafficker when he falls into one of three descriptions:

Such person acts as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of $75,000 or more; or
As a profiteer, such person knowingly and unlawfully sells, on one or more occasions within six months or less, a narcotic drug, and the proceeds collected or due from such sale or sales have a total aggregate value of $75,000 or more; or
As a profiteer, such person knowingly and unlawfully possesses, on one or more occasions within six months or less, a narcotic drug with intent to sell the same, and such narcotic drugs have a total aggregate value of $75,000 or more.

If you or anyone you know has been arrested for an A-I Drug Felony, you should immediately contact a Criminal Defense Attorney to discuss the case. The repercussions of a conviction are serious and can include a sentence of life imprisonment. Call today for a free consultation with one of our criminal defense lawyers to learn how we can help.

[1] NY PL § 55.05
[2] NY PL §70.00

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How an Ordinary Offense is Classified as a Crime of Domestic Violence

3/19/2013

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If one opens up the New York Penal Law or New Jersey Code of Criminal Justice, one will not find a listing of domestic violence offenses. In fact, domestic violence crimes do not have their own statutes. Instead, the elements of the underlying crime remain the same and the crime is elevated to a domestic violence offense only when the victim falls into a certain class of persons. The classification is not assigned based on any intent or specific act or threat but is instead guided by the relationship between the suspect and alleged victim. For instance, one commits assault if he or she intends to, and thereby causes physical injury to another person. If the victim is one’s spouse, then the prosecutor will prosecute the assault as a crime of domestic violence. Both New York and New Jersey law approach domestic violence crimes in this manner and understanding this classification will serve to better inform one who has been arrested as to whether the crime charged will be prosecuted as a crime of domestic violence.

The New York legislature, in both NY CPL § 530.11 and CLS Family Ct Act § 812, defines domestic violence as certain offenses occurring between spouses or former spouses, parent and child or between members of the same family or household. In defining the term "members of the same family or household", New York includes:

Persons related by consanguinity (blood-related) or affinity (through marriage, i.e. in-laws);
Persons legally married to one another;
Persons formerly married to one another regardless of whether they still reside in the same household;
Persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
Persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Courts consider the following factors in determining whether a relationship is an "intimate relationship": the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. New York has explicitly noted that neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".

The New Jersey legislature, in N.J.S.A. § 2C:25-19(d), similarly defines a domestic violence offense by looking at the relation of the offender to the victim. New Jersey considers a person to be a victim of domestic violence when any person who is 18 years of age or older or who is an emancipated minor has been subjected to domestic violence by either:

A spouse or former spouse;
Any person who is a present or former household member.
A person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant; or
A person with whom the victim has had a dating relationship.

If you, or anyone you know is suspected, charged or has been arrested for committing an offense against a person who might be classified as a victim of domestic violence, contact our office today to set up a free consultation and talk to a criminal defense attorney. The suspect’s relationship to the victim can characterize the offense as domestic violence and bring into play additional possible penalties and sentences.

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Prosecutors Who Can Read Minds? A look at New Jersey’s presumptive take on “intent to distribute”:

1/17/2013

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Generally, prosecutors can only charge a person with the intent to commit a crime if there is actual proof of that intent. For instance, to prove attempted robbery, a prosecutor must demonstrate that a suspect took an overt act to rob someone. However, in N.J.S.A. 2C:35-5, New Jersey has criminalized Possession of a Controlled Dangerous Substance (C.D.S.) with Intent to Distribute. Surprising to many, a prosecutor need not prove that the suspect transferred, sold or distributed the drugs in exchange for money or the promise of payment.[1] Seemingly, the prosecutor can go after a person for the intent to distribute without any direct proof of a suspect’s plan or overt act to sell or distribute the drugs.

Instead, the New Jersey Legislature has decided that because intent is a state of mind and difficult to prove, intent can instead be gathered from evidence as to the quantity, purity, and packaging of the drugs[2]. The Legislature’s logic is that only a person who intends to distribute a controlled substance would possess the controlled substance in a large quantity, in packaging not conducive to personal use or in purity unique to distribution.

This legal characterization of possession of a C.D.S. with intent to distribute has made it significantly easier for New Jersey prosecutors to crack down on drug dealers. One should therefore be aware that mere possession of a C.D.S. can invite much more serious charges if the quantity, purity, and packaging of the drugs can be used to prove the intent to distribute.

If you or someone you know has been arrested and charged with Possession of a Controlled Dangerous Substance (C.D.S.) with Intent to Distribute, contact a Criminal Defense Attorney to learn more about the charge and discuss how to best prepare for the defense. Contact our office today to schedule a free consultation.

[1] State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987) .
[2] See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).

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No Breath Test, No Problem? Think Again - Observational DWI

12/26/2012

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During the holiday season, many police departments place special emphasis on DWI patrol and detection. The police know that during the month of December and through New Years day, many families and offices host holiday parties and serve alcohol to those in attendance. The police do not care about the parties themselves, but rather look out for all the guests who decide to drive home from a party after drinking.

Unfortunately, many drivers have the misconception that they are susceptible to DWI charges if they only had one or two drinks. This misconception is based on the notion that DWI charges depend solely on a breath test which determines a driver’s Blood Alcohol Content (BAC). However, both New Jersey and New York have TWO methods by which a court can find a driver guilty of DWI. The first method hinges on a breath test which determines a driver’s BAC. This is called Per Se DWI. If the test was properly administered and the machine, properly calibrated, produces a reading of 0.08% or above then the driver is facing a nearly certain Per Se DWI conviction.

The second type of DWI conviction is often referred to as Observational DWI and is based on factors independent of a driver’s BAC. Observational DWI, as its name suggests, can be founded on any observation of an officer or witness. These often include an odor of alcoholic beverages emanating from a driver’s breath or vehicle, slurred or nonsensical speech, bloodshot and/or watery eyes and anything else that one might see, hear or smell which leads to the conclusion that the driver was intoxicated. Additionally, officers can ask a driver to perform field sobriety tests which assess the driver’s balance and coordination. A poor performance on these tests will also support a finding of DWI. Finally, any statement made by the driver will be used against him should the statement indicate that the driver consumed alcohol before operating the motor vehicle. All of these factors can combine and support a court’s finding that a driver is guilty of DWI despite the absence of any breath test evidence.

It is important to understand that the law prohibits driving while intoxicated. While the most often discussed method of proving intoxication is the use of breath test machines, drivers can also be found guilty of DWI based solely on observational evidence. A driver who faces Per Se or Observational DWI charges should talk to a Traffic Court attorney as a thorough cross-examination of the arresting officer is crucial to the driver’s defense. If you have been charged with DWI, contact our office today to set up a free consultation.

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Force & Self-Defense in New York

10/17/2012

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Although the use of force against another person would normally be considered a crime, there are scenarios when it is justified and legal. Justified force is more commonly referred to as “self-defense”. It is important to understand when one can use force and/or deadly force in self-defense. These principles are particularly relevant when the actor has been accused of assault, homicide or similar crimes and these justifications serve as the defense in the criminal prosecution.

New York Penal Law § 35.15 details the circumstances in which using force is justified. In defending one’s self or a third person, the statute permits a person to use physical force only to the extent he or she reasonably believes necessary to defend one’s self or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.

However, force cannot be used if the person defending was the initial aggressor. If someone started a fight, he or she is not justified in using further force when the other person fights back. Additionally, force can only be used to the extent necessary. Once the threat has been eliminated, the use of force must stop. Any further use of force can be deemed illegal and result in an arrest.

As a general rule, even when the use of force is justified, deadly force is still illegal. The use of deadly force in self-defense is justified only when a person encounters the use or imminent use of unlawful deadly force. New York, however, maintains a duty to retreat. Under this duty, a person is prohibited from using deadly force if one can retreat with complete personal safety to oneself and others. There are only two exceptions to the duty to retreat. A person may stand their ground and use deadly force in self-defense when: (1) the person is in his home and was not the initial aggressor; or (2) the person is a police officer or acting at the direction of a police officer.

In addition, the legislature has set forth certain limited situations in which a person can use deadly force even where there is no use or imminent use of deadly force against him or her. Deadly force can be used when one reasonably believes that the other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery.

If you have been accused of a crime and believe that any actions you took were in self-defense, you should contact a Criminal Defense Attorney. This post merely scratches the surface of self-defense law and any affirmative defense should be discussed with an experienced Criminal Defense Attorney.

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The Criminal Implications of Refusing a DWI Breath Test

7/18/2012

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Both New York and New Jersey have laws known as DWI Refusal Statutes. In N.J.S.A. 39:4-50.4a, New Jersey makes it a crime for a person to refuse to take a chemical breath test after having been arrested for Driving While Intoxicated (DWI). Similarly, NY VTL § 1194 requires a driver to submit to a chemical breath test if there were reasonable grounds to believe the driver was operating a motor vehicle while intoxicated. In both states, refusal to submit to a chemical test results in an immediate charge of Refusal DWI, an offense carrying the same sentencing guidelines as regular DWI.

The Refusal statutes are based on the presumption that anyone who drives within NY or NJ is deemed to have given consent to a chemical test in order to determine the alcohol or drug content in the driver’s blood. In other words, when a person decides to drive a vehicle in either NY or NJ, that person is deemed to have simultaneously agreed to provide a chemical test sample when asked to do so by an officer. Unfortunately, a suspect cannot “plead the Fifth” because the Constitutional Right against Self-Incrimination offers no protection for drivers in this situation. The privilege is only a bar against compelling verbal communications or testimony and does not protect against the compulsion of real or physical evidence[i], such as a breath, urine or blood sample.

Once a driver has been charged with Refusal DWI, the burden is on the prosecutor to prove two crucial facts in order to convict a suspect. The prosecutor must demonstrate beyond a reasonable doubt that (a) that the police officer had probable cause to believe the suspect was driving a vehicle while intoxicated and (b) that the suspect refused to take the chemical test. If a police officer lacked a proper basis to ask a driver to submit to a chemical breath test or the prosecutor cannot demonstrate that the suspect actually and knowingly refused, then the Refusal charge will be dismissed.

If you, or someone you know has been arrested for Refusal DWI, contact a defense attorney today to learn about your rights and how to best defend against the charges going forward. Contact us today to set up a free consultation.

[i] Schmerber v. Cal., 384 U.S. 757, 764 (1966).

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About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

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