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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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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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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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An Introduction to Bail Determination

5/8/2012

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Both New York and New Jersey allow for bail to be set after a defendant has been arrested and arraigned but before the disposition of the criminal charges. In both states, bail is set by a judge and determined based on factors set forth by each State’s legislature. Bail enables the defendant’s release from custody while at the same time ensuring the defendant’s presence at future court appearances. If the judge, after a balancing of the factors, determines that the defendant is a serious risk of flight, then bail will be set at a high enough value to ensure the defendant’s return to court. However, should the court find that there is little or no risk of flight, then no bail will be required and the defendant will be released on his or her own recognizance.

New York CPL § 510.30 lists the factors for a judge to consider when determining bail. These include: (1) The defendant’s character, reputation, habits and mental condition; (2) His employment and financial resources; (3) His family ties and the length of his residence if any in the community; (4) His criminal record if any; (5) His record of previous adjudication as a juvenile delinquent; (6) His previous record if any in responding to court appearances; (7) The weight of the evidence against a defendant in the pending criminal action and any other factor indicating probability or improbability of conviction;

Similarly, New Jersey Court Rule 3:26-1 details the factors to be considered in setting bail, which include the following: (1) The seriousness of the crime charged against defendant, the apparent likelihood of conviction; (2) The defendant's criminal record and previous record on bail; (3) The defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) The defendant's family ties and relationships; (6) The defendant's employment status and financial condition; (7) responsible members of the community who would vouch for defendant's reliability; (8) factors indicating defendant's mode of life or ties to the community.

Additionally, judges in New York and New Jersey can add conditions to bail should they prove necessary to ensure the defendant’s return to court. These can include travel restrictions or a monitoring bracelet. Additionally, should any of the bail factors change during the pendency of the criminal action, either side can request that the bail be modified.

Bail is set early on in the prosecution of a case and can be the difference between a defendant sitting in jail for the duration of the prosecution or living his life as he had prior to the arrest. Therefore, if you or a friend has been arrested, contact a Criminal Defense Attorney to learn how to prepare for the possibility of bail.

Contact us today to set up a free consultation to discuss how we can help you.

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Pre-Trial Intervention as an Alternative to Criminal Prosecution

4/12/2012

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New Jersey provides those eligible with an alternative to the traditional criminal prosecution called Pre-Trial Intervention, or “PTI”. According to the New Jersey Judiciary[1]:

PTI seeks to render early rehabilitative services, when such services can reasonably
be expected to deter future criminal behavior. The PTI program is based on a rehabilitative
model that recognizes that there may be an apparent causal connection between the
offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative
model emphasizes that social, cultural, and economic conditions often result in a defendant's
decision to commit crime.

Simply stated, PTI strives to solve personal problems which tend to result from the
conditions that appear to cause crime, and ultimately, to deter future criminal or disorderly
behavior by a defendant.

The structure of the PTI program is straightforward. If a defendant complies with the conditions of the program and avoids re-arrest, then the case is dismissed. Conditions often include random urine testing, fines, community service, payment of restitution, and/or psychological, drug or alcohol treatment programs. Upon successful completion of the PTI program, the defendant will have no criminal record. If the defendant fails to comply, then he or she is terminated from the program and the case is returned to the regular trial calendar.

New Jersey believes that Pre-Trial Intervention benefits the interests of the public, the victim and the Defendant by correcting the underlying behavior and reducing the risk of re-offense. PTI is also viewed as a way to ensure the court’s resources are used to prosecute more serious offenders.

Eligibility is determined by the County Prosecutor’s office. A complete list of the factors are listed in N.J.S.A. 2C:43-12(e). Among them are Defendant’s age, residence, degree of offense charged, prior criminal record and prior participation in a diversionary program.

Applications to PTI should be made at the commencement of proceedings, typically no later than seven days after the defendant's initial plea to the indictment. If you have been arrested and are interested in applying for Pre-Trial Intervention, contact a Criminal Defense Attorney today to find out if you are eligible and to help you apply to the program. Call us today to set up a free consultation to discuss how PTI can help you.

[1] http://www.judiciary.state.nj.us/criminal/crpti.htm

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Understanding the Legal Definition of Criminal Possession

3/21/2012

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http://www.fuldlawoffices.com/new-york-criminal-defense-practice.htmlWhen a person has been charged with a crime involving the element of “criminal possession”, it is crucial to recognize that the legal definition of “possession” is much broader than the common definition. In both New York and New Jersey, “possession” extends to that which is found even beyond one’s person, bag or clothing. Understanding the legal definition can help a person distance themselves from situations that could result in criminal liability for possession.

The New York Legislature has outlined two scenarios whereby drugs can be found in an area and each person in that area can be charged with the crime of Criminal Possession of a Controlled Substance. New York Penal Law §220.25 provides, in part, that: (1) The presence of a controlled substance in an automobile is presumptive evidence of knowing possession by each and every person in the automobile; and (2) The presence of a substance in open view in a room, other than a public place, is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance. However, these presumptions are not usually applied if the substance is found on the person of one of the occupants.

In New Jersey, one can be charged for either actual or constructive possession of illegal drugs or weapons[i]. The New Jersey Supreme Court has defined these two types of possession as follows:

A person actually possesses an object when he has physical or manual control of it. A
person constructively possesses an object when, although he lacks "physical or manual
control," the circumstances permit a reasonable inference that he has knowledge of its
presence, and intends and has the capacity to exercise physical control or dominion over
it during a span of time[ii].

Accordingly, the fact that one did not physically or manually control an illegal drug or firearm is not enough to absolve a person of criminal liability. In New York, Criminal liability can be placed on any occupant of the room or automobile containing an illegal substance. In New Jersey, possession can be charged whenever it can reasonably be inferred that a person had both knowledge of the presence of an object and the intent to exercise control.

Criminal Possession statutes are very intricate despite the seemingly straightforward titles. If you have been charged with Criminal Possession of an illegal substance or firearm, it is important to consult with Criminal Defense Attorney to learn more about these charges.

[i] State v. Spivey, 179 N.J. 229, 236-237 (2004); State v. Reeds, 197 N.J. 280, 296 (2009).

[ii] Spivey, supra, at 236-237 (emphasis added).

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Fuld Disclosure
A Legal Blog

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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A Closer Look at the New York Shoplifting Statutes

How to Get Bail and Out of Jail

A Look at New York's Robbery Statutes

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

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

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

Force & Self-Defense in New York

An Introduction to Bail Determination

Pre-Trial Intervention as an Alternative to Criminal Prosecution

Understanding the Legal Definition of Criminal Possession

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