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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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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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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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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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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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Know Your Rights upon being Arrested

1/11/2012

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Often times, a person's first contact with the legal justice system begins with an arrest. The unexpected nature of an arrest can leave a person unprepared to deal with the complex legal system. It is crucial that you understand the rights that attach as soon as an arrest is effectuated.

Often, an arrest begins with a phone call from a precinct or police headquarters. In the most common scenario, a police officer calls and asks a person to come down to the station to be asked a few questions. Don’t be fooled by this seemingly innocent request. If the person goes to the precinct, he or she will most likely be arrested.

Instead, the person should take this opportunity to contact a Criminal Defense Attorney. If there is a warrant for the person’s arrest, the attorney can talk to the police and inquire as to the basis for the warrant and even negotiate a convenient time to surrender.

Once a person is taken into police custody and interrogated, the police are obligated to inform him or her of certain rights, known as Miranda rights. Miranda v Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). These constitutional rights stem from the protections guaranteed by the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. The police must inform the suspect that he or she has:

(1) The right to remain silent; and

(2) The right to an attorney. If the suspect cannot afford an attorney, one will be provided.

Notice that there is no right to a phone call. Despite the portrayals on TV, there is no right to make a phone call. Therefore, it is even more crucial to know your rights. Now that you know your rights, let’s take a look at how to a person should effectively assert these rights once arrested.

First, ask for an attorney! Whether or not you have retained an attorney, asking for an attorney will cease all questioning until your attorney arrives or until one is eventually provided (likely at arraignment).

Second, do not make any statements to the police. Aside from your name address and date of birth, you should not tell the police anything because any statement will be used against you. Police will often try and convince you to talk by offering to “help you out” if you tell them “what happened.” Experience has shown that this is a ploy to extract an incriminating statement. By keeping quiet until you have the assistance of an attorney, you will help you set your case in the right direction and help ensure the most beneficial final resolution.

To learn more about your rights, contact one of our Criminal Defense Attorneys. How you respond in the moments after your arrest sets the tone for the remainder of your case.

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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

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

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

An Introduction to Bail Determination

Understanding the Legal Definition of Criminal Possession

Know Your Rights upon being Arrested

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Fuld Disclosure
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