Articles Posted in Summonses

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Last week, New York City banned smoking in all city parks. Legally speaking, they accomplished this by amending the New York City administrative code section 17-503, entitled Prohibition of smoking. This section, by the way, is the same one that bans smoking in bars, the subway, retail stores, and several other indoor and outdoor locations.

The relevant parts of the smoking ban section read as folows:

c. Smoking is prohibited in all indoor and outdoor areas of the following public places at all times:

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The next time you are thinking about riding your bicycle on the sidewalk – think twice (or at least make sure there aren't any police officers around)! Indeed, you might be surprised to learn that it is illegal in New York City to ride your bicycle on the sidewalk, but it is. Specifically, it is a violation of the New York City Administrative Code (Section 19-176). The charge is normally a non-criminal violation punishable by up to a $100 civil penalty, and the violator would typically receive a summons. However, it can also be a misdemeanor punishable by up to 20 days in jail where the police officer alleges that the conduct was so reckless as to endanger the property or lives of other people on the sidewalk. In these latter more serious cases, it is not unheard of for a violator to get a Desk Appearance Ticket (DAT) or be outright arrested. Notably, a misdemeanor conviction can give someone a criminal record, whereas a violation cannot.

There are other potential penalties as well: repeat offenders are subject to double-fines and violators of the misdemeanor version of this offense can have their bicycles impounded. Fortunately, there are a variety of defenses to these charges as well. Certainly, in the misdemeanor cases, it can be very helpful to retain the services of a defense attorney to present those defenses.

If you or a loved one have been issued a summons or arrested for a violation of this provision, you should consider contacting the experienced criminal defense attorneys at The Law Office of Matthew Galluzzo. Our attorneys include former several Manhattan Assistant District Attorneys and avid cyclists.

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Many recent arrestees facing criminal charges are confused about how the court system will ultimately resolve their cases, or, put differently, what will happen to them. They may also have serious questions about how much time it will take and other general questions concerning the overall process. Generally speaking, a misdemeanor case can take anywhere between two weeks and a year to resolve in Criminal Court. Felonies, on the other hand, have the additional layer of grand jury practice, which can mean additional delays (or shortcuts in some cases) to ultimate resolution. An indicted felony will be sent to Supreme Court and generally take longer to resolve than misdemeanor cases. Please see the below link for a more thorough explanation of the arrest to sentence process in New York.

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This post will provide the basics on the oft-cited provisions of the New York City Administrative Code dealing with the possession of open containers of alcohol on the streets of New York City. Simply put, it is illegal to possess open containers of alcohol in public places in New York City. Found in the “Public Safety” Article of the New York City Administrative Code, section 10-125 sets forth the offense:

§ 10-125 Consumption of alcohol on streets prohibited. a. Definitions. Whenever used in this section, the following terms are defined as follows: 1. Alcoholic beverage. Any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume. 2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city. b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained. c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section. d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street. e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.

This charge is oftentimes prosecuted with the use of a New York City “pink” summons which requires a person charged with such an offense to appear in court on the specified date. As is evident from the text of the code provision itself, the “public place” definition encompasses just about every conceivable public place in New York City, including parks, beaches, and malls. Another noteworthy section of the text of the statute is the “rebuttable presumption” that possession of an open container in New York evidences an intent to consume its contents. What this means is that mere possession is sufficient to prove intent unless the defendant comes back with evidence showing that the open container was possessed for another purpose. It is important to note that the factual portion of the accusatory instrument charging this offense must contain an assertion that the defendant “drank or consumed an alcoholic beverage or possessed, “with intent to drink or consume,” an open container containing an alcoholic beverage.” People v. Torres, 1 Misc.3d 126A, (App. Term. 1st Dep’t 2003). Thus, if the summons itself does not contain these words, the charge is subject to outright dismissal. Unfortunately, in New York City it is uncommon for a person charged with this offense to be given the factual portion of the summons at the time that it is issued. Most of the time that section is shown to the defendant for the first time (or his or her attorney) in court on the summons return date.

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The New York Criminal Procedure Law sets forth a mechanism by which certain records relating to cases resulting in convictions of violations, such as Disorderly Conduct, PL 240.20, or traffic infractions, such as Unlicensed Driving, VTL 509, are either returned to the person, destroyed, or sealed. CPL 160.55. As always, this entry meant to be informative, but not a substitute for the advice of experienced criminal defense attorneys.

It should be noted from the outset that this particular sealing provision does not apply to (i) loitering violations under CPL 240.35, (ii) loitering for prostitution violations under CPL 240.37, or (iii) DWAI violations under VTL 1192(1).

The sealing, return, or destruction of records relating to the arrest or prosecution is then effected, by and large, by operation of law. The following rules apply generally to violation or traffic infraction convictions, but special rules may apply in cases involving certain certain traffic and alcohol-related violations.

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People who are arrested may initially be confused when it comes to the difference between a crime and a violation (or infraction) in New York State. Generally speaking, a conviction of a crime carries with it a permanent criminal record whereas a violation (or infraction) disposition does not. This entry will point to some statutory law and perhaps provide a clearer picture of the difference between those two offenses. It is not meant to be a substitute for the advice ofexperienced criminal lawyers.

Classification of Offenses

Penal Law section 55.10 classifies all offenses into one of four categories: felonies, misdemeanors, violations, and traffic infractions. Note that the term “offense” is the one common feature to all of these four terms. Thus, every felony, misdemeanor, violation or traffic infraction is an “offense,” but not every “offense” is necessarily a felony, misdemeanor, violation or traffic infraction. The law distinguishes between these four offenses in the individual penal code section at issue. Thus, the code section describing each “offense” will typically include a sentence identifying it as one of the four categories. The marijuana sections of the penal code demonstrate the codification scheme:

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