Articles Tagged with New York

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In this two-part series, we endeavor to help our readers understand the law of making graffiti in New York, as well as the usual charges that lie in criminal cases involving graffiti making. While some may view graffiti and “tagging” as a form of art, the New York City Police Department and local District Attorneys beg to differ. With Vandalism Squads and anti-graffiti initiatives in place, law enforcement’s message is clear: tolerance for graffiti making is low and it will not go unpunished. In this blog we discuss the charges commonly found in graffiti cases, most of which involve allegations of “tagging” or painting on public or the private property.

Making graffiti on property without the owner’s permission to do so is a class “A” misdemeanor in New York State, punishable by up to one year in jail. In recent years, the City has stepped up it’s effort to combat graffiti writing and enforce this law, with the New York City Police Department going as far as creating an anti-graffiti task force and offering cash rewards for people who continually violate the graffiti statute.

MAKING GRAFFITI

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Under New York state law, there are three degrees of rape, with Rape in the First Degree (Penal Law Section 130.35) being the most serious (a Class B violent felony). Rape in the Third Degree (Penal Law 130.25), however, may be the most common criminal charge, and it can be brought in three different ways.

Per the statute: “A person is guilty of Rape in the Third Degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

Subsection 2 is the most common charge, which involves a criminal charge being brought against an older person (21 years old or older) and a complainant younger than 17. Notably, this charge can be brought against the will of the younger party, meaning that it is not necessary for the complainant to “press charges” for the older person to be convicted. Sometimes these charges are proven without the testimony of the younger party by medical evidence or pregnancy, third party witnesses (who catch and observe the people in the act of sexual intercourse), or admissions by the older party.

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If you are reading this blog, you may be one of the many people under the impression that smoking and possessing marijuana in New York City is now legal. Or, perhaps you’ve been issued a summons accusing you of doing so. First of all, marijuana possession is still illegal in New York City and State, and such will be the case unless and until the legislature acts to amend the law.

What has changed however, is the New York Police Department’s approach to marijuana arrests. In short, you can absolutely still be charged with a crime if caught smoking or possessing marijuana in public. The NYPD, however, has announced that it will cease making full-blown arrests and instead will issue summonses in these cases with limited exceptions (if the person they stop is on probation or parole, has outstanding warrants or a history of violence, or is in violation of another law (ie, DWI drugs).

A summons is a pink ticket handed to you by a police officer which can charge you with a crime or a violation. If you receive one, it means you have been commanded to answer misdemeanor and/or violation charges in a Court of law. Failure to abide by the summons and appear in Court can and will result in a warrant being issued for your arrest. So you (or a lawyer who can go on your behalf – see below) must answer the ticket personally.

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It can be somewhat dangerous for people to travel in and out of the United States with large quantities of cash. Section 5316(b) of the Title 31 of the U.S. Code requires individuals to file reports with U.S. Customs when “knowingly transporting [or] being about to transport monetary instruments of more than ten thousand dollars at one time.” The failure to file such a report is a violation of 31 U.S.C. 5361(a)(1)(A), and if a Customs officer discovers an individual who has misrepresented the amount of cash he or she is carrying, that officer will almost certainly seize the cash for forfeiture in addition to arresting the defendant. Those individuals arrested for failing to disclose their cash may also be subject to the charge of lying to a federal agent, in violation of 18 U.S.C. § 1001.

The penalties for this crime can be significant depending on the amount of cash that was being concealed. For most “bulk cash smuggling offenses,” the federal sentencing guidelines set a base offense level of eight (meaning 0-6 months in jail), see U.S.S.G. 2S1.3(a)(2) and U.S.S.G. 2S1.3(b)(1)(B), plus enhancements based upon the amount of money. See U.S.S.G. 2B1.1. Accordingly, for illegally smuggling, say, $20,000, the federal Sentencing Guidelines might suggest a sentence of 10-16 months in prison for first-time offenders (though this figure is highly dependent upon other variables).

People are often wary about revealing the amount of cash they are actually carrying through Customs because they are afraid that the cash will be investigated. The cash may constitute the proceeds of a crime, or suggest that someone has failed to disclose all of their income to the tax authorities. Regardless of whether the cash is actually illegal or not, however, the Customs officer is likely to seize a significant quantity of cash (50-100% of it, normally) and keep it unless and until the legitimate source of the income is sufficiently proven. This process of contesting forfeiture can take months and typically requires the assistance of an attorney to stand a solid chance of success.

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Understanding the Weinstein indictment and the next steps

According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.

It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.

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Manhattan District Attorney Cyrus R. Vance, Jr. recently announced a change in policy that will soon effect many low-level marijuana offenders in Manhattan. To those who smoke and possess marijuana in New York City, the message was clear: he does not want to prosecute you. The new policy will be aimed at countering the NYPD’s proven disparate treatment of racial minorities in the form of unequal enforcement of the marijuana laws, as well as reduce the number of low-level cases that are handled in the City’s Courts by the thousands. Echoing Vance’s desire to reduce unnecessary arrests and disparity in the enforcement of the law, Mayor Bill De Blasio announced that the NYPD would be required to overhaul it’s marijuana policy as well.

Vance’s policy change comes on the heels of a disturbing (albeit unsurprising) study which revealed that African-Americans are arrested for low-level marijuana offenses at a rate 8 times that of whites in New York City, and 15 times more than white people in Manhattan alone. The critical component of the study of course indicated that both African-American and white folks use marijuana at the same rate.

In light of these (and other) statistics, beginning on August 1, 2018, the Manhattan District Attorney’s Office will simply stop prosecuting low-level criminal cases involving smoking and possession of marijuana, with few exemptions. Yes, you read that correctly: If you are arrested for smoking a marijuana cigarette, joint, blunt or pipe in public, or otherwise possess a small enough quantity of marijuana, the Manhattan DA’s office will not prosecute you as of that date. DA Vance expects that the number of marijuana cases handled by the system annually to be reduced from roughly 5,000 to 200 as a result.