New York Criminal Defense Blog

As per The New York Times, Rapper T.I. AKA TIP was arrested last night in Los Angeles, CA on drug possession charges and released on ten thousand dollars bail ($10,000.00.) You can see the actual booking details here: T.I.’s Booking Details. The Police need a predicate legal basis for stopping, and searching a vehicle, and  in this case it is the alleged odor of marijuana emitting from the car. In other notable cases such as the one with Lil Wayne, and Ja-Rule  it was a speeding violation of the Vehicle & Traffic Law (“VTL”.)

In New York, Marijuana is not defined as controlled substance under Public Health Law 3306. Rather it is defined separately in Public Health Law 3302(21), and concentrated cannabis (more commonly known as hashish) is defined in Public Health Law 3302(4)(a).

The law in New York varies with the quantity of marijuana one has on his or her person. The relevant law in Penal Law Article 21. Marijuana is decriminalized to some extent in New York as first time offenders are subject to no prison time and no criminal record.

PL 221.05 – Unlawful Possession of Marijuana

Possession of up to 25 grams privately. Is a Violation.

If its your first drug offense within the three years preceding the violation, then only a fine up to one hundred dollars.

If its your second drug offense within three years preceding the violation, then  only a fine up two hundred dollars.

If its your third drug offense within the three years preceding the violation, then only a fine up to two hundred and fifty dollars, or definite term of imprisonment up to 15 days, or both.

PL 221.10 – Criminal Possession of Marijuana in the Fifth Degree

Possession of any quantity in public place AND open to public view, or burning is a Class B Misdemeanor.  Potential penalties are a definite jail term up to three months.

PL 221.15 Criminal Possession of Marijuana in the Fourth Degree

Possession of over 25 grams to 2 ounces, private or pubic.  CPM4 is a Class B Misdemeanor. Potential jail sentence of up to three months.

PL 221.20 Criminal Possession of Marijuana in the Third Degree

Possession of over 8 ounces to 16 ounces, private or public.  CPM3 is a Class E Felony. Potential prison term of up to one to four years.

PL 221.25 Criminal Possession of Marijuana in the Second Degree

Possession of over 16 ounces to 10 pounds private or public. CPM 2 is a Class D Felony.  Potential prison term of one to seven years.

PL 221.30 Criminal Possession of Marijuana in the First Degree

Possession of over 10 pounds, private or public. CPM1 is Class C Felony. Potential prison term of one to fifteen years.

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP.

Through any serious criminal investigation, various documents are prepared by the New York Police Department (“NYPD”.) One of the most frequently used forms is known as Detective Division Form number 5, commonly known as a DD5. NYPD forms are prefaced by the Bureau of Division within the department that used that form.

A DD5 is a report of an ongoing investigation and must be filled out at a minimum – once every six (6) months. It is a follow up on a previously filed complaint. An active case will generate many DD5′s. As the Detective investigates the case, he or she adds information to the file via a DD5. As the complainant provides information on the case, this information will be processed via a DD5. Every Detective who works on th case will file a DD5.

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP.

Caroline Giuliani was initially charged with the following crimes:

PL 155.25 – Petit Larceny, and

PL 165.40 – Criminal Possession of Stolen Property in the 5th Degree

Ms. Giuliani was given a Desk Appearance Ticket (“DAT”) and her arraignment was set down for today in New York Criminal Court. As per The New York Times Ms. Giuliani accepted an Adjournment in Contemplation of Dismissal (“ACD”) in full satisfaction of the charges against her, with a conditional discharge – the condition being that she does one day community service and stays out of trouble for six (6) months. This is generally the type of deal offered by New York County District Attorneys Office (“NYCDA”) on a case like this.  As long as Ms. Giuliani does her community service, and does not get re-arrested within the six (6) month period the case will be dismissed and sealed and Ms. Giuliani can move on  with her life.

One thing that Ms. Giuliani should be aware of is that under the New York General Obligations Law 11-105, Sephora the (“Complainant”) in this case can still pursue a civil claim against her that is seperate from the criminal action. The statute is posted below in full.

New York General Obligations Law 11-105

1. When used in this section, the term “mercantile establishment” shall mean a place or vehicle where goods, wares or merchandise are offered for sale or a place or vehicle from which deliveries of goods, wares or merchandise are made.

2. When used in this section, the term “larceny” is an act heretofore defined or known as common law larceny by trespassory taking as defined in paragraph (a) of subdivision two of section 155.05 of the penal law committed against the property of a mercantile establishment.

3. When used in this section, the term “emancipated minor” shall mean a person who was over the age of sixteen at the time of the alleged larceny and who was no longer a dependent of or in the custody of a parent or legal guardian.

4. In any proceeding brought under this section the burden of proof shall be by a preponderance of the evidence.

5. An adult or emancipated minor who commits larceny against the property of a mercantile establishment shall be civilly liable to the operator of such establishment in an amount consisting of:

(a) the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed fifteen hundred dollars; plus

(b) a penalty not to exceed the greater of five times the retail price of the merchandise or seventy-five dollars; provided, however, that in no event shall such penalty exceed five hundred dollars.6. Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:

(a) the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed fifteen hundred dollars; plus

(b) a penalty not to exceed the greater of five times the retail price of the merchandise or seventy-five dollars; provided, however, that in no event shall such penalty exceed five hundred dollars.7. A conviction or a plea of guilty for committing larceny is not a prerequisite to the bringing of a civil suit, obtaining a judgment, or collecting that judgment under this section.

8. The fact that an operator of a mercantile establishment may bring an action against an individual as provided in this section shall not limit the right of such merchant to demand, orally or in writing, that a person who is liable for damages and penalties under this section remit the damages and penalties prior to the commencement of any legal action.

9. In any action brought under subdivision six of this section, the court shall consider in the interest of justice mitigating circumstances that bear directly upon the actions of the parent or legal guardian in supervising the unemancipated minor who committed the larceny.

10. An action for recovery of damages and penalties under this section may be brought in any court of competent jurisdiction.

11. The provisions of this section shall not be construed to prohibit or limit any other cause of action which an operator of a mercantile establishment may have against a person who unlawfully takes merchandise from the mercantile establishment.

12. Any testimony or statements of the defendant or unemancipated minor child of the defendant or any evidence derived from an attempt to reach a civil settlement or from a civil proceeding brought under this section shall be inadmissible in any other court proceeding relating to such larceny.

The statute provides a minimum as well as a maximum penalty authorized by law. The  Complainant can sue for up to five (5) times the amount of the value of the item that was stolen. The minimum the Complainant can demand is seventy five dollars ($75.00), and the maximum the Complainant can demand is five hundred dollars ($500.00.)

If the merchandise is recovered then the Complainant is subject to the minimum and maximum penalty above. If the merchandise is not recovered, the store can recover its value up to fifteen hundred ($1,500.00) dollars plus the statutory penalty.  Further, a conviction in the criminal case is not a prerequisite to the Complainant bringing a civil case under this statute. The burden here is a preponderance of evidence.

Todd A. Spodek Esq. is a criminal defense attorney with Storobin & Spodek, LLP.

Under CPL 180.85 after arraignment of a defendant on a felony complaint, other then for the following charges:

• PL 125.10 – Criminally Negligent Homicide
• PL 125.15 – Manslaughter in the Second Degree
• PL 125.20 – Manslaughter in the First Degree
• PL 125.25 – Murder in the Second Degree
• PL 125.26 – Aggravated Murder
• PL 125.27 – Murder in the First Degree

Either the Defendant, the People, or the Court (sua sponte) may move for a Motion Terminating the Prosecution on consent of ALL parties. The counts of the Felony Complaint can not have been presented to the Grand Jury, or disposed of via a Superior Court Information (“SCI”), or reduced to Misdemeanor counts. The Motion must be in writing, and can not be done earlier then 12 months after the arraignment on the felony complaint. The Parties must be given at least 30 days notice of the return date.

The People  then have an opportunity to file Opposition to the Motion before the return date. If the People do not file Opposition papers, then they are deemed to consent to the termination. If the People do file Opposition in the required time frame then the Court may defer disposition of such a Motion for 45 days to allow the People to take action on the felony complaint. If still no action is taken during the 45 day period then the Court will enter an order terminating the prosecution. However if the People on at least 5 days written notice to the Defendant, show good cause for their failure to take action the Court may deny the motion.

Under a CPL 180.85 Motion, the defendant does not need to appear in Court on the return date, and the time during which the Motion is pending is excludable for Speedy Trial purposes. Termination under this section does not preclude the People from subsequently indicting the Defendant. In the event that the Motion is granted, prior to the sealing of the charges, if the People indicate their intention to seek an indictment the Court is required to stay the sealing under CPL 160.50 for up to thirty days.

Sample CPL 180.85 Notice of Motion

Sample Opposition to CPL 180.85 Motion

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP.

There are 2 types of Certificate of Dispositions available to defendants.

1. Certificate of Disposition

This certificate is an official court document which will state the disposition of the case.

2. Certificate of Disposition – Bail Exoneration

This certificate is an official court document will state that on a certain date, a certain Judge, in a certain Part exonerated the bond. The note will state the name and address of the surety as well as the date it was posted.

Both Certificates of Disposition are available in the Clerks Office in Criminal Court. For Felonies it will be Supreme Court Clerks Office and for Misdemeanors it will be the Criminal Court Clerks Office.

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP.

Under CPL 170.55(2)

Upon application of the People made at any time not more then six months…the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in furtherance of justice, and the action must thereupon proceed.

The People can move for an immediate sealing of the ACD and do not have to wait the entire six month period. In certain situations this might alleviate some of the collateral consequences I described in my last post in accepting an ACD.  Another reason why the People might do this instead of just dismissing the case outright is that it precludes the defendant from bringing a malicious prosecution lawsuit.

Todd A. Spodek is a criminal defense attorney with Storobin & Spodek, LLP.

Although in many instances accepting an ACD in full satisfaction of the charges pending against you is a good idea, a defendant should also consider the collateral consequences of an ACD on their individual situation. Most of the collateral consequences are only applicable during the adjournment period – which is six (6) months, or twelve (12) for certain marijuana cases.

A defendant must consider the following consequences:

• If you desire to bring a federal, or state lawsuit against law enforcement for malicious prosecution you will be barred from doing so by accepting an ACD. Further you may also forfeit your cause of action for false arrest of false imprisonment a well.
• While your case is adjourned, and until the matter is terminated, you will be unable to join the military.
• While your case is adjourned, and until the matter is terminated prospective employers will have access to the court records, and will see it as an open case.  Even though eventually the case will be dismissed and sealed it is still possible for prospective employers to see that you received an ACD.
• Applications for gun permits will be scrutinized and you might have a difficult time in obtaining a gun permit.
• If you are in law enforcement, you will be unable to carry a loaded weapon while the case is pending.
• If you are currently supervised by the Board of Parole, the underlying acts which led to the current arrest can be used against you for a parole violation.
• If you are a immigrant, the ACD can be an issue during the adjournment period.
• If you get arrested again in the future, the fact that you resolved the current case with an ACD, may affect your ability to get a more favorable plea bargain in the future. Under the theory that you received a break already once.
• If you are employed by New York City, your employer will have broad discretion whether to terminate or suspend you from employment.
• New York City Housing Authority (“NYCHA”) will hold or deny an application while the adjournment period is pending.

Todd A. Spodek. Esq. is a criminal defense attorney with the law firm of Storobin & Spodek, LLP.

In certain counties a defense attorney can make an oral application to the Court to have a case dismissed pursuant to an expiration of the applicable speedy trial period under CPL 30.30. Although the People are entitled to a written motion addressing this issue it is common practice that in cases in which the District Attorney can quickly glance at a file, and see that the case has passed the appropriate speedy trial period, the People will “concede 30.30″ and waive their requirement to a written motion. In return for this concession, the People will often request that a stay of sealing for 30 days. This allows the District Attorney to review the pertinent dates outside of the often busy Courtroom  and if there was an error to re-argue the motion within 30 days.

Todd A. Spodek is a criminal defense attorney with Storobin & Spodek, LLP.

Generally the term of art “six month split” refers to a split sentence constituting a  sentence of imprisonment for six months, and probation for five years.  There are other types of split sentences. Section 60.01(d) of the Penal Law defines the various options.

A split sentence is a sentence of either:

• definite imprisonment of up to sixty days for a misdemeanor, up to six months for a felony
• intermittent imprisonment up to four months

along with a sentence of:

• probation (supervised by a probation officer), or
• conditional discharge (no probation officer)

The sentence of imprisonment, is a condition of the sentence of probation or conditional discharge. The term of probation or conditional discharge together with the term of imprisonment can not exceed the term authorized by Article 65 of the Penal Law. Both probation and conditional discharge are revocable sentences. Depending on the circumstances, in particular the defendants conduct the sentence can be modified or revoked entirely.

Todd A. Spodek is a criminal defense attorney with Storobin & Spodek, LLP. Please contact us 24/7 regarding your case.

Article 20, Section 510 of the Vehicle & Traffic Law (“VTL”) outlines the law as to the suspension and revocation of New York States Drivers Licenses. A suspension of the license is for a fixed period of time and will end upon expiration of the that period, and the payment of a suspension termination fee. A revocation means that your license is canceled completely and the Department of Motor Vehicles (“DMV”) will then determine when you are eligible to apply for a new license.

Under VTL 510(2)(a)(i) revocation is mandatory if defendant is convicted of:

• Homicide or Assault arising out of the operation of a motor vehicle or motorcycle
• Criminal Negligence in the operation of a motor vehicle or motorcycle resulting in death

Under VTL 510(2)(b)(iv) suspension is mandatory for a minimum of 30 days and a maximum of 180 days if a defendant is convicted of:

• Assault in the first, second, or third degree against a traffic enforcement agent employed by the City of New York or the City of Buffalo and the agent was enforcing or attempting to enforce the traffic regulations of the city

Under VTL 510(2)(b)(v) suspension is mandatory absent compelling circumstances warranting an exception, for six months when the defendant is convicted of, or adjudicated a youthful offender, or other juvenile adjudication in connection with:

• Any misdemeanor or felony defined in Penal Law Article 220 (Controlled Substance offenses) or Article 221 (Offenses involving Marijuana)
• Any crime in violation of VTL 1192(4) (Driving While Ability Impaired By Drugs)

The Court in this scenario can order that the suspension of the license be stayed for a period of twenty days after the date of sentencing so that the defendant may get his affairs in order. Further, any time that a defendant serve in custody shall be credited against the period of such suspension.

Under VTL 510(2)(b)(xii) suspension is mandatory for 1 year when the defendant is convicted of or receives a youthful offender adjudication for:

• placing a false bomb in the first degree
• falsely reporting an incident in the first degree pursuant to PL 240.60

DMV Order of Suspension

Todd A. Spodek is a criminal defense attorney in New York City with Storobin & Spodek, LLP. If you or your loved one is facing a drivers license suspension or drivers license revocation please contact our office at (212) 748-9243.