New York City Criminal Defense Blog

A person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possessed marijuana

Penalties:

This statute is the decriminalization of marijuana in New York State. This is a violation punishable only by a fine of not more then one hundred dollars.

If the defendant has previously been convicted of an offense in Article 221, or Article 220, committed within the three years immediately preceding such violation, it will be punishable by:

• A fine of not more then two hundred dollars, if the the defendant was previously convicted of one such offense committed during such period, and
• A fine of not more then two hundred and fifty dollars or a term of imprisonment not in excess of 15 days or both, if the defendant was previously convicted of two such offenses committed during such period.

If you would like to speak to a Marihuana Criminal Defense Lawyer, please contact the Criminal Defense Firm of Storobin & Spodek, LLP at (212) 748-9234.

In New York State, Criminal Defendants can assign their bail to their defense attorney – or for that matter anyone else. This is especially helpful for defendants who have exhausted their financial resources to secure their temporary release pending trial.  The individual who posted the cash bail on the defendants behalf (commonly known as the surety) has the right to receive the money that they posted once the case is finished. They also have the right to assign it to someone else. They can assign all, or just part of the funds to someone else.

To assign bail to your criminal defense attorney; the following steps need to be taken:

1. The surety needs to provide the criminal defense attorney with the original bail receipt.
2. The surety needs to fill out completely a bail assignment application, and sign it in front of a notary.
3. The surety needs to provide the criminal defense attorney with copies of two forms of identification; valid NYS drivers license or out of state license or non driver ID, passport, ATM Bank/Credit Card, voters reigstration ID, employment ID, NYC library card or utility bill.  Note – one form of ID must have a photo.
4. The criminal defense attorney then must submit a signed letter on his or her letterhad stating that they represent the defendant

The above documents must be brought or sent to:

NYC Department of Finance

Client Services

1 Centre Street, Room 2200

New York, NY 10007

For more information on the process, please contact the NYC Department of Finance at 212-669-2879 or visit them online at:

If you or are a loved one needs the service of a criminal defense law law firm please contact us at 212-748-9243. Our phones are answered live 24/7.

Our office routinely gets calls from defendants who live outside of New York State, were visiting New York,  and unfortunately received either a Criminal Summons or Desk Appearance Ticket. They call our office and request our assistance in resolving their situation. Generally, if they reside outside of New York State, we can appear on their behalf at Court.  We can also  resolve the case on that first appearance if the offer is satisfactory to our self and our client.  No criminal record, and generally no fine or additional costs to the client.

The authority to appear without the defendant stems from the Criminal Procedure Law (“CPL”) 170.10(1)(b), which reads as follows:

In any case in which the defendant’s appearance is required by a summons or an appearance ticket, the court in its discretion may, for good cause shown, permit the defendant to appear by counsel instead of in person.

The Statute required “good cause shown”. New York State cases have defined good cause broadly  “as some compelling fact or circumstance.”  I generally alert the Court, that the time and expense our clients would have to extend to resolve this minor case would be an undue hardship on them.  Lastly, I always provide the Court a notarized statement from the client authorizing both our appearance, and our resolution of the case at hand.

Cases that we have handled in this capacity are:

* Drinking Alcohol in Public
* Being in a Park After Dark
* Riding a Bicycle on the Sidewalk
* Various Trespass Offenses
* Disorderly Conduct
* Unlawful Possession of Marijuana
* Reckless Driving
* Various Trucking Offenses
* Urinating in Public
* Possession of a Knife over 4 inches
* Selling tickets too close to a stadium (even for face value)
* Unlawful Eviction

If you have received a Criminal Summons Ticket or Desk Appearance Ticket while you were in New York State but you lives outside of New York State, please contact us at (212) 748-9243 to discuss how the Criminal Defense Lawyers at Storobin & Spodek, LLP can assist you.

If you are convicted or accept a plea to an alcohol or drug related driving offense, your drivers license or privilege to drive in New York will be revoked. In order to receive a conditional license, or a conditional privilege to drive in NY you will be required to participate in the New York State Drunk Driving Program . (“DDP”.) DDP is a series of seven classes totaling a minimum of 15 hours which are designed to deter future drunk driving, through educating the offender.

By participating in the program, the Defendant is entitled to a conditional license from the Department of Motor Vehicles.

The conditional license allows the defendant to:

• To and from work
• If you drive for a living, then the ability to drive during your work hours
• To and from a class or activity which is authorized as part of the program
• To and from school
• To and from probation activities
• To and from DMV
• A 3 hour consecutive day time period
• To and from Medical Appointments (Dr’s note required)
• To and from school to pick up child

Once you receive an Order of Suspension or Revocation from the Department of Motor Vehicles, the notice will indicate where you can enroll in the DDP. You will need to provide an acceptable form of ID with your signature, and pay the program fee of $75.00. After enrollment, you will be required to pay a fee directory to the program. The fee varies but can not be higher then $225.00. If you are referred for further treatment, there will be additional costs due to the offender.

Classroom Session:

You are required to attend all seven weekly classroom sessions. Each session takes 2-3 hours, for 16 hours total. Once you complete all of the classroom sessions, your involvement with DDP will end, unless the program refers you for a formal evaluation.

Formal Evaluation:

Individuals who participate in in DDP are subject to being referred for formal substance abuse evaluation. There can be many reasons for the referral:

• the results of a written self-inventory.
• two or more alcohol or drug-related driving convictions within 10 years.
• an arrest for an alcohol or drug-related driving violation while enrolled in the DDP.
• attending class under the influence of alcohol or drugs.
• a request by the student for help with a substance abuse problem, or an admission that the student is currently in treatment.

If you are referred, then you can choose a provider from a list supplied by the DDP. If you do not agreed with the counselors evaluation, you may contact the Director of the DDP and request a second evaluation. You will be stuck with the results of the second evaluation. If the counselor recommends a formal substance abuse program for you – you will be required to complete the program to obtain the conditional license.

After evaluation, you may be required to complete a formal substance abuse treatment program. If you fail to complete required evaluation or treatment, you will be dropped from the DDP and your conditional license will be revoked.

Completion of the Program:

Once you have met all of the requirements of DDP, you will receive a Notice of Completion which will also be sent to the DMV. Depending on the status of your drivers license will depend if your license will be restored of it you need to apply for a new license.

Re-licensing after DDP:

If your original license had been suspended, you must take these steps:

• complete the DDP;
• go to any state or county motor vehicle office to have your license restored;
• pay a $25 suspension termination fee. For a suspension that has an effective date on or after July 6, 2009, the termination fee is $50.
• if your license had been suspended following a violation of the “Zero Tolerance Law,” you must pay a $100 suspension termination fee and a $125 civil penalty;
• and pay any required license fees, such as for license renewal.

If your original license had been revoked, you must:

• complete the DDP;
• bring your DDP “Notice of Completion” (MV-2026) and conditional license to the state or county motor vehicle office that issued the license;
• meet all DMV requirements and criteria for re-licensing;
• and, pay any required license fees such as for license renewal, or for any required skills tests for Commercial Driver Licenses.

Under Section 130.75(a) of the New York State Penal Law, the crime of Course of Sexual Conduct against a Child in the First Degree reads as follows:

A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct, which includes at least one-act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child not less 11 years old.

FIRST ELEMENT

The first element that the Jury/Judge would need to find would be that the defendant, engaged in two (2)  or more acts of sexual conduct:

which included at least one (1)  act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact to the victim.

So we need two (2) acts of sexual conduct, and at a minimum one of those acts has to be either:

• sexual intercourse
• deviate sexual intercourse or
• aggravated sexual contact.

We now again turn to the Penal Law to examine the statutory definitions of those terms

Sexual Conduct is defined as sexual intercourse, deviate sexual intercourse and sexual contact.

Sexual Intercourse has the ordinary meaning that everyone knows it to mean. However, under the Law, any penetration is sufficient.

Deviate Sexual Intercourse means sexual contact between two people, who are not married, consisting of either contact between the :

• penis and the anus
• mouth and the penis
• mouth and the vulva

Sexual Contact is defined as any touching of the intimate (private) parts of another person. The two people can not be married. The touching has to be for the purpose of gratifying the sexual desire of other party. This can be the offeender touching the victim, or the victim touching the offender.  The touching can be skin to skin or through clothing.

Aggravated Sexual Contact – Inserting a foreign object into vagina, urethra, penis or rectum of a child and causing physical injury to child. This inserting can not be done for a valid medical purpose.

SECOND ELEMENT

That the Defendant intentionally engaged in these two or more acts of sexual conduct. Intentionally means that the defendants conscious objective was to cause the result, or to engage in the conduct. This is proven by the facts and circumstances leading up to, surrounding and following the events in question.

THIRD ELEMENT

The time period where the two (2) acts of sexual conduct over a period of time not less than three (3) months. The time period that these events took place has to be at a minimum three (3)  months long.

FOURTH ELEMENT

That the victim/child was less than 11 years old on the date of the acts charged.  The defendant does not need to know the age of the victim at the time of the offense – it does not matter what age the defendant though the victim was.  The victim just has to be under 11  at the time the acts were committed.

DIFFERENCE BETWEEN THE FIRST DEGREE AND SECOND DEGREE

The difference between the first degree crime, and the second degree crime is that the first degree crime requires that one of the acts of sexual conduct be either:

• sexual intercourse
• criminal sexual act
• aggravated sexual contact

The second degree crime just requires two or more acts of sexual conduct.

The first degree crime is a B Felony, whereas the second degree crime is D Felony.

Todd A. Spodek is a Partner at Storobin & Spodek, LLP a Criminal Defense law firm in New York.

Article 220 of the New York State Penal Law governs the drug crimes in New York State.  The weight of the substance will greatly affect the charges that are brought against the defendant. The weight or quantity of the substance is an aggravating factor. In both sale and possession cases under Article 220 the weight of the substance is a strict liability element, so the ADA does not need to prove that the defendant knew the weight of the substance.

There are two types of weight classifications in Article 220. There is “pure weight” and then there is “aggregate weight.”  The term pure weight refers to the actual weight of the substance. This calculation is notwithstanding any additives to the substances.  The term aggregate weight is the total weight of the drug itself with any other additives that is included in the substance.

Example: 5 ounces of Cocaine might be 2 ounces pure cocaine, and 3 ounces of additives. Thus this package has a pure weight of 2 ounces cocaine, and an aggregate weight of 5 ounce.

The pure weight would be determined by Police chemists. They would determine the purity of the drug. This number would then be multiplied by the gross weight to get the total pure weight. Whereas for aggregate weight, they would just measure the entire substance without any of the packaging.

In certain circumstances, the Assistant District Attorney (“ADA”) and/or the Defense Attorney and/or the Defendant will want to set up an informal meeting with the District Attorneys (“DA”) office.  This meeting is called a “proffer” or “queen for a day.” The title queen for a day comes from the vintage television show of the same title, which was the predecessor to modern reality television. The contestant would tell the host all of their problems, and the audience would then ring an applause meter and the contestant would then get the relief she requested. Unlike the television show, the defendant who participates in a proffer session does not always leave as happy.

The meeting generally takes place at the ADA’s office and depending on the nature of the crime there will be various additional people from the DA’s office there. There could be Detectives, senior or junior District Attorneys, computer experts, forensic accounting people, etc.

A proffer is set up when a Defendant believes that he/she would get a favorable plea deal from the ADA if he/she proffer’s information to them. This information could lead them to new arrests, drugs, weapons, search warrants, etc. Further the Defendant might be willing to cooperate with the DA’s office as a Confidential Informant (“CI”.) The DA’s office will not always be open to setting up a proffer sessions. In certain cases, they feel that they have nothing to gain from you coming in. They might have an air tight case against you, or the information you can provide to them is so limited that it does them no good.

Generally before a proffer is set up, the defense attorney will have numerous discussions with the ADA regarding the scope of the meeting and what the defendant can reasonably expect to get out of cooperating. The defense might limit the meeting to information regarding crimes that the defendant is not a part of.  Also, it is imperative at all times the Defendant be 100% truthful at a proffer session. If the ADA finds out that the defendant is lying, and is not credible then they will discount everything they are being told, and they will not go through on any plea bargain promises. The Defendant can very well find themselves in the unfortunate situation where they have disclosed incriminating information, and put themselves in a compromising situation at a subsequent trial.

Before any proffer goes forward, the ADA, the defendant, and the Defense Attorney will enter into a “Debriefing Agreement.” This agreement will have three main points.

1. Case-in-chief Prosecution – If the DA’s office brings an action against the defendant, they will not use on their case-in-chief any statements made by the defendant in the proffer meeting. However, the ADA can use any statements in an action against the defendant for perjury or false statements.
2. Statements Leading to new Evidence - The ADA can use any statements in this meeting for the purpose of obtaining leads to other evidence, and if that new evidence is developed, it can be used in a new prosecution of the defendant. Further, if the Defendant decides to go to trial, and testify the ADA can use any statements made at the proffer on cross-examination, as well as to rebut any evidence offered by the Defense.
3. Merger Clause – The agreement only deals with statements made at this meeting at the specified date and time. It does not apply to any statements made at any other time. No promises as to the DA’s position as to the Defendant and a plea deal are binding, unless it is in a writing singed by all parties.

Proffer sessions are risky business.  As it is clear from above, the DA’s office can use the information the defendant provides to follow-up leads and conduct further investigations. If those subsequent investigations reveal new evidence against the defendant, it can be used to prosecute and convict the defendant. Further, the ADA has now had an opportunity to see how you are under pressure, under examination, and your underlying theory of the facts of the case. The debriefing agreement is specifically written broadly so that the DA’s office has great latitude in its options against you. By proffering, you basically give up your right to present a full defense at trial.  Now, what do you do if you do not get the deal that you expected.

Before you decide to enter into a proffer agreement with the DA’s office a Defendant and his/her counsel must consider a few questions:

• How strong is the DA’s case against you?
• Do you have any defenses? If so, how strong are they?
• What are the possible sentences if you cooperate?
• Are there any plea bargain limitations?
• What about the possible sentences if you are convicted at trial?
• Could you weather the storm that a trial brings?
• Is the DA trustworthy? Is he/she authorized to plea out this matter as they fit? Do they need a supervisor/bureau chief’s permission?
• How much information can you provide?
• What sort of information can you provide?
• Are you or your family at risk if you provide information?
• Can you testify at trial of any of the future defendants that your information led to their arrest?
• Are you confident that you can be truthful even if it is incriminating?
• Do you have any professional licenses at stake if you are convicted?
• Is your family or loved ones at risk of arrest, indictment, etc.?
• Is there any pending civil/forfeiture action?

Once a thorough analysis of the above questions and answers is done, one can make an informed decision as to whether a proffer session is in their best interests.  As in any interaction with law enforcement, one must guide themselves accordingly.

Todd A. Spodek, Esq. is a Partner at Storobin & Spodek, LLP a criminal defense firm located in New York City. He can be reached at (212) 748-9243.

In New York State there is no such things as an expungement of criminal records. There is what is called “sealing.” Sealing basically means that all fingerprints, palm prints, photographs and official records and papers are destroyed or returned to the defendant.

Under Criminal Procedure law 160.50(1) when a case is resolved in favor of a defendant, the record of the action must be sealed, unless the Court directs otherwise.

In Favor of a Defendant includes the followingg:

• Acquittal at Trial
• Dismissal by Grand Jury – No True Bill
• Dismissal in the Interests of Justice – Clayton Motion
• Dismissal of Information
• Adjournment in Contemplation of Dismissal (“ACD”)
• Decline Prosecution (“DP”)
• Decline to File Accusatory Instrument (By the Police)
• Order Setting Aside the Verdict
• Order Vacating a Judgement
• Habeaus Appeal
• Unlawful possession of Marijuana – Penal Law 221.05

In these situations, the records are automatically sealed. The records with the Police, the Prosecutor, Division of Criminal Justice Services (“DCJS”), and the Court are all sealed. These records are available to the defendant or his/her agent.

The other type of sealing that occurs is with Violations and Traffic Infractions. In these circumstances, the DCJS, Police and prosecutors files are all sealed. The difference here is that the Court records are not sealed. The Court needs to keep a record of these convictions.

When a third-party does a criminal history record search (“CHRS”) on an individual only the convictions of misdemeanors and felonies will come up. Offenses will no longer show.

Common Infractions and Violations include the following:

• Trespass
• Disorderly Conduct
• VTL Violations
• Harassment in the 2nd Degree

The only time that sealing does not occur under these circumstances, is when the District Attorneys office moves upon not less than 5 days notice to stop the sealing in the interest of justice.

Lastly, a record of a sealed arrest remains in a confidential file at DCJS and can only be accessed under the following circumstances:

• The client requests it
• The client applies for a gun license
• The client applies for a job as a law enforcement or peace officer
• The client is arrested while on probation or parole
• If a prosecutor or law enforcement establishes that “justice requires” it.

“Speedy Trial” refers to one of the rights that defendants facing criminal charges have under the 6th Amendment to the United States Constitution. The Sixth Amendment provides in part that

“In all criminal cases the accused shall enjoy the right … to a speedy trial.”

The underlying purpose of this right is that defendants should not be subject to unreasonable lengthy incarceration prior to a trial. It protects defendants against egregious prosecutorial conduct to delay cases.  Besides the right granted under the U.S. Constitution, the right is also codified in New York in Criminal Procedure Law Section 30.30. Unlike the constitutional right, the NY right was enacted to enforce prosecutional readiness and to address delays by prosecutorial inaction.  The criminal defendant has two rights, both the speedy trial right under the U.S. Constitution and the one under the NYS Penal Law.  Depending on the type of offense an individual is charged with will depend on the applicable time period under New York State Law.

New York State Statutory Speedy Trial Rights:

Applicable Time Periods:

Felonies – 6 Months

Class A misdemeanors – 90 Days

Class B misdemeanor – 60 Days

Violations – 30 Days

Traffic Violations – No Time period for statutory Speedy Trial but Constitutional Speedy Trial still applies

To be “ready for trial” under CPL 30.30, the Prosecution must in fact be ready to proceed and communicate that readiness on the record.  Once the Prosecution states ready on the record they have met the statutory requirement.  This can’t be a prediction or expectation of future readiness.

Subsequently, they are only charged with a delay that directly implicates their ability to proceed to trial.  The People are not charged with the time that is due to court congestion. To calculate the speedy trial time you look at the time between the filing of the first accusatory instrument and the Peoples declaration of rediness. You then subtract excludable periods of delay, and add any post-readiness delays which are attributable to the People and are excluded under the statute.

Excludable Time Periods:

The Actual Day the Accusatory Instrument was Filed

Pretrial motions filed by the Defendant and the period they are under review.

Discovery by Stipulation (“DBS”)

Peoples need for a reasonable time to prepare for trial

Adjournments based on consent of both the Prosecution and Defense

The Burden:

When a motion is made pursuant to CPL § 30.30, a defendant meets his burden of going forward by demonstrating that a delay greater than the allowable statutory time limit has occurred since the commencement of the action. Once shown, the burden then shifts to the People to show that certain periods of time should not be charged against them.

The New York State Court of Appeals in People v. DeBour set out the four types of encounters that Police can have with civilians, and the underlying beliefs that the Police need to have at the time of the encounter.

1. Level 1 – The Police are permitted to request information from an individual, as long as that request is supported by an objective, credible reason. The reason does not necessarily have to be indicative of criminality.
2. Level 2 – This is the common-law right of inquiry. The Police need a founded suspicion that criminal activity is afoot.
3. Level 3 – The Police can forcibly stop and detain an individual. This requires a reasonable suspicion that the particular individual was involved in a felony or a misdemeanor.
4. Level 4 – This is an arrest. This requires probable cause to believe that the person committed a crime.  Probable cause exists where the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.