New York Criminal Defense Blog

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 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.

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.

While your case is pending in a local criminal court in Westchester County, a defendant might have the opportunity to “conference” the case with the Supreme Court. This means that the case will be placed on the felony screening conference calendar on a before  a set date.  The District Attorney and the defendant (with advice of counsel) must request and consent to to adjournment of the case for the conference.

The defendant must waive certain key time periods under the Criminal Procedure Law (“CPL”) to have the felony screening conference:

1. Speedy Trial under CPL 180.8o – This provision governs the process when the defendant is being held on a felony complaint for more then 120 hours (5 days), or in the event that a Saturday, Sunday or legal holiday occurs during the 12o hour period then 144 hours. The defendant is entitled to be released if the District Attorneys office have not either obtained a plea, presented the case to the Grand Jury, or commenced a felony hearing. Under this felony screening waiver, a defendant is indefinitely waiving this time period. This means that the defendant can be held without any action on the District Attorneys behalf.
2. Speedy Trial under CPL 30.30 - This provision governs the process when the defendant is entitled to have his or her trial be heard by either a Jury or by a Judge. Under the felony screening waiver, a defendant is indefinitely waiving the below time periods as applicable to their case. This means again that the defendant can be held (if in jail), or if just be in limbo (if out of jail) without any action on the District Attorneys behalf.

• Felony – 6 Months
• A Misdemeanors – 90 Days
• B Misdemeanors – 60 Days
• Violations – 30 Days

Under the felony screening waiver both of these key time periods will be waived till the conference, and then any subsequent adjournments which are requested by the defendant, or consented to by the defendant or his or her attorney or due to conduct of the defendant. In fact, the only way to have an adjournment not be consented to is to object either on the record, or in writing to the adjournment or or before the adjourned date. The consent will occur only till the defendant demands a felony hearing.

Further, if the defendant is being held for grand jury action either after a felony hearing, or if the District Attorney has decided against proceeding with a felony hearing but before the grand jury has handed up an indictment, the defendant requests a superior court conference, the defendant specifically waives CPL 190.80. This provision states that a defendant who is being held pursuant to a felony complaint, for grand jury action must be released after 45 days if there has been no grand jury action.

Todd A. Spodek, Esq. is a criminal defense attorney with the criminal defense firm of  Storobin & Spodek, LLP. If you are considering signing a felony screening waiver for a superior court conference please contact us to discuss your options. We can be reached 24/7 at (212) 748-9243.

Article 240 of the New York State Penal Law defines the Offenses Against Public Order. Section 240.25 of the New York State Penal  Law defines the crime of Harassment in the First Degree as follows:

A person is guilty of Harassment in the first degree when he or she:

• intentionally, and
• repeatedly
• harasses another person, by doing one of the following

• following such person in a public place OR
• engaging in a course of conduct OR repeatedly committing acts which places such person in reasonable fear of physical injury

Harassment in the first degree is a class B misdemeanor punishable by up to 3 months in Jail.

A complaining witness aka the victim may allege that the harassment stems from emails, text messages, letters, phone calls, voice-mails and other forms of communication. It is essential that a criminal defense attorney understand exactly what happened, and your true intent at the time of the incident. Generally, an isolated event can be viewed completely differently from a pattern.

The terms used in the New York State Penal Law have their own special meaning provided to them by law. I will describe them below:

Public Place:  A place in which the public or a substantial group of people have access, and includes, but is not limited to highways, transportation facilities, schools, places of amusement, playgrounds, hallways,  lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.

Physical Injury: Impairment of physical condition or substantial pain.

Intentionally: A person acts intentionally when he or she’s conscious objective or purpose is to do so.

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP. If you or you loved one has been arrested, and is either at Central Booking or Rikers Island facing an harassment charge, please contact our office at (212) 748-9243 for a free consultation.

WHAT IS A DESK APPEARANCE TICKET (“DAT”)?

DAT stands for a Desk Appearance Ticket.  Under New York State Criminal Procedure Law Section 150.10, a Desk Appearance Ticket is a written notice, by a Police Officer directing an individual to appear in a criminal court on a designated time and date to face a criminal charge. The date on the Desk Appearance Ticket is called the “return date” and that is the date that the defendant will be formally arraigned. If you have received a Desk Appearance Ticket, then you have been arrested and are being charged with a crime. The granting of the desk appearance Ticket just means that the Police Officer was satisfied that you will return to Court on that date and the formal booking process (arrest, booking and incarceration) is unnecessary.

WHAT SORT OF CRIMES ARE DESK APPEARANCE TICKETS (“DAT”) AVAILABLE FOR?

Desk Appearance Tickets are available for Violations, Class A, B, and Unclassified Misdemeanors, and lastly for E Felonies. The issuing Police Officers has discretion whether to issue a Desk Appearance Ticket, or holding you until you can be arraigned – so that the Judge can decided if bail is necessary.  Police Officers will generally issue desk appearance tickets to individuals who have proper identification, and do not have a criminal record. The Police will not issue Desk Appearance Tickets for individuals who are accused of Domestic Violence (“DV”) or reside outside of New York City.

WHAT HAPPENS ON THE DATE LISTED ON THE DESK APPEARANCE TICKET (“DAT”)?

On the return date, your case will be either ready or not ready. Unlike the speedy trial calculation, this readiness just means that your paperwork is ready.

WHAT HAPPENS IF YOUR DESK APPEARANCE TICKET (“DAT”) PAPERWORK IS NOT READY?

If you appear on the return date and your paperwork is not ready, then you will just be asked to sign in and then you can leave. The purpose of signing in is so there is proof that you were there on the date and time you were supposed to be. This is important so that no warrants are issued for your arrest. The Clerk will then advise you to leave, and inform you to watch your mail, and phone for any messages regarding a new court date.

WHAT HAPPENS IF YOUR DESK APPEARANCE TICKET (“DAT”) PAPERWORK IS READY?

If your paperwork is ready then the lawyer for the defendant will be provided with defense papers. This will include the Violation, Misdemeanor Complaint or Information and any applicable notices.  This is the first step in the New York State criminal system. This is where you will be informed of the charges that are being brought against you.  This is also when you will enter into a not guilty or guilty plea to the charges.

WHAT HAPPENS IF YOU LOSE YOUR DESK APPEARANCE TICKET (“DAT”)?

The best thing to do would be call Central Booking in the County in which you were arrested, and let them know that you received a Desk Appearance Ticket (“DAT”) but misplaced it.  Their numbers are as follows:

Bronx Central Booking (718) 590-2817

Queens Central Booking (718) 268-4523

Manhattan Central Booking (212) 374-5880

Staten Island Central Brooking (718) 876-8493

Brooklyn Central Brooking (212) 374-5880

I would continually check in with both Central Booking, and the Clerks Office in the County to confirm that no warrants were issued for your arrest.

WHAT HAPPENS IF YOU FAIL TO RETURN TO COURT ON THE DATE ON YOUR DESK APPEARANCE TICKET (“DAT”)?

If you do not appear on the return date on your desk appearance ticket, then the Prosecutor can request a bench warrant for your arrest.  The New York Police Department Warrant Squad will be then be looking for you.  If you do miss Court, you should immediately contact the criminal defense lawyers at Storobin & Spodek, LLP to arrange a surrender.

WHAT IS “STATION HOUSE BAIL” OR “POLICE BAIL” OR “PRE-ARRAIGNMENT BAIL”?

The Police Officer who issued the Desk Appearance Ticket (“DAT”) can accept bail as a condition to granting an individual a Desk Appearance Ticket.

If the arrest was for a Class E felony, any amount up to $750.00.

If the arrest was for a Class A Misdemeanor, any amount up to $500.00

If the arrest was for a Class B Misdemeanor or Unclassified Misdemeanor any mount up to $250.00

If the arrest for a Violation, any amount up to $100.00

The Judge at Arraignment can then continue, increase or exonerate the bail.

WHAT ARE POSSIBLE CONSEQUENCES OF A DESK APPEARANCE TICKET (“DAT”)?

Ordered to pay a fine

Ordered to do community service

Jail

Probation

Criminal Record

WHAT COURTS HEAR DESK APPEARANCE TICKETS (“DAT”)?

New York County Criminal Court

Queens County Criminal Court

Bronx County Criminal Court

Richmond County Criminal Court

Kings County Criminal Court

Midtown Community Court

Red Hook Community Justice Center

WHAT ARE THE GOVERNING LAWS FOR A DESK APPEARANCE TICKET (“DAT”)?

Below are summaries of the key provisions.

Criminal Procedure Law 150.10

A Desk Appearance Ticket must be a written notice, issued and subscribed by a Police Officer or other authorized Public Servant directing an individual to appear at a Criminal Court at at future time. Also if a Desk Appearance Ticket is issued with a traffic ticket, then there must be language on the Desk Appearance Ticket alerting the defendant that he can receive a supporting deposition.

Criminal Procedure Law 150.20

A Desk Appearance Ticket can be given by a Police Officer and/or a Public Servant with the assistance of a Police Officer for all Violations, Class A, Class B, and Unclassified Misdemeanors, and Class E felonies.  Further, pre-arraignment bail can be set.

Criminal Procedure Law 150.30

The Police Officer(s) can set bail as a condition of them granting you a Desk Appearance Ticket according to this schedule:

If the arrest was for a Class E felony, any amount up to $750.00.

If the arrest was for a Class A Misdemeanor, any amount up to $500.00

If the arrest was for a Class B Misdemeanor or Unclassified Misdemeanor any mount up to $250.00

If the arrest for a Violation, any amount up to $100.00

Also, that individuals shall be able to post pre-arraignment bail by Credit Cards.

Criminal Procedure Law 150.40

The Desk Appearance Ticket is returnable in the local criminal court. The defendant must personally receive the Desk Appearance Ticket in his or her hand.

Criminal Procedure Law 150.50

The Police Officer must cause a legally correct Desk Appearance Ticket (“DAT”) to be filed with the local Criminal Court.  Further, if the Judge at Arraignment is satisfied that based on the available facts and evidence it would be impossible for the Police Officer to file a legally correct accusatory instrument – then the Judge must dismiss the Desk Appearance Ticket.

Criminal Procedure Law 150.60

If the defendant does not show up in Court when he or she is supposed to then the Court can issue a Summons or Warrant of Arrest for the defendant to appear.

Criminal Procedure Law 150.70

Certain offenses require the defendant to be fingerprinted. If it is one of those offenses, the defendant must appear at the directed time and place for fingerprints.

Criminal Procedure Law 150.75

If the defendant is charged with Unlawful Possession of Marijuana (“UPM”) under Penal Law 221.05, then he or she should get a Desk Appearance Ticket.  Pre-Arraignment Bail should only be set if the Police Officer

1. is not able to ascertain the defendant’s identify or address
2. believes that the defendant provided false identification or address
3. believes that the defendants does not reside in New York State

Todd A. Spodek, Esq. is a criminal defense attorney at Storobin & Spodek, LLP.  Our firm handles desk appearance tickets in the five boroughs of New York City. Our Manhattan office can be reached at (212) 748-9243 and our Brooklyn office at (718) 596-3700.

The sexual assault evidence collection kit, sexual assault forensic evidence (SAFE) kit, sexual offense evidence collection (SOEC) kit, are collectively known as Rape Kits. Rape Kits are designed to assist medical professionals in the collection, gathering and preserving of evidentiary specimens in any case in which the crime/incident involves a sexual assault. The medical professional can be a nurse, physician, physician’s assistant, etc.

A Rape Kit contains commonly available examination tools such as:

• Detailed instructions for the examiner
• Forms for documentation
• Tube for blood sample
• Urine sample container
• Paper bags for clothing collection
• Large sheet of paper for patient to undress over
• Cotton swabs for biological evidence collection
• Sterile water
• Sterile saline
• Glass slides
• Un-waxed dental floss
• Wooden stick for fingernail scrapings
• Envelopes or boxes for individual evidence samples
• Labels

The primary reason is to recover potentially valuable physical evidence that will be useful in any subsequent legal and/or investigative proceedings to identify the perpetrator of the reported assault through DNA analysis and/or to verify the nature and circumstances of the assault.

A Rape Kit collects the following types of evidence and may include the following

• Saliva
• Sperm
• Hairs
• Spermatozoa
• Blood – STD’s, prengnacy, and/or HIV.
• Fibers
• Plant material
• Soil
• Physical evidence from the rape scene
• Photos of torn clothing or external injuries

The kit should always be completed directly after the attack.  The choice to participate in in any part of the evidence collection process is the victim’s right. The medical personall must have the victim’s informed consent. The Kit is then sealed in a box, and secured at the hospital until it is transferred to the police for further laboratory analysis.

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

Probation:

Probation is a criminal sentence imposed by a Criminal Court or Supreme Court: Criminal Term Judge. Generally probationers (the individual on probation) are released back in the community. Occasionally an offender can received a sentence of both jail, and probation. Generally straight probation is available for first time non-violent offenders.  Probationers are subject to the terms and conditions of probation. A man or woman on probation is far more restricted than normal citizens. These terms can include regularly contact with a probation officer on a weekly basis. The probationer must work, go to school, or be actively look for work. For certain type of offenders, terms can include required attendance at alcohol or drug treatment programs, educational classes, anger management and driving related classes. The length of probation and its terms are detailed in a probation contract and once the person has completed the terms of probation, he or she is free of court supervision.

Parole:

Parole is a portion of a correctional sentence served in the community after a term of incarceration in a New York state prison.  When an offender serving an indeterminate sentence, the New York State Board of Parole makes decisions whether eligible state inmates are granted or denied parole. If the offender is serving a determinate prison term, then he or she is generally released after 6/7 of their sentence. This period of supervised release following incarcertaion for such offenders is known as “post release supervusion.” Parole or Post-Release Supervision is intended to assist offenders in intergrating back to socieity. The returning offenders are supervissed in the community by parole oficers. Keep in mind parole is a privilege, not a right.

The parole board will make the decision if the offender is ready to be released back to society and finish out the sentence on parole. The Parole board will consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by the terms and conditions (similar to those for probation) for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.

Revocation of Probation and Parole:

Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole or probation is revoked, the offender goes back to prison and serves the remainder of his or her sentence in jail or prison.

For more info, please click here:

New York State Division of Probation

New York Division of Parole

To speak with a  Parole or Probation Violation Attorney with the criminal defense law firm of Storobin & Spodek, LLP please contact us 24/7 at 212-748-9243 or 718-596-3700.