New York Criminal Defense Blog

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.

Restitution and Reparation are governed under New York State Penal Law Section 60.27. In parlance, the term “restitution” usually refers to both principles. The legal definition of restitution is to repay the fruits of the offense.  The legal definition of reparation is to repay the actual out of pocket losses to the victim.

Generally, restitution is compensation paid to the victim of a criminal offense paid by the perpetrator of the criminal offense.  The underlying purpose is to pay for the losses or injuries that stem from the criminal offense. The goal is to return the victim to their position he or she was in before the crime occurred. Once the victim alerts the District Attorney that he or she is seeking restitution and reparation, the Judge must order the defendant to pay back restitution unless the interests of justice dictate otherwise. If the Judge does not order restitution, then the Judge must state the reasons why not clearly on the record.

The amount paid by the defendant can not exceed the cost of the crime . Unless the defendant consents, or as a condition of probation or a conditional discharge, the amount of restitution or reparation required by the Court can not exceed $15,000 in the case of a felony conviction, and $10,000 in the case of a any other type of a conviction.

The defendant has the right to object to the determined restitution amount. The Court may hold a hearing, and consider the defendants ability to pay  back any restitution.

Restitution can include various items not limited to:

• Medical expenses
• Counseling expenses
• Funeral expenses
• Insurance deductible
• Incidental expenses
• Property expenses

A victim of a criminal offense can not recoup money for pain and suffering, mental anguish and loss of earnings.

Todd A. Spodek, Esq. is a criminal defense attorney with the trial law firm of Storobin & Spodek, LLP. Please contact us 24/7 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.

A pre-pleading investigation (“PPI”)  is an investigation conducted by the New York Department of Probation, or a third party agency, on a defendants behalf. It is similar to a pre-sentence investigation (“PSI”) report that is conducted by the New York Department of Probation between a plea and the sentencing on a felony charge. The Judge has to allow a PPI to be done the New York Department of Probation. The Assistant District Attorney (“ADA”) can either oppose it or not.  The purpose of the PPI is to humanize the defendant to the Court, and to the ADA. As the name implies, the PPI is done in anticipation of the defendant taking a plea.  The PPI done by the New York Department of Probation will make a recommendation in the report, that will influence the Judge and the ADA as to what the appropriate sentence should be. A PPI done by a third party might also be called a mitigation package. Certain agencies do it at no cost with the sole objective being that the defendant be remanded to the program. Other individuals charge a fee for providing the PPI. The fee varies with the individuals experience, and the length of time it takes to create the PPI.

A defendant who is going to submit to a PPI should be forewarned that the interviewer might ask questions about the crime, and specifics of the defendants actions. A defendant is wise to not speak about the crime, as the PPI might not have its intended effect,  and an anticipated plea might not go forward. It is best for the defendant to state that his or her lawyer has advised them not to speak about the crime.

A defendant has to be mindful that a Judge is limited in what they can do as far as sentencing on a plea. The Judge can not offer a sentence less then the minimum required by law on the top charge of the complaint, or the indictment. Only the ADA can make an offer, and reduce the top charge to a lesser offense with a lesser minimum sentence. Thus, the PPI is really to get the ADA to reduce the offer. A thorough PPI might convince the ADA that you are different then the myriad of similar cases that come across the ADA’s desk. Specifically that the defendant deserves the minimum sentence, or that the defendant should participate in an Alternative to Incarceration (“ATI”.)

A PPI prepared by the New York Department of Probation will be part of the defendants file with the New York State Department of Correctional Services (“DOCS”.) It is imperative that this record accurately reflect the defendants history and background. It will effect the defendants future eligibility for counseling programs, vocational programs, placement within DOCS, and parole.

Todd A. Spodek, Esq. is a criminal defense attorney with the criminal defense firm of Storobin & Spodek, LLP. We represent individuals charged with Criminal Summons, Desk Appearance Tickets, and on all Misdemeanor and Felony charges. If you  or your loved ones is considering a pre-pleading investigation please contact us to discuss your options.

There are three main types of evidence that the defense seeks to suppress in criminal actions. They are:

1. physical evidence
2. statements
3. identification

The underlying reasoning for the suppression of the evidence, is that the government obtained it in violation of the defendants constitutional rights.  The Fourth Amendment to the United States Constitution protects individuals from unlawful search and seizures. In the landmark case Mapp v. Ohio, the Supreme Court held that the Fourth Amendment applies to the States by way of the Due Process clause of the Fourteenth Amendment.  Basically, that the State and its agents are prohibited from conducting illegal search and seizures. This is what is known as the “exclusionary rule.” The goal of the defense is to prevent the prosecution from introducing the evidence at trial . If the suppression is granted at the hearing, then the Prosecutors case is greatly weakened and may ultimately result in all charges being dropped or a more favorable plea bargain being offered.

The three types of hearing that are held for the above are:

1. Mapp Hearing – Illegally obtained physical evidence
2. Huntley Hearing- Illegally obtained statements
3. Wade Hearing - Illegally obtained identification

PHYSICAL EVIDENCE

The evidence obtained usually comes from a warrant-less search. This is typically of the defendant, the defendants premises, or the defendants car. The Police need to have adequate justification for their intrusion. There are four levels of Police Intrusion, and each level has a corresponding justification.

If the Police did not have the required justification for the intrusion, and seizure of the property then any property seized needs to be suppressed.

There are exceptions to the above four levels of justification.

1. Attenuation – This is when the physical evidence seized was recovered not in direct response to the illegal police action but by the defendants own volition. Basically, that the defendant would have taken said action, and the Police would have recovered the evidence, regardless of the illegal Police action.
2. Emergency Doctrine – This is when the Police have reasonable grounds to believe that an emergency exists and they need to take immediate action to protect the public.
3. Criminal conduct after illegal stop/seizure – This is when the defendants commits a new act, after the illegal police action

The search of a person or premises without a warrant is only allowed in three circumstances:

1. Search incident to arrest – All personal property at hand.
2. On consent – The defendant, or someone else with the appropriate authority agrees to the search.
3. Exigent circumstances – This is when the Police act with a reasonably belief that the must act immediately

THE MAPP HEARING

The Prosecution has the burden of going forward to establish that the Police conduct was proper. The defense have the burden of proving the illegality of the search. If the Prosecution intend to prove that the search was on consent, then they have to prove the voluntariness of the consent by clear and convincing evidence.

Under the Criminal Procedure law 710.60(4), hearsay is admissible to establish a material fact.

THE HUNTLEY HEARING

This is the suppression of incriminating statements.  The defendant can contest the voluntariness and lawful nature of any statements made to government agents.  This only deals with statements that the prosecution plans to use at trial. The hearing Judge will determine whether the defendant was in custody at the time of the statement, whether the defendant voluntary waived his or her miranda rights. Whether the Police coerced the defendant into making the statements. The defense can also argue that the statements were based on an illegal arrest. The Prosecution will have to prove that the statements were voluntary beyond a reasonable doubt.

THE WADE HEARING

This is the suppression of an identification. The defense is moving the Court to suppress the identification because it was unfair.

Todd A. Spodek, Esq. is a criminal defense attorney with the trial law firm of Storobin & Spodek, LLP. Please contact us 24/7 at (212) 748-9243.

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.

Under Section 3383 of the Public Health Law (“PHL”) selling imitation controlled substances is illegal. Important sections are summarized below:

SECTION 1(c)(i),(ii), and (iii)

The Statute states that an Imitation Controlled Substance is a substance, other then a drug for which a prescription is required pursuant to article 137 of the education law, that is NOT a controlled substance, which by:

• dosage unit appearance; or
• color; or
• shape; or
• size

is represented to be a controlled substance, as defined in the penal law under Article 220.

Evidence of representations that the substance is a controlled substance may include but is not limited to oral or written representations by the manufacture or seller, about the substance with regard to:

• Its price, nature, use or effect as a controlled substance; or
• its packaging in a manner normally used for illicit controlled substances; or
• markings on the substance

SECTION 2

It shall be unlawful for any person to manufacture, sell or possess with the intent to sell an imitation controlled substance.

SECTION 3

It shall be unlawful for any person to posses or use any type of equipment in order to print, imprint, or reproduce the trademark, trade name or other identifying mark with intent to manufacture an imitation controlled substance.

SECTION 6

In any prosecution, it shall be necessary to prove that the imitation controlled substance was represented to be a controlled substance.  It is no defense, that the accused (defendant) believed that the imitation controlled substance to be a controlled substance.

SECTION 7 – PENALTIES

A Violation of Section 2 or 3 of this Section shall be a Class A misdemeanor.

A Violation of Section 2 or 3 of this Section by a person previously convicted of a violation of this section within the preceding 5 years shall be a Class E felony.

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP dealing with controlled substance crimes and imitation controlled substance crimes in New York State.

The Molineux rule stems from the seminal New York State Court of Appeals case, People v. Molineux from 1901. The Court in Molineux stated the following rule:

“[g]enerally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish:

(1) motive;

(2) intent;

(3) the absence of mistake or accident;

(4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others;

(5) the identity of the person charged with the commission of the crime on trial.

Law School graduates might remember the mnemonic, MIMIC which stands for the above. That is Motive, Intent, Modus Operandi, Identification or Common Scheme or Plan.

The Prosecutor must focus on the crime charged in the current Indictment or Misdemeanor Complaint rather then past charged or uncharged crimes. The underlying theory is that a person should not be convicted of a crime because of his bad character, or because his or her prior conduct indicating that he or she has a propensity to commit the crime for which they now are on trial for. Their guilt should be established solely by the evidence which shows the commission of the crime being currently tried. Article 45 of the CPLR covers numerous evidentiary matters, yet the Molineux rule is not there.  It stems strictly from case law and is constantly being interpreted. While in Federal practice the issue is addressed by the Federal Rules of Evidence 404.

New York case law has held that the above list is illustrative and not exhaustive.  Courts have held that when the People are required to establish the defendants guilty knowledge – they can use evidence of prior crimes, or when the defendant who contends otherwise was acting in concert with another.  Evidence of prior misconduct has also been held admissible to provide the jury with the necessary background information on the nature of  a relationship, to complete a narrative, to fill in gaps in interwoven events, to help the jury understand the case in context or to sort our ambiguous material facts.

Regardless of the reason to introduce evidence e of other crimes, the Court must always conduct a balancing of the probative value and the need for the evidence against the potential for delay, surprise and prejudice.

Todd A. Spodek, Esq. is a trial lawyer with the criminal defense law firm of Storobin & Spodek, LLP. Our Manhattan office can be reached at (212) 748-9243 and our Brooklyn office at (718) 596-3700.

There are four designated culpable mental states under the New York Penal Law section 15.05. Each of these mental states must be inferred from the facts and circumstances  proved, and involve “fine graduations along but a single spectrum of culpability.”

[w]hen the commission of an offense defined in this chapter, or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms “intentionally,” “knowingly,” “recklessly,” or “criminal negligence,” or by the use of terms, such as “with intent to defraud” and “knowing it to be false,” describing a specific kind of intent or knowledge.

The four culpable mental states are:
1. “Intentionally.” A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense when his
conscious objective is to cause such result or to engage in such
conduct.
2. “Knowingly.” A person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense when he is
aware that his conduct is of such nature or that such circumstance
exists.
3. “Recklessly.” A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk
that such result will occur or that such circumstance exists. The risk
must be of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is
unaware thereof solely by reason of voluntary intoxication also acts
recklessly with respect thereto.
4. “Criminal negligence.” A person acts with criminal negligence with
respect to a result or to a circumstance described by a statute defining
an offense when he fails to perceive a substantial and unjustifiable
risk that such result will occur or that such circumstance exists. The
risk must be of such nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation.

Todd A. Spodek is a criminal defense trial lawyer with the criminal defense law firm of Storobin & Spodek, LLP.  Please contact our Manhattan office at  (212) 748-9243 or our Brooklyn office at (718) 596-3700 for a free consultation.