Articles Posted in Criminal Procedure

People v. M., NY Slip Op 07924

The court held that the order of the Appellate Court should be confirmed. The defendant claims that his plea of guilty was involuntary. He argued that the indictment must be dismissed because the People didn’t notify the grand jury that the defendant wished to call a particular witness. The defendant argues that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and his motion to dismiss isn’t forfeited by his plea of guilty.

The Appellate Court held that the plea was entered voluntarily. When the plead guilty, he forfeited his argument that his motion to dismiss his indictment should have been granted. The court granted leave to appeal and this court affirms (29 NY3d 1130 [2017].

People v O.X.

The court held that the Appellate Order should be affirmed in this case. The question of this case is whether a 4^th amendment consent to search a premises is a question of law or fact (People v. McFarlane 21 NY 3d 1034). The court said that the voluntariness of the consent in this instance is up for dispute. Although the court’s power to review the affirmed findings of fact are limited. The findings of the trial court are supported by the record (People v Morales 42 NY2d 129, 138 [1977]).

Judge Rivera stated that there was a home visit by law enforcement for the purposes of making a warrantless arrest. It is not justified by another exception of the warrant requirement.

#6179

April 3, 2018

A judgment was originally entered against the defendant on May 31, 2017, convicting him of the charge of aggravated cruelty to animals, including torturing animals. He was sentenced to 2 years in prison, which was unanimously affirmed.

Unlawful Imprisonment in the First (NY Penal Law 135.10) and Second (NY Penal Law 135.05) Degrees:

False imprisonment is the unlawful restraint of a person against her will by someone without legal authority or justification. For example, an armed bank robber yells at the customers to get down on the floor, threatening to shoot them if they try to leave. Since they know they might be killed if they try to leave, they are being held against their will. The captive bank customers may be able to claim damages, and the bank robber may be charged with the crime of false imprisonment. Even the police may be charged with false imprisonment if they exceed their authority such as detaining someone without justification.

It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are “restrain” and “abduct.” Today’s entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.

New York Penal Law 165.05 & 165.06: Unauthorized Use of a Vehicle & Your NY Criminal Defense

New York Penal Law Section 165.05 on Unauthorized use of a vehicle in the third degree, states that: A person is guilty of unauthorized use of a vehicle in the third degree when: 1. Knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent; or 2. Having custody of a vehicle pursuant to an agreement between himself or another and the owner thereof whereby he or another is to perform for compensation a specific service for the owner involving the maintenance, repair or use of such vehicle, he intentionally uses or operates the same, without the consent of the owner, for his own purposes in a manner constituting a gross deviation from the agreed purpose; or 3. Having custody of a vehicle pursuant to an agreement with the owner thereof whereby such vehicle is to be returned to the owner at a specified time, he intentionally retains or withholds possession thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement. of a gross deviation from the agreement” shall consist of, but not be limited to, circumstances wherein a person who having had custody of a vehicle for a period of fifteen days or less pursuant to a written agreement retains possession of such vehicle for at least seven days beyond the period specified in the agreement and continues such possession for a period of more than two days after service or refusal of attempted service of a notice in person or by certified mail at an address indicated in the agreement stating (i) the date and time at which the vehicle was to have been returned under the agreement; (ii) that the owner does not consent to the continued withholding or retaining of such vehicle and demands its return; and that continued withholding or retaining of the vehicle may constitute a class A misdemeanor punishable by a fine of up to one thousand dollars or by a sentence to a term of imprisonment for a period of up to one year or by both such fine and imprisonment.

Unauthorized use of a vehicle in the third degree is a class A misdemeanor.

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A person commits the crime of perjury in its most basic form when he or she “swear falsely.” Section 210 of the New York Criminal Penal Code defines the act of swearing falsely as occurring when a person makes a false statement which he or she does not believe to be true while either giving testimony or under oath in a subscribed written instrument (such as an affidavit or deposition). The seriousness of a perjury offense may increase depending on such factors as the materiality of the statement to the action, proceeding or matter involved; the setting where the criminal statement is made; and whether the law required that such statement be made under oath.

210.00 Perjury and related offenses; definitions of terms:

The following definitions are applicable to this article:

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Money laundering statutes make it a crime to transfer money derived from almost any criminal activity (including organized crime, white-collar offenses, and drug transactions) into seemingly legitimate channels, in an attempt to disguise the origin of the funds. Money laundering occurs whenever a person attempts to conceal the source, destination, or identity of illegally obtained or acquired money. Money laundering is criminalized under both state and federal laws.

Money laundering applies when a person attempts to conceal illegally obtained funds, but it doesn’t include merely spending money. If, for example, you make $1,000 selling stolen goods and then go out and buy something, you have not laundered any money. Though you have committed the crime of dealing in stolen goods, to be convicted of money laundering you’d need to try to conceal or disguise where the money originated, or otherwise disguise it.

The Supreme Court has ruled that in order to prove federal money laundering charges, prosecutors must show a person concealed money specifically to conceal the location, ownership, source, nature, or control of the money. It isn’t money laundering, for example, to try to conceal money during transportation by putting it in a hidden place. Laundering would involve taking that money and trying to make it appear as if it came from a legitimate source.

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