New York Criminal Lawyer Blog

Published on: January 28, 2015

Identity Theft Comes in Many Different Forms

by Stephen Bilkis

Under the New York Penal Law, a person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons; or 2. commits a class A misdemeanor or higher level crime. Identity theft in the third degree is a class A misdemeanor.

Throughout New York City, from Manhattan and the Bronx to Queens and Brooklyn, prosecutors have seen an enormous increase in crimes relating to Identity Theft pursuant to New York Penal Law sections 190.78, 190.79 and 190.80. This increase in related crimes has resulted in extensive investigations and indictments of single individuals as well as global organizations such as the Western Express Cybercrime Group and its members. As a former Manhattan prosecutor who was the most senior ADA assigned to the Identity Theft Major Case Section upon that unit’s creation, I not only have extensive experience prosecuting and building cases against those accused of Identity Theft crimes, but representing those charged with these offenses as well. Before discussing scenarios involving these offenses, this entry will deal specifically with the crime of Identity Theft in the Third Degree (NY Penal Law 190.78) and the relevant underlying definitions. Future entries will address Identity Theft in the Second (NY Penal Law 190.79) and First Degree (NY Penal Law 190.80).

Under the New York Penal Law, offenses involving theft of identity; definitions. 1. For the purposes of sections 190.78, 190.79 and 190.80 of this article “personal identifying information” means a person’s name, address, telephone number, date of birth, driver’s license number, social security number, place of employment, mother’s maiden name, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person. 2. For the purposes of sections 190.78, 190.79, 190.80, 190.81, 190.82 and 190.83 of this article: a. “electronic signature” shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law. b. “personal identification number” means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person.

Published on: January 24, 2015

Money Laundering in New York

by Stephen Bilkis

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.

Published on: January 9, 2015

What Constitutes a Possession of Illegal Drugs Charge?

by Stephen Bilkis

Possession or distribution of illegal drugs is considered a crime under federal and state laws which can result in criminal prosecution. The manufacturing of illegal drugs is considered a felony. The consequences of a conviction can include hefty fines and prison time. In addition, those who help to produce any kind of illegal drug may also be charged with the crime and are typically subject to consequences that are much more severe than possession of a drug for personal use.

Under the New York Penal Law, a person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to section thirty-three hundred eighty-one of the public health law; nor shall it be a violation of this section when a person’s unlawful possession of a controlled substance is discovered as a result of seeking immediate health care as defined in paragraph (b) of subdivision three of section 220.78 of the penal law, for either another person or him or herself because such person is experiencing a drug or alcohol overdose or other life threatening medical emergency as defined in paragraph (a) of subdivision three of section 220.78 of the penal law. Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

Conviction of a Class A Misdemeanor for criminal possession of a controlled substance could result in up to 1 year in jail. The criminal defense attorneys at E. Stewart Jones are ready and able to defend your misdemeanor drug cases. It should be noted that if the possession charge is accompanied by another misdemeanor or felony charge, or preceded by previous charges or convictions, time in jail or prison can increase significantly. Our attorneys will work hard to present a strong defense to minimize time in jail, fines and or penalties.

Published on: December 31, 2014

What Constitutes an Assault in the Third Degree Charge?

by Stephen Bilkis

Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.

A New York Criminal Lawyer said that, the best criminal defense of an Assault case depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assault complaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

Published on: December 28, 2014

The People’s Application to Dismiss Misdemeanor Granted by the Court

by Stephen Bilkis

According to a Nassau County Grand Larceny Attorney, the defendant was originally charged with a felony violation of Grand Larceny in the Fourth Degree, which was subsequently reduced to the class A misdemeanor charge of petit larceny, upon the application of the People. Subsequently, the People made an application to dismiss the misdemeanor charge in order to further the interests of justice. The People’s application was granted by the Court, and the accusatory instrument was dismissed. The People allege that the application for dismissal was made because of the People’s inability to contact the complainant. Now the People have made a motion for an order to restore the above-entitled action to the calendar to allow the People to reprosecute this case on the original felony charge of violating PL Sec. 155.30, Grand Larceny in the Fourth Degree.

A Nassau County Criminal Lawyer said the Criminal Procedure Law fails to bar renewed prosecution of a misdemeanor charge that has been dismissed in the interest of justice upon the People’s motion pursuant to CPL Sec. 170.30 subd. (1)(g). However, this does not appear to be a legislative oversight since the legislature did provide for a bar to renewed prosecutions in other situations. Section 210.20 of the CPL provides that reprosecution of an indictment is barred where the indictment has been dismissed due to immunity, double jeopardy, statute of limitations, and denial of speedy trial. However, Section 210.20 provides that where an indictment had been dismissed in the interest of justice, pursuant to 210.20 subd. (1)(i), the Court may, upon application of the People, authorize the People to submit the charge to the grand jury. Accordingly, a superior court has the statutory authority to grant reprosecution of a felony charge where the indictment had been previously dismissed in the interests of justice.

A Nassau County Petit Larceny Lawyer said that, in a similar manner, the District Court should have the authority to grant reprosecution of an accusatory instrument on a misdemeanor charge where the accusatory instrument was originally dismissed in the furtherance of justice pursuant to CPL Sec. 170.30. There is nothing in the Criminal Procedure Law which forbids the reinstatement of a misdemeanor prosecution. Furthermore, there is no double jeopardy involved since double jeopardy does not attach until a witness is sworn at trial.

Published on: December 27, 2014

Appellant Contends He Mistakenly Waived his Right to Jury Trial

by Stephen Bilkis

A Nassau Petit Larceny Lawyer said that, in a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Nassau County, dated March 2, 2007, which, upon a fact-finding order of the same court dated January 2, 2007, made after a hearing, finding that the appellant committed acts, which, if committed by an adult, would have constituted the crimes of robbery in the second degree, grand larceny in the fourth degree, attempted robbery in the second degree (four counts), and attempted grand larceny in the fourth degree (four counts), adjudged him to be a juvenile delinquent and placed him on probation for a period of two years. The appeal from the order of disposition brings up for review the fact-finding order dated January 2, 2007.

A Nassau Criminal Lawyer said that, defendant was charged in a four-count indictment with robbery in the second degree (two counts), grand larceny in the third degree and petit larceny. On appearing before the trial court defendant, through counsel, requested a waiver of a jury trial. Because of the fact that his educational background was rather minimal, the record indicates that defendant was queried extensively and was informed not only as to his rights, but the extent and impact of the waiver, and that he was fully aware of the fact that he was waiving a trial by jury.

The evidence presented by the presentment agency established that the appellant was part of a group of individuals who surrounded three boys, demanded money from them, searched their pockets, and hit them. The complainant arrived at the scene at some point after the incident began, and there was no evidence that any of the perpetrators directed any conduct, threats, or words toward her. Since the presentment agency failed to demonstrate that complainant was anything more than a mere spectator, the evidence was legally insufficient to establish that the appellant committed acts against her which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree and attempted grand larceny in the fourth degree.

Published on: December 21, 2014

Petitioner Appeals Murder Conviction

by Stephen Bilkis

A Nassau Sex Crime Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered March 22, 1990, convicting him of attempted murder in the second degree, rape in the first degree, attempted rape in the first degree, sodomy in the first degree (two counts), sexual abuse in the first degree, burglary in the first degree (two counts), grand larceny in the second degree (two counts), burglary in the second degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

The issue in this case is whether defendant is liable for all his criminal charges.

Contrary to the defendant’s contentions, the lineup identification by an eyewitness was not the result of undue suggestiveness even though the defendant was the only person common to both the lineup and the photographic array. This court has previously explained that “procedures involving the repeated display of a single photograph in successive arrays until a positive identification is obtained are viewed with great caution by the courts”. However, the potential for irreparable misidentification is not manifest when the eyewitness views an array containing a photograph of the defendant and subsequently views the defendant in person during a lineup. Viewing the totality of the circumstances surrounding the pretrial identification, there is no basis in the record to disturb the determination of the hearing court. The eyewitness was unable to identify the defendant from the photographic array in which his picture appeared, but subsequently identified him from a lineup approximately one month later. This criminal procedure was not so conducive to the possibility of irreparable misidentification as to require suppression of the lineup identification.

Published on: December 12, 2014

Defendant Moves for Resentencing for Larceny Conviction

by Stephen Bilkis

Defendant moves for re-sentence of a 1964 conviction in this Court. The sentence in question was ten to fifteen years in Prison for Grand Larceny, first degree, as a third felony offender. He contends that his two prior convictions (both in Washington, D.C.) do not constitute criminal felonies under Sec. 1941 of the Penal Law, which in effect provides that a court may sentence a defendant as a multiple offender if the previous crimes committed by the defendant in a foreign jurisdiction would constitute felonies if committed in New York. His moving papers and memorandum of law show extensive research and his contentions are fortified with numerous citations of authority.

It appears that in April 1946, criminal defendant was convicted of Robbery in the Second Degree, after trial in the District Court, District of Columbia, and sentenced to a term of from two to six years in prison. Again, in 1956, in the same court, upon his plea of guilty to Attempted Robbery, he was sentenced to prison for a term of from one to three years. Defendant contends, however, that the statutes under which he was convicted in the District of Columbia are not proper multiple offender predicates since the said sections define as robbery, acts, which if committed in New York would not be considered felonies.

Defendant argues that since Sec. 22-2901 provides that a robbery may be committed in the District of Columbia by ‘stealth’ but without force that they are not crimes which, if committed within this state, would be a felony and therefore are not a proper basis for sentencing as a third felony offender.

Published on: December 11, 2014

BOCES Educational Administrators Association

by Stephen Bilkis

In this criminal proceeding and action, the petitioner seeks to compel the Nassau County Board of Cooperative Educational Services (hereinafter BOCES) to pay her, pursuant to a collective bargaining agreement between BOCES and the BOCES Educational Administrators Association, the sum of $16,768, representing the cash value of a 40-day vacation leave balance, and pursuant to a 2004 amendment to the collective bargaining agreement, the sum of $14,252.80, representing the cash value of a 34-day vested bank vacation leave balance.

BOCES moved to dismiss the combined petition/complaint, arguing that, as a matter of public policy, the petitioner is not entitled to either payment because she pleaded guilty to attempted grand larceny in the second degree for stealing its funds. The Supreme Court agreed with BOCES and dismissed the petition/complaint on the ground that BOCES was within its right to deny the petitioner’s request for a lump sum payment representing her unused and vested bank vacation leave in light of her criminal guilty plea.

The petitioner’s guilty plea did not warrant dismissal of her petition/complaint. Rather, the express provisions of the collective bargaining agreement must control. The collective bargaining agreement at issue provides that unit members employed on a twelve (12) month basis shall be entitled to twenty-two (22) days of leave with pay per calendar year to be taken as approved by the appropriate department head or his/her designee, consistent with the needs of the agency. Such annual leave shall be earned and may be accumulated from year to year, up to a maximum accumulation of forty (40) days.

Published on: December 9, 2014

Mr. GM turned out to be just one component

by Stephen Bilkis

In this case, we are asked whether a three- or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of the school board. We hold that the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced.

In September 2002, an accounting firm hired by plaintiff XXX School District discovered irregularities in the district’s financial records. An audit revealed that Mr. GM, the assistant superintendent for business, had stolen $223,000 from district accounts. The XXX School District Board of Education (the Board) was notified of Mr. GM’s misconduct and it decided to allow Mr. GM to repay the misappropriated funds along with attorney’s fees and accounting costs and retire. The Board, however, did not notify law enforcement authorities or state officials about Mr. GM’s criminal activities, nor did it publicly disclose her illegal conduct.

Unfortunately, the theft by Mr. GM turned out to be just one component of a long-running conspiracy to loot the school district’s coffers. After Mr. GM left her post, information about additional missing funds surfaced and eventually a criminal investigation was undertaken by the Nassau County District Attorney’s Office. In June 2004, Mr. GM was arrested for grand larceny in the first degree for stealing more than $1 million from the school district. The investigation also implicated the school district’s superintendent (Mr. TX) and an account clerk (Ms. D, who was Mr. GM’s niece), and they too were arrested for grand larceny. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Mr. GM had stolen over $4.6 million; Mr. TX had taken more than $2.4 million; and Ms. D had received about $300,000. In total, various sums had been funneled to more than two dozen people.