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Categories Criminal Defense

SECOND DEGREE ROBBERY

Author admin Categories Criminal Defense Posted on

ELEMENTS OF ROBBERY IN THE SECOND DEGREE IN NEW YORK

Robbery in the second degree involves stealing from another person while using force or the threat of force.

According to New York Penal Code § 160.10, a person can be prosecuted for robbery in the second degree when he steals property with force AND:

1. He is aided by another person actually present; OR

2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

(a) Causes physical injury to any person who is not a participant in the crime; OR

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; OR

3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.

Robbery in the second degree is a class C felony.

USING A GUN

You will be faced with a second degree robbery charge if you use any kind of gun or firearm as a weapon of your choice. According to New York Penal Law Section 160.10, it is not required that the gun be displayed during the robbery. It is sufficient enough if the gun was displayed only during flight after the robbery. Also, keep in mind that the law also does not require that the gun being displayed is an actual real gun. The statute only requires that you display something that appears to be gun to threaten and scare off the victim.

PHYSICALLY INJURING THE VICTIM

If you physically injure the victim, in any way, you will be charged with robbery in the second degree. This also applies to a third party getting physically injured, who may not have been the target, but happened to be present and injured during the robbery. Any physical injury to the targeted victim, or a third party, caused by you during the robbery, will result in the charge. Under New York law, “physical injury” means an injury that causes substantial pain or the impairment of a person’s physical condition. The extent of physical injuries inflicted onto the victim typically don’t play a role in the defendants conviction of robbery in the second degree. Minor injuries are treated just as the more serious injuries. 

COMMITTING THE ROBBERY WITH HELP FROM ANOTHER PERSON

You will face this charge if you are aided by another person who is present during the robbery, regardless if said person was directly involved in the robbery of the victim. This is referred to as accomplice liability. For example, if you approach the victim at a gas station in the middle of the night, and your friend is on the lookout for the police, then your friend will be charged as an accomplice robbery in the second degree, even though he didn’t have any direct contact with the victim.

STEALING A CAR

Regardless of any other factor, if you steal a motor vehicle as defined by the New York Vehicle and Traffic Law (VTL), you will be charged with, at the minimum, robbery in the second degree. “Motor vehicle” is defined as any vehicle operated or driven upon a public highway which is propelled by any power other than muscular power. This type of robbery is otherwise known as a carjacking. In order to steal a car, it is not necessary that you actually drive it. It is only necessary that you apply control over the vehicle. For example, you successfully threatened a person to hand over their car keys to you. However, the victims car had a device installed that prevented robbers from driving off. Not driving the stolen car would be just as adequate in a charge of second degree robbery, as it would be driving it.

LEGAL CONSEQUENCES

If you are convicted of robbery in the second degree you are facing a minimum of 3.5 years in prison. In addition to that, your sentence may include compensations, fines, and post-release supervision.

PRISON TERM

Since robbery in the second degree is a Class C felony, the maximum prison sentence is typically 15 years. However, the definite length of your prison sentence will mostly depend on your prior criminal record(s). Based on your criminal record, your various number and levels of offenses, if any, will be contributed to determining the actual length of your prison sentence for robbery in the second degree. If you or someone you care about has been charged with robbery in New York City, you need a criminal defense lawyer.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.

Categories Bail Law

New York’s New Bail Law

Author admin Categories Bail Law Posted on

Ever since the new bail legislation took effect in New York State on January 1, 2020, a lot of people (e.g., clients, potential clients, friends, family, etc.) have been asking me what these changes to the law actually mean. The most common questions are whether a defendant who who killed a person(s) (e.g., criminally negligent homicide) or assaulted a person(s) will now have to be released without bail after being arrested and arraigned. And the answer is not a simple “yes” or “no.” The law is in a constant flux as courts render decisions and set precedent.

Conditions for a criminally accused to be released in exchange for money or “cash” (e.g., cash, credit card, bonds) while awaiting the outcome of his or her case have been pretty much abolished for all misdemeanors and non-violent felonies – although this also applies to a number of felonies that are violent in nature but are no longer viewed as such in the eye of the law – which is why there has been a great deal of criticism of this new bail legislation. Before this new legislation was put into place, the government (represented by the district attorney’s office) was able to ask the judge to impose bail on misdemeanors and non-violent felonies – which is why our jails have always been so overpopulated.

MANDATORY DESK APPEARANCE TICKETS

Before I get into some examples of misdemeanors and felonies that no longer qualify for bail, I want to discuss another sweeping change in the law. Prior to the enactment of the new law, defendants arrested for misdemeanors and Class E felonies (which is the lowest class level for a felony offense, A-I being the highest) would have to be arrested, go through the booking process and see judge before being arraigned. With the new law in place, police officers will no longer have the right to forgo a ticket, known as a Desk Appearance Ticket or DAT (which is a formal arrest without having to be held under arrest until arraignment) when arresting a defendant. Now, police officers will bring the arrested defendant to the precinct, issue a DAT, which gives the arrested defendant a ticket with instructions to appear in court on a certain date. After issuing the DAT, the defendant is released from the precinct without having to remain under arrest until being transported to Central Booking to be processed and see a judge.

Prior to the changes in the law, DATs would only be issued to defendants picked up on New York misdemeanors or petty offenses, such as minor marijuana possession charges (New York Penal § 221.10). And although the New York Criminal Procedure Law would allow for certain Class E felonies to be processed as a DAT, that rarely happened. Given the new legislation, police officers are now mandated to issue DATs to defendants charged with misdemeanors and class E felonies.

NEW BAIL LEGISLATION CONTINUED

Now, going back to the new bail laws that went into effect on January 1, 2020. Virtually all misdemeanor and non-violent felonies charges no longer qualify for bail since the new law went into place. In fact, many judges would start following this law prior to January 1, 2020, in anticipation of the changes to the law. I had a client who posted bail in the amount of $10,000 in a criminal sale of a control substance case. In December of 2019, the presiding judge exonerated my client’s bail since the crime he was charged with no longer qualified for bail. In other words, in the eye of the law makers, bail should not apply to non-violent offenses. However, keep in mind that certain misdemeanor and felony crimes are violent offenses yet in the eye of the law they no longer qualify for bail. But given that misdemeanors are not statutorily designated as violent – even if the alleged conduct appears to be violent (e.g., Third-degree assault, Fifth-degree arson, etc…) – bail will no longer apply to any misdemeanor offense in New York State.

Moreover, there is a large number of felonies that are designated as non-violent and do not qualify for bail, although they may seem and sound violent in nature. For example, Third-degree robbery, which is using physical force to steal property from another (without using/threatening to use a weapon or causing physical harm).

This new law that requires the mandatory release of a defendant who has been an arrested for a non-qualifying offense does not necessarily mean that the defendant will be released without any conditions. Courts can impose non-monetary conditions such as pretrial supervision programs, electronic monitoring such as an ankle bracelet, surrendering a passport , and travel restrictions. The courts can even impose bail on a non-qualifying offense if the defendant “persistently and willfully” fails to appear in court, commits another felony after being released on a felony, tampers or threatens a witness, or violates another court order such as an order of protection in a domestic violence or family case.

Whether the new law poses a higher risk to society or will result in more crimes is something that the legislators are currently looking at and discussing among each other. As of now however, this is the current law of the State of New York.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.

Categories Police Search

Can the police search your car after pulling you over?

Author admin Categories Police Search Posted on
First, What gives the police the legal right to pull you over?
PROBABLE CAUSE

The Fourth Amendment to the United States and New York State Constitution prohibits the government from unreasonable searches and seizures. Generally,  police cannot search your car without a warrant, without your consent or absent situations that create the automobile exception to the warrant requirement. If they do search your car without anyone or more of the aforementioned situations stated above, they are violating your constitutional rights.

Police have the legal right to pull you over whenever they have probable cause to believe that you violated the Vehicle and Traffic Law (VTL).   “What is the definition of probable cause?” you ask

Probable cause is defined as follows:

“reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it.”  CPL s. 70.10(2).  See also People v. Russell (2005), CPL s. 140.10.

In other words, if police see you commit any traffic infraction under the VTL (e.g., failure to use turning signal), then they have established probable cause necessary under the law to pull you over.

REASONABLE SUSPICION

In addition, police can stop your car if they have reasonable suspicion of criminal activity by you or others in the car (i.e., committing a misdemeanor or felony). Reasonable suspicion is: “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” People v. Cantor (1975). Thus, to establish reasonable suspicion, police just need to say that they saw you or a passenger in your car committing a crime.

As you can see, it is relatively easy for police to legally stop you while you’re driving a car in the State of New York.

So let’s say you were legally pulled over. Can police officers search your car?
PROBABLE CAUSE

Getting back to the core subject matter of this topic, let’s discuss when or if police officers have the legal right to search your car after they pulled you over. First and foremost, keep in mind that police can always ask you for your consent allowing them to search your car. In fact, often times that is what they do! Obviously they will not ask you “do you give us consent to search your car?” They will ask you to step out of the car or to open your trunk. If you fail to say that you “refuse” or that you do not consent to the search, you have given them consent. However, if you do not consent, they must end their probe. If they search your car anyway, they are committing an illegal search under the Fourth Amendment. In that case, evidence seized may be suppressed and cannot be used against you in the court of law.

Aside from consent, police can have other legal rights to search your car. At the time of the stop, if police have probable cause to believe that the vehicle contains fruits of the crime or contraband, they can search the car without obtaining a warrant. This search arising from probable cause is known as the automobile exception to the Fourth Amendment warrant requirement. So, let’s say you were pulled over for failing to use a turning signal and officers smell the scent of marijuana coming from your car at the time of the stop, they have probable cause to search your car for more marijuana. “What about the trunk?” you may ask. This includes the search of your trunk because it is reasonable to assume that marijuana can fit into and be kept in the trunk.

SEARCH INCIDENT TO AN ARREST

Police can also search the car incident to your arrest. This is another exception to the warrant requirement known as a search incident to an arrest. KEEP IN MIND that the law pertaining to the search incident to an arrest is different from the law in situations where probable cause exists. So let’s say you were pulled over for a simple traffic violation – which gives no probable cause to search for weapons, drugs or other evidence of a crime inside of the vehicle – and your driver’s license turns out to be suspended or revoked, you will be arrested, invoking the limited right to search incident to your arrest. At the time of your arrest, police may search the interior of your vehicle incident to your arrest if you, the arrestee, is still inside the car, unsecured and may gain access to the interior of the vehicle. This includes the search of closed containers (e.g., purses, backpacks, etc.) in your vehicle if police believe that you are armed, posing a danger to them or to the public and/or attempting to destroy evidence. But, once you exit your car, officers cannot search any containers in your car to search for weapons or other evidence of crime because you no longer pose a threat of reaching for weapons or destroying evidence.

The search incident to an arrest is limited to your wingspan, which includes your clothing and anywhere in the car where you are able to reach. Keep in mind that an arrest may be custodial. In other words, you do not have to be handcuffed to be arrested. Once you are detained and have no right to leave, you are under custodial arrest. Unlike many other jurisdictions, New York does not give officers the right to search the trunk or any containers (e.g., purses, backpacks, etc.) incident to an arrest UNLESS they have reasonable suspicion of illegality such that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence.

Let’s say you are arrested for driving while intoxicated (DWI) and indicate no threat of danger to the officers. As they arrest you, officers find a pack of cigarettes in your wingspan (can be in your pocket or in the cup holder) and begin to go through your cigarette pack and find crack. Legally, the evidence of the crack cannot be used against you in the court of law because the search of the “container” in this case is unlawful. A DWI arrest without  reasonable suspicion that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence does not give New York police the right to illegally search any closed containers in your wingspan at the time of your arrest.

REMEMBER that in order for police to conduct this type of search legally, the arrest must be lawful, the search must be justifiable such that it is conducted for preservation of evidence and safety of the police officers and public, and the search must be limited in geographic scope such that police officers only search your wingspan. Remember, in NYC officers cannot search containers in your wingspan unless they reasonably suspect that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence.

The Fourth Amendment is largely implicated during automobile stops. The law on this issue is very complicated and in a constant flux. If you or someone you know has been arrested after being pulled over by the police, hire an experienced criminal defense attorney to challenge the stop and search, and any evidence that may have been obtained during the stop. If your vehicle was unlawfully stopped or unlawfully searched, a criminal defense lawyer could prevent the prosecutor from using any evidence obtained from that search against you in the court of law.

If you believe your constitutional rights have been violated, contact the Ilganayev Law Firm now for a free consultation.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.
Categories ACD

What is an ACD and why is it so paramount to New York Criminal Defendants?

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When a New York Criminal Defendant is charged with a crime, aside from an outright dismissal or not guilty verdict post trial, an Adjournment in Contemplation of Dismissal (ACD) is the best possible outcome in a criminal case. Usually, an ACD is available when the accused is charged with a misdemeanor crime such as Petit Larceny, Drug Possession, Trespassing or Disorderly Conduct and/or does not have a long criminal record.

For example, if you have been arrested for shoplifting and are charged with Petit Larceny, pursuant to New York Criminal Procedure Law (NY CPL) § 170.55, an ACD will provide you with a full dismissal of the charges in the interest of justice after a period of time prescribed by the judge – usually six (6) months – as long as you DO NOT get rearrested during the adjourned time period. Remember that your lawyer can make a persuasive argument to ask the judge for a shorter adjournment period.

You may ask “why would I want a shorter adjournment period?” During the adjourned period pending dismissal of your criminal charges, you have an open case, which may be visible in a background check. Thus, the shorter adjournment period your lawyer can get for you, the shorter amount of time a criminal case will be open and active under your name.

Why do you want your Lawyer to fight for an ACD?

An ACD in New York has many advantages. First and foremost, if you receive an ACD, you will not end up with a criminal record in New York State. Why? Because an ACD, as stated in NY CPL § 170.55(8) “shall not be deemed to be a conviction or an admission of guilt.

” Therefore, if you were not rearrested during the adjourned period, upon the end of the adjourned period, your arrest “shall be deemed a nullity and [you] shall be restored, in contemplation of law, to the status [you] occupied before [your] arrest and prosecution.”

This means that if a question on a school or job application asks you whether you were ever arrested for a crime and/or convicted of a crime, you can honestly answer NO because an ACD is not an admission of guilt. Rather, as stated above, an ACD deems the arrest and prosecution of your case a nullity, restoring you to the same position you were in prior to your arrest. As such, an ACD is almost as good as an outright dismissal.

Keep in mind that an ACD may come with community service or some kind of other rehabilitative program (e.g., Stop Lift) that you must complete, depending on the agreement between your lawyer, the prosecutor and the court.

Remember that an ACD is not easily obtainable and is not something you are entitled to by operation of law. Therefore, remember to hire an effective criminal defense attorney who will fight to get you an ACD or outright dismissal.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.
Categories Wrongfully Arrested

Wrongfully arrested by the NYPD? You can sue them if you act fast!

Author admin Categories Wrongfully Arrested Posted on

The New York City Police Department plays a crucial role in keeping our city and our residents safe. However, often times in carrying out their duties, officers break the law, either negligently or intentionally, thereby unlawfully arresting and unlawfully detaining innocent civilians. When this happens, the government (NYPD) is in violation of your most fundamental rights and your rights protected by the New York and U.S. Constitution. As such, victims of an unlawful arrest and unlawful imprisonment may file a lawsuit to obtain justice for the the government’s unlawful acts towards them.

Under the Constitution of the United States and New York State, the government, which includes law enforcement officials such as police officers, is only allowed to arrest and detain people when there is a probable cause to believe that the individual has committed a crime OR when there is a court issued warrant for the person’s arrest.

Therefore, when police officers (or government) engage(s) in abuse of power, such as arresting and detaining people without an arrest warrant or probable cause that a crime has been committed, their conduct gives rise to a lawsuit that can be brought by the person who was wrongfully arrested and/or detained.

The wrongfully accused can bring false arrest claims under state law against both the individual police officer and the City of New York as the city will be held vicariously (automatically) liable for the police officer’s misconduct. The New York City Police Department is not a proper defendant.

Additionally, the wrongfully accused can bring false arrest/imprisonment claims under Federal Law. Under the Civil Rights Act of 1871 – a federal statute, numbered 42 U.S.C. § 1983 (Section 1983), people can sue the government for civil rights violations such as right to liberty guaranteed by the U.S. Constitution. A Section 1983 case claim is applicable when someone like a police officer is acting “under color of” any state or local law has deprived a person of rights created by the United States Constitution or federal laws.

You may have a claim for false arrest and/or false imprisonment if any of the following occurred:

  • You were released from Central Booking WITHOUT seeing a judge because the prosecutor declined to prosecute (DP);

  • Police officer(s) told you that your arrest was based on mistaken identity;

  • Police officer(s) said or somehow implied that you were arrested because of your race, age, sex, religion, or the way you dress;

  • You were arrested after a motor vehicle stop BUT the police had no reason to make the stop (such as violating a basic traffic law);

  • After seeing the judge, your case was dismissed in court. In a situation like this, you will likely have causes of action for both false arrest and malicious prosecution;

  • Your case was dismissed by the prosecutor upon the prosecutor’s review of the facts surrounding your arrest;

  • Your case was Adjourned in Contemplation of Dismissal (ACD). Accepting an ACD is not an admission of guilt; and

  • Other unlawful activities by the police that lead to your unlawful arrest and/or imprisonment.

If you are a victim of an unlawful arrest and/or imprisonment, you are entitled to monetary damages to be compensated for sustaining emotional and economic damages. Keep in mind that under New York state law, you have to bring your claim within 90-days of the arrest. Don’t wait or you may lose the right to pursue your claim under state law.

If you believe your civil rights have been violated in New York, contact lawyer Migir Ilganayev at Ilganayev Law Firm to defend your civil rights.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.
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