New York Criminal Defense Lawyer Blog

People v. Lewis [2008 NY Slip Op 100200]

The Appellate Division Third Department announced that it will no longer follow the line of cases holding that a defendant’s challenge to the validity of a waiver of appeal is unpreserved for appellate review if the defense did not move to withdraw the plea or vacate the judgment of conviction.

People v. Williams [2008 NY Slip Op 100317]

In a unanimous decision the Appellate Division Third Department affirmed an order of the Supreme Court denying a defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005 on the ground that the defendant had been found to have committed numerous serious disciplinary infractions while incarcerated. In so doing, the Court chose to follow the First Department’s holding in People v. Paniagua (45 Ad3d at 107-108) and declined to follow the Second Department’s holding in People v. Sanders (936 AD3d 944 [2007])

People v. Stevens [2008 NY Slip Op 01319]

In a unanimous decision, the Appellate Division Second Department affirmed an order of the County Court designating the defendant a level three sex offender having found no merit in the defendant’s argument that the assessment of points against him based upon the victim’s physical helplessness constituted improper “double counting” because he was also assessed points based upon the victim’s age.

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The purpose of a pre-sentence report is to assist the court in determining an appropriate sentence for a person convicted of a crime. It is prepared by the probation department between the time the defendant is convicted and the time the defendant is sentenced.

A pre-sentence investigation and report –unless waived- is required in any case where a person has been convicted of a felony. [CPL § 390.20(1)] A pre-sentence investigation and report is also required-unless waived- where a person is convicted of a misdemeanor and the defendant is to be sentenced to more than ninety days in jail; to consecutive sentences totaling more than ninety days in jail; or to a term of probation. [CPL § 390.20(2)] A judge is not required but may order a pre-sentence investigation and report in any other cases. [CPL§390.20(3)]

A presentence report can be waived by the parties and the court where: the sentence is agreed to by the parties and will equal time served; a sentence a probation has been agreed on by the parties and will be imposed; a pre-sentence report has already been done within the last twelve months; or a sentence of probation has been revoked. [CPL § 390.20(4)(a)(i-iv)] A pre-sentence report cannot be waived if a prison sentence is to be imposed. [CPL §390.20390.20(a)] A court may require a victim impact statement even if the presentence investigation and report is waived. [CPL§320.20(4)(b)]

The presentence investigation and report includes gathering and reporting on: the facts and circumstances of the crime; the defendant’s criminal history, the defendant’s social history, the defendant’s employment history, the defendant’s family situation, the defendant’s economic status; the defendant’s educational background, the defendant’s personal habits; any matter the investigating agency deems relevant to sentencing and any other information requested by the court. [CPL §390.30( 1)] Defense counsel can and generally should submit his own pre-sentence memorandum addressing these same topics and may attach statements of others in support of the facts in his memorandum. [CPL § 390.40(1)]

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There are three categories of burglary in New York: third degree burglary, second degree burglary and first degree burglary.

A person commits burglary in the third degree if he knowingly enters or remains unlawfully in a building with the intent of committing a crime. [PL §140.20] Burglary in the third degree is a class D felony. [PL §140.20]

A person commits burglary in the second degree if he knowingly enters or remains unlawfully in a building with the intent to commit a crime while inside and he or another participant in the crime while entering, inside or fleeing from the building: is armed with explosives or a deadly weapon; causes physical injury to a non-participant in the crime; uses or threatens use of a dangerous instrument; or displays a firearm. [PL§140.25(1)(a)-(d)] A person is also guilty of burglary in the second degree if he knowingly enters or remains unlawfully in a building with the intent to commit a crime and the building is a dwelling. [PL §140.25(2)]Burglary in the second degree is a class C violent felony. [PL§140.25]

A person commits burglary in the first degree if he knowingly enters or remains unlawfully in a dwelling with the intent to commit a crime inside the dwelling and he or another participant in the crime while entering, inside or fleeing from the dwelling: is armed with explosives or a deadly weapon; causes physical injury to a non-participant in the crime; uses or threatens use of a dangerous instrument; or displays what appears to be firearm.[PL§ 140.30(1)-(4) It is an affirmative defense that the firearm was not loaded or not capable of firing a shot capable of causing a serious physical injury. [PL§ 140.30(4)] Burglary in the first degree is a class B violent felony.[PL§140.30]

The statutory definition of “Building” goes beyond its ordinary meaning to include any structure, vehicle or watercraft in which people: stay overnight; conduct business; use as an elementary or secondary school.[PL§ 140.00(2)] "Building" also includes an enclosed motor truck or enclosed motor truck trailer. [PL§ 140.00(2)] Each unit in a multi-unit building is considered a separate building and a part of the main building. [PL§140.00(2)]

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In New York, it is an affirmative defense if the criminal defendant was forced into committing the alleged crime by the use or threatened imminent use of unlawful physical force upon him or another person. [PL§40.00(20] The force or threatened force must be such that a person of reasonable firmness standing in the defendant’s shoes would not have been able to resist. [PL §40.00(1)] This affirmative defense is called “Duress”.

The defense of duress does not apply if the defendant intentionally or recklessly put himself in a position in which it was probable that he would be subjected to duress. [PL§40.00(2)] Like any New York criminal affirmative defense, the defendant must prove he acted under duress by a preponderance of the evidence. [PL §25.00(2)]

A jury may consider whether the defendant was predisposed to criminal conduct and was not someone whose resolve needed to be overpowered. [CJI2d. Duress] In this regard, the prosecution may be allowed to show that on a separate occasion the defendant: engaged in criminal conduct; was convicted of a crime; or committed some other bad act. [CJI2d.Duress]

Please call me toll free at 1-877-858-2889 if you have been charged with a crime. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain acceptable to you or take the case to trial.

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Arson is covered by New York Penal Law Article 150. There are five categories of arson in New York: fifth degree arson; fourth degree arson; third degree arson; second degree arson and first degree arson. They range from a class A misdemeanor to a class A-I felony. They all involve damage recklessly or intentionally caused to property, buildings or motor vehicles. The definition of buildings goes beyond its ordinary meaning to include any structure, vehicle or watercraft in which people stay overnight or do business. [PL § 150.00] A multi-unit building –such as an office or apartment building -is considered to be a single building. [PL§150.00] Motor vehicles include cars, vans, mobile homes, trucks, motorcycles, etc. Motor vehicles do not include bicycles, electric wheel chairs or snow mobiles. [PL §150.00]

A person commits arson in the fifth degree if he or she intentionally damages property of another person without their permission by intentionally starting a fire or causing an explosion. [PL§150.01] Arson in the fifth degree is a class A misdemeanor. [PL§150.01] An adult convicted of arson in the fifth degree may be sentenced to a maximum of one year in the local county jail. [PL§ 70.15(1)] He or she can be sentenced to three years probation. [PL§ 65(3)(b)(ii) He or she can receive a split sentence of up to four months in jail and either three years probation or one year conditional discharge. [PL §60.01(2)(d)] He or she may receive a one year conditional discharge.[PL§§ 60.01(2)(a)(i) and 65.05(3)(a)] He or she could possibly receive a unconditional discharge. [PL§§ 60.01(3)(d) and 65.20(1)] He or she can also be fined a maximum of one thousand dollars. [PL §80.05(1)] He or she also may be ordered to pay restitution or a maximum surcharge of one hundred forty five dollars and a crime victim assistance fee of twenty dollars unless restitution or reparation is made [PL §§ 60.27(1), 60.35(1)(6), and (9)]

A person commits arson in the fourth degree if he or she recklessly causes damage to a building or motor vehicle by intentionally starting a fire or causing an explosion. [PL § §150.05 and 15.05(3)] Arson in the third degree is a class E-Felony. [PL§150.05] An adult first time felony offender convicted of Arson in the fourth degree may receive a maximum indeterminate sentence of 1 1/3 to 4 years in state prison.[PL§70.00(2)(e) and (3)(b)]. He or she may receive a definite sentence of imprisonment of up to one year. [PL 60.0193)(a0 and 70.00(4)] He or she can be sentenced to five years probation. [PL §§60.01(2)(a)(i) and 65.00] He or she may receive a three year conditional discharge. [PL§§ 60.01(2)(a)(i) and 65.05] He or she can receive a split sentence of up to six months in jail and either five years probation or three years of conditional discharge. [PL§60.01(2)(d)] He or she could receive an unconditional discharge. [PL§§ 60.01(3)(d) and 65.20(1)] He or she may be fined up to five thousand dollars. [PL §§60.01(3)(d) and 65.20(1). He or she may be ordered to pay restitution. [PL 60.27(1)] They must pay a mandatory surcharge of two hundred fifty dollars and crime victim assistance fee of twenty dollars unless restitution or reparation is made. [PL 60.35]

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A New York criminal jury trial generally proceeds in the following order. The jury is selected and sworn. [CPL § 260.10(1)] Preliminary instructions are read to the jury by the judge. [CPL §260.10(2)] The prosecutor presents his opening statement. [CPL §260.10(3)]Defense counsel may then present an opening statement. [CPL 260.10(4)] The prosecutor presents the People’s original case. [CPL §260.10(5)] Defense counsel may then present the defendant’s original case. [CPL §260.10(6)] The prosecutor may then present rebuttal evidence to the defendant’s original case. [CPL§260.10(7)] Defense counsel may then present evidence in rebuttal to the prosecutor’s rebuttal evidence. [CPL §260.10(8)] The court has the authority to permit the parties to continue taking turns presenting rebuttal evidence in this order. [CPL §260.10(7)] The court in the interest of justice may also permit either party to present evidence during rebuttal that should have been presented during their original case. [CPL §260.10(7)] Defense counsel may then present a closing argument. [CPL §260.10(8)] The prosecution then may present a closing argument. [CPL §260.10(9)] The court will then read to the jury instructions on the law. [CPL §260.10(10)] The jury will be excused from the courtroom and return to the jury room to attempt to reach a verdict in the case. [CPL §260.10(11)]

Please call me toll free at 1-877-858-2889 if you are ever arrested in New York State. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain that is acceptable to you or take the case to trial.

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Robbery is the act of forcibly stealing property. [PL §160.00] If the property is stolen without the use of physical force it is called larceny. [PL §155.05] A person forcibly steals property if they use or threaten to use physical force to take or keep the property. [PL §160.00(1)(2)] The threat must be to use immediate physical force. [PL §160.00] It would be larceny by extortion if the threat to use physical force was something other than immediate use of physical force. [PL §155.05(2)(e)] The person must have the intent to permanently keep the property from its owner or rightful possessor to be found guilty of robbery in New York. There are three degrees of robbery in New York: third degree robbery; second degree robbery and first degree robbery. [PL §§ 160.05; 160.10 and 160.15]

A person commits robbery in the third degree if they forcibly steal property. [PL §160.05] Robbery in the third degree is a class D non-violent felony. [Pl §160.05] An adult convicted of robbery in the first degree is facing a maximum of 2 1/3 to 7 years in state prison if he has no prior felony convictions. [PL § 70.00(2)(d)]

A person commits robbery in the second degree if he forcibly steal property and are aided by another person who is actually present at the immediate scene of the robbery. A person who aids another in forcibly stealing property but is not actually physically present - such as a look out or a getaway driver – commits robbery as an accomplice. [PL §20.00]

A person also commits robbery in the second degree if he or another participant in the robbery cause a non-participant in the robbery physical injury during the robbery or while fleeing from the scene of the robbery. [PL§160.10(2)(a)]. Physical injury is defined as impairment of physical condition or substantial pain. [PL S10.00 (9)]

A person also commits robbery in the second degree if he or another participant in the robbery displays what appears to be a firearm. [PL§160.10(2)(b)]. A person also commits larceny in the second degree if the property stolen is a motor vehicle. [PL§160.10(3)]

Robbery in the second degree is a class C violent felony. An adult convicted of robbery in the second degree is facing a maximum of 15 years in state prison plus 2 ½ to 5 years post release supervision if he has no prior felony convictions. [PL §§70.02(3)(b) and PL70.45(2)]

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