New York Criminal Defense Lawyer Blog

The walk-and-turn test is one of several field sobriety tests used by police when they suspect that a stopped driver may have been driving while intoxicated. The walk-and-turn test is a divided attention test in that it divides the driver's attention between listening, remembering, small muscle control, balancing, counting aloud, and walking heel-to-toe. It has two stages. It has the instruction stage and the walking stage. During the instruction stage, the driver is required to stand heel- to-toe with their hands at their side while listening to instructions. The walking stage takes place on a real or imaginary line. During the walking stage the driver must take nine heel- to- toe steps forward then turn around in a set way and then take nine heel- to- toe steps back towards where they started. The driver must also count their steps aloud and look down at their feet while performing the walking stage of the test. The turn requires the driver to keep their front foot on the line, turning as instructed and taking several small steps with their back foot until the turn is completed.

During the walk-and-turn test the police officer is trained to look for eight “clues”: inability to balance during the instruction stage; starting the walking stage too early; stopping during the walking stage; failure to touch heel- to-toe; stepping off the line; use of arms to balance; loss of balance during the turn or failing to turn in the prescribed manner and taking an incorrect number of steps. A driver who displays two or more of these clues or is unable to do the test is assumed by the police to have a blood alcohol content greater than 0.10. The National Highway Traffic Safety Administration claims that the walk-and-turn test is 68% accurate. In my book, that means the test is inaccurate 32% of the time.

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A person convicted of a drinking driver offense in New York State will be required to pay a mandatory surcharge over and above any other fines, fees or assessments. A conviction of a felony drinking driver offense carries a mandatory surcharge of $520.00. A conviction of a misdemeanor drinking driver offense carries a mandatory surcharge of $395 in cities and $400.00 in towns and villages. A conviction of a violation drinking driver offense carries a mandatory surcharge of $255.00 in cities and $260 in towns and villages

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Governor David A. Paterson announced today that the state will be stepping up emission inspections of heavy duty vehicles in urban areas throughout the state using roadside programs. Any heavy- duty vehicle exceeding emission levels when tested will be subject to a fine of $700 for a first violation and $1,300 for any subsequent violation. The fines are reduced to $150 for the first violation and $500 for any subsequent violation if the problem is corrected within 30 days of receipt of the ticket.

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Pursuant to New York Vehicle and Traffic Law § 1196(7)(a), a conditional license allows a person to operate a motor vehicle:

• to and from the person’s place of employment,

• during work if the person’s employment requires the operation of a motor vehicle;

• to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program so long as the person’s attendance is required,

• to and from a class or course at an accredited school, college or university;

• to and from a state approved institution of vocational or technical training;

• to or from court ordered probation activities;

• to and from a motor vehicle office for the transaction of business relating to such license or drinking driver program;

• for a three hour consecutive daytime period, chosen by the administrators of the drinking driver program, on a day during which the person is not engaged in usual employment or vocation;

• to and from a medical examination or treatment as part of a necessary medical treatment for such person or member of their household, as evidenced by a written statement to that effect from a licensed medical practitioner; and

• to and from a place, including a school, at which a child or children of the person are cared for on a regular basis and which is necessary for the person to maintain their employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training.

It is a traffic infraction for a person to drive with a conditional license at any other time. [VTL § 1196(7)(f)] A person convicted of driving with a conditional license at an unauthorized time will be fined two to five hundred dollars and/ or sentenced up to fifteen days in jail. [VTL § 1196(7)(f)] Their conditional license will also be revoked. [VTL § 1196(7)(f)]

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New York State Governor David A. Paterson has given the go ahead for the New York State Department of Corrections to give away seven thousand unused medium weight winter coats to shelters and Salvation Army centers across the state of New York. Inmates at the Clinton Correctional Facility manufactured the unused coats five to eight years ago. The coats were originally to be worn by state correctional officers. However, the correction officers stopped wearing that particular type of coat back in 2006. The coats range in size from 38 R to 68 T. The coats will be given to the following locations starting today:

New York City Area:

1,800 coats to the NY Cares Coat Drive (through WNBC-TV)
500, Rockland County Salvation Army, 179 North Main St., Spring Valley
500, Salvation Army of Peekskill, 117 Nelson Ave., Peekskill

Greater Capital Region:

200, Albany City Mission, 259 South Pearl Street, Albany
108, Saratoga County Adult & Family Services, 152 West High Street, Ballston Spa
108, City of Hudson Coat Drive, City Hall, Warren Street, Hudson
60, City Mission, 425 Hamilton Street, Schenectady
60, Resurrection Lutheran Church, 186 Main Street, Cairo
24, God's Storehouse & Food Pantry, 3 Bogardus Avenue, Catskill
24, Washington County Social Services Dept., 383 Broadway, Fort Edward
24, Hudson Falls United Methodist Church, 227 Main Street, Hudson Falls
24, Families First, 196 Water Street, Elizabethtown

Western New York:

180, Great Commissions in His Service Ministries, 470 Hollenbeck Street, Rochester
140, Salvation Army, four locations: Dunkirk (704 Central Avenue), Batavia (529 East Main Street), Dansville (6 Chestnut Avenue), Buffalo (960 Main Street)
45, Community Action of Orleans & Genesee Counties, 409 East State Street, Albion
45, Buffalo City Mission, 100 East Tupper Street, Buffalo
45, Response To Love Center, 130 Kosciuszko Street, Buffalo
45, Franciscan Center, 1910 Seneca Street, Buffalo
45, Open Door Mission, 165 N. Plymouth Ave., Rochester
45, Friends Of The Night, 394 Hudson Street, Buffalo
45, St. Luke's Mission of Mercy, Walden Avenue, Buffalo
45, Medina Area Association of Churches, c/o Calvary Tabernacle Church, MAAC Clothing Depot, Catherine Street, Medina
25, Catholic Family Charities, 80 West Main Street, Rochester

Hudson Valley:

200, Family of Woodstock, Canal Street, Ellenville
200, Middletown Cares, 47 Academy Ave., Middletown
125, Veterans Pantry at Castle Point, Veterans Administration Hospital, Rt. 9D, Beacon
125, Hillcrest House at Hudson River Housing, 28 Snow Terrace, Poughkeepsie
125, The Oasis, 7 Delavan Ave., Beacon
125, Solid Rock Church, 20 Holleran Road, New Windsor
100, Newburgh Ministry, 9 Johnston St., Newburgh

Central New York/Southern Tier:

100, Catholic Charities of the Southern Tier, 215 East Church St., Elmira
60, Catholic Charities, 607 North Franklin Street, Watkins Glen
50, Refugee Center - c/o Catholic Charities, 1654 West Onondaga Street, Syracuse
50, Unity House of Cayuga County, 108 South Street, Auburn
42, Cortland Loaves & Fishes, 13 Court Street, Cortland
15, Auburn VFW Post 1975, 44 Genesee Street, Auburn
12, Lock-Mor Thrift Store, 57 West Cayuga Street, Moravia

Mohawk Valley:

200, St. Francis Refugee Center, 309 Genesee St., Utica
150, Welcome Hall Rescue Mission, 413 East Dominick St., Rome
100, Hope House, 130 Eagle St., Utica
50, Fort Stanwix Disabled American Veterans, 407 East Dominick St., Rome
Adirondacks:
250, Joint Council For Economic Opportunity Inc., 54 Margaret St., Plattsburgh
250, Comlinks, 343 West Main St., Malone

North Country:

100, Gouverneur Neighborhood Center, 15 Rock Island Road, Gouverneur
100, Watertown Urban Mission, 247 Factory Street, Watertown
100, Ogdensburg Neighborhood Center, 330 Ford Street, Ogdensburg
100, Family Morale & Welfare Recreation, T3 Nash Boulevard, 2nd Floor, Fort Drum 50, Salvation Army, 723 State Street, Watertown
50, Community Action Planning Council (CAPC), 518 Davidson Street, Watertown

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The Federal Motor Carrier Safety Administration has issued a new final rule for truck drivers across the nation. The highlights of the new rule include:

• A truck driver cannot drive more than eleven hours each day;
• A truck driver cannot work more than fourteen hours each day;
• A truck driver needs to get no less than ten hours of rest between shifts;
• A truck driver cannot operate a truck if he or she has worked more than sixty hours during the week;
• A truck driver who rests at least thirty -four hours can reset his or her weekly work schedule.

The new final rule was issued November 18, 2008. A copy of the new final rule can be found at: http://www.federalregister.gov./OFRUpload/OFRData/2008-27437_PI.pdf

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On November 14, 2008, the New York State Appellate Division –Fourth Department- unanimously affirmed the conviction of Ralph "Bucky" Phillips for aggravated murder and attempted aggravated murder in connection with the shooting of two state troopers. The same court also unanimously affirmed his conviction for escape in the first degree. Phillips is currently serving a life sentence in the Clinton County Correctional Facility in Dannemora, New York.

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Pursuant to Penal Law § 265.25, an attending or treating physician must report to the local police every case involving a: bullet wound; gunshot wound; powder burn; or any other injury arising from or caused by the discharge of a gun or firearm. They must also report any life threatening wounds inflicted by a knife, ice pick or other sharp or pointed instrument. A person in charge of a hospital, sanitarium or other institution must do the same. However, a report is not required to be made if the person was injured in the actual performance of his or her duty as a member of the armed forces of the United States or the state of New York. It is a class A misdemeanor to fail to report any such wounds. This seems to be a bad law because it deters people from seeking competent medical treatment for potentially life threatening injuries and it forces physicians and heads of hospitals to become agents of law enforcement. It also forces them to breach doctor patient confidentiality even in non-criminal cases such as a hunting accident.

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A person –other than a youthful offender- convicted in New York of any felony or specified misdemeanor offense must provide a DNA specimen for the State DNA Databank pursuant to Executive Law §995(7). The following is a list of the specified misdemeanors:

• Assault in the 3rd degree [Pl §120.00];
• Attempted aggravated assault upon a person less than 11 years old[ PL §§110/120.12];
• Attempted menacing in the 1st degree[PL §§[110/120.13];
• Menacing in the 2nd degree [PL §120.14];
• Menacing in the 3rd degree [PL §120.15];
• Reckless endangerment in the 2nd degree[PL §120.20];
• Stalking in the 4th degree[PL §§ 120.45];
• Stalking in the 3rd degree [PL §120.50];
• Attempted stalking in the 2nd degree [PL§ 110/120.55] ;
• Sexual misconduct [PL §130.20];
• Attempted sexual misconduct [PL §110.00/130.20];
• Attempted rape in the 3rd degree [PL §§110/130.25];
• Attempted criminal sexual act in the 3rd degree [PL§110/130.40];
• Forcible touching [PL§130.52];
• Attempted forcible touching [PL §§ 110/130.52] (if the victim is less than 18 or the defendant has previously been convicted of a sex offense or sexually violent offense, or 130.52 or 130.55, or an attempt thereof);
• Attempted persistent sexual abuse [PL §§110 130.53];
• Sexual abuse in the 3rd [ PL §130.55];
• Attempted sexual abuse in the 3rd degree [ PL§§110/130.55] (where victim is less than 18 OR offender has previously been convicted of a sex offense or sexually violent offense, or 130.52 or 130.55, or an attempt thereof)
• Sexual abuse in the 2d degree [PL §130.60];
• Attempted sexual abuse in the 2d degree [PL §§110/130.60];
• Attempted aggravated sexual abuse in the 4th degree [PL §110/130.65];
• Unlawful imprisonment in the 2d degree [ PL §135.05];
• Attempted unlawful imprisonment 2d [ PL 110/135.05] (where victim is less than 18 and Defendant is not parent);
• Attempted unlawful imprisonment in the 1st [Pl §§110.00/135.05];
• Criminal trespass in the second degree[PL§140.15];
• Possession of burglar's tools [PL § 140.35];
• Petit larceny [PL § 155.25];
• Endangering the welfare of a child [PL§ 260.10];
• Endangering the welfare of an incompetent or physically disabled person [PL §260.25];
• Patronizing a prostitute in the 3rd degree [230.14] (where the person patronized is in fact less than seventeen years of age);
• Attempted patronizing a prostitute in the 3rd degree [PL §§110/230.04];
• Attempted patronizing a prostitute in the 2d degree PL §§110/230.05];
• Attempted incest [PL §§110/255.25];
• Attempted possessing an obscene sexual performance by a child [PL §§110/263.11]; and
• Attempted possessing a sexual performance by a child [PL §§110/263.16].

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Roger Shearer –of Latham, New York- pled guilty today in Albany County Court to violating the Martin Act. Shearer violated the Martin Act by taking forty-five thousand dollars from investors to buy and rehab a building on the Troy riverfront with no intention of ever doing the project. The sham project was called Gateway Commons. A violation of the Martin Act is a Class E felony. Mr. Shearer is scheduled to be sentenced on December 18, 2008. Mr. Shearer has agreed to pay the investors back in full. The case was prosecuted by the New York State Attorney General’s office.

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Pursuant to Penal Law § 120.20, “a person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person”.

Reckless endangerment in the second degree is a class A misdemeanor in New York.

Pursuant to Penal Law § 120.25, “a person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person”.

Reckless endangerment in the first degree is a class D felony.

The term “person” is defined in Penal Law §10.00(7) as “… a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality".

The culpable mental state of “reckless” is defined in Penal Law §15.05(3) as:

“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.”

The phrase “serious physical Injury” is defined in Penal Law §10.00(10) as

“… physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”.

Please contact me if you have been charged with either reckless endangerment in the first or second degree. The initial consultation is free. If the case is not dismissed, I will negotiate a plea agreement acceptable to you or take the case to trial. You can call me toll free at 1-877-858-2889.

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Pursuant to New York Penal Law § 120.00, "a person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument".
'
The culpable mental state of “intentionally” is defined in Penal Law §15.05(1) as:

“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.”

The culpable mental state of “reckless” is defined in Penal Law §15.05(3) as:

“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.”

The culpable mental state of “criminal negligence” is defined in Penal Law §15.05(4) as:

“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.”

The term “person” is defined in Penal Law §10.00(7) as “… a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

The phrase “Physical Injury” is defined in Penal Law §10.00(9) as “… impairment of physical condition or substantial pain”.

The phrase “deadly weapon” is defined in Penal Law §10.00(12) as “…any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles”.

The phrase “switchblade Knife” is defined in Penal Law §265.00 (4) as “…any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife".

The phrase “gravity knife” is defined in Penal Law §265.00(5) as “… thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device”.

The phrase “pilum ballistic knife” is defined in Penal Law § 265.00(5-a) as “any knife which has a blade which can be projected from the handle by hand pressure applied to a button, lever, spring or other device in the handle of the knife”.

The phrase “metal knuckle knife” is defined in Penal Law S265.00 (5-b) as “… a weapon that, when closed, cannot function as a set of plastic knuckles or metal knuckles, nor as a knife and when open, can function as both a set of plastic knuckles or metal knuckles as well as a knife”.

The phrase “dangerous instrument” is defined in Penal Law §10.00(13) as “any instrument, article or substance, including a "vehicle" as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury”.

The word “vehicle” is defined in Penal Law §10.00(14) as a "... motor vehicle", "trailer" or "semi-trailer," as defined in the vehicle and traffic law, any snowmobile as defined in the parks and recreation law, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail.

Assault in the third degree is a class A misdemeanor in New York.

Please feel free to contact me if you have been charged with assault in the third degree. The initial consultation is free. If the case is not dismissed, I will negotiate a plea agreement acceptable to you or take the case to trial. You can call me toll free at 1-877-858-2889.

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New York State Attorney General Andrew Cuomo has announced today that Maria Geizer of Saratoga Springs, New York has been arrested and charged with the class E felony of unauthorized practice, the class D felony of grand larceny and the class D felony of criminal possession of a forged instrument. Ms. Geizer is alleged to have falsified her educational and professional credentials to gain employment with the Burnt Hills-Ballston Lake Central School District back in 1999. Ms. Geizer allegedly falsely stated on her resume and employment application that she had a master’s degree in psychology and was licensed as a social worker by the New York State Department of Education. Ms. Geizer is also alleged to have put her name on her husband’s master degree and license, which she then submitted to Community Human Services and the Burnt Hills-Ballston Lake Central School District during a random fraulent-billing audit conducted by the Medicaid Inspector General back in 2006. The charges are merely accusations and Ms. Geizer is presumed innocent until and unless proven guilty.

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The office of the United States Attorney for the Southern District of New York yesterday issued a press release that their office will not be pursuing criminal charges against former New York State Governor Eliott Spitzer.

The United States Attorney for the Southern District of New York Michael J. Garcia is quoted as stating:

"Eliot Spitzer has acknowledged to this Office that he was a client of, and made payments to, the Emperors Club VIP. Our investigation has shown that on multiple occasions, Mr. Spitzer arranged for women to travel from one state to another state to engage in prostitution. After a thorough investigation, this Office has uncovered no evidence of misuse of public or campaign funds. In addition, we have determined that there is insufficient evidence to bring charges against Mr. Spitzer for any offense relating to the withdrawal of funds for, and his payments to, the Emperors Club VIP.”

Mr. Garcia was further quoted as stating:

"In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. Spitzer's acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter."

Ronald H. Tills, a retired acting New York Supreme Court Justice and Court of Claims Judge must be shocked by the announcement since he pleaded guilty in Federal Court approximately two months ago to violating the federal Mann Act by recruiting out-of-state prostitutes to work at Jesters' meetings in various parts of the country. Mr. Tills is scheduled to be sentenced January 12, 2009. He faces a possible sentence of up to thirty-three months in prison.

Former Governor Eliot Spitzer issued the following statement:

“I understand the Office of the United States Attorney for the Southern District of New York has decided that it will not bring criminal charges against me. I appreciate the impartiality and thoroughness of the investigation by the U.S. Attorney’s Office, and I acknowledge and accept responsibility for the conduct it disclosed. I resigned my position as Governor because I recognized that conduct was unworthy of an elected official. I once again apologize for my actions, and for the pain and disappointment those actions caused my family and the many people who supported me during my career in public life.”

It is possible that U.S. Attorneys from districts other than the Southern District could still be considering bringing charges against former New York Governor Spitzer.

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The United States Attorney for the Southern District of New York announced yesterday that Mitchel Guttenberg was sentenced to seventy -eight months in federal prison in connection with his plea of guilty to one count of conspiracy to commit securities fraud and two counts of securities fraud. Guttenberg was also ordered to forfeit close to sixteen million dollars in monies gained through insider trading. Guttenberg was the executive director in the equity research department of UBS Securities LLC. UBS Securities, LLC rated public companies. Many stock market investors used those ratings to decide whether to buy or sell stocks. Guttenberg sold the ratings multiple times to David Tavdy and one other individual before the ratings were released to the general-public. Tavdy and the other individual would buy and sell stock based upon those ratings before the ratings were released to the general-public. This insider trading scheme apparently netted them millions of dollars. David Tavdy also pled guilty to one count of conspiracy to commit securities fraud and two counts of security fraud as result of his involvement with the insider- trading scheme. Tavdy awaits sentencing.

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