New York Criminal Defense Lawyer Blog

Professional basketball legend Charles Barkley was arrested early this morning in Scottsdale Arizona on suspicion of driving under the influence of alcohol. [Arrest Report] Barkley was stopped for allegedly failing to stop for a stop sign. Barkley allegedly smelled of alcohol and failed a field sobriety test. Barkley also allegedly declined to take a breath test. Barkley –however- did have a blood test. If Barley’s blood alcohol content was .08 or higher, he is facing a minimum of 10 consecutive days in jail and fines and assessments of at least $1,250. If Barkley’s blood alcohol content was .15 or higher, he is facing a minimum of 30 consecutive days in jail and fines and assessments of at least $2,500. If Barkley’s blood alcohol content was .20 or higher, he is facing a minimum of 45 days in jail and fines and assessments of at least $2,500. In addition to jail, fines and surcharges, Barkley -if convicted-would also be required to undergo alcohol screening, education and treatment and would be ordered to perform community service. He would also have to equip any vehicle he operates with a certified ignition interlock device. Barkley was released after being processed and cited. Barkley is presumed innocent unless and until proven guilty in a court of law.

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Ben-Ami Kadish- a former U.S. Army arsenal employee -pled guilty today in Manhattan federal court to participating in a conspiracy to act as an unregistered agent of the Government of Israel. Kadish worked at the U.S. Army’s Armament Research, Development, and Engineering Center at the Picatinny Arsenal in Dover, New Jersey. Kadish allegedly gave classified documents concerning the U. S military to an agent of the Israel Government multiple times between 1980 and 1985. Some of the documents he gave to the Israel agent allegedly concerned the US missile defense system. The Israel agent was allegedly Yossi Yagur. Yagur allegedly photographed the classified documents at Kadish’s home. Kadish is to be sentenced in Manhattan federal court on February 13, 2009. Kadish –who is eighty-five years old-could be sentenced up to five years in federal prison. He could also be fined up to $250,000.

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The United States Attorney’s Office for the Southern District of New York and the New York Office of the United States Postal Inspection Service jointly announced today that William Troper -of Tirat Carmel, Israel- has been arrested and charged with one count of mail fraud and one count of mailing threatening communications. Troper under the business name “Check Processing Bureau” [“CPS’] allegedly mailed out notices all over the country telling the recipients that his company was a collection agency hired to collect on a bad check that the recipient had issued and threatening the recipient with criminal prosecution if they did not make good on the bad check. A number of the recipients apparently fell victim to the alleged scheme even though they had never actually issued a bad check. If convicted, Troper could be sentenced up to 30 years in prison. Anyone who believes they were victimized by Troper’s alleged bogus “Bounced-Check” collection scam is asked to contact Wendy Olsen-Clancy who is the Victim Witness Coordinator at the Unites States Attorney’s Office for the Southern District of New York at 866-874-8900. Troper is presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

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New York Attorney General Andrew M. Cuomo announced today that his office has charged former New York State Division of Parole Chairman and Executive Officer George B. Alexander with Grand Larceny in the Fourth Degree [e-Felony], Criminal Possession of Stolen Property in the Fourth Degree [E-Felony] and Criminal Possession of Stolen Property in the Fifth Degree [A-Misdemeanor]. On April 4, 2008, a $1,700 Gateway lap top computer belonging to the Erie County Probation Department was recovered from Alexander’s home using anti-theft software installed on the computer. Alexander is alleged to have stolen the Gateway laptop computer from work when he was Director of the Erie County Probation Department. Alexander served as the Director of the Erie County Probation Department from February 2000 to February 2007. In February 2007, former New York Governor Eliot Spitzer appointed Alexander to be the New York State Division of Parole Chairman and Executive Officer. Alexander resigned as Director of the New York State Division of Parole Chairman and Executive Officer last week. The position reportedly paid $120,000 per year. The charges are merely accusations and Alexander is presumed to be innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

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The U.S. Department of Justice and the Federal Bureau of Investigation issued a press release today asking anyone who believes that they have been a financial fraud victim in the case of U.S. v. Bernard L. Madoff to submit the following information to the FBI in New York: (1) full name; (2) mailing address; (3) phone number; and (4) copies –not originals- of any documents that substantiate their loss. The information should be mailed to: FBI New York, ATTN: Victim Assistance Office, 26 Federal Plaza, 23rd Floor, New York, New York 10278. The FBI has also set up a hot line number for victims to call and leave their contact information. The hotline number is (212) 384-2359. Madoff is the investment advisor who allegedly ran the largest Ponzi scheme in history. Losses have been estimated at fifty billion dollars.

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The Greenfield Town Court has jurisdiction over traffic tickets and misdemeanors committed within the Town of Greenfield, New York. The Greenfield Town Court also has preliminary jurisdiction over felonies committed within the Town of Greenfield, New York. Greenfield Town Court is in Saratoga County approximately 5 miles north of Saratoga Springs. The Greenfield Town Hall is located on the corner of Route 9 N and Wilton Road. It is located directly across the street from the Greenfield Center Post Office. Greenfield Town Hall is a red brick building with a stone apron. The entrance to the court is located on the side of building directly opposite to Route 9N. A small parking lot is located directly in front of the courthouse and is accessed from Wilton Road. There are two handicapped parking spots in that parking lot. There is a larger connected parking lot directly behind the Greenfield Community Center. The parking lots are generally well illuminated. The entrance to the Greenfield Town Hall is located between the two white pillars. Greenfield Town Court is located in the basement of the Greenfield Town Hall. There is a small elevator for people who are unable to walk downstairs located in the main lobby of the Greenfield Town Hall. There is also a side entrance with a ramp for people in wheelchairs. The door to the stairs leading from the first floor to the basement is just past the main lobby area inside the Greenfield Town Hall. The door is on the left. The courtroom is located at the base of the stairs. Honorable Deborah Hopkins and Honorable Paul L. Varley are the current Greenfield Town Court justices. They are not attorneys. Cynthia Havens is the current court clerk. The judges and the clerk of the court share the same office space along the right side of the court. Their chamber and office is well marked. Saratoga Assistant District Attorney Matthew J. Chauvin currently handles all criminal and traffic matters pending in Greenfield Town Court. Mr. Chauvin is generally in court with Judge Varley on the first Monday of every month at 9:00 a.m. and with Judge Hopkins on the second Monday of every month at 7:00 p.m., Mr. Chauvin meets with attorneys in a small office located directly next to the judge’s chambers. The door to his office is well marked. Mr. Chauvin will negotiate plea agreements with attorneys by mail in non-criminal traffic cases. His office address is Saratoga County District Attorney’s Office, Municipal Center, 25 West High Street, Ballston Spa, NY 12020. His phone number is 518.885.2263. His fax number is 518.884.8627. The courts mailing address is Greenfield Town Court, PO Box 10, Greenfield Center, NY 12833. The court’s phone number is 518.893.7432. Judge Varley is extension 311. Judge Hopkins is extension 310. The court fax number is 518.893.2502. Requests for adjournments should be in writing. Fines, fees and surcharges must be paid by cash, certified check or money order. Certified checks and money orders should be made payable to “Town Court, Town of Greenfield”. The court does not accept personal checks. A self-addressed stamped envelope should accompany any payment for the return of a receipt.

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The Bethlehem Town Justice Court has jurisdiction over traffic tickets and misdemeanors committed within the Town of Bethlehem, New York. The Bethlehem Justice Town Justice Court also has preliminary jurisdiction over felonies committed within the Town of Bethlehem, New York.

Bethlehem Justice Court is located in the Bethlehem Town Hall at 447 Delaware Avenue in Delmar, New York. It is located across the street from the Bethlehem Town Library on the corner of Delaware Avenue and Borthwick Avenue. The Bethlehem Town Police Department is located in the same building. The court parking lot is located behind the building off Borthwick Avenue. The parking lot does get full and people commonly have to park along Borthwick Avenue.

The current Bethlehem Justice Court Clerk is Karen Creed. The current Bethlehem Town Justices are Honorable Paul F. Dwyer and Honorable Ryan Donavan. Both judges are practicing attorneys.

Criminal cases are generally handled at 4:00 p.m. on the first and third Tuesday of every month. Vehicle and traffic court is generally held at 5:30 p.m. every second and fourth Tuesday of the month. Bethlehem Police and New York State Police trials are generally scheduled every Monday at 5:30 p.m. and on the second and fourth Wednesday of every month at 8:00 a.m. The court does not grant adjournments of trials "except for good cause shown".

An attorney may appear without their client in non-criminal traffic ticket cases using a waiver of appearance. The court does not accept faxes.

The court office is generally open during the workweek from 8:30 a.m. to 4:30 p.m. Fines must be paid by cash, certified check or money order. The court does not accept credit cards or personal checks. The Albany County District Attorney’s Office handles traffic tickets issued by the New York State Police and all criminal cases.

Part-time town attorneys’ Andrew Kirby and Thomas Newman handle traffic tickets issued by the Bethlehem Police Department. The Assistant District Attorney meets with defense attorneys in an office located in the back right corner of the courtroom. The town attorneys meet with defense attorneys in an office located in the back left corner of the courtroom. Attorneys and clients should check in with the clerk as they enter the courtroom.

Bethlehem Town Court is generally a very busy court. In 2007, Bethlehem Town Court ranked thirty-third in total revenue amongst New York town and village courts. In 2007, its total revenue was reported to be $1,046,807.50. The information in this entry is subject to change without notice. The court can be reached by calling 518-439-4955 and pressing option five followed by option two. The court's mailing address is: Bethlehem Justice Court, 447 Delawre Avenue, Delmar NY 12054. The court's website address is: http://www.townofbethlehem.org/pages/depServices/justiceCourt.asp. It is recommended that you contact the court to confirm all policies, dates and times.

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On December 10, 2008, a Manhattan federal grand jury indicted long time New York State Assemblyman Anthony Seminerio of Queens with a single count of honest services mail fraud. Seminerio is accused of giving certain entities with business before the New York State Assemby favorable treatment in exchange for “consulting” fees laundered through Marc Consultants. The fees received are estimated at a million dollars. The entities included hospitals, a consulting firm linked to an educational institution, and a firm that markets supplemental insurance packages to public institutions. Seminero was originally arrested in this case back in September. If convicted, Seminerio –age 78- could be sentenced to up to 20 years in a federal prison. An indictment is merely an accusation. Seminerio is presumed innocent unless and until proven guilty in a court of law.

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A New York Traffic Law Attorney who is representing an out-of-state licensee needs to be aware of their client’s home state point system. A New Jersey licensee will have two points placed on their New Jersey driving record for any out-of-state traffic ticket resulting in a moving violation conviction. A Florida licensee who is convicted of an out-of-state moving violation will have points placed on their Florida Driving record if the ticket is a point assessable violation according to Florida statute 322.27(3). An Alaska licensee convicted of an out-of –state moving violation will have points entered on their driving record as if the conviction occurred in Alaska. For example, an Alaska Licensee who is convicted of traveling 20 MPH over the speed limit in New York will have four points entered on their New York driving record and six points entered on their Alaska driving record. A Vermont licensee will not have any points placed on their Vermont driving record for any out-of-state traffic ticket conviction but a code is entered on their record indicating that they were convicted of a specific moving violation. For example, code “S93” means speeding and code “S99” means speeding in school zone. The codes are presumably for the benefit of insurance companies who set insurance premiums based in part on an insured’s driving history. If you would like to know what effect an out-of-state traffic ticket conviction would have on your driving record, you should review your state’s points system and/or contact your state’s department of motor vehicle.

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In recent blog posts the Walk and Turn and the One- Leg-Stand field sobriety tests have been reviewed. Another commonly used field sobriety test is the Horizontal Nystagmus Gaze test. Horizontal Nystagmus Gaze refers to noticeable involuntary jerking of the eyes while moving side to side. The police officer will test each of driver’s eyes by asking the driver to look at a small stimulus-commonly the tip of a pen- while keeping their head still as the police officer moves the object from side to side. The police officer will start with the driver’s left eye and then do the driver’s right eye.

The officer is trained to look for three specific clues during the Horizontal Nystagmus Gaze test: noticeable jerking of the eye as it moves side- to- side; distinctive jerking of the eye when it moves and stays as far to the side as possible; and jerking of the eye prior to reaching a forty- five degree angle. The maximum number of clues in each eye is three. The maximum number in clues in both eyes is six. Law enforcement assumes that any driver who exhibits four or more clues during the Horizontal Nystagmus Gaze test to have a blood alcohol content of greater than .10. The National Highway Safety Traffic Administration claims this test is 77% accurate when a driver exhibits four or more clues.

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Gary J. Moscato who owns Earl’s Best Paint and Body Shop in Buffalo, New York entered a plea of guilty today to the E felony of unlawful possession of hazardous waste. David J.Lake who is a part-time employee of Earl’s Best Paint and Body Shop entered a plea of guilty to the E-felony of unlawful dealing in hazardous wastes. Mascato allegedly stored paint solvent waste in five- gallon containers that he paid Lakes three hundred dollars to dump subsequent to discovering how much it would cost him to dispose of it legally. Lakes allegedly removed the labels from no less than 30 five-gallon containers and dumped them in two remote locations in the Town of Cheektowaga. The New York Department of Environmental Conservation spent almost twelve thousand dollars cleaning up the two sites. The two men are scheduled to be sentenced on February 24, 2009. They each face up to four years in prison. Moscato has agreed to reimburse the state for the cost of the clean up. The New York Department of Environmental Conservation investigated the case. The case was prosecuted by the New York Attorney General’s Office. The pleas were entered in Erie County Court.

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Poughkeepsie resident Frank Scott Surico who pled guilty last July to having committed six bank robberies was sentenced yesterday to ninety- two months in federal prison. The robberies were committed in the beginning of this year at the following banks: the Webster Bank in Brookfield, Connecticut, the citizen Bank in New Windsor, New York, the Fairfield Bank in Danbury Connecticut, the Catskill Hudson Bank in Middletown, New York and the Citizens Bank in Matamoras, Pennsylvania. He also attempted to rob the Mid Hudson Valley Federal Credit Union in Middletown, New York. His modus operandi was to go up to the tellers, put a plastic bag on the counter, instruct the tellers to put money in the bag and then walk out. He stole a total of approximately twenty three thousand dollars.

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A driver who is stopped and suspected of driving while intoxicated in New York will be required to take a field sobriety test that will most likely include the one-leg-stand test. The one-leg-stand test has two stages. The first stage of the one-leg-stand test is the instruction stage. The second stage of the one-leg-stand test is the balance and counting stage.

During the instruction stage of the one-leg-stand test, the driver will be required to stand with their feet together, arms by their side, and listen to instructions on how to perform the test. The instruction part of the test is designed to divide the driver’s attention between maintaining the stance and listening and recalling instructions.

During the balance and counting stage of the one-leg stand test, the driver must keep one of their legs raised to a point where their foot is approximately six inches off the ground and maintain this position while counting “one thousand and one”, one thousand and two”, “one thousand and three” until instructed to stop. The balance and count stage is designed to divide the driver’s attention between balancing on one foot and counting aloud. The officer is supposed to have the driver perform the balance and count stage for approximately 30 seconds.

The officer is trained to look for four specific clues during the one-leg-stand test: swaying; arms being used to balance; foot dropping and hopping. A driver who exhibits two or more clues is presumed by law enforcement to have a BAC greater than 0.10. The National Highway Traffic Safety Administration claims that the walk and turn test is 65% accurate which means the test is inaccurate 35% of the time.

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New York detective Samuel Haigler of the 017 Detective Squad has accused New York Giants’ wide receiver Plaxico Burress of criminal possession of weapon in the second degree in violation of Penal Law §265.03.(1)(b) and criminal possession of a weapon in the second degree in violation of Penal Law 265.03(3).

Penal Law §265.03 states in relevant part as follows:

“A person is guilty of criminal possession of a weapon in the second
degree when:

(1) with intent to use the same unlawfully against another, such
person:

(a) possesses a machine-gun; or

(b) possesses a loaded firearm; or

(c) possesses a disguised gun; or

(2) such person possesses five or more firearms; or

(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.

Criminal possession of a weapon in the second degree is a class C felony.”

The factual part of the accusatory instrument alleges that an undisclosed informant saw Burress holding a drink in his right hand while fidgeting with the waistline of his pants with his right hand as he was going into the upper level of the VIP section of the Latin Quarter Club on Lexington Avenue in New York City. It further alleges that the undisclosed informant heard a pop and then heard Burress say “Take me to a hospital”. It further alleges that the undisclosed informant saw Burress’s legs begin to shake. It further alleges that the undisclosed informant saw a bloody pistol fall out of Burress’s pant leg. It finally alleges that Burress was taken to New York Presbyterian Hospital/Weill Cornell Medical Center where he was treated for a gunshot wound. According to the accusatory instrument, the alleged crimes took place on November 29, 2008 between the hours of 1:00 a.m. and 2:00 a.m.

If convicted of Criminal Possession of a Weapon in the Second Degree, Burress faces a possible determinate sentence of 3 ½ to 15 years in state prison followed by 2 ½ to 5 years post-release supervision. [PL § 70.02(3)(b), 70.00(6) and 70.45(2)] Burress, however, is presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law. Burress is represent by Ben Brafman who successfully represent Sean “P.Diddy” Combs on weapon charges stemming from a bar room brawl back in 1999. Burress has been released on a $100,000 bail bond.

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