In New York, you can use physical force upon a person if you believe it necessary to defend yourself or another individual from what you reasonably believe to be the imminent use of physical force by that person. PL § 35.15 You can be the first to use physical force if you reasonably believe that physical force is about to be inflicted upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] You need not wait until you are struck or wounded before using physical force to defend yourself or someone else so long as you reasonably believe that another person is about to use physical force upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] It is irrelevant if you were or may have been mistaken in your beliefs so long as your beliefs were honestly held and were reasonable. [CJI- Justification: Use of Physical Force in Defense of a Person] It would not be considered self defense if you were the initial aggressor unless the other person continued the encounter by the use or threatened use of imminent physical force against you after you had withdrawn from the encounter and had effectively communicated such withdrawal to the other person. PL § 35.15(b)

You would not be justified in using physical force in response to an argument, name calling or the use of bad language absent any physical threats or acts. [CJI- Justification: Use of Physical Force in Defense of a Person] You would not be justified in using physical force if you provoked the other person’s conduct with the intent to cause physical injury to that person. You would also not be justified in using physical force to resist an authorized or unauthorized arrest by a police officer or peace officer. PL § 35.27

A person may not use deadly physical force to defend themselves unless he or she believes that the other person is using or is about to use deadly physical force or if he or she is perfectly able to safely retreat. PL 35.15(2)(a) But, a person does not have to resort to retreating if they are inside their home and are not the initial aggressor.PL 35.15(2)(a)(i) A person also does not have to retreat if he or she is a police or peace officer or is assisting a police offer or peace officer at that officer’s request. PL §35.15(2)(a)(ii) A person also does not need to retreat if they reasonably believe that the person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery. PL §35.15(2)(b) A person also does not need to retreat if he or she reasonably believes that the person is committing or attempting to commit a burglary inside a dwelling or occupied building that he or she occupies or controls or is licensed or privileged to be in and deadly force is necessary to prevent or terminate the burglary or attempted burglary. PL §35.15(a)(c) [Please also see: CJI-Justification: Use of Deadly Physical Force in Defense Of A Person]

A New York criminal court judge must grant a mistrial at the request of the people if the people’s case against the defendant suffers substantial and irreparable prejudice due to the gross misconduct of the defendant or another person acting on behalf of the defendant regardless of whether the misconduct occurs inside or outside the courtroom. [CPL § 280.10(2)] In a case involving multiple defendants, the trial will proceed for any defendant who the people’s case did not suffer substantial and irreparable prejudice due to the gross misconduct and who was not responsible in any way for the gross misconduct. [CPL § 280.10(2)]

If it is physically impossible to proceed with a criminal trial in compliance with the law, the criminal court judge must declare a mistrial and order a new trial upon a motion by either party or upon the court’s own motion. [CPL § 280.10(3)]

In People v. Gary White [Slip No. 38] the New York Court of Appeals in a split decision held that under the circumstances of this case post-Miranda statements were not required to be suppressed even though the defendant had been subjected to a period of pre-Miranda custodial interrogation without a pronounced break before the commencement of the post-Miranda interrogation. The circumstances included: the pre-Miranda custodial interrogation lasted no more than five minutes, the defendant first gave an exculpatory alibi after being read the Miranda warnings; the defendant made no incriminating statements before the Miranda warnings were read; there was a fifteen to twenty minute period of small talk followed by the defendant being allowed to smoke a cigarette and drink a soda just before the reading of the Miranda warnings, the defendant freely indicated his willingness to speak; the defendant acknowledged he understood his rights ; and the defendant signed a Miranda card before making any substantive statements.

In People v. Marcos Urbaez, [Slip Op. No. 35], the New York Court of Appeals in a unanimous decision held that the defendant – who convicted of attempted aggravated harassment after a non-jury trial- was not wrongfully stripped of his right to a jury trial when the People on the day of trial and over the objection of the defendant reduced the highest charge from aggravated harassment in the second degree, a class A misdemeanor, down to attempted aggravated harassment in the second degree, a class B misdemeanor.

A person commits the crime of making graffiti in New York if he or she makes graffiti of any kind on any public or private building without the express permission of the owner or operator of the building. [PL §145.60(2)] A person also commits the crime of making graffiti in New York if he or she makes graffiti on any other real or personal property without the express permission of the owner or operator of the subject property. [PL § 145.60(2)] The crime of making graffiti is a class A misdemeanor in New York. [PL §145.60]

A person commits the crime of possession of graffiti instruments if he or she possesses any tool, instrument, substance, solution, or other compound designed or commonly used to make graffiti under circumstances evincing a conscious objective or purpose to use same to damage property without permission or authority to do so. [PL §§145.65 and 15.05(1)] The crime of possession of graffiti instruments is a class B misdemeanor in New York. [PL § 145.65]

A person intends on causing another person physical injury if their conscious objective or purpose is to cause physical injury to another. [PL § 15.05(1)] "Physical injury" is defined as impairment of physical condition or substantial pain. [PL §10.10(9)] "Serious physical injury" is defined as physical injury which: creates a substantial risk of death; causes death; causes protracted disfigurement; causes protracted impairment of health; or causes protracted loss or impairment of the function of any bodily organ. [PL §10.10(10)] A "person actually present" refers to a person who is ready, willing and able to give instant aid to a person engaged in assaulting another. [CJI-Gang Assault Second Degree]

Gang assault in the second degree is a class C felony in New York.[PL § 120.06]

There are three categories of patronizing a prostitute in New York: patronizing a prostitute in the third degree; patronizing a prostitute in the second degree; and patronizing a prostitute in the first degree. [PL §§ 230.04, 230.05 and 230.06]

A person commits the crime of patronizing a prostitute in the third degree in New York if he or she patronizes a prostitute. [PL §230.04] Patronizing a prostitute in the third degree is a class A misdemeanor. [PL §230.04]

A person commits the crime of patronizing a prostitute in the second degree in New York if he or she is over the age of eighteen and the person being patronized is under the age of fourteen.[PL §230.05] Patronizing a prostitute in the second Degree is a class E felony. [PL §230.05] It is a defense to patronizing a prostitute in the second degree if the person patronizing the prostitute had no reasonable grounds to believe that the person being patronized was less than fourteen years old. [PL§ 230.07]

A person commits the crime of patronizing a prostitute in the first degree in New York if the person being patronized is under the age of eleven. [PL §230.06] Patronizing a prostitute in the first degree is a class D felony. [PL§230.06] It is a defense to patronizing a prostitute in the first degree if the person patronizing the prostitute had no reasonable grounds to believe that the person being patronized was less than eleven years old. [PL §230.07]

The gender of the patron and the prostitute is immaterial. [PL §230.10] Thus, it is not a defense to any charge of patronizing a prostitute that the parties involved were the same gender or that the prostitute was male and the person patronizing the prostitute was female. [PL §230.10(1)(2)]

New York Penal Law defines a firearm as any pistol or revolver; any shotgun with one or more barrels shorter than eighteen inches; any rifle with one or more barrels shorter than sixteen inches; any rifle or shotgun shorter than twenty- six inches; or any assault weapon. [PL§ 265.00(3)] A list of assault weapons can be found in New York Penal Law §265.00(22).

A person possesses a firearm by having it in their physical possession or by having it under their dominion and control. (CJI -Possession of Firearm) A person knowingly possesses a firearm if they are aware that it is in their possession. (CJI -Possession of Firearm)

A firearm is considered to be operable so long as it is able to fire ammunition. (CJI -Possession of Firearm) It need not be loaded to be considered operable.(CJI -Possession of Firearm)

Criminal possession of a weapon in the fourth degree is a class A misdemeanor.

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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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)]

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)]

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.

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]

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.

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)]

a. Statements by the defendant or any defendant to be tried jointly that was made to the police or others acting on behalf of the police anytime other than during the commission of the criminal transaction [CPL §240.20(a)];
b. A copy of the grand jury testimony of the defendant and any defendant to be tried jointly [CPL §240.20(b)];
c. Any writing concerning a physical or mental examination relating to the criminal action [CPL §240.20(c)];
d. Any writing concerning any scientific test or experiment relating to the criminal action such as the results of a blood or urine test [CPL§ 240.20(c);
e. Any photograph or drawing related to the case including the defendant’s mug shot [CPL § 240.20(d);
f. Any photograph , photocopy or reproduction of any stolen property made before it was returned to its owner [CPL §240.20(e)];
g. Any other property seized from the defendant or any defendant to be tried jointly [CPL§240.20(f)];
h. Any tape or electronic recordings which the prosecutor intends to introduce at trial [CPL §240.20(g)];
i. Anything required to be disclosed by the prosecutor to the defendant prior to trial by the constitution of this state or the United States including information favorable ( Brady material) to the defense [CPL §240.20(h)];
j. The approximate date, time and place of the offense charged and of the defendant’s arrest [CPL§240.20(i)] ;
k. The time, place and manner of notice of those individuals who are not authorized to use a computer in the prosecution of an offense involving computers such as computer trespass; [CPL § 240.20(j) and PL §156(6)] ; and
l. Inspection, calibration or repair records of machines or instruments used in vehicle and traffic law cases such as a breathalyzer or a radar gun [CPL §240.20(k)].

The prosecutor is required to make a diligent, good faith effort to ascertain the existence of demanded property and to make it available for discovery if it exists even if it may not be in the prosecutor’s possession, custody or control. [CPL §240.20(2)] However, the prosecutor is not required to obtain demanded property by using a subpoena duces tecum where the defendant could do so himself. [CPL §240.20(2)] The prosecutor has a continuing obligation to provide the requested discovery material to the defense throughout the pendency of the case. [CPL§240.60]