New York Criminal Defense Lawyer Blog

Graffiti is the etching, painting, covering, drawing upon or otherwise placing a mark upon public or private property with the conscious objective or purpose of damaging such property. [PL §§ 145.60(1) and 15.05(1)]

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]

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A person commits the crime of gang assault in the second degree in New York if he or she: (1) intends on causing another person physical injury; (2) causes that person or a third person serious physical injury ; and (3) was aided by two or more persons actually present. [PL §120.06]

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]

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It is a crime in New York to patronize a prostitute. A person patronizes a prostitute in New York if he or she pays pursuant to a prior agreement a fee for having had sex with with another person. [PL§ 230.02(1)(a)] A person also patronizes a prostitute in New York if he or she pays or agrees to a pay fee for another person to have sex with him or her. [PL§ 230.02(1)(b)] A person also patronizes a prostitute in New York if he or she asks another person to have sex with him or her in return for a fee. [PL§ 230.02(1) (c)]

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)]

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In New York, a prosecutor must prove three things beyond a reasonable doubt to convict a person of criminal possession of weapon in the fourth degree for having possessed a firearm: 1.The person possessed a firearm, 2.The person did so knowingly; and 3.The firearm was operable. (CJI -Possession of Firearm)

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.

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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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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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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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There are seventeen offenses involving marihuana in New York. There are six offenses involving possession of marihuana: unlawful possession of marihuana; criminal possession of marihuana in the fifth degree; criminal possession of marihuana in the fourth degree; criminal possession of marihuana in the third degree; criminal possession of marihuana in the second degree; and criminal possession of marihuana in the first degree. There are five offenses involving selling marihuana: criminal sale of marihuana in the fifth degree; criminal sale of marihuana in the fourth degree; criminal sale of marijuana in the third degree; criminal sale of marihuana in the second degree and criminal sale of marihuana in the first degree. There are three offenses involving possession of concentrated cannabis (aka hash or hashish): criminal possession of a controlled substance in the seventh degree; criminal possession of controlled substance in the fifth degree; and criminal possession of controlled substance in the fourth degree. There are three offenses involving the sale of concentrated cannabis: use of a child to commit a controlled substance offense; criminal sale of a controlled substance in the fifth degree and criminal sale of a controlled substance in the fourth degree. Sell is defined as "to sell, exchange, give or dispose of to another, or to offer or agree to do the same." [PL § 220.00(1)]

A person who knowingly and unlawfully possesses any amount of marihuana is guilty of unlawful possession of marijuana. Unlawful possession of marihuana is a violation. [PL §221.05]

A person who knowingly and unlawfully possesses marihuana in a public place that is either burning or open to public view is guilty of criminal possession of marihuana in the fifth degree. [PL§ 221.10] A person who knowingly and unlawfully possesses one or more compounds, mixtures or substances containing marijuana with a combined weight greater than twenty-five grams is also guilty of criminal possession of marihuana in the fifth degree. [PL§ 221.10] Criminal possession of marihuana in the fifth degree is a class B misdemeanor. [PL§ 221.10]

A person who knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana is guilty of criminal possession of marihuana in the fourth degree if the preparations, compounds, mixtures or substances have a combined weight of more than two ounces. [PL § 221.15] Criminal possession of marihuana in the fourth degree is a class A misdemeanor. [PL§221.15]

A person who knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana is guilty of criminal possession of marihuana in the third degree if the preparations, compounds, mixtures or substances have a combined weight greater than eight ounces. [PL§221.20] Criminal possession of marihuana in the third degree is a class E felony. [PL§221.20]

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A person can be found guilty of assault in the third degree in New York if they: a. intentionally cause another person physical injury; b. recklessly cause another person physical injury; or c. negligently cause another person physical injury by means of a deadly weapon or dangerous instrument. Physical injury is defined as impairment of physical condition or substantial pain. [PL§120.00]

A person acts intentionally if their conscious objective is to cause physical injury to another person. [PL §15.05(1)] A person can be found guilty of assault in the third degree even if the person they intended on injuring is not the person who ended up suffering physical injury. [PL§120.00(1)] For example, a person can be found guilty of assault in the third degree if they punch the person standing next to the person they intended to punch.

A person acts recklessly if they are aware of and consciously ignore a substantial and unjustifiable risk of causing another person physical injury. [PL§15.05(3)] The act of ignoring the risk must be a gross deviation from the standard of care that a reasonable person would observe under the same facts and circumstances. [PL §15.05(3)]

Criminal negligence is different than civil negligence. A person acts criminally negligent if they fail to recognize or notice a significant and indefensible risk that a person will suffer a physical injury. [PL §15.05(4)] The act of failing to recognize or notice the risk must be a gross deviation from the standard of care that a reasonable person would observe under the same facts and circumstances. [PL §15.05(4)] Deadly weapons include loaded guns, various knives, blackjacks, and metal knuckles. [PL §10.00(12)] Dangerous instruments are any instrument, substance or article that is competent of causing death or other serious injury including but not limited to a car, boat, snowmobile or all terrain vehicle. [PL§10.00(13)]

Assault in the third degree is a class A misdemeanor generally punishable by up to one year in jail, three years probation, a thousand dollar fine, a mandatory surcharge of up to one hundred forty-five dollars, a crime victim fee of twenty dollars and/or restitution. [PL §§ 120.00, 60.01, 65.00; 60.35,70.15, and 80.05] If the crime is classified as a hate crime then generally the sentence would be increased to a maximum of one to four years in prison, five years probation, a five thousand dollar fine, a fifty dollar DNA fee, a two hundred forty dollar surcharge, a twenty dollar crime victim fee and/or restitution. [PL §§ 485.10 and 70.00. Executive Law §995(7)(d)] A split sentence, a conditional discharge and an unconditional discharge are all available sentencing options. [PL §§60.01, 65.05 and 65.20]

Please call me at 1-877-858-2998 if you are ever charged with assault in the third degree. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain agreeable to you or take the case to trial.

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A misdemeanor is a crime. New York law defines a misdemeanor as an offense, other than a ‘traffic infraction”, for which a sentence in excess of fifteen days may be imposed but which a sentence of imprisonment in excess of one year cannot be imposed. Prosecution of a misdemeanor must be started within two years of the crime.

New York law classifies misdemeanors into three categories for purposes of sentencing: class A misdemeanors; class B misdemeanors and unclassified misdemeanors. All misdemeanors carry a definite sentence that is fixed by the court. A sentence of imprisonment for a class A- misdemeanor may not exceed one year. A sentence of imprisonment for a class-B misdemeanor may not exceed three months. A sentence of imprisonment for an unclassified misdemeanor carries a sentence specified by the ordinance or law that defines the crime. A person sentenced to imprisonment for a misdemeanor serves out their sentence of imprisonment in the local county jail.Class A misdemeanor probation is three years. Class B misdemeanor probation is one year.

A court can impose a fine in most cases of no more than one thousand dollars for a class A misdemeanor. A court can impose a fine of no more than five hundred dollars for a class B misdemeanor. A court can impose a fine specified by the ordinance or law that defines an unclassified misdemeanor. A person convicted of a misdemeanor must pay a mandatory surcharge of one hundred forty dollars and crime victim assistance fee of twenty dollars. Sex offenses carry additional surcharges.

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