New York Criminal Lawyers Blog

As a White Plains criminal defense lawyer, I regularly appear in all of the Westchester criminal courts. I have seen a disturbing trend where American citizens who date illegal aliens are finding themselves charged with fabricated charges of domestic violence after ending the relationship.

Several of the Westchester towns such as White Plains, Yonkers, New Rochelle, Ossining, Mamaroneck and Port Chester have high illegal alien and undocumented immigrant populations. Often the immigrant will date a citizen with the hopes of a marriage green card.

When the citizen ends the relationship, the undocumented immigrant who was hoping for a marriage green card often makes a bogus claim of domestic violence. The allegation will often come as an assault charge with no injury, rape or a criminal mischief (property damage) or aggravated harassment, usually a threatening text or phone call. Often the immigrant will know the victim's email password and will send themself a threatening email or text to fabricate a case.

In these cases, we can prove that the motive is really a green card. When an undocumented alien alleges that they are the victim of domestic violence, they can often obtain a green card. So when they cannot get a green card through marriage, they double down by getting back at their ex with a bogus charge and simultaneously get a green card. Our Westchester criminal defense lawyers aggressively work to expose this motive and uncover the truth. We will subpoena phone records to show that no call occurred.

It has also been our experience that when these bogus claims of domestic violence are made, the illegal aliens are afraid to come to Court, so we regularly demand a trial. Westchester and New York criminal defense lawyers must be aware of these tactics. We have seen these domestic violence charges arise so that the claimant can get a green card in both Westchester and New York City including Queens and the Bronx.

The difference between a murder conviction and a manslaughter conviction can mean a drastic difference in the amount of prison time that a New York criminal defendant receives.

Under New York law, a person is guilty of second-degree murder when, with intent to cause the death of another person, he or she causes the death of that person under Penal Law § 125.25[1]. A person is guilty of second-degree manslaughter when he or she "recklessly causes the death of another person" under New York Penal Law § 125.15[1]). A person acts "intentionally" when his or her conscious objective is to cause death under New York Penal Law § 15.05[1]), and a person acts "recklessly" when he or she "is aware of and consciously disregards a substantial and unjustifiable risk that [death] will occur.

Manslaughter is a lesser included offense of the murder charge. New York criminal defense lawyers must be familiar with these distinctions and what is required to get a lesser included offense jury instruction.

A defendant is entitled to have the jury consider a lesser included offense of a charged count by showing that the offense is a "lesser included offense" of the charged crime and that a reasonable view of the evidence supports a finding that the defendant committed the lesser crime but not the greater

As a New York criminal defense lawyer in New York I have handled many domestic violence cases in New York City including the Bronx, Manhattan, Queens and Westchester, including White Plains, Yonkers, New Rochelle, Ossining, Port Chester, Rye, Greenburgh, New Rochelle, Mount Kisco, Mamaroneck, Irvington, Sleepy Hollow, Dobbs Ferry, Elmsford and Mount Vernon

Every New York and Westchester County criminal defense attorney, who has handled domestic violence cases where the complaintant curiously complains of years of prior acts of abuse to bolster their cases and get back at those they accused. In these circumstances, Judges often set high bail, even though these claims of abuse usually have no corroboration such as photos depicting injuries, prior complaints to the police or even medical records.

To prevent those accused with domestic violence from being convicted based upon unsupported allegations of prior abuse, the New York Appellate Court (Second Department) recently reversed an assault conviction arising out of domestic violence, where the Judge allowed the jury to hear testimony that the defendant previously abused the complaintant. Unfortunately juries are easily swayed by these often bogus claims of prior domestic abuse.

The Court clearly held that evidence of similar uncharged crimes as a general rule must be excluded from evidence because it may induce a jury to base a finding of guilt on collateral matters or may induce the jury to convict a defendant because of his past. If the only purpose of the evidence of prior acts is to show an alleged bad character or propensity towards crime, it is not admissible because there is a very real danger that the trier of fact will overestimate its significance of the evidence. Evidence of prior uncharged crimes is admissible if it establishes some element of the crime or if there is a recognized exception to the general rule such as intent, motive, knowledge, common scheme or plan, or identity of the defendant. The Prosecutor must identify some issue, other than mere criminal propensity, to which the prior evidence of abuse is relevant.

The Court clearly held that the mere fact that the defendant maintained his innocence of the crimes charged did not make identity an issue. Nor is enhancing or bolstering the credibility of the complainant, a recognized exception.

Criminal attorneys in New York City and Westchester that handle domestic violence cases should use this decision to move in limine and prohibit the introduction of this type of evidence in advance because once the cat is out of the bag, the prejudice cannot be cured.

Numerous counties including the Bronx, Manhattan, Queens and Westchester have set up Integrated Domestic Violence Parts. There are Courts which are in the New York Superior Court which hear only domestic violence cases. The same Judge often simultaneously acts as a Family Court, Criminal Court and often a Matrimonial (Divorce) Court.

Anyone arrested in White Plains, Yonkers and several other of the Westchester towns for domestic violence will be transferred to the Westchester Superior Court. Several defendants accused of misdemeanors challenged the jurisdiction and ability of the New York Superior Court from hearing misdemeanor cases involving domestic violence. The basis of the challenge was that local New York Courts have jurisdiction over misdemeanors involving domestic violence. The New York Court of Appeals held that since the New York Court system are the integrated Court system, the New York Superior Courts could continue to hear domestic violence cases.

Michael Joseph is a New York and Westchester criminal defense lawyer, with extensive experience in defending domestic violence cases and has successfully defended domestic violence cases in the Bronx, White Plains, Yonkers, Greenburgh, Elmsford, Scarsdale, New Rochelle, Westchester, the Bronx, Manhattan and Queens.

As a Westchester criminal defense attorney, Michael Joseph has handled the criminal defense of cases in the Courts of Yonkers, White Plains, New Rochelle, Greenburgh, Elmsford, Mount Kisco, Mount Vernon, Rye, Sleepy Hollow and Irvington.

As a Westchester criminal defense lawyer, Michael Joseph has extensive experience handling assault cases. The basic level assault charge, which is a misdemeanor is Penal Law § 120.00 [1] which states that a person is guilty of assault in the third degree when he intentionally causes a physical injury to another person. As such, it is essential that a complaining witness have sustained an injury to establish a prima facie case of assault. Often, in Westchester, criminal charges for assault are brought in the Courts of Yonkers, White Plains, New Rochelle, Greenburgh, Elmsford, Mount Kisco, Rye, Sleepy Hollow and Irvington for cases that do not qualify as an assault.

For a case to qualify as an assault, there must be a "physical injury", which is defined as impairment of "physical condition or substantial pain." In any New York assault case, the complaining witness must supply a supporting deposition which alleges impairment, or "substantial pain". Impairment of physical condition is defined as "a loss, loss of use, or derangement of any body part, organ system, or organ function. Guides to the Evaluation of Permanent Impairment (5th ed, 2000). A mere cursory statement that the complaintant suffered "substantial pain", is insufficient to support an allegation for assault in the third degree. "Substantial pain" has been strictly construed by the criminal courts and if an objective level of injury is not demonstrated, the charges must be dismissed as a matter of law.

The criminal courts have routinely held that minor injuries are insufficient to constitute an assault. Minor superficial soft tissue injuries are not sufficient to establish an injury sufficient to support a charge of assault in the third degree. In re Jose B., 47 A.D.3d 461 ( N.Y.A.D. 1 Dep't. 2008). In People v Jimenez, 55 N.Y.2d 895 (1982), the court dismissed a complaint of assault where the complaining witness sustained only a one centimeter cut above the lip. In People v. Ruttenbur, 112 A.D.2d 13 (1985), superficial scratches were held insufficient to sustain a charge of assault in the third degree. In People v. Contreras, 108 A.D.2d 627 (N.Y.A.D. 1 Dep't 1985), the court held that a small abrasion requiring one stitch was insufficient to satisfy the injury element of assault in the third degree. In Baksh, the Court reversed a conviction for lack of an injury, where, the victim had only cuts with no stitches. People v. Baksh, 43 A.D.3d 1072 (N.Y.A.D. 2 Dep't 2007). Here, the alleged injury was less serious than the injury that the Court found to be insufficient in Contreras, where the complaining witness required stitches. Here, there were no stitches, as such, the laceration is insufficient to establish an injury which caused substantial pain.

The claim that the complaintent suffered a bruise and swelling is also insufficient to support a charge of assault. A minor soft tissue trauma is insufficient to support an accusation of assault in the third degree. In re Jose B., 47 A.D.3d 461 ( N.Y.A.D. 1 Dep't. 2008). A mere allegation that a complainant experienced swelling is insufficient to establish an injury. People v. Richmond, 36 A.D.3d 721 (N.Y.A.D. 2 Dep't. 2007). In People v. Oquendo, 134 A.D.2d 203 (N.Y.A.D. 1 Dep't 1987), the court held that bruises from punches without evidence of the blows' after affects are insufficient to support a conviction of assault.

Likewise, the complaining witness has failed to establish that she sustained an injury capable of causing pain that rose to the level of that required by the statute. Nor has she made a sufficient factual allegation of substantial pain. Where the complaining witness states she had severe pain, this is merely conclusory and unsupported by any facts. Where there is insufficient evidence from which a jury could infer that he suffered substantial pain, the charges should be dismissed.

Where the complaining witness fails to state the duration of the pain or that pain killing medication was necessary, they have failed to establish an injury. People v. Richmond, 36 A.D.3d 721 (N.Y.A.D. 2 Dep't. 2007). A mere allegation that a complainant experienced swelling is insufficient to establish an injury. In Matter of Philip A. 49 N.Y. 2d 198, 200 (1980), the court held that a red mark and some degree of pain from a punch in the face does not constitute "substantial pain". Similarly, the court in People v. McDowell, 28 N.Y.2d 373 (1971) held that a blackened eye without any suggestion of pain is insufficient to establish "physical injury". Likewise a mere allegation that a complaining witness had pain was insufficient where they treated their aches and pain with ice, Tylenol, and iodine, and stayed home from work for three or four days. People v. Briggs, 285 A.D.2d 651, (N.Y.A.D. 2 Dep't. 2001).

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