This week,  sixteen people were arrested in Queens following a raid of an underground casino. The New York City Police department found not only gambling devices, but also found drugs. Presumably everyone present will be charged with possession of the drugs, but whose drugs were they. This unfortunately is an issue that our New York City criminal defense lawyers deal with frequently. It is fundamentally unfair that people who did not even know the drugs were present can be charged under the theory of constructive possession of drugs. Basically the government argues that a person’s presence at a location where drugs were present is sufficient to show constructive possession of the drugs. However, while merely sufficient to bring a charge, it is not enough to win a case because constructive possession of narcotics requires both knowledge that the drugs were present and evidence of some degree of control over the drugs.

The New York State police are presently searching for two individuals who used counterfeit money at a Mohegan Lake game stop. While counterfeiting may seem like a victimless crime, it has serious consequences because it is not only a violation of New York State law, but also violates federal law.  Our Federal criminal defense lawyers who practice in Westchester, know that the penalties for  a federal offense can be much more severe than for a state law charge.

Also, this week,A Mount Kisco woman was arrested and charged with stealing a wallet from a Yorktown wine bar. The woman is being charged with Grand Larceny in the Fourth degree. While stealing a wallet may seem like a petty crime, stealing a credit card is a felony, in and of itself, so there are serious consequences, which a lot of people don’t realize. Most people would think stealing a wallet would be a petty larceny, but the credit card creates significant consequences. For example if you steal  a wallet which has only five or ten dollars, that is a petit larceny,  but if there is a credit card in that wallet, it is now a felony, even if the person was not trying to steal the credit  card.

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Earlier this week a panel of the New York Appellate Division, Second Department published a decision that is of interest to all criminal defense lawyers who handle gun crime cases. In this decision, the New York Court reversed a trial court decision in People v. Graham, where a man was charged with second-degree criminal possession of a weapon and fifth-degree criminal possession of a controlled substance in February 2013. A panel of judges held that the trial court should have suppressed a gun found by police because the man had not been arrested prior to the police discovery of the weapon.

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The United States Supreme Court recently ruled that a subsection of the federal Armed Career Criminal Act, which imposes an increased prison term upon a defendant with three or more prior convictions for a “violent felony,”  which is commonly known as the ‘Three strikes and your out rule” infringes upon the Constitution’s guarantee of Due Process. The Supreme Court held that the “residual clause” of this federal statute was unconstitutionally vague such that it fails to give ordinary people fair notice of the conduct it punishes. Our Westchester criminal defense lawyers  have long fought against arbitrary definitions and unnecessary harsh resuls for transgressions of criminal law  Continue reading

This morning  a suspect in a New York City shooting was  shot six times  in the chest after the suspect was spotted leaving the erotica book launch party on West 22nd Street between Sixth and Seventh Avenue in midtown Manhattan. According to witness accounts, several individuals became involved in an oral argument and seemed to quash it and even hugged. Then one party started shooting.  One of the gunman crashed his vehicle with a police vehicle after fleeing and during a police pursuit. The suspect will likely face charges of attempted murder, assault in the first degree, reckless driving and criminal possession of a  handgun, among others.  Our New York City criminal defense lawyers have defended these types of charges in the past.

In Queens, a woman was arrested after shooting a New York City Detective with a pellet gun. Although the detective was not seriously injured,  the woman, who is being arraigned in the Queens Criminal Court in Kew Gardens, will likely face felony charges of Assault in the Second Degree. Whenever a garden variety assault occurs and the victim is a police officer, emergency medical technician or a bus driver or transit worker, the victim’s occupation raises the level of the crime to a felony. Bus drivers were recently added to this law. The underlying rationale is that these public employees are a protected class and it signals the New York legislature’s intent to add more serious punishment when the victim is employed in certain occupations.

Our White Plains criminal defense attorneys know that Westchester is no longer just a quiet suburb and many of the Westchester cities  such as Yonkers, White Plains, Mount Vernon, Port Chester are now seeing criminal activity that was thought to only occur in New York City. For example, this weekend in Yonkers, there was a car jacking at a local gas station. The victim was held up at gun point and the robbers took his car. Since a gun was involved, this is a high level felony of robbery in the first and if caught the perpetrators face significant jail time.

A constitutional challenge has been launched against New York’s law prohibiting loitering for the purpose of prostitution law. The law prohibits  remaining or wandering about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of patronizing a person for prostitution. The law also prohibits remaining or wandering about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of promoting prostitution. Westchester criminal defense attorneys who fight prostitution charges keep abreast on the development of the caselaw which pertains to New York prostitution laws. 

To establish a violation of this law, an it is not necessary to prove n that the accused made a direct offer of sex for a fee and a case can be proven exclusively upon circumstantial evidence. It is enough for an officer to testify that he observed the defendant engage in a  series of brief encounters with  several passing male motorists.

The latest challenge to New York’s loitering for prostitution law asserts that the law is unconstitutionally imprecise on its face because it allows police officers to decide what kinds of activities constitute “loitering” by suspects.The complaint also alleges that the law impermissibly allows officers the discretion of deciding if a suspect’s clothing was provocative enough to signal that he or she was attempting to solicit customers for prostitution. It is also asserted that the New York City police have enforced the loitering statute in a way that discriminates against minorities, women and transgender suspects because between 2012 and 2015, almost 70 percent of the arrests were in New York City were predominately in the heavily black or Hispanic dominated precincts of New York City.

Our White Plains criminal defense attorneys keep up to date on changes in the law as it relates to civil rights and criminal defense. One of the firmest beliefs among criminal defense lawyers is that the accused has a right to confront their accusers and cross examine those who give evidence against them. This fundamental principal prevents evidence from going before a jury without being challenged and is one of the fundamental principles underlying the hearsay rule. The hearsay rule which is a common law rule that prevents out of court statements from being stated to the jury, when the statement is offered for the truth of the matter asserted.

Since the hearssay rule is intended to ensure the reliability of the evidence that gets offered in Court, the Courts have been hesitant to create exceptions to the hearsay rule and have done so when there are indicia of reliability. One such exception is the dying declaration.  The underlying theory of the dying declaratoin is that if someone is under the fear of impending death, they are likely to tell the truth as to the cause of their death.

In a recent decision, the Appellate Court reversed the trial court and ordered a new trial for two men who were convicted in the Bronx criminal court of arranging the murder of an alleged drug dealer who made dying declarations implicating the two defendants in the crime, The officer was allowed to testify that the victim stated that the two defendants were involved and the First Department Appellate Department in Manhattan held that declarations were mere expression of beliefs  and suspicions rather than statements of facts that a living witness could provide on the stand.. The Court held that although the dying declarant may accuse his or her killer in conclusory language, the declaration is kept out if the setting of the occasion satisfies the judge, or should reasonably  satisfy the Judge, that the speaker is giving expression to suspicion or  conjecture, and not to known fact. So if the victim says, it was John who shot me that would be admissible whereas, if he said I think it was John, that would not be admissible

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The Westchester business litigation lawyers at The Law Office of Michael H. Joseph, PLLC are breaking new ground in the legal field involving an unjust enrichment claim. Our New York commercial litigation attorneys won a major victory in overcoming a motion to dismiss in a case where  our client who is   an import company had property which was stored at a warehouse and a customer, who was going out of business  unlawfully  took their inventory and sold it.  While the company that misappropriated the goods was clearly liable, they are in Bankruptcy, so our attorneys were able to establish  that the their lender could be held liable.  The insolvent customer sold the goods to a third party  and the funds went to their factor, with whom the owners of the company had signed a personal guarantee.  The seller had a factoring agreement, a financing method in which a business owner sells accounts receivable at a discount to a third-party funding source to raise capital, with the defendants, a national bank, and an inventory loan agreement, which gave the defendants’ a security interest in, and lien upon, the merchandise contained within a storage warehouse. When a container of the import company’s goods arrived at the warehouse, an employee would confirm delivery, count the goods, and store them until the import company provided express written authorization for their release. However, over a period of two years, the seller unlawfully took possession of the goods and sold them to a third party.

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The Westchester Criminal lawyers with offices in the White Plains and midtown New York City are all too familiar with incidents involving police officers using excessive force on inmates or suspects in police custody. However, the long-standing corruption that allegedly existed within the Suffolk County Police Department perpetuated by ex-chief James Burke is at the helm is almost unfathomable. The Suffolk County Police Department is among the top 15 largest police forces in the country with nearly 2,000 officers and patrols most of eastern Long Island.

The ex-chief of the Suffolk County Police Department, James Burke, was criminally charged with deprivation of civil rights and conspiracy to commit obstruction of justice and plead not guilty. In 2012, Burke allegedly took revenge against and beat a man who stole a bag from Burke’s work vehicle which contained his gun belt, ammunition, sex toys, pornography, and other items. In an attempt to retrieve the embarrassing items, Burke abused his discretion as a police office by entering the house of the suspect’s mother to search for evidence and ultimately retrieve his bag. Despite the abuse of authority by Burke and cover-up by the Suffolk Police Department, the suspect was charged and sentenced to three years in prison. During the investigation the ex-police chief used unreasonable and excessive force while interrogating the suspect in a holding cell at the precinct, in which he attempted to cover-up by instructing his subordinates to report that while he was in the precinct, but did not participate in the interrogation. Further, Burke allegedly threatened to kill the suspect with a lethal dose of heroin known as a “hot shot.” Burke continued the abuse as he threatened, punched and kicked the suspect who was already chained to a bolt in the floor.

However, it appears that the beating of the suspect was only the tip of the iceberg. According to prosecutors, James Burke poses a threat to the Long Island community because of his nearly three decade long stint with the police force and the ongoing coercion and secrecy within the police force which included, among other things, paying to hide evidence that he was drunk and crashed his car while following a state official, and planting a GPS device on a rival’s car in order to “dig up dirt” on her and destroy her career. At the grand jury proceeding approximately 11 current and former police officers testified against him, which led to the judge holding him without bail. Although the Judge had originally made a decision to keep the trial closed to the public, opposition challenging the legality of a closed trial voiced from various news organizations such as The New York Times and Associated Press led to the decision to be overturned.

Too often, jury instructions handed down by a Judge in a criminal matter can be easily confused or misinterpreted, especially in a case concerning manslaughter; the crime of killing a human being without malice aforethought, or otherwise in circumstances not amounting to murder. While the State of New York recognizes few defenses to homicide, our New York City and White Plains violent crime defense lawyers know those defenses usually mitigate an individual’s potential crime, not absolve them of any wrongdoing. However, justification or justifiable homicide absolves a potential defendant from liability if the actor reasonably believes that he/she or a third-party is in imminent danger of death or serious bodily harm, the individual reasonably believed that the immediate use of deadly force was necessary to defend against that danger, and the individual used no more force than was reasonably necessary to defend against that danger.
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This week two corrections officers at Rikers Island Correctional facility in New York City were criminally charged with orchestrating an attack on an inmate to settle a personal score. If convicted, these guards will be strictly liable for civil damages under the theory of collateral estoppel.

The officers reportedly locked the inmate in a vestibule, while four inmates attacked him. Even though it is the duty of corrections officers to prevent inmate on inmate attacks, the criminal allegations against the guards allege that the guards, not only were complicit in the attack, but actually orchestrated it. This comes on the heals of the recent discovery that some guards were actually members of the Bloods street gang. This is no surprise to New York civil rights lawyers who handle cases arising in Rikers Island. Normally, in an inmate on inmate attack, the Plaintiff or injured prisoner must show that the corrections officers knew or should have known about a threat to the inmate’s safety and they failed to take adequate measures to protect the inmate that was victimized. In this case, the guards are actually ordering the inmates, which clearly means they are not providing reasonable protection. While the standards for civil liability under Federal Law differ depending on whether the inmates are pre-trial detainees or convicted prisoners, the direct ordering of an assault will qualify under either. For State law claims, which require a notice of claim within 90 days of the incident, there is ordinarily negligence liability, but in this case, since it was an intentional act, the correct cause of action is facilitation of a battery and vicarious liability for the battery under agency principles.

Our clients and many other inmates have long complained that the guards are as bad as the prisoners, and these tactics are not new. We have handled cases where the guards turn inmates against other inmates because they are not down with the program and the program is doing whatever the guards say. We have seen cases where low level classification inmates are suddenly put in “hot rooms” which are housing areas where violent and gang affiliated inmates are housed as retaliation for some petty grievance. Despite efforts at so called policy reform, Rikers Island continues to have a systemic culture of violence and our New York City police misconduct lawyers will continue to handle cases for individuals injured by guards directly or by inmates at the direction of corrections officers. While prisoners are not expected to receive the best treatment and are often less sympathetic than the rest of society, we never forget that every inmate is someone’s son or daughter and more often than not, the ones who are victimized are the kids who made a mistake and suddenly find themselves around hardened criminals. While criminals are expected to pay for their crime, they are not expected to be brutalized by other inmates or those who are charged with their care and protection.