Articles Posted in felonies

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We thought we should expand a bit on an entry we published some time ago about fake IDs and the consequences of using them.

Be Polite!

The consequences, we noted, may include charges ranging from mere infractions to felonies. Don’t forget that you’re actually committing a class D felony when you carry one of these things. The person issuing your citation knows that, so if you do make the mistake of using a forged license, don’t make the additional mistake of being rude to the arresting officer – we’ve heard from at least one person in a position to know that when it comes to charging, politeness counts.

Administrative Punishment for Uncharged Offenses

In that entry, we also pointed out that there will be inevitable administrative repercussions, including the suspension or revocation of your real license.

Among other things, we said that DMV doesn’t need a conviction before it takes action against you. All the law requires is a violation of the Vehicle and Traffic Law, so a mere charge is enough to trigger an administrative response.

And that’s true, as far as it goes, but DMV may take action against you, we find, even without a charge. That’s worth restating: If you use a fake ID – and if DMV can figure out who you are – your license (or, if you’re from out-of-state, your privilege to drive in New York) can be revoked without a charge ever being brought.

We’ve had more than one report confirming this.
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“We have found a witch! (A witch! a witch!) Burn her burn her!”

Monty Python and the Holy Grail

The Writ of Habeas Corpus is a way to challenge illegal imprisonment. In fact, it’s been the primary way to do that since King John signed the Magna Carta in 1215.

It’s such an established part of our jurisprudence that the US Constitution doesn’t even pretend to grant the right. All the Constitution says, (in Article I, Section 9), is that habeas corpus can’t be suspended except “in cases of rebellion or invasion.” In other words, habeas corpus is a given.

But there’s always a catch, and the catch here is that the Constitution says nothing about imposing crippling limitations on the vehicles through which habeas corpus petitions must be brought.

By way of illustration, we thought we’d look at a recent per curiam decision of the US Supreme Court denying federal habeas corpus relief to a California inmate.

In Raul Lopez, Warden v. Marvin Vernis Smith, the Supreme Court overruled a federal district court and the Ninth Circuit Court of Appeals, which had granted habeas corpus relief to the inmate, Marvin Vernis Smith. (the term ‘per curiam‘, by the way, is Latin for ‘by the court’; it implies that the court is speaking with one voice)

Mr. Smith had been convicted, after a jury trial in a California court, of first degree murder. He was given a sentence of 25 years to life. All of Smith’s state court appeals had been denied (an appellate court first overturned the conviction, then affirmed it – having been ordered by the California Supreme Court to think again).

So Mr. Smith sought habeas corpus relief in the federal courts. This is a time-honored procedure, as we’ve said: once your state court appeals run out, you can apply to the federal courts. To succeed in a federal court, however, you have to show that the state courts have denied you a right guaranteed under the US Constitution. Here, Mr. Smith argued that his right to due process and his sixth-amendment right “to be informed of the nature and cause of the accusation” had been violated.
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Cakobau.jpgCakobau (1815 – 1883). Photo by Francis H. Dufty (1846-1910) (National Library of Australia) [Public domain], via Wikimedia Commons

“Woman pudding and baby sauce, Little boy pie for second course, He’d swallow them all without any remorse, The King of the Cannibal Islands.”

Anon. 19th Century Song

People respond to the utterly alien in various ways. Natives of the south seas, for instance – and their supposed eating habits – have been a stock cartoon theme for generations. ‘The King of the Cannibal Islands’ is a 19th century song – decidedly ‘un-P.C’ – that was taught to New York school children as recently as the 1960s. It’s a very silly piece, as you’ll note from the lyrics above, and from more than one rowdy rendition on YouTube.

What was the source of all this material? In the 18th and 19th centuries Europeans and North Americans came in contact with peoples, including certain Pacific Islanders, who practiced cannibalism: peoples who, for ritual and/or terroristic purposes, sometimes killed and ate other human beings. That children’s song, for instance, might or might not refer (obliquely, per a Popular Science article from 1895) to an actual Fijian paramount chief named ‘Thakombau’ or, more properly, Seru Epenisa Cakobau. Cakobau converted to christianity and worked to end cannibalism in Fiji, and so naturally became known as the ‘cannibal king’.

Clearly, people can find a real cannibal funny, if the cannibal lives far enough away, or is long dead. But the key to feeling comfortable with someone – if that someone might feel comfortable with the idea of eating you – is distance. We don’t necessarily laugh at the utterly alien when we find it next door – and even a theoretical cannibal ‘creeps us right out’, if he might be cruising our streets.
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Image: William Hogarth [Public domain], via Wikimedia Commons

When you have a minute, take a look at “Computing Crime and Punishment” by Sandra Blakeslee in the New York Times. (You’ll find it well worth your while, if only for the 1871 mugshot that accompanies the piece.) The article is a discussion of research made possible by the online publication of The proceedings of the Old Bailey, 1674-1913. Named for the street it’s located on (‘Old Bailey’) the Old Bailey is the central criminal court in London. The courthouse was built in 1673 and its staff has been keeping meticulous records ever since.

Computational analysis of those records, according to Ms. Blakeslee, indicates a change over time in the way the British criminal justice system has treated different sorts of crime. The article is especially concerned with changing attitudes in the 18th and 19th centuries toward violence. At the end of the 17th century, apparently, violence – whether perpetrated by members of the public or by the state – was considered normal, everyday, and just-to-be-expected. By the 19th century, there was a consensus that violence was most emphatically not ‘normal’. In the 1840s, the Proceedings tell us, “only those found guilty of the most serious offences (murder, wounding, violent theft, arson, sodomy) were sentenced to death (though only murderers were actually executed)…”

To illustrate this shift toward humanity and away from brutality – and particularly away from the brutal punishment of property crime with the same severity as violent crime, Ms. Blakeslee mentions the case of John Ward, put to death in 1765 for stealing a watch and a hat; she points out that, not long afterward, a woman who slowly tortured a servant to death got the same punishment. The case does, in one sense, support her contention. We can guess that had the prosecution taken place in 1840 instead of 1765, Mr. Ward would have survived his brush with the law.
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There has been a lot of coverage and commentary concerning the recent death – apparently by drug overdose – of Philip Seymour Hoffman, the noted actor. One article that raised an interesting issue was published a few days ago in the Guardian. It concerns the attempt to find out exactly who had provided the drugs that killed Hoffman. Per the article:

The New York police department’s intensive effort to determine the source of the drugs in an apparent accidental overdose is unusual. Courts have found in past rulings that under state law drug dealers can’t be held liable for a customer’s death.

Some quick research suggests that this is more or less correct. A 1972 decision immediately turns up – People v. Pinckney – an appellate division ruling later affirmed by the state’s highest court, the Court of Appeals. The court in Pinckney reviewed New York’s overall statutory scheme for dealing with drug offenses. Noting, first, that it was comprehensive and, second, that it didn’t include enhanced penalties for drug sales just because the use of the drug resulted in the death of the customer, the court concluded that New York’s Penal Law does “not make the act of selling a dangerous drug, which, when injected . . . , causes the death of the user, a homicide.”

But it’s a bit more complicated than that, as we’ll get into below.
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Adam and Eve Attrib.jpegAn article in the Saratoga Springs Saratogian caught our eye recently, for a couple of reasons. One was an apparent irony in the charges, which we’ll get into below. The other, admittedly, was nosiness: the story involves ‘the Happy Angel Spa’ – a business located on our very street – and charges that arose, according to police, because ‘the Happy Angel Spa’ “was not just a massage parlor.”

We presume that the defendants here are innocent, but what might ‘not just a massage parlor’ mean? Well, one of the defendants has been accused of Prostitution. That term can cover a lot of ground: it includes any form of sexual conduct (or an offer to engage in sexual conduct) in exchange for a fee. ‘Sexual conduct’, defined here in the context of sex crimes, would, in turn, include just about anything you could imagine.

Prostitution is a class B misdemeanor. The maximum penalty is three months in the county jail or a year’s probation and/or a fine. (‘Patronizing a prostitute’, although it’s not charged here, would actually be more serious; it’s a class A misdemeanor. That can cost a year in jail, or three years’ probation.)

Prostitution is not the most serious charge faced by the ‘Happy Angel’ defendants, though. It’s one thing to perform an act – like exchanging money for sex – that’s completely illegal. It’s quite another – and far more serious, in this case – to do something that’s completely legal but that you, personally, aren’t authorized to do. And that’s where the irony comes in.
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The issue of drowsy driving has been a growing presence in the media lately.

In New York State, this issue was brought to the fore by a horrific crash in Bronx County. 15 passengers were killed, and many others injured, in March 2011 when an excursion bus hit a guard rail at high speed and was torn apart. There were allegations that the driver might have been nodding off at the time of the accident.

A grand jury reviewed the matter in August 2011, and issued a 55 count indictment. It charged the driver, Ophadell Williams, according to a press release by the Bronx District Attorney, with

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New York’s statutory scheme for punishing criminal possession of a weapon is laid out in Article 265 of the Penal Law, and in its simplest terms it looks at three things: the nature of the alleged weapon; the way it’s being used; and the identity and background of the person using it.

The punishment for criminally possessing a weapon can be severe, as this story from the Glens Falls Post Star illustrates: a Tanice Sumner of Queensbury, New York (who already had a felony DWI on her record, according to the article), was recently accused of threatening state troopers with a ‘small kitchen knife’. Convicted of Attempted Criminal Possession of a Weapon in the Third Degree, she’s now serving a sentence of 1½ to 3 years in state prison.

The term ‘weapon’ is a broad one. It can cover anything from a machine gun to such everyday items as rubber boots, handkerchiefs, spatulas, pens and pencils. But while a machine gun is always a weapon, a handkerchief – or a kitchen knife – may or may not be, depending on how the item is being used.

We’ll get into that below.
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“Go tell the Spartans, thou who passest by, that here, obedient to their laws, we lie.” Simonides

Last week’s entry addressed “leaving the scene of an incident without reporting.” Defined in Section 600 of the Vehicle and Traffic Law, the statute is designed to punish hit-and-run driving. As we discussed, it’s very important to comply with Section 600’s requirements because, if the consequences of an accident are bad enough, a violator with no prior record can do 2 1/3 to 7 years in prison.

But just what does compliance look like in any but the most standard situations? We’ve attached a report by WTEN in Albany, NY, that touches on some of the ins and outs. The story involves an off-duty state trooper, his pickup truck, and a dead man left like a dog in the road.

The ultimate conclusion of the grand jury in the case? Heartless, maybe. Criminal, no.
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“[A]ll citizens will be required to change their underwear every half hour. Underwear will be worn on the outside so we can check.” Woody Allen Bananas

New York doesn’t want drivers to evade liability for harm they may do. For this reason, the Vehicle and Traffic Law has very specific instructions for drivers who have been involved in an accident:

[B]efore leaving the place where the damage occurred, [each driver shall] stop, exhibit his or her license and insurance identification card for such vehicle, . . . and give his or her name, residence, including street and number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual’s insurance policy, and license number to the party sustaining the damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.

Information gained through this mandatory disclosure can be used to make insurance claims, and in civil litigation, administrative proceedings and even criminal prosecutions (in cases where the driver may have been drunk, for example). However, even though the information can be used to prosecute the driver providing it, New York’s Court of Appeals has dismissed arguments that requiring the disclosure violates constitutional protections against self-incrimination. The court concluded in People v. Samuel, that

[t]he duties imposed . . . are reasonable exercises of police power by the State to regulate activities directly relevant to public safety. On this view, the incidental and limited risk of inculpation by identification and report of motor vehicle operators whose conduct involves, or is likely to involve, criminal accusations is insufficient to inhibit the regulatory power by the interposition of the privilege against self incrimination.

To encourage compliance, the same law forbids “leaving the scene of an incident without reporting” and makes the consequences of doing so very unpleasant.
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