Articles Posted in Legal Terms Defined

The New York Penal Law defines several different crimes such as Assault, Robbery and Burglary that have serious physical injury as an element. The definition of serious physical injury is complex and if a person finds themselves charged with a crime in which serious physical injury is an element they should consult an experienced New York criminal defense attorney as quickly as possible.

As the name implies, serious physical injury involves injury which is far more involved than physical injury which is defined in our April 16, 2008 blog. In a nutshell, Serious Physical Injury is a physical injury which:

• Creates a substantial risk of death;

If you are charged in New York State with any crime wherein “physical injury” is an element of the crime charged (for example, Assault in the Third Degree), you need a Criminal Defense Attorney well-versed in not only the statutory definition of “physical injury” but how the courts have interpreted the definition and applied that definition in other cases such as one of the attorneys at the Westchester Firm of Tilem & Campbell. Many times a good plea-bargain offer results from your attorney pointing out difficulties in the prosecutions case. For example, showing the prosecutor prior cases where similar allegations and injuries were found not to constitute a physical injury might result in the prosecutor offering the violation of disorderly conduct. If plea negotiations fail, an experienced criminal defense attorney usually will attack, among other things, the “physical injury” element of the crime at trial. But obviously, he or she must be well versed in the cases dealing with physical injury findings.

Physical injury: (PL § 10.00(9)). Physical Injury is defined as the impairment of one’s physical condition or substantial pain. For the exact definition, see NY Penal Law § 10.00(9). The definition of “physical injury” and whether one has in fact suffered a “physical injury” is of utmost importance where one is charged with Assault in the Third Degree (PL § 120.00); a Class “A” Misdemeanor. Virtually all Third Degree Assault charges hinge on whether the defendant intentionally, recklessly or with criminal negligence caused a physical injury. The state of mind element (intentional, recklessly or with criminal negligence) and the physical injury element are what we as defense attorneys look to attack.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another, he in fact causes a physical injury to another or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person with a deadly weapon or a dangerous instrument.

(For the exact wording of the Assault in the Third Degree Statute see PL § 120.00)

Recall, a physical injury can be established by impairment of one’s physical condition and/or by the suffering of substantial pain. However, because a serious criminal conviction can result from a physical injury, the Court of Appeals (the highest Court in New York) has been strict in requiring proof of an “objective level” of physical injury to hopefully ensure that one is not convicted of a crime where the injury was merely inconsequential. For example, in Matter of Philip A., 1980, 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980), the Court of Appeals held that two punches to the face causing red marks, crying, and an unspecified degree of pain was insufficient proof of a physical injury. Two years later, in People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982) the Court of Appeal reaffirmed the need for a true “physical injury” holding that a one centimeter cut above the victim’s lip, without more, was insufficient proof of a physical injury.

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New York Criminal cases often hinge on the legal definition of common terms. Experienced criminal attorneys know that often the legal definition of something is very different than its common definition. The term “possess” has significant legal implications in, among other areas, drug and weapons cases. Attorneys must be aware of the court rulings interpreting the term and how it applies to weapons and drugs. If you are charged with a crime that has possession as one of its elements, the lawyers at Westchester County based Tilem & Campbell would be happy to offer you a free consultation regarding your case.

Possess: (PL § 10.00(8)). To “possess” is to have physical possession or to otherwise exercise dominion or control over tangible property. The exact definition of “possess” for purposes of the Penal Law and the Criminal Procedure Law is found in PL § 10.00(8)

Actual physical possession is fairly easy to identify; did the person possess the tangible property? However, to exercise dominion or control over tangible property is a somewhat abstract concept. Dominion or control has been defined as “constructive possession”. In order to support an allegation that a defendant was in constructive possession of tangible property, the People (prosecutor) must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized. People v. Manini, 79 N.Y.2d 561, 594 N.E.2d 563, 584 N.Y.S.2d 282 (N.Y.,1992)

New York Criminal Defense Attorneys Tilem & Campbell know that criminal convictions in New York State can have far reaching consequences. As discussed in previous blogs on the subject knowing the legal terminology can have a significant impact on the outcome of a case. In addition, experienced attorneys know that individual localities and specific Courts may have their own specific definitions. At the New York Criminal Defense Firm of Tilem & Campbell we have the experience to know the practices of the Courts throughout New York State. Our attorneys also have the experience to know the significance of a criminal conviction.

New York Crime: (NY PL § 10.00(6)) A crime is a misdemeanor or a felony. When attempting to obtain a favorable plea bargain, an experienced and skilled attorney will fight hard for what is referred to as a “non-criminal disposition” (Please see our past blogs on the subject of ACDs, Violations and Plea Bargaining.) In other words, the defendant would agree to plead guilty; but not to a felony or a misdemeanor. Thus, the defendant would not be saddled with a criminal record and would therefore avoid the stigma and obstacles associated with a criminal record such as difficulty in finding gainful employment, credit difficulties, increased life insurance premiums, denial of certain licenses such as firearms and liquor, etc.

DEFINITION OF PERSON UNDER THE NEW YORK STATE PENAL LAW

As discussed in our March 20, 2008 blog, guilty pleas to “violations” are commonly used

by the experienced NEW YORK CRIMINAL DEFENSE LAWYERS at TILEM & CAMPBELL to resolve more serious charges without putting our clients through the cost, expense, risk and time of a trial. At Tilem & Campbell we have successfully negotiated many criminal offenses down to a non-criminal disposition such as a violation. It’s important that your attorney know the particular court your case is pending in as Westchester County has plea-bargaining policies that differ from other counties such as Bronx County. Because of the importance of plea bargaining in general (see our March 7, 2008 post on Plea Bargaining DWI’s) and using violations in plea bargaining (See our March 20, 2008 post), here is some more information on these critical weapons in the plea bargaining arsenal here at Tilem & Campbell.

Violation: (NY Penal Law § 10.00(3)). A violation is an offense for which a person can be sentenced up to 15 days imprisonment. A violation does not include a Traffic Infraction. In addition to falling under the definition of “offense”, a violation is classified as a “petty offense” under the CPL. See CPL § 1.20(39). Violations are not criminal offenses.

While procedure in New York criminal actions and proceedings can vary from Westchester County to New York County and may even vary from one local court such as Yonkers Criminal Court to New Rochelle City Court definitions of terms and phrases generally are the same throughout the State. In other words, whether you are in Greenburgh, White Plains, Mamaroneck, Larchmont or New York City, the terms used in the criminal courts will have the same meaning. At the New York Defense Firm of Tilem & Campbell, our attorneys are very experienced in criminal defense and have a thorough understanding of the definitions relevant to criminal actions and proceedings.

Definitions of terms germane to criminal cases in New York are found in Section 2 of the New York State Criminal Procedure Law (CPL) and Section 10 of the New York State Penal Law (Penal Law). I will first discuss the definitions of terms found in Section 10 of the PL as they are applicable to the CPL unless the CPL contains a different definition of the term. CPL § 1.20

Offense: The definition of “offense” is found in Section 10 of the Penal Law. It applies to the CPL unless the CPL contains a different definition. An “offense” is any violation of law, including state and local laws as well as local ordinances, for which a term or imprisonment or a fine may be imposed. See PL § 10.00(1). Any “crime”, including a “felony,” “misdemeanor,” “petty offense,” “violation” and/or “traffic infraction” are “offenses”. It’s interesting to note that the term “petty offense” includes the non-criminal offenses of “violation” and “traffic infraction”. CPL § 1.20(39)

As discussed in my previous blog (Legal Definitions, March 14, 2008), convictions for misdemeanors and felonies in New York State can leave a person convicted of a crime with a permanent criminal record and many other “collateral” consequences such as effecting employment, immigration and civil rights. Here at the New York Criminal Defense Law Firm, Tilem & Campbell, preserving a clients “clean” record is often our paramount concern. Many clients however want to preserve their “clean record” without the expense and risk of taking their case to trial. (Please see our March 7, 2008 blog for some general principles of plea bargaining.)Moreover, New York does not have any mechanism for “expunging” a criminal record once you have one. So the stakes are high and the effects are long lasting.

ACD

New York has two options than can often help; they are the Violation and the ACD. The ACD which stands for Adjournment in Contemplation of Dismissal is often the best option for a person accused of a relatively minor crime or offense in New York. If an accused is granted an ACD their case is adjourned for a period of either six months or a year depending on the offense. (Marihuana and domestic violence have one year ACD’s.) On the next date (six months or one year later), if the accused has stayed out of trouble and otherwise abided by the terms of the ACD, the accused does not have to appear in Court and the case will be dismissed and the record sealed. If the person is rearrested or does not live according to the terms of the ACD the case is restored to the Courts calendar and the prosecution begins where it was stopped when the ACD was granted. In my seventeen year legal career, both as a New York County Prosecutor and a Criminal Defense Attorney, I have seen an ACD restored only a handful of times. The net result of an ACD, is almost always a dismissal and a sealed record.

At the New York Criminal Defense Law Firm of Tilem & Campbell our lawyers recognize that understanding criminal procedure is sometimes as important, if not more important, than understanding the substantive criminal law. Sadly, our criminal defense attorneys will agree that procedure in criminal actions varies drastically from county to county. It even can vary drastically from one local criminal court to another within the same county. That is to say that procedure in New York County (Manhattan) can vary drastically from procedure in Westchester County but even within Westchester County procedure can vary drastically from, for example, the Yonkers local Court to the Greenburgh local Court. Local custom can make the most experienced criminal defense attorney appear like a novice when he or she appears in an unfamiliar court. That is why it is important to utilize lawyers, such as ours, who are familiar with the customs and practices of Courts throughout New York State.

The procedure followed in criminal actions and criminal proceedings in the state courts of New York is found the New York Criminal Procedure Law (CPL). CPL § 1.10. Some provisions of the CPL are specifically applicable under the Family Court Act. See e.g. In re G 68 Misc.2d 80, 326 N.Y.S.2d 483 (N.Y.Fam.Ct. 1971)(provisions of CPL which that fall within the requirements of due process must be applied to juvenile proceedings). The provisions specifically applicable under the Family Court Act will be discussed later. Procedure in federal criminal cases is found in the Federal Rules of Criminal Procedure.

The CPL became effective September 1, 1971 and replaced the Code of Criminal Procedure. Unlike the Code of Criminal Procedure (the Code), the current CPL is found in the New York State Consolidated Laws. The Criminal Procedure Law is cited as, or in other words referred to as; the C.P.L. NY CPL § 1.00. As with the CPL, the Code was applicable in all criminal actions and proceedings. Code Cr.Proc. § 962.

Learning New York Criminal Law is often similar to learning a different language. Every legal term often has a very specific legal definition and sometimes that language can even differ from County to County. Here at the New York Criminal Defense Law Firm of Tilem & Campbell part of our mission is to help our clients understand exactly what they are facing and how the legal system works. That often means giving definitions of legal terms that lawyers, judges and other legal professionals take for granted. Our mission also requires us to know this different terminology and how it’s used in the many different Courthouses around the State.

Here at the Tilem & Campbell we are truly a New York State law firm. With two former prosecutors, Peter Tilem who spent ten years at the New York County District Attorney’s Office and Jean Melino who was an assistant district attorney in the Westchester County District Attorney’s Office and in the Suffolk County District Attorney’s Office, we handle cases literally throughout the state. Attorneys at this firm have appeared from Manhattan to Suffolk, Westchester to Albany, Brooklyn to Buffalo and most places in between. That experience means that our lawyers understand the legal terms as they are used throughout the State and are in a position to explain those terms to our clients.

This article is the first of a several part series in which I will define basic legal terms that our clients and others charged with a crime need to understand. Today, I will start with two very basic terms and define them is easy to understand terms. Where terms that I define in this series, have different meanings in different Courthouses I will explain that as well.