New York Injury Lawyers Blog

Late Sunday night into Monday morning, a seventeen year old was shot and killed by a NYPD detective during a failed robbery attempt. The detective, who was off-duty at the time, apparently identified himself as a police officer during the attempted mugging. After being repeatedly struck by a cane carried by one of his two assailants, the officer fired his weapon, striking one suspect in the chest.

The other attacker fled the scene but was arrested later. Any charges were not reported at the time of this entry. The seventeen year old died from the wound suffered by the shot. The off-duty officer was taken to the hospital for trauma and to treat the facial injuries incurred by the cane.

Website Resource: NY1, Kristen Shaughnessy, January 30, 2012

Recently, in a Westchester County, NY criminal matter handled by Gallivan & Gallivan, our client, a 20 year-old male, was arrested and originally charged with Assault in the second degree, a Felony, after a fight with his mother's boyfriend. The boyfriend was a 46 year-old with a criminal history of his own.

After Grand Jury testimony was obtained, the charges were reduced to four Misdemeanors and one violation. Our client was charged with the following:

Assault in the third degree (PL 120.00);
Menacing in the second degree (PL 120.14);
Criminal Possession of a Weapon in the fourth degree (PL 265.01 - 2 counts); and
Harassment in the second degree (PL 240.26).

Fully prepared for trial and pursuing a justification defense (self-defense), on the first day of jury selection, all charges were dismissed.

Earlier this month, a Brooklyn appellate panel upheld the murder conviction of Franklin McPherson. McPherson was convicted of second degree murder after driving the wrong way for approximately five miles on the Southern State Parkway in October of 2007, eventually striking another car and killing its driver. Defense counsel argued that because McPherson had been drinking, and in fact had a blood alcohol content of 0.19%, he therefore lacked the mental capacity to prove "depraved indifference." The trial court disagreed, and its decision was upheld on November 1, 2011 by the Appellate Division.

The New York Penal Code states that "A person is guilty of murder in the second degree when: (2) Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." The court ruled that McPherson "deliberately and purposefully proceeded the wrong way down a parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences." The court did not find his drunkenness a mitigating factor. Murder in the second degree is a class A-1 felony.

Read the Court's full decision here.

A Bronx judge ruled on October 7th that the Bronx DA failed to meet the requirements of "exceptional circumstances" in failing to produce police witnesses in the criminal trial of a man accused of felony assault and marijuana possession, among other charges. The DA had argued that the witnesses, two police officers, were unable to testify because of injuries sustained during the defendant's arrest. Both officers suffered wrist injuries during the arrest.

Under New York Criminal Procedure Law section 170.30(1)(e), a criminal court may dismiss charges when a defendant is denied his or her right to a speedy trial. Further, under section 30.30(1)(a), a motion made pursuant to 170.30(1)(e) must be granted when the prosecution is not ready for trial within six months of the commencement of the criminal action, if at least one of the charges against the defendant is a felony. Article 30 outlines an "exceptional circumstances" exemption from this speedy trial requirement, however the court in this case ruled that the officers' respective wrist injuries did not meet the standard for this exemption. Their wrist injuries did not affect their ability to testify. Additionally, the People failed to produce relevant medical documents to support the delay. As such the court ordered a recalculation of the speedy trial time.

A court in upstate New York (Niagara County) recently dismissed a misdemeanor charge of assault in the third degree due to a fatal defect in the factual assertions of the case included in the accusatory instrument. As a brief background, the defendant was accused of punching his brother-in-law in the face, and subsequently striking him in the face with a stick. As a result, the brother-in-law suffered an abrasion to the face for which he received medical attention. After the on-site treatment, the brother-in-law received no further medical care for the wound.

According to Section 120 of the Penal Code, an individual is guilty of assault in the third degree if he or she intends to cause physical harm to another individual, and causes such harm; recklessly causes physical injury to another person; or negligently causes physical injury to another person with a deadly weapon or dangerous instrument. Physical injury is defined by the Code as "impairment of physical condition or substantial pain."

As the statute states, impairment of physical condition or substantial pain must be shown to prove physical injury. The court cites a previous decision, People v. Chiddick, which ruled that when substantial pain is established, so too is physical injury. Of course, as the court concedes, "substantial pain" has a subjective standard. In Chiddick, there was evidence of bleeding and a broken fingernail, as well as testimony from the victim. In the present case, the only claim regarding "physical injury" included in the accusatory instrument was a minor abrasion to the face. As such, the court ruled that the State's case was defective, as it did not properly allege the element of substantial pain. In light of this, the court granted the defendant's motion to dismiss the charge of assault in the third degree.

People v. McDowell, 11030021, NYLJ 1202514685987, at *1 (Town, Niagara, Decided August 16, 2011).

In an Orange County, NY criminal case, our client, a criminal defendant was charged with 2 counts of misdemeanor driving while intoxicated (DWI) while operating an ATV. His BAC reading was .16. In New York, the legal limit is .08. Under New York Law, misdemeanor driving while intoxicated is defined under Vehicle & Traffic Law Section 1192. The section, in relevant part, states:

§ 1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article...

2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.
(b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

Our client was charged with violating sections 1192(2) and 1192(3). The section 1192(2) was based on the client's BAC reading being over the legal limit. The section 1192(3) charge was based on the police officer's observations (ie. slurred speech, erratic driving). After a bench trial, our client was acquitted of all criminal charges.

If you or someone you know has been charged with DWI, your first call should be the New York DWI Attorneys at Gallivan & Gallivan.

The Westchester County criminal defense attorneys at Gallivan & Gallivan represented a client in Bronx County charged with Grand Larceny in the Second Degree. The charges were the result of an investigation by the Attorney General of the State of New York. The client was extradited from Florida to face charge. Under New York Penal Law § 155.40, Grand larceny in the second degree is defined as follows:

A person is guilty of grand larceny in the second degree when he steals property and when:

1. The value of the property exceeds fifty thousand dollars; or
2. The property, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely.

Unable to make bail, the client was confined to jail for four months while counsel was attempting to resolve her case. Facing a maximum jail sentence for a "C" felony of up to 15 years and restitution of over $370,000.00, a plea was entered whereby a sentence of time served (4 months), probation, and a fine of $10,000 was imposed.

If you or a loved one is charged with a crime your first call should be to Gallivan & Gallivan for criminal defense representation.

The White Plains, NY criminal attorneys at Gallivan & Gallivan recently represented a criminal defendant in County Court in Orange County, NY, accused of Burglary 3rd, a class "D" felony as a second felony offender. As a second felony offender, the defendant was facing up to 7 years in State Prison. Under New York Penal Law § 140.20, Burglary in the third degree is defined as follows:

A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.

After extensive preparation and preliminary hearings, the matter was tried. The client was incarcerated as he was unable to make bail. After a four day trial, the client was found not guilty and released.

Our firm recently represented a criminal defendant in a local city court charged with the following offenses under 2 separate dockets:

Docket #1

1) Attempted Assault in the third degree (Penal Law §120.00); and
2) Harassment in the second degree (Penal Law §240.26).

Docket #2

1) Assault in the third degree (Penal Law §120.00);
2) Menacing in the second degree (Penal Law §120.14);
3) Criminal Mischief in the fourth degree, three counts (Penal Law §145.00); and
4) Harassment in the second degree (Penal Law §240.26).

The charges stemmed from two incidents of alleged domestic violence that occurred within a twelve hour period. The defendant was alleged to have threatened his wife with a knife, and assaulted his wife by throwing a computer monitor and glass table at her.

Both cases were fully prepared for trial. On the first day of jury selection, both cases were dismissed when the People could not present a prima facie case.

Maurice Smith of Patchogue, Long Island faces up to eight years behind bars following a guilty plea to vehicular manslaughter, among other charges. Smith was speeding on Route 78 in Bedminster, NJ last June when he collided with Paul Shelley, operating a motorcycle of his own. Shelley suffered major leg injuries. His passenger on the bike, Nicole Widener, was ejected and killed by a passing vehicle.

Sentencing for Smith is scheduled for March 8th. He could face a maximum sentence of eight years jail time. A conviction in criminal proceedings will, in most instances, force the insurance carrier for the guilty party to seriously consider settlement. Although many insurance policies have exclusions for criminal acts, the criminal conviction makes it apparent that their insured was at fault.

Starting this past Monday, the New York City Police Department has begun providing data on misdemeanor crimes on the official NYPD website. The information on misdemeanor crimes and violations will serve to supplement statistics on major crimes already available on the Department's website. One driving force behind the release of this new data was a perception from some analysts that New York's declining felony rate was due to an increase in the downgrading of certain crimes from felony to misdemeanor. Paul Browne, a police spokesperson, noted the symmetrical decline between felonies and misdemeanors over the past decade as evidence that this was not the case. "This contradicts assertions that felony crime statistics declined as a result of downgrading to misdemeanors, which would have experienced corresponding increases," Browne said.

While some critics of the move have called for an independent, external audit of crime statistics, this move by the NYPD is certainly a step in the direction of public disclosure of a broader range of crime statistics available to the general public.

Website Resource:

Answering Critics, Police Release Minor-Crime Data New York Times, Al Baker, December 28, 2010