New York Criminal Attorney Blog

Possession of 25 grams or less of marihuana in New York is generally not a criminal offense. [PL 221.05]. Therefore, simple possession of an unlit “joint” or a “nickel or dime” bag in New York is generally only charged as the violation - Unlawful Possession of Marihuana. One can be charged criminally with Criminal Possession of Marihuana in the Fifth Degree – a Class B Misdemeanor if the marihuana is in a public place and burning or open to public view. [PL 221.10].
Furthermore, prior convictions for UPM do no elevate a new UPM charge to a criminal offense. There are some offenses found in the Penal Law or the Vehicle and Traffic Law which are elevated to a more serious charge if one has a prior conviction for the same offense. For example, if one is arrested for DWI they are generally charged with DWI as an unclassified misdemeanor. However, if they have a prior DWI conviction within the ten years prior to their arrest on the current DWI, the current DWI can be elevated to a Class E felony.
That’s not the case with Unlawful Possession of Marihuana [PL 221.05]. Nothing elevates UPM to a criminal offense. Even if you have 50 prior convictions for UPM, if you are caught with 25 grams or less of marijuana, you still are only facing the non-criminal violation of Unlawful Possession of Marihuana. Prior controlled substance convictions may result in a higher fine but will not operate to elevate the UPM to a criminal offense. I will discuss when a prior controlled substance conviction may result in a higher fine on a current UPM in a future blog.
For more information about Unlawful Possession of Marihuana, other marihuana offenses, controlled substance offenses or other criminal matters, please contact us toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In New York, no person shall operate a motor vehicle while their ability to operate such motor vehicle is impaired by the consumption of alcohol. [VTL 1192(1)]. Unlike Driving While Intoxicated [VTL 1192(2), (3)], Driving While Ability Impaired (DWAI) in New York is not a criminal offense but instead is a non-criminal traffic infraction. (Please see our May 27, 2009 blog on the difference between DWAI and DWI in New York.) However, Driving While Ability Impaired can be charged as a misdemeanor if the defendant has two or more convictions for Driving While Ability Impaired, Driving While Intoxicated, Aggravated Driving While Intoxicated, Driving While Ability Impaired by Drugs or Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs within the previous ten years.

One who is “impaired” by alcohol is less “impaired” than one who is intoxicated. Said another way, intoxication is a greater degree of impairment. All the prosecution need prove to convict a defendant of Driving While Ability Impaired is that the defendant’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities the defendant is expected to possess in order to operate a vehicle as a reasonable and prudent driver. [See CJI2d (1192(1)].

What makes it difficult for a defendant to defend against a Driving While Intoxicated charge is the “impaired, to any extent”, language found in the jury instruction. For one to be found guilty of Driving While Intoxicated (which is a criminal offense), their ability to operate a motor vehicle must be impaired to a “substantial” extent. However, with Driving While Ability Impaired, one is guilty if their ability to operate the vehicle is impaired to “any” extent. So while it’s generally not a criminal charge, it doesn’t take much proof for the prosecution to prove that one was Driving While Ability Impaired [VTL 1192(1)] because of the low threshold “any” extent proof requirement. Therefore, even the slightest of impairment can result in a conviction for Driving While Ability Impaired.

For more information about any Driving While Ability Impaired or Intoxicated issues in New York, feel free to call Tilem & Campbell toll free at 1-888-DWI-COUNSEL (888-394-2686) or visit us on the web at www.888dwicounsel.com.

As experienced criminal defense lawyers we are all too familiar with New York’s onerous Sex Offender Registration Act (SORA). SORA requires the registration of individuals convicted in New York State of certain sex offenses and demonstrates what could happen when inexperienced defense attorneys fail to inform their clients of all of the consequences of a plea. . In People v. Gravino, the defendant was charged with rape in the second degree; endangering the welfare of a child; and unlawfully dealing with a child in the first degree for providing alcohol to underage children and having sex with a 14-year-old boy. The rape charge was a registerable offense under SORA.
The defendant ultimately agreed to plead guilty to one count of third-degree rape in exchange for a sentence of 1 1/2 to 3 years in prison. During her plea discussions with the court and at the time of her plea allocution, defendant was never informed by the court that she would be required to register as a sex offender as a result of being convicted of third degree rape. At sentencing, defendant moved to withdraw her plea claiming a conflict of interest with her current counsel and that she experienced “nothing but misrepresentation”. The court denied her application and proceeded with the sentencing; imposed the agreed sentence and found defendant to be a sex offender.
Defendant appealed to the Fourth Department of the Appellate Division arguing, among other things, that her plea was not voluntary because the court did not make her aware of the sex offender registration requirements under SORA. The First Department disagreed, holding that the “lack of awareness prior to sentencing” of the SORA sex offender registration requirements did not detract from the voluntariness of defendant’s guilty plea.
The New York Court of Appeals affirmed the Fourth Department holding that the sex offender registration requirement was a collateral consequence that the court was not required to inform the defendant of. A sentencing court, opined the Court of Appeals, must only inform a defendant of direct consequences of a sentence imposed by the court and not collateral consequences typically imposed by another agency. Further, held the Court, SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes. Thus, SORA registration is not a “direct consequence” of a conviction.
The lesson to be learned from this case is that defense counsel must thoroughly review all collateral consequences with their clients before they agree to plead guilty to any charge. It is not the court’s responsibility to inform the defendant of all, or any, possible collateral consequences of pleading guilty.
For information about any criminal related legal issue, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.

New York Criminal defense lawyers Peter Tilem & John Campbell continue their radio show entitled "Law Talk" tonight at 8 pm on the Centanni Broadcasting Network. Tonight's topic is "Everything You Wanted To Know About the Prostitution Business (but were afraid to ask)" The show should be very interesting and informative and follow the general format of past shows except that Law Talk is scheduled to have its first guest ever joining lawyers Peter Tilem and John Campbell on the air tonight.

Please tune in tonight live at 8pm or listen on demand by clicking here Listen Live.

As always, if there is a topic you want to here discussed on the air or you want a question answered live, e-mail the question to info@tilemandcampbell.com.