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Statutes and Law DWI/DWAI Laws Drug Laws Weapon Laws Assault Laws Larceny Laws Robbery Laws Burglary Laws Sex Offense Laws
Note: This section explains in plain language the most common criminal offenses. This is not an exhaustive list of New York criminal law, and the Law Office of Adam Bevelacqua will defend against all felony and misdemeanor
charges. Vehicle Traffic Law (VTL) Section 1192Driving While Impaired by Alcohol (VTL § 1192.1)
This is a lesser charge and a misdemeanor, which can still result in jail time, a suspended license, and thousands of dollars in fines, penalties, forfeitures, insurance premiums, and other costs. If a defendant has any other DWI or DWAI
charge within the previous ten years, the penalties will be increased. Driving While Intoxicated (VTL § 1192.2)
This is one of the most common criminal charges in New York and the consequences can be severe. The law divides DWIs into degrees of severity based on the number of DWI/DWAI convictions in the previous ten years and the Blood Alcohol Concentration (BAC) of 0.8 or 0.18. The higher BAC (0.18) increases the charge to Aggravated DWI.
Even a first charge can result in a suspended license and thousands of dollars in fines, penalties, forfeitures, insurance premiums, and other costs. The suspended license can last longer than 18 months.
A charge may be increased to a felony based on a previous DWI/DWAI or other circumstances. An effective lawyer will help a defendant early on to keep the charges at the misdemeanor level before starting to negotiate for a complete dismissal.
DWI/DWAI with drugs
will follow the same rules as with alcohol but may result in increased penalties after a conviction, especially if paired with a drug possession charge. Drugs can be much harder to detect during a traffic stop and the methods of detection much less reliable, and so a knowledgeable lawyer should argue against the scientific evidence to have these charges reduced or dismissed.New York Penal Law § 120.03 – Vehicular Assault in the Second Degree, § 120.04 – Vehicular Assault in the First Degree, § 120.04-a – Aggravated Vehicular Assault
If a person violates the DWI/DWAI laws and injures another person, he may be charged with vehicular assault. The Blood Alcohol Content, the severity of injury, and the existence of previous DWI/DWAI charges will determine the degree of the charge. A vehicular assault conviction will result in a class E or D felony sentence. Drug Possession – New York Penal Law Article 220New York Penal Law § 220.03 – Criminal Possession of a Controlled Substance in the Seventh Degree, § 220.06 – Criminal Possession of a Controlled Substance in the Fifth Degree, § 220.09 – Criminal Possession of a Controlled Substance in the Fourth Degree, § 220.16 – Criminal Possession of a Controlled Substance in the Third Degree, § 220.18 – Criminal Possession of a Controlled Substance in the Second Degree, § 220.21 – Criminal Possession of a Controlled Substance in the First Degree
These charges pertain to knowing possession of drugs
based on type and weight. The lowest charge is a misdemeanor and the highest charges are class A felonies. A lawyer must carefully argue against the weight and the type of drugs to help a client avoid extreme sentences. Many cases hinge on a successful motion to suppress illegally obtained evidence, and a defendant must have a lawyer who pays attention to the details of how the police found the drugs. The smallest detail can result in a dismissal.New York Penal Law § 220.25 – Criminal Possession of a Controlled Substance – Presumption of Guilt
The law presumes that anyone within the same room, apartment, house, or car was in possession of drugs found by the police. A defendant will need a lawyer to argue against this presumption and to prove that the defendant had no knowledge of the drugs.New York Penal Law § 220.28 – Use of a Child to Commit a Controlled Substance Offense
As with most crimes, if a child is involved with a drug offense, the prosecution may add an extra charge. However, this charge does not necessarily pertain to a child’s presence in the home of a user or addict.New York Penal Law § 220.31 – Criminal Sale of a Controlled Substance in the Fifth Degree, § 220.34 – Criminal Sale of a Controlled Substance in the Fourth Degree, § 220.39 – Criminal Sale of a Controlled Substance in the Third Degree, § 220.41 – Criminal Sale of a Controlled Substance in the Second Degree, § 220.43 – Criminal Sale of a Controlled Substance in the First Degree, § 220.44 – Criminal Sale of a Controlled Substance in or near School Grounds, § 220.48 – Criminal Sale of a Controlled Substance to a Child
Just as with possession, these charges cover the range of sales depending on the type and the weight of the drugs.
Scientific evidence, if argued correctly, can reduce the types and the degrees of charges. The sale of drugs near school grounds will add a separate charge, yet the prosecution must prove the exact location of an alleged sale. Likewise, the sale of drugs to a child will add a separate charge.New York Penal Law § 220.45 – Criminal Possession of a Hypodermic Instrument, § 220.46 – Criminal Injection of a Narcotic Drug, § 220.50 – Criminally Using Drug Paraphernalia in the Second Degree, § 220.55 – Criminally Using Drug Paraphernalia in the First Degree
In the drug laws, some charges punish the possession and use of pipes, needles, bongs, joints, wrapping paper, and other items relating to drug use, but only if the government can prove that these items would be used for ingesting drugs. The defendant faces the enhanced charge (First Degree) with a previous drug paraphernalia conviction.New York Penal Law § 220.60 – Criminal Possession of Precursors of Controlled Substances, § 220.70 – Criminal Possession of Methamphetamine Material in the Second Degree, § 220.71 – Criminal Possession of Methamphetamine Material in the First Degree, § 220.72 – Criminal Possession of Precursors of Methamphetamine, § 220.73 – Unlawful Manufacture of Methamphetamine in the Third Degree, § 220.74 – Unlawful Manufacture of Methamphetamine in the Second Degree, § 220.75 – Unlawful Manufacture of Methamphetamine in the First Degree, § 220.76 – Unlawful Disposal of Methamphetamine Laboratory Material
These laws pertain to the possession of chemicals and elements for cooking methamphetamine and other drugs. As with other drug laws, the penalties increase based on the type and the weight of the chemicals or elements and the existence of prior offenses. With methamphetamine production, many chemicals have legitimate uses, and an effective lawyer must understand the uses of the compounds to defend against the most serious felony charges.New York Penal Law § 220.77 – Operating as a Major Trafficker
This charge can result in a sentence akin to murder and applies if a defendant distributed drugs over the course of six months with a total value of $75,000 or more. A number of defenses exist for this charge, and a defendant facing this charge should contact a defense lawyer right away. Weapon Possession – New York Penal Law Article 265New York Penal Law § 265.01 – Criminal Possession of a Weapon in the Fourth Degree, § 265.02 – Criminal Possession of a Weapon in the Third Degree, § 265.03 – Criminal Possession of a Weapon in the Second Degree, §265.04 – Criminal Possession of a Dangerous Weapon in the First Degree
The type and number of weapons
will determine the degree of an offense. Also, previous convictions will increase the degree of offense in some situations. The lower charges pertain to single guns or knives, the higher charges pertain to multiple guns or knives, automatic or semiautomatic weapons, machine guns, bombs, explosives, and other weapons or devices. NYPL § 265.05, § 265.06
punish minors under age 16 and possession on school grounds, and these charges may be removed to Family Court
with the proper legal strategy.NYPL §265.08 – Criminal Use of a Firearm in the Second Degree, §265.09 – Criminal Use of a Firearm in the First Degree
These charges pertain to the displaying or the use of a gun or other firearm in the commission of certain felonies if the gun is loaded. The prosecution must prove beyond a reasonable doubt that the gun was loaded.NYPL § 265.10 – Manufacture, Transport, Disposition and Defacement of Weapons or Dangerous Instruments or Appliances
This charge covers a wide range of actions but essentially punishes any creation or manufacturing of pistols, guns, machine guns, automatic weapons, ammunition clips, knives, or other blades. Also, the charge covers the alteration, disguising, or disposal of weapons, especially if the weapon was illegally obtained or used in another crime. NYPL § 265.11 – Criminal Sale of a Firearm in the Third Degree, § 265.12 – Criminal Sale of a Firearm in the Second Degree, § 265.13 – Criminal Sale of a Firearm in the First Degree
These charges pertain to possession with the intent to sell a gun, machine gun, or other firearm, and the penalties increase by degree with the exchange of 10 or 20 weapons
in one transaction. NYPL § 265.14 – Criminal Sale of a Weapon with the Aid of a Minor, NYPL § 265.16 – Criminal Sale of a Firearm to a Minor
If a person involves a minor in a weapons sale or sells a firearm to a minor, these charges add an additional penalty. NYPL § 265.15 – Presumptions of Possession, Unlawful Intent, Defacement
Just as with drug possession, the law presumes that anyone within the same room, apartment, house, or car was in possession of a weapon. A defendant will need a lawyer to argue against this presumption and to prove that the defendant had no knowledge of the weapons.NYPL § 265.17 – Criminal Purchase of a Weapon
Any person who bought a gun, machine gun, bomb, explosive, knife, blade, or other weapon will face this charge unless the person legally bought the weapon from a licensed salesman. Assault – New York Penal Law Article 120NYPL § 120.00 – Assault in the Third Degree, § 120.05 – Assault in the Second Degree, § 120.10 – Assault in the First Degree, § 120.06 – Gang Assault in the Second Degree, § 120.07 – Gang Assault in the First Degree, § 120.13 – Menacing in the First Degree, § 120.14 – Menacing in the Second Degree, § 120.15 – Menacing in the Third Degree
, gang assault, and menacing laws vary based on prior offenses of the same type, the severity of injuries, the use of a weapon or dangerous instrument, and the number of participants. The degree of the charge will depend on the specific details, and a lawyer must argue these distinctions with the proper legal strategies to reduce or dismiss a charge. Otherwise, the most serious charges will result in sentences for a class B felony. The lowest charges are misdemeanors.NYPL § 120.20 – Reckless Endangerment in the Second Degree, § 120.20 – Reckless Endangerment in the First Degree
These charges, one a misdemeanor and the other a class D felony, relates to conduct that creates a risk of physical injury or death. The statute is written broadly, and a lawyer must argue specific case law to prove that a client did not commit such conduct.NYPL § 120.45 – Stalking in the Fourth Degree, § 120.50 – Stalking in the Third Degree, § 120.55 – Stalking in the Second Degree, § 120.55 – Stalking in the First Degree
The degrees of stalking cover a wide range of activities where one person targets another person and commits a pattern of unwanted conduct, such as repeated telephoning or following the person. The charges will increase with severity if the defendant has a previous stalking conviction within 10 years, has threatened physical harm, has stalked multiple people, or has stalked a person under the age of 14 years old (if the defendant is over 21 years old at the time of the incidents).
A common defense arises from the alleged victim failing to tell the defendant to cease contact, encouraging contact, or engaging in a relationship with the defendant. Larceny – New York Penal Law Article 155Note:
With Larceny charges, the prosecution must prove the value and the rightful owner of property beyond a reasonable doubt to convict a person of Larceny. The value of property becomes a central defense for reducing higher degrees of Grand Larceny.NYPL § 155.25 – Petit Larceny
This class A misdemeanor encompasses all theft of property under $1,000.NYPL § 155.35 – Grand Larceny in the Fourth Degree, § 155.35 – Grand Larceny in the Third Degree, § 155.40 – Grand Larceny in the Second Degree, § 155.42 – Grand Larceny in the First Degree, § 155.43 – Aggravated Grand Larceny of an Automated Teller Machine
The degrees of Grand Larceny depend upon the value of the property. Property with a total value of $1,000 - $3,000 falls under the Fourth Degree charge, a class E felony. Property worth between $3,001-$50,000 is a Third Degree charge, a class D felony. The Third Degree charge also covers larceny of an automated teller machine (ATM), and a second Third Degree charge in five years may result in an Aggravated Grand Larceny charge, a class C felony. Property worth between $50,000-$$1,000,000 is a Second Degree charge, a class C felony. Property worth more than $1,000,000 is a First Degree charge, a class B felony.
The property value may be determined by the total sum worth of the items stolen during one theft. Otherwise, the prosecution may have to bring multiple charges of lower degrees of Larceny for the separate thefts. Robbery – New York Penal Law Article 160NYPL § 160.05 – Robbery in the Third Degree, § 160.10 – Robbery in the Second Degree, § 160.15 – Robbery in the First DegreeRobbery
is the forcible stealing through physical contact or threats. The degrees of robbery depend on prior offenses of a similar type, the use of a weapon or dangerous instrument, and whether an injury resulted. Third Degree is basic robbery. Second Degree must involve multiple participants, a brandished weapon, minor injury, or the stealing of a motor vehicle. First Degree must involve serious injury or use of loaded weapons. All robbery charges are serious and result in sentences for a class D, C, or B felony. Burglary – New York Penal Law Article 140NYPL § 140.05 – Trespass, § 140.10 – Trespass in the Third Degree, § 140.15 – Trespass in the Second Degree, § 140.17 – Trespass in the First Degree
These charges are less serious than burglary and range between a violation (a ticket), a misdemeanor, or a class D felony. The degrees of the charge depend on the type of building, premise, or dwelling entered, including a school grounds, and whether the defendant possessed a weapon, bomb, or other explosive. A person may be guilty of trespass for unlawfully remaining in an area, not breaking into it.NYPL § 140.20 – Burglary in the Third Degree, § 140.25 – Burglary in the Second Degree, § 140.30 – Burglary in the First Degree
The degrees of burglary
depend upon whether the building entered was a dwelling (a home) or a business and whether the owner or anyone else was present. The least serious charges relate to breaking and entering into an unoccupied business, and the most serious charges relate to a home invasion with a weapon, explosive, and/or a resulting serious injury. The severity of an injury will increase the degree of the offense. A burglary always will be a class D, C, or B felony.NYPL § 140.35 – Possession of Burglar’s Tools, § 140.35 – Unlawful Possession of Radio Devices
These misdemeanor charges result from the possession of tools commonly used in a burglary or a radio device used for the purpose of furthering a burglary by dodging the police. Sex Offenses – New York Penal Law Article 130Note:
Sex Offenses fall under a special category of law and will result in a minimum of 30 years of registration on the sex offender registry (see the sex offenses
page for details). The Law Office of Adam Bevelacqua urges all defendants facing a sex offense to find an experienced lawyer in these matters because even a misdemeanor conviction can result in decades of harsh punishment.NYPL § 130.20 – Sexual Misconduct, § 130.25 – Rape in the Third Degree, § 130.30 – Rape in the Second Degree, § 130.35 – Rape in the First Degree, § 130.40 – Criminal Sexual Act in the Third Degree, § 130.45 – Criminal Sexual Act in the Second Degree, § 130.50 – Criminal Sexual Act in the First Degree, § 130.52 – Forcible Touching
The degree of offense depends on the sexual acts and the level of force used, including drugs or physical restraint, and the ability of the other party to consent due to age or mental incapacity. A rape will involve intercourse and a criminal sexual act will involve oral, anal, and other types of sexual contact. A four year or less difference in age between a young defendant and an accuser may be used as a defense. The degrees of offenses will result in sentences ranging from a misdemeanor to a class B felony.NYPL § 130.53 – Persistent Sexual Abuse, § 130.55 – Sexual Abuse in the Third Degree, § 130.60 – Sexual Abuse in the Second Degree, § 130.65 – Sexual Abuse in the First Degree, § 130.65-a – Aggravated Sexual Abuse in the Fourth Degree, § 130.66 – Aggravated Sexual Abuse in the Third Degree, § 130.67 – Aggravated Sexual Abuse in the Second Degree, § 130.70 – Aggravated Sexual Abuse in the First Degree
The degree of offense depends upon the ages of the defendant and the accuser (statutory rape), the number of sexual contacts, the type of sexual acts, the use of force, and the use of drugs or alcohol. The age of the accuser, whether 11, 13, or 14, may determine the degree of the offense. In some cases, a four or five year age difference with a 14 year old accuser and a defendant may be used as a defense.NYPL § 130.75 – Course of Sexual Conduct against a Child in the First Degree, § 130.80 – Course of Sexual Conduct against a Child in the Second Degree
These charges pertain to two or more sexual acts in a three-month period against one accuser. The age of the accuser, whether 11 or 13, and proof of the timeline of sexual acts will determine whether the offense is a class B or D felony. These charges preclude any other sex offense charges for this time period. Sentencing
See the sentencing chart
for information about possible sentences. A defendant should consult with a knowledgeable lawyer about the charges because a judge has discretion based on a number of factors for reducing sentences or allowing multiple sentences to be served at the same time.