February 5, 2011
Please help me welcome guest blogger Alan Gordon — he’s here with scary facts about how easy is it to get arrested in the Big Apple.
While this could happen to any of us, “it’s open season on teenagers because they’re teenagers,” he says. Alan has written this post because “I want them to know how to live their lives.” But the info is useful to all of us.
(Btw, did you know that it’s illegal to be in many city parks after 9 p.m.? Or that your boots can be considered weapons? And that a fake ID in a bar can get a non-citizen deported? An arrest can also screw up your student loans. Keep reading…)
P.S. — There’s more info on Alan at the end of this post. Okay. Here we go:
I’m a criminal defense lawyer in New York City. I’ve been doing this for over 26 years, working for the Legal Aid Society, defending the indigent. I work 42 arraignment shifts per year, averaging 20+ cases per shift, most of them for minor misdemeanor offenses.
The criminal justice system depends on public funding. This in turn is justified by statistics. This article is so you don’t become one. You can greatly increase your chances of avoiding me in my professional capacity by following these simple rules:
Obvious, isn’t it? It doesn’t guarantee that you won’t be arrested. But it helps.
1. ANY AMOUNT OF MARIJUANA IS ILLEGAL! Drug use shifted from heavy crack consumption to heavy marijuana consumption as the users finally realized that crack ain’t worth it and the dealers realized that they could make just as much from weed while exposing themselves to less risk. (Marijuana sales in NY are misdemeanors unless the weight is heavy.) But any amount of marijuana, no matter how small, is illegal. The labs test for amounts that are microscopic, measure in hundredths of a grain (old laws still using English or apothecary weights). It’s an easy bust for the police — it accounts for maybe 10-15 % of what comes through arraignments, and probably 80-90 % of arrests for people under 20.
2. EVERYONE NEAR THE MARIJUANA GETS CHARGED WITH IT! Did I mention statistics? Six guys playing ball when the cops roll up. One guy throws down a bag; six guys get arrested for it. Five guys in a car get pulled over. One guy drops a joint on the floor; five guys get arrested.
My point? Don’t do it, but now that you’ve stopped laughing (Dude, are you high?), here are the practical tips. Don’t smoke outside where cops can see you. Don’t buy on the street where cops can see you. Don’t carry in cars. Don’t ride with people who are getting high in the car. Et cetera, et cetera, et cetera.
You do get a break for your first marijuana offense in NYC, an Adjournment in Contemplation of Dismissal. But that can screw up your student loans now. Frequently, you get a break for the second, but it will cost you a fine or community service. If you keep it up, a misdemeanor awaits, and those stay on your record for life. You lose your driver’s license for six months and you can get booted from city housing. Oh, and you could do time.
3. DON’T SHOPLIFT! Another popular pastime. Again, a break on the first, but see the previous paragraph on the effects of records. Also, the stores will come after you civilly for damages way in excess of what you took ($500 and up), and you have little legal recourse to fight them.
4. DON’T — USE SOMEONE ELSE’S SPECIAL METROCARD! Student, elderly and handicapped metrocards will cause the turnstiles to flash different colored lights than the normal ones. If the cop, who is watching from a stairwell or behind a pillar, sees you using one, and you are not a handicapped elderly student, they will arrest. Also, student cards are only for use to and from school. The crime is Theft of Services, a class A misdemeanor. Yeah, they give you a break on the first, but it still ain’t worth a night in jail.
5. SELF-DEFENSE ISN’T WHAT YOU THINK IT IS! If someone attacks you, you may use your fists. But the moment you use anything that isn’t part of your actual body, the law changes in NY. An object will be considered to be a weapon or dangerous instrument, and there are now two more factors that have to be present to justify it:
A. You have to reasonably be in fear of imminent danger of serious physical injury.
B. Even if you are, you still have a duty to retreat (which means run away) before you may use a weapon or dangerous instrument. This second requirement is not needed if you are in your home.
C. A few examples:
A guy beats you up. You may not stab him.
A guy pulls a knife. There is open sidewalk behind you. You may not stab him.
A guy calls you a pussy in front of all of your friends. You may not hit him.
A guy gets in your face, yelling at you. You may not hit him.
A guy swings at you with a knife, but then backs away, screaming, “I’m coming back for you!” The threat is no longer imminent. You may not hit or stab him.
You are backed into a dead end. Deadly physical force is imminent. Escape is cut off. You have the permission of the State of New York to go Rambo on his ass.
D. Some examples of weapons you didn’t know were weapons:
i. The sidewalk (for banging heads upon).
ii. Your boots.
iii. A large garbage bag full of empty soda cans. (Actually, I tried and beat that case, but the guy was charged with the felony assault and sat in for eight months awaiting trial.)
Defense of others — same rules apply.
Defense of property — don’t use weapons.
6. SPEAKING OF WEAPONS.
Don’t carry any. But especially don’t carry switchblades or gravity knives (knives which can be flipped open with one hand); knives with blades longer than four inches; collapsible batons; metal knuckles; throwing stars, etc. See Penal Law 265.01 for the complete list (but the four inch rule is under the NYC administrative code). If you are coming here from out of state, remember that even if you have a legal gun with a carry permit in your state, it’s no good in the city, even if you follow all of the rules that the airlines require for safe transport. You will be arrested when you fly out of JFK or La Guardia.
The national sport of Queens is bad driving, and it produces a significant percentage of what comes through the system, primarily DWI’s and driving with a suspended license. The latter is a misdemeanor, and can be elevated to a FELONY if you have enough tickets.
The police will use minor traffic infractions as excuses to search the vehicles like Popeye Doyle did in “The French Connection.” See Rule Number I. They will also be very patient in looking for these minor infractions. So:
A. Make sure that your vehicle is road-worthy.
The most common bullshit reason they stop you for is having a defective headlight or brakelight. Check out all of your lights for workability before hitting the road.
Make sure that your registration, insurance and emissions paperwork are up-to-date.
All you fans of tinted windshields — even if they are in NY specs, the cops will say they aren’t and stop you. Ain’t worth being that cool, bro.
Don’t block your windows! Anything hanging from a mirror — fuzzy dice, air fresheners, plastic Jesuses draped in rosary beads, etc, are all considered obstruction of the view. Likewise stuff piled behind the back seat obstructing the rear window.
If you are borrowing someone else’s car, all the illegal problems with it, including contraband in the trunk, forged stickers, etc., will become your illegal problems.
B. Drive safely!
If you change lanes without signaling, even to go around a double-parked car, they will pull you over. I had a case where the cop followed my client for 40 blocks until he changed lanes without signaling, then pulled him over, searched the car, and found drugs (supposedly in plain view).
Don’t run lights, stop signs, etc.
If you see a police DWI (Driving While Intoxicated) roadblock, don’t pull out and turn around. They will follow you and stop you.
General rules of DWI: If you have two of any drink, your blood alcohol will be over .08, the state minimum for DWI. In other words, two shots, two beers, two glasses of wine — don’t drive. The penalties are fierce! They’ve now added the interlock device as a mandatory penalty, and the total fines, program costs and license surcharges will set you back thousands plus points plus insurance increases. So, if you have two drinks, take a cab.
C. Pay your damn tickets!
If you blow off a ticket, your license is automatically suspended, and your claim that you didn’t know will carry no weight whatsoever.
As a practical matter, it will increase your fine in plea-bargaining.
Having an out-of-state license doesn’t matter — your privileges to drive in New York depend on having no tickets.
If you live here, having an out-of-state license ain’t Kosher, anyway.
Fighting the tickets in DMV (Department of Motor Vehicle) court doesn’t mean you don’t have a suspended license.
When you pay them, get receipts. Keep them in the car for proof. The police computers aren’t always up-to-date.
Always carry ID. Real ID, preferably issued by DMV with your address. This can make the difference between getting a summons or desk appearance ticket and getting arrested and being put through the system, a twenty-four hour fun ride. Remember that fake ID is considered a forged instrument, and is a FELONY! (And a deportable offense, for all you non-citizens who are trying to get drinks before you’re of age.)
Don’t mouth off at the cops. This can make the difference between nothing and being charged with Resisting Arrest and Obstruction of Governmental Administration after they beat you unconscious. This is no exaggeration — it happened to another lawyer I know.
Know your Fourth Amendment rights. You do not have to consent to searches of your person, backpack, purse, car. They may do it anyway, but if you consent, you lose that challenge.
Don’t count on the Fourth Amendment to save you: Cops will lie about the search and seizure; judges will believe them. Usually. It helps if you have witnesses, but suppression on these issues are few and far between.
Know your Fifth Amendment rights. Don’t talk, other than to give them name and address. Don’t sign anything. Ask for a lawyer. They may try and persuade you that if you co-operate, they’ll let you go, or put in a good word with the DA for you. This has never happened once.
Call your family. Have them come to arraignments. This makes a difference on bail.
Don’t take legal advice from people who aren’t lawyers who specialize in this. Especially other guys who were arrested. Or your parents.
You don’t have a right to a free lawyer until arraignment, so if they put you in a line-up, you’re screwed. But if you already have a lawyer, get the lawyer to the precinct!
Legal Aid lawyers are lawyers. We don’t work for the system. We do not work for the DA’s or the courts. We work for you. We are trained to do this, and we are good at it. Getting a private lawyer will not change your situation, although it will improve ours by decreasing our caseloads. Trust us. And to all you writers who take cheap shots at the competence of public defenders thinking that’s how the world really is — screw you all. If you ever get arrested in Queens, you’d be damn lucky to get me. But do your best not to get arrested, okay?
Alan Gordon, 51, has been a criminal defense attorney with the Legal Aid Society since 1984. He is a graduate of University of Chicago School of Law. As an undergraduate at Swarthmore College, he majored in economics and minored in English. Today, Alan lives in Queens with his wife; they have a 20-year-old son. In addition to his legal career, Alan is an accomplished writer — which might explain why he is able to discuss the law with such remarkable clarity in this post.
Alan is the author of a popular medieval mystery series about a court jester who, along with his beautiful wife, solves murders in 13th century Europe (The Fools’ Guild Mysteries published by Minotaur Books/St. Martin’s Press). Alan has also written short stories and essays, as well as the librettos and lyrics for two musicals: “Girl Detective” and “These Two Walked Into a Bar.”
As a writer, Alan says that his themes tend to revolve around “how people confront forces larger than themselves — which is also a metaphor for being a criminal defense lawyer.”