Ken Stabler, best known as the former quarterback for the Oakland Raiders, was arrested for Driving under the influence early Sunday at about one o’clock in the morning. He was arrested on Highway 59 in Alabama. He has reportedly been released on a one-thousand dollar bond.

Mr. Stabler – also known as the “Snake”- was allegedly previously arrested for driving under the influence in 1995 and 2001. The state of Alabama –however- has only a five year look back period in driving under the influence cases. Therefore, if Mr. Stabler is convicted of driving under the influence he will be treated under Alabama law as a first offender for purposes of sentencing. A first DUI offence is a misdemeanor under Alabama law.

According to the Alabama Driver’s Manual published by the Alabama Department of Safety, the penalty for a first conviction in Alabama is a fine of six hundred to twenty one hundred dollars, up to one year in jail or by both the fine and imprisonment. In addition Mr. Stabler’s driver’s license –if convicted- would be suspended for 90 days. It is still unknown whether Mr. Stabler’s recent arrest will affect his position as a play by play commentator for his alma mater –the Alabama Crimson Tide.

The New York State Constitution gives the governor of New York the power to grant reprieves, commutations and pardons after conviction for all offenses except treason and cases of impeachment. Governor David A. Patterson announced yesterday that he has exercised that power in favor of renowned rapper Ricky “Slick Rick” Walters for his 1991 attempted murder and weapon convictions. The full and unconditional pardon was granted to assist Mr. Walters -who emigrated from the United Kingdom to the United States at the age of eleven-to attempt to avoid deportation.

Mr. Walters is probably best known as the rapper who recorded "La-Di-Da-Di" and "Children's Story".

In June 1991, Mr. Walters pled guilty in the Bronx County Supreme Court to multiple felonies which according to NYS Department of Correctional Services' records included: attempted murder in the second degree (class B Felony); criminal possession of a weapon in the second degree [class C felony]; criminal use of firearms in the first degree (class C felony); and criminal possession of a weapon in the third degree [class D felony]. He was sentenced to 3 1/3 years to 10 years in state prison. Mr. Walter's was eligible for parole on February 4, 1994 but was not released from state prison until June 4, 1997. He was under the supervision of parole following his release from state prison. He was discharged from parole supervision on or about October 4, 2000.

New York Penal Law §65.35 has been amended to increase the cost of mandatory surcharges and crime victim assistance fees. The mandatory surcharge in felony cases under the penal law is being raised from two hundred and fifty dollars up to three hundred dollars. The mandatory surcharge in misdemeanor cases under the penal law is being raised from one hundred forty dollars up to one hundred seventy-five dollars. The mandatory surcharge in violation cases under the penal law is being raised from seventy-five dollars up to ninety-five dollars. The crime victim assistance fee in all such cases is being raised from twenty dollars up to twenty-five dollars.

New York Vehicle and Traffic Law §1809 has also been amended to increase the cost of certain mandatory surcharges and crime victim fees. The crime victim assistance fee in felony and misdemeanor drinking and driving law cases is being increased from twenty dollars up to twenty-five dollars. [VTL §1809(1)(b)] The mandatory surcharge in felony drinking and driving cases is being raised from two hundred and fifty dollars up to three hundred dollars. [VTL §1809(b)(i) The mandatory surcharge in misdemeanor drinking and driving cases is being raised from one hundred forty dollars up to one hundred seventy-five dollars. [VTL § 1809(b)(ii)] The additional surcharge collected in drinking and driving cases on behalf of the state comptroller has been increased from twenty-five dollars up to one hundred ninety-five dollars. [VTL§§1809-c and1809-e (b)] The mandatory surcharge in certain other vehicle and traffic law cases has been increased from forty-five dollars up to fifty-five dollars. [VTL §1809(1)(c)] There is also now an additional surcharge for those certain other vehicle and traffic law cases of twenty dollars collected on behalf of the state comptroller. [ VTL§ 1809-e (a). ] The crime victim assistance fee in those other vehicle and traffic law cases is still five dollars. [VTL§ 1809(1)(c)] The town and village fee is also still five dollars. [VTL§1809(9)] The surcharge for equipment violations is still thirty dollars. [VTL§ 1809(1)(a)]. The additional mandatory surcharge for violations of maximum speed limits in highway construction or maintenace work areas is still fifty dollars. [ VTL §1809-d]

All of the above amendments will take effect July 1, 2008 except the increase in the additional sucharge collected on behalf of the state comptroller which will take effect August 1, 2008. [VTL §1809 and 1809-e] The senate bill number is S06806C. The assembly bill number is A09806C.

Any person after October 31, 2008 who etches, paints, draws or otherwise places or displays a noose on any private or public building or other real property without the express permission of the owner or operator of such building or real property with the intent to harass, annoy, threaten or alarm another person because of a belief or perception regarding such person’s race, color, national origin, gender, religion, religious practice, age disability or sexual orientation shall be guilty of the crime of aggravated harassment in the first degree. Aggravated harassment in the first degree is a E-Felony punishable by up to four years in prison. [PL§240.31 ] The bill was sponsored by Senator Skelos (S6499) and Assemblyman Lentol (A9480) . Governor Patterson announced he signed the bill into law on May 15, 2008. The bill was drafted in response to the Jena Six incident.

On May 14, 2008, the governor of New York-David Patterson- announced he signed the Electronic Security and Targeting of Online Predators Act (e-STOP) sponsored by Senator Dean Skelos (S06875) and Assemblyman Joseph Lentol (A09859) . This new law: (1) requires convicted sex offenders to register their internet screen names with the Sex Offender Registry; (2) allows social networking web-sites -like Face Book and My Space- to obtain those screen names in order to prohibit those account holders from entering web-sites on which they could contact children; and (3) prohibits convicted sex offenders who are on probation, conditional discharge or parole from using the internet to contact children. A person listed on the Sex Offender Registry who fails to register any Internet or email account used for the purpose of online chatting, instant messaging or social networking or fails to timely notify the state that they have changed their e-mail address or created a new on-line profile is guilty of a felony. The new law applies to all past and future individuals listed on the Sex Offender Registry and takes effect immediately.

As of May 18, 2008, a person is guilty of assault in the second degree if he or she intentionally causes physical injury to another person who is more than ten years their senior and who is age sixty-five years or older. Assault in the second degree is a class D violent felony that is punishable by up to seven years in prison. [PL§§120.05;70.02(1)(c); 70.02(3)(c)] The bill was sponsored by New York State Senator Golden (S06979) and New York State Assemblyman Silver (A9818) . New York State Governor Patterson announced the bill was signed on May 2, 2008. The law was passed in response to last years savage beatings of 101 year old Rose Morat and 85 year old Solange Elizee of Queens, New York. The law is known as “ Granny’s Law”.

There are two categories of hazing in New York. There is hazing in the first degree which is a class A misdemeanor and there is hazing in the second degree which is a violation. [PL §§ 120.16 and PL 120.17]

A person commits the crime of hazing in the first degree if he or she, in the course of another person’s initiation or affiliation with any organization, intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to that other person or a third person and thereby causes such injury. [PL§ 120.16] A person commits the offense of hazing in the second degree if he or she, in the course of another person’s initiation or affiliation with any organization, intentionally or recklessly engage in conduct which create substantial risk of physical injury to that other person or a third person. [PL §120.17] Thus, the key distinguishing factor between hazing in the first degree and hazing in the second degree is whether the conduct of the accused caused another person physical injury.

A person convicted of hazing in the first degree is subject to up to one year in jail, three years probation, a fine of up to one thousand dollars; a maximum surcharge of up to one hundred forty dollars and a maximum crime victim assistance fee of twenty dollars. [PL §§ 70.15(1); 80.05(1); 65.00 (3)(b); and 60.35(1)(a)(ii). An additional five dollar surcharge must be paid if the case is pending in a town or village court. [PL §60.35(9)]

A person convicted of hazing in the second degree is subject to up to fifteen days in jail, a fine of up to two hundred fifty dollars; a maximum surcharge of seventy five dollars and a crime victim assistance fee of twenty dollars.[ PL § 70.15(4); 80.05(4). An additional five dollar surcharge must be paid if the case is pending in a town or village court. [PL §60.35(9)]

Self defense is a justification defense in New York. PL §35.00 If a justification defense is raised by defense counsel, the defendant does not have the burden to prove at trial that their actions were justified.PL § 25.00 Instead, the prosecution has the burden of proving beyond a reasonable doubt that the defendant’s actions were not justified. PL §25.00

In New York, you can use physical force upon a person if you believe it necessary to defend yourself or another individual from what you reasonably believe to be the imminent use of physical force by that person. PL § 35.15 You can be the first to use physical force if you reasonably believe that physical force is about to be inflicted upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] You need not wait until you are struck or wounded before using physical force to defend yourself or someone else so long as you reasonably believe that another person is about to use physical force upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] It is irrelevant if you were or may have been mistaken in your beliefs so long as your beliefs were honestly held and were reasonable. [CJI- Justification: Use of Physical Force in Defense of a Person] It would not be considered self defense if you were the initial aggressor unless the other person continued the encounter by the use or threatened use of imminent physical force against you after you had withdrawn from the encounter and had effectively communicated such withdrawal to the other person. PL § 35.15(b)

You would not be justified in using physical force in response to an argument, name calling or the use of bad language absent any physical threats or acts. [CJI- Justification: Use of Physical Force in Defense of a Person] You would not be justified in using physical force if you provoked the other person’s conduct with the intent to cause physical injury to that person. You would also not be justified in using physical force to resist an authorized or unauthorized arrest by a police officer or peace officer. PL § 35.27

A person may not use deadly physical force to defend themselves unless he or she believes that the other person is using or is about to use deadly physical force or if he or she is perfectly able to safely retreat. PL 35.15(2)(a) But, a person does not have to resort to retreating if they are inside their home and are not the initial aggressor.PL 35.15(2)(a)(i) A person also does not have to retreat if he or she is a police or peace officer or is assisting a police offer or peace officer at that officer’s request. PL §35.15(2)(a)(ii) A person also does not need to retreat if they reasonably believe that the person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery. PL §35.15(2)(b) A person also does not need to retreat if he or she reasonably believes that the person is committing or attempting to commit a burglary inside a dwelling or occupied building that he or she occupies or controls or is licensed or privileged to be in and deadly force is necessary to prevent or terminate the burglary or attempted burglary. PL §35.15(a)(c) [Please also see: CJI-Justification: Use of Deadly Physical Force in Defense Of A Person]

A New York criminal court judge must declare a mistrial and order a new trial upon a motion by the defense if an error or legal defect occurs in the proceedings during the trial that is prejudicial to the defendant or denies the defendant a fair trial. [CPL § 280.10(1)] A New York criminal court judge must also declare a mistrial and order a new trial at the request of the defendant if there is conduct inside or outside the courtroom that is prejudicial to the defendant or denies the defendant a fair trial. [CPL § 280.10(1)] If there are multiple criminal defendants in the case, the criminal court judge must grant a mistrial only for the defendant who made the motion for a mistrial and for the defendant’s who joined in the motion for a mistrial. [CPL § 280.10(1)] The trial must proceed forward with respect to any defendant who did not make the motion for a mistrial or did not join in the motion for a mistrial. [CPL § 280.10(1)]

A New York criminal court judge must grant a mistrial at the request of the people if the people’s case against the defendant suffers substantial and irreparable prejudice due to the gross misconduct of the defendant or another person acting on behalf of the defendant regardless of whether the misconduct occurs inside or outside the courtroom. [CPL § 280.10(2)] In a case involving multiple defendants, the trial will proceed for any defendant who the people’s case did not suffer substantial and irreparable prejudice due to the gross misconduct and who was not responsible in any way for the gross misconduct. [CPL § 280.10(2)]

If it is physically impossible to proceed with a criminal trial in compliance with the law, the criminal court judge must declare a mistrial and order a new trial upon a motion by either party or upon the court’s own motion. [CPL § 280.10(3)]

In People v. Azim Hall [Slip Op. No. 2] the New York Court of Appeals in a split decision ruled that the police may perform a visual inspection of an arrestee’s body cavity based upon reasonable suspicion that the arrestee is hiding evidence inside his or her body cavity but if the police see anything suspicious during the visual inspection of the arrestee’s body cavity they then must get a search warrant before removing the suspicious object from the arrestee’s body cavity unless there are exigent circumstances.

In People v. Gary White [Slip No. 38] the New York Court of Appeals in a split decision held that under the circumstances of this case post-Miranda statements were not required to be suppressed even though the defendant had been subjected to a period of pre-Miranda custodial interrogation without a pronounced break before the commencement of the post-Miranda interrogation. The circumstances included: the pre-Miranda custodial interrogation lasted no more than five minutes, the defendant first gave an exculpatory alibi after being read the Miranda warnings; the defendant made no incriminating statements before the Miranda warnings were read; there was a fifteen to twenty minute period of small talk followed by the defendant being allowed to smoke a cigarette and drink a soda just before the reading of the Miranda warnings, the defendant freely indicated his willingness to speak; the defendant acknowledged he understood his rights ; and the defendant signed a Miranda card before making any substantive statements.

In People v. Marcos Urbaez, [Slip Op. No. 35], the New York Court of Appeals in a unanimous decision held that the defendant – who convicted of attempted aggravated harassment after a non-jury trial- was not wrongfully stripped of his right to a jury trial when the People on the day of trial and over the objection of the defendant reduced the highest charge from aggravated harassment in the second degree, a class A misdemeanor, down to attempted aggravated harassment in the second degree, a class B misdemeanor.

Graffiti is the etching, painting, covering, drawing upon or otherwise placing a mark upon public or private property with the conscious objective or purpose of damaging such property. [PL §§ 145.60(1) and 15.05(1)]

A person commits the crime of making graffiti in New York if he or she makes graffiti of any kind on any public or private building without the express permission of the owner or operator of the building. [PL §145.60(2)] A person also commits the crime of making graffiti in New York if he or she makes graffiti on any other real or personal property without the express permission of the owner or operator of the subject property. [PL § 145.60(2)] The crime of making graffiti is a class A misdemeanor in New York. [PL §145.60]

A person commits the crime of possession of graffiti instruments if he or she possesses any tool, instrument, substance, solution, or other compound designed or commonly used to make graffiti under circumstances evincing a conscious objective or purpose to use same to damage property without permission or authority to do so. [PL §§145.65 and 15.05(1)] The crime of possession of graffiti instruments is a class B misdemeanor in New York. [PL § 145.65]

A person convicted of making graffiti or possession of graffiti instruments can be required to successfully complete a graffiti removal program as a condition of probation or conditional discharge. [PL § 60.28].

A person commits the crime of gang assault in the second degree in New York if he or she: (1) intends on causing another person physical injury; (2) causes that person or a third person serious physical injury ; and (3) was aided by two or more persons actually present. [PL §120.06]

A person intends on causing another person physical injury if their conscious objective or purpose is to cause physical injury to another. [PL § 15.05(1)] "Physical injury" is defined as impairment of physical condition or substantial pain. [PL §10.10(9)] "Serious physical injury" is defined as physical injury which: creates a substantial risk of death; causes death; causes protracted disfigurement; causes protracted impairment of health; or causes protracted loss or impairment of the function of any bodily organ. [PL §10.10(10)] A "person actually present" refers to a person who is ready, willing and able to give instant aid to a person engaged in assaulting another. [CJI-Gang Assault Second Degree]

Gang assault in the second degree is a class C felony in New York.[PL § 120.06]

It is a crime in New York to patronize a prostitute. A person patronizes a prostitute in New York if he or she pays pursuant to a prior agreement a fee for having had sex with with another person. [PL§ 230.02(1)(a)] A person also patronizes a prostitute in New York if he or she pays or agrees to a pay fee for another person to have sex with him or her. [PL§ 230.02(1)(b)] A person also patronizes a prostitute in New York if he or she asks another person to have sex with him or her in return for a fee. [PL§ 230.02(1) (c)]

There are three categories of patronizing a prostitute in New York: patronizing a prostitute in the third degree; patronizing a prostitute in the second degree; and patronizing a prostitute in the first degree. [PL §§ 230.04, 230.05 and 230.06]

A person commits the crime of patronizing a prostitute in the third degree in New York if he or she patronizes a prostitute. [PL §230.04] Patronizing a prostitute in the third degree is a class A misdemeanor. [PL §230.04]

A person commits the crime of patronizing a prostitute in the second degree in New York if he or she is over the age of eighteen and the person being patronized is under the age of fourteen.[PL §230.05] Patronizing a prostitute in the second Degree is a class E felony. [PL §230.05] It is a defense to patronizing a prostitute in the second degree if the person patronizing the prostitute had no reasonable grounds to believe that the person being patronized was less than fourteen years old. [PL§ 230.07]

A person commits the crime of patronizing a prostitute in the first degree in New York if the person being patronized is under the age of eleven. [PL §230.06] Patronizing a prostitute in the first degree is a class D felony. [PL§230.06] It is a defense to patronizing a prostitute in the first degree if the person patronizing the prostitute had no reasonable grounds to believe that the person being patronized was less than eleven years old. [PL §230.07]

The gender of the patron and the prostitute is immaterial. [PL §230.10] Thus, it is not a defense to any charge of patronizing a prostitute that the parties involved were the same gender or that the prostitute was male and the person patronizing the prostitute was female. [PL §230.10(1)(2)]

In New York, a prosecutor must prove three things beyond a reasonable doubt to convict a person of criminal possession of weapon in the fourth degree for having possessed a firearm: 1.The person possessed a firearm, 2.The person did so knowingly; and 3.The firearm was operable. (CJI -Possession of Firearm)

New York Penal Law defines a firearm as any pistol or revolver; any shotgun with one or more barrels shorter than eighteen inches; any rifle with one or more barrels shorter than sixteen inches; any rifle or shotgun shorter than twenty- six inches; or any assault weapon. [PL§ 265.00(3)] A list of assault weapons can be found in New York Penal Law §265.00(22).

A person possesses a firearm by having it in their physical possession or by having it under their dominion and control. (CJI -Possession of Firearm) A person knowingly possesses a firearm if they are aware that it is in their possession. (CJI -Possession of Firearm)

A firearm is considered to be operable so long as it is able to fire ammunition. (CJI -Possession of Firearm) It need not be loaded to be considered operable.(CJI -Possession of Firearm)

Criminal possession of a weapon in the fourth degree is a class A misdemeanor.

People v. Lewis [2008 NY Slip Op 100200]

The Appellate Division Third Department announced that it will no longer follow the line of cases holding that a defendant’s challenge to the validity of a waiver of appeal is unpreserved for appellate review if the defense did not move to withdraw the plea or vacate the judgment of conviction.

People v. Williams [2008 NY Slip Op 100317]

In a unanimous decision the Appellate Division Third Department affirmed an order of the Supreme Court denying a defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005 on the ground that the defendant had been found to have committed numerous serious disciplinary infractions while incarcerated. In so doing, the Court chose to follow the First Department’s holding in People v. Paniagua (45 Ad3d at 107-108) and declined to follow the Second Department’s holding in People v. Sanders (936 AD3d 944 [2007])

People v. Stevens [2008 NY Slip Op 01319]

In a unanimous decision, the Appellate Division Second Department affirmed an order of the County Court designating the defendant a level three sex offender having found no merit in the defendant’s argument that the assessment of points against him based upon the victim’s physical helplessness constituted improper “double counting” because he was also assessed points based upon the victim’s age.

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