Gary J. Moscato who owns Earl’s Best Paint and Body Shop in Buffalo, New York entered a plea of guilty today to the E felony of unlawful possession of hazardous waste. David J.Lake who is a part-time employee of Earl’s Best Paint and Body Shop entered a plea of guilty to the E-felony of unlawful dealing in hazardous wastes. Mascato allegedly stored paint solvent waste in five- gallon containers that he paid Lakes three hundred dollars to dump subsequent to discovering how much it would cost him to dispose of it legally. Lakes allegedly removed the labels from no less than 30 five-gallon containers and dumped them in two remote locations in the Town of Cheektowaga. The New York Department of Environmental Conservation spent almost twelve thousand dollars cleaning up the two sites. The two men are scheduled to be sentenced on February 24, 2009. They each face up to four years in prison. Moscato has agreed to reimburse the state for the cost of the clean up. The New York Department of Environmental Conservation investigated the case. The case was prosecuted by the New York Attorney General’s Office. The pleas were entered in Erie County Court.

Poughkeepsie resident Frank Scott Surico who pled guilty last July to having committed six bank robberies was sentenced yesterday to ninety- two months in federal prison. The robberies were committed in the beginning of this year at the following banks: the Webster Bank in Brookfield, Connecticut, the citizen Bank in New Windsor, New York, the Fairfield Bank in Danbury Connecticut, the Catskill Hudson Bank in Middletown, New York and the Citizens Bank in Matamoras, Pennsylvania. He also attempted to rob the Mid Hudson Valley Federal Credit Union in Middletown, New York. His modus operandi was to go up to the tellers, put a plastic bag on the counter, instruct the tellers to put money in the bag and then walk out. He stole a total of approximately twenty three thousand dollars.

A driver who is stopped and suspected of driving while intoxicated in New York will be required to take a field sobriety test that will most likely include the one-leg-stand test. The one-leg-stand test has two stages. The first stage of the one-leg-stand test is the instruction stage. The second stage of the one-leg-stand test is the balance and counting stage.

During the instruction stage of the one-leg-stand test, the driver will be required to stand with their feet together, arms by their side, and listen to instructions on how to perform the test. The instruction part of the test is designed to divide the driver’s attention between maintaining the stance and listening and recalling instructions.

During the balance and counting stage of the one-leg stand test, the driver must keep one of their legs raised to a point where their foot is approximately six inches off the ground and maintain this position while counting “one thousand and one”, one thousand and two”, “one thousand and three” until instructed to stop. The balance and count stage is designed to divide the driver’s attention between balancing on one foot and counting aloud. The officer is supposed to have the driver perform the balance and count stage for approximately 30 seconds.

The officer is trained to look for four specific clues during the one-leg-stand test: swaying; arms being used to balance; foot dropping and hopping. A driver who exhibits two or more clues is presumed by law enforcement to have a BAC greater than 0.10. The National Highway Traffic Safety Administration claims that the walk and turn test is 65% accurate which means the test is inaccurate 35% of the time.

New York detective Samuel Haigler of the 017 Detective Squad has accused New York Giants’ wide receiver Plaxico Burress of criminal possession of weapon in the second degree in violation of Penal Law §265.03.(1)(b) and criminal possession of a weapon in the second degree in violation of Penal Law 265.03(3).

Penal Law §265.03 states in relevant part as follows:

“A person is guilty of criminal possession of a weapon in the second
degree when:

(1) with intent to use the same unlawfully against another, such
person:

(a) possesses a machine-gun; or

(b) possesses a loaded firearm; or

(c) possesses a disguised gun; or

(2) such person possesses five or more firearms; or

(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.

Criminal possession of a weapon in the second degree is a class C felony.”

The factual part of the accusatory instrument alleges that an undisclosed informant saw Burress holding a drink in his right hand while fidgeting with the waistline of his pants with his right hand as he was going into the upper level of the VIP section of the Latin Quarter Club on Lexington Avenue in New York City. It further alleges that the undisclosed informant heard a pop and then heard Burress say “Take me to a hospital”. It further alleges that the undisclosed informant saw Burress’s legs begin to shake. It further alleges that the undisclosed informant saw a bloody pistol fall out of Burress’s pant leg. It finally alleges that Burress was taken to New York Presbyterian Hospital/Weill Cornell Medical Center where he was treated for a gunshot wound. According to the accusatory instrument, the alleged crimes took place on November 29, 2008 between the hours of 1:00 a.m. and 2:00 a.m.

If convicted of Criminal Possession of a Weapon in the Second Degree, Burress faces a possible determinate sentence of 3 ½ to 15 years in state prison followed by 2 ½ to 5 years post-release supervision. [PL § 70.02(3)(b), 70.00(6) and 70.45(2)] Burress, however, is presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law. Burress is represent by Ben Brafman who successfully represent Sean “P.Diddy” Combs on weapon charges stemming from a bar room brawl back in 1999. Burress has been released on a $100,000 bail bond.

The walk-and-turn test is one of several field sobriety tests used by police when they suspect that a stopped driver may have been driving while intoxicated. The walk-and-turn test is a divided attention test in that it divides the driver's attention between listening, remembering, small muscle control, balancing, counting aloud, and walking heel-to-toe. It has two stages. It has the instruction stage and the walking stage. During the instruction stage, the driver is required to stand heel- to-toe with their hands at their side while listening to instructions. The walking stage takes place on a real or imaginary line. During the walking stage the driver must take nine heel- to- toe steps forward then turn around in a set way and then take nine heel- to- toe steps back towards where they started. The driver must also count their steps aloud and look down at their feet while performing the walking stage of the test. The turn requires the driver to keep their front foot on the line, turning as instructed and taking several small steps with their back foot until the turn is completed.

During the walk-and-turn test the police officer is trained to look for eight “clues”: inability to balance during the instruction stage; starting the walking stage too early; stopping during the walking stage; failure to touch heel- to-toe; stepping off the line; use of arms to balance; loss of balance during the turn or failing to turn in the prescribed manner and taking an incorrect number of steps. A driver who displays two or more of these clues or is unable to do the test is assumed by the police to have a blood alcohol content greater than 0.10. The National Highway Traffic Safety Administration claims that the walk-and-turn test is 68% accurate. In my book, that means the test is inaccurate 32% of the time.

A person convicted of a drinking driver offense in New York State will be required to pay a mandatory surcharge over and above any other fines, fees or assessments. A conviction of a felony drinking driver offense carries a mandatory surcharge of $520.00. A conviction of a misdemeanor drinking driver offense carries a mandatory surcharge of $395 in cities and $400.00 in towns and villages. A conviction of a violation drinking driver offense carries a mandatory surcharge of $255.00 in cities and $260 in towns and villages

Governor David A. Paterson announced today that the state will be stepping up emission inspections of heavy duty vehicles in urban areas throughout the state using roadside programs. Any heavy- duty vehicle exceeding emission levels when tested will be subject to a fine of $700 for a first violation and $1,300 for any subsequent violation. The fines are reduced to $150 for the first violation and $500 for any subsequent violation if the problem is corrected within 30 days of receipt of the ticket.

Pursuant to New York Vehicle and Traffic Law § 1196(7)(a), a conditional license allows a person to operate a motor vehicle:

• to and from the person’s place of employment,

• during work if the person’s employment requires the operation of a motor vehicle;

• to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program so long as the person’s attendance is required,

• to and from a class or course at an accredited school, college or university;

• to and from a state approved institution of vocational or technical training;

• to or from court ordered probation activities;

• to and from a motor vehicle office for the transaction of business relating to such license or drinking driver program;

• for a three hour consecutive daytime period, chosen by the administrators of the drinking driver program, on a day during which the person is not engaged in usual employment or vocation;

• to and from a medical examination or treatment as part of a necessary medical treatment for such person or member of their household, as evidenced by a written statement to that effect from a licensed medical practitioner; and

• to and from a place, including a school, at which a child or children of the person are cared for on a regular basis and which is necessary for the person to maintain their employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training.

It is a traffic infraction for a person to drive with a conditional license at any other time. [VTL § 1196(7)(f)] A person convicted of driving with a conditional license at an unauthorized time will be fined two to five hundred dollars and/ or sentenced up to fifteen days in jail. [VTL § 1196(7)(f)] Their conditional license will also be revoked. [VTL § 1196(7)(f)]

New York State Governor David A. Paterson has given the go ahead for the New York State Department of Corrections to give away seven thousand unused medium weight winter coats to shelters and Salvation Army centers across the state of New York. Inmates at the Clinton Correctional Facility manufactured the unused coats five to eight years ago. The coats were originally to be worn by state correctional officers. However, the correction officers stopped wearing that particular type of coat back in 2006. The coats range in size from 38 R to 68 T. The coats will be given to the following locations starting today:

New York City Area:

1,800 coats to the NY Cares Coat Drive (through WNBC-TV)
500, Rockland County Salvation Army, 179 North Main St., Spring Valley
500, Salvation Army of Peekskill, 117 Nelson Ave., Peekskill

Greater Capital Region:

200, Albany City Mission, 259 South Pearl Street, Albany
108, Saratoga County Adult & Family Services, 152 West High Street, Ballston Spa
108, City of Hudson Coat Drive, City Hall, Warren Street, Hudson
60, City Mission, 425 Hamilton Street, Schenectady
60, Resurrection Lutheran Church, 186 Main Street, Cairo
24, God's Storehouse & Food Pantry, 3 Bogardus Avenue, Catskill
24, Washington County Social Services Dept., 383 Broadway, Fort Edward
24, Hudson Falls United Methodist Church, 227 Main Street, Hudson Falls
24, Families First, 196 Water Street, Elizabethtown

Western New York:

180, Great Commissions in His Service Ministries, 470 Hollenbeck Street, Rochester
140, Salvation Army, four locations: Dunkirk (704 Central Avenue), Batavia (529 East Main Street), Dansville (6 Chestnut Avenue), Buffalo (960 Main Street)
45, Community Action of Orleans & Genesee Counties, 409 East State Street, Albion
45, Buffalo City Mission, 100 East Tupper Street, Buffalo
45, Response To Love Center, 130 Kosciuszko Street, Buffalo
45, Franciscan Center, 1910 Seneca Street, Buffalo
45, Open Door Mission, 165 N. Plymouth Ave., Rochester
45, Friends Of The Night, 394 Hudson Street, Buffalo
45, St. Luke's Mission of Mercy, Walden Avenue, Buffalo
45, Medina Area Association of Churches, c/o Calvary Tabernacle Church, MAAC Clothing Depot, Catherine Street, Medina
25, Catholic Family Charities, 80 West Main Street, Rochester

Hudson Valley:

200, Family of Woodstock, Canal Street, Ellenville
200, Middletown Cares, 47 Academy Ave., Middletown
125, Veterans Pantry at Castle Point, Veterans Administration Hospital, Rt. 9D, Beacon
125, Hillcrest House at Hudson River Housing, 28 Snow Terrace, Poughkeepsie
125, The Oasis, 7 Delavan Ave., Beacon
125, Solid Rock Church, 20 Holleran Road, New Windsor
100, Newburgh Ministry, 9 Johnston St., Newburgh

Central New York/Southern Tier:

100, Catholic Charities of the Southern Tier, 215 East Church St., Elmira
60, Catholic Charities, 607 North Franklin Street, Watkins Glen
50, Refugee Center - c/o Catholic Charities, 1654 West Onondaga Street, Syracuse
50, Unity House of Cayuga County, 108 South Street, Auburn
42, Cortland Loaves & Fishes, 13 Court Street, Cortland
15, Auburn VFW Post 1975, 44 Genesee Street, Auburn
12, Lock-Mor Thrift Store, 57 West Cayuga Street, Moravia

Mohawk Valley:

200, St. Francis Refugee Center, 309 Genesee St., Utica
150, Welcome Hall Rescue Mission, 413 East Dominick St., Rome
100, Hope House, 130 Eagle St., Utica
50, Fort Stanwix Disabled American Veterans, 407 East Dominick St., Rome
Adirondacks:
250, Joint Council For Economic Opportunity Inc., 54 Margaret St., Plattsburgh
250, Comlinks, 343 West Main St., Malone

North Country:

100, Gouverneur Neighborhood Center, 15 Rock Island Road, Gouverneur
100, Watertown Urban Mission, 247 Factory Street, Watertown
100, Ogdensburg Neighborhood Center, 330 Ford Street, Ogdensburg
100, Family Morale & Welfare Recreation, T3 Nash Boulevard, 2nd Floor, Fort Drum 50, Salvation Army, 723 State Street, Watertown
50, Community Action Planning Council (CAPC), 518 Davidson Street, Watertown

The Federal Motor Carrier Safety Administration has issued a new final rule for truck drivers across the nation. The highlights of the new rule include:

• A truck driver cannot drive more than eleven hours each day;
• A truck driver cannot work more than fourteen hours each day;
• A truck driver needs to get no less than ten hours of rest between shifts;
• A truck driver cannot operate a truck if he or she has worked more than sixty hours during the week;
• A truck driver who rests at least thirty -four hours can reset his or her weekly work schedule.

The new final rule was issued November 18, 2008. A copy of the new final rule can be found at: http://www.federalregister.gov./OFRUpload/OFRData/2008-27437_PI.pdf

On November 14, 2008, the New York State Appellate Division –Fourth Department- unanimously affirmed the conviction of Ralph "Bucky" Phillips for aggravated murder and attempted aggravated murder in connection with the shooting of two state troopers. The same court also unanimously affirmed his conviction for escape in the first degree. Phillips is currently serving a life sentence in the Clinton County Correctional Facility in Dannemora, New York.

Pursuant to Penal Law § 265.25, an attending or treating physician must report to the local police every case involving a: bullet wound; gunshot wound; powder burn; or any other injury arising from or caused by the discharge of a gun or firearm. They must also report any life threatening wounds inflicted by a knife, ice pick or other sharp or pointed instrument. A person in charge of a hospital, sanitarium or other institution must do the same. However, a report is not required to be made if the person was injured in the actual performance of his or her duty as a member of the armed forces of the United States or the state of New York. It is a class A misdemeanor to fail to report any such wounds. This seems to be a bad law because it deters people from seeking competent medical treatment for potentially life threatening injuries and it forces physicians and heads of hospitals to become agents of law enforcement. It also forces them to breach doctor patient confidentiality even in non-criminal cases such as a hunting accident.

A person –other than a youthful offender- convicted in New York of any felony or specified misdemeanor offense must provide a DNA specimen for the State DNA Databank pursuant to Executive Law §995(7). The following is a list of the specified misdemeanors:

• Assault in the 3rd degree [Pl §120.00];
• Attempted aggravated assault upon a person less than 11 years old[ PL §§110/120.12];
• Attempted menacing in the 1st degree[PL §§[110/120.13];
• Menacing in the 2nd degree [PL §120.14];
• Menacing in the 3rd degree [PL §120.15];
• Reckless endangerment in the 2nd degree[PL §120.20];
• Stalking in the 4th degree[PL §§ 120.45];
• Stalking in the 3rd degree [PL §120.50];
• Attempted stalking in the 2nd degree [PL§ 110/120.55] ;
• Sexual misconduct [PL §130.20];
• Attempted sexual misconduct [PL §110.00/130.20];
• Attempted rape in the 3rd degree [PL §§110/130.25];
• Attempted criminal sexual act in the 3rd degree [PL§110/130.40];
• Forcible touching [PL§130.52];
• Attempted forcible touching [PL §§ 110/130.52] (if the victim is less than 18 or the defendant has previously been convicted of a sex offense or sexually violent offense, or 130.52 or 130.55, or an attempt thereof);
• Attempted persistent sexual abuse [PL §§110 130.53];
• Sexual abuse in the 3rd [ PL §130.55];
• Attempted sexual abuse in the 3rd degree [ PL§§110/130.55] (where victim is less than 18 OR offender has previously been convicted of a sex offense or sexually violent offense, or 130.52 or 130.55, or an attempt thereof)
• Sexual abuse in the 2d degree [PL §130.60];
• Attempted sexual abuse in the 2d degree [PL §§110/130.60];
• Attempted aggravated sexual abuse in the 4th degree [PL §110/130.65];
• Unlawful imprisonment in the 2d degree [ PL §135.05];
• Attempted unlawful imprisonment 2d [ PL 110/135.05] (where victim is less than 18 and Defendant is not parent);
• Attempted unlawful imprisonment in the 1st [Pl §§110.00/135.05];
• Criminal trespass in the second degree[PL§140.15];
• Possession of burglar's tools [PL § 140.35];
• Petit larceny [PL § 155.25];
• Endangering the welfare of a child [PL§ 260.10];
• Endangering the welfare of an incompetent or physically disabled person [PL §260.25];
• Patronizing a prostitute in the 3rd degree [230.14] (where the person patronized is in fact less than seventeen years of age);
• Attempted patronizing a prostitute in the 3rd degree [PL §§110/230.04];
• Attempted patronizing a prostitute in the 2d degree PL §§110/230.05];
• Attempted incest [PL §§110/255.25];
• Attempted possessing an obscene sexual performance by a child [PL §§110/263.11]; and
• Attempted possessing a sexual performance by a child [PL §§110/263.16].

Roger Shearer –of Latham, New York- pled guilty today in Albany County Court to violating the Martin Act. Shearer violated the Martin Act by taking forty-five thousand dollars from investors to buy and rehab a building on the Troy riverfront with no intention of ever doing the project. The sham project was called Gateway Commons. A violation of the Martin Act is a Class E felony. Mr. Shearer is scheduled to be sentenced on December 18, 2008. Mr. Shearer has agreed to pay the investors back in full. The case was prosecuted by the New York State Attorney General’s office.

Pursuant to Penal Law § 120.20, “a person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person”.

Reckless endangerment in the second degree is a class A misdemeanor in New York.

Pursuant to Penal Law § 120.25, “a person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person”.

Reckless endangerment in the first degree is a class D felony.

The term “person” is defined in Penal Law §10.00(7) as “… a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality".

The culpable mental state of “reckless” is defined in Penal Law §15.05(3) as:

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.”

The phrase “serious physical Injury” is defined in Penal Law §10.00(10) as

“… physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”.

Please contact me if you have been charged with either reckless endangerment in the first or second degree. The initial consultation is free. If the case is not dismissed, I will negotiate a plea agreement acceptable to you or take the case to trial. You can call me toll free at 1-877-858-2889.