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Client charged with Resisting Arrest, Criminal Trespassing & Harassment. Resisting Arrest charge dismissed before trial. Harassment charge dismissed during trial. Conviction on Criminal Trespassing overturned on appeal.

Case Dismissed

I was purging some old files and came across this criminal case in which I defended a person a few years back in one of the local Justice Courts in Westchester County, NY. It was an interesting and difficult case to defend. It required utilizing the entire breadth of my advocacy skills from legal research and writing, oral arguments to the bench, advanced understanding of criminal elements and criminal procedure, negotiation skills, jury selection, examination and cross examination, and oral advocacy to the jury.

My client was charged with Resisting Arrest, Criminal Trespassing, and Harassment. The incident stemmed from a verbal dispute my client had with another person at a train station that allegedly escalated and became physical. The underlying basis for the harassment charge was the accusation that my client struck the complaining witness but not causing any physical harm. The police were nearby and the complaining witness reported his version of the events. When the police approached my client on the train platform he ran away by jumping onto the train tracks. His fleeing, and fleeing onto the train tracks formed the basis for the resisting and criminal trespassing charges.

Among these charges, the most serious was the resisting arrest, which is a Class “A” Misdemeanor and carries up to 1 year in jail. Next was the criminal trespassing, which is a Class “B” Misdemeanor and carried up to 90 days in jail. Ironically, the harassment charge was not even a crime but an infraction and carried up to 15 days in jail. However, it is exceedingly rare for a person to be sentenced to jail time for harassment and it is usually disposed of with a fine if found guilty.

upon my review of the accusatory instruments I was of the opinion that my client clearly did not resist arrest. Consequently, I made a motion to dismiss the resisting arrest charge. The people did not oppose the motion, but rather  joined in the defendant’s application to dismiss. Defendant was now left with the 2 lower charges of Criminal Trespassing and Harassment.

Defendant took those charges to jury trial. The people’s first witness was the the complaining witness, i.e., the guy who alleged my client harassed him. Even before I got into the heart of my cross examination it was obvious that there were some glaring inconsistencies in his testimony from what he told the police on the day of the arrest. It was also obvious that my client and the complaining witness were not strangers and that they ran in the same circles.

As I am questioning the complaining witness about his written, signed statement given on the night of my client’s arrest, he suddenly denies that it is his signature on the complaint. This is huge, because without a complaint before the court the court has no jurisdiction, i.e., authority, to hold the defendant on the charges.

The court immediately stopped the trial and entertained oral arguments on the issue of whether there is a complaint before the court and if not what would be the people’s and defendant’s jurisdiction arguments. After being orally heard the court decided that the parties should submit legal memorandum on subject to be followed up by oral argument. This is my memorandum to dismiss the harassment charge. After oral argument the court dismissed the harassment charge. Now the sole remaining charge was the Criminal Trespass.

However before the case re-commenced before the jury I made an oral motion to dismiss the Criminal Trespass charge. I based my application on 2 things (1) the law required that the train platform be posted “no trespassing,” and (2) only certain jurisdictions were allowed to enforce the Criminal Trespass charge based on population density. I argued that there was nothing put in evidence by the people that would indicate the area was posted at the time of occurrence, and even if there were the law was unenforceable in that town because it was under the population density requirement. The judge denied my oral application on both counts, the trial continued, and my client was convicted of the sole remaining charge of  Criminal Trespass.

Defendant appealed the decision, and the conviction was overturned on appeal. While it was not me that represented defendant before the appellate court, the appellate decision was based on my 2 pronged argument preserved in the record below, to wit; there was no evidence of the area being posted “no trespassing,” and that the jurisdiction had no authority to establish criminal liability for such a trespass under the law.

If you or someone you know gets arrested we can be reached toll free at 1-877-996-6849 or online at http://www.AttackThatTicket.com.

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