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Kush Arora on Common Types of Misdemeanors and Felonies

The following is an excerpt from an interview with Maryland criminal defense attorney Kush Arora.

What are common misdemeanor offenses that you handle?

Kush Arora: Misdemeanor offenses can range from trespassing charges to people being intoxicated in public, driving under the influence of alcohol to possession of marijuana or another drug, domestic violence to simple assault cases. These types of offenses usually don’t have a long-lasting criminal impact, or a life-altering criminal impact on another person, but they are still considered a crime against society that warranted an arrest and a resolution by the court system.

What are common felony cases that you handle?

Kush Arora: The most common felony case that I see is felony theft. In Maryland, any theft of a dollar amount over $1,000 is considered a felony theft charge. A shoplifter could be in a department store and pick up a few items that total $1,001 and be charged with a felony. That felony is far less serious than some of the other felony charges we see, such as assault in the first degree, which is a felony assault that involves somebody threatening the life of or causing serious physical injury to another person, or armed robbery cases, where somebody uses some threat of force or a weapon to try to steal from somebody else, all the way up to sexual crimes, like rape or molestation. There are all kinds of criminal cases, but the manner in which they’re handled makes one felony very different from another in terms of how seriously the court views them. When it comes to felony cases, the first priority of the court, in terms of punishment, is to see whether there’s a victim that has been impacted by that felony. Sentencing in those cases is usually far more severe than a theft case, where somebody might have been impacted but it was financially, not physically, and not in a way that was altering to them and could not be fixed.

At what point does a misdemeanor case become a felony?

Kush Arora: Only a prosecutor can graduate a case from a misdemeanor offense to a felony offense before a trier of fact, the judge or jury then makes a decision about what it is that the state has been able to prove. For example, in an assault case, if a prosecutor is reviewing the evidence and says, “Hey, I was reading this charge and I was reading this investigation that the officer conducted and I saw that the officer only charged this as a misdemeanor assault, but I think that since a knife was used in this case to threaten the victim, that this is actually a first-degree assault.” In that situation, a prosecutor would be able to file an information or an amendment to the charging document so that it could be enhanced to a felony, as opposed to a misdemeanor. A trier of fact, a judge or a jury, would never have that ability. If a judge or a jury is only presented with a second-degree assault or a misdemeanor assault charge, they don’t have the authority, even if the evidence speaks to it, to say that it’s an assault in the first degree.

Almost every felony case has what are called “lesser-included offenses” associated with it. For example, an assault in the first degree, which is a felony assault that usually involves somebody being put in fear of death or serious physical injury, is a serious offense. However, a prosecutor doesn’t necessarily always prove that offense in court. The jury or the judge presiding over the case will have the option, in that situation, to find that even if the prosecutor did not prove the first-degree assault or the felony assault, that they have proven one of the less serious, lesser-included offenses, which, in this case, would be an assault in the second degree. An assault in the second degree or a “simple assault,” is a misdemeanor and does not involve the threat of death or serious physical injury when it comes to the elements of proof that the state has to demonstrate, but, rather, some kind of unconsented to touching, which is far easier for the prosecution to prove. So, felony cases can sometimes be tried down to misdemeanor offenses.