New York Criminal Defense Blawg

Generally speaking, an offer of an Adjournment in Contemplation of Dismissal (“ACD”) to resolve criminal charges is usually an attractive plea bargain offer to a criminal defendant. After all, pursuant to New York CPL 160.50, individuals receiving ACD’s usually have their cases dismissed and sealed and deemed nullities after six months (or one year in marijuana cases). However, acceptance of an ACD can have negative consequences concerning possible civil lawsuits for wrongful arrests.

As explained in one recent case in federal court, Freedman v. Monticello Police Department, 2003 WL13571 (S.D.N.Y. 2003) (Buchwald, J.), acceptance of an ACD precludes a civil action against police officers (or the municipality that employs them) for malicious prosecution. The reason for this is that an element of the tort of malicious prosecution is a “termination in favor of the accused,” and although an ACD is not an admission of guilt or a conviction, it is not considered to be a “termination in favor of the accused,” either.

That being said, that case also explained that an ACD does not preclude a plaintiff from succeeding on a false arrest claim, as that tort does not require a “termination in favor of the accused” as an element. So, the bottom line is that acceptance of an ACD can have some negative impact on the potential recovery in a lawsuit, but it is not fatal to the possibility of successfully recovering damages.

If you or a loved one believe that you were wrongfully arrested and are interested in pursuing a civil rights lawsuit, you should strongly consider contacting an experienced criminal defense and civil rights attorney immediately.

Criminal defendants in New York fortunate enough to win acquittals or have the charges against them dismissed often face an additional unanticipated but thorny problem: their internet reputations have been destroyed. A number of websites such as the New York Post, the Villager, Downtown Express, and others maintain “police blotters” columns, in which they post information about recent interesting arrests, including the names of the accused. Unfortunately, the authors of those websites do not usually follow-up to see the results of these arrests, and as a result, the entries remain permanently.  The practical effect is that Google searches of people that have been arrested – including even those individuals who have been ultimately exonerated – nevertheless yield search results that make those people appear to be criminals. This can be devastating for professionals seeking employment, as more and more employers are performing online search engine research about their potential candidates.  To be sure, an employer that finds a candidate’s name on a police blotter on the first page of the Google search results is probably not going to hire that candidate.

So what can be done to help individuals that have been exonerated that want to erase this negative information about themselves on the internet?  Unfortunately, the real answer is that there is no sure-fire way to succeed in erasing these “police blotter” articles. The underlying problem is that there is usually nothing defamatory about these articles – after all, it is usually TRUE that the person was ARRESTED, and the articles do not usually say much more than that. Thus, the threat of litigation against the author of the website is usually an empty threat, as the article is protected by the First Amendment and is not libelous.  Of course, there are many exceptions to this broad rule, and in those cases, civil litigation may simply be necessary to force the author to change or remove his or her story.

Many companies offer to “repair” or “defend” internet reputations for a fee, but one should realize that what those companies are typically doing is simply creating new online entries for their clients about their clients in the hopes that these new websites will come up on the first page of a Google search of their client’s name, and thereby “push” the police blotter results to the second or third page of Google results. In short, the “internet reputation” companies do not actually “remove” negative online press for their clients, they just try to bury it or push it back by cramming the internet full of “junk sites” that will contain entries with their client’s name(s) on the first page of search engine results.

We have had some success in simply finding the authors of the articles and appealing to their better natures to persuade them to take down the problematic articles.  We have presented the authors with documentary proof that the charges were dismissed and have explained to them just how the articles are impacting our clients’ lives, and generally speaking, those authors have voluntarily adjusted or removed their articles. The real challenges to this approach are 1) finding and contacting the appropriate webmasters, 2) being sufficiently charming to persuade them to change their sites, and 3) remaining persistent until the job is complete.

If you or a loved one have had wrongful charges against you dismissed and are now suffering the consequences of negative online articles, you should strongly consider contacting an experienced criminal defense attorney to help you attack and solve the problem.

Federal law makes it a serious crime for certain prohibited persons to possess or sell firearms.  Under federal law, one can also expect to receive a very serious sentence for possessing certain types of illegal firearms or using a firearm in furtherance of some other crime, such as robbery or drug trafficking.  Below is a brief summary of some of the relevant statutes.

I. POSSESSION OF A FIREARM OR AMMUNITION BY A PROHIBITED PERSON

18 USC § 922(g) & (n). Punishable by up to 10 years imprisonment. May receive minimum sentence of 15 years without parole if offender has three or more prior convictions for a felony crime of violence (e.g. burglary, robbery, assault, possession of offensive weapons) and/or drug trafficking felony.

Elements

A. Possession or receipt of a firearm or ammunition;

B. By a subject who falls within one of the following categories:

1. Felon – (Additionally, persons awaiting trial on felony charges are prohibited from receiving firearms.);

2. Drug user or addict – (Often shown where paraphernalia seized, subject tests positive for drugs and/or subject claims drugs were possessed for personal use.);

3. Alien – (Includes illegal aliens and aliens lawfully admitted under non-immigrant visas, i.e., those aliens not admitted for permanent residence. This provision does not prohibit aliens who lawfully possess a so-called “green card” from possessing guns or ammunition.);

4. Is subject to a domestic restraining order – (The order must prohibit contact with an intimate partner, or child of the subject, and must have been issued only after a hearing of which the subject was notified and at which the subject had an opportunity to participate. The order must also find the subject poses a threat to the physical safety of the intimate partner or child or must prohibit the use, threatened use or attempted use of physical force.);

5. Has a prior conviction for domestic assault – (Includes a prior conviction for any assault or threatened use of a deadly weapon against a present or former spouse or partner or child or guardian of any such person. The subject must have been entitled to a jury trial and been represented by counsel in the prior proceeding or be shown to have waived those rights.);

6. Fugitive from justice – (Fled any state to avoid being prosecuted or to avoid testifying in any criminal proceeding.); or

7. Dishonorably discharged from the military; AND

C. The firearm or ammunition was transported across a state line at any time. [Note, that means at any point during the manufacture or supply chain prior to the sale of the firearm or ammunition, meaning that it does not need to have been actually  transported across state lines by the end user or person charged with possessing the items himself/herself).

II. KNOWINGLY SELL, GIVE OR OTHERWISE DISPOSE OF ANY FIREARM OR AMMUNITION TO ANY PERSON WHO FALLS WITHIN ONE OF THE ABOVE CATEGORIES:

18 USC § 922(d). Punishable by up to 10 years imprisonment.

III. USE, CARRY OR POSSESS A FIREARM IN RELATION TO OR IN FURTHERANCE OF A DRUG FELONY OR A FEDERAL CRIME OF VIOLENCE:

18 USC § 924(c). Punishment ranges from at least 5 years up to life imprisonment, without parole, or death if death results from use of firearm. Sentence must be served consecutive to any other sentence. Mandatory minimum sentence increases depending upon: the type of firearm involved (sawed-off gun, silencer, etc.); whether more than one offense was committed; and whether gun was simply possessed or was brandished or discharged.

IV. STOLEN FIREARM, AMMUNITION OR EXPLOSIVE:

18 USC §§842(h); 922(i), (j) & (u). Punishable by up to 10 years imprisonment.

A. May not receive, possess, conceal, store, pledge or accept as security for a loan, barter, sell or ship or transport across a state line any stolen firearm, ammunition or explosive.

B. May not steal or unlawfully take or carry away a firearm from the person or premises of a firearms licensee.

V. FIREARM IN A SCHOOL ZONE:

18 USC § 922(q)(2)(A). Punishable by up to 5 years imprisonment.

A. Except as authorized, may not possess or discharge a firearm in a school zone.

VI. KNOWINGLY POSSESS OR MANUFACTURE:

18 USC § 922(k), (o) & (v); 26 USC § 5861. Punishable by up to 5 or 10 years imprisonment, depending upon specific violation.

A. Any machine gun, fully automatic firearm or any part designed or intended exclusively for use in such weapon;

B. Any firearm silencer, including any device, or part thereof, designed to silence, muffle or diminish the report of a firearm;

C. Sawed-off shotgun with a barrel length of less than 18″ or overall length less than 26″;

D. Sawed-off rifle with a barrel length of less than 16″ or overall length less than 26″;

E. Destructive device;

F. Semi-automatic assault weapon manufactured after October 1, 1993; OR

G. Any firearm which lacks a serial number or contains an altered or obliterated serial number.

VII. SELL, DELIVER OR TRANSFER TO A JUVENILE:

18 USC § 922(x)(1). Punishable by up to 1 year imprisonment unless transferor had reason to believe juvenile would commit crime of violence with gun or ammunition then up to 10 years imprisonment.

18 USC § 922(b). A firearms licensee faces up to 5 years imprisonment.

A. May not sell, deliver or transfer a handgun or handgun-only ammunition to a person who is under age 18;

B. A person under age 18 may not possess a handgun or handgun-only ammunition;

(Certain exceptions apply to A & B, such as where juvenile possesses written permission of a parent.);

C. A firearms licensee may not sell any gun or ammunition to anyone under the age of 18 and may not sell a handgun or handgun ammunition to a person under the age of 21.

DEFINITION OF “FIREARM”:

Any weapon (including a starter gun) which will expel a projectile by means of an explosive or is designed or may be readily converted to do so. This includes the frame or receiver of any such weapon, any firearm muffler or silencer or any destructive device.

A “destructive device” includes any explosive, incendiary or poison gas — (i)bomb; (ii) grenade or (iii) similar device, or any combination of parts designed or intended to be converted into a destructive device, or from which a destructive device may be readily assembled. Does not include black powder or antique type firearms. 18 USC §921(3).

SUMMARY

Many of these offenses can also be prosecuted under state law, but the punishments under federal law tend to be more severe. As a result, many arrests for illegal firearms made by state or local law enforcement get referred to the federal authorities for prosecution under federal law.  Thus, one should never assume that a state-level arrest for an illegal firearm will not ultimately be prosecuted as a federal crime.

If you or a loved one have been arrested for a firearms offense, you should strongly consider contacting an experienced criminal defense attorney immediately, such as these attorneys available here.  

In New York state, unlawfully photographing or videotaping someone can be a Class E felony or Class D felony depending on the circumstances.  The relevant Penal Law Sections for unlawful surveillance are as follows:

§ 250.45 Unlawful surveillance in the second degree.     A person is guilty of unlawful surveillance in the second degree when:   1.  For  his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she  intentionally  uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a  person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or  2. For his or her own, or another person’s sexual  arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of  an imaging device to  surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place  and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or  3. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing  room,  fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent.   (b)  For the  purposes of  this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom,  changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel  or  inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or     4.  Without the knowledge or consent of  a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under  the  clothing being worn by such person, the sexual or other intimate parts of such person. Unlawful surveillance in the second degree is a class E felony.

§ 250.50 Unlawful surveillance in the first degree.  A person is guilty of unlawful surveillance in the first degree when he or she commits the crime of unlawful surveillance in the second degree and has been previously convicted within the past ten years of unlawful surveillance in the first or second degree. Unlawful surveillance in the first degree is a class D felony.

As you can see from the above, subsections 1 and 2 of Penal Law Section 250.45 make it a Class E felony to videotape or photograph the intimate parts of a person’s body (or a person undressing) without their consent under circumstances in which they have a reasonable expectation of privacy (such as being indoors in a changing room etc). It is also unlawful to install or operate a camera (hidden or otherwise) for the purpose of doing so.  Subsection 3 makes it a Class E felony to videotape or photograph someone when they are in the bathroom or a bedroom or changing room, regardless of whether that person would have a reasonable expectation of privacy.  This subsection is meant to apply to individuals that surreptitiously record people through the open windows of their bedrooms or bathrooms. Finally, subsection 4 makes it a Class E felony to surreptitiously videotape someone under their clothing. This most frequently arises in cases in which individuals attempt to videotape up a woman’s skirt using a hidden camera on the subway or some other crowded place.

Penal Law Section 250.50 obviously applies to repeat offenders with more than one conviction in a ten year period.

The penalties for convictions of these crimes can be severe and can possibly result in multiple years in state prison. Also, a conviction for first- or second-degree unlawful surveillance can result in registration as a sex offender, which is a very serious consequence. A sex offender can be classified in different ways, but even at the lowest classification level (Level 1), a registered sex offender must regularly report to, and abide by the conditions of, a state monitoring unit for 25 years.

It is also a crime to knowingly share images obtained illegally through unlawful surveillance with other people. The relevant statutes include:

§ 250.55 Dissemination of an unlawful surveillance image in the second degree.  A person is guilty of dissemination of an unlawful surveillance  image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images of the  sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, intentionally disseminates such image or images.     Dissemination of an unlawful surveillance image in the second degree is a class A misdemeanor.

§ 250.60 Dissemination  of  an  unlawful surveillance image in the first degree.  A person is guilty of dissemination of an unlawful surveillance image in the first degree when:  1. He or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, sells or publishes such image or images; or     2.  Having created a surveillance image in violation of section 250.45 or 250.50 of this article, or in violation of the law in any other jurisdiction which includes all of the essential elements of either such crime, or having acted as an accomplice to such crime, or acting as an agent to the person who committed such crime, he or she intentionally disseminates such unlawfully created image; or     3.  He or she  commits the crime of dissemination of an unlawful surveillance image in the second  degree and has been previously convicted within  the past ten years of dissemination of an unlawful surveillance image in the first or second degree.     Dissemination of an unlawful surveillance image in the first degree is a class E felony.

If you or a loved one have been arrested and charged with an unlawful surveillance crime, you should strongly consider contacting an experienced criminal defense attorney immediately.

South African paralympic and Olympic sprinter Oscar Pistorius, famous for having been the first competitor in the history of the Olympics to compete in the sprint events with the use of prosthetic legs, has been arrested by South African authorities in connection with the shooting of his girlfriend, model Reeva Steenkamp.  The case has already been sensationalized by the media but promises to be a very interesting trial from a lawyers’ standpoint as it touches upon some very subtle and complex questions of criminal law that one might expect to see on a law school exam.

To summarize the facts: Pistorius lived in Pretoria in an upscale gated community with private security because South Africa has a high rate of violent crime (including residential break-ins) and Pistorius himself claims that he has been the victim of break-ins and death threats.  He kept a variety of firearms in his home including a 9mm handgun. On the night following Valentine’s Day, he supposedly believed that a burglar had broken into his bathroom and was inside the small room with the toilet.  According to Pistorius’ affidavit, he feared for his safety and was not wearing his prosthetic legs, so Pistorius brought himself to the door to the toilet and fired four shots through it.  He called out to his girlfriend to call the police, but suddenly realized that his girlfriend was not asleep in bed as he had believed.  Realizing then that he might have made a tragic mistake, he broke down the locked door with a cricket bat.  Inside, his beautiful girlfriend was bleeding and unconscious, and she died shortly thereafter.

The prosecutor has suggested that Pistorius and his girlfriend had an argument and his girlfriend fled into the bathroom only to be shot dead by a furious Pistorius. The prosecution has revealed some of its evidence during a pre-trial bail hearing (Pistorius, incidentally, was ultimately granted bail in the amount of 1 million rand, equal to about $114,000, subject to a variety of other conditions including the surrender of his passport), but some significant evidence has yet to be fully analyzed.  First, Reeva’s cell phone was recovered from inside the toilet room, and a forensic analysis of the text messages or telephone calls just prior to her death may prove to be very revealing. Indeed, if it is shown that Reeva was sending distress messages or even speaking at the time of her death, it would completely discredit Pistorius.  Also, neighbors supposedly heard one gunshot followed by others, which would suggest that Pistorius would have realized that the burglar was not in fact a burglar after the first shot. However, the reliability of this testimony may be questionable given their apparent distance from the house.

More importantly, though, the prosecutor has probably painted the defense into a corner from which it cannot escape.  In South African law, there are two types of homicide: premeditated murder and culpable homicide.  The term “premeditated” is oftentimes misinterpreted, as laypeople tend to believe that a “pre-meditated murder” is by definition the result of a long and careful plan to assassinate someone. In fact, “premeditation” in South African law simply means “intentional,” meaning that the person that killed meant to do it at the time, and thus that intent can be formed almost instantaneously and need not have been carefully considered beforehand. The other charge, culpable homicide, applies to negligent killings.

The defense team for Pistorius has already conceded that he may be guilty of culpable homicide for having killed Reeva when he believed she was a burglar. However, this “mistake of fact” as we lawyers call it does not really help him.  One cannot avoid a conviction for premeditated murder simply because one misidentified one’s victim; the concept of “transferred intent” applies.  Put another way, if I intend to kill Person A, and instead accidentally kill Person B, I’m guilty of murder just the same as if I had in fact killed Person A.  After all, under that hypothetical, one could say that I intended to kill a person, I deliberately attempted to kill a person, and I did in fact kill a person… and these are the elements of intentional murder.

Just as problematically for him, Pistorius does not have a very good self-defense claim here.  In some states in the U.S., it is legally acceptable to use deadly physical force where it is reasonably necessary to prevent a burglary of one’s home. In South Africa, on the other hand, deadly physical force can only be applied where it is reasonably necessary to prevent an imminent and deadly attack (a “proportionality standard,” so to speak). Thus, the big problem for Pistorius is that he can be convicted for the premeditated murder of a burglar unless he can show that he was objectively reasonable in acting the way that he did in firing upon his door.  (Incidentally, the South African prosecutor, Gerrie Nel, correctly pointed out this problem with Pistorius’ defense at Pistorius’ bail hearing). It seems unlikely that a judge would find that Pistorius’ shooting at a door – without knowing who was behind it  and with the clear intent to kill the person behind it (as evidenced by the use of four shots fired into a small chamber) – could possibly have been reasonably necessary to prevent imminent physical harm.  After all, it is nearly impossible to conclude that the person behind the door presented an imminent threat of serious physical harm to Pistorius because… she didn’t.  It was after all his girlfriend, not a burglar, and Pistorius – by his own admission and according to his version of events – did not take any reasonable steps to determine the seriousness of the threat posed by the person in the toilet.

Seemingly, Pistorius’ only hope for an acquittal on all charges would be to somehow argue that he truly and reasonably believed that he had to fire into the bathroom to prevent a deadly attack to be inflicted upon him or his girlfriend.  This seems like a longshot but perhaps he will be able to demonstrate a history or pattern of dangerous home break-ins in his home in the past that will make his response seem more reasonable under his unique circumstances.  Otherwise, he will have to argue that he did not intend to kill the “burglar” behind the toilet door when he fired four times, and that his actions, though designed only to scare the burglar or serve as a “warning shot,” only accidentally or negligently caused the death of the “burglar” and were not the result of an intentional killing.  Under this scenario, he might be convicted of only culpable homicide, for which there is no requirement of incarceration under South African law (a conviction for premeditated murder, in contrast, carries with it a life sentence). His affidavit seems to leave open both defenses as possibilities at trial.

The trial will not be so different from an American criminal trial but for one major difference: judges, and not juries, decide guilt or innocence in South Africa.  Pistorius’ character may also very well become an issue, more than it would likely have been had he been arrested in the United States for the same crime. It is of course always difficult to predict the outcome of a criminal trial, but in this case, it seems likely that Pistorius will be convicted of premeditated murder.

The author of this article, Matthew Galluzzo is a criminal defense attorney and former prosecutor that worked in South Africa as a consultant and instructor for the National Prosecuting Authority for a period in 2012.

Arrested for Possessing a Small Amount of Marijuana

While the issuance of criminal court desk appearance tickets may have gone down in light of a re-energized debate as to the wisdom of  continued illegality of marijuana, the number of NYC marijuana summonses or pink summonses issued appears to have increased.  This occurrence probably has as much to do with the relaxed views on the harmful effects of marijuana as it does with the protestations of the defense bar and others that misdemeanor marijuana arrests were often times predicated on illegal or questionable practice of ordering an arrestee to empty his or her pockets only to be told that upon compliance the marijuana was now “open to public view” thus elevating the charge from a violation to a misdemeanor.  Whatever the cause, people who have received a marijuana summons in New York City need to know that they have the right to pursue a result which keeps their criminal records not only conviction-, but also arrest-free.  The full text of the statute regarding marijuana violations is below:

  § 221.05 Unlawful possession of marihuana.
    A  person  is  guilty  of  unlawful  possession  of  marihuana when he
  knowingly and unlawfully possesses marihuana.
    Unlawful possession of marihuana is a violation punishable only  by  a
  fine  of not more than one hundred dollars. However, where the defendant
  has previously been convicted of an offense defined in this  article  or
  article   220   of  this  chapter,  committed  within  the  three  years
  immediately preceding such violation, it shall be punishable (a) only by
  a fine of not more than  two  hundred  dollars,  if  the  defendant  was
  previously  convicted  of one such offense committed during such period,
  and (b) by a fine of not more than two hundred fifty dollars or  a  term
  of  imprisonment not in excess of fifteen days or both, if the defendant
  was previously convicted of two  such  offenses  committed  during  such
  period.

Most individuals who appear at 346 Broadway for a marijuana summons (pertaining to Manhattan or Brooklyn arrests), 120-55 Queens Boulevard (Queens), 161st Street (Bronx) or on Staten Island do not realize that a far better disposition than a plea to a violation may be reached with the assistance of an attorney.  A conviction of a marijuana violation can leave you with a permanent arrest record.  Thus, if you have received a summons charging you with marijuana offenses in the greater New York City area, you should appear with counsel experienced in handling marijuana cases in New York City courts.

Attorneys are human beings and make mistakes just like everybody else.  Unfortunately for them, those mistakes that result in criminal arrests can have especially dire professional consequences.  In New York, New York State Judiciary Law § 90(4) requires attorneys to immediately report to the bar certain criminal convictions, and certain convictions can result in suspension or disbarment from the practice of law.

Judiciary Law § 90 explains the following:

4. a. Any person being an attorney and counsellor-at-law who shall  be
  convicted  of  a  felony  as defined in paragraph e of this subdivision,
  shall  upon   such   conviction,   cease   to   be   an   attorney   and
  counsellor-at-law, or to be competent to practice law as such.
    b. Whenever any attorney and counsellor-at-law shall be convicted of a
  felony  as  defined  in  paragraph  e  of this subdivision, there may be
  presented to the appellate division of the supreme court a certified  or
  exemplified  copy  of the judgment of such conviction, and thereupon the
  name of the person so convicted shall, by order of the court, be  struck
  from the roll of attorneys.
    c.  Whenever  an  attorney shall be convicted of a crime in a court of
  record of the United States or of  any  state,  territory  or  district,
  including  this state, whether by a plea of guilty or nolo contendere or
  from a verdict after trial or otherwise, the attorney shall file, within
  thirty days thereafter, with  the  appellate  division  of  the  supreme
  court, the record of such conviction.
    The  failure  of  the attorney to so file shall be deemed professional
  misconduct provided, however,  that  the  appellate  division  may  upon
  application of the attorney, grant an extension upon good cause shown.
    d. For purposes of this subdivision, the term serious crime shall mean
  any  criminal  offense denominated a felony under the laws of any state,
  district or territory or of the United States which does not  constitute
  a  felony  under the laws of this state, and any other crime a necessary
  element of which, as determined by statutory or common law definition of
  such crime, includes interference with the  administration  of  justice,
  false swearing, misrepresentation, fraud, willful failure to file income
  tax  returns, deceit, bribery, extortion, misappropriation, theft, or an
  attempt or conspiracy or solicitation of another  to  commit  a  serious
  crime.

e.  For  purposes  of this subdivision, the term felony shall mean any
  criminal offense classified as a felony under the laws of this state  or
  any  criminal  offense  committed  in  any  other  state,  district,  or
  territory of the United States and classified as a felony therein  which
  if committed within this state, would constitute a felony in this state.
    f. Any attorney and counsellor-at-law convicted of a serious crime, as
  defined in paragraph d of this subdivision, whether by plea of guilty or
  nolo  contendere  or  from  a verdict after trial or otherwise, shall be
  suspended upon the receipt by the  appellate  division  of  the  supreme
  court  of  the  record  of  such  conviction until a final order is made
  pursuant to paragraph g of this subdivision.
    Upon good cause shown the appellate division of the supreme court may,
  upon application of the attorney or on its own motion,  set  aside  such
  suspension  when  it  appears  consistent  with  the  maintenance of the
  integrity and honor of the profession, the protection of the public  and
  the interest of justice.
    g.  Upon  a  judgment of conviction against an attorney becoming final
  the appellate division of the supreme court shall order the attorney  to
  show  cause  why  a  final  order of suspension, censure or removal from
  office should not be made.
    h. If the attorney requests a hearing, the appellate division  of  the
  supreme  court shall refer the proceeding to a referee, justice or judge
  appointed  by  the  appellate   division   for   hearing,   report   and
  recommendation.

After  said hearing, the appellate division may impose such discipline
  as it deems proper under the facts and circumstances.
    5.  a.  If  such  removal or debarment was based upon conviction for a
  serious crime or upon a felony conviction as defined in subdivision four
  of this section, and such felony conviction was subsequently reversed or
  pardoned by the president of the United States, or governor of  this  or
  another  state  of  the United States, the appellate division shall have
  power to vacate or modify such order or  debarment,  provided,  however,
  that  if  such  attorney  or  counsellor-at-law  has  been  removed from
  practice in another jurisdiction, a pardon in  said  jurisdiction  shall
  not  be  a  basis  for application for re-admission in this jurisdiction
  unless he shall have been readmitted in the jurisdiction where pardoned.
    b. If such removal or debarment was based upon conviction for a felony
  as defined in subdivision four of this section, the  appellate  division
  shall  have  power  to  vacate or modify such order or debarment after a
  period of seven years provided that such person has not  been  convicted
  of a crime during such seven-year period.

c.  An  attorney  and  counsellor-at-law  who  has been convicted of a
  felony without the state and whose name has been struck from the roll of
  attorneys prior to July thirteenth,  nineteen  hundred  seventy-nine  by
  virtue  of the provisions of subdivision four of this section may, if he
  alleges  that  such  felony  committed  without  the  state  would   not
  constitute  a  felony  if  committed  within  the  state,  petition  the
  appellate division to vacate or modify such debarment. If the  appellate
  division   finds   that   the   felony   of   which   the  attorney  and
  counsellor-at-law  has  been  convicted  without  the  state  would  not
  constitute  a  felony  if  committed  within the state, it shall grant a
  hearing and may retroactively vacate or modify such debarment and impose
  such discipline as  it  deems  just  and  proper  under  the  facts  and
  circumstances.
    The attorney and counsellor-at-law shall petition for reinstatement by
  filing in the appellate division a copy of the order of removal together
  with  a  request  for  a  hearing  pursuant  to  the  provisions of this
  paragraph. Upon such application, the order of removal shall  be  deemed
  an order of suspension for the purposes of a proceeding pursuant to this
  paragraph.
    6.  Before an attorney or counsellor-at-law is suspended or removed as
  prescribed in this section, a copy of the charges against  him  must  be
  delivered  to  him personally within or without the state or, in case it
  is established to the satisfaction  of  the  presiding  justice  of  the
  appellate  division  of the supreme court to which the charges have been
  presented, that he cannot with due diligence be served  personally,  the
  same  may  be  served  upon him by mail, publication or otherwise as the 
  said presiding justice may direct, and he must be allowed an opportunity
  of being heard in his defense. In all cases where the charges are served
  in  any  manner  other   than   personally,   and   the   attorney   and 
  counsellor-at-law  so served does not appear, an application may be made
  by such attorney or in his  behalf  to  the  presiding  justice  of  the 
  appellate  division  of  the  supreme  court  to  whom  the charges were
  presented at any time  within  one  year  after  the  rendition  of  the 
  judgment,  or  final order of suspension or removal, and upon good cause 
  shown and upon such terms as  may  be  deemed  just  by  such  presiding 
  justice,  such  attorney and counsellor-at-law must be allowed to defend
  himself against such charges.

The justices of the appellate division in any judicial department,  or
  a  majority  of  them,  may  make an order directing the expenses of any
  disciplinary proceedings, and the necessary costs and  disbursements  of
  the petitioner in prosecuting such charges, including the expense of any
  preliminary  investigation  in  relation  to  professional conduct of an
  attorney and counsellor-at-law, to be paid out of funds appropriated  to
  the office of court administration for that purpose.
 
  6-a.  a.  Where  the  appellate  division  of supreme court orders the
  censure, suspension from practice or removal from office of an  attorney

or  counsellor-at-law  following  disciplinary  proceedings  at which it
  found, based upon a preponderance of the  legally  admissible  evidence,
  that  such  attorney  or  counsellor-at-law  wilfully misappropriated or
  misapplied money or property in the  practice  of  law,  its  order  may
  require  him or her to make monetary restitution in accordance with this
  subdivision. Its order also may require that he  or  she  reimburse  the
  lawyers'  fund for client protection of the state of New York for awards
  made to the person whose money or property was wilfully  misappropriated
  or misapplied.
    b. Monetary restitution, as authorized hereunder, shall be made to the
  person   whose   money  or  property  was  wilfully  misappropriated  or
  misapplied and shall be for  the  amount  or  value  of  such  money  or
  property,  as  found  in the disciplinary proceedings. In the event that
  such person dies prior to completion of  such  restitution,  any  amount
  remaining to be paid shall be paid to the estate of the deceased.
    c.  Any payment made as restitution pursuant to this subdivision shall
  not limit, preclude or impair any liability for  damages  in  any  civil
  action  or proceeding for an amount in excess of such payment; nor shall
  any order of the appellate division made hereunder  deprive  a  criminal
  court of any authority pursuant to article sixty of the penal law.
    d.  An  order  issued pursuant to this subdivision may be entered as a
  civil judgment. Such judgment shall be enforceable as a  money  judgment
  in  any  court  of competent jurisdiction by any person to whom payments
  are due thereunder, or by the lawyers' fund for client protection  where
  it has been subrogated to the rights of such person.
    e.  Where an attorney or counsellor-at-law is permitted to resign from
  office, the appellate division may, if appropriate, issue  an  order  as
  provided  herein requiring him or her to make payments specified by this
  subdivision.
    f. Notwithstanding any other provision of this subdivision,  no  order
  may  be  issued  hereunder  unless  the person required to make payments
  under such order first is given an opportunity to be heard in opposition
  thereto.

 7. In addition to the duties prescribed by section  seven  hundred  of
  the  county  law, it shall be the duty of any district attorney within a
  department, when so designated by the justices of the appellate division
  of the supreme court in such department,  or  a  majority  of  them,  to
  prosecute all proceedings for the removal or suspension of attorneys and
  counsellors-at-law  or  the  said  justices,  or  a majority of them may
  appoint any attorney and  counsellor-at-law  to  conduct  a  preliminary
  investigation  and to prosecute any disciplinary proceedings and, during
  or upon the termination of the investigation or proceedings, may fix the
  compensation to be paid to such attorney and counsellor-at-law  for  the
  services  rendered,  which  compensation  shall  be a charge against the
  county specified in his certificate and shall be paid thereon.
    8. Any petitioner or respondent in a disciplinary  proceeding  against
  an  attorney  or  counsellor-at-law  under this section, including a bar
  association or any other corporation  or  association,  shall  have  the
  right  to  appeal  to  the  court  of  appeals from a final order of any
  appellate division in such proceeding upon  questions  of  law  involved
  therein,  subject  to  the  limitations  prescribed  by section three of
  article six of the constitution of this state.

Thus, although there are certain expected penalties for felony and “serious crime” convictions, an attorney has the right to request a hearing before a referee, justice or judge on the issue of a suspension or disbarment, and their judgment or recommendation can be appealed.  Notably, an arrest by itself does not need to be reported to the bar, only those sorts of as convictions described above.  However, even in cases in which it is not mandatory for an attorney to make a report – for example, prior to conviction, or in cases that do not result in a criminal conviction, the bar may initiate a fitness inquiry of the attorney based upon the alleged conduct underlying the arrest.

The Judiciary Law further explains:

    9. No objection shall be taken to the appointment of any member of the
  bar to act as referee or judge in a disciplinary proceeding  under  this
  section  on the ground that he is a member of a bar association or other
  corporation or association which is the petitioner therein.
    10.  Any  statute or rule to the contrary notwithstanding, all papers,
  records and documents upon the application or examination of any  person
  for  admission  as  an  attorney  and  counsellor  at  law  and upon any
  complaint, inquiry, investigation or proceeding relating to the  conduct
  or discipline of an attorney or attorneys, shall be sealed and be deemed
  private  and  confidential.  However,  upon  good cause being shown, the
  justices of the appellate division having jurisdiction are empowered, in
  their discretion, by written order, to permit to be divulged all or  any
  part  of  such  papers,  records and documents. In the discretion of the
  presiding or acting presiding justice of said appellate  division,  such
  order  may  be made either without notice to the persons or attorneys to
  be affected thereby or upon such notice to them as  he  may  direct.  In
  furtherance  of  the purpose of this subdivision, said justices are also
  empowered, in their discretion, from time to time to make such rules  as
  they  may  deem necessary. Without regard to the foregoing, in the event
  that charges are sustained by the justices  of  the  appellate  division
  having  jurisdiction  in  any  complaint,  investigation  or  proceeding
  relating to the conduct or discipline of any attorney, the  records  and
  documents in relation thereto shall be deemed public records.

If you or a loved one are an attorney facing criminal charges, it is absolutely crucial that you contact an experienced criminal defense attorney with experience defending other attorneys.

A recent article in CNN declared that 60% of the cigarettes sold in New York had been smuggled in from out of state so as to avoid the onerous New York state cigarette taxes.  This is somewhat unsurprising, given that New York state imposes a $4.35 tax per pack, and New York City an additional $1.50 (making some packs as expensive as $12 each).  Indeed, New York state’s cigarette taxes are the highest in the country; in contrast, Missouri imposes a tax of just 17 cents per pack.

Prosecutors have taken notice and are pursuing traffickers of untaxed cigarettes.  For example, the Queens District Attorney’s Office recently announced an arrest of a major trafficker of untaxed cigarettes.  The applicable criminal statute for smugglers and traffickers of untaxed cigarettes is New York State Tax Law § 1814, which can apply either Class A misdemeanor or Class E felony charges to the conduct.

New York State Tax Law § 1814 states:

--(a)  Any person who
  willfully attempts in any manner to evade or defeat the taxes imposed by
  article twenty of this chapter or payment thereof on  (i)  ten  thousand
  cigarettes  or  more  (ii)  twenty-two thousand cigars or more, or (iii)
  four hundred forty pounds of tobacco or  more  or  has  previously  been
  convicted  two  or  more  times  of a violation of paragraph one of this
  subdivision shall be guilty of a class E felony.
    (b) Any person, other than an agent licensed by the commissioner,  who
  possesses  or  transports  for  the  purpose  of  sale  any unstamped or
  unlawfully stamped packages of cigarettes  subject  to  tax  imposed  by
  section four hundred seventy-one of this chapter, or who sells or offers
  for  sale  unstamped  or  unlawfully  stamped  packages of cigarettes in
  violation of the provisions of article twenty of this chapter  shall  be
  guilty  of a misdemeanor. Any person who violates the provisions of this
  subdivision after having previously been convicted  of  a  violation  of
  this  subdivision  within  the preceding five years shall be guilty of a
  class E felony.
    (c) (1) Any person, other than an agent licensed by the  commissioner,
  who  willfully  possesses  or  transports  for  the  purpose of sale ten
  thousand or more cigarettes subject to the tax imposed by  section  four
  hundred  seventy-one  of  this  chapter  in  any unstamped or unlawfully
  stamped packages or who willfully sells or offers for sale ten  thousand
  or  more  cigarettes  in any unstamped or unlawfully stamped packages in
  violation of article twenty of this chapter shall be guilty of a class E
  felony.
    (2) Any person, other than an agent licensed by the commissioner,  who
  willfully  possesses  or  transports  for  the  purpose  of  sale thirty
  thousand or more cigarettes subject to the tax imposed by  section  four
  hundred  seventy-one  of  this  chapter  in  any unstamped or unlawfully
  stamped packages or who  willfully  sells  or  offers  for  sale  thirty
  thousand  or  more  cigarettes  in  any  unstamped or unlawfully stamped
  packages in violation of article twenty of this chapter shall be  guilty
  of a class D felony.
    (d) For the purposes of this section, the possession or transportation
  within this state by any person, other than an agent, at any one time of
  five  thousand  or  more  cigarettes  in unstamped or unlawfully stamped
  packages  shall  be  presumptive  evidence  that  such  cigarettes   are
  possessed  or transported for the purpose of sale and are subject to the
  tax imposed by section four hundred seventy-one of  this  chapter.  With
  respect  to  such possession or transportation any provisions of article
  twenty of this chapter providing for a time period during  which  a  use
  tax  imposed  by  such  article  may  be paid on unstamped cigarettes or
  unlawfully  or  improperly  stamped  cigarettes  or  during  which  such
  cigarettes  may  be returned to an agent shall not apply. The possession
  within this state of more than four hundred cigarettes in  unstamped  or
  unlawfully stamped packages by any person other than an agent at any one
  time  shall  be presumptive evidence that such cigarettes are subject to
  tax as provided by article twenty of this chapter.
    (e) Nothing in this section shall apply to common or contract carriers
  or warehousemen  while  engaged  in  lawfully  transporting  or  storing
  unstamped   packages   of   cigarettes   as   merchandise,  or  lawfully
  transporting or storing tobacco products, nor to any  employee  of  such
  carrier  or  warehouseman acting within the scope of his employment, nor
  to public officers or employees in the  performance  of  their  official
  duties  requiring  possession  or  control  of  unstamped  or unlawfully
  stamped packages of cigarettes  or  possession  or  control  of  tobacco
  products,  nor to temporary incidental possession by employees or agents
  of persons  lawfully  entitled  to  possession,  nor  to  persons  whose

  possession  is  for  the purpose of aiding police officers in performing
  their duties.
    (f) Any willful act or omission, other than those described in section
  eighteen  hundred one of this article or subdivision (a), (b), (c), (d),
  (e), (g), (h) or (i) of this section, by any person which constitutes  a
  violation  of  any  provision  of  article  twenty of this chapter shall
  constitute a misdemeanor.
    (g)  Any  person  who  falsely  or  fraudulently  makes,   alters   or
  counterfeits  any  stamp  prescribed  by  the  tax  commission under the
  provisions of article twenty of this chapter, or causes or  procures  to
  be  falsely  or  fraudulently  made,  altered  or counterfeited any such
  stamp, or knowingly and willfully utters, purchases, passes  or  tenders
  as true any such false, altered or counterfeited stamp, or knowingly and
  willfully  possesses  any cigarettes in packages bearing any such false,
  altered or  counterfeited  stamp,  and  any  person  who  knowingly  and
  willfully makes, causes to be made, purchases or receives any device for
  forging  or  counterfeiting  any stamp, prescribed by the tax commission
  under the provisions of article twenty of this chapter, or who knowingly
  and willfully possesses any such device, shall be guilty of  a  class  E
  felony.   For  the  purposes  of  this  subdivision,  the  words  "stamp
  prescribed by the tax commission" shall include a stamp,  impression  or
  imprint  made  by  a  metering  machine,  the  design  of which has been
  approved by such commission.
    (h) (1)  Any  dealer,  other  than  a  distributor  appointed  by  the
  commissioner  of  taxation  and  finance  under  article  twenty of this
  chapter,  who  shall  knowingly  transport  or  have  in  his   custody,
  possession  or under his control more than ten pounds of tobacco or more
  than five hundred cigars upon which the taxes imposed by article  twenty
  of this chapter have not been assumed or paid by a distributor appointed
  by the commissioner of taxation and finance under article twenty of this
  chapter,  or  other  person treated as a distributor pursuant to section
  four hundred seventy-one-d  of  this  chapter,  shall  be  guilty  of  a
  misdemeanor  punishable by a fine of not more than five thousand dollars
  or by a term of imprisonment not to exceed thirty days.
    (2) Any person, other than a dealer or a distributor appointed by  the
  commissioner  under  article twenty of this chapter, who shall knowingly
  transport or have in his custody, possession or under his  control  more
  than  fifteen  pounds of tobacco or more than seven hundred fifty cigars
  upon which the taxes imposed by article twenty of this chapter have  not
  been  assumed  or  paid  by  a distributor appointed by the commissioner
  under article twenty of this chapter,  or  other  person  treated  as  a
  distributor  pursuant  to  section  four  hundred  seventy-one-d of this
  chapter shall be guilty of a misdemeanor punishable by  a  fine  of  not
  more  than  five  thousand  dollars  or by a term of imprisonment not to
  exceed thirty days.
    (3) Any person, other than a distributor appointed by the commissioner
  under article twenty of this chapter, who shall knowingly  transport  or
  have in his custody, possession or under his control twenty-five hundred
  or  more  cigars or fifty or more pounds of tobacco upon which the taxes
  imposed by article twenty of this chapter have not been assumed or  paid
  by  a  distributor appointed by the commissioner under article twenty of
  this chapter, or other person  treated  as  a  distributor  pursuant  to
  section  four hundred seventy-one-d of this chapter shall be guilty of a
  misdemeanor. Provided further,  that  any  person  who  has  twice  been
  convicted under this subdivision shall be guilty of a class E felony for
  any  subsequent  violation  of this section, regardless of the amount of
  tobacco products involved in such violation.

    (4) For purposes of this  subdivision,  such  person  shall  knowingly
  transport  or  have  in  his  custody,  possession  or under his control
  tobacco or cigars on which such taxes have not been assumed or paid by a
  distributor  appointed  by  the  commissioner  where  such  person   has
  knowledge  of  the requirement of the tax on tobacco products and, where
  to his knowledge, such taxes have not  been  assumed  or  paid  on  such
  tobacco  products  by  a  distributor  appointed  by the commissioner of
  taxation and finance.
    (i)  Any  person  who  falsely  or  fraudulently  makes,   alters   or
  counterfeits  a  registration  certificate or sticker required under the
  provisions of section four hundred eighty-a of this chapter,  or  causes
  or procures to be falsely or fraudulently made, altered or counterfeited
  any such registration certificate or sticker, or knowingly and willfully
  utters,  purchases, passes or tenders as true any such false, altered or
  counterfeited registration certificate or sticker, and  any  person  who
  knowingly  and willfully makes, causes to be made, purchases or receives
  any device for forging or counterfeiting any registration certificate or
  sticker required under the provisions of such section, or who  knowingly
  and  willfully  possesses  any such device, shall be guilty of a class B
  misdemeanor.

So, in a nutshell, as you can see from the above, whether or not a criminal cigarette smuggler is charged with a Class D or E felony or an A misdemeanor depends largely on the quantity of cigarettes at issue (one can also be charged with a lesser B misdemeanor for possessing a counterfeit tax stamp forgery device). One can be prosecuted for selling the cigarettes or merely possessing them with the intent to sell and/or evade taxes.  

If you or a loved one have been arrested and charged with a violation of New York State Tax Law §1814 for allegedly selling illegal cigarettes, you should strongly consider retaining an experienced criminal defense lawyer immediately.

Today, a ferry traveling from New Jersey to Pier 11 in Lower Manhattan and carrying 326 passengers (as well as 5 crew members) crashed into the pier at a high rate of speed causing numerous injuries.  As of the time of this post, two passengers were listed as being in critical condition.  This particular boat, operated by Seastreak LLC, a private ferry company, was involved in a terrible accident in 2003 that killed 11 people.  The question presented now is what sort of criminal or civil liability that company or its crew members might be facing as a result of this accident.

As a preliminary matter, it is virtually certain that dozens, if not hundreds, of passengers will be considering lawsuits against Seastreak for negligence.  Their attorneys will have to determine why the boat crashed (and may have the assistance of the Coast Guard or law enforcement in determining this question) and whether either the operation or maintenance of that boat somehow fell below acceptable minimum standards.  If so, then the passengers injured by the crash can expect significant monetary awards.

Law enforcement may have to determine whether any criminal liability should attach as well.  First and foremost, if any of the passengers ultimately die as a result of injuries sustained in the crash, then employees of the company could theoretically be looking at charges of Criminally Negligent Homicide, a Class E felony under Penal Law Section 125.10, or even worse, Manslaughter in the Second Degree, Penal Law Section 125.15(1) a Class C felony.

A person is guilty of Criminally Negligent Homicide when, with criminal negligence, he causes the death of another person.    ”A person acts with criminal negligence with respect to a result or to a circumstances described by a statute defining an offense when he fails to perceive 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 the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” See Penal Law Section 15.05[4].

A person is guilty of Manslaughter in the Second Degree when he recklessly causes the death of another person.  ”A person acts recklessly with respect to a result or to a circumstances described by a statute defining an offense when he is aware of an 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 voluntarily intoxication also acts recklessly with respect thereto.”  See Penal Law Section 15.05[3].  The driver of the boat might theoretically be charged with Assault in the Third Degree (Penal Law Section 120.00[3], a Class A misdemeanor) for negligently causing physical injuries to another person or persons by means of a dangerous instrument.

If the operators of the ferry were determined to have acted recklessly, then charges for Reckless Endangerment and Reckless Assault might also apply for any injuries caused to victims that were hurt but not killed.  A person is guilty of Assault in the Third Degree (Penal Law 120.00[2], a Class A misdemeanor) if he “recklessly causes physical injury to another person,” and can be charged with the Class D felony of Assault in the Second Degree (Penal Law 120.05[4]) where he “recklessly causes serious physical injury to another person by means of a … dangerous instrument,” such as a ferry, arguably.

Obviously, if the operators of the vessel were intoxicated at the time of the crash (though there is no such evidence available at this point), then a whole host of other criminal charges could apply as well, particularly under the Vehicular Homicide statutes in Chapter 125.

If you or a loved one were injured in the recent ferry crash, you should strongly consider contacting an experienced attorney to determine whether you may have a viable injury lawsuit against the ferry operators.

Today, a federal judge in Manhattan handed down an important ruling by declaring unconstitutional the NYPD’s “Trespass Affidavit Program” for private residential buildings in New York City.  This program was also referred to by the Department as “Operation Clean Halls”.  The judge declared that the program and the Department’s policy and lax training essentially caused police officers to stop and frisk people entering, leaving, and walking the halls of private residential buildings without any cause to do so.  Indeed, the NYCLU, who spear-headed the case, managed to successfully demonstrate that the Department had been systematically searching persons without any suspicion of illegal activity and sometimes even arresting wholly innocent individuals solely because they were inside of or around buildings that voluntarily participated in the program.

Hopefully, this decision leads to further curtailing of unconstitutional stop-and-frisk policies enacted by the NYPD, either through voluntary changes by the NYPD or further court decisions on the constitutionality of similar policies.

Interestingly, this decision may make it easier for people to succeed and win solid settlements in lawsuits against the City stemming from false trespass arrests.  The Bronx District Attorney’s Office, for example, recently changed its policy on the prosecution of these matters, and as a result, a large number of people falsely arrested recently for “trespassing” have had their cases “DP’d”, or dismissed as a result of the District Attorney’s Office decision to “decline prosecution”. What many of these individuals that were released by the prosecutor might not realize is that they can win significant settlements for these false arrests, depending upon the length of time that they were unconstitutionally held against their will by the police.

If you or a loved one have been falsely arrested for allegedly trespassing, you should strongly consider pursuing a lawsuit with the assistance of an experienced civil rights attorney.  Contact one today for a free initial consultation to see whether you might be entitled to a cash settlement from the City.