Oscar Pistorius’ Defense Analyzed by a Criminal Defense Attorney (April 8, 2014)

April 8th, 2014 by ZHJ

Oscar Pistorius’ Defense Analyzed by a Criminal Defense Attorney (April 8, 2014)

Author Matthew Galluzzo, Esq. is a former Manhattan prosecutor and criminal defense attorney with Galluzzo & Johnson LLP.  In 2011-2012, he worked alongside South African criminal prosecutors as a legal consultant to the South African National Prosecuting Authority.  He has been following the Pistorius murder case and has given television interviews to CNN and Dateline (NBC) on the subject.

April 8, 2014 

After briefly hearing from a forensic pathologist proffered by the defense, Oscar Pistorius took the stand Monday to testify in his own defense. Although the burden of proof is on the prosecution in South Africa (just as it is in the United States), as a practical matter, Pistorius could not plausibly expect to be found not guilty of murder unless he personally rebutted the state’s prima facie case to commit murder.  Indeed, in a fairly similar case, State v. De Oliveira, an appellate court refused to consider the defendant’s argument that he was only guilty of culpable homicide (and not premeditated murder) for mistakenly shooting people that he believed to be intruders in his home, citing his failure to testify personally to that effect.  His silence on the subject was specifically held against him, in fact, and most assuredly would have been held against Pistorius had he chosen not to testify.

Of course, the world already knew his version of events because Pistorius had already given a sworn affidavit as to the facts of Ms. Steenkamp’s death in connection with his application for bail. Pistorius really had no choice but to lay out his defense early, because under South African law, for an individual to be eligible for bail on a murder charge, he has to somehow rebut the presumption that he is dangerous and/or a violent threat to the community. As a practical matter, a failure to address the state’s allegations that one acted violently in connection with the crime for which one is charged will result in the court denying the application for bail.  Generally speaking, criminal defense attorneys prefer to not have to lay out their defense early and before they have had an opportunity to investigate all of the facts, but getting bail for one’s client is so critically important to the success of a defense that sometimes it is unavoidable, as it was here.

Pistorius’ defense is subtly complicated. The question is not simply whether he intended to kill his girlfriend or believed there was a burglar in his home.  The questions presented are more precisely 1) whether he subjectively and genuinely believed that he was under imminent attack upon his life and that he was justified in acting as he did, and then 2) whether his actions in self-defense were objectively reasonable.  If he fails to prove the first prong then he will be convicted of pre-meditated murder, and if he fails at the second prong then he will be found guilty of culpable homicide, or a negligent unlawful killing. Of course, if the court does ultimately determine that he knew that his girlfriend was in the bathroom then he loses spectacularly and will get a sentence of life in prison.

In analyzing this particular case, it is very important to understand that in South Africa, pre-meditated murder does not mean that the killing was pre-planned; in fact, it does not even have to be “intentional” as we use that term in American criminal law.  Indeed, a “reckless” killing of another person can also result in a conviction for premeditated murder.  See e.g. State v. Naidoo, Case #321/2001.  The concept of recklessness is familiar to American criminal law practitioners: a person acts recklessly with respect to a result when he or she is aware of the risk that his actions could lead to that result, but acts anyway.  In South Africa, the analysis is very similar but slightly different – the fact-finder must determine whether the individual was aware of the risk of the terrible outcome – i.e. had “foresight” to it – and “reconciled” himself to that risk and decided to proceed anyway. The point is that although the prosecutor in Pistorius’ case is presenting the argument that Pistorius intended to kill his girlfriend, he has an extra arrow in his quiver, so to speak, in that he can also quite plausibly argue that Pistorius’ version of events makes him guilty of a reckless murder anyway.  This also forecloses the possibility of an acquittal of murder under the theory that Pistorius was only trying to scare the person in the bathroom (Steenkamp or intruder), as obviously shooting four times into a tiny toilet room would have created a grave risk of death to the person inside.

Looking at the first prong of the defense, in South Africa, for an intentional (or reckless) killing to be justified as “self-defense,” the person exercising force must genuinely believe that his life (or the life of another) is in imminent danger and that deadly force is necessary to prevent the harm. Clearly, Pistorius has maintained without any concession that he genuinely believed that his girlfriend was asleep in bed when he opened fire at the bathroom door. However, if he concedes on cross-examination that just prior to pulling the trigger the thought occurred to him that maybe, possibly, the person behind the door was not a murderous intruder, then he acted RECKLESSLY – with foresight to the possibility that he was wrong about his need to fire – and can be held fully liable for premeditated murder.  I expect that Pistorius will steadfastly refuse to admit that he ever considered that possibility (as stupid as it may make him sound). Moreover, there was some especially damaging testimony from a state witness as to Pistorius’ understanding of South African law regarding self-defense and justification. Specifically, in order to be certified to own as many firearms as he does, Pistorius had to pass an examination that asked questions about when he would be authorized to use deadly physical force to defend his home, and his (correct) answers to those questions strongly suggest that Pistorius knew that he could not use deadly physical force on an intruder without first knowing whether that person was armed with a deadly weapon or intended to actually do him any physical harm.   As such, it would seem that Pistorius acted “recklessly” with respect to his legal right to act in the way that he allegedly did in defending himself.  If this is the case, then the court is likely to conclude that he had foresight as to the outcome – an unlawful killing – and should thus be found guilty of premeditated murder.  So, Pistorius is going to have to somehow explain how his actions in this case were materially distinguishable from the scenarios presented to him on his firearm certification examination, and honestly, I do not expect him to be able to do that effectively – the prosecutor will probably pound him to death with his previous answers on the certification examination.

If Pistorius somehow manages to persuade the court that he neither believed that his girlfriend was in the bathroom nor that he had “foresight” as to the possibility that he was not justified in acting as he did, he then has to battle against the lesser included charge of culpable homicide. The defense team would probably consider a conviction for culpable homicide to be a victory, as that charge carries no mandatory minimum prison sentence. Culpable homicide is a negligent unlawful killing under South African law. An unlawful killing results in cases in which there is no justification. It should be noted that the fact that Pistorius did not ACTUALLY need to exercise self-defense (because the person in the bathroom was not, in fact, a murderous intruder) does not mean that the killing is automatically unjustified.  For example, if you were sitting in your home one night when someone burst into your home wearing a ski mask and wielding what appears to be a meat cleaver, you would probably be justified in shooting that person to death, even if it later turned out to be your brother-in-law trying to pull a Halloween prank with a plastic toy knife. After all, you acted relatively reasonably under the circumstances, and so we would call that act of killing an accident or a tragic misunderstanding rather than a crime.

Unfortunately for Pistorius, the analysis as to whether he was negligent (i.e. whether he acted reasonably under the circumstances) is an objective rather than subjective test.  That means that the judge must consider what a reasonable person in his situation would do, and does NOT take into account such subjective aspects of the person, including but not limited to his age, health, general level of anxiety, or physical disability.  This rule has been criticized as cruel or unforgiving to the old, infirm, or to those with disabilities, but South African law has consistently refused to give concessions in this regard.  Thus, the question for the court is not: what was reasonable for Pistorius – a man with no legs – to do in that situation, but rather, what would a reasonable person have done if faced with the possibility of an intruder in the bathroom? Pistorius has made much of his assertion that he was not wearing his prosthetic legs at the time he fired at the bathroom door, and that he felt especially vulnerable without his prosthetic legs, but ultimately, this fact is only relevant to his subjective intent in believing that he was justified (prong #1), and should not be part of the analysis as to prong #2.

Unfortunately for Pistorius, he is almost certainly going to face a barrage of tough but straightforward questions from the prosecutor about why he didn’t act more reasonably than he did. The prosecutor will certainly ask him why he didn’t ask questions first before opening fire, why he didn’t check to make sure Reeva wasn’t in the bathroom, why he didn’t call security and wait for them to arrive, why he didn’t fire a single warning shot rather than four shots in quick succession, why he didn’t give the intruder an opportunity to retreat, and why he felt so threatened by someone that was seemingly just sitting on the toilet, among other questions.  None of his answers are going to be very good, because they cannot be.

Pistorius has demonstrated an uncommon amount of emotion during the trial, having repeatedly vomited during graphic moments and broken down crying whilst apologizing under oath to the Steenkamp family and describing the events of her death. A skeptic might suggest that his crying could be just as indicative of innocence or guilt; after all, if he did in fact murder her in a moment of regrettable rage, one would expect him to harbor feelings of guilt, remorse, and depression about having thrown his own life away.  Nevertheless, in our experience, this display of emotion is likely to have a genuine impact on the fact-finders (the judge and assessors), who are expected to use their common sense to evaluate the credibility of his testimony, and that can include judging the sincerity of his emotions on display. It would certainly be bizarre if he were not displaying any emotion, guilty or innocent.

It is difficult to handicap this case.  Judges (and assessors, who also vote as to Pistorius’ guilty or innocence) are human beings, and any judicial process involving human beings can be unpredictable. The racial and socioeconomic situation in South Africa is also dizzyingly complex, and it would be naïve to assume that that history could not affect the outcome in this high-profile media matter.  Ultimately though, I expect Pistorius to be convicted of pre-meditated murder and would be absolutely astonished if he is not convicted of culpable homicide.

 

Sex Offender Registration and Modification in New York

April 1st, 2014 by ZHJ

Blog – Sexual Offenders Registry:

 

By Laura Monagle.

Conviction for a sex offense can have life long ramifications for defendants who will be required to register as sex offenders. The following post will explain the process of registration as a sex offender. If you are facing charges which could result in you being determined to be a sex offender, you should contact an experienced attorney to take on your case.

Relevant Offenses:

Conviction for one of the following offenses of the New York Penal Law (‘NYPL’)(or conviction for an attempt to commit one of the following offenses) will result in the defendant being required to register as a sex offender:

  • Luring a child (NYPL 120.70).
  • Sexual misconduct (NYPL 130.20).
  • Rape (NYPL 130.25-35 – first, second and third degree).
  • Criminal sexual act (NYPL 130.40-50 – first, second and third degree).
  • Sodomy (NYPL 130.40-50 – first, second and third degree).
  • Forcible touching (NYPL 130.52) (not the first offense but on the second conviction).
  • Persistent sexual abuse (NYPL 130.53).
  • Sexual abuse (NYPL 130.55-65 – first, second and third degree) (not the first offense but on the second conviction).
  • Aggravated sexual abuse (NYPL 130.65-a-70 – first, second, third and fourth degree).
  • Course of sexual conduct against a child (NYPL 130.75-80 – first, and second degree).
  • Facilitating a sex offense with a controlled substance (NYPL 130.90).
  • Predatory sexual assault (NYPL 130.95).
  • Predatory sexual assault against a child (NYPL 130.96).
  • Unlawful imprisonment (NYPL 135.05-10 – first and second degree).
  • Kidnapping (NYPL 135.20-25 – first and second degree).
  • Patronizing a prostitute (NYPL 230.05-06 – first and second degree.
  • Promoting prostitution (NYPL 230.30-32 – first and second degree).
  • Compelling prostitution (NYPL 230.33).
  • Sex trafficking (NYPL 230.34).
  • Disseminating indecent material to minors (NYPL 235.22).
  • Unlawful surveillance (NYPL 250.45-50 – first and second degree).
  • Incest (NYPL 255.25-27 – first, second and third degree).
  • Use of a child in a sexual performance (NYPL 263.05).
  • Promoting an obscene sexual performance by a child (NYPL 263.10).
  • Possessing an obscene sexual performance by a child (NYPL 263.11).
  • Promoting a sexual performance by a child (NYPL 263.15).
  • Possessing a sexual performance by a child (NYPL 263.16).
  • Facilitating a sexual performance by a child with a controlled substance or alcohol (NYPL 263.30).

(Note: for some of these offenses, a conviction does not require registration but may result in registration).

Risk Assessment Instrument:

When an individual is convicted of an offense which requires registration as a sex offender, as assessment must be undertaken to determine the level of ‘risk’ the offender presents to the community. There are three levels of registration – level one (the lowest), level two and level three (the highest). As per the Sex Offender Registration Act (‘SORA’) Risk Assessment Guidelines and Commentary, there are two considerations which must be taken into account in determining the threat a sex offender poses to the community – one: the likelihood that the offender will reoffend, and – two: the harm that would result if the offender were to reoffend. The Board of Examiners of Sex Offenders (‘Board’) came up with an objective instrument, used to determine the level of risk posed by an offender. This instrument is split into four sections:

  1. Current offenses:
  • Use of violence.
  • Sexual contact with the victim.
  • Number of victims.
  • Duration of offence conduct with the victim.
  • Age of the victim.
  • Other victim characteristics.
  • Relationship between the offender and the victim.
  1. Criminal history.
  • Age at the time of committing first sex crime.
  • Number and nature of prior crimes.
  • Recency of prior felony/sex crime.
  • Drug or alcohol abuse.
  1. Post-offense behaviour.
  • Acceptance of responsibility.
  • Conduct while confined/under supervision.
  1. Release environment.
  • Supervision.
  • Living/employment situation.

Points are tallied in each section – the higher total that an offender scores, the more risk they present to the community. An offender will be registered as a level one risk if they score 70 points or less. An offender will be registered as a level two risk if they score less than 110 but more than 70 points. An offender will be registered as a level three risk if they score more than 110 points. To see the points that are awarded in these different categories, click here for a sample scoresheet (Risk Assessment Instrument).

An offender will be presumed to be a level three offender if any of the following four ‘overrides’ apply to the offender – one: prior convictions for sex felonies – two: offending causing physical injury or death to the victim – three: the offender has made a recent threat of re-offense – four: the offender has been clinically assessed to have a psychological, physical or organic abnormality that reduces their ability to control their sexual impulses (for example: paedophilia or sexual sadism). Each of these circumstances provides strong evidence that an offender is a danger to the community. The fact that these overrides are presumptive means that the Board or the presiding court can choose to depart from it them, should the situation warrant this. It should be noted that this is a rare occurrence. (On a separate note, those individuals found to have such abnormalities are at risk for civil commitment after the expiration of their incarceration).

In order for points to be tallied against an offender in the process of calculating the level of risk, the Board or presiding court must have “clear and convincing evidence of the existence of that factor”. This evidence can be derived from any number of reliable sources, from the offender to the victim to any supervising officers who have observed the offender. The fact of an arrest should not be taken as clear and convincing evidence that the relevant offense was committed.

The level of risk into which an offender is categorized will determine their obligation under SORA, as well as the amount of information which the public is entitled to know about that individual.

Information Database:

The New York State Division of Criminal Justice Services (‘CJS’) publicizes on its website (http://www.criminaljustice.ny.gov/SomsSUBDirectory/search_index.jsp) information pertaining to level two and three sex offenders through out the State. This includes a physical description of the offender (including the presence of any scars or tattoos, as well as nicknames/aliases), a listed address, the charges for which they were convicted, a description of the offense and relevant modus operandi, and the sentence the offender received. Information about level 1 offenders is not permitted to be made public.

Obligations:

Individuals convicted of one of the enumerated crimes above (or an attempt to commit one of these crimes) must register as a sex offender as per SORA § 168-f – (1) any sex offender shall – (a) at least ten calendar days prior to discharge, parole, release to post-release supervision or release from any state or local correctional facility, hospital or institution where he or she was confined or committed, or – (b) at the time sentence is imposed for any sex offender released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge, register with the division on a form prepared by the division. Failure to register as a sex offender when required to do so constitutes an E felony, and any offender charged with this offense faces four years imprisonment.

Offenders are registered as either a level one, two or three risk level. Offenders are also designated as a sexual predatory, sexually violent offender, predicate sex offender, or ‘no designation’. Offenders who are registered as level one, and ‘no designation’, are to be registered annually for a period of twenty years. Offenders who are any designation other than ‘no designation’, and who are either a level two or three risk, are registered for life. Under § 168-h(2), offenders who are registered as level two risk and ‘no designation’ may be able to petition for relief after twenty years of registration (discussed further below).

Offenders who are registered as a level three risk or are designated sexual predator status must personally verify their address with law enforcement every 90 days.

Section 168-f sets out the extensive verification duties on the registered sex offender. This includes the duty to verify home and employment addresses, changes to internet account belonging to the offender, and to update their photograph (how often this must occur), as well as how often each of these must occur (this depends on risk level).

Petition to Remove Status:

There is some scope for an offender to petition for relief of duty to register, or modification of their risk level. This process is set out in § 168-o, and has been somewhat controversial because of changes made to the minimum period of continuous registration before such a petition can be made. The recent decision of Nolan v. Cuomo WL168674 (EDNY, 2013) affirmed the earlier decision in Woe v. Spitzer 571 F.Supp.2d 382 (EDNY, 2008). Each of these decisions attempted to interpret § 168-o sub-sections (1) and (2). Sub-section (1) allows for level 2 sex offenders to petition for relief from their duty to register, however, this petition can only be made after 30 years of continuous registration. There is no allowance for level 1 sex offenders to make the same application under this sub-section. However, sub-section (2) allows for any sex offender to petition for modification of their risk level. This has been interpreted as allowing level 1 sex offenders to petition for modification to a risk level below level 1 (and therefore, effectively relieving level 1 offenders of the duty to register). The onus is on the sex offender to present evidence that suggests they should be relieved of their status; this is a high evidentiary burden.

It should be noted that if an appeal for relief under § 168-o(1) is successful, the District Attorney (‘DA’) is granted an appeal as of right.

State versus Federal requirements:

 The Federal government passed the Sex Offender Registration and Notification Act (‘SORNA’) in 2006, in order to set minimum standards for all of the states to follow regarding registration of sex offenders. This Act requires that sex offenders (even if convicted of a Federal sex offence) must register with the state in which they reside. SORNA also enumerates the minimum amount of information which states must gather about their sex offenders, although not all of this information can be made public.

If you or a loved one have been arrested for a sex offense or are considering moving for an adjustment of your registration level, you should seriously consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor who has successfully represented numerous individuals accused of sex offenses.

Credit: http://www.criminaljustice.ny.gov/nsor/sortab1.htm

http://www.nycourts.gov/reporter/06_SORAGuidelines.pdf

http://www.smart.gov/sorna.htm

Blog – §1983 Case Plan explained by Criminal Defense and Civil Rights attorney

April 1st, 2014 by ZHJ

Blog – § 1983 Case Plan:

Given the ever increasing number of claims being filed for excessive force, false arrest, and/or malicious prosecution against the City and/or the New York City Police Department (‘NYPD’), the United States District Court of the Southern District of New York (‘SDNY’)(serving Manhattan, White Plains and Middletown, NY) came up with a case plan to ensure the timely hearing of such cases. This is known as the ‘§ 1983 Plan’. This Plan intends to facilitate the speedy disposition of such cases, however, it only applies to certain types of cases (those which are less complicated, and could be resolved quickly by following this Plan).

Service of the Complaint:

Under the § 1983 Plan, the complaint must be served with a signed § 160.50 release, which allows for the ‘un-sealing’ of arrest records. The plaintiff must also serve with the complaint and § 160.50 release all medical and psychological records pertaining to the injuries for which the plaintiff seeks damages. Plaintiffs with pre-existing medical conditions that reasonably appear to be connected with the condition for which damages are sought, the plaintiff must also serve medical releases for records of treatment of that pre-existing condition. Should a plaintiff fail to serve a § 160.50 release at the time of serving the complaint, counsel for the City must immediately send a letter to the plaintiff’s attorney requesting the aforementioned release, and attach a copy of the § 1983 Plan.

Time to Answer:

If the plaintiff serves the § 160.50 release at the same time as the complaint, the defendant has 80 days from the date of service to provide an answer to the complaint. Any defendant who is served subsequently will have the better of (i) 60 days or (ii) the date on which the first served defendant’s answer is due, to answer the complaint.

If the § 160.50 release was served later than the complaint, each defendant will have the larger of (i) 60 days from the date of service of the § 160.50 release on the City or (ii) 60 days after that particular defendant is served, to answer the complaint.

The Court is to stay the § 1983 Plan deadlines if any of the defendants move to dismiss the entire complaint, in lieu of filing an answer, unless the Court orders differently.

Conference and Initial Disclosures:

As per Federal Rules of Civil Procedure Rule 26(f), the parties should meet and conference within 14 days of the defendant filing their answer to the complaint. As parties of this conference, the parties should discuss whether or not to ask the court (i) to send the case to a magistrate judge for settlement purposes or (ii) to excuse the case from the § 1983 Plan. Applications of this nature must be submitted to the judge presiding over the case no more than 21 days after the first defendant files their answer. If no such application is made, the case will be automatically continue under the § 1983 Plan, and will immediately be referred to a Southern District Mediation Panel mediator, which has experience in this area.

Limited Discovery:

No more than 28 days after the first defendant files their answer, the parties must follow the following discovery process:

The City must serve on the plaintiff:

(i)            Any items listed in Exhibit C (unless protected by applicable privileges)(see link at the bottom of this post) that did not make up the City’s initial disclosures; any documents received by the District Attorney’s (‘DA’s’) office; any documents acquired from the court file.

(ii)          Any CCRD and IAB reports and/or records pertaining to the incident that is the foundation of the complaint. If the incident is still under investigation (including investigation by the NYPD or disciplinary proceedings), discovery will be suspended. Investigative records must be produced by the City within 30 days  of the conclusion of the aforementioned investigation. Such a suspension will not include documents which are related to a concluded investigation.

(iii)          CCRD complaints for each defendants which are akin to those alleged in the present complaint. If excessive force is alleged, it must be disclosed whether or not the officer has been or is under ‘force monitoring’.

(iv)         Records obtained as a result of medical releases, within 7 days of having received them.

The plaintiff must serve on the City:

(i)            Any document listed in Exhibit C (see the link at the bottom of this post), any document derived from either the DA’s office or from the court file.

(ii)          Medical records relevant to any treatment the plaintiff is receiving pursuant to the abovementioned medical release.

All other discovery is stayed, and unless the court decides otherwise, this stay will terminate at the end of the mediation/settlement conference.

Amended Pleadings:

Further defendants may be added to the complaint without requiring leave of the court within six weeks of the first defendant filing an answer. Such an amendment does not affect the deadlines set out in this plan.

Settlement Demand and Offer:

Within six weeks of filing of the above-mentioned answer, the plaintiff must garnish a settlement demand in writing on the City, which must accordingly be responded to within 14 days. This should result in settlement negotiations taking place.

Mediation or Settlement Conference:

Unless the case has been referred by the court to a Magistrate to facilitate a settlement conference, a mediator will designate a mediator within 14 days of the first defendant filing an answer. Once assigned, the mediator shall organise with counsel for both parties a conference, to take place no more than 14 weeks after the first defendant files an answer. Unless a stipulation of dismissal is provided to the Clerk, each of the parties must take part in either a mediation session or a settlement conference.

Failure to Comply with these Requirements:

Once a party becomes aware of a breach of these regulations by the other side, they must inform the presiding judge in writing of the nature of the breach, and request that the judge grant relief.

Request for Initial Pre-Trial Conference:

Unless already held or scheduled by the court, if no settlement can be reached through mediation or settlement conference, the parties are to request the court to calendar an initial pre-trial conference.

Protective Order:

In all cases, the relevant protective order (see the link at the bottom of this post) shall be assumed to be in place.

Preservation:

These regulations do not exclude any party from their responsibility to ensure documents are preserved, and to issue instructions to this effect.

Credit: http://www.nysd.uscourts.gov/rules/1983%20Revised%20Plan%20and%20Exhibits.11.22.2013.pdf – contains the Plan itself, as well as all aforementioned exhibits.

http://www.nysd.uscourts.gov/rules/Section%201983%20Plan%20White%20Paper.pdf

University Sexual Assaults

March 17th, 2014 by ZHJ

Blog – University Sexual Assaults:

The White House Council announced in January of 2014 their intention to target sexual assault against women and girls, particularly college women, in a report entitled ‘A Renewed Call to Action’. This report referenced a number of recent studies into this seemingly increasing epidemic, including the statistic that one in five women will experience sexual assault or rape while in college. It is also important to note that most victims of sexual assault know their attacker, and that sexual assaults often happen at parties.

Risk Factors:

Several risk factors have been identified, both pertaining to sexual victimisation, and perpetration. These will be discussed in more detail below.

-       Risk factors for female victims of sexual assault:

  • Prior victimisation – women who have experienced either an attempted or completed sexual assault prior to entering college are twice as likely to experience the same upon entering college. This is less so for women who experienced childhood sexual abuse, as opposed to sexual abuse during adolescence. One possible explanation for this link between sexual abuse as an adolescent/young adult and subsequent sexual abuse in college could be that such an experience often leads to abuse of drugs or alcohol, which in itself is a considerable risk factor for victimisation (see below).
  • Substance use – this is the most significant risk factor for sexual victimisation. Studies have shown that women who drink often enough to become intoxicated are more likely to experience sexual assault than those who do not. Heavy periodic drinking patterns in high school, as well as commencing drinking at an earlier age, are both positively associated with an increased risk of rape during college. The vast majority of sexual assault victims are incapacitated at the time of the assault, either as a result of voluntarily intoxication, or being administered substances without their consent or knowledge.
  • Age and year of study – women in their earlier years of college (freshmen and sophomores) are at greater risk of being sexually abused than older college students.
  • Race/ethnicity – while this particular risk factor has not been well studied, studies have shown that white undergraduate women are more likely to report having been sexually assaulted than women of other races. One explanation for this is that a pattern of heavy drinking is more commonly associated with white college students.
  • Residential status – is it unsurprising that women who reside either in sorority houses or dormitories on-campus are at a greater risk of experiencing sexual assault that those students who do not live on campus.
  • Sorority membership – given that sorority membership is often associated with excessive drinking and/or coercion into drug taking, such women are therefore more likely to be subjected to sexual assault. Another risk factor for women in sororities is their frequent socialisation with fraternity men, who have been recognized as being more likely to commit a sexual assault than men who are not fraternity members.
  • Dating violence history – this is another risk factor which has not been well researched. It has, however, been suggested that women who have experienced violence at the hands of a previous dating partner are more likely to be sexually assaulted in that year.
  • Consensual sexual experiences – it has been suggested that women with a high number of previous sexual partners, and/or who commenced sexual activity at a younger age are more likely to be sexually assaulted.
  • Attitudinal characteristics – while very few solid findings have been made with regards to this risk factor, it has been suggested that women who enter college with a more conservative attitude towards their sexuality are less likely to be victims of sexual abuse than those women with less conservative attitudes.

-       Risk factors for male perpetrators of sexual assault:

  • Substance use – just as for female victims, drug or alcohol use is positively associated with the perpetration of sexual assaults. Substance use not only leads to lowered inhibitions, but can also result in males misreading signals as consenting in situations where they do not exist.
  • Fraternity membership – for the same reason that female association with fraternity men is a risk factor for sexual victimisation, fraternity membership is a risk factor for perpetration of sexual assault.
  • Participation in aggressive sports – recent studies have found that men who played such sports as football, basketball, wrestling and soccer while in high school are more likely to utilise some form of sexual coercion (whether physical or psychological) than men who did not participate in such sports.
  • Attitudinal characteristics – those who perpetrate sexual assaults are more likely than other men to share common characteristics, such as an attitude of sexism, an approval of violence towards women, a feeling of hostility towards women, as well as tolerance of common rape myths.
  • It is also worth noting that male perpetrators are more likely to have been childhood victims of sexual abuse or violence, to have commenced sexual activity at an earlier age, and to more frequently take part in sexual dating experiences.

The college environment tends to exacerbate these risk factors, both for victimisation and perpetration. As the Campus Sexual Assault (‘CSA’) Study (referenced below) states, “college offers an environment notorious for encouraging excessive drinking and experimenting with drugs”, both of which increase the risk of sexual assault.

Possible Charges:

It is not uncommon for sexual assaults in a college setting to lead to criminal prosecution, generally subject to reporting of an incident (to be discussed in more detail below). Depending on the severity of the incident, charges can range from sexual abuse in the third degree and forcible touching (both misdemeanors) to aggravated sexual abuse and rape (both felonies). In New York State, sexual offenses are contained in § 130 of the New York Penal Law (‘NYPL’).

Role of the School:

The college has an important role to play in the aftermath of an alleged sexual assault, both from the perspective of aiding reporting, taking action against the alleged perpetrator, and in protecting itself from legal action. Each of these will be discussed in some detail below:

-       Preventing sexual assaults from occurring – the CSA set out male and female programs which schools could instigate:

  • Programs for women – focus on preventing women from being either victimised or re-victimised. In order to achieve this, the report suggested that the program should provide college women with an understanding of the legal definitions of the various sexual offenses, and combine this better understanding of what constitutes an offense with drug and alcohol counseling. Programs should also aim to increase female assertiveness, as well as ensure that all college women are aware of how to report any assaults to either the school or law enforcement authorities, and the importance of doing so.
  • Programs for men – focus on informing men not only of the legal definitions for the various sexual offenses, but also the penalties for committing those offenses. The report also suggests that there should be a strong emphasis on ensuring that college men understand that they are responsible for determining the presence of consent, and also whether a woman is actually capable of providing informed consent. This includes the knowledge that an intoxicated person cannot provide consent.

-       Facilitating reporting – reporting of sexual assaults which occur on college campuses are particularly low. There are a number of reasons for this, including the fact that victims feel they have no proof that the incident occurred, that the incident was not serious enough, or they fear a hostile reception on the part of authorities. This is not to mention the fact that victims are often discouraged from reporting by the involvement of drugs or alcohol in the hours surrounding the alleged assault, which is of particular pertinence when the victim is underage. It is important that schools are able to adequately address these barriers to reporting by implementing policies which tend to encourage reporting, and overcome some of these discouraging issues. College administrators have referred the following factors as being encouraging of reporting:

  • The adequate provision of victim service.
  • Written protocols for law enforcement responders to follow.
  • Campus wide exposure about previous incidents.
  • Provisions in place allowing for confidential and/or anonymous reporting. It should be noted that the CSA referenced the following statistic: 84% of institutions allow for confidential reporting, while only 46% of institutions allow for anonymous reporting.

-       Response of the college – sexual assaults on campus put pressure on the college in question not only to attempt to create an environment which discourages such acts from occurring, but also to deal appropriately with the alleged perpetrator. It is not uncommon for schools to take disciplinary action against a perpetrator (whether in lieu of, or alongside of a criminal prosecution), and also to be on the receiving end of a victim lawsuit alleging negligence on the part of the college. In the case of Kelly v. Yale University WL 1563424 (USDC Connecticut, 2003), following the sexual assault of the plaintiff by fellow student Nolan, Kelly filed a formal written complaint with the school requesting remedial action against Nolan. Nolan was required to take a leave of absence from the school until Kelly’s expected graduation. In addition to other accommodations made for Kelly as a result of the assault (including removing Nolan from Kelly’s dormitory), the school held multiple open forums on campus to address the concern of other students resulting from incident. In the aforementioned proceeding, despite the number of steps taken by the school to address the incident, Kelly brought an action against the school which included accusations of negligence, breach of contract, intentional infliction of emotional distress, and defamation (many of which were dismissed in summary judgment). In the case of Andersen v. Cornell University 225 A.D.2d 946 (3’d Dept, 1996), the plaintiff brought an action for assault, battery and negligence against Cornell University as a result of a rape which allegedly occurred at a house leased to a fraternity by the aforementioned university. It is therefore not only in the best interests of the students, but also of the college, to have policies in place designed to prevent sexual assaults from occurring on their campuses.

Assistance for Alleged Victims and Perpetrators:

Individuals who have been involved in a sexual assault, either as an alleged victim or an alleged perpetrator, will oftentimes require assistance from an experienced attorney.

An experienced attorney can be of significant assistance to a college victim of sexual assault. Galluzzo & Johnson has had experience in attempting to initiate criminal proceedings against an alleged perpetrator, through discussions with the relevant District Attorney’s Office. If a criminal prosecution is unsuccessful, or in the event that the District Attorney chooses not to pursue charges against the perpetrator, then Galluzzo & Johnson is prepared to either pursue a civil lawsuit against the perpetrator under the common law, or a lawsuit against the college (as above) for negligence or other common law causes of actions. Victims can be awarded significant monetary damages following a successful lawsuit against either aforementioned party. The legal burden is lower in civil cases, and as such it is ‘easier’ to prove a plaintiff’s case in civil court than it is to successfully prosecute a perpetrator.

On the other hand, if you have been charged with an offense resulting from an alleged sexual assault, you could be facing severe and lengthy terms of imprisonment, and as such will need an experienced and well-respected attorney to handle your case. Galluzzo & Johnson has had success in defending individuals charged with sexual offenses on college campuses, including but not limited to serious charges such as rape in the first degree (NYPL § 130.35). In the case of People v. Lynch, partner Matthew Galluzzo secured a full acquittal for his client after going to trial, in which the complainant testified that the defendant and his roommate raped her in the defendant’s dorm room.

As stated above, a term of imprisonment is not the only consequence of being found guilty of a sexual offence. Sex Offender Registration Act § 168-a enumerates all of the offenses, a conviction for which will result in registration as a sex offenders. Level 2 and 3 sex offenders will be required to be registered as such for life, and their information will be public on the internet. This would clearly have dire consequences for a college student.

Sexual assaults in college settings can be extremely damaging both for the alleged victim and the alleged perpetrator. Students should take note of the risk factors discussed above, and act to minimise their own exposure, either to victimisation or perpetration. We strongly suggest that you contact the experienced sexual assault attorneys at Galluzzo & Johnson LLP.  

Credit:

Laura Monagle

http://iaclea.org/visitors/about/documents/WhiteHouseCouncil_sexual_assault_report_1-21-14.pdf

https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf

http://www.ncbi.nlm.nih.gov/pubmed/19433402

 

Sentencing of Federal Drug Offenders

February 12th, 2014 by MJG

Blog – Sentencing of Federal Drug Offenders:

By Laura Monagle.

The 21 United States Code (‘USC’) Controlled Substances Act is the piece of legislation that sets out the United States Federal drug offences. This is an incredibly lengthy and complex Act, which can result in very harsh penalties, set out separately in the United States Sentencing Commission (‘USSC’) Guidelines Manual. This post will discuss the way in which Federal drug offences are sentenced.

Sentence Procedure:

Federal sentencing is carried out entirely differently to the State system. While plea bargaining plays a huge role in both systems, unlike the State system, there is no obligation on a Federal court judge to accept a sentence previously agreed upon by a defendant and the Assistant United States Attorney (‘AUSA’). Sentencing is completely within the discretion of Federal Court judges, although this is subject to the sentencing guidelines (referenced above), and statutory sentencing minimums. The case of Gall v. United States 446 F.3d 884 (Supreme Court, 2007) set out the procedure for Federal sentencing, as follows – (1) determine the range as per the sentencing guidelines (referenced above) – (2) determine whether any departures (either upward or downward) can be applied to this range – (3) determine whether variance is warranted via any of the § 3553(a) factors.

The Guidelines Manual sets out the sentencing range for each of the enumerated offences. Through the use of offense ‘levels’, the guidelines provide a month range within which the court must impose a sentence, unless there are any applicable departures or variances (discussed below). The ranges include specific offence characteristics, which may either increase or decrease the base level of an offence. The ranges for drug offences are set out in Chapter 2 Part D, with reference to the sentencing table contained in Chapter 5 Part A. The process of determining the sentencing range can be incredibly complex because of the multitude of factors at play, and as such defendants charged with drug offences should retain an experienced attorney.

A departure  (either an upward or downward) is a change made to the guideline sentencing range (or in some cases, the mandatory minimum sentence). It should be noted that these are considered rare, and should only be applied in cases that are not ‘run of the mill’. There are three avenues through which a departure can be applied for – (1) because of the criminal history of the defendant (that is, the history of a particular defendant either over or under represents the seriousness of that history, and the chance that the defendant will commit further crimes) – (2) the provision of substantial assistance (to be discussed below), and – (3) other grounds (relating to aggravating and/or mitigating factors). There are also a multitude of prohibited grounds of departure, which include but are not limited to race, gender, national origin, religion, socio-economic status, drug or alcohol abuse/dependence, gambling addiction, or coercion/duress. These factors cannot be taken into account during sentencing.

A variance is a further consideration, which should only be taken into account after a determination on departure has been made. The factors to be taken into account for the purpose of variance are enumerated in 18 USC § 3553(a), and include the defendant’s prior criminal history, any personal characteristics of the defendant, as well as health and family issues, and the nature of the offence in question. A variance allows for a defendant to be sentenced outside of the guideline range, but does not allow for sentencing below a mandatory minimum sentence.

Mandatory Minimum Sentences:

21 USC § 841 enumerates the weight amounts required of each of the enumerated drugs (LSD, marijuana, crack cocaine, powder cocaine, heroin, methamphetamine or PCP) in order to trigger either the statutory minimum of five years, or ten years without parole. There is no judicial discretion in the Federal system to sentence below these statutory mandatory minimums if a particular fact scenario (that is, the requisite amount of one of the enumerated drugs) is present. These minimums apply to any of the unlawful acts set out in sub-section (a): it shall be unlawful for any person knowingly or intentionally – (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, or – (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. For example, any of the aforementioned acts that involve 28 grams of crack cocaine, or 100 grams of heroin, will attract a five-year mandatory minimum. In the same vein, any of the aforementioned acts that involve 1000 kilos of marijuana, or 50 grams of pure methamphetamine will attract a ten-year mandatory minimum.

Avoid Mandatory Minimum Sentences:

There are three ways in which an individual charged with an offense containing a statutory mandatory minimum can avoid that sentence.

Firstly, the defendant can proceed to trial and be acquitted, though there are myriad risks involved in proceeding to trial.

Secondly, in some circumstances certain defendants will be able to qualify for the statutory safety valve. The defendant would only be capable of qualifying for this safety valve if all of the following are made out: the defendant has minimal or no criminal history; the offence committed did not involve violence or the use of a firearm; the commission of the offence did not result in death or serious injury to another person; the defendant was a low-level offender (for example, a ‘mule’, not a ‘kingpin’); and the defendant has been truthful in providing information to the prosecution. Ultimately, the decision of whether to sentence below the mandatory minimum even if all of the above are made out rests with the judge; however, the prosecution can play a significant role in aiding the court to their decision. It should also be noted that while this safety valve may allow the judge to sentence below the minimum, the eventual sentence is still subject to the sentencing guidelines (referenced above).

Thirdly, if the prosecution deems that the defendant has been of ‘substantial assistance’ to them, they can file a motion (known as a ‘§ 5K motion’) with the court stating that the defendant should be sentenced below the mandatory minimum. This constitutes a departure (as discussed above). In almost all such cases, the prosecution will require that the defendant to plead guilty before they agree to file a § 5K motion with the court, regardless of the assistance that the defendant has provided. Generally speaking, the prosecution will only be willing to accept information regarding an individual of equal or higher status than the defendant. The court cannot sentence the defendant below the mandatory minimum, despite any assistance provided by the defendant, if the prosecution does not file a § 5K motion. It is entirely within the prosecutor’s discretion as to whether to offer the defendant the chance to cooperate, and following this cooperation, whether to file a § 5K motion. Following such a filing, the judge is under no obligation to follow the recommendation of the prosecutor. In determining whether to grant a departure from the mandatory minimum, and the nature of that departure, the court must consider the significance of the information provided, as well as its reliability, the risk of injury to the defendant or their family stemming from this assistance, and whether the assistance was provided in a timely manner. It should be noted that the court is required to provide reasons for its decision, should it decide in favour of departure. It should also be mentioned that ‘substantial assistance’ is not defined within the statute, and has accordingly been applied differently between the Federal districts. There are some clear risks associated with this course of action, given that 6 out of 10 defendant who do provide some assistance to the prosecution do not have a § 5K motion filed to the court on their behalf. For this reason, any defendant who is considering providing assistance on the promise of a § 5K motion should consult an experienced attorney before doing so.

Prosecution Bargaining Tool:

Federal drug offences have the potential to attract huge terms of imprisonment, a fact which Federal prosecutors are known to use to their advantage. Only 3% of Federal drug defendants will ever go to trial, and it is often suggested that this is the result of prosecution bargaining to force a plea of guilty. The average sentence following conviction at trial for a Federal drug offence is three times longer than sentence resulting from a plea. The Federal system, it is often suggested, punishes defendants for going to trial, and is able to do so because of the unique tools which prosecutor’s possess to ‘force’ a defendant to plead guilty.

Prosecutors have two tools within their discretion to put before the court which can dramatically increase the sentence which a defendant is faced with, often to such an extent that it forces a plea of guilty:

  • Introduction of prior felony convictions: under 21 USC § 851 (a)(1), if the prosecutor chooses to file the prior felony information of a defendant with the court, this will automatically increase the sentence faced. If a defendant has one prior felony conviction, this will result in a doubling of the defendant’s sentence. If a defendant has two prior felony convictions, and they are facing a ten year mandatory sentence, this will result in the sentence being commuted to life (with no parole). Any prior conviction for which more than one year of imprisonment could (not necessarily was, but could have been) have been imposed will constitute a relevant felony conviction, even if the underlying State offence would not constitute a Federal offence. There is no statute of limitations on the prior convictions which can be submitted as part of prior felony information. Once this information is submitted to the court, the judge has no discretion, and must impose the sentencing enhancement. It has been suggested that this is a tool frequently used by prosecutors to force defendants to enter a plea of guilty. Federal Judge John Gleeson, of the Eastern District of New York, stated in a recent case that, “to coerce guilty pleas, and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one – not even prosecutors themselves – thinks are appropriate”.[1] The huge impact which a prior felony information filing can have on the possible sentence faced by the defendant means that an experienced defence attorney is necessary when navigating this process.
  • Involvement of a firearm: under 18 USC § 924 (c)(1), the prosecutor can also seek an additional mandatory sentence if a firearm was used in relation with a drug trafficking crime, which must be served consecutively to the underlying sentence for the drug offence. While there are separate sub-sections relating to the brandishing or discharging of a firearm, it is sufficient if the firearm was merely possessed. There is also case law to suggest that constructive possession (that is, the defendant themselves need not have possessed the gun; it will be sufficient for a co-defendant in a drug conspiracy to have possessed the firearm) will suffice to trigger these provisions. In the case of firearm possession or presence in the vicinity, one conviction will result in a further five year mandatory sentence. Each subsequent conviction carries a twenty five year mandatory sentence. Each subsequent conviction must be consecutively served. This can result in a scenario where a defendant ends up serving more time on mandatory firearm enhancements than on their underlying drug conviction. For example, in the case of United States v. Washington 301 F.Supp.2d 1306 (M.D. Ala, 2004), a twenty two year old was sentenced to a total term of imprisonment of forty years, thirty years of which were § 924 enhancements. The court found that this sentence was “irrational” and “unjustifiable”, but also that they had “no choice”.[2] It has once again been suggested that prosecutors will use the threat of such an outcome to try to force defendants to enter a plea of guilty instead of going to trial. For this reason, it is essential that defendants facing such mandatory enhancements have an experienced attorney, to aid negotiations with the prosecution, and attempt to keep such enhancements from going before the court.

A further tool which prosecutors can use to ‘force’ a plea of guilty stems from the charges that they choose to file against a defendant. For example, a prosecutor can threaten to file a charge that carries with it a mandatory minimum sentence, and agree to amend the charges to charges that do not if the defendant enters a plea of guilty. An experienced defence attorney is essential in navigating this process, as the charges that are filed against a defendant can clearly have a significant impact on the potential sentence facing a defendant.

Sentence Appeals:

There is limited scope for an appeal against a sentence imposed by a Federal district court to an appellate court. As set out by Gall v. United States (reference above), the only considerations which an appellate court can make are – (1) considering whether the district court correctly calculated the guideline range of any given offence, and – (2) determining whether the ultimate sentence was reasonable, in light of all of the circumstances including relevant departures and variances. Given the statutory nature of sentences for drug offences, there is very little wiggle room in determining a sentence to be imposed in the first place, and therefore an appeal has a limited capacity for success. For this reason, it is essential that any defendant facing drug charges retain an experienced attorney to take their case before a sentence is imposed.

Credit:

http://www.alternet.org/drugs/plead-guilty-or-go-prison-life-how-federal-drug-offenders-are-punished-seeking-trials

http://www.hrw.org/sites/default/files/reports/us1213_ForUpload_0_0.pdf

http://www.ussc.gov/Guidelines/2013_Guidelines/Manual_PDF/2013_Guidelines_Manual_Full_Optimized.pdf


[1] United States v. Kupa WL 5550419 (EDNY, 2013).

[2] United States v. Washington 301 F.Supp.2d 1306 (M.D. Ala, 2004),

Animal Cruelty Criminal Charges (Cockfighting etc.)

February 10th, 2014 by MJG

Animal Cruelty Criminal Charges (Cockfighting Etc.)

(by Laura Monagle)

The Organized Crime Task Force this week made the biggest cockfighting bust in New York history, a bust involving 3000 birds. Two fights were raided simultaneously over the weekend in Brooklyn and Queens, in which investigators found birds incarcerated in tiny cages containing razors blades. The seventy individuals present at the two fights were arrested, although all but seven were released without charges. 115 birds were removed from the two locations.

http://nypost.com/2014/02/10/70-arrested-in-new-yorks-largest-ever-cockfighting-bust/

Concurrent to the bust of the fights was a raid on an upstate farm, from which over 3000 birds were rescued.

Charges relating to animal cruelty are governed by Article 26 of the New York Agriculture and Markets Law. Media reports stated that the individuals faced only charges of animal fighting, which come under § 351(2): any person who engages in any of the following conduct is guilty of a felony punishable by imprisonment for a period not to exceed four years, or by a fine not to exceed $25,000, or by both such fine and imprisonment – (a) for amusement or gain, causes any animal to engage in animal fighting, or – (b) trains any animal under circumstances evincing an intent that such animal engage in animal fighting for amusement or gain, or – (c) breeds, sells or offers for sale any animal under circumstances evincing such an intent that such animal engage in animal fighting, or – (d) permits any act described in paragraph (a), (b) or (c) of this subdivision to occur on premises under his control, or – (e) owns, possesses or keeps any animal trained to engage in animal fighting on premises where an exhibition of animal fighting is being conducted under circumstances evincing an intent that such anima engage in animal fighting. It was reported that six of the men charged had brought cocks to the fights, and as such this activity would come under the above-mentioned sub-section (a). Thus the six men face felony charges, and up to four years imprisonment. The seventh individual was also charged with animal fighting charges, but the specifics of this arrest were not made public.

Cockfighting rings are often associated with the commission of other crimes. Depending on the facts of the case, the individuals who were charged could also face charges such as enterprise corruption (New York Penal Law § 460.00 et seq.)(‘NYPL’), money laundering (NYPL § 470), and/or gambling-related offenses (NYPL § 225).

The above charges are all very serious, and anyone facing such charges should contact an experienced attorney to handle their case. 

 

 

Vehicular Manslaughter Defense Attorney explains New York vehicular injury charges

February 6th, 2014 by MJG

Blog – Vehicular Manslaughter:

Mayor De Blasio’s ‘Vision Zero’ campaign aims for zero traffic related deaths within ten years. The campaign focuses particularly on pedestrian fatalities resulting from traffic accidents.

http://pix11.com/2014/01/15/mayor-de-blasio-launches-vision-zero-program-aimed-at-preventing-pedestrian-fatalities/#axzz2sI0z3H6l

All road users need to keep in mind while contemplating the changes being implemented as part of the Mayor’s initiative that not only could death and serious injury occur as a result of one’s driving, but those who cause accidents (both fatal and non-fatal) could also face a multitude of very serious criminal charges.

The most serious charges relating to vehicular accidents are contained in the New York Penal Law (‘NYPL’). These include assault, vehicular assault, criminally negligent homicide, aggravated criminally negligent homicide, vehicular manslaughter, and aggravated vehicular homicide.

Vehicular Manslaughter Defense Attorneys explains New York vehicular injury charges

NYPL §120.10(3) sets out the assault provision relating to use of a vehicle: a person is guilty of assault 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, and thereby causes serious physical injury to another person.  Driving with a “depraved indifference to human life” could include deliberately driving at high speed down the wrong lane or direction of traffic, for example.

NYPL §120.03 and 120.04 set out the offenses of vehicular assault, in the second and first degree (respectively). Each offense has several sub-sections. Vehicular assault in the second degree can be made out if an individual causes serious injury to another person: while driving a motor vehicle under the influence of drugs and/or alcohol; operates a motor vehicle weighing more than 18,000 pounds containing flammable gas, radioactive materials or explosive (which then cause the injury) while under the influence of alcohol; operates a snowmobile or all-terrain vehicle (‘ATV’) on a street, highway, public trail, or private property of another while under the influence of drugs and/or alcohol. Vehicular assault in the second degree is a class E felony, and anyone charged under this section faces four years imprisonment. Vehicular assault in the first degree can be made out if an individual causes serious injury to another person while committing vehicular assault in the second degree and has either: a blood alcohol level of more than 0.18; with the knowledge that their license is suspended or revoked based on either a conviction for driving under the influence of drugs and/or alcohol, or a failure to submit to testing for such; has a conviction for driving under the influence of drugs and/or alcohol within the previous ten years; causes serious injury to more than one person, has a previous conviction under §125 involving the operation of a motor vehicle; or commits such a crime with a child under the age of fifteen years as a passenger who is injured as a result. Vehicular assault in the first degree is a class D felony, and anyone charged under this section faces seven years imprisonment.

NYPL §125.10 sets out the offense of criminally negligent homicide: a person is guilty of criminally negligent homicide when, with criminal negligence, they cause the death of another person. NYPL §15.05(4) defines criminal negligence as: a person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when they fail to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature a 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. Criminally negligent homicide is a class E felony, and anyone charged under this section faces four years imprisonment.

NYPL §125.11 sets out the offense of aggravated criminally negligent homicide: a person is guilty of aggravated criminally negligent homicide when, with criminal negligence, they cause the death of a police officer or peace officer where such officer was in the course of performing their official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer. Aggravated criminally negligent homicide is a class C felony, and anyone charged under this section faces fifteen years imprisonment.

NYPL §125.12 and 125.13 set out vehicular manslaughter in the second and first degree (respectively). Vehicular manslaughter is made out when an individual causes the death of another in the same circumstances as set out above relating to vehicular assault in the second degree. Vehicular manslaughter in the second degree is a class D felony, and anyone charged under this section faces seven years imprisonment. Vehicular manslaughter in the first degree is made out when an individual causes the death of another in the same circumstances as set out above relating to vehicular assault in the first degree. Vehicular manslaughter in the first degree is a class C felony, and anyone charged under this section faces fifteen years imprisonment.

NYPL § 125.14 sets out the offense of aggravated vehicular homicide is a more complicated offense, which involves a driver being under the influence of drugs and/or alcohol, while committing vehicular manslaughter in the second degree, and one of the circumstances as set out above relating to vehicular assault in the first degree, (or the additional circumstance of causing the death of one person and serious physical injury to at least one other person). Aggravated vehicular assault is a class B felony, and anyone charged under this section faces twenty-five years imprisonment.

Depending on the severity of the incident, individuals could even more serious charges, such as manslaughter in the second degree, as set out in NYPL §125.15(1): a person is guilt of manslaughter in the second degree when they recklessly cause the death of another person. ‘Recklessness’ is defined in §15.05 (3) as: when a person is aware of and consciously disregards a substantial and unjustifiable risk. 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. Manslaughter in the second degree is a class C felony, and anyone charged under this section faces fifteen years imprisonment.

The lesser charges that an individual could face after having been involved in a traffic accident including leaving the scene of an accident, and reckless driving. These are both contained within the New York Vehicle and Traffic Law (‘VTL’).

VTL § 600 sets out the offense of leaving the scene of an accident. This offense is split into accidents resulting in property damage, and accidents resulting in personal injury. With regards to property damage (whether to real or personal property) as a result of the operation of a motor vehicle, as set out in sub-section (1): failing to stop, exhibit your license and insurance identification card for your vehicle, and give your name, address, insurance provider and identification information including but not limited to number and expiry dates, as well as license number, person sustaining the damage (or in their absence, as soon as physically possible to the nearest police station or judicial officer) is a traffic infraction. Anyone charged under this section faces a fine of $250 and/or imprisonment for fifteen days. With regards to personal injury, as a result of the operation of a motor vehicle, is required under sub-section (2) to provide the same information as listed above to the injured party if practical, and also to a police officer. If there is no police officer on the scene, the driver must report to accident as soon as physically possible to the nearest police station of judicial officer. Depending on the particular violation of this sub-section, individuals charged face different penalties. If the violation is the result of a failure to show one’s license or insurance identification, or exchange any of the required information, this is a class B misdemeanour, and anyone charged under this section faces a fine of $250-500. Any subsequent violation of the same nature is a class A misdemeanour, and anyone charged under this section faces a fine of $500-1000 in addition to possible imprisonment. Any such violation of a person with a previous conviction for the same is a class E felony, and anyone charged under this section faces a fine of $1000-2500 in addition to possible imprisonment. Any violation other than a mere failure to produce one’s license or insurance identification card in which personal injury of a serious nature results is a class E felony, and anyone charged under this section faces a fine of $1000-5000 in addition to possible imprisonment. The same scenario as the latter, resulting in death (instead of serious personal injury) is a class D felony, and anyone charged under this section faces a fine of $2500-5000 in addition to possible imprisonment.

VTL §1212 sets out the offense of reckless driving: driving or using any motor vehicle, motorcycle or any other vehicle in a manner which unreasonably interferes with the free and proper use of a public highway, or unreasonably endangers users of a public highway. Violation of this section is a misdemeanour, and can result in a fine and/or imprisonment.

It is worth noting that defendants often face all possible charges relating to a fatal traffic accident. In the 1999 case of People v Hart, the defendant (whose son was killed in a collision with another vehicle) was found guilty of manslaughter in the second degree, vehicular manslaughter in the first degree, reckless driving, careless reckless and negligent operation of an ATV, operating an unregistered ATV, operating an ATV on a highway, and operating an ATV without a helmet.[1] The defendant had originally been charged with 14 counts of driving related offenses. The defendant was sentenced to 15 years imprisonment (and as such, assuming the defendant served the entirety of his sentence, he should be being released from prison sometime this year).

If you or a loved one are facing serious criminal charges arising out of a traffic accident in which death or serious injury resulted, you should contact an experienced criminal defense attorney to assist with their case. We suggest you contact the aggressive former prosecutors at Galluzzo & Johnson LLP to set up an appointment.


[1] People v Hart 266 A.D.2d 698 (Appellate Division, 3d Dept, 1999).

Oxycodone Defense Lawyer discusses recent Bronx arrests

February 6th, 2014 by MJG

Federal Oxycodone Defense Lawyer discusses recent Bronx ring arrest

February 5, 2014: Federal agents and NYPD arrest dozens of members of purported illegal Oxycodone trafficking ring involving Astramed clinics.

We have previously written about state-level prosecutions of illegal oxycodone and oxycontin trafficking, and have represented many individuals charged in investigations into this crime.  But today,  the New York Post reported that on February 5, federal agents and the NYPD arrested approximately 24 people in connection with indictments for conspiring to traffic illegal prescription drugs. Specifically, it is alleged that numerous doctors – at least some associated with the Astramed physicians’ clinic in the Bronx – wrote prescriptions for Oxycodone for people that they knew did not need them or intend to use them, and that these individuals then filled these prescriptions and gave the pills to traffickers for resale. All in all, it is alleged by the prosecutors that over a half billion dollars worth of illegal Oxycodone was purchased and trafficked into the black market in this fashion.

It may be that many of the individuals involved in this operation were in legitimate need of prescription medication and in fact committed no crimes, and it remains to be seen whether the doctors that wrote the prescriptions actually knew that they were furthering a criminal enterprise instead of simply writing prescriptions that they believed were medically necessary. Interestingly, under federal conspiracy laws, the individuals that obtained the phony prescriptions from the purportedly corrupt doctors could be charged with the same crimes as the doctors that knowingly wrote the false prescriptions or the drug dealers that ultimately resold the illegal pills, though they are likely to be able to receive shorter jail sentences for having played smaller roles in the operation.

Oxycodone is a Schedule II controlled substance under the United States Controlled Substance Act. We suspect that the applicable charge contained in the federal indictment is a violation of 22 USC 841(a), with penalties described under 22 USC 841(b)(1)(C). Notably, it appears that at least one or two individuals have also been charged in New York State Supreme court with similar state-level charges.

If you or a loved one have been arrested in connection with this criminal investigation, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson. They have significant experience successfully defending individuals in large-scale conspiracy cases and in prescription drug conspiracy cases.

Arrests for Selling Fake Tickets and Ticket Scalping

February 3rd, 2014 by MJG

Arrests for Selling Fake Tickets and Ticket Scalping:

(Credit: Laura Monagle)

With the Super Bowl just around the corner, the problem of ticket scamming has been heavily reported in the media. It was reported this week that two men were caught selling fake Super Bowl tickets to fans for thousands of dollars.

http://nypost.com/2014/01/28/cops-bust-super-bowl-ticket-scammers/

While the internet has created a market for the selling of second hand tickets, individuals caught selling phony tickets face criminal prosecution. New York Penal Law (‘NYPL’) §170 sets out the offences relating to forged items.

Counterfeit Super Bowl tickets would come under the 170.00 (1) definition of a ‘written instrument’: any written instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person; or the sub-section (2) definition of a ‘complete written instrument’: one which purports to be a genuine written instrument fully drawn with respect to every essential feature thereof. Sub-section (7) defines a ‘forged instrument’ as: a written instrument which has been falsely made, completed or altered.

The two men arrested in this week’s Super Bowl ticket bust face multiple charges, including forgery and criminal possession of a forged instrument.

NYPL sets out the offenses relating to forgery in § 170.05 (forgery in the third degree) and § 170.10(1) (forgery in the second degree) which would be relevant to the making of counterfeit tickets. Forgery in the third degree relates to making/altering a written instrument with the intent to deceive or defraud. Forgery in the second degree relates to the same act, with respect to a commercial instrument (that is, a ticket to an event). It is likely that with regards to the Super Bowl tickets in this case, and in any similar case, that an individual would be charged in the second degree, as the penalty is higher. Forgery in the third degree is a class A misdemeanor, and anyone charged under this section faces one year imprisonment. Forgery in the second degree is a class D felony, and anyone charged under this section faces seven years imprisonment.

Individuals who are found with fake tickets on their person face charges relating to criminal possession of a forged instrument. NYPL § 170.20 (criminal possession of a forged instrument in the third degree) and § 170.25 (criminal possession in the second degree) are the relevant provisions. If an individual has been charged with forgery in the second degree, it is likely that they will also be charged with criminal possession of a forged instrument in the second degree, which also requires that the instrument be a commercial instrument. Criminal possession of a forged instrument in the third degree is a class A misdemeanor, and anyone charged under this section faces one year imprisonment. Criminal possession of a forged instrument in the second degree is a class D felony, and anyone charged under this section faces seven years imprisonment.

The two men arrested this week, who sold individual Super Bowl tickets for $1,500 each, could face charges of grand larceny in the fourth degree, under § 155.30 (1): stealing property (money), the value of which exceeds one thousand dollars. NYPL § 155.05(2)(a) allows for larceny by way of trick (fake tickets). Grand larceny in the fourth degree is a class E felony, and anyone charged under this section faces four years. Attempted grand larceny (under § 110.00, an ‘attempt’ is engaging in conduct with intent to commit a crime which tends to effect the commission of the crime) is a class A misdemeanor, and anyone charged under this section faces one year imprisonment.

Sale of counterfeit tickets could also result in charges of fraudulent accosting, under NYPL § 165.30. Sub-section (1) states that a person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud them or money or other property by means of a trick, swindle or confidence game. This sub-section clearly only relates to ticket scalping in a public place. Fake tickets would seem to be sufficient to constitute a trick or swindle. Fraudulent accosting is a class A misdemeanor, and anyone charged under this section faces one year imprisonment.

In addition to the above charges, individuals who are caught ticket scalping could face charges under the Arts and Culture Affairs Law (‘ACA Law’). ACA Law § 25.09 states that any person who is in violation of §25.13 (sale of tickets without a license) will be guilty of ticket speculation. Ticket speculation is a class A misdemeanor, and anyone charged under this section faces one year imprisonment.

Given the heavy penalties associated with these offenses, individuals charged with any of the above offenses should contact an experienced attorney to handle their case.   

Applying for a U-Visa (for Crime Victims)

January 30th, 2014 by MJG

Applying for a U-Visa (for Crime Victims)

(by Laura Monagle)

In 2008, the United States government began issuing U-Visas, a non-immigrant visa for victims of crime who have assisted with a criminal investigation and/or prosecution.

The intention behind the introduction of this visa was to increase the incentive for victims of crime to come forward, without fear of deportation. Congress particularly had in mind female victims of domestic abuse, who do not report the violence against them because of their undocumented status.

The US government grants a maximum of 10,000 U-Visas a year, and since its inception has received an ever increasing number of applications for such visas. Because of the sensitive nature of such applications, the government strongly advises applicants to seek legal advise before making a formal application. Galluzzo & Johnson has experience in this area of the law, and could assist an applicant throughout this process.

There are four requirements for a U-Visa, set out below:

  1. The immigrant suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity.
  2. The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity.
  3. The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity, and
  4. The criminal activity violated the laws of the United States or occurred in the United States.

The applicant must have been the victim of one of the following crimes (or a substantially similar crime): rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above. It is not necessary for a criminal conviction to be recorded.

Applicants can be either direct (suffered direct harm as a result of the crime) or indirect (the spouse or child under 21 of the direct victim; the parents and unmarried siblings under 18 of a direct victim under 21 who is deceased due to murder or manslaughter, or incompetent or incapacitated) victims of the crime.

In order to determine whether substantial harm has been suffered, the following factors will be considered:

  • The nature of the injury inflicted or suffered.
  • The severity of the perpetrator’s conduct.
  • The severity of harm suffered.
  • The duration of infliction of harm.
  • The extent to which there is permanent or serious harm to appearance, health, or physical/mental soundness, including aggravation of pre-existing conditions.

In addition to the above criteria being made out, an applicant for a U-Visa is required to file a Form I-918, certifying their assistance in the criminal investigation and/or prosecution of a crime. This form must be certified by either a federal, state or local law enforcement officer, or a judge investigating or prosecuting the criminal matter. It must be kept in mind that while there is no statute of limitations regarding when the crime was committed (ie. an applicant will not be rejected because of how long ago the crime occurred), the Form I-918 must have been certified within the 6 months preceding the U-Visa application filing.

U-Visas are subject to the grounds for inadmissibility set out in §212(a) of the Immigration and Nationality Act (‘INA’). The most commonly problematic of these is the undocumented status of the applicant, however, the applicant can apply for a waiver of this ground of inadmissibility. Other grounds of inadmissibility include criminal convictions/admissions of criminal activity (including prostitution), health related grounds, and previous deportations. All of the grounds of inadmissibility listed in the INA have the potential to be waived (except for those relating to Nazi persecution, genocide, torture and extrajudicial killing). The grounds of inadmissibility make clear the sensitive nature of a U-Visa application, and thus the need for an experienced attorney to assist in making the application.

Individuals who are already involved in deportation proceedings are not excluded from applying for a U-visa.

A successful applicant for a U-Visa can receive a visa for a maximum of four year. After three years, a holder of a U-Visa is permitted to apply for a green card, the first step towards achieving citizenship (a green card holder becomes eligible for citizenship after five years of holding a green card).

There are some risks involved with applying for a U-Visa, particularly for those of undocumented status. The application process involves providing truthful information regarding the applicant’s contact information, as well as their immigration status (even if undocumented). A full background check is completed as part of the application process. This does expose the applicant to deportation proceedings, if immigration were to forward this information to the Department of Homeland Security. However, it is important to remember that undocumented persons are always at risk of having deportation proceedings instigated against them.

If you are the victim of a crime who qualifies for a U-Visa, consider contacting the offices of Galluzzo & Johnson LLP to assist you with the application process.

Credit: http://immigrantjustice.org/sites/immigrantjustice.org/files/U%20visa%20manual%202013%2005.pdf