New York Criminal Defense Blawg

Criminal arrests are upsetting to everyone but can be particularly problematic for financial and securities professionals because of the possible employment and licensure consequences.  Brokers, traders, bankers, financial advisors, and other financial professionals typically have to be licensed through FINRA, the Financial Industry Regulatory Authority.  Some of the most common licenses include Series 7 and Series 63, but there are many.  For those licensed professionals, criminal arrests and convictions may trigger updating of the U4 FINRA form.   (Note: Employers may also have company policies requiring disclosures above and beyond what is required by FINRA).  The registration form demands the following questions:

Over the course of the last four days, the NYPD arrested 141 people in New York City as part of “Operation Take Back” .  Basically, undercover officers approached people on the sidewalk and offered to sell them Apple products (iPhones and iPads) at deeply discounted prices.  Those people that purchased the goods were then charged with Attempted Criminal Possession of Stolen Property (Penal Law Section 110/165.40), a Class B misdemeanor, under the theory that they were knowingly attempting to acquire stolen iPhones or iPads.  Many of those people that were arrested received ACD’s (adjournments in contemplation of dismissal) at arraignments, but not after spending 24 hours or more in jail.  In many ways, the operation calls to mind the widely-criticized “Operation Lucky Bag” from earlier this year.

In our view, many of these arrests probably constitute entrapment by the police.  After all, there is not likely to be any evidence that any of the arrested people had any predisposition to purchase stolen iPhones or iPads, or that they were actively seeking to do so. Entrapment is a defense to a criminal charge whereby the accused argues that he would not have committed the crime but for police action.  The specific elements of the defense are available here.  Moreover, we are hearing reports that at least some of the arrested people had no reason to believe that the iPhones or iPads were stolen, as undercover officers told them that they owned the Apple products and urgently needed to sell them to make money.  If true, these police officers, in our view, acted outrageously and created false reasons to make improper arrests of law-abiding people.   (We doubt that any of these officers were actually wearing wires to record their conversations with their targets, precisely for this reason).  Accordingly, those victims of the police misconduct should contact civil rights attorneys to file lawsuits against the NYPD for false arrest and other violations of their constitutional rights.

If you or a loved one were arrested as part of “Operation Take Back,” you should seriously consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  Their team of former Manhattan prosecutors can help you defend against criminal charges from these arrests of file lawsuits on your behalf against the NYPD for false arrest.

For the English version of this post, click here.

Como ex fiscales que ahora practican la defensa criminal, colectivamente hemos tratado con cientos de casos de drogas en los ultimos años. Cada uno de nosotros a visto personas de todos los orígenes y profesiones, entrar por las puertas tribunales para enfrentar cargos de drogas. Si la persona es detenida y “procesado por el sistema” o ha zido otorgado una multa (Desk appearance ticket “D.A.T.”)   que requiere aparecer frente ha un juez, para tener que volver al Tribunal en una fecha posterior, la experiencia puede ser desgarradora y las consecuencias embarazosa,  y incluso puede afectar la carrera y la vida familiar de esa persona.  El detalle mas importante que usted deve de saber es la importancia de tener un buen abogado. Hay cosas que un abogado puede hacer para amortiguar el golpe de una detención de drogas y reducir al mínimo las consecuencias perjudiciales que puede tener en su vida, tanto personal como profesional. Este blog se ocupa de casos de pequeñas cantidades de cocaína (otros puestos ocupan cargos de felonía y peso más graves), pero es importante recordar que no importa cuán pequeña es la cantidad de cualquier droga, siempre y cuando haya suficiente residuo de la sustancia que el NYPD pueda probar, un cargo por posesión de drogas puede ser trasmitido  en contra de usted. Lo que puede parecer residuo,  puede ser suficiente para la aplicación de la ley, y usted puede ser condenado con  un delito de cargo/delito menor clasificado A (misdemeanor, class A.)

Posesión de drogas de delito menor: si ha zido otorgado una multa (Desk appearance ticket “D.A.T.”). por tenencia simple de drogas, es más probable es que los cargos que enfrente sean:

Posesión de s 220.03 Penal de una sustancia controlada que figura en el séptimo grado.

Una persona es culpable de posesión criminal de una sustancia controlada

al séptimo grado cuando a sabiendas e ilegítimamente posee una sustancia controlada.

Posesión criminal de una sustancia controlada que figura en el séptimo grado es una

Un delito menor de clase A (misdemeanor). Una multa de este tipo no significa que los cargos no son serios, si no que tiene que presentarse en una corte distinta. Asi que no ignoren esas multas.

Siendo  la pocesion de sustancia controlada pequeña,  un delito de clase “A”, pueden hecharle hasta 1 año de cárcel, es imprescindible ponerse en contacto con un abogado inmediatamente y presentarse ante la corte en la fecha programada,  en caso de que usted no se presente, una orden para su arresto sera transmitida y girada. Como puede ver, las sanciones por incluso una pequeña cantidad de cocaína pueden ser severos…

El elemento de “posesión” es obviamente muy fácil de demonstrar si un oficial encubierto o policía observa ha una persona que posee la sustancia.  En la ciudad de Nueva York, nosotros vemos estos casos todo el tiempo. A menudo la policía observa a personas en vehículos o caminando por la calle oliendo cocaína de lámina de estaño, esto proporcionará causa inmediata para detener y encarcelar a la persona – y suele dejar a la policía con un caso muy fuerte. Otras veces los oficiales encubiertos en bares o restaurantes son testigos que ven a personas compartiendo una cantidad de cocaine, ellos pueden detener a todas las personas que tocan la sustancia. En los casos donde alguien tira al suelo o abandona una cantidad de cocaína, detectives o policía aún serán capaz de establecer un cargo de posesión de drogas, una vez que recuperan la sustancia y está confirmado que contienen una sustancia controlada. Por último, si la policía hace algunas observaciones que les dan una razón para sospechar que tienes drogas en tu bolsillo o en una bolsa, pueden detener te y recuperar esa sustancia (por ejemplo, donde observan que compraste de un vendedor momentos antes).

Después son detenidos o emitió un D.A.T., cualquier sustancia recuperada de TI o de un área que se observa lanzando pondrá a prueba por el laboratorio NYPD para confirmar lo que es, y lo suficiente de la sustancia existe para confirmar que en realidad es cocaína. Si tienen motivos para creer que puede haber suficiente de la droga para mantener un cargo de delito grave, la policía también pesará la sustancia. Si es por lo menos 500 miligramos, se abriran un número de cargos de posesión de drogas de felonía en contra suyo, donde las apuestas son mucho mayores.

Aunque hay formas de luchar contra un caso de posesión de drogas (desafiando las razones que la policía se detuvo y le buscaron) es el principal objetivo si un billete de apariencia del escritorio o arrestado por posesión de drogas de delito menor evitar la imposición de un récord criminal permanente. Durante años hemos asistido profesionales, abogados, empresario: personas de todas las profesiones, para evitar el perjuicio de incurrir en un récord criminal. Hay cosas que podemos hacer para ayudar, por lo que es imprescindible ponerse en contacto con un abogado criminal experimentado que puede guiarle por el proceso y ayudarle a lograr el mejor resultado posible.

ESPN.com is reporting that Syracuse police are re-opening an investigation into allegations that a Syracuse University assistant basketball coach molested two underage ballboys beginning in the 1970s. The story reports that the criminal statute of limitations – or the deadlines for bringing a criminal case against someone – is five years. That is only somewhat accurate as the statutes of limitation for child-related sex abuse crimes are complicated and depend upon the nature of the criminal act. Criminal Procedure Law Section 30.10 sets forth the applicable criminal statutes of limitation. New legislation passed in 2006 changed many of these statutes of limitation for sex crimes. Now, there is no deadline for bringing cases of Rape in the First Degree (Penal Law 130.35), Aggravated Sexual Abuse in the First Degree (Penal Law Section 130.70), or Course of Sexual Conduct in the First Degree (Penal Law Section 130.75), which are all Class B violent sexual felonies. In cases involving other sex crimes against children, there is a five-year statute of limitation that begins upon the victim turning 18 (meaning that the deadline would be the person’s 23rd birthday). See Criminal Procedure Law Section 30.10[3][f].  It is unclear what exactly Bernie Fine is alleged to have done with these two ball-boys, Bobby Davis and Mike Lang, but according to the complaints, the victims were under the age of 13 and Fine was an adult.  Thus, the charges above could potentially apply, but there are many others that might apply that would be too old to pursue.

A look now at the potential charges without a statute of limitation in New York:

A person is guilty of Rape in the First Degree (Penal Law Section 130.35) if he or she engages in sexual intercourse with another person: 1. by forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more.

“Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight. See Penal Law Section 130.00(1).  By “ordinary meaning,” the statute means vaginal intercourse.

“Forcible compulsion” means to compel by either: a) use of physical force, or b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. See Penal Law Section 130.00(8).

“Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. This term often applies in cases involving “date rape” drugs, such as rohypnol. See Penal Law Section 130.00(7).

A person is guilty of Aggravated Sexual Abuse in the First Degree (Penal Law Section 130.70) when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person: a) by forcible compulsion; b) When the other person is incapable of consent by reason of being physically helpless; or c) When the other person is less than eleven years old.

A person is guilty of Course of Sexual Conduct Against a Child in the First Degree when, over a period of time not less than three months in duration: a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than eleven years old; or b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

“Oral sexual conduct” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. See Penal Law Section 130.00(2)(a).

“Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus. See Penal Law Section 130.00(2)(b).

“Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission or ejaculate by the actor upon any part of the victim, clothed or unclothed. See Penal Law Section 130.00(3).

“Aggravated sexual contact” means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child. See Penal Law Section 130.00(11).

“Sexual conduct” means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact. See Penal Law Section 130.00(10). Thus, in determining whether the statute of limitations might have run in the Syracuse case, the police will have to determine whether the witnesses are credible, what their ages were at the time of the crimes, and the number and nature of the acts committed against them. In short, though, Bernie Fine is probably safe from criminal prosecution by virtue of the states of limitation unless there is a finding that he committed a forcible act or an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact.

If you are a victim of rape or sexual abuse, or if you have been falsely accused of having committed one of these crimes, then you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson LLP. Matthew Galluzzo, in particular, was a prosecutor in the famous Sex Crimes Unit at the Manhattan District Attorney’s Office, and now represents victims in civil lawsuits against their abusers, as well as innocent criminal defendants. Give them a call today to discuss your case and determine whether they can be of assistance to you.

On November 17, thousands of protesters massed in or about the Wall Street area as part of the Occupy Wall Street movement.  The NYPD was prepared and sent hundreds of officers to the area in anticipation of several scheduled protests.  Many of the protesters were arrested and are currently being processed for various misdemeanors and violations.  We understand that most of the protesters are being charged with the following crimes: Obstructing Governmental Administration in the Second Degree (Penal Law 195.05, a Class A misdemeanor), Resisting Arrest (Penal Law 205.30, a Class A misdemeanor), and Disorderly Conduct (Penal Law 240.20, a violation).  These misdemeanor charges are potentially punishable by up to one year in jail, and the Disorderly Conduct violation is punishable by up to 15 days in jail.

We have heard reports that most of the protesters that have been arrested throughout the Occupy Wall Street movement are being offered ACD’s (adjournments in contemplation of dismissal) or Disorderly Conduct at arraignment, but most of the protesters are rejecting those plea bargains.  We expect that the protesters are rejecting those offers both out of principal and as a means to preserve their civil lawsuits against the city.  Obviously, a false arrest and malicious prosecution civil lawsuit cannot be meaningfully pursued against the City of New York by someone that pleaded guilty to Disorderly Conduct, because that plea would justify the arrest and prosecution.  (In contrast, the acceptance of an ACD may or may not preclude a lawsuit).

A person is guilty of Obstructing Governmental Administration in the Second Degree when he “intentionally obstructs, impairs, or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor’s intent that the animal obstruct governmental administration.”

A person is guilty of Resisting Arrest (Penal Law Section 205.30) when “he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.”  An “authorized arrest” has to be a lawful arrest; we expect that many of the protesters will (and should) argue that their arrests were unlawful because they were simply exercising their First Amendment rights to engage in political discourse.

There are several subsections of Disorderly Conduct (Penal Law Section 240.20), meaning that one can be guilty of this violation in numerous ways (and we expect the police and prosecutors to charge each defendant with violating multiple sections of this violation at a time).  The statute reads that a person is guilty of this charge when, “with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2.. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.”

In our opinion, we think that these Disorderly Conduct charges could be defeated in numerous ways. A protester could argue that he had no intent to cause public annoyance or alarm, but was instead only intending to cause political change and make a political statement.  Also, a protester could argue that the arrests were unlawful violations of their civil rights.

Interestingly, we think that protesters charged with misdemeanors would have a better chance at trial.  The reason for this is that people charged with Class A misdemeanors have the right to jury trials.  Given the number of people in NYC that sympathize with the Occupy Wall Street protesters, we think that prosecutors might have difficulty convincing jurors to convict a protester, regardless of the merits of the proof.  In contrast, those protesters charged with Disorderly Conduct violations are not entitled to juries, and would be tried by (most likely) less-sympathetic judges.   Don’t be surprised if prosecutors reduce the Class A misdemeanor charges in these protest cases to Class B misdemeanors (Attempted Obstructing Governmental Administration in the Second Degree, Penal Law Section 110/195.05, or Attempted Resisting Arrest, Penal Law Section 110/205.30).  That reduction does not significantly change what the prosecutors have to prove, but it allows the prosecutors to try the cases without juries (because the defendants do not have the right to a jury trial for Class B misdemeanors).  The upshot for the defendants is that the maximum jail penalty for a conviction for a B misdemeanor is 90 days rather than one year.

If you or a loved one were arrested pursuant to the Occupy Wall Street movement, you should consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  You absolutely need an attorney that understands how the criminal case and a potential civil lawsuit are intertwined, and the aggressive former prosecutors at Galluzzo & Johnson LLP are experienced in both fields.  Give them a call to schedule a consultation about your case and to discuss your possibility remedies.

There are three separate menacing statutes in New York, each specifying a different gravity of offense.  Menacing is often paired with Stalking (Penal Law section 120.45) and Aggravated Harrassment (Penal Law section 240.30) charges, but can be charged as a standalone offense.

The basic charge is Menacing in the third degree (Penal Law section 120.15) is defined as follows:

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.  Menacing in the third degree is a class B misdemeanor.

Menacing in the Second Degree (Penal Law section 120.14) is an example of a bump-up type charge.  There are three distinct aggravating factors which serve to elevate the charge to a class A misdemeanor, punishable by up to one year in jail.  These are (i) committing a third-degree menacing charge by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm (PL 120.14(1); (ii) by following a person or engaging in a course of conduct or repeatedly committing acts over a period of time which constitute a third-degree menacing charge (PL 120.14(2); and (iii) committing a third-degree menacing charge in violation of a duly served order of protection or stay-away order from a judge (PL 120.14(3).

Finally, there is a felony charge which bumps up a second-degree menacing charge where the person has been convicted of another second-degree menacing charge or the crime of menacing a police officer (PL 120.18) within two years of the commission of the present alleged offense.

Interestingly, the law was passed in 1994 and put into effect in 1995, to close what the legislature perceived to be a loophole in the anti-domestic violence laws and was passed as part of the “family protection and domestic violence intervention act of 1994.”  The law has been applied, however, to a variety of situations, not just those involving domestic violence or incidents between people who have had intimate access in the past, i.e. the ex-boyfriend/ex-girlfriend scenario.  For example, in Matter of Jason R. G., 23 A.D.3d 656 (2d Dep’t 2005), a person was prosecuted for chasing and threatening another person on the street with a knife.  In People v. Silva, 178 Misc.2d 538 (Bx. Co. Ct. 1998), a Bronx conviction was upheld where the defendant had threatened a police officer while touching his waistband after a drug-related conversation.

However, not all allegedly threatening conduct will constitute a violation.  In People v. Nwogu, 22 Misc.3d 201 (Qns. Co. Ct. 2008), Judge Lopresto held that a misdemeanor information was facially insufficient where it merely alleged that the defendant stood up and stated “I am going to blow up,” and that after he did so, a complainant observed the handle of a knife protruding from the defendant’s waistband.   The judge held that the defendant’s words were not directed at anyone in particular (which was required under the statute) and that nobody could have been placed in fear of death, imminent serious physical injury, or physical injury by merely observing the knife handle.  Moreover, the court held, there were insufficient allegations that the defendant intended to display the weapon, as any display as alleged in the complaint was inadvertent.  Moreover, proof of an injury alone will not suffice to validate a Menacing charge.  See Matter of Anisha McG., 27 A.D.3d 749 (2d Dep’t 2006).

If you have been arrested for this offense, you should speak with a menacing, stalking or aggravated harrassment lawyer in New York City.

Of those who are arrested in Manhattan for shoplifting and directed to appear in Midtown Community Court, we often encounter clients who fail to take the situation they are in seriously. These clients are arrested and issued Desk Appearance Tickets (D.A.T.s) and then released without going through the unpleasant experience of being transported to Central Booking. As we’ve stressed before in prior blogs, the D.A.T. is to be taken seriously – this blog deals specifically with appearance tickets issued in cases involving shoplifting where defendants are directed to appear in Midtown Court, located at 314 West 54th Street.

In the typical shoplifting case, the defendant is observed by store security guards (usually on camera in larger department stores such as Bloomingdale’s and Macy’s) either conceal merchandise openly on camera, or go to an area of the store where the cameras cannot film them and secret the items on their person, only to emerge seemingly empty-handed. Store security stops the individuals before they exit the store without paying (the law doesn’t require that they actually make it out of the store – a larceny only requires a “moving” of the property with an intent to permanently deprive the owner of it) and the police are notified. Usually, in cases where a New York State resident with valid identification with no arrest record is caught shoplifting, responding police officers will issue a Desk Appearance Ticket in lieu of “putting the accused through the system”, meaning they get to avoid sitting in a holding cell downtown for at least 24 hours before seeing a judge. This is where we see clients fail to take the situation seriously – (“they just gave me a ticket, what’s the big deal?”) – but the truth of the matter is these clients are generally charged with two class “A” misdemeanors, both of which are punishable by up to one year in jail – petit larceny, and its accompanying charge, criminal possession of stolen property in the fourth degree. Those charges are listed below:

§ 155.25 Petit larceny.

A person is guilty of petit larceny when he steals property.

Petit larceny is a class A misdemeanor.

§ 165.40 Criminal possession of stolen property in the fifth degree.

A  person  is  guilty of criminal possession of stolen property in the

fifth degree when he knowingly possesses stolen property, with intent to

benefit himself or a person other than an owner thereof or to impede the

recovery by an owner thereof.

Criminal possession of stolen property in the fifth degree is a  class

A misdemeanor.

The accused shoplifters in these cases are directed to appear several weeks later at 314 West 54^th Street at 9:30 a.m. to be arraigned on criminal charges. If no disposition is worked out by a lawyer on that day, all of the cases are then adjourned to continue towards trial at the Criminal Court on 100 Centre Street.

There are two primarily concerns that we stress to our clients in these cases – one is that their failure to appear on the return date in Midtown Court will result in a warrant being issued for their arrest (not a good thing). The other is that it is imperative to avoid incurring a criminal record in every case possible. In other words, if you’ve been charged with Petit Larceny and/or Criminal Possession of Stolen Property, it is important to hire an attorney who can work out a disposition for you which does NOT include a plea to any crime. The imposition of a criminal record is a devastating thing and can have serious collateral consequences.

At Galluzzo & Johnson LLP, our team of former prosecutors are experienced in dealing with these specific cases, both on the prosecution side and on the defense side – and have handled many cases at Midtown Community Court, which we are very familiar with. We have represented individuals from all walks of life and secured the bests results for them. If you or a loved one has been issued a D.A.T., contact our lawyers immediately and schedule a free consultation. Do not risk incurring a criminal record and jeopardizing your future.

After only nine hours of deliberation, the California jury in the involuntary manslaughter trial of Michael Jackson’s doctor, Conrad Murray, returned a guilty verdict.  Altogether, we’re not surprised.  Indeed, we “called it” just minutes before the verdict.

The main problem for Dr. Murray was that the evidence against him was damning.  Rather than re-iterate all of it, we’ll simply summarize the primary problems for Dr. Murray’s defense team: 1) propofol is not meant for use as a sedative or for administration outside of a hospital, 2) the doctor reacted inappropriately and ineffectively to the emergency, and 3) the apparent cover-up made it look terrible for him.

The issue of propofol and its proper use and how it was administered to Jackson was central to this trial.  Unfortunately for Murray, the use of propofol for non-surgical purposes and outside of a hospital were not accepted as reasonable by the scientific community, and there were no experts to oppose that.  In that sense, the defense expert that testified that Jackson might have given himself the fatal extra dose of propofol was irrelevant, because arguably it shouldn’t have even been in the room in the first place, and it was the doctor’s responsibility to know that.  Basically, the defense team was totally boxed in – there never really was a good justification for the manner in which the doctor was administering the propofol.  Their only plausibly defensible explanation was that the doctor was trying to wean Jackson off of the medication, but there really wasn’t any sworn evidence to that effect (more on this later).

It also didn’t look good for Murray that he left Jackson – probably a propofol addict – alone in a room with propofol on a drip while he went to text and talk to his multiple girlfriends.  That fact made him seem a little cavalier about the powerful and dangerous drug that he was putting into Jackson’s system.  Sadly for him, if he had been on the phone talking to another patient about an emergency, the jury might have cut him some slack; unfortunately, he seemingly took a timeout from his doctorly duties to play the field.  There was also some evidence that he was too slow to call 911, which not only was medically imprudent but also fed the perception that he was hoping to cover-up his use of propofol without the authorities finding out.

The evidence of an attempted cover-up by Dr. Murray was also exceptionally damaging.  There was evidence that Dr. Murray tried to go back to the home to remove the evidence of the propofol (which obviously indicates that he knew that he shouldn’t have been using it that way, and that the propofol had likely caused the death), and he declined to tell the EMT workers or the treating physicians at the hospital about the propofol when he was asked the direct question about the medications that Jackson had been taking just prior to his death.  Certainly, if the doctor was acting like he knew that he had acted in appropriately in giving him propofol this way, it’s hard to convince the jury that he did nothing wrong.

Given the result, it is easy to play armchair quarterback and criticize the decision not to allow Dr. Murray to testify (after all, the result couldn’t have been any worse for him).  Generally speaking, defense lawyers prefer to have their clients remain silent.  Personally, I think defense lawyers are frequently a bit too scared to put their clients on the stands.  When the client is an educated professional with no criminal record (see Raj Rajaratnam, for example), he is probably going to come across as relatively articulate and respectable.  Why defense lawyers don’t more frequently try to show juries that their accomplished clients are decent human beings worthy of forgiveness and pity is beyond me.  Then again, Murray’s defense team may have decided that Dr. Murray didn’t present well, or maybe Murray was just too scared to testify before the world and the cameras.  Aside from the subjective perceptions game, which I think can be critical in trials, Dr. Murray could have testified as to his only real substantive defense in using propofol: that Jackson was an addict, and though his use of the drug was outside of acceptable medical practice, he was only administering it because he was trying to gradually wean him off of his addiction.  Without the doctor’s testimony there really wasn’t much to support this defense, however.

Much will probably be said about the effect that publicity had on the trial, but Casey Anthony’s case should have proven that jurors will generally do the right thing and judge the case objectively and based on the evidence even when protestors are lined up and screaming for convictions.  The problem for Dr. Murray is that the evidence objectively proved his guilt.

If you’d like to contact the authors of this article, visit their website at Galluzzo & Johnson LLP.

New York’s Penal Law Chapter 150 criminalizes arson and the setting of destructive fires.  Generally speaking, the most important factors in determining the severity of any arson charges that might apply to the criminal conduct are: 1) the intent of the perpetrator of the crime, 2) the nature of the property that was damaged, and 3) the risk that the fire posed to human life.  Arson charges can carry significant jail penalties, so it is important for anybody charged with arson to be represented by an experienced and intelligent attorney.

The least serious arson charge is Arson in the Fifth Degree, Penal Law Section 150.01.  This is a Class A misdemeanor with a maximum penalty of one year in jail.  A person is guilty of this crime when “he or she intentionally damages property of another without consent of the owner by intentionally starting a fire or causing an explosion.”  As you can probably tell from the statute, a person is not guilty of arson if they burn their own property without putting anybody else’s person or property at risk.  For example, it is not Arson in the Fifth Degree (or criminal arson of any kind) for me to burn my photograph of my ex-girlfriend by throwing it in the fire in my fireplace.  However, it would be Arson in the Fifth Degree for my ex-girlfriend to intentionally burn my clothes that way.  (This example is purely hypothetical, naturally).

Arson in the Fourth Degree, Penal Law Section 150.05, is a Class E non-violent felony with a maximum penalty of four years in jail and no mandatory minimum.  There are two different subsections.   Subsection 1 explains: “a person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion.”  In a nutshell, for a person to “recklessly” damage a building means that he or she didn’t purposefully intend to burn the building, but he or she knew that there was a real risk that the fire he or she started might damage the building.  So, for example, a person who intentionally sets fire to a shrub close to a house may not have meant to burn down the house, but obviously, he or she would have had to have known that that sort of fire could spread to the house.  An interesting question would be whether someone who falls asleep on a sofa with a lit cigarette could be charged with Arson in the Fourth Degree if the fire spread enough to damage the sofa and the building; we expect that they probably could.

Subsection 2 of Arson in the Fourth Degree provides an affirmative defense, however: a person is not guilty of the crime if “no person other than the defendant had a possessory interest in the building or motor vehicle.”  Thus, one cannot be charged with Arson in Fourth Degree if the aforementioned cigarette on the sofa accidentally causes that person’s house to burn down, but doesn’t damage a building or motor vehicle belonging to anyone else.

Arson in the Third Degree, Penal Law Section 150.10, is a Class C violent felony with a minimum jail sentence of 3.5 years and a maximum of 15.  A person is guilty of this crime if he or she “intentionally damages a building or motor vehicle by starting a fire or causing an explosion.”  (Subsection 2 provides an exception for the destruction of buildings for lawful purposes, such as demolition).  However, this charge is elevated to Arson in the Second Degree (Penal Law Section 150.15, a Class B violent felony with a minimum jail sentence of five years and a maximum of twenty-five) where another non-participating person was in the building or motor vehicle at the time, and the perpetrator “knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility.”

Finally, Arson in the First Degree, Penal Law Section 150.20 is a Class A-I violent felony with a minimum jail sentence of from fifteen years to life and a maximum of from twenty-five years to life.  This is a very serious crime on par with Murder in the Second Degree.  A person is guilty of this crime when he or she commits Arson in the Second Degree with some complicated aggravating factors.  Those factors include: the perpetrator’s use of an explosive or incendiary device to start the fire or explosion, whether a person was seriously injured, and whether the arson was committed in order to profit financially.  Specifically, the statute reads as follows:

A person is guilty of arson in the first degree when he intentionally damages a building or motor vehicle by causing a fire or explosion and when (a) such explosion or fire is caused by an incendiary device propelled, thrown or placed inside or near such building or motor vehicle; or when such explosion or fire is caused by an explosive; or when such explosion or fire either (i) causes serious physical injury to another person other than a participant, or (ii) the explosion or fire was caused with the expectation or receipt of financial advantage or pecuniary profit by the actor; and when (b) another person who is not a participant in the crime is present in such building or motor vehicle at the time; and (c) the defendant knows that facts or circumstances are such as to render the presence of such person therein a reasonable possibility.

[NOTE: Chapter 150 also provides a few definitions for the charges described above.  First, a “building” as defined in the context of arson includes (in addition to its ordinary meaning) “any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein.  Where a building consists of two or more units separately secured or occupied, each unit shall not be deemed a separate building.”  Thus, this definition obviously applies to recreational vehicles and boats with overnight sleeping quarters.  It can also potentially apply to commercial freight vehicles as well.  The definition of “motor vehicle” as used in the chapter includes “every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except (a) electrically-driven invalid chairs being operated or driven by an invalid, (b) vehicles which run only upon rails or tracks, and (c) snowmobiles.”  Obviously, then, bicycles and trains are not “motor vehicles” for the purposes of this section.  Finally, an “incendiary device” means a breakable container designed to explode or produce uncontained combustion upon impact, containing flammable liquid and having a wick or similar device capable of being ignited.  See Penal Law Section 150.20(2).  Clearly, this covers the “Molotov cocktail” among other bomb-like items.]

Arson trials frequently involve the testimony of a very specialized expert witness: the arson investigator.  Typically, Fire Marshalls with the FDNY are asked to employ their specialized expertise towards analyzing the cause of a fire, the damage done by a fire, and/or the risk that a fire might have posed.  To combat this testimony typically employed by prosecutors, criminal defense attorneys routinely retain retired Fire Marshalls in private practice.  Most oftentimes, these prosecution experts at trial are trying to help the government prove that the fire was not an accident.

In cases where the evidence strongly suggests that a fire was intentionally set (and not an accident), the next hurdle for a prosecutor is proving the identity of the perpetrator.  Of course, a client should never speak to the police or any other investigator if he or she is being investigated for a possible arson case, because sometimes an admission by the perpetrator is the only way for the prosecution to prove the perpetrator’s identity.  Prosecutors will also look to see whether there might have been a financial motive for the arson (say, in the case where someone might have burned down their own home or business to try to collect on an insurance policy), or if the owner of the property had any ongoing disputes with anyone else that might have perpetrated the arson (say, for example, an ex-girlfriend).  Finally, depending on the circumstances of the arson, a person that commits Arson under Penal Law Chapter 150 may also be exposed to a variety of other criminal charges, such as Murder in the Second Degree (Penal Law Section 125.25[3]), Attempted Murder in the Second Degree (Penal Law Section 110/125.25), Reckless Endangerment in the First or Second Degree (Penal Law Sections 120.20 and 120.25), Criminal Mischief (see Penal Law Chapter 145), Insurance Fraud [see Penal Law Chapter 176], Endangering the Welfare of a Child (Penal Law Section 260.10), or even in the most extreme cases, the crime of Terrorism (Penal Law Section 490.25).

If you or a loved one have been charged with Arson and/or any Arson-related crimes, you should strongly consider contacting the experienced and aggressive criminal defense attorneys at Galluzzo & Johnson LLP.  Their team of lawyers includes three former Manhattan prosecutors that have both prosecuted and defended numerous arson cases in their careers, and thus they have valuable insight into the best ways to defend them.  Give them a call today to schedule a free consultation and receive a fair quote for their services.

Vehicular assault charges are usually added to felony or misdemeanor DWI complaints where there has been an injury to someone other than the driver of the vehicle as a result of an alcohol- or drug-related accident.  For example, in People v. Mojica, 62 A.D.3d 100, the defendant allegedly “drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer, Richard Poluzzi. Officer Poluzzi, who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007.”

The elements of the basic charge, PL 120.03, are as follows:

§ 120.03 Vehicular assault in the second degree.

A  person  is guilty of vehicular assault in the second degree when he

or she causes serious physical injury to another person, and either:

(1) operates a motor vehicle in violation of subdivision  two,  three,

four  or  four-a of section eleven hundred ninety-two of the vehicle and

traffic law or operates a  vessel  or  public  vessel  in  violation  of

paragraph   (b),   (c),  (d)  or  (e)  of  subdivision  two  of  section

forty-nine-a of the navigation law, and as a result of such intoxication

or impairment by the use of a drug, or  by  the  combined  influence  of

drugs  or of alcohol and any drug or drugs, operates such motor vehicle,

vessel or public vessel in a manner that causes  such  serious  physical

injury to such other person, or

(2)  operates  a  motor  vehicle with a gross vehicle weight rating of

more  than  eighteen  thousand  pounds  which  contains  flammable  gas,

radioactive  materials  or explosives in violation of subdivision one of

section eleven hundred ninety-two of the vehicle and  traffic  law,  and

such  flammable gas, radioactive materials or explosives is the cause of

such serious physical injury, and as a result of such impairment by  the

use of alcohol, operates such motor vehicle in a manner that causes such

serious physical injury to such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of

subdivision  one  of section 25.24 of the parks, recreation and historic

preservation law or operates  an  all  terrain  vehicle  as  defined  in

paragraph   (a)   of  subdivision  one  of  section  twenty-two  hundred

eighty-one  of  the  vehicle  and  traffic  law  and  in  violation   of

subdivision  two,  three,  four,  or  four-a  of  section eleven hundred

ninety-two of the vehicle and traffic law,  and  as  a  result  of  such

intoxication  or  impairment  by  the  use of a drug, or by the combined

influence of drugs or of alcohol and any drug or  drugs,  operates  such

snowmobile  or  all terrain vehicle in a manner that causes such serious

physical injury to such other person.

If it is established that the person  operating  such  motor  vehicle,

vessel,  public  vessel,  snowmobile  or all terrain vehicle caused such

serious physical injury while unlawfully intoxicated or impaired by  the

use  of  alcohol or a drug, then there shall be a rebuttable presumption

that, as a result of such intoxication  or  impairment  by  the  use  of

alcohol  or  a drug, or by the combined influence of drugs or of alcohol

and any drug or drugs, such person operated the motor  vehicle,  vessel,

public vessel, snowmobile or all terrain vehicle in a manner that caused

such serious physical injury, as required by this section.

Vehicular assault in the second degree is a class E felony.

The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5));  or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).

One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element.  An experienced New York DWI attorney would seemingly make that a top priority.  Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.

If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with top new york criminal defense lawyers before proceeding.