Archive for the ‘Current Events in Criminal Law (national)’ Category

Times Square arrests for Forcible Touching/Sexual Abuse

Monday, August 17th, 2015

Recently, we have encountered several people wrongfully arrested by the police for allegedly groping or grinding people in the Times Square area. Typical charges for these types of arrests include the Class A misdemeanor Forcible Touching (PL 130.52) and Class B misdemeanor Sexual Abuse in the Third Degree (PL 130.55). Sometimes individuals arrested for these charges receive Desk Appearance Tickets and are told to come back to court on a later date, and sometimes they spend a night in jail before seeing a judge for their arraignment.

Times Square is obviously very crowded with pedestrian traffic, and individuals often bump into each other accidentally.  This is especially so near the “kiss-cams” and associated video screens in Times Square, as people often clamor and jockey for position so that they can see themselves on the giant screens up above. Police officers monitor these areas in view of the cameras and have seemingly made several wrongful arrests of individuals who were simply trying to see themselves on the screen and inadvertently brushed into someone else.  Fortunately, these cases can be defended at trial, as there is frequently no videotape to corroborate police officer observations, and the crowds make clear viewing angles almost impossible.

These charges can be extremely serious, however.  As much as one year of jail time is a possible result, as is potential registration as a sex offender.  Moreover, these charges can have very serious negative consequences or non-citizens, such as deportation.

If you or a loved one have been arrested and charged with a Forcible Touching or Sexual Abuse case stemming from an incident in the Times Square area, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former prosecutors routinely defends individuals charged with these sorts of crimes and includes a former sex crimes prosecutor, Matthew Galluzzo, who is a recognized expert on sex crimes investigations.    


Federal charges for insider trading / hacker team

Tuesday, August 11th, 2015

Two indictments were unsealed today in federal court in New Jersey and Brooklyn charging nine individuals with having participated in a unique scheme to profit illegally from stolen insider information. Many of the defendants have connections to the Ukraine, and their names are Vitaly Korchevsky, Vladislav Khalupsky, Leonid Momotok, Alexander Garkusha (Brooklyn) and Ivan Turchynov, Oleksander Ieremenko, Arkadiy Dubovoy, Igor Dubovoy, and Pavel Dubovoy (New Jersey).

In short, it is alleged that this conspiracy included skillful computer hackers and securities traders working together to steal valuable information and then use it to their advantage. More specifically, the alleged computer hackers used brute force attacks and a variety of other computer hacking techniques (such as SQL injections) to access confidential press releases containing financial data for publicly-traded companies prior to the information being made available to the public. Knowledgeable broker-dealers on the team then allegedly used the non-public information to make advantageous “insider” trades ahead of the market during the brief windows of time between the press releases being written and being released to the public.  All in all, it is estimated that they were collectively able to profit illegally to the tune of $30 million.

A press release from the federal prosecutors handling the matter is available here.  The charges generally include securities fraud, wire fraud, securities fraud conspiracy, and money laundering. (18 U.S.C. § 1349; 18 u.s.c. § 1343; 15 U.S.C. §§ 78j(b) & 78ff, and 17 C.F.R. § 240. lOb-5; 18 u.s.c. § 371; 18 u.s.c. § 1030; 18 U.S.C. § 1028A(a)(l); 18 U.S.C. § l 956(h); and 18 U.S.C. § 2). Copies of the indictments are accessible here and here via PACER.

If you or a loved one have been charged with federal computer hacking or insider trading charges, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former prosecutors has experience defending cyber crimes and routinely represent broker-dealers in a wide variety of criminal cases.

DSK found not guilty in French criminal trial

Friday, June 12th, 2015


Former International Monetary Fund chief Dominique Strauss-Kahn was acquitted on June 12, 2015 of “aggravated procurement” (or “aggravated pimping”) by the criminal court in Lille, France. He was facing up to 10 years life imprisonment and a 1.5 million euros fine for his alleged role in a French prostitution ring.

Conforming with the prosecutor’s recommendations to drop the charges and to acquit him, Judge Bernard Lemaire held that Dominique Strauss-Kahn was only behaving as a customer, which is not illegal under French criminal law, and that there was no evidence he was an instigator of the parties.

The results were similar for the thirteen other defendants, among whom were several businessmen, a lawyer, a former chief police, and a notorious owner of an escort bar. They were all acquitted but René Kojfer, former head of public relations at the Carlton Hotel, who was convicted to a one-year suspended prison sentence for procuring, but not aggravated.

Although this ruling puts an end to a three year case, the wide media coverage and the fame of some defendants brought to light several legal issues raised by the unusual facts of the story.

Indeed, the trial turned into a vast debate on ethics and morals in France, and more specifically on prostitution and prosecution of sexual offenses. Defense lawyers have been expressing that the current offenses are outdated, while victims representatives also seem to think the laws are incomplete. This case has allowed to reopen public discussions on these matters, and especially showed how the offense of procurement is not well defined and needs to be edited.

Coincidentally, the ruling took place on the same day that the French Parliament was debating a bill intended to reinforce the fight against prostitution, suggesting on the one hand to criminalize promoting by setting a fine of 1,500 euros for clients, but on the other hand to decriminalize soliciting by removing a 2003 offense. The bill has been shuttling between the two houses of Parliament since 2013, and if it was approved by one house, it is likely to be rejected for the second time by the other one.

The author of this post, Camille Brusley, is a French law school graduate currently working as a legal intern for Galluzzo & Johnson LLP in New York. Matthew Galluzzo is a French-speaking attorney at that firm and routinely represents French citizens accused of crimes in New York. 


Illicit student-teacher relationships and the law in New York

Tuesday, June 9th, 2015

News reports of high school teachers engaging in illicit acts with underage students are becoming almost routine and regular nowadays. The advent of modern smartphones, the prevalence of texting, Snapchat, and the rise of social media platforms have perhaps facilitated these problematic relationships. Regardless, a teacher accused of having engaged in such inappropriate relationships faces a potential litany of terrible consequences including permanent criminal convictions, sex offender registration, public humiliation and vilification, loss of career and professional licensure, and civil lawsuits for damages. It is thus absolutely critical that those educators accused of such crimes retain competent counsel to guide them through these minefields.

A typical serious charge in these scenarios is Rape in the Third Degree (Penal Law Section 130.25[2]). That charge makes it a Class E felony for a person over the age of twenty-one years to engage in sexual intercourse with another person less than seventeen years old. This is a strict liability crime and there is no need for the prosecutor to demonstrate any forcible compulsion on the part of the elder person. A conviction for this charge – sometimes referred to as “statutory rape” – carries serious potential jail sentences and mandatory registration as a sex offender. Similarly, Criminal Sexual Act in the Third Degree (Penal Law Section 130.40[2]) makes it a Class E felony for a person older than twenty-one to engage in oral or anal sexual contact with a person under the age of seventeen.

Rape in the Second Degree (Penal Law Section 130.30[1]) is a more serious Class D felony and applies to individuals over the age of eighteen that engage in sexual intercourse with people younger than fifteen years old, and Criminal Sexual Act in the Second Degree (Penal Law Section 130.45[1]) also makes it a Class D felony for a person older than eighteen to engage in oral or anal sexual contact with a person younger than fifteen.

On some occasions, the adult educators are accused of sending lewd or sexually explicit photos, videos, or text messages to the underage students. Those teachers are then potentially facing felony charges of Disseminating Indecent Materials in the Second or First Degree, depending on the content of the messages (Penal Law Sections 235.21 or 235.22).

Sometimes, teachers partake of controlled substances like ecstasy prior to engaging in sexual contact with their underage students, and in those cases, the teachers may face the Class D felony charge of Facilitating a Sex Offense with a Controlled Substance, in violation of Penal Law Section 130.90.

On the other hand, the victimized students can potentially pursue civil lawsuits for damages against the school districts and the teachers themselves. (Of course, the lawsuits against the school districts are more likely to be lucrative because they have insurance and public funds to pay settlements, whereas teachers often become bankrupt in these situations.) There is no need to prove that the underage victim was an “unwilling participant” in the sexual activity because a minor cannot legally consent to sexual contact with an adult. A lawsuit by a victimized student against a school district will not succeed solely because the offending teacher was employed by the district – the victim plaintiff must demonstrate that the district was negligent in the hiring of the teacher (i.e. failed to do a sufficient background check that would have revealed a propensity for such offending behavior), negligent training, negligent retention (failing to discharge the teacher after learning about misconduct prior to the basis for the lawsuit), and/or negligent supervision of the teacher. In short, if the district had reasonable no way of knowing, predicting, or preventing the behavior by the teacher, then the district cannot be held to blame for the teacher’s actions towards the student. The amount of damages can be difficult to predict but is mostly determined by the psychological or psychiatric harm that the student has suffered or can expect to suffer as a result of this victimization.

If you or a loved one have been accused of an improper relationship with a student, or been victimized by a teacher, you should strongly consider contacting the experienced litigators at Galluzzo & Johnson LLP. Their team of former prosecutors, including Matthew Galluzzo, a former Manhattan sex crimes prosecutor, has expertise representing people on both sides of this scenario, and can advise you how to best proceed.

Criminal defense of professional athletes in New York

Monday, June 8th, 2015

The criminal defense attorneys at Galluzzo & Johnson LLP have successfully defended professional athletes against criminal charges in New York City, and have been asked to comment on television and in the news as experts in criminal cases pending against professional athletes such as Ray Rice and Oscar Pistorius. They also understand the unique issues facing professional athletes accused of crimes, such as visa issues, contractual issues, and negative publicity.  As such, they are uniquely qualified to represent professional athletes facing criminal cases in New York

Many professional athletes belong to player unions that have labor contracts with their professional sports leagues that dictate suspension procedures for violations of the player conduct rules. (For example, the NBA Collective Bargaining Agreement requires individuals convicted of felony violence to receive minimum suspensions of ten games.)  These agreements can sometimes be used to persuade prosecutors to permit plea bargains to lesser offenses so as to avoid these bright-line career penalties that can be unduly harsh.  Additionally, sentences that include probation can be impossible for professional athletes that are required to train and compete across the country.

In addition, there are frequently immigration (and therefore, career) consequences for professional athletes.  Many foreign professional athletes are able to live and work in the United States pursuant to P-1A visas, and these visas can be jeopardized by criminal arrests and convictions. As the go-to criminal defense attorneys for the New York consulates of France, Australia, Switzerland, Belgium, and Saudi Arabia, Galluzzo & Johnson routinely represents foreign citizens and has represented foreign professional athletes. Unlike many criminal defense attorneys, their lawyers are acutely aware of the potential immigration and visa consequences of criminal cases, including the lesser-known consequences, and can help foreign athletes successfully navigate the criminal justice system in such a way as to avoid jeopardizing their playing careers.

Finally, the arrests of professional athletes are almost always publicized. This negative publicity can not only make it more difficult to negotiate favorable plea bargains, but it can also seriously decrease an athlete’s earning potential and endorsements.  The criminal defense attorneys at Galluzzo & Johnson LLP can help an athlete minimize the negative publicity with a well-orchestrated media strategy, as they have appeared on television and in the news countless times (and in the case of Matthew Galluzzo, in multiple languages).

If you or a loved one are a professional athlete facing criminal charges in New York, you should seriously consider retaining the services of the former prosecutors and experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Their team has successfully represented professional athletes in the past and understands the unique collateral consequences of an arrest for a professional athlete.

Criminal assault charges for non-citizens in New York

Monday, June 8th, 2015

Criminal assault charges for non-citizens in New York

As the go-to criminal defense firm for the New York City consulates of France, Australia, Saudi Arabia, Switzerland and Belgium, the attorneys at Galluzzo & Johnson LLP routinely represent foreign citizens charged with criminal assault (including, for example, Assault in the Third Degree [Penal Law 120.00], Assault in the Second Degree [Penal Law 120.05], and Assault in the First Degree [Penal Law 120.10]). These charges are especially problematic for non-citizens as they can result in deportation or future inadmissibility into the United States.

(Though this is a bit of an oversimplification, deportation is the process by which a person is forcibly removed from the United States and barred from returning, whereas a person determined to be “inadmissible” cannot enter or re-enter the United States after leaving).

A non-citizen convicted of a “crime involving moral turpitude” within the first five years of admission is deportable. See Immigration and Naturalization Act (“INA”) Section 237(a)(2)(A). The most common New York criminal assault charge, Assault in the Third Degree, applies where a person intentionally causes physical injury to another person (Penal Law Section 120.00), and is often brought in cases involving domestic violence or drunken bar fights. Courts – including the Board of Immigration Appeals and the Southern District of New York – have routinely concluded that Assault in the Third Degree is in fact a “crime involving moral turpitude.” See e.g. In re Solon, I & N Dec. 239, 243 (2007); Mustafaj v. Holder, 369 Fed. Appx. 163, 167 (2nd Cir. 2010) (citing In re Solon, supra). As such, a conviction for Assault in the Third Degree within the first five years of admission would represent a “crime involving moral turpitude” and would render the person deportable.

The felony assault charges in New York (Assault in the Second Degree [Penal Law Section 120.05] and Assault in the First Degree [Penal Law Section 120.10]) can also render a convicted person deportable on multiple other grounds, including but not limited to classification as “aggravated felonies,” “crimes of violence,” and/or “domestic violence crimes,” potentially. Non-citizens charged with these felony assault charges should also avoid traveling outside the United States pending the disposition of these cases, as immigration officials might conclude that the accusations alone are sufficient to permanently deny those individuals re-entry into the United States.

Finally, a conviction for a misdemeanor “counts” for deportation purposes regardless of whether there is a re-pleader situation. In fact, courts have upheld deportation orders where the convictions at issue (by guilty plea) were even later vacated in the interest of justice. Saleh v. Gonzales, 496 F.3d 17, 25 (2nd Cir. 2007) (“…an alien remains convicted of a removable offense for federal immigration purposes when the predicate conviction is vacated simply to aid the alien in avoiding adverse immigration consequences and not because of any procedural or substantive defect in the original conviction…”). This issue frequently arises in cases involving non-citizens trying to participate in judicial diversion programs. See e.g. People v. Brignolle, 41 Misc.3d 949 (Sup. Ct. N.Y. County, 2013) (Weinberg, J.). In short, what matters for immigration purposes is the original allocution, so non-citizen defendants charged with Assault in the Third Degree should be wary of re-pleader plea bargain offers where the original allocution is to a misdemeanor.[1]

Ideally, a non-citizen charged with a misdemeanor assault charge will get the charges dismissed by a prosecutor or dismissed at trial. Otherwise, plea bargains involving violations like Disorderly Conduct (Penal Law Section 240.20), Harassment in the Second Degree (Penal Law Section 240.26), or adjournments in contemplation of dismissal (ACDs) may be viable options, often with restitution payments, community service, counseling, or a combination of those things. Non-citizens should be warned about the possible consequences of an open ACD with respect to the renewal or obtaining of American visas.

If you are a foreign citizen facing criminal assault charges in New York City, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. In addition to their fluency in French, they are very familiar with the immigration consequences of assault charges and are especially qualified to help you navigate the unique challenges facing foreign citizens accused of assault. They have successfully represented numerous foreign citizens charged with assault and are prepared to assist you or your loved ones in safeguarding their futures in the United States.

[1] See Saleh v. Gonzales, supra, at fn 6. A conviction is defined as: “[A] formal judgment of guilt of the alien entered by a court of, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A).

Visas and pending criminal cases and ACDs

Monday, June 8th, 2015

Frequently, non-citizens seeking American visas or renewal of current ones make the mistake of accepting seemingly excellent criminal dispositions without understanding the immigration consequences. For example, people arrested in New York for misdemeanor charges such as possession of marijuana (PL 221.05 or PL 221.10), trespass (PL 140.05 or 140.10), theft of services (PL 165.15), petit larceny/shoplifting (PL 155.25), or possession of a controlled substance (PL 220.03) often receive adjournments in contemplation of dismissal (“ACDs”) at their first court appearances.  Under those scenarios, the case is automatically dismissed after a period of six months, assuming certain conditions are met.  However, many non-citizens make the mistake of accepting these otherwise favorable dispositions (typically upon the advice of counsel) without recognizing that an American visa cannot be obtained or renewed during the six months “probationary period” of an ACD.

The attorneys at Galluzzo & Johnson LLP regularly represent foreign citizens charged with misdemeanors in New York courts. As criminal counsel to the French Consulate and a regular representative of the nations of Belgium, Switzerland, Australia, and Saudi Arabia, their lawyers understand that a regular ACD cannot be accepted by some foreign citizens in cases in which it would be perfectly acceptable for citizens to accept them. The attorneys at Galluzzo & Johnson LLP have been successful on many occasions in convincing prosecutors to dismiss charges early in the interest of justice, so that people that have encountered minor arrests in New York can stay in New York, get visas to attend university, or continue to work in New York.  If you or a loved one are a non-citizen facing criminal charges in New York (or if you made the mistake of accepting an ACD that you shouldn’t have accepted), you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their multilingual attorneys can help you navigate the confusing issues facing non-citizens attempting to live, study and/or work in the New York while confronting criminal charges.


Defense Attorney explains drug crimes on the “Dark Web”; Silk Road etc.

Monday, June 1st, 2015

The New Frontier of Drug Crimes: Silk Road, Agora, and the Dark Web

The traditional business model of drug trafficking, though potentially lucrative, is fraught with peril and obstacles for its participants at all levels. Thanks to fantastic television programs like The Wire and Breaking Bad, many Americans already have a basic understanding of this business model: Transactions are conducted using cash, and regulatory safeguards at banks and other institutions make it difficult for dealers to use their income to make large purchases (thereby necessitating the risky business of money laundering). Transactions are also generally made face-to-face and hand-to-hand, meaning that the dealers and buyers can be fairly easily identified or apprehended by law enforcement.

These sorts of traditional drug dealing operations use levels and levels of intermediaries to protect the chiefs from being directly implicated, but law enforcement officers have routinely been able to force low- and medium-level dealers to “snitch” on their suppliers. Moreover, this business model’s need for a human being to personally deliver contraband makes the buyers and sellers potentially subject to violent acts by thieves or competitors.

It should come as no surprise then that many savvy and enterprising criminals took to the nether world of the “Dark Web” (or “Dark Net”) to traffic narcotics (and sometimes even weapons) at online markets like Silk Road (then Silk Road 2.0) and Agora, among others. These online markets provided solid anonymity for buyers and sellers of drugs because they are accessible only through the Tor browser (Tor = The Onion Router), a software program designed to disguise the IP address (and thus the physical presence) of a person browsing online. Buyers and sellers can connect anonymously on these markets using Tor in a way that makes it extremely difficult for law enforcement to track the IP addresses (and thus, the physical locations and true identities) of the participants.Though Silk Road was shut down by law enforcement, and other sites continue to be closed, new ones inevitably crop up to replace them.

Also, the buyers and sellers on these websites aren’t using credit cards or cash – they’re generally using BitCoin. This online and anonymous digital currency has been highly controversial and is illegal in some countries, though it is currently legal in the U.S. and becoming subject to increasing regulations. (NOTE: The author of this article has significant experience representing a person accused of criminal activity involving the use of now-defunct precursor online currencies called Webmoney and egold.). There is no question that cryptocurrencies like Bitcoin are absolutely critical to the survival of these marketplaces, as these transactions could not possibly be consummated without it.

Moreover, consumers of narcotics and designer drugs frequently find the experience of buying from these sorts of online suppliers to be safer and easier than the traditional alternative. First, the buyer doesn’t have to personally meet an unsavory criminal in his home or some other dangerous place where he risks being caught. Second, the market offers easy price comparisons amongst sellers – it’s practically an eBay or Travelocity for drugs. (Note: Federal Judge Katherine Forrest, in denying Ross Ulbricht’s motion to dismiss the pending indictment against him, described the now defunct Silk Road as being like eBay).

Of course, because of the anonymity involved, a buyer can be easily ripped off on one of these sites – that is why buyer reviews are such an important part of these new markets. Sellers have to develop and maintain a reputation for trustworthiness among users, and that can be hard to do in an environment where buyers cannot possibly hold the seller personally accountable for defrauding them.

The hosts of these marketplaces can also fairly effectively disguise their anonymity. Ross Ulbricht a/k/a Dread Pirate Roberts, is easily the most notorious such alleged host, and was arrested last year after a length federal investigation. The U.S. federal government contended that for years he hosted the Silk Road online market (technically a portal accessible only via Tor browsers), and took commissions on thousands of drug-related sales totaling millions of dollars in Bitcoin. Ultimately, after a trial before Judge Forrest, Ross Ulbricht was convicted of numerous crimes and sentenced to life in prison.  

The weaknesses in these modern operations generally arise in the delivery system. Private shipping companies like FedEx and DHL do not need search warrants to open suspicious packages. Accordingly, dealers tend to prefer to use shady offshore delivery services or USPS, whose agents must have federal search warrants to open suspicious packages. In the event that an illicit package is intercepted by a courier, federal agents often attempt to deliver the package to its intended recipient in a “controlled buy”: essentially, the federal agent poses as a delivery man and tries to get the recipient to sign for the package. Of course, most buyers in this market use “dummy drop” addresses, like mailboxes opened under pseudonyms, to receive these sorts of packages. Ultimately though these measures don’t really prevent law enforcement from waiting at the “dummy drop” location and simply arresting the person when s/he picks up the package.

Most dealers sending narcotics via courier do not use actual return addresses, of course, or pay for the postage with anything other than cash. Federal agents might be able to trace the drop off point of an intercepted package, but unless there is good archived video surveillance footage of the person making the drop at the courier’s drop off center, it is typically exceedingly difficult for federal agents to identify the person that mailed the package. Finally, dealers that use couriers have discovered a variety of vacuum-sealing techniques to make it especially difficult for courier companies or USPS to detect any illicit substances in the packages.

These sorts of cases are typically prosecuted in federal court. Notably, local law enforcement makes most of the drug trafficking related arrests in the U.S. – indeed, police officers do most of the heavy lifting in America’s War on Drugs. However, whereas cartels engaged in traditional drug dealing are routinely investigated by both state and local law enforcement, these new online Silk Road and Agora operations are generally just too complex for state law enforcement officers to penetrate; state law enforcement simply lacks the resources and the personnel to penetrate these operations, so it is up to the FBI and other federal law enforcement agencies alone to do the work. The author wouldn’t be surprised if the federal government soon starts seriously ramping up its own funding of this effort to combat the “Dark Net” or decides to give more money to local law enforcement agencies to develop the capabilities to assist them, but for the moment, in terms of sheer numbers and probabilities, there are probably fewer law enforcement officers chasing these modern dealers than there are officers pursuing traditional drug dealers on the streets.

That being said, the potential penalties for dealing drugs online can be significant. The most readily applicable charges would generally include violations of 18 USC Section 952 or any number of money-laundering and conspiracy charges.  Obviously, Ross Ulbricht, the founder of Silk Road, received life in prison for his criminal activities, though his appeal is pending. Also, sellers on Silk Road face a two-level enhancement under 2D1.1(b)(7) for “mass marketing” narcotics on the Internet, which buy itself can elevate a sentence by two years as opposed to traditional drug dealing.

If you or a loved have been arrested or prosecuted for a crime involving the purchase or sale of contraband or narcotics on Silk Road, Agora, or some other Tor-accessed portal, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former prosecutors has defended people accused of committing Internet crimes involving electronic currencies like Bitcoin and its precursors, as well as individuals accused of trafficking narcotics on the internet and Tor-accessed markets. This is a complex subject at the intersection of technology and criminal law that few criminal defense attorneys truly understand, so you should take pains to ensure that your criminal defense attorneys, like those at Galluzzo & Johnson LLP, truly understand the relevant issues.

PENAL LAW 220.77: Operating as a major trafficker or “kingpin”

Tuesday, May 19th, 2015

Operating as a major trafficker – NY’s “Kingpin” statute (Penal Law Section 220.77)

A few years ago, the New York Assembly enacted into law a tough new statute designed to increase the penalties for major narcotics traffickers or managers of drug trafficking organizations. Penal Law 220.77, oftentimes referred to as New York’s “kingpin statute,” makes it a Class A-1 felony offense to

  1. act as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
  2. as a profiteer, knowingly and unlawfully sell, on one or more occasions within six months or less, a narcotic drug, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
  3. as a profiteer, knowingly and unlawfully possess, on one or more occasions within six months or less, a narcotic drug with intent to sell the same, and such narcotic drugs have a total aggregate value of seventy-fie thousand dollars or more.

Notably, the statute sets forth especially severe penalties, even when compared to other Class A-I narcotics-related offenses. A person convicted of this offense – even one with no prior record – faces an indeterminate prison sentence anywhere from 15 years to life or 25 years to life.

Interestingly, it should be noted that under New York law, there is a big difference between controlled substances and narcotic drugs. Controlled substances include most every drug, but a narcotic drug is heroin and cocaine.

In calculating the values of the drugs, obviously a qualified police officer can attest to the average street value; in many cases however undercover officers purchase the drugs from the defendants or their associates, so the amount of money that was spent is the proof of the value of the drugs.

These cases typically arise after long-term investigations involving undercover police officers and police informants.  Oftentimes wiretap and other forms of electronic surveillance play a prominent role in developing these cases as well.

Defending these cases effectively regularly requires strong challenges to search warrants and electronic surveillance or “eavesdropping” warrants. Also, defense attorneys can sometimes effectively argue that although trafficking of narcotics may have in fact occurred, their particular clients played a minor or negligible role in the criminal enterprise.

One notable recent “kingpin charge” case in the news involved the arrest of several members of an organization allegedly in possession of over $2 million worth of heroin (70 kilograms).

If you or a loved one have been arrested for a major trafficking or “kingpin” charge, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former Manhattan prosecutors has worked on several cases involving major traffickers with an outstanding record of success.

Robert Durst: Is his confession admissible? Analyzed by a defense attorney and former prosecutor

Tuesday, March 17th, 2015

Robert Durst HBO Confession – Would it be admissible?


In a captivating HBO television episode, Robert Durst, long a suspect in several homicides, apparently confessed –unwittingly, perhaps – by muttering to himself in the bathroom while wearing a live microphone. Durst was promptly arrested by police and is currently facing extradition to California to face charges in connection with a murder in Beverly Hills.

The question currently being debated amongst lawyers in the media is whether this recorded audio confession would be admissible against Durst in a trial for the Beverly Hills murder of Ms. Berman. The short answer is yes, probably.

In order for the prosecution to use evidence against a defendant, a proper evidentiary foundation has to be established. So, in this case, the prosecution would first have to demonstrate that the recording was authentic, meaning that it was in fact what it purported to be (i.e. a recording of Mr. Durst’s voice taken while he was in the bathroom). Witnesses would have to testify as to how the recording was obtained and how it was handled prior to being played in court. It is seemingly safe to assume that this foundation could be established without too much trouble.

Out-of-court unsworn statements are also assumed to be inadmissible unless they fit into one of the “hearsay exceptions”. There are a multitude of possible exceptions to the hearsay rule, but here, the statement clearly falls within the category of a “statement against penal interest,” meaning that it tends to incriminate the person who made the statement. Accordingly, there would not be any hearsay problem with the admissibility of the statement.

The biggest question in this case, however, is whether this statement was obtained in violation of Mr. Durst’s constitutional rights. American courts apply a principle called the “exclusionary rule” which holds that any evidence obtained (including statements taken) in violation of a defendant’s constitutional rights cannot be used against him at a trial. The exclusionary rule exists to prevent police officers from engaging in unlawful conduct, and to protect the constitutional rights of citizens. Thus, prior to any evidence of statements being presented to a jury, a judge is tasked with screening the proffered evidence in a pre-trial hearing to determine whether it was lawfully obtained.

Most problematically for Durst is the fact that this evidence was not obtained by police officers. The exclusionary rule is designed to prevent government agents from violating the constitutional rights of citizens, but does not apply to private actors. For example, police cannot search a suspect’s house without a warrant and then use the illegal evidence that they found inside – it would be “fruit of the poisonous tree” of their illegal conduct. On the other hand, if a private citizen voluntarily and without coordination with the police decides to search his neighbor’s house and find evidence therein, that evidence could be used by police against the neighbor.

The lines get blurred when private actors are working in coordination with law enforcement. If Robert Durst’s attorneys could show that the journalists from HBO were deliberately and consciously working with police pursuant to a coordinated plan to obtain a confession from Durst during the television interview process, then maybe the attorneys could establish that those HBO journalists were acting as “state actors” for purposes of admissibility analysis, meaning that the constitutional limitations would apply to their conduct. Normally, though, the threshold showing for “state action” is very high, and I seriously doubt that the amount of coordination required for a private actor to be considered a “state actor” is going to be shown to have existed in this case. Without a finding of state action, there would simply be no problem with the admissibility of this confession.

As an illustration of this state actor concept, consider Batman in the movie “Batman Begins.”  At the beginning of the movie, Bruce Wayne buys some fancy vigilante gear and runs around catching criminals and delivering them to the police in handcuffs. The police have no idea who Batman is or how to get in contact with him. Batman, at this point, is not a state actor because he is not working with the police, he is working on his own. As such, any evidence obtained by Batman against the defendants “in violation of the U.S. Constitution” would still be admissible in court proceedings against those defendants (assuming the proper evidentiary foundations could be laid by Batman as a testifying witness). Later, however, Commissioner Gordon installs the Batsignal on the roof of the police precinct and asks Batman for help in catching the Joker. At this point, Batman is a state actor, which means that any confessions elicited by Batman from the Joker in violation of Joker’s constitutional rights would hereby be inadmissible at a later trial. Thus, the question for Robert Durst would be: were the HBO journalists acting more like Batman at the beginning of the movie (pre-Batsignal) or more like Batman at the end of the move (post-Batsignal)?

An interesting case that provides an example of this “state actor” analysis in the television context is Fisk v. Letterman, a civil rights case in which David Letterman’s alleged stalker claimed that producers from CBS conspired with police to deprive the stalker of her constitutional rights.

Even if Durst’s attorneys manage to convince a judge that the HBO journalists were acting as state actors, the next question would be: did they do anything in violation of Durst’s constitutional rights? This would again be a very difficult argument for Durst’s attorneys to win. To be sure, there have been some cases in which police officers were able to obtain recordings of conversations by suspects using elaborate recording and long-range microphonic technology, and the statements obtained in that manner were deemed inadmissible because they were obtained in violation of the suspects’ “reasonable expectation of privacy”. See U.S. v. Silverman. However, notwithstanding the fact that Durst apparently forgot that he was wearing a live microphone in the bathroom, there was nothing surreptitious about this recording. Durst wore a microphone for every interview and watched the journalists pin the microphone on him. There is also some evidence that the producers had to previously remind Durst not to forget to take his microphone off before walking away from interviews. Durst should have known that he might have been wearing a live microphone when he uttered the incriminating statements. But at the end of the day, the question is not whether Durst said something stupidly and clumsily, but whether the “state actor” journalists acted unfairly. That’s basically an impossible argument for Durst’s attorneys to make successfully.

Noah Feldman, a professor at Harvard Law School, has opined that the statements would be inadmissible because they “were more prejudicial than probative.” It is true that judges have to engage in that analysis before deciding whether to admit a piece of evidence. However, this argument for inadmissibility is basically just absurd. In a nutshell, the argument is that because Durst confessed to committing multiple murders, it would be unfair to present this statement to a jury in a trial concerning just a single murder. Put another way, a jury is not supposed to hear about uncharged crimes not presently being considered by the jury, and this confession logically implicates him in more crimes than would be at issue. On the other hand, the probative value of this confession is clearly enormous: HE IS CONFESSING TO MURDER IN A MURDER CASE. Thus, the argument by Prof. Feldman is essentially 1) that it’s unfair to Durst to use a completely voluntary and damning confession against him because his confession was so breathtaking in its scope, and 2) that a confession to murder shouldn’t be presented to a jury because the confession doesn’t mean that he committed murder. With all due respect to Professor Feldman: that argument sounds good in lofty academia but would get you laughed out of any real courtroom in America. Also, to limit the prejudice against the defendant, a judge could (and would) give a limiting instruction to the jury explaining that they were not to consider the possibility that he had committed other crimes. This instruction seems illusory in some ways but it is routinely used in situations like this to solve these sorts of issues for purposes of appeal.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor currently defending someone against homicide charges in a case in which the purported victim’s body was never found.




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