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

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

Tuesday, April 8th, 2014

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

Tuesday, April 1st, 2014

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

Animal Cruelty Criminal Charges (Cockfighting etc.)

Monday, February 10th, 2014

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. 

 

 

Arrests for Selling Fake Tickets and Ticket Scalping

Monday, February 3rd, 2014

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.   

Proposed legislation to force New York universities to report rapes to law enforcement

Friday, December 13th, 2013

New York Assmeblyman Edward Braunstein, who has previously proposed legislation to combat and criminalize the growing phenomenon of revenge porn, has proposed a new bill relating to the investigation and prosecution of sex crimes. Specifically, he has proposed legislation requiring universities to report rape allegations to local law enforcement. Although this proposal has some appeal, we think that it is important to consider its potential negative side effects.

Without question, far too many allegations of campus-based sexual assault never go anywhere. For one reason, universities and university police officers typically lack the necessary expertise, training or resources to handle these sorts of investigations as ably or professionally as local city/state police or prosecutors. More importantly, perhaps, is the fact that universities are in many ways incentivized to make these cases go away. After all, no university wants to develop a public reputation as a place where rapes happen, and some administrators might even fear that the university could be liable for failing to provide adequate security in some cases (God forbid that a star athlete or child of a wealthy alumnus be accused of such a crime). Accordingly, one should not be surprised to hear tales from some victims of university officials subtly and sometimes not-so-subtly discouraging the victims from pursuing their complaints against fellow students.

Recently, it was suggested by some (not us) that Columbia University bungled (or perhaps intentionally ignored) the investigation of a student-athlete that had had several complaints made against him for sexual assault or misconduct. This proposed bill appears to be in response to that media flap. But would making universities mandatory reporters really help decrease the problem of sexual assault on New York college campuses?

Students at college campuses that get sexually assaulted by other students often tend to report the assaults to school administrators rather than the police. Obviously, even college students know that rape is a crime, and that police officers investigate and make arrests for rapes. So, it seems that students that elect to go this route have done so for one of two reasons: 1) they want the school administrators to assist them in reporting the event to the police, or 2) they are deliberating avoiding police involvement for one reason or another. Certainly, some rape victims do not want to report the crimes to police because they fear repercussions from their attackers, negative publicity in the media, having their parents find out, peer backlash or condemnation, or being questioned about their sexual histories, among other things. So, it would seem that if students with these concerns know that the university will not be able to keep their reports confidential and away from the police, that they will just simply choose not to report them to the universities (and thus, to no one at all).

On the other hand, of course, police and prosecutors should be investigating these claims because they are better equipped to do so and because they are the only ones with the power to realistically and ultimately hold rapists properly responsible for their actions. Moreover, university investigations and disciplinary hearings of sexual assault allegations tend to resemble criminal procedures, but without the satisfying conclusions for the victims. After all, the most a university can do to punish an abuser (without reporting the case to the police) is to expel a student. This is a far cry from the punishment potentially facing a rapist in criminal court (incarceration, felony convictions, sex offender registration, etc.). More than a few victims have thought that their reports to the university administration would result in quiet, swift resolutions and sufficient punishment for their attackers, but then are disappointed to learn that their attackers can insist on disciplinary hearings in which their friends are oftentimes called to testify. Aside from the embarrassment and peer backlash that can often ensue, victims are often disappointed to see their attackers receive minor punishments like reprimands or temporary suspensions as a result of school disciplinary procedures. Then, after the school disciplinary procedure is complete, victims often feel like subsequent reports to the police would be pointless or hopeless, and prosecutors might be skeptical of reports that happen so long after the fact. So, it may be that notifying police of campus rape allegations (which will almost always at least trigger a police investigation) is ultimately more often than not in the best interests of the victims – though the victims may not want to go that route – in that the “criminal procedures” in criminal court and university settings are often comparably intimidating for victims but the punishments meted out in criminal court are far more likely to achieve results that help victims heal.

Ideally, university administrators would have intelligent conversations with victims that report sex crimes about their options in the legal system, and would also encourage them to report their assaults to the police without forcing them to do so. Certainly, high schools administrators are required to report instances of child abuse to the police or child services agencies, but college students are technically adults (though perhaps shouldn’t be treated as such regarding an issue so intimidating and complicated) and it would arguably be a violation of their privacy and dignity to report their cases to the police when they thought they were reporting it in confidence.

If you or a loved one have been wrongfully accused of a campus sexual assault or have been a victim of a sexual assault, you should strongly consider contacting an experienced former sex crimes prosecutor immediately.

Pistorius Case Analyzed by a Defense Attorney

Wednesday, March 6th, 2013

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

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

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

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

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

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

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

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

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

New Sex Trafficking Case Raises Interesting Question about NYPD Liability

Monday, March 5th, 2012

This evening, the New York Post is reporting that the Manhattan District Attorney’s Office has indicted at least one person, Anna Gristina, for running an underage prostitution ring in Manhattan.  Shockingly, this brothel on East 78th Street – which will implicate a long roster of wealthy and prominent johns – purportedly had police protection from the NYPD.  Aside from the possible criminal prosecution of police officers for their involvement in this sordid affair (not to mention the PR disaster that this represents for the NYPD), there may be another reason for the NYPD to be seriously concerned: the possibility of lawsuits.

In 2000, the U.S. Congress passed the Trafficking Victims Protection Act, and later passed the Trafficking Victims Reauthorization Act of 2003, which provided for a civil remedy in Federal court for victims against their traffickers.  In a nutshell, victims of sex trafficking (for example, underage prostitutes) have the right to sue their pimps/traffickers for damages, lost wages, and punitive damages (which can be significant).  Many other types of civil actions – including civil RICO claims – might lie for this conduct as well.  These sorts of remedies are rarely pursued in these sad situations, however, as the pimps/traffickers typically do not have enough money to make a lawsuit worthwhile for the plaintiffs, and almost certainly never have enough money to truly make their victims whole, from a tort standpoint.  However, this case presents a unique twist on this tragic story: potentially, the victims of trafficking may be able to sue the police officers that provided protection (and thereby assisted in the trafficking) and by proxy the City of New York (with its very deep pockets) for its failure to monitor its officers and prevent their misconduct.  Indeed, this may be the case in which victims of sex trafficking could actually recover judgments worth millions of dollars.

Matthew Galluzzo, the author of this article, is a criminal defense and civil rights lawyer at Galluzzo & Johnson LLP.  He  served for years as a rape prosecutor in the famous Sex Crimes Unit of the Manhattan District Attorney’s Office and continues to volunteer his time to assist in the effort to eradicate sexual violence.  If you or a loved one have been a victim of a sexual assault or sex trafficking, or been falsely accused of having committed such a crime, you should strongly consider calling him or emailing him to schedule a consultation.

Attorney Discusses the Statutes of Limitation for the Potential Criminal Charges in the Syracuse Sex Abuse Case

Friday, November 18th, 2011

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.

Micheal Jackson’s doctor Conrad Murray convicted of manslaughter

Monday, November 7th, 2011

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.

Summonses for Entering or Remaining in “Closed” New York City Parks

Saturday, July 9th, 2011

Never mind drug-dealing and violence – it appears the NYPD is cracking down on people who remain in New York City’s parks after closing time, despite the fact that signs which indicate closing times are often small and go unseen. As a result, we have seen an increase in the number of law-abiding citizens (including professionals and students) summoned to court to answer criminal – yes, criminal – charges for remaining in parks after closing time (Central Park and Prospect Park both close at 1 a.m.). While the lights in Central Park, for example, may remain on after closing and no gates or fences close to alert park-goers they need to leave, one can see how easy it may be for an unsuspecting New Yorker or tourist to find him/herself relaxing in a park after closing time, only to be stopped by a police officer and charged under section 1-03 of the New York City Park Rules and Regulations.

In some cased the police will watch someone walk into the park after closing time without warning them, and then immediately stop them and issue a summons (again, no fences close – you’d think the police would warn you). If you are issued such a ticket, you are probably charged under Park Rules and Regulations § 1-03, which is a misdemeanor. Believe it or not, if you are convicted of being in a park after closing time you will be left with a permanent criminal record. The lesson here is to take the summons seriously; as is the case with any summons, failing to return on the summons date will result in a warrant being issued for your arrest. If you or anyone you know has been issued a summons or a desk appearance ticket for this, contact an experienced criminal defense lawyer at Galluzzo and Johnson LLP to represent you.

§1-03 General Provisions

  1. Hours of Operation
    1. Persons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at any park.
    2. Whenever a threat to public health or safety exists in any park resulting from any natural cause, explosion, accident or any other cause, or by riot or unlawful assembly or activity, the Commissioner may close the park or any part thereof to the public for such duration as he deems necessary to ensure the safety and well-being of the public.
    3. No person shall enter or remain in any park without the permission of the Commissioner when such park is closed to the public.

“Summonses for Entering or Remaining in “Closed” New York City Parks”