New York Criminal Defense Blawg

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.

The arrest of a friend or loved one often happens unexpectedly.  The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set.  This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.

First of all, the question may arise, “What is bail?”  Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections.  In most cases, that would be an amount of money designated by the judge in either cash or bond.  The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all.  This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges.  Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes.  Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance.  This is sometimes called “ROR.”  In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender.  The criteria that the judge will consider is set forth in the Criminal Procedure Law:

  2.    To  the  extent that the issuance of an order of recognizance or
  bail and the terms thereof are matters of discretion rather than of law,
  an application is determined on the basis of the following  factors  and
  criteria:
    (a)    With respect to any principal, the court must consider the kind
  and degree of control or restriction that is  necessary  to  secure  his
  court  attendance  when required.  In determining that matter, the court
  must, on the basis of available  information,  consider  and  take  into
  account:
    (i)     The  principal's  character,  reputation,  habits  and  mental
  condition;
    (ii)  His employment and financial resources; and
    (iii)  His family ties and the length of his residence if any  in  the
  community; and
    (iv)  His criminal record if any; and
    (v)   His record of previous adjudication as a juvenile delinquent, as
  retained pursuant to section 354.2 of  the  family  court  act,  or,  of
  pending  cases where fingerprints are retained pursuant to section 306.1
  of such act, or a youthful offender, if any; and
    (vi)  His previous record if any in responding  to  court  appearances
  when  required  or with respect to flight to avoid criminal prosecution;
  and
    (vii)  If he is a defendant, the weight of the evidence against him in
  the pending criminal action and any other factor indicating  probability
  or  improbability  of  conviction; or, in the case of an application for
  bail or recognizance pending appeal, the merit or lack of merit  of  the
  appeal; and
    (viii)    If  he is a defendant, the sentence which may be or has been
  imposed upon conviction.

Many of these factors are self-explanatory.  If a person has a prior criminal history, or a record of not showing up to court, the judge will probably set an amount of bail that he or she feels is necessary to secure his or her attendance in court.  However, if the charge is serious, then it is very important to try to retain an experienced New York City criminal lawyer before your friend or loved one sees the judge.  The lawyer will be able to assist in gathering information and proof that the judge will consider in making the court’s bail decision.  This material can include papers considering his or her employment, paystubs, proof of residence, and other material that will be helpful in convincing the court to either ROR the defendant or set an amount of bail that he or she can actually make.

Assuming that the judge sets bail, one needs to be informed as to the precise method specified by the court.  For example, a judge may set bail in the amount of $100,000 bond over $50,000 cash.  The best way to explain this is to start with the cash alternative.  In this example, if a family member has $50,000 in cash, that can be posted to secure the defendant’s attendance, with no other steps being necessary.  Bail can be paid either at the courthouse or the corrections facility where the defendant is being held.  If the bail is going to be made at the court, it is probably best to speak with an attorney to get an idea of how much the bail may be so that you can come prepared with money necessary.  On the other hand, if the defendant chooses to go with the $100,000 bond alternative, he or she must deal with a bail bondsperson.  The bondsperson’s job is simply to gauge the amount of risk he or she is willing to take that the defendant will return to court when required.  In exchange for taking on this risk, he or she takes a fee.  Every situation is different, but a bondsperson will usually ask the friend or family member of the arrested person to pay a percentage of the total bond amount, and then provide some sort of security for the remainder.  Again using the example of a $100,000 bond, the bondsman may ask for $10,000 cash, and the deed to a home or other form of collateral to secure the other $90,000.  At the end of the case, the bondsperson will give you back the cash you posted, less a fee that he or she takes for assuming the risk.

Remember that in dealing with a bondsperson, they may have reporting requirements or “check ins” that will occur periodically to ensure that they are in touch with the defendant.  If the defendant does not comply with the conditions of the bond, the bondsperson can go to the court and ask that the bond be revoked and that the defendant be taken into custody.

With that said, the best possible thing to do is to retain an attorney before the initial hearing because the attorney can do two things: (1) make a reasoned and cogent argument to the judge as to why no bail should be set (“ROR”) or that a lower amount of bail is necessary than what the Assistant District Attorney may ask for and (2) if bail is set, put you in touch with a respectable bail bondsperson and assist in the bail making process.

Should you need advice as to how any of this works, you should contact a New York City bail attorney.

The world’s oldest profession is still illegal in New York.  What many people do not realize, however, is that prostitutes, pimps (or madams), and johns can all be arrested and convicted under New York state law without any sexual conduct taking place or any money exchanging hands.  The state laws concerning prostitution in New York are contained in Penal Law Chapter 230.

The most basic crime in this chapter is Prostitution, under Penal Law Section 230.00.  A person is guilty of this Class B misdemeanor when he or she “engages or agrees or offers to engage in sexual conduct with another person in return for a fee.”  Thus, it is important to recognize that it makes no difference whether the accused actually received money or engaged in any sexual act – indeed, the mere offer of sexual services for money is just as serious under this section.  Also, notably, the definition of “sexual conduct” (defined in Penal Law Section 130.00[3] and 130.00[10]) includes sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, and sexual contact).  Put plainly, the laws of this chapter apply to virtually all and any sexual touching of any kind.

On the flip side, a john that pays or offers to pay for sexual services of any kind is also guilty of at least the Class B misdemeanor of Penal Law 230.03 (Patronizing a Prostitute in the Fourth Degree).  This crime can be a more serious felony where the prostitutes are underage.  At one time, it was a defense to these more serious charges that the john did not have a reasonable cause to believe that the prostitute was underage (under the repealed Penal Law Section 230.07), but as Lawrence Taylor recently discovered, it is no longer a defense.

Finally, promoting prostitution, or “pimping,” as it is sometimes referred to, is illegal under Penal Law Section 230.20.  That Class A misdemeanor, Promoting Prostitution in the Fourth Degree, makes it illegal to knowingly advance or profit from prostitution.  Under Penal Law Section 230.15, a person “advances prostitution” when, acting other than as a prostitute or as a patron thereof, he or she knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution.  A person “profits from prostitution” when, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity.

Promoting prostitution is actually more serious than prostitution itself, in that regular Prostitution is a B misdemeanor (punishable by up to 90 days in jail), whereas Promoting Prostitution is an A misdemeanor (punishable by up to 1 year in jail).  The charges pertaining to promoting prostitution can be felonies depending on whether certain aggravating factors are present.  For example, Promoting Prostitution in the Third Degree (Penal Law 230.20, a Class D felony) involves two or more prostitutes being promoted or a prostitute under the age of 19.  Promoting Prostitution in the Second Degree (Penal Law 230.30, a Class C felony) applies where the prostitute is under 16 years of age or where coercive force or intimidation is used on the prostitute.  Promoting Prostitution in the First Degree (Penal Law 230.32, a Class B felony), applies to situations in which the prostitute is less than 11 years old.

Law enforcement devotes significant resources towards combating these crimes. Specially-trained Vice Squad officers frequently pose as prostitutes or johns in an effort to arrest individuals suspected of committing these crimes.  They have been known to frequent internet websites and chat-rooms while posing as prostitutes or johns.  They also frequently pursue classified ads in “adult sections” of newspapers like the Village Voice.  If/when the undercover officer meets the suspect in person, they are almost always wearing a recording device.  In those situations, the undercover officer is typically trying to get the prostitute or john to make the offer for sexual services explicitly and clearly so that it can be used in a trial, if necessary.  The undercover officer may otherwise attempt to get the prostitute or john to make the offer in a text message or email.  Sometimes, when prostitutes travel across state lines or are part of large scale organizations, the cases can even be prosecuted by federal law enforcement officers, as well.

If you or a loved one have been arrested or are being investigated for any of the above-described crimes, you should consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.

Most of us have read about the recent Charlie Sheen affair at the Plaza Hotel.  According to the New York Post, Sheen offered $12,000 for sex with actress Capri Anderson.  Under New York’s Penal Law, Patronizing a Prostitute, PL 230.03:

A person is guilty of patronizing a prostitute in the fourth degree when he patronizes a prostitute.

The stand-alone charge is not helpful.  However, we do get a full explanation of patronizing a prostitute in Penal Law 230.02:

A person patronizes a prostitute when:

(a) Pursuant to a prior understanding, he pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or

(b) He pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person will engage in sexual conduct with him; or

(c) He solicits or requests another person to engage in sexual conduct with him in return for a fee.

Thus, if the Post story is to be taken at face value, the conduct alleged may make out a prima facie case of patronizing a prostitute.  That is not to say, however, that Mr. Sheen will or should be arrested and charged.  There are many variables that go into a case such as this, and a lot will depend on Ms. Anderson’s willingness to cooperate with the prosecution.  If she were to choose not to speak with the police, it would be next to impossible to go forward with charges.  And even if she did, the case would ultimately devolve into a he-said, she-said scenario that prosecutors try to avoid.  Of course, if there were some corroboration for the arrangement, such as emails, text messages, or other memorializations of understandings between the “parties,” that would be different story.  In the end, it will depend on the government’s desire to investigate and Ms. Anderson’s cooperation.

If you would like to learn more about the charge, or are facing criminal charges yourself, you should consult with the experienced former prosecutors at Galluzzo & Johnson LLP.

Unfortunately, it happens to most of us. At some point in our life, we get a call that the police have arrested a friend, family member, or other loved one. In addition or in preparation for securing competent criminal defense counsel, there are several things that you can do on the internet in the early stages of the arrest-to-sentence process to locate that person, gain basic information about his or her case, and support him or her as you see fit.

The first thing to do would be to look up the person’s name in the court system to see if they actually have a pending case. This can be done on the New York State Unified Court System’s eCourts Webcrim system. After logging in, you can input the name, case number or other identifying information about your loved one to determine the court information about their case. This will give you the basic case details, including the defendant’s Case number (sometimes referred to as a Docket number), his or her date of birth, NYSID number, details concerning the time of the incident that is the subject of the case, the time of arrest, the arresting agency, the name of the attorney or institutional defender currently representing him or her, and his or her next court appearance.

As noted in the arrest-to-sentence information linked above, the first time that an arrestee will see a judge after his or her arrest will be at a criminal court arraignment proceeding. If your friend or loved one has already been arraigned and bail was set or he or she was remanded into custody by the judge, you can find out where he is being held by accessing the New York City (or New York State) Department of Corrections website. On the New York City Department of Correction’s website, for example, you can access his or her NYSID number, Book and Case Number, and the name of the facility where he or she is currently being held. There is also a link to a informational page explaining how to send an inmate money, clothing, food, or other property.

This information will serve you well as you search for a lawyer to represent your loved one’s interests in the criminal justice system. You should print up as much of it as you can and bring it with you for your initial consultation with his or her lawyer. You can find links to all of these sites as well as other information concerning the criminal justice system on Galluzzo & Johnson LLP’s website or call us at (212) 918-4661 for more information.