Posts Tagged ‘attorney’

University Campus Sexual Assault Disciplinary Proceedings Attorney

Monday, December 8th, 2014

University Campus Sexual Assault Disciplinary Proceedings

Sexual assault on university campuses has long been a huge and underreported problem, but recently, the topic has received a tremendous amount of press coverage. As a result of this – as well as a spate of Title IX lawsuits alleging that universities have failed to make campuses safe from rape – schools have been frantically overhauling their investigative procedures and retraining its investigators. Unfortunately, the pendulum has swung so far in the other direction that the rights of the accused are being trampled and false or trivial accusations are oftentimes now presumed to be legitimate. False accusations do happen – consider the cases of the Duke lacrosse team or the recent accusation at the University of Virginia – and they can ruin innocent lives and reputations.

Of course, an accusation of sexual misconduct can have huge consequences for the accused beyond mere academic suspension or expulsion: criminal charges or civil lawsuits can ensue and be even more terrifying and damaging. Thus, it’s critical for an accused to mount a vigorous defense from the outset to both prevent career-derailing academic punishments and discourage the complainant from pursuing the matter in any other forums (such as the criminal justice system).

Mounting an effective defense to a sexual misconduct investigation should not be attempted without experienced defense counsel because they can be particularly difficult for four main reasons: first, the investigators and judicial panels are often unqualified and biased; second, the criteria for discipline is oftentimes vague; third, the evidence under review can be surprisingly limited in scope; and fourth, the standard of proof for an adverse finding is much lower than in a criminal trial.

To begin, the investigators assigned to respond to complaints are typically well meaning but unqualified people with an agenda. They volunteer to investigate sexual assault reports because they want to help victims and punish perpetrators, not because they want to prevent false accusations from resulting in unwarranted discipline. As such, there is an investigative bias that causes investigators to oftentimes overlook or even find excuses for major gaping holes in a victim’s story, or worse, to completely ignore innocent explanations or alibis from the accused. Moreover, whereas the disciplinary panels assigned to decide guilt, innocence and punishment used to be regularly accused of sweeping accusations under a rug to prevent the school from appearing to have a problem with sexual assault, disciplinary panels nowadays have to appear to be tough on sexual assault to avoid having students carrying mattresses around campus. Accordingly, we are seeing a shift in institutional bias in favor of complainants and to the detriment of the falsely accused.

Second, sexual misconduct regulations on university campuses can be shockingly vague and sometimes seem to criminalize trivial conduct. “Non-consensual sexual contact” would normally mean forcible compulsion or an intoxicated or sleeping victim in a criminal court in New York, but in a university campus setting, it might just mean that it was “coerced”. This does not sound unreasonable until you hear stories of university disciplinary panels suspending students for telling their girlfriends that if they do not give them sex, they will find new girlfriends. Under this scenario, where the boyfriend suggests that he will terminate the relationship if there is no sex, and then the girlfriend acquiesces, she forms what could later be a basis to bring a “coercive, non-consensual sexual conduct” complaint against her ex-boyfriend that could result in his suspension from school. We have also seen student “victims” claim to have been “forced” to have sexual contact with former (not current) professors because of the “power dynamics” involved in a student-professor relationship. These are the sorts of things that can pass as sexual misconduct worthy of ruinous academic suspension or loss of tenure in the modern university setting, believe it or not.

Third, disciplinary panels are sometimes strangely restrictive in the evidence that they will consider. Citing the newly popular mantra that “prior consent does not equal consent for all acts,” disciplinary panels now routinely exclude evidence that the complainant previously consented to (or even requested) sexual contact with the accused. While this may be true, it can cause inexperienced disciplinary panels to make nonsensical decisions like excluding evidence that the complainant specifically requested sexual contact with the accused both before and after the allegedly non-consensual act. (Of course, this sort of evidence would be clearly relevant as to the issue of consent and would be admissible in a criminal case.) An experienced criminal defense attorney can help make arguments about what evidence should be admissible and considered by the disciplinary panel by citing to evidentiary rules and practices in criminal and civil courts.

Lastly, people facing accusations of sexual misconduct in university disciplinary settings are frequently surprised by the lack of due process and low standards of proof. There is not necessarily a presumption of innocence in these proceedings as there would be in a criminal court. Also, whereas a criminal court would require “proof beyond a reasonable doubt,” the university can suspend someone for a violation where it finds that the claim is supported by the civil standard of a “preponderance of the evidence.” In a he-said-she-said scenario, unfortunately, some university administrators are concluding that the standard is satisfied if she said it. Thus, it is important for an accused to realize that simply demanding that the victim prove his/her complaint is really not a good strategy in these proceedings – a counter-attack normally has to be launched in order for the accused to prevail.

If you or a loved one have been falsely accused of committing a sexual assault on a college or university campus, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their attorneys have successfully represented and advised students and faculty in university sexual assault and misconduct investigations and have overturned convictions and won trial acquittals in cases involving criminal charges stemming from alleged campus rapes. In particular, Galluzzo & Johnson partner Matthew Galluzzo is a former Manhattan sex crimes prosecutor who brings instant credibility to any sexual assault investigation. In fact, the South African government previously hired him to train its prosecutors and police officers in modern techniques pertaining to rape investigations and he has been quoted countless times as an expert in rape investigations by news outlets including the New York Times and Fox News, among others. Give him a call to schedule a consultation today.

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

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

Tuesday, April 1st, 2014

Blog – § 1983 Case Plan:

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

Service of the Complaint:

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

Time to Answer:

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

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

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

Conference and Initial Disclosures:

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

Limited Discovery:

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

The City must serve on the plaintiff:

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

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

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

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

The plaintiff must serve on the City:

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

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

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

Amended Pleadings:

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

Settlement Demand and Offer:

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

Mediation or Settlement Conference:

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

Failure to Comply with these Requirements:

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

Request for Initial Pre-Trial Conference:

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

Protective Order:

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

Preservation:

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

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

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

PL 220.03 Desk Appearance Tickets Explained by a Criminal Attorney

Thursday, December 19th, 2013

photo (2)

The title of this blog is “PL 220.03 Desk Appearance Tickets Explained by a Criminal Attorney.”

So…You’ve received a Desk appearance ticket which says that the “top offense charged” is “PL 220.03.” What does this mean? What will happen? Do you need a lawyer? In this blog, a criminal attorney will answer all of these questions and explain what this ticket means for you.
The “top offense” refers to the highest charge you are facing, but not necessarily the only charge (there’s only room for one charge). “PL 220.03” refers to section 220.03 of the New York Penal Law, which refers to the crime of “Criminal Possession of a Controlled Substance in the Seventh Degree.” (Article 220 of the Penal Law can be found here.) In New York, a person is guilty of that crime when he/she knowingly and unlawfully possess a controlled substance. So, if you’ve been issued a Desk Appearance Ticket commanding you to appear in criminal court on a particular date, what does this mean, and what can you expect to happen on that date?

First of all, this means that are being prosecuted for committing a crime, and for this reason we warn our clients and prospective clients NOT TO DISREGARD the ticket. This is about the worst thing you could possibly do. Missing your first scheduled court appearance will result in a warrant being issued for your arrest. It may be hard to believe, but some people lose their tickets upon being released from the precinct, neglect to contact an attorney, and act like nothing ever happened. Rest assured: Not showing on the appearance date WILL result in a warrant being issued for your arrest, which is a not a good thing at all.
So what actually happens when you show up?” The “appearance date” is the date you are scheduled to be arraigned on the charges that the District Attorney’s Office ultimately determines are appropriate in your case. These are the ultimate charges you will be prosecuted for, and which may or may not be the same as the charges that are originally printed on your ticket. In between the time that you are issued the ticket and the date you are to appear, a prosecutor interviews the police officer who issued the ticket, and makes a determination as to which charges are appropriate. In fact, the charges you are ultimately arraigned on may be higher than that which is stated on the ticket. To be sure, we’ve represented clients who have shown up to court only to find out that they are being charged with a felony. This is another reason we stress the importance of taking these Desk Appearance Tickets as seriously as they should be. After being arraigned, the case then continues as any other criminal case would.

In response to the questions, “Do I need to hire a lawyer for this?” The answer is “absolutely.” You are being charged with a crime. In the event that you’re charged with PL 220.03, you are being charged with committing an “A” misdemeanor, which carries up to 1 year in jail. You are in jeopardy of going to jail and being convicted of a crime which can give you a permanent criminal record. In the case of people who are not US citizens, simply being charged can have adverse immigration consequences. In cases where individuals work in finance and have licenses and answer to FINRA, there are a slew of other issues that need to be negotiated. What a lot of people don’t understand is that the only difference between being issued Desk Appearance Ticket and being arrested and “put through the system” is the mechanism and timing by which you are brought before a Judge to be arraigned. In the case of arrest and booking, you are lodged in the system and usually have to wait in the ballpark of 24 hours before seeing a judge and being apprised of the charges against you. With appearance tickets, the officers have exercised their discretion in allowing you to voluntarily appear before the judge, with the threat of an arrest warrant being issued if you fail to do so, but there is no difference in the gravity of the crime or the potential sentence you face. This is why people tend to lose the ticket or not take them seriously…
Unless you are indigent, you must hire an attorney. The Legal Aid Society exists to represent individuals who do not have the means to hire a lawyer, not those who do not wish to do so. This is an unfortunate consequence of being arrested but a necessary one considering your freedom, employment, and even immigration status may be at risk. It is necessary to consult with a lawyer who can then tell you what substantive and procedural strategies should be employed in order to get you out of the situation you are in with the least damage. Your first step should be to consult an experienced criminal attorney. The last thing you should do is ignore it and hope it goes away…

Subway arrests for Forcible Touching and Sexual Abuse in NYC

Monday, December 16th, 2013

Sadly, many individuals living in New York City develop sexual compulsions that cause them to rub or grind strangers on the subway system. These frotteurs can be high-functioning professionals that simply need therapy. Just as sadly, though, some individuals are wrongly accused by NYC police officers of serious sexual offenses despite having done nothing more than simply try to get to work on a very crowded train. Both of these categories of individuals need experienced criminal defense representation, as the consequences of these charges can be very serious and have lifelong effects on one’s family situation, future, and employment prospects. The most common criminal charges for this sort of behavior include Forcible Touching (Penal Law 130.52, a Class A misdemeanor), Sexual Abuse in the Third Degree (Penal Law 130.55, a Class B misdemeanor), and Public Lewdness (Penal Law 245.00, a Class B misdemeanor). Our office has defended several individuals accused of these sorts of crimes, and have been successful in either obtaining dismissals or avoiding criminal convictions in exchange for treatment and therapy.

These arrests usually arise in one of two ways. Sometimes a complaining witness notices that they are being touched unlawfully or unusually and alerts a nearby policeman. In those cases, an identification of the arrested person by the complaining witness and an affidavit from the complaining witness are typically necessary to pursue the case in criminal court. Surprisingly though, it is probably more common for the arrests to come as a result of undercover police officers witnessing the acts themselves. The Transit police have undercover officers trained and assigned to identify, follow, and monitor people that they suspect of being on the hunt for victims to sexually abuse or touch in the train system. Typically, these undercover officers are looking for men that are following women in the system, standing on the platform ignoring trains (while waiting for a train that they notice may be carrying vulnerable targets), or “looping” up and down the system (meaning, they travel uptown for a few stations and then travel back downtown in an effort to find a victim). In these cases, affidavits or testimony from the victims of the sexual abuse might not even be necessary.

These arrests cannot be taken lightly as even misdemeanor convictions for the crime of Forcible Touching potentially carry prison sentences of up to one year. Convictions on these charges can also potentially result in registration as a sex offender, which can be extremely onerous and embarrassing. Furthermore, repeat offenders can be charged with the Class E felony of Persistent Sexual Abuse (Penal Law 130.53) and receive state prison sentences. Accordingly, if you or a loved one have been arrested or issued a Desk Appearance Ticket and accused of Forcible Touching or Sexual Abuse on the subway, you should strongly consider immediately contacting an experienced criminal defense attorney and former sex crimes prosecutor with a track record of success in these matters.

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.

New York’s proposed legislation to criminalize Non-Consensual Disclosure of Sexually Explicit Images

Friday, December 13th, 2013

New York state assemblyman Edward Braunstein has proposed legislation to combat the growing problem of “revenge porn,” or the non-consensual disclosure of sexually explicit images. All too often, after a consensual sexual relationship ends, a bitter ex-husband or ex-boyfriend lashes out by posting sexually explicit images of his former lover on the internet. (Note: It is not illegal for websites to host these photos, as sites are not generally responsible for the content posted by non-employed users, though a number of attorneys have attempted to sue them on behalf of their clients. See Section 230 of the Communications Decency Act, at 47 USC §230[c]). The proposed bill, the text of which is below, would make it a class A misdemeanor punishable by up to one year in jail to disclose sexually explicit images when the victim had a reasonable expectation that they would not be shared outside of the relationship.

S T A T E O F N E W Y O R K
________________________________________________________________________

8214

2013-2014 Regular Sessions

I N A S S E M B L Y

October 24, 2013
___________

Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, SCHIMEL, McDONOUGH,
DUPREY, MONTESANO — Multi-Sponsored by — M. of A. CROUCH, SKARTADOS,
WEISENBERG — read once and referred to the Committee on Codes

AN ACT to amend the penal law, in relation to establishing the crime of
non-consensual disclosure of sexually explicit images

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

1 Section 1. The penal law is amended by adding a new section 250.70 to
2 read as follows:
3 S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
4 A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT
5 IMAGES WHEN HE OR SHE INTENTIONALLY AND KNOWINGLY DISCLOSES A PHOTO-
6 GRAPH, FILM, VIDEOTAPE, RECORDING, OR ANY OTHER REPRODUCTION OF THE
7 IMAGE OF ANOTHER PERSON WHOSE INTIMATE PARTS ARE EXPOSED OR WHO IS
8 ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON’S CONSENT, AND
9 UNDER CIRCUMSTANCES IN WHICH THE PERSON HAS A REASONABLE EXPECTATION OF
10 PRIVACY. A PERSON WHO HAS CONSENTED TO THE CAPTURE OR POSSESSION OF AN
11 IMAGE WITHIN THE CONTEXT OF A PRIVATE OR CONFIDENTIAL RELATIONSHIP
12 RETAINS A REASONABLE EXPECTATION OF PRIVACY WITH REGARD TO DISCLOSURE
13 BEYOND THAT RELATIONSHIP.
14 1. FOR THE PURPOSES OF THIS SECTION:
15 (A) “DISCLOSE” MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
16 MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
17 ENT, EXHIBIT, ADVERTISE OR OFFER.
18 (B) “INTIMATE PARTS” MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS,
19 OR FEMALE ADULT NIPPLE OF THE PERSON.
20 (C) “SEXUAL CONTACT” MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
21 TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER BETWEEN PERSONS
22 OF THE SAME OR OPPOSITE SEX.
23 2. THIS SECTION SHALL NOT APPLY TO:
1 (A) LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
2 ING, OR LEGAL PROCEEDINGS; OR
3 (B) SITUATIONS INVOLVING VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
4 SETTINGS.
5 3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 80.05
6 OF THIS CHAPTER, THE COURT MAY IMPOSE A FINE NOT TO EXCEED THIRTY THOU-
7 SAND DOLLARS.
8 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES IS A CLASS A
9 MISDEMEANOR.
10 S 2. This act shall take effect on the first of November next succeed-
11 ing the date on which it shall have become a law.

EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11834-06-3
A. 8214 2

The bill is commendable and New York needs some sort of statue to protect victims. We have some questions about this legislation, however. First, it is unclear whether a person convicted of this crime would be forced to register as a sex offender. We think that such a designation could be unduly harsh in a situation in which, for example, a boyfriend discovers that his girlfriend is cheating on him and posts these pictures in a fit of rage. Also, it would be questionable as to whether such a person convicted of a crime would need to be registered and monitored as a sex offender for twenty-five years (the minimum registration duration as a low-level Level 1 offender), since there may not be any scientifically valid basis to believe that such a person is at a higher risk of re-offending or committing some other sex crime.

Of course, there are legitimate concerns about the First Amendment being violated by this proposed criminal statute. Certainly, it is legal for a person to say terrible things about a person on a blog or website, so why should it be illegal to post photos?

We suggest that this legislation would be more sensible if it provided a civil court remedy for victims by creating a tort for the violation of this criminal statute (and thereby violating the victim’s privacy and/or dignity) and by creating a specific statute of limitation for pursuing these lawsuits that starts running when the disclosure of the images is discovered by the victim. (It would be akin to New York’s CPLR 213-c civil statute of limitation that applies to victims of certain sex crimes, or it would be an amendment of that statute). New Jersey’s statute relating to “revenge porn” does provide a civil remedy – New York should offer the same protections to victims. Some victims might not be able to pursue a claim at civil law, as attorneys can be expensive and would be necessary, and some perpetrators are so broke as to be “judgment proof,” but the option should be made available, as we think it could certainly be an effective deterrent for some people seriously considering posting sexually explicit images of their exes.

If you or a loved one have been a victim of “revenge porn” or the non-consensual disclosure of sexually explicit images, you should seriously consider contacting an experienced victim’s lawyer and former sex crimes prosecutor.

Defamation Attorneys Explain Law of Slander and Libel in New York

Wednesday, December 4th, 2013

“Defamation” is a word loosely used by people when they feel that another person has said something insulting and/or false about them. However, the word has a much more specific definition in the law, as it is defined as any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. In New York State, ‘defamation’ is a civil charge, and encompasses both written statements (“libel”) and spoken statements (“slander”).
In our practice we usually see defamation lawsuits brought when false criminal charges are levied against someone and which, for example, jeopardize their employment or even lead to their incarceration. While it certainly does not take much for someone to utter or publish a false statement about another person, properly prosecuting a lawsuit in such a case is no easy task as New York has rather demanding specific pleading requirements in these types of cases. Failure to properly craft these lawsuits renders actions defective (and for this reason, our firm has been very successful in defendant against them). What follows is a brief discussion of the law of defamation in New York:

To sustain a defamation claim under New York law, a plaintiff is required to show that:

(1) A defendant made an oral or written factual and defamatory statement;
(2) Regarding the plaintiff;
(3) That was published to others by the defendants; and
(4) That there was resultant injury, unless the statement falls within a category of “per se” harm.

These are the basic “elements” of a defamation lawsuit, however, what many attorneys (shockingly) seem to overlook is another requirement which is set forth in the Civil Practice Law and Rules, and that is that in any action for libel or slander, the particular words complained of must be set forth in the complaint. This is a strict requirement and we have defeated lawsuits because opposing attorneys represented have failed to draft their documents in the proper fashion. Attorneys also seem to have difficulty with element four (resultant injury or per se harm). Because the accountability for uttering harmful statements is balanced against the constitutional right to free speech, the law requires that the false statement actually harm the plaintiff (economically, for example), unless the statement is considered “slanderous per se” (meaning the words are considered so offensive that the law will actually presume damage to reputation and business even if such damage hasn’t been shown). Examples of “per se” defamatory statements are those which impute some offensive or loathsome disease, charge a person with a crime involving moral turpitude or which subject a person to infamous punishment, or words spoken in relation to one’s business or trade and which have a natural tendency to injure a person in their business or trade.
In addition to these stringent pleading requirements, there are a slew of defenses and technical challenges to allegations of defamation which a lawyer can make in order to defeat such a lawsuit entirely (for example, an alleged defamatory statement can be challenged if it can be shown that it is an “expression of opinion” which is non-actionable). As such, when a person is sued for defamation, an adroit lawyer has many technical and procedural avenues available to successfully defend them. As such, if you or someone you know is accused of defamation, you should contact an experienced attorney immediately.

Lawsuits for victims of unlawful surveillance and “revenge porn”

Wednesday, November 27th, 2013

Recently there have been a number of stories in the news about individuals posting intimate photos or videos of their exes online without their consent so as to humiliate or embarrass them. Sometimes these videos or pictures were taken and given consensually, and sometimes they are not, but either way, their public publishing can be devastating to the people in those photos/videos.

Recently, there was an arrest of a man in Manhattan named John Kelly for allegedly videotaping three women during consensual sex without their knowledge or consent. He is currently facing felony charges of Unlawful Surveillance in the Second Degree.

One of the interesting things about this case is the question of whether the victims have viable lawsuits against Mr. Kelly. They may not be able to show that they suffered damages if the videos were never shown to any other people. Arguably, the only damages they could claim are that they suffered mental anguish from knowing that someone with whom they had voluntarily had sex had videotaped them doing so.

In contrast, a woman in Massachusetts recently filed a lawsuit against a Buddhist temple alleging that a private sexual videotape was distributed without her consent among other members of her Buddhist community. Here, in contrast to the Kelly case, there are much more clear damages to articulate for the victim in the civil suit, as she can allege that people with whom she did not voluntarily have sex have viewed her in an embarrassing position.

Finally, a student at Villanova was recently arrested for not only unlawfully videotaping naked women without their consent, but also uploading the videos to hardcore pornography websites. Again, the victims in this case should have strong and viable lawsuits against this young man, though he personally may not have enough money to be anything other than “judgment proof”.

Many angry exes upload their sexual videos to “revenge porn” websites, which are becoming increasingly common and prevalent. However, New York – unlike some other states like New Jersey – does not have an “invasion of privacy” tort or cause of action at common law (though when the pornography involves minors, there are remedies available in the federal system for victims). A number of organizations have sought to change this by proposing and lobbying for legislation to combat the phenomenon of “revenge porn.” One New York Assemblyman has already drafted some legislation that has not yet been approved but may help address the problem and create new civil causes of action for victims.

Also, the law makes it very difficult to sue the websites hosting these “revenge porn” images or videos. Currently, Section 230 of the 1996 Communications Decency Act affords internet service providers and website operators immunity from suit for the content posted by their users. Obviously, victims would love to see new legislation to allow them to both recover damages from these websites and/or eliminate the sites or get those sites to take down their images, but as it stands, the websites and internet service providers cannot be compelled to do so on First Amendment and CDA grounds.

For now, however, the most (and possibly only) applicable tort for “revenge porn” or unlawful surveillance lawsuits is intentional infliction of emotional distress. This tort can be successful where it is shown that a defendant intentionally or recklessly engaged in severe or outrageous behavior and thereby caused severe emotional distress, mental trauma, and/or bodily harm to another. Clearly, publishing intimate and embarrassing photos or videos on a “revenge porn” website designed for the express purpose of embarrassing someone could rise to the level of intentional infliction of emotional distress.

Proving that the defendant published the videos or photos on the internet can be somewhat difficult, but keep in mind that the civil burden of proof is the lesser “preponderance of the evidence” standard, not the “proof beyond a reasonable doubt” standard applied in criminal cases. Obviously, it is fairly easy to prove that the ex had the images originally, but it can be more difficult to prove that the ex actually published the photos or videos online – this might require subpoenas of websites and internet service providers. Of course, a documented admission from the defendant is even better in some cases.

Damages in these types of civil lawsuits can be difficult to quantify or estimate, though it is theoretically possible that an individual could be awarded both “soft” damages for mental anguish and distress and reputational harm, while also recovering “concrete” damages for lost income or lost job opportunities attributable to the defendant’s actions in publishing images or videos online.

If you or a loved one have been the victim of unlawful surveillance or “revenge porn,” you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson LLP. In particular, Matthew Galluzzo is a former sex crimes prosecutor with a long history of helping victims of sex crimes achieve justice.

Galluzzo & Johnson wins major trial acquittal in rape case

Monday, October 21st, 2013

On October 15, 2013, the attorneys at Galluzzo & Johnson LLP won a total trial acquittal for their client in a very difficult rape case in Delaware County, New York. Their client, a student at an upstate university, was accused of raping a fellow student in his dormitory room. The complaining witness testified and the client’s roommate testified that he helped our client rape the woman. Two “prompt outcry” witnesses, a forensic nurse, and two DNA experts also testified for the prosecution. Nonetheless, the jury deliberated only 45 minutes before announcing that it had decided to acquit our client of Rape in the First Degree, Criminal Sex Act in the First Degree, Sexual Abuse in the First Degree, and Unlawful Imprisonment in the First Degree (it took approximately 20 minutes to assemble the jury to announce its decision after the note was sent to the judge indicating it had reached a decision). A conviction for the top charge carried a maximum possible sentence of 25 years in jail and lifetime registration as a sex offender.

An article from the local newspaper, the Walton Reporter, is attached below. Matthew Galluzzo, a former sex crimes prosecutor from Manhattan, was the lead attorney at trial.

Walton Reporter Lynch Article

If you or a loved one have been wrongfully accused of a rape or sexual assault, you should strongly consider contacting the criminal defense attorneys at Galluzzo & Johnson LLP.