Posts Tagged ‘attorney’

Illicit student-teacher relationships and the law in New York

Tuesday, June 9th, 2015

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

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

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

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

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

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

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

Criminal defense of professional athletes in New York

Monday, June 8th, 2015

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

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

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

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

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

Do I need an attorney for my Desk Appearance Ticket?

Monday, June 8th, 2015

Individuals without criminal records arrested for misdemeanors in New York City are routinely charged by way of a Desk Appearance Ticket. Though individuals issued Desk Appearance Ticket do not spend twenty-four hours in prison awaiting arraignment like other defendants, their cases are no less serious than those misdemeanor cases pursued the “traditional” way (in which defendants do not get released from custody until they are arraigned before a judge the day after their arrests). One of the advantages for defendants issued Desk Appearance Tickets (as opposed to the “traditional way”) is that they have an opportunity to seek counsel of their choosing for their arraignments. As a result, the attorney-authors of this blog are routinely asked: “Should I hire an attorney for my Desk Appearance Ticket?”  Our typical answer: only if you care about your future, your career, or your family.

Public defenders are available for indigent defendants at arraignments on Desk Appearance Tickets.  However, if you are not indigent, then you do not qualify for a public defender, meaning that you will have to return with a privately-retained lawyer anyway. Even if you do qualify, technically, for a public defender, you should consider various other reasons for hiring a private attorney.  First and foremost, you will be unable to speak to a public defender in advance of your court date, whereas a private defense attorney can meet with you and prepare you and answer your questions in advance of your court date. Also, defendants with private attorneys are usually seen by the judge first and can typically leave before 10:30 am; those people relying on public defenders may find themselves waiting in line all day to talk to an attorney, and waiting to see a judge well into the afternoon session. If your case lasts beyond the arraignment, you may find it extremely difficult to get ahold of a public defender, as they are typically responsible for hundreds of criminal cases at a given moment and are often unable to respond to voicemails; in contrast, a private lawyer presumably has more time to answer your phone calls and questions and meet with you in the office. The private attorneys at our office, unlike public defenders, will continue to work on your case after its done to ensure that where, if applicable, the records of your arrest have been properly sealed and the matter cleared from the public domain.  Finally, the attorneys at our office, unlike public defenders, can sometimes in certain types of cases assist out-of-state residents, students, or foreign citizens by appearing for them in lieu of personal appearances.

Most importantly, though, these matters are important and must be taken seriously. A criminal conviction – even for a misdemeanor – can create permanent obstacles to employment, naturalization, university admission, and more. There is no expungement of criminal convictions in New York, so a criminal conviction for even a misdemeanor is a permanent matter of public record and can haunt a person for the rest of his or her life. FINRA-licensed brokers can unwittingly jeopardize their careers in seemingly trivial matters, and non-citizens can prevent themselves from being able to stay in the United States in accepting a disposition that seems otherwise reasonable. These are mistakes that can be avoided with the advice of good and prepared counsel.

The criminal defense attorneys at Galluzzo & Johnson LLP have successfully defended hundreds of Desk Appearance Tickets throughout New York City and obtained countless dismissals of the charges contained therein. If you or a loved have been charged with misdemeanors by way of a Desk Appearance Ticket, you should take the matter seriously and seriously consider retaining the experienced former prosecutors and criminal defense attorneys at Galluzzo & Johnson LLP. A single mistake at your court appearance could have serious and permanent consequences for life, family, and career… wouldn’t you rather know that the matter is being handled by a seasoned professional of your choosing?

Criminal assault charges for non-citizens in New York

Monday, June 8th, 2015

Criminal assault charges for non-citizens in New York

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

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

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

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

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

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

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

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

New York criminal defense attorney for Québec natives and Canadian citizens

Monday, June 8th, 2015

Though it is impossible to estimate their exact numbers, at any given moment there are tens of thousands of Canadian citizens living and working in New York City.  In addition, thousands of Canadians from Québec take advantage of their geographic proximity to New York City to visit as tourists. Inevitably, though, every year a few unfortunate Canadians and Québecois find themselves facing criminal charges in New York City.  Those individuals face additional obstacles within the criminal justice system that most Americans do not, including, among other things, language barriers and immigration consequences.

To begin, for Canadians there are many serious New York criminal convictions that can result in deportation from (or future inadmissibility to) the United States. Even seemingly minor or innocuous arrests can effectively result in deportation from (or inadmissibility to) the United States by blocking the obtaining of a visa or the renewing of a current one. It is absolutely critical that any Canadian citizen charged with a crime consider the services of an experienced criminal defense attorney that understands these potential immigration consequences, as well as the dizzying array of visas and work permits potentially available to Canadian citizens. Canadians are accustomed to passing through the American borders with ease, but those with pending criminal cases are often surprised to be detained or prevented from entering by U.S. Customs or immigration officials.

In addition, though most Canadian francophones are multilingual, many are more comfortable communicating in French than in English. Those individuals, understandably anxious about the criminal justice process, should strongly consider retaining a French-speaking attorney that is capable of explaining New York criminal procedure in their preferred language.

The attorneys at Galluzzo & Johnson LLP have successfully represented numerous Canadian citizens in connection with criminal cases and investigations in New York and are uniquely qualified to communicate with French speaking natives of Québec. If you or a loved one are Canadian and facing criminal charges in New York City, you should strongly consider contacting the attorneys at Galluzzo & Johnson LLP.

 

 

 

Visas and pending criminal cases and ACDs

Monday, June 8th, 2015

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

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

 

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…