Our nation’s recent economic difficulties have seemingly spurred an increase in financial-related crimes.  One particularly common financial crime is embezzlement of corporate money by corporate officers, employees, or financial professionals.  (Recently, we have also seen a number of incidences of embezzlement involving co-op/condominium associations, charities, religious groups, and social organizations).  In New York, the majority of these crimes are prosecuted under state law, and the applicable charges are generally contained in Penal Law Chapter 155.  In these types of cases, charges of “falsifying business records” under Penal Law Chapter 175 are also common.

The classic embezzlement case involves a corporate treasurer, in-house accountant, or employee with access to the company checkbook diverting money from the corporate account into his own account, and then “cooking the books” to hide the missing money from other officers. Thieves generally hide their actions by only taking a small amount at a time so as to not raise any red flags; however, they inevitably get caught when the missing amounts become quite substantial over an extended period of time.  Sometimes these cases can be as simple as a cashier stealing from the register, and other times they are extraordinarily complex matters involving shell accounts and numerous offshore wire transfers.

Regardless of their methodology, embezzlers that get too greedy are almost always caught and confronted by another employee or officer.  Of course, everything the embezzler says to the other employee during that confrontation can be used against them in a court of law – civil or criminal – and the accused has no Miranda rights because the other employee is not a law enforcement officer.

Once caught, embezzlers now face a difficult choice: do they repay the money or not?  On the one hand, repayment of the money may be the only way to persuade the organization not to report the theft to the police and thus avoid arrest.  On the other hand, the thief could repay the money and still be arrested, as the repayment of the money does not “cure” the original crime.  In fact, repayment of the money could even be construed as an admission of guilt in a criminal prosecution.

From the corporation’s standpoint, there are some advantages to simply calling the police immediately.  Law enforcement can relieve some of the time and effort spent pursuing the investigation, and an arrest may eventually result in the thief being forced to pay court-ordered restitution as part of his plea bargain.  (It may also prevent the thief from simply fleeing the jurisdiction).  However, a criminal defendant could be incarcerated during the pendency of his criminal case and/or be forced to pay significant legal fees.  Thus, the arrest may render him incapable of repaying the money that he stole.

One important thing for both sides of this equation to take into account in making their decisions is the potential penalty for the crime.  Unsurprisingly, the criminal penalties increase in step with the amount of money that was taken.  Also, the amount of money taken is aggregated, so the important number is the grand total taken from the particular victim.  (Put another way, for example: 5 thefts of $10,000 from the same victim are almost always charged as a single aggregate theft of $50,000, not as five counts of $10,000 theft).  Theft of $1000 or more typically qualifies as a Class E non-violent felony (Grand Larceny in the Fourth Degree, Penal Law Section 155.30[1]), theft of $3000 or more is a Class D non-violent felony (Grand Larceny in the Third Degree, Penal Law Section 155.35), theft of $50,000 or more is a Class C non-violent felony (Grand Larceny in the Second Degree, Penal Law Section 155.40), and theft of $1,000,000 or more is a Class B non-violent felony (Grand Larceny in the First Degree, Penal Law Section 155.45).  The potential sentencing ranges for these charges are further explained here.  In our experience, plea bargains that involve restitution in lieu of jail can sometimes be negotiated where the amount of money stolen is not too great and the arrestee has an ability to repay the money.

Furthermore, the embezzler may potentially face charges relating to the falsifying of business records.  Those charges come from Penal Law Chapter 175.  Penal Law Section 175.00 defines the applicable terms in the chapter:

175.00 Definitions of terms.   The following definitions are applicable to this article: 1. “Enterprise” means any entity of one or more persons, corporate or otherwise, public or private, engaged in business, commercial, professional, industrial, eleemosynary, social, political or governmental activity.   2. “Business record” means any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.   3. “Written instrument” means any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.

Falsifying business records charges can be Class A misdemeanors or Class E felonies.  The elements of those crimes are explained in Penal Law Sections 175.05 and 175.10 (see below). In a nutshell, the misdemeanor charge becomes a felony when the accused falsified the business record in order to commit another crime (such as Grand Larceny).  Thus, the typical embezzler is liable for a Class E felony that could make him subject to a consecutive prison sentence.

S 175.05 Falsifying business records in the second degree.   A person is guilty of falsifying business records in the second degree when, with intent to defraud, he: 1. Makes or causes a false entry in the business records of an enterprise; or   2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or   3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or   4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.   Falsifying business records in the second degree is a class A misdemeanor.

S 175.10 Falsifying business records in the first degree.   A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.   Falsifying business records in the first degree is a class E felony.

Interestingly, Penal Law Section 175.15 does provide a defense for suspects that may have only falsified business records per the instructions of their superiors:

S 175.15 Falsifying business records; defense.   In any prosecution for falsifying business records, it is an affirmative defense that the defendant was a clerk, bookkeeper or other employee who, without personal benefit, merely executed the orders of his employer or of a superior officer or employee generally authorized to direct his activities.

The attorneys at Galluzzo & Johnson LLP are former Manhattan prosecutors with extensive experience investigating embezzlement and other forms of in-house theft and fraud.  We have defended individuals suspected of having committed these types of crimes in courts throughout the New York area.  We also assist corporations, condo/co-op boards, and other organizations with their internal investigations in situations where they believe that one of their employees is stealing from them.  Thus, if you need either criminal defense representation or assistance discovering the thief in your organization, you should strongly consider hiring the experienced former prosecutors and criminal defense attorneys at Galluzzo & Johnson LLP.  Call them today to schedule an appointment and receive a fair quote for their services.  

One very common charge in New York for repeat shoplifters is Burglary in the Third Degree (Penal Law Section 140.20).  A person is guilty of this Class D felony when he knowingly or unlawfully enters or remains in a building with intent to commit a crime therein. Penal Law Section 140.00[5] provides the definition of “enter or remain unlawfully in a building”: A person “enters or remains unlawfully” in or upon premises when he is not licensed or privileged to
do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.

The frequency of prosecutions for Burglary in the Third Degree can be attributed largely to the rise in the use of “trespass notices” by major retail chains like Duane Reade, Macy’s, J&R, etc.  It is very common for shoplifters caught by store security at a major retail chain store to be forced to sign a “trespass notice,” meaning that they acknowledge that they no longer have the store’s permission to shop at the store (or at any other branches of the store chain, typically).  (This happened to a woman at an Upper East Side Fairway grocery store in a well-publicized case recently.)   These “trespass notices” basically allow store security guards to immediately arrest anyone that has received one the next time they step foot in the store.  The applicable charge for merely stepping foot inside a store where one has been given a “trespass notice” is generally Criminal Trespass in the Fourth Degree [Penal Law Section 140.05], a violation.  However, when someone is caught attempting to steal property from inside a store in which they already have a trespass notice, they are suddenly on the hook for a felony – Burglary in the Third Degree (Penal Law Section 140.20). The penalties for that crime can be very serious, such as numerous years in upstate prison.   Consider for a moment also that without that trespass notice, the defendant could typically only be charged with Petit Larceny (Penal Law Section 155.25), a class A misdemeanor punishable by up to just one year in jail, or Attempted Petit Larceny (Penal Law Section 110/155.25), a class B misdemeanor with only 90 days as the maximum.

These trespass notice burglary cases are routinely indicted because they are usually quite easy for a prosecutor to indict.  First, the prosecutor can easily prove that the defendant was aware of the trespass notice with a “trespass notice affidavit” from a store security guard, in which the store security guard affirms that he in fact had previously informed the defendant that he/she was no longer allowed inside the store, and that she signed a document acknowledging this warning.  Notably, photos of the defendant are usually attached to this trespass notice and kept on file by the store security.  Thus, the only real remaining element for the prosecutor is typically “the intent to commit the crime therein” on the part of the defendant.  If the prosecutor can show that the person in the store was concealing property, or making way for the exit without paying, or carrying “burglar’s tools” such as foil-lined bags designed to subvert security systems, then the prosecutor can generally indict – and convict – someone of this crime. Fortunately, there are numerous strategies that experienced criminal defense attorneys can use to prevent indictments and convictions.

If you or a loved one have been arrested for a “trespass notice burglary” and charged with Burglary in the Third Degree (Penal Law Section 140.20), you should strongly consider contacting the smart and aggressive defense attorneys at Galluzzo & Johnson LLP.  They apply their expertise gleaned from years as having worked as Manhattan prosecutors towards defending their clients or negotiating favorable plea bargains.  Call them or email them anytime to set up an appointment or have them appear at any arraignment.

Under New York state law, it is a serious crime to knowingly make or use counterfeit money with the intent to deceive or defraud another.  The applicable statutes are Class C non-violent felonies, meaning that someone convicted of this crime (as a first felony offense) can be sentenced to an indeterminate sentence of from 1-3 years or as much as 5-15.

First, a person is guilty of Penal Law 170.15 (Forgery in the First Degree) when, with intent to defraud, deceive or injure another, he or she falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed: 1) Part of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental instrumentality, or 2) Part of an issue of stock, bonds or other instruments representing interests in or claims against a corporate or other organization or its property.

Obviously, there are some terms in the definition above that require some explaining.  The Penal Law provides the following:

A “written instrument” is any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.  (See Penal Law Section 170.00[1])(Obviously, this definition encompasses a whole lot of things.)

A person “falsely makes” a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof.  (See Penal Law Section 170.00[4]).

A person “falsely completes” a written instrument when, by adding, inserting or changing matter, he transforms an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that such complete instrument appears or purports to be in all respects an authentic creation or or fully authorized by its ostensible maker or drawer.  (See Penal Law Section 170.00[5]).

A person “falsely alters” a written instrument when, without the authority of anyone entitled to grant it, he changes a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of mater, or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer. )(See Penal Law Section 170.00[6]).

The possession of counterfeit money can also be a Class C felony under Penal Law Section 170.30 (Criminal Possession of a Forged Instrument in the First Degree).  That section provides that a person is guilty of this crime when, with knowledge that the instrument is forged and with intent do defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in Penal Law Section 170.15 (see Forgery in the First Degree, above)(“uttering” a forged instrument basically means knowingly presenting it to somebody in a fraudulent attempt to use it).

As far as counterfeit money is concerned, defendants found in possession of it are usually charged with one count for each counterfeit bill.  These charges can be difficult to prove, however, as the prosecutor has to demonstrate that the defendant knew that the money was counterfeit.  Certainly, an experienced criminal defense lawyer can argue that the defendant was given the counterfeit money by someone else without realizing that it was fake. For this reason, in these types of cases, it is absolutely critical for accused people to refrain from speaking to law enforcement officers without first speaking with an experienced criminal defense lawyer.

Prosecutors often try to prove knowledge by showing profligate or lavish spending behavior with the counterfeit money by the defendant, or by tying the defendant to a known counterfeiting operation, or by demonstrating that the forged money was so obviously fake that the defendant could not have believed that the bills in his possession were real.

If you or a loved one have been arrested and accused of a violation of Penal Law Sections 170.15 or 170.30, you should consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Their three former Manhattan prosecutors have extensive experience with a variety of forgery- and fraud-related cases, and are prepared to apply their expertise to your defense.

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

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

§1-03 General Provisions

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

The workplace can be stressful, and sometimes that stress causes co-workers to get angry enough with each other to engage in physical altercations.  From a  lawyer’s standpoint, however, these cases can be especially complicated for a number of reasons.  The attorneys at Galluzzo & Johnson LLP include three former prosecutors that regularly represent defendants, victims, and employers in these types of matters.  They understand the complex dynamics involved in these cases and how best to represent the interests of their clients in the many different arenas that may be involved.

To begin, a workplace assault can subject the participants to several criminal charges.  The most common of these is Assault in the Third Degree (Penal Law Section 120.00, a Class A misdemeanor), which applies to intentional attacks that result in physical injury.  Where the resulting injury is serious or a weapon is used, the employee could be subject to the Class D violent felony of Assault in the Second Degree (Penal Law Section 120.05).  Even when no one is hurt, but punches are thrown, the participants can be arrested for Attempted Assault in the Third Degree, a Class B misdemeanor (Penal Law Section 110/120.00).  Finally, threatening emails, phone calls, or voicemails by one employee to the other might be grounds for an arrest for the Class A misdemeanor of Aggravated Harassment in the Second Degree (Penal Law Section 240.30).

All of these charges can be defended in a variety of ways, and an experienced criminal defense attorney with a good relationship with the local prosecutor’s office may be able to negotiate a plea bargain whereby the defendant avoids receiving a criminal record in exchange for community service or anger management.

However, in some cases, the assault or injury is so serious that jail is a real possibility.  In those cases, defendants and employers should be especially wary.  Typically, employers conduct internal investigations whereby they interview witnesses and the participants in the assault.  The participants should understand that these statements that they make in response to questioning by their employers can and will be used against them in later criminal or civil proceedings, as the statements are neither privileged nor taken while in the custody of police officers.  There are thus no Miranda rights and no Fifth Amendment rights for the employees, either, so unfortunately, their decision not to answer questions could potentially result in their lawful termination.  (On a side note: The attorneys at Galluzzo & Johnson have used their prosecutorial and investigative experience to assist employers with investigations such as these, and have also represented individuals in connection with their employment arbitrations following workplace assaults).

Generally speaking, employers will not be held liable for a workplace assault.  Some exceptions may apply where it is alleged that the employer was on notice of a “hostile work environment” that contributed to the fight, or failed to provide adequate security to prevent one.  Worker’s Comp also does not usually cover workplace assaults, as intentional criminal acts by an employee are not typically contemplated as routine workplace hazards.  Employers should be aware that victims of workplace assaults typically seek to sue their attackers in civil court, and may attempt to record conversations with their co-workers or employers so as to collect evidence for their lawsuits.

Finally, workplace assaults can result in Orders of Protection being issued by Criminal Courts, and these court orders can make it especially difficult for the participants in the fight to go back to work.  Experienced criminal defense attorneys can sometimes successfully petition the arraignment judge to carve out exceptions to the typical orders of protection such that their clients can return to work without interruption, but employers may have to be prepared to make arrangements so that the employees can work separate and apart from each other.

If you or a loved one have been involved in a workplace assault, you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson LLP.  They have successfully represented many criminal defendants and many civil plaintiffs stemming from workplace violence.  As experienced criminal investigators, they are also able to assist employers in interviewing witnesses and conducting internal investigations into the circumstances of the fight, as necessary.  Call them or email them to set up a free consultation.

NYPD officers regularly arrest people without probable cause.  A wrongful arrest such as this often results in an innocent person spending a night, or more, in jail before he/she is released from custody. Sometimes the falsely arrested person has to spend months, even years, battling his/her case. Needless to say, criminal cases can result in huge legal fees, missed days of work, tremendous anxiety, and, at worst, the deprivation of liberty for those unfortunate enough to be forced to remain behind bars.  Fortunately, victims of false arrest can seek justice for these wrongs by filing lawsuits against the city.

What you might not know, however, is that even those people who are fortunate enough to have their cases dismissed early in the process can still potentially win money in civil lawsuits against the city.  Almost every night, the District Attorney’s Office issues a “decline prosecution,” whereby the office overrules the decision of the arresting police officer and releases the arrested person from custody (oftentimes, from Central Booking).  In some ways, the DA’s decision to dismiss the case can be construed as evidence that the police officer’s decision to arrest was in fact wrongful.  Thus, the person freed by the District Attorney this way can be surprisingly successful in winning a decent and quick settlement with the help of an experienced attorney.  Oftentimes, the person released from custody before seeing a judge for the first time (arraignment) has no idea why he is being released – if this sounds familiar to you, the DA probably decided to “decline prosecution” in your case, and you may have a viable lawsuit against the city.

If you or a loved one have been falsely arrested and had your case dismissed by the District Attorney’s Office, you should consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  Their team of former prosecutors understands how best to pursue civil lawsuits against the city for false arrest and malicious prosecution, and can maybe help you or your loved one win a settlement. They work on contingency, meaning that you don’t pay them a dime unless you collect.  Call them to schedule a free consultation to discuss the possibility of pursuing justice in civil court.

“Obstructing Governmental Administration,” (colloquially referred to as “O.G.A.”) is a very commonly charged crime in New York. While the penal law title is self-explanatory, the application of the charge might be broader than you think. Essentially, any act of intimidation or a physical or independently unlawful act which is committed with intent to obstruct governmental administration falls within the ambit of the statute, which lies in New York Penal Law § 195.05, and states as follows:

§ 195.05 Obstructing governmental administration in the second degree.

A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of  law or other governmental  function  or  prevents or attempts to prevent a public servant  from  performing  an  official  function,  by  means of intimidation,  physical  force  or  interference, or by  means of any independently unlawful act, or by means of interfering, whether  or  not physical  force  is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a  county, city,  town,  village,  fire district or emergency medical service or by means of releasing a dangerous animal under circumstances  evincing  the actor’s intent that the animal obstruct governmental administration.

Obstructing governmental administration is a class A misdemeanor.

“O.G.A.” covers a broad range of conduct; cases where convictions for O.G.A have been upheld include situations where defendants pulled the emergency brake on a subway car without any valid reason to do so, refused to move through a metal detector at a county courthouse in a manner which prevented others from entering, or ran on the “set” of an undercover “buy-and-bust” operation after being warned to leave and shouting that the police were present. While the statue requires “intimidation, or a physical or independently unlawful act,” merely refusing to cooperate with a police officer by giving information, or failing to turn over a driver’s license or registration when asked to do so will not fall within the ambit of the statute (although it might subject the actor to liability under the Vehicle and Traffic Law). Essentially, any act committed with the intent to frustrate the purpose or execution of an official acting in a lawful capacity can qualify, like smacking a summons book out of a police officer’s hand to prevent him or her from writing a ticket, for example.

Obstructing Governmental Administration seems to be committed most when street encounters between police officers and civilians go wrong. There are two scenarios where the charge is applied with the most frequency, the first being where civilians try to stop police officers from placing third parties under arrest, either by standing in between officers and the third parties, or by assaulting police officers and/or jumping on them to foil the detention (which also subjects the intervening person to the additional charge of resisting arrest, also a class “A” misdemeanor). Charges can be elevated to a felony if a person uses pepper spray or mace on the officer, or causes physical injury to the officer.

The second common scenario involves the swallowing of drugs in order to prevent officers from recovering them. While no actual “force” is used by the act of swallowing a bag or vial, courts have held that swallowing drugs in an attempt to avoid arrest for drug possession constitutes O.G.A., as well as the crime of “Tampering.” In either of these situation, the additional act of attempting to prevent the police or official actors from discharging their duties usually serves no purpose other than to escalate the situation, and results in additional charges for the police to bring to the District Attorney’s Office when these cases are being written up.

If you are charged with the crime of Obstruction of Governmental Administration, you should not hesitate to retain an experienced criminal attorney immediately. A conviction for O.G.A. results in the incurrence of a permanent criminal record, and is punishable by up to one year in jail.

Studies have shown that a surprising number of women that have been raped or sexually assaulted still choose not to report the attacks to the authorities.  Assuredly, even fewer pursue civil actions against their assailants.   Victims may be intimidated by the legal system and rightfully fear a loss of their privacy.  But the attorneys at Galluzzo & Johnson are firm believers that the system does work for those who are brave enough to pursue justice, and they are prepared to help victims skillfully navigate those waters.

Recently, the high-profile matter of Dominique Strauss-Kahn’s arrest has caused many laypeople to wonder how the criminal prosecutions of rape cases relate to the civil lawsuits filed by the victims.  Generally speaking, a smart civil attorney will wait to file a lawsuit alleging a sexual assault until after the criminal court case has resulted in a conviction, for three reasons.  First, if the defendant decides to plead guilty to a sex crime to resolve the criminal matter, his plea and allocution – which are done under oath – can be used as evidence (an admission, really) in the civil lawsuit.  Of course, an admission by the defendant under oath makes the civil lawsuit very easy to win.  Second, if the defendant is convicted after trial, that decision by the jury does not automatically guarantee a victory in the civil suit (as the criminal verdict does not constitute evidence in the civil proceeding), but it certainly makes a big settlement in favor of the plaintiff more likely.  Third and finally, civil lawyers also want to delay the filing of the civil lawsuit because the filing of that suit is likely to jeopardize the victim’s credibility in the criminal trial.  Indeed, one of the easiest ways for a criminal defense lawyer to discredit a rape victim at trial is to ask her, “And you have filed a civil lawsuit seeking millions of dollars, have you not?”  Of course, the implication for the jury is that the complainant has fabricated her story because she wants to get rich.  (This may have in fact contributed to the acquittal of the “Rape Cops” Kenneth Moreno and Franklin Mata).  Fortunately, the CPL allows attorneys to delay the filing of their sexual assault lawsuits when the criminal case is pending, without statute of limitations penalties.

An acquittal of the perpetrator in criminal court doesn’t necessarily mean that a civil lawsuit will be unsuccessful, however.  For example, O.J. Simpson was found “not guilty” of murder in criminal court, but was later found to be criminally responsible for the death of Nicole Brown in a civil trial.  The reason for these different results is that the standards of proof are different: in criminal court, the defendant must be found guilty beyond a reasonable doubt, but in civil court, the defendant must be proven liable by a preponderance of the evidence.  Clearly, the latter is a less difficult standard of proof than the former.   Thus, a civil claimant need not abandon her lawsuit simply because her accuser was found not guilty by a criminal jury.  (As an example, the writer thinks it will be very interesting to see the resolution of the $57 million civil lawsuit in the “Rape Cop” case involving Kenneth Moreno and Franklin Mata, who were found not guilty of rape and sex abuse but found guilty of official misconduct.).

Civil lawsuits can even be successful in cases where the perpetrator is destitute or not apprehended.  That is because there may be liability on the part of the operator of the premises where the rape occurred.  Hotels, bars, and concert venues that fail to provide adequate security to prevent a sexual assault can also be sued, even where the perpetrator eludes capture or is not apprehended.

If you or a loved one have been a victim of a rape or sexual assault and are considering starting a lawsuit against the perpetrator, you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson, LLP.  In particular, Matthew Galluzzo served as a prosecutor in the famous Sex Crimes Unit of the Manhattan D.A.’s Office, and thus he has real-world experience building and proving cases of sexual assault and rape.  His efforts have resulted in the conviction and incarceration of numerous sexual criminals, and now, he is available to help victims obtain the justice they deserve in civil court.  He has been recognized by the U.S. government as a leading expert in the investigation and prosecution of sex crimes, and his opinions on the prosecution of sex crimes have been sought out by television and print media.  Plainly put, if you have been a victim and are seeking justice in civil court, or if you just need help understanding the often daunting and intimidating criminal justice process, you would be hard-pressed to find someone better suited to do so.  Give him a call today to schedule an appointment.

Now that the warm weather is here, most native New Yorkers and tourists can enjoy the sunny weather by going to any one of our gorgeous parks to take in all of the historic sights and sounds the city has to offer.

Well, maybe not the sounds so much these days…You may have noticed green and white signs which are being placed in public areas by the Department of Parks and Recreations or the Central Park Conservancy, most notably in the Park’s Strawberry Fields, Bethesda Fountains and the Boathouse. The signs, which have been placed in areas where talented musicians play soothing music which enriches the city’s cultural value and history, designate the areas they are posted in as “Quiet Zones” and prohibit musical instrument playing in addition to playing music through amplifying devices. So, no radios or speaker systems to disturb the peace…but what about the gentle classical music you may have been accustomed to hearing when strolling through the park? You won’t hear it anymore, if the city can help it…So far this year cellists, saxophonists, violinists, guitarists, and flutists playing without any electric amplification have been issued summons by the Parks Department charging them with making unreasonable noise, and asked to cease playing music at all in these areas.

While the New York Civil Liberties Union has gotten involved in the matter to address the First Amendment issues associated with the city’s prohibition of music playing in our city, the fact of that matter remains that musicians are being summoned to criminal courts to answer to judges for their actions and pay fines. Presumably they are being charged under Parks and Recreations Regulations § 1-05, section (a) which deals with:

Noise; Musical Instruments; Sound Reproduction Devices

1. No person shall make, or cause or allow to be made, unreasonable noise in any park so as to cause public inconvenience, annoyance or harm. Unreasonable noise means any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivity or injures or endangers the health or safety of a reasonable person of normal sensitivity, or which causes injury to plant or animal life, or damage to property or business.
2. No person shall play or operate any sound reproduction device, as defined in §1-02 of these Rules, in any park without a permit from the Department of Parks & Recreation and any other City agency or agencies with pertinent jurisdiction. This paragraph (2) shall not apply to the regular and customary use of portable radios, record players, compact disc players, or television receivers, or tape recorders played or operated in full accordance with these Rules so as not unreasonably to disturb other persons in their permitted uses of the park, except that in areas designated by the Commissioner as “quiet zones,” such regular and customary use of sound reproduction devices shall be prohibited. Signs shall be posted in all quiet zones advising the public of such prohibition. Use of radios and other sound reproduction devices listened to solely by headphones or earphones, and inaudible to others, is permitted in all areas of the parks.

While subdivision two would apply where people are enhancing the volume of their music with speakers or amplifiers, subsection 1 applies to those who simply play their instruments with no sound enhancement. Subsection one, however, requires that the “unreasonable noise” cause “public inconvenience, annoyance or harm.” It’s hard to imagine a violinist in Central Park causing such harm…especially if people are surrounding the musician and giving him or her a few dollars for the performance.

If not charged under the Parks and Recreations Regulations, perhaps a police officer could charge a musician under Administrative Code  § 24-218, which classifies “making unreasonable noise” as a misdemeanor, meaning it can leave the person charged with a permanent criminal record and carries a potential sentence of up to 20 days imprisonment, and/or a fine of anywhere from $50 – $500.

So, before you pick up your instrument and perform in Central Park, or anywhere in the city for that matter, check to make sure you are not in a designated “Quiet Zone.” If you are, be prepared to be stopped by the police and issued a summons for violating the city’s new “noise” policy.

If you or someone you know has been given a summons to appear in court, accused of making “unreasonable noise” in violation of any New York statute, contact an experienced criminal lawyer from the firm of Galluzzo and Johnson to represent you.

The most serious drug-related felonies in New York state law are Criminal Possession of a Controlled Substance in the First Degree (Penal Law Section 220.21) and Criminal Sale of a Controlled Substance in the First Degree (Penal Law Section 220.43).  As Class-A1 felonies, they are punishable by a minimum of 8 years in state prison for first-time offenders, and by as many as 20 years.  (Unfortunately, people charged with these crimes are ineligible for Judicial Diversion- the program whereby drug offenders are given an opportunity to attend a drug rehabilitation treatment program instead of prison.)

A person is guilty of Criminal Possession of a Controlled Substance in the First Degree when he or she knowingly and unlawfully possesses:

1) one or more preparations, compounds, mixtures or substances containing a narcotic drug (which includes cocaine or heroin, for example) and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more; or

2) methadone and said methadone weighs five thousand seven hundred sixty milligrams or more.

(An ounces to grams converter is available here).

Sometimes, in First Degree possession cases, multiple individuals are charged with the same crime at the same time for possessing the same large quantity of narcotics.  Typically, the prosecutor will use one of the statutory presumptions available to him under Penal Law Section 220.25 – such as the “automobile presumption” (subsection 1) or the “room presumption” (subsection 2).  However, both of these presumptions are rebuttable, and a skilled defense attorneycan refute them with evidence and arguments that the accused was unaware of the presence of the narcotics in the automobile he was riding in or the room he was sitting in.

A person is guilty of Criminal Sale of a Controlled Substance in the First Degree when he knowingly and unlawfully sells:

1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more; or

2) methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

As you can see, the minimum quantities for the sale charges are smaller than the minimum quantities for the first-degree possession charges.

In our experience, an arrest for a First Degree sale usually suggests a long-term investigation by undercover narcotics officers.  In those cases, an undercover officer has probably made multiple purchases from an accused (in order to gain his trust) before attempting to purchase a large enough quantity to qualify for an A-1 charge.  We find, however, that sometimes people are arrested and accused for these crimes even when they played a small or non-existent role in the sale(s).  These individuals can have very defensible cases.  A skilled defense attorney can also challenge the credibility of the confidential informant or undercover officer through a variety of other cross-examination techniques, as well.

In a nutshell, these cases carry very stiff penalties but can be defeated with the assistance of a defense attorney that understands how to win them.  If you or a loved one have been arrested for one of these crimes, then you should strongly consider hiring the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Their team of three former senior Manhattan prosecutors understands how these sorts of cases are constructed by the police, and thus, they have unique insight into how best to defend against them.  Give them a call to schedule an appointment today: 212-918-4661.