New York Criminal Defense Blawg

Criminal arrests are upsetting to everyone but can be particularly problematic for financial and securities professionals because of the possible employment and licensure consequences.  Brokers, traders, bankers, financial advisors, and other financial professionals typically have to be licensed through FINRA, the Financial Industry Regulatory Authority.  Some of the most common licenses include Series 7 and Series 63, but there are many.  For those licensed professionals, criminal arrests and convictions may trigger updating of the U4 FINRA form.   (Note: Employers may also have company policies requiring disclosures above and beyond what is required by FINRA).  The registration form demands the following questions:

ESPN.com is reporting that Syracuse police are re-opening an investigation into allegations that a Syracuse University assistant basketball coach molested two underage ballboys beginning in the 1970s. The story reports that the criminal statute of limitations – or the deadlines for bringing a criminal case against someone – is five years. That is only somewhat accurate as the statutes of limitation for child-related sex abuse crimes are complicated and depend upon the nature of the criminal act. Criminal Procedure Law Section 30.10 sets forth the applicable criminal statutes of limitation. New legislation passed in 2006 changed many of these statutes of limitation for sex crimes. Now, there is no deadline for bringing cases of Rape in the First Degree (Penal Law 130.35), Aggravated Sexual Abuse in the First Degree (Penal Law Section 130.70), or Course of Sexual Conduct in the First Degree (Penal Law Section 130.75), which are all Class B violent sexual felonies. In cases involving other sex crimes against children, there is a five-year statute of limitation that begins upon the victim turning 18 (meaning that the deadline would be the person’s 23rd birthday). See Criminal Procedure Law Section 30.10[3][f].  It is unclear what exactly Bernie Fine is alleged to have done with these two ball-boys, Bobby Davis and Mike Lang, but according to the complaints, the victims were under the age of 13 and Fine was an adult.  Thus, the charges above could potentially apply, but there are many others that might apply that would be too old to pursue.

A look now at the potential charges without a statute of limitation in New York:

A person is guilty of Rape in the First Degree (Penal Law Section 130.35) if he or she engages in sexual intercourse with another person: 1. by forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more.

“Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight. See Penal Law Section 130.00(1).  By “ordinary meaning,” the statute means vaginal intercourse.

“Forcible compulsion” means to compel by either: a) use of physical force, or b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. See Penal Law Section 130.00(8).

“Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. This term often applies in cases involving “date rape” drugs, such as rohypnol. See Penal Law Section 130.00(7).

A person is guilty of Aggravated Sexual Abuse in the First Degree (Penal Law Section 130.70) when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person: a) by forcible compulsion; b) When the other person is incapable of consent by reason of being physically helpless; or c) When the other person is less than eleven years old.

A person is guilty of Course of Sexual Conduct Against a Child in the First Degree when, over a period of time not less than three months in duration: a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than eleven years old; or b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

“Oral sexual conduct” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. See Penal Law Section 130.00(2)(a).

“Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus. See Penal Law Section 130.00(2)(b).

“Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission or ejaculate by the actor upon any part of the victim, clothed or unclothed. See Penal Law Section 130.00(3).

“Aggravated sexual contact” means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child. See Penal Law Section 130.00(11).

“Sexual conduct” means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact. See Penal Law Section 130.00(10). Thus, in determining whether the statute of limitations might have run in the Syracuse case, the police will have to determine whether the witnesses are credible, what their ages were at the time of the crimes, and the number and nature of the acts committed against them. In short, though, Bernie Fine is probably safe from criminal prosecution by virtue of the states of limitation unless there is a finding that he committed a forcible act or an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact.

If you are a victim of rape or sexual abuse, or if you have been falsely accused of having committed one of these crimes, then you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson LLP. Matthew Galluzzo, in particular, was a prosecutor in the famous Sex Crimes Unit at the Manhattan District Attorney’s Office, and now represents victims in civil lawsuits against their abusers, as well as innocent criminal defendants. Give them a call today to discuss your case and determine whether they can be of assistance to you.

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.  

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.

There is an age-old principle of law which says that ignorance of the law is no excuse for breaking it (ignorantia juris non exusat); if it were, one could claim a defense to every crime on the grounds that he/she was unaware such conduct was illegal. While the general policy implications of the doctrine are obvious, there is one particular area of the law where this doctrine seems to have an extremely harsh impact on individuals and their families, and that is in cases where people with out-of-state permits to possess firearms pass through either one of New York City’s two major airports with properly-secured guns, completely unaware that they are committing what is classified as a “violent felony” here. What’s worse is that their conduct is perfectly legal in their home states and they have no idea that New York does not recognize their out of state gun permits. The result is that travellers literally hand over their weapons to the authorities thinking that what they are doing is perfectly legal and proper, only to find out that the are being arrested and charged with a serious crime.

Many people enter New York City with guns which are legal to possess in their home states. In fact, many of these people have properly obtained permits to possess their guns back home and are simply unaware that those permits do not bestow the right to possess those guns here in New York City. All too often, unsuspecting travelers will walk into either La Guardia or JFK International airport with their firearms under the mistaken belief that the permit or license they properly obtained in their home state is applicable here. The traveler has no idea that he or she is violating New York law by possessing the firearm until he/she is arrested after properly securing the firearm in the appropriate travel case and declaring it at the airport. In other situations, the passenger secures and checks the gun in their home state where they are duly licensed, in compliance with Federal Law and airline regulations, and no one in the departing state stops them from travelling to New York City! It isn’t until that person arrives in New York and finds themselves in handcuffs and shipped off to central booking then criminal court, where it can take 24 hours in custody before they get to see a Judge and hopefully the light of day if they are released. The result is both shocking and terrifying to the person who never saw any of this coming…

In a vast majority of these cases, not only has the person secured the firearm in the proper travelling case, but they have unloaded the firearm and secured the ammunition apart from the firearm itself and declared or checked that too. Not only is the person unaware that their out of state permit has no effect in New York, they have no idea that in the eyes of New York law they are carrying a LOADED firearm.

New York Penal Law 265.00(3) defines a “firearm,” in pertinent part, as any pistol or revolver. PL 265.00(15) defines a “loaded firearm” as follows – “any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.”

The italicized portion of subdivision 15 is what makes this common occurrence so serious – even if there isn’t a single bullet in the gun, the law will consider it “legally loaded” if the person in possession of the gun is also in possession of ammunition for it, regardless of the fact that it is removed from the gun itself. That the ammunition is in a completely separate container or section of the packaging than the gun is of no consequence – you are in possession of a “loaded” firearm.

As if this weren’t enough of a shock to the traveler who didn’t realize he/she was doing anything illegal, that person is then charged with violating Penal Law Section 265.03(3), Criminal Possession a Weapon in the Second Degree, which reads as follows:

“A person is guilty of criminal possession of a weapon in the second degree when such person possesses a loaded firearm.”

This charge is a class C violent felony, which means that it carries a MINIMUM sentence of 3.5 years in prison, and as much as 15 years in prison. The case is then handed to a prosecutor in about as perfect a package as was the gun when it was literally handed over to the authorities by the traveler at the airport. Because there is often no factual question that the traveler possesses the gun, and ignorance of the law provides no legal defense, the prosecutor then has all of the leverage in world. The prosecutor can demand a 3.5 year prison sentence, or may come down to a lower felony and offer less time (The Manhattan District Attorney’s Office has often demanded a 2 year prison sentence in even first arrest gun cases). The one silver lining, however, is that the prosecutor also has the discretion to come down to a non-jail sentence, and a defense attorney can advocate for leniency despite the fact that there is no legal defense to the charge.

The only option in a case such as this is to hire an experienced attorney who can start by making a strong bail argument to secure your release (Judges generally tend to set some bail when out-of-state defendants are before them at arraignment) and then hit the ground running to work with the prosecutor to try to negotiate a fair disposition that avoids the stiff penalties of imprisonment that are available given the nature of the charges.

If you or someone close to you has been arrested for bringing a firearm to one of New York’s airports, or for gun possession anywhere for that matter, contact an experienced criminal defense attorney at Galluzzo and Johnson LLP, where several of our attorneys are former prosecutors can help you.