New York Criminal Defense Blawg

Traditionally, the crime of “Unlawfully Dealing with a Child” has been employed in cases involving the sale of alcohol to a minor, as subsection two of Penal Law Statute 260.20 makes it a class “A” misdemeanor to give or sell an alcoholic beverage to a person under the age of 21. Prosecutors and police are increasingly utilizing subsection 1 of that same statute, which deals with cases where people knowingly permit children to enter or remain in locations where certain illegal sexual activity is being conducted, or where “activity involving controlled substances” or marijuana is “maintained and conducted.” This blog entry deals with the portion of the section which pertains to the utilization of the charge in the context of drug cases.  The applicable language of the statute is as follows:

S 260.20 Unlawfully dealing with a child in the first degree.

A person is guilty of unlawfully dealing with a child in the first

degree when:

1. He knowingly permits a child less than eighteen years old to enter

or remain in or upon a place, premises or establishment where sexual

activity as defined by article one hundred thirty, two hundred thirty or

two hundred sixty-three of this chapter or activity involving controlled

substances as defined by article two hundred twenty of this chapter or

involving marihuana as defined by article two hundred twenty-one of this

chapter is maintained or conducted, and he knows or has reason to know

that such activity is being maintained or conducted.

(Unlawfully dealing with a child in the first degree is a class A misdemeanor)

Unlawfully Dealing with a Child in the First Degree is increasingly being charged by law enforcement in any case where narcotics are recovered in the vicinity of children, regardless of whether the elements of the charge are actually met. The most common fact pattern lately is as follows: the police department executes a search warrant at the home of a family, they “boom” the door in the middle of the night and arrest everyone inside and remove any children from the apartment. They search the entire apartment and recover a quantity of drugs from a container in the apartment and then charge one or more individuals with drug possession. For law enforcement, the mere fact that children were observed in an apartment where drugs were recovered is sufficient to levy this serious charge, however this is too broad an application of the crime. While police may believe that a child’s presence in a location where drugs are found (regardless of whether or not those drugs are in closed containers or packaged and hidden) is sufficient to make out this crime, a closer reading of the statue indicates otherwise. Indeed, the statute was enacted to punish people who permit children to witness harmful drug activity for obvious reasons. The law does not, however, have any applicability where drugs are secreted somewhere in an apartment and children happen to be present while they are there. Yet, law enforcement continues to levy this serious charge in situations they shouldn’t, and some prosecutors are going along with the idea that the charge should be pursued.

It should also be noted that a person has to “permit” a child to enter or remain in the place where the drug activity is being carried out. We have handled cases where individuals were charged with possessing drugs and unlawfully dealing with children where drugs were recovered from an apartment owned or rented by a third person, and where that third person’s children were present at the time police made the recoveries. It is hard to imagine how someone could rightfully be accused of permitting a child to remain in premises where drug activity was being carried out if they stashed drugs in a closed container and had no authority to permit the children of another  to enter or leave the location. Yet, law enforcement continues to charge the crime in any case where drugs and children happen to be under one roof, regardless of whether the elements of the statute are met.

Unlawfully Dealing with a Child is a serious crime with serious consequences, including significant jail time. If you or someone you know has been accused of committing this crime, contact an experienced criminal defense attorney immediately. 

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 federal government has designated the New York and New Jersey area as a “high intensity drug trafficking area” (HIDTA), and as such, the prosecution of drug trafficking in New York and New Jersey is a high priority for federal law enforcement officers.  Federal agents are especially well-funded and well-equipped in HIDTAs like New York and New Jersey, and they typically are very patient and thorough in building cases against entire organizations before indicting individuals or making arrests.

Types of Federal Drug/Narcotics Cases

In the Federal criminal justice system, narcotics and controlled substances cases are generally prosecuted under 21 U.S.C.§ 841 (Chapter 13 of Title 21 of the United States Code).  That provision makes it illegal to “manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance”. “Controlled substances” not only includes obvious narcotics – cocaine, crack-cocaine, and heroin – but also marijuana, steroids/HGH (human growth hormone), methamphetamines like “crystal meth”, ecstasy (also known as methylenedioxymethamphetamine or MDMA), date rape drugs such as GHB (Gamma-hydroxybutyric acid), and prescription drugs like oxycontin etc., among others.  The full list of federal controlled substances can be accessed here.

The federal government prosecutes a wide variety of types of drug-related crimes, although federal prosecutors typically do not get involved in low-level drug offenses, as there is little evidence of intent to “distribute or dispense”.  However, even in drug cases involving significant quantities, the offense could oftentimes just as easily be prosecuted by state law enforcement pursuant to Penal Law Chapter 220.  In any event, federal law enforcement will pursue relatively simple or straight-forward cases against “drug mules” arrested at airports, complex trafficking cases against international cartels and conspiracies, and almost everything in-between.  Indeed, 21 USC § 841 is very broad and can be applied to almost anything drug-related, so long as the quantity of controlled substances at issue is large enough to suggest some involvement with drug trafficking, rather than simple possession for personal consumption.

Many federal drug-related arrests and indictments come as a result of long-term investigations spear-headed by the FBI (Federal Bureau of Investigation) or DEA (Drug Enforcement Agency) and directed by Assistant U.S. Attorneys.  Oftentimes, federal law enforcement agents will use wiretaps, warrants, undercover officers, and confidential informants to build their cases.  Bank and financial records can also be used to bring money laundering charges under the Money Laundering Control Act (18 U.S.C. § 1956-57). And, after arrests are made, defendants are often compelled to testify against their co-conspirators because their potential penalties for refusing to cooperate with the government are so significant (more on this later).  Thus, these cases can be very very strong from the prosecutor’s perspective.

However, some defendants in federal narcotics cases can be charged with very serious crimes even when the evidence against them specifically is fairly flimsy.  Federal prosecutors love to use conspiracy charges such as RICO, the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1961-1968) to charge people who had little or no involvement with the drug-selling organization.  (Prosecutors also use a similar conspiracy statute – the Continuing Criminal Enterprise (CCE) Statute [21 U.S.C. § 848] to prosecute drug “kingpins” – but it does not apply to those that did not organize or manage the drug cartel/organization.)  These conspiracy charges sometimes allow prosecutors to introduce evidence of crimes committed by the organization in cases involving low-level or barely-involved defendants; fortunately, experienced criminal defense attorneys know how to identify this prosecutorial strategy and defeat it.

Federal Sentencing Guidelines and Drug/Narcotics Offenses

The penalties for federal drug offenses can be quite severe.  The system for determining the appropriate sentence in a federal drug offense is described by the federal sentencing guidelines, which are very complex.  In a nutshell, to ascertain a defendant’s possible exposure, one must first determine his “base offense level,” and next establish whether there are any possible aggravating factors or bases for “downward departures” from the base offense level.  Of course, the defendant’s criminal record is also very relevant to this equation as well.

Each base offense level provides a fairly narrow range for the defendant’s sentence.   For example, a first-time offender caught at the airport with 3 kilograms of cocaine in his suitcase will be charged with a base offense level of 28 (see Sentencing Guidelins, at page 144).  Thus, his “base” sentencing exposure would be 78-97 months in prison (about 6.5 to 8 years).

Fortunately for our drug mule in the example above, he could be eligible for several “downward departures” that would decrease his base offense level and allow him to receive a lighter sentence.  First, there would be a possibility of a three-level reduction as a result of the federal “safety valve”.  Realizing that many low-level and first-time drug offenders were being punished too harshly, Congress passed the “safety valve” statute in 1994 to allow for downward departures in cases where the defendants could prove five mitigating things about their crimes: 1) no one was harmed during the offense, 2) the offender has little or no history or criminal convictions, 3) the offender did not use violence or a gun, 4) the offender was not a leader or organizer of the criminal enterprise, and 5) the offender tells the prosecutor everything they know about their crime and the organization.   If the drug mule can prove these things to the satisfaction of the court, then the defendant would have to receive a sentence under offense level 25, which would be between 57 and 71 months in prison (i.e. about 5-6 years).  Moreover, our drug mule could even potentially get a reduction of four more levels by pleading guilty early in the process (potentially worth two base levels) and by having played a minimal role in the organization (potentially worth another two base levels).  In that case, a base level of 21 could mean a sentence between 37 and 46 months in prison (or about 3-4 years).  Clearly, then, having an experienced defense attorney that understands the complex nuances of the federal sentencing guidelines can be invaluable to a defendant.  Also, the fifth prong of the safety valve test described above can be hotly contested between the prosecutor and the defense attorney, as prosecutors will often argue to judges that defendants were not completely honest about their role or their organization during their “proffer” sessions with the prosecutor.  An experienced criminal defense attorney is thus also critical towards preparing the defendant for any proffers with the prosecutor and arguing his case to the sentencing judge.

On the flip side, aggravating factors can increase a defendant’s sentence.  Generally speaking, in cases where the defendant’s actions caused harm to another person, or violence or a weapon was involved or used, or there was a risk of harm to an underaged or pregnant person, or the accused was a “kingpin” or organizer of the enterprise, then the offense level can rise.  There are a number of other potential aggravating factors as well, but these are the most common.

Other Consequences to Federal Drug/Narcotics Prosecutions

- Civil Forfeitures

Federal law enforcement officers oftentimes seize cash, jewelry, vehicles, and other property while making drug-related arrests, and federal prosecutors will then bring civil forfeiture actions in an effort to permanently keep those items.  Civil forfeiture proceedings allow the government to keep money or property where they can demonstrate by a mere preponderance of the evidence that they were knowingly purchased with criminal profits.  Civil forfeiture actions can even be used against real estate holdings and bank account deposits in large scale federal drug cases; in these cases, an experienced criminal defense attorney capable of demonstrating that the seized money or property were not illegally obtained is especially important.

- Immigration consequences

Non-citizens of the United States arrested in the country on suspicion of drug trafficking will typically find themselves the subject of two concurrent proceedings: a criminal prosecution and an immigration removal process.  A non-citizen can be forcibly removed from the United States upon suspicion of drug trafficking; indeed, a criminal conviction is not necessary under Section 1227 of the Immigration and Nationality Act.  An experienced criminal defense attorney can help you defend against criminal charges and may be able to preserve your right to remain in the United States.

Conclusion

If you or a loved one have been arrested for a federal drug charge, you should strongly consider hiring the aggressive and experienced criminal defense attorneys at Galluzzo & Johnson LLP.  They routinely represent people accused of drug-related crimes in state and federal courts in New York and New Jersey, and as former prosecutors, they understand how law enforcement officers investigate and pursue these matters.  They have impeccable reputations amongst their peers, judges and adversaries, and their efforts have resulted in numerous dismissals and favorable plea bargains on behalf of their clients.  Contact them today to schedule a free initial consultation, and to 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.

In 2007, a new law went into effect that created a special class of felonies called “sexually motivated felonies”.  Pursuant to Penal Law Section 130.91, a person is guilty of a sexually motivated felony when he or she commits one of several specified felony offenses “for the purpose, in whole or substantial part, of his or her own sexual gratification.”  That list of specified offenses includes the following:

A "specified offense" is a felony offense defined  by  any  of  the
  following  provisions  of  this chapter: assault in the second degree as
  defined in section 120.05, assault in the first  degree  as  defined  in
  section  120.10, gang assault in the second degree as defined in section
  120.06, gang assault in the first degree as defined in  section  120.07,
  stalking  in the first degree as defined in section 120.60, manslaughter
  in the second degree as defined in subdivision one  of  section  125.15,
  manslaughter in the first degree as defined in section 125.20, murder in
  the  second  degree  as  defined in section 125.25, aggravated murder as
  defined in section 125.26, murder in the  first  degree  as  defined  in
  section  125.27,  kidnapping  in the second degree as defined in section
  135.20, kidnapping in the first degree as  defined  in  section  135.25,
  burglary  in  the third degree as defined in section 140.20, burglary in
  the second degree as defined in section 140.25, burglary  in  the  first
  degree  as  defined  in  section  140.30,  arson in the second degree as
  defined in section 150.15, arson in  the  first  degree  as  defined  in
  section  150.20,  robbery  in  the  third  degree  as defined in section
  160.05, robbery in the second  degree  as  defined  in  section  160.10,
  robbery  in  the  first  degree  as defined in section 160.15, promoting
  prostitution  in  the  second  degree  as  defined  in  section  230.30,
  promoting prostitution in the first degree as defined in section 230.32,
  compelling  prostitution  as  defined  in  section 230.33, disseminating
  indecent material to minors in the first degree as  defined  in  section
  235.22,  use  of  a  child in a sexual performance as defined in section
  263.05, promoting an obscene sexual performance by a child as defined in
  section 263.10, promoting a sexual performance by a child as defined  in
  section 263.15, or any felony attempt or conspiracy to commit any of the
  foregoing offenses. 

Thus, in order to convict someone of a sexually motivated felony, a prosecutor has to demonstrate beyond a reasonable doubt that the accused not only committed one of the specified underlying crimes, but that he did so with a sexual purpose in mind.

One of the most serious consequences of being convicted of this charge is registration as a sex offender.  Previously, a conviction for Burglary in the Third Degree (Penal Law 140.20), for example, would not result in registration as a sex offender; now, however, a person can be convicted of Burglary in the Third Degree as a Sexually Motivated Felony and be forced to register as a sex offender.  Click here for a list of registerable sex offenses.

Also, the sentence for a sexually motivated felony can be harsher than the sentence for the equivalent non-sexually motivated offense.  (For more, see Penal Law Section 130.92).  For example, a person convicted of Burglary in the Third Degree can receive an indeterminate prison sentence, but a person convicted of Burglary in the Third Degree as a Sexually Motivated Felony must receive a determinate sentence pursuant to Penal Law Section 70.80, as well as post-release supervision.  (Note: probation can be available to some Class D and Class E nonviolent sex offenders).

Typically, prosecutors charge defendants that they believe committed sexually motivated felonies with both the underlying charge (for example, Burglary in the Third Degree) and the charge as a sexually motivated felony (in this case, Burglary in the Third Degree as a Sexually Motivated Felony).  Thus, if the prosecutors are unable to prove that the crime was not for the purpose, in whole or substantial part, of the defendant’s sexual gratification, the prosecutor can nevertheless convict the defendant of the underlying offense.

If you or a loved one have been accused of having committed a sexually motivated felony, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo and Johnson LLP.  Matthew Galluzzo, in particular, worked as a prosecutor in the famous Sex Crimes Unit of the Manhattan District Attorney’s Office and was one of the first prosecutors in NYC to indict someone for a sexually motivated felony.  He appears frequently on TV as an expert commentator on sex crimes cases and is prepared to lend his unique expertise to your defense.

Although it has always been illegal in New York to intentionally cause physical injury to another person (see Assault, Chapter 120.00 of the Penal Law), a relatively new set of laws has increased the penalties for the strangulation of another person.  New York Penal Law Section 121.11 (Criminal Obstruction of Breathing or Blood Circulation) makes it a class A misdemeanor to apply pressure on the throat or neck of another person, or block the nose or mouth of another person, with the intent to impede the normal breathing or blood circulation of that person. This crime can be a Class D violent felony (Strangulation in the Second Degree, Penal Law 121.12) where stupor or a loss of consciousness is caused by the act, and can be a Class C violent felony (Strangulation in the First Degree, Penal Law 121.13) where the person suffers serious physical injury as a result.  Obviously, there is an exception for people who impede breathing/blood flow for medical/dental purposes, such as surgery (Penal Law Section 121.14).

In our experience, these cases most often arise in domestic situations.  We have seen a number of people charged with Attempted Strangulation in the Second Degree – which is a very serious E felony – in cases where they have attempted to restrain or defend against a hysterical or aggressive wife, girlfriend or partner.  Also, we have seen many cases in which complainants assert that they lost consciousness as a result of strangulation, when in reality, they had simply passed out due to drug or alcohol abuse.  Finally, some strangulation cases may be defensible as consensual acts of auto-erotic asphyxiation.  Thus, understanding the precise facts of the encounter, as well as the medical and scientific evidence, is absolutely critical in defending these cases.

If you or a loved one have been arrested for a violation of the Strangulation laws, you should consider contacting the experienced criminal defense lawyers at Galluzzo & Johnson LLP.  Their lawyers include three former prosecutors in the Manhattan District Attorney’s Office, all of whom investigated and prosecuted dozens of assault- and strangulation-related cases.  (Matthew Galluzzo, in particular, was a supervisor in the Domestic Violence Unit and regularly advised and trained other prosecutors in how to effectively investigate and prosecute domestic violence cases.)  As criminal defense lawyers, they have leveraged their experience on behalf of their clients, many of whom have seen their assault and domestic violence-related charges dismissed as a result of their efforts.   Call them or email them to schedule an appointment.