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:

Over the course of the last four days, the NYPD arrested 141 people in New York City as part of “Operation Take Back” .  Basically, undercover officers approached people on the sidewalk and offered to sell them Apple products (iPhones and iPads) at deeply discounted prices.  Those people that purchased the goods were then charged with Attempted Criminal Possession of Stolen Property (Penal Law Section 110/165.40), a Class B misdemeanor, under the theory that they were knowingly attempting to acquire stolen iPhones or iPads.  Many of those people that were arrested received ACD’s (adjournments in contemplation of dismissal) at arraignments, but not after spending 24 hours or more in jail.  In many ways, the operation calls to mind the widely-criticized “Operation Lucky Bag” from earlier this year.

In our view, many of these arrests probably constitute entrapment by the police.  After all, there is not likely to be any evidence that any of the arrested people had any predisposition to purchase stolen iPhones or iPads, or that they were actively seeking to do so. Entrapment is a defense to a criminal charge whereby the accused argues that he would not have committed the crime but for police action.  The specific elements of the defense are available here.  Moreover, we are hearing reports that at least some of the arrested people had no reason to believe that the iPhones or iPads were stolen, as undercover officers told them that they owned the Apple products and urgently needed to sell them to make money.  If true, these police officers, in our view, acted outrageously and created false reasons to make improper arrests of law-abiding people.   (We doubt that any of these officers were actually wearing wires to record their conversations with their targets, precisely for this reason).  Accordingly, those victims of the police misconduct should contact civil rights attorneys to file lawsuits against the NYPD for false arrest and other violations of their constitutional rights.

If you or a loved one were arrested as part of “Operation Take Back,” you should seriously consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  Their team of former Manhattan prosecutors can help you defend against criminal charges from these arrests of file lawsuits on your behalf against the NYPD for false arrest.

For the English version of this post, click here.

Como ex fiscales que ahora practican la defensa criminal, colectivamente hemos tratado con cientos de casos de drogas en los ultimos años. Cada uno de nosotros a visto personas de todos los orígenes y profesiones, entrar por las puertas tribunales para enfrentar cargos de drogas. Si la persona es detenida y “procesado por el sistema” o ha zido otorgado una multa (Desk appearance ticket “D.A.T.”)   que requiere aparecer frente ha un juez, para tener que volver al Tribunal en una fecha posterior, la experiencia puede ser desgarradora y las consecuencias embarazosa,  y incluso puede afectar la carrera y la vida familiar de esa persona.  El detalle mas importante que usted deve de saber es la importancia de tener un buen abogado. Hay cosas que un abogado puede hacer para amortiguar el golpe de una detención de drogas y reducir al mínimo las consecuencias perjudiciales que puede tener en su vida, tanto personal como profesional. Este blog se ocupa de casos de pequeñas cantidades de cocaína (otros puestos ocupan cargos de felonía y peso más graves), pero es importante recordar que no importa cuán pequeña es la cantidad de cualquier droga, siempre y cuando haya suficiente residuo de la sustancia que el NYPD pueda probar, un cargo por posesión de drogas puede ser trasmitido  en contra de usted. Lo que puede parecer residuo,  puede ser suficiente para la aplicación de la ley, y usted puede ser condenado con  un delito de cargo/delito menor clasificado A (misdemeanor, class A.)

Posesión de drogas de delito menor: si ha zido otorgado una multa (Desk appearance ticket “D.A.T.”). por tenencia simple de drogas, es más probable es que los cargos que enfrente sean:

Posesión de s 220.03 Penal de una sustancia controlada que figura en el séptimo grado.

Una persona es culpable de posesión criminal de una sustancia controlada

al séptimo grado cuando a sabiendas e ilegítimamente posee una sustancia controlada.

Posesión criminal de una sustancia controlada que figura en el séptimo grado es una

Un delito menor de clase A (misdemeanor). Una multa de este tipo no significa que los cargos no son serios, si no que tiene que presentarse en una corte distinta. Asi que no ignoren esas multas.

Siendo  la pocesion de sustancia controlada pequeña,  un delito de clase “A”, pueden hecharle hasta 1 año de cárcel, es imprescindible ponerse en contacto con un abogado inmediatamente y presentarse ante la corte en la fecha programada,  en caso de que usted no se presente, una orden para su arresto sera transmitida y girada. Como puede ver, las sanciones por incluso una pequeña cantidad de cocaína pueden ser severos…

El elemento de “posesión” es obviamente muy fácil de demonstrar si un oficial encubierto o policía observa ha una persona que posee la sustancia.  En la ciudad de Nueva York, nosotros vemos estos casos todo el tiempo. A menudo la policía observa a personas en vehículos o caminando por la calle oliendo cocaína de lámina de estaño, esto proporcionará causa inmediata para detener y encarcelar a la persona – y suele dejar a la policía con un caso muy fuerte. Otras veces los oficiales encubiertos en bares o restaurantes son testigos que ven a personas compartiendo una cantidad de cocaine, ellos pueden detener a todas las personas que tocan la sustancia. En los casos donde alguien tira al suelo o abandona una cantidad de cocaína, detectives o policía aún serán capaz de establecer un cargo de posesión de drogas, una vez que recuperan la sustancia y está confirmado que contienen una sustancia controlada. Por último, si la policía hace algunas observaciones que les dan una razón para sospechar que tienes drogas en tu bolsillo o en una bolsa, pueden detener te y recuperar esa sustancia (por ejemplo, donde observan que compraste de un vendedor momentos antes).

Después son detenidos o emitió un D.A.T., cualquier sustancia recuperada de TI o de un área que se observa lanzando pondrá a prueba por el laboratorio NYPD para confirmar lo que es, y lo suficiente de la sustancia existe para confirmar que en realidad es cocaína. Si tienen motivos para creer que puede haber suficiente de la droga para mantener un cargo de delito grave, la policía también pesará la sustancia. Si es por lo menos 500 miligramos, se abriran un número de cargos de posesión de drogas de felonía en contra suyo, donde las apuestas son mucho mayores.

Aunque hay formas de luchar contra un caso de posesión de drogas (desafiando las razones que la policía se detuvo y le buscaron) es el principal objetivo si un billete de apariencia del escritorio o arrestado por posesión de drogas de delito menor evitar la imposición de un récord criminal permanente. Durante años hemos asistido profesionales, abogados, empresario: personas de todas las profesiones, para evitar el perjuicio de incurrir en un récord criminal. Hay cosas que podemos hacer para ayudar, por lo que es imprescindible ponerse en contacto con un abogado criminal experimentado que puede guiarle por el proceso y ayudarle a lograr el mejor resultado posible.

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.

There are three separate menacing statutes in New York, each specifying a different gravity of offense.  Menacing is often paired with Stalking (Penal Law section 120.45) and Aggravated Harrassment (Penal Law section 240.30) charges, but can be charged as a standalone offense.

The basic charge is Menacing in the third degree (Penal Law section 120.15) is defined as follows:

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.  Menacing in the third degree is a class B misdemeanor.

Menacing in the Second Degree (Penal Law section 120.14) is an example of a bump-up type charge.  There are three distinct aggravating factors which serve to elevate the charge to a class A misdemeanor, punishable by up to one year in jail.  These are (i) committing a third-degree menacing charge by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm (PL 120.14(1); (ii) by following a person or engaging in a course of conduct or repeatedly committing acts over a period of time which constitute a third-degree menacing charge (PL 120.14(2); and (iii) committing a third-degree menacing charge in violation of a duly served order of protection or stay-away order from a judge (PL 120.14(3).

Finally, there is a felony charge which bumps up a second-degree menacing charge where the person has been convicted of another second-degree menacing charge or the crime of menacing a police officer (PL 120.18) within two years of the commission of the present alleged offense.

Interestingly, the law was passed in 1994 and put into effect in 1995, to close what the legislature perceived to be a loophole in the anti-domestic violence laws and was passed as part of the “family protection and domestic violence intervention act of 1994.”  The law has been applied, however, to a variety of situations, not just those involving domestic violence or incidents between people who have had intimate access in the past, i.e. the ex-boyfriend/ex-girlfriend scenario.  For example, in Matter of Jason R. G., 23 A.D.3d 656 (2d Dep’t 2005), a person was prosecuted for chasing and threatening another person on the street with a knife.  In People v. Silva, 178 Misc.2d 538 (Bx. Co. Ct. 1998), a Bronx conviction was upheld where the defendant had threatened a police officer while touching his waistband after a drug-related conversation.

However, not all allegedly threatening conduct will constitute a violation.  In People v. Nwogu, 22 Misc.3d 201 (Qns. Co. Ct. 2008), Judge Lopresto held that a misdemeanor information was facially insufficient where it merely alleged that the defendant stood up and stated “I am going to blow up,” and that after he did so, a complainant observed the handle of a knife protruding from the defendant’s waistband.   The judge held that the defendant’s words were not directed at anyone in particular (which was required under the statute) and that nobody could have been placed in fear of death, imminent serious physical injury, or physical injury by merely observing the knife handle.  Moreover, the court held, there were insufficient allegations that the defendant intended to display the weapon, as any display as alleged in the complaint was inadvertent.  Moreover, proof of an injury alone will not suffice to validate a Menacing charge.  See Matter of Anisha McG., 27 A.D.3d 749 (2d Dep’t 2006).

If you have been arrested for this offense, you should speak with a menacing, stalking or aggravated harrassment lawyer in New York City.

Of those who are arrested in Manhattan for shoplifting and directed to appear in Midtown Community Court, we often encounter clients who fail to take the situation they are in seriously. These clients are arrested and issued Desk Appearance Tickets (D.A.T.s) and then released without going through the unpleasant experience of being transported to Central Booking. As we’ve stressed before in prior blogs, the D.A.T. is to be taken seriously – this blog deals specifically with appearance tickets issued in cases involving shoplifting where defendants are directed to appear in Midtown Court, located at 314 West 54th Street.

In the typical shoplifting case, the defendant is observed by store security guards (usually on camera in larger department stores such as Bloomingdale’s and Macy’s) either conceal merchandise openly on camera, or go to an area of the store where the cameras cannot film them and secret the items on their person, only to emerge seemingly empty-handed. Store security stops the individuals before they exit the store without paying (the law doesn’t require that they actually make it out of the store – a larceny only requires a “moving” of the property with an intent to permanently deprive the owner of it) and the police are notified. Usually, in cases where a New York State resident with valid identification with no arrest record is caught shoplifting, responding police officers will issue a Desk Appearance Ticket in lieu of “putting the accused through the system”, meaning they get to avoid sitting in a holding cell downtown for at least 24 hours before seeing a judge. This is where we see clients fail to take the situation seriously – (“they just gave me a ticket, what’s the big deal?”) – but the truth of the matter is these clients are generally charged with two class “A” misdemeanors, both of which are punishable by up to one year in jail – petit larceny, and its accompanying charge, criminal possession of stolen property in the fourth degree. Those charges are listed below:

§ 155.25 Petit larceny.

A person is guilty of petit larceny when he steals property.

Petit larceny is a class A misdemeanor.

§ 165.40 Criminal possession of stolen property in the fifth degree.

A  person  is  guilty of criminal possession of stolen property in the

fifth degree when he knowingly possesses stolen property, with intent to

benefit himself or a person other than an owner thereof or to impede the

recovery by an owner thereof.

Criminal possession of stolen property in the fifth degree is a  class

A misdemeanor.

The accused shoplifters in these cases are directed to appear several weeks later at 314 West 54^th Street at 9:30 a.m. to be arraigned on criminal charges. If no disposition is worked out by a lawyer on that day, all of the cases are then adjourned to continue towards trial at the Criminal Court on 100 Centre Street.

There are two primarily concerns that we stress to our clients in these cases – one is that their failure to appear on the return date in Midtown Court will result in a warrant being issued for their arrest (not a good thing). The other is that it is imperative to avoid incurring a criminal record in every case possible. In other words, if you’ve been charged with Petit Larceny and/or Criminal Possession of Stolen Property, it is important to hire an attorney who can work out a disposition for you which does NOT include a plea to any crime. The imposition of a criminal record is a devastating thing and can have serious collateral consequences.

At Galluzzo & Johnson LLP, our team of former prosecutors are experienced in dealing with these specific cases, both on the prosecution side and on the defense side – and have handled many cases at Midtown Community Court, which we are very familiar with. We have represented individuals from all walks of life and secured the bests results for them. If you or a loved one has been issued a D.A.T., contact our lawyers immediately and schedule a free consultation. Do not risk incurring a criminal record and jeopardizing your future.

Recently, the news media has published numerous reports of corrupt and out-of-control New York police officers.  The federal authorities arrested eight current and former police officers for running an illegal gun-running operation, approximately 17 police officers were indicted for a ticket-fixing scandal in the Bronx; another officer was arrested for attempting to steal from a supposed drug dealer’s apartment; a narcotics officer recently testified to widespread falsification of charges and the routine planting of drugs on innocent individuals in the trial of another corrupt police officer; a racist cop in Staten Island admitted to framing a black man and calling him a racial epithet; a deputy inspector was captured on video sucker-punching a protestor in the face for no apparently good reason; a drug addict claims that she was given crack by a police officer and forced to perform oral sex on him, a Brooklyn police captain was taped instructing his officers to fulfill ticket “quotas”, and last year four police officers shot a young man over a dozen times despite the fact that he was totally innocent of any crime (the last case, incidentally, was handled by the authors of this blog).

For years (and especially in the wake of September 11), the majority of New Yorkers believed that their police officers were heroes, and thus were willing to accept their testimony as gospel.  Many also assumed that the accusations of police corruption were just the rantings and ravings of liberal radicals, criminals looking for excuses, or their attorneys.  However, the current media onslaught of confirmed police misconduct has forced more and more people to accept what for them may be an uncomfortable reality:  THERE ARE A LOT OF CORRUPT AND DANGEROUS POLICE OFFICERS IN THE NYPD.  (Which is to say nothing of the New York corrections officer that recently was arrested after trying to accept cocaine and cash from a prisoner in exchange for helping that prisoner escape from Riker’s Island.)  The authors of this blog are cautiously optimistic that as the public gains more and more awareness about police corruption, criminal defendants and civil claimants will be more successful in convincing juries that they were victims of misconduct, abuse, and/or false arrests.

This is not to say that every police officer is corrupt.  Indeed, the authors of this blog include three former prosecutors that count numerous police officers and detectives among their friends, and they appreciate and have tremendous respect for the police officers that conduct themselves properly in what is unquestionably a difficult job.  Nevertheless, the inescapable truth to be gleaned from these reports above is that not all police officers are telling the truth about the people that they have arrested, or about the facts of those arrests.  To those who say that these known corrupt officers represent just a small minority of the force, it is fair to respond that the majority of corrupt police officers probably aren’t being caught.  Perhaps most unsettling to the author is the apparent unwillingness of the “good officers” to call out or report the corrupt “bad officers” around them.  In short, the mindset of the Blue Wall of Silence appears to persist to this day.

One of the root causes of false arrests is that police are encouraged – and even incentivized – to make arrests.  We have heard recordings of a police captain in Brooklyn ordering his officers to fulfill a ticket-writing quota, and the cooperating police officer in the trial discussed above testified that narcotics officers were expected to make a certain number of arrests per month, or suffer consequences.  Moreover, police officers can make a significant amount of overtime (paid as time-and-a-half) by making and processing arrests and then coming to court on their RDO’s (regular days off) to testify at court in the grand jury.

Some of the most common false arrest charges include the vague Disorderly Conduct (Penal Law 240.20), Resisting Arrest (Penal Law 205.30), and Obstructing Government Administration (Penal Law 195.05).  These charges are very common in cases of police brutality, in that they are used to justify the use of force and “cover-up” the injuries the falsely arrested person suffered at the hands of the police.  These cover-ups can be “necessary” in the minds of the officers in cases where they suspect that the arrested person will contact Internal Affairs (IAB), the Civilian Complaint Review Board (CCRB), and/or file civil lawsuits against them for police brutality.  Police officers can also easily falsify charges of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law 220.03), and Criminal Trespass (Penal Law 145.00).

If you or a loved one have been falsely arrested or been the victim of police brutality, you should strongly consider the aggressive and intelligent lawyers at Galluzzo & Johnson LLP.  Their team of former prosecutors specializes in criminal defense and civil rights, meaning that they can both defend you against false criminal charges and/or pursue lawsuits against the police officers that violated your constitutional rights.  They have had exceptional success defending people against criminal charges in high-profile cases involving false arrest and police brutality, and also have experience pursuing huge civil lawsuits against the NYPD.  Give them a call to schedule a free appointment and assessment of your case, and to discuss whether they can help you.

A conviction for a crime doesn’t have to be the end of your case.  A talented and experienced appellate lawyer may be able to find a way to get your conviction overturned or your sentence reduced.  Most criminal defense attorneys do not handle appeals or have very little experience doing it.  Thus, you should strongly consider hiring a specialist to pursue your appeal if you have the resources to do it.   Also, there are deadlines for pursuing the most common types of appeals, so you absolutely must act quickly to get the process started if you are considering pursuing one.

Criminal defendants that have been convicted in New York have the right to one “direct appeal,” or an appeal to a higher court.  In the New York state system, the four Appellate Divisions review convictions from Supreme Court (the trial court that primarily handles felonies).  The Appellate Division, First Department is responsible for Manhattan and the Bronx, the Second Department deals with cases from Brooklyn, Queens, Staten Island, Westchester and Long Island, the Third Department is based in Albany, and the Fourth Department is in Rochester.

From there, cases can be further appealed to the state’s highest court, the Court of Appeals (based in Albany).  A defendant is not entitled to have his case heard by that court; typically, an appellant must persuade the court that his case involves issues of statewide import.  If the Court of Appeals agrees to consider the arguments, then it grants certiorari (sometimes referred to as “leave to appeal” or “cert”) and the appellant’s attorney can file a brief arguing for a reversal of the conviction or modification of the sentence.

In order to pursue the original “direct appeal,” the defendant must first file a “notice of appeal” with the correct Appellate Division immediately.  Aside from finding an attorney to handle the matter, the defendant seeking to appeal his conviction also needs to obtain the transcripts of his court appearances as soon as possible.  Typically, the defendant or his attorney must contact the specific court reporters directly to order the transcript, and arrange for payment to the court reporter.  Indigent defendants can apply to the Appellate Divisions for “poor person relief” if they need to have the minutes provided free of charge.  (Note: indigent defendants that have been represented by the Legal Aid Society, some other public defense agency, or an 18b attorney, can also apply for free appellate representation).

In the federal system, a conviction in New York federal district court (such as the Southern District of New York or the Eastern District of New York) is appealed to the Second Circuit Court of Appeals.  A conviction in the District of New Jersey is appealed to the Third Circuit Court of Appeals.

Generally speaking, typical direct appeals have to involve errors or appealable issues that can be gleaned from the transcript, or “minutes” of the court proceedings.  These sorts of appeals usually stem from mistakes that happened during a trial.  Some common areas of appeal include pre-trial suppression hearings, jury selection, the sufficiency of the evidence, the weight of the evidence, and Molineux and Sandoval.

In cases involving the possession of contraband (such as narcotics or firearms), there is usually a pre-trial suppression hearing before a judge.  These “Mapp hearings” (or Mapp/Dunaway) usually involve police officers testifying as to their basis for the search that led to the recovery of the contraband.  If the judge is convinced that the officers had sufficient or probable cause to act as they did in searching the defendant’s property or person, then the contraband can be used by the prosecutor at trial.  If, on the other hand, the judge finds that the police officers violated the constitutional rights of the defendant, then he orders “suppression,” meaning that the contraband may not be used at trial.  Most of the time, suppression requires the prosecutor to dismiss the case. Obviously, then, these suppression hearings can be enormously important.  The decisions of judges in suppression hearings can be appealed to the Appellate Division, even sometimes in cases where the defendant decides to plead guilty after losing the hearing. Furthermore, statements by defendants can be suppressed where they were involuntarily made or made in violation of Miranda warnings (the subject of a Huntley hearing).  Finally, identifications of suspects can also be suppressed where the procedures used for showing the suspect to the eyewitness were performed improperly (the subject of a Wade hearing).

The jury selection process can sometimes be appealed as well.  For example, if the appellate attorney can demonstrate that the judge wrongfully failed to exclude a potential juror that couldn’t be fair (or failed to assure the court that she could be fair), then the subsequent conviction might be reversible.  Also, a conviction may be reversible where the prosecutor systematically excluded jurors for some discriminatory reason (the age, gender, or race, for example).  This is sometimes referred to as a “Batson violation”.

Furthermore, an appellate lawyer can challenge the conclusions to be drawn from the proof as well.  Typically, one can either challenge the sufficiency of the evidence or its weight.  When arguing sufficiency, an appellate lawyer assumes that all of the prosecution’s evidence was true and credible, but that the evidence nevertheless failed to prove a specific and necessary element of the crime.  Appellate lawyers can also argue about the “weight of the evidence” at trial, meaning that the prosecution’s evidence simply wasn’t strong enough to warrant a conviction.  The distinction between “sufficiency” and “weight” is subtle but nevertheless very significant, as they involve different standards of review by the appellate courts.

Some other types of appeals can also be made to the court in which the conviction occurred.  The most common of these is brought pursuant to CPL Section 440.10.  These motions can be made at virtually any time but are best done as soon as possible.  A 440.10 motion can involve legal issues that are not apparent from the court transcript, meaning that they occurred “off the record”.  For example, newly discovered evidence or improperly withheld evidence (such as exculpatory “Brady material”) can form the basis of a successful 440.10 motion.  Many appellants choose to argue that their trial attorneys represented them poorly, or provided “ineffective assistance of counsel” (note: these arguments can sometimes be made on direct appeal as well).  Along similar lines, many non-citizens have successfully argued that they were deprived of their constitutional right to effective assistance of counsel, or that they made uninformed decisions about their cases, because they were not properly advised of the immigration consequences of their criminal cases.  These arguments are sometimes referred to as “Padilla appeals,” referring to the Supreme Court decision from which these cases spawned.  (The attorneys at Galluzzo & Johnson LLP have handled cases such as these).  Defendants can also pursue similar motions to set aside the verdict after a trial conviction but before their sentence pursuant to CPL Section 330.30 (the main difference between 440.10 and 330.30 being the timing).  Finally, a court can reduce or modify a sentence pursuant to a motion brought under CPL Section 440.20.  Decisions on these sorts of motions can also generally be appealed to the Appellate Division.

Finally, after one’s state appellate options have been fully “exhausted,” meaning that every direct appeal has been decided, an incarcerated person can possibly look to state courts writs of habeas corpus (and possibly even federal courts) for release from prison.  The writ of habeas corpus is a civil motion brought to challenge the legality of the detention of the prisoner.  Basically, the prisoner argues that his constitutional rights are being violated by virtue of his unlawful detention (i.e. the conviction or sentence was improper or unlawful), and the remedy is release from custody.

If you or a loved one have been convicted of a crime and are considering an appeal, you should strongly consider contacting the intelligent and experienced criminal appeals lawyers at Galluzzo & Johnson LLP.  Their team of former prosecutors includes a pair of experienced lawyers – Matthew Galluzzo and Zack Johnson – that routinely handle trial-level matters yet began their careers specializing in criminal appeals.  Zack Johnson has successfully argued a criminal appeal before the highest court in the state of New York (the Court of Appeals) and Matthew Galluzzo is currently working on an appeal to that court involving a cutting-edge legal issue. (See http://cyb3rcrim3.blogspot.com/2011/06/cybercrime-enterprise-organized-crime.html).  Unlike most criminal lawyers, they are skilled at handling cases at both the trial level and on appeal; indeed, they firmly believe that being appellate lawyers makes them better trial lawyers, and vice versa.  They also stay abreast of new developments in state and federal law, as evidenced by their sophisticated blog on criminal law topics.  As a result of their exceptional backgrounds, they are uncommonly good at identifying potential grounds for appeal, and they work tirelessly to ensure that their finished products are persuasive.  Contact them today to set up a free initial consultation to discuss your case.

If you receive a federal grand jury subpoena in the mail, you absolutely must retain the services of an experienced criminal defense attorney as soon as possible.  The subpoena indicates that the federal prosecutor that issued it (probably an Assistant United States Attorney) believes that you have knowledge or information relating to a significant criminal investigation.  Obviously, the prosecutor may therefore also believe that you have committed a crime.  Also, you cannot ignore a subpoena without serious criminal repercussions.

An experienced defense attorney can help you determine the following:

1)   What the subpoena is asking of you;

Federal grand jury subpoenas come in two forms: personal subpoenas requiring the testimony of a witness, and subpoenas duces tecum requiring the production of documents in the person’s control.  The subpoena duces tecum can be just as perilous as a personal subpoena and should be responded to with equal prudence.

2)   Whether you are a “target” of the federal investigation, or merely a “subject” of it;

A target of a grand jury investigation is “someone as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of the crime, and who, in the judgment of the prosecutor, is a putative defendant” (citing the US Attorney’s Manual).   In other words, a target is someone hat the prosecutor believes has committed a crime.  A subject of an investigation is someone “whose conduct is within the scope of the grand jury investigation”.  In a nutshell, a subject is someone who might be a defendant at some point, but at this point, appears to be a witness, in the least.  The subpoenas and their cover letters are rarely so explicit as to tell the person receiving it whether he or she is a target or a subject; an experienced criminal defense attorney can help you figure it out by discussing the facts of the matter being investigated and possibly communicating with the prosecutor.

3)   Whether you would have the right to assert the Fifth Amendment during your grand jury testimony, or whether any other privileges might allow you to avoid testifying;

Depending on your level of involvement in the conduct being investigated by the grand jury, you may or may not have the right to assert the Fifth Amendment protection against self-incrimination.  Specifically, a grand jury witness has the right to refuse to answer a question if the answer would directly implicate him or her in a crime, or “furnish a link in the chain of evidence needed to prosecute.”  Hoffman v. United States, 341 U.S. 479 (1951).  An experienced attorney can help you understand whether you have the right to assert the Fifth Amendment in light of the circumstances of the investigation, and also whether the exercising of that right is the best course of action for you.

4)   Whether you should seek to cooperate with the criminal investigation;

The receipt of a federal grand jury subpoena may be a good reason for an individual to cooperate with law enforcement in the investigation.  Frequently, culpable parties can receive leniency by agreeing to provide information or testify honestly and truthfully about co-conspirators.  However, the decision to enter into a cooperation agreement with law enforcement is not one that should be done lightly, and an experienced criminal defense attorney is absolutely necessary to proffer a potential witness or propose such a course of action to a prosecutor.

5)   What your potential charging exposure could be.

Finally, the decision as to whether or not to cooperate with the government is ultimately just a question of the risks and rewards in doing so.  To make an informed decision about your course of action, you absolutely need an attorney that understands federal criminal law as well as the federal sentencing guidelines.

Conclusion

The criminal defense attorneys at Galluzzo & Johnson LLP include three former prosecutors with over 20 years of combined experience as prosecutors.  As prosecutors, they personally spearheaded a substantial number of grand jury investigations resulting in hundreds of indictments.  Thus, they are particularly good at deducing the purpose of grand jury subpoenas and anticipating the focus and direction of the underlying grand jury investigation.  If you have received a grand jury subpoena, give them a call today to schedule an appointment and discuss your best options going forward.

As former prosecutors who now practice criminal defense, we have collectively dealt with hundreds upon hundreds of drug cases over the years. Throughout these years each of us has seen people from all backgrounds and professions walk through the courtroom doors to face drug charges. Whether the person is arrested and “put through the system,” or issued a desk appearance ticket (“D.A.T.”) to return to court on a later date, the experience can be a harrowing one and the consequences can be embarrassing and even devastating to one’s career and/or family life. The silver lining is that there are things that a lawyer can do to dampen the blow of a drug arrest and minimize the detrimental consequences it may have on your life, both personal and professional. This blog deals with cases involving small amounts of cocaine (other posts deal with more serious felony and weight charges) but it is important to remember that no matter how small the amount of any drug, so long as there is enough of the substance for the NYPD to test, a charge for drug possession will stick. What may appear to you to be residue may still be enough for law enforcement to pin a misdemeanor on you.

First, a look at the applicable statue for misdemeanor drug possession – if you have been issued a D.A.T. for simple drug possession, this is most likely the charge that you face:

S 220.03 Criminal possession of a controlled substance in the seventh degree.

A person is guilty of criminal possession of a controlled substance in

the seventh degree when he knowingly and unlawfully possesses a

controlled substance.

Criminal possession of a controlled substance in the seventh degree is a

class A misdemeanor.

Being a class “A” misdemeanor, punishable by up to 1 year in jail, it is imperative to contact a lawyer immediately and to show up on your scheduled court date, otherwise a warrant will be issued for your arrest. As you can see, the penalties for even a small amount of cocaine can be severe…

The element of “possession” will be obviously very easy to prove if a police officer or undercover officer observes a person holding the substance, and in New York City we deal with these cases all the time. Often police observe individuals in cars or walking down the street sniffing cocaine out of tin foil – this will provide immediate cause to stop and detain the person – and usually leave the police with a very strong case. Other times undercover officers in bars will witness people in bathrooms sharing a quantity of cocaine and arrest every person who touches the substance. In cases where someone throws to the ground or abandons a quantity of cocaine, detectives or police will still be able to establish a charge of drug possession once they recover the item and it is confirmed to contain a controlled substance. Finally, if the police make certain observations that give them a reason to suspect that you have drugs in your pocket or in a bag you are holding, they may stop you and retrieve that substance (for instance, where they observe you buy from another individual moments before).

After you are arrested or issued a D.A.T., any substance recovered from you or an area you are observed throwing it to will be tested by the NYPD laboratory to confirm what it is, and so long as enough of the substance exists to confirm that it is in fact cocaine, you will be charged. If they have reason to believe there might be enough of the drug to sustain a felony charge, the police will also weigh the substance. If it is at least 500 milligrams, you will be charged with a number of felony drug possession charges, where the stakes are much higher.

While there are ways to fight a drug possession case (challenging the reasons the police stopped and searched you) the primary goal if you are issued a desk appearance ticket or arrested for misdemeanor drug possession is to avoid the imposition of a permanent criminal record. Over the years we have assisted professionals, lawyers, businessman – people of all walks of life – in avoiding the detriment of incurring a criminal record. There are things that we can do to help, so it is imperative to contact an experienced criminal lawyer who can guide you through the process and help you achieve the best possible result.