New York Criminal Defense Blawg

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.

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.

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.

Galluzzo & Johnson LLP partner Matthew Galluzzo, a criminal defense lawyer, was recently recruited and hired by the United States Agency for International Development (USAID) for a selective and important assignment in South Africa.  South Africa has a serious problem with rape; indeed, a recent and shocking survey revealed that one in three South African women reported having been raped in the past year.  The situation is so dire that the South African government appealed to foreign experts to help them develop a new training program for their prosecutors and law enforcement agents.  In response to this need, USAID recruited Matthew Galluzzo, a former prosecutor in the Manhattan District Attorney’s Office’s elite Sex Crimes Unit, to travel to South Africa and conduct seminars for South African prosecutors on modern and proper techniques for investigating rape allegations.  He will spend time in both Cape Town and Johannesburg per this assignment.

As a former prosecutor, Mr. Galluzzo understands the importance of eradicating this terrible plague that South Africa is suffering from.  However, as a criminal defense attorney, he is also passionate about the importance of rape investigations being done in a fair and thorough manner so as to avoid false accusations.   Tragically, false accusations do happen, and oftentimes, a skilled and experienced criminal defense attorney is a person’s only hope for proving their innocence.  If you believe that you or a loved one have been falsely accused of rape or a sexual assault, you should strongly consider contacting him to represent you.