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.

On November 17, thousands of protesters massed in or about the Wall Street area as part of the Occupy Wall Street movement.  The NYPD was prepared and sent hundreds of officers to the area in anticipation of several scheduled protests.  Many of the protesters were arrested and are currently being processed for various misdemeanors and violations.  We understand that most of the protesters are being charged with the following crimes: Obstructing Governmental Administration in the Second Degree (Penal Law 195.05, a Class A misdemeanor), Resisting Arrest (Penal Law 205.30, a Class A misdemeanor), and Disorderly Conduct (Penal Law 240.20, a violation).  These misdemeanor charges are potentially punishable by up to one year in jail, and the Disorderly Conduct violation is punishable by up to 15 days in jail.

We have heard reports that most of the protesters that have been arrested throughout the Occupy Wall Street movement are being offered ACD’s (adjournments in contemplation of dismissal) or Disorderly Conduct at arraignment, but most of the protesters are rejecting those plea bargains.  We expect that the protesters are rejecting those offers both out of principal and as a means to preserve their civil lawsuits against the city.  Obviously, a false arrest and malicious prosecution civil lawsuit cannot be meaningfully pursued against the City of New York by someone that pleaded guilty to Disorderly Conduct, because that plea would justify the arrest and prosecution.  (In contrast, the acceptance of an ACD may or may not preclude a lawsuit).

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

A person is guilty of Resisting Arrest (Penal Law Section 205.30) when “he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.”  An “authorized arrest” has to be a lawful arrest; we expect that many of the protesters will (and should) argue that their arrests were unlawful because they were simply exercising their First Amendment rights to engage in political discourse.

There are several subsections of Disorderly Conduct (Penal Law Section 240.20), meaning that one can be guilty of this violation in numerous ways (and we expect the police and prosecutors to charge each defendant with violating multiple sections of this violation at a time).  The statute reads that a person is guilty of this charge when, “with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2.. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.”

In our opinion, we think that these Disorderly Conduct charges could be defeated in numerous ways. A protester could argue that he had no intent to cause public annoyance or alarm, but was instead only intending to cause political change and make a political statement.  Also, a protester could argue that the arrests were unlawful violations of their civil rights.

Interestingly, we think that protesters charged with misdemeanors would have a better chance at trial.  The reason for this is that people charged with Class A misdemeanors have the right to jury trials.  Given the number of people in NYC that sympathize with the Occupy Wall Street protesters, we think that prosecutors might have difficulty convincing jurors to convict a protester, regardless of the merits of the proof.  In contrast, those protesters charged with Disorderly Conduct violations are not entitled to juries, and would be tried by (most likely) less-sympathetic judges.   Don’t be surprised if prosecutors reduce the Class A misdemeanor charges in these protest cases to Class B misdemeanors (Attempted Obstructing Governmental Administration in the Second Degree, Penal Law Section 110/195.05, or Attempted Resisting Arrest, Penal Law Section 110/205.30).  That reduction does not significantly change what the prosecutors have to prove, but it allows the prosecutors to try the cases without juries (because the defendants do not have the right to a jury trial for Class B misdemeanors).  The upshot for the defendants is that the maximum jail penalty for a conviction for a B misdemeanor is 90 days rather than one year.

If you or a loved one were arrested pursuant to the Occupy Wall Street movement, you should consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  You absolutely need an attorney that understands how the criminal case and a potential civil lawsuit are intertwined, and the aggressive former prosecutors at Galluzzo & Johnson LLP are experienced in both fields.  Give them a call to schedule a consultation about your case and to discuss your possibility remedies.

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.

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.