New York Criminal Defense Blawg

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.

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

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

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

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

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

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

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

The workplace can be stressful, and sometimes that stress causes co-workers to get angry enough with each other to engage in physical altercations.  From a  lawyer’s standpoint, however, these cases can be especially complicated for a number of reasons.  The attorneys at Galluzzo & Johnson LLP include three former prosecutors that regularly represent defendants, victims, and employers in these types of matters.  They understand the complex dynamics involved in these cases and how best to represent the interests of their clients in the many different arenas that may be involved.

To begin, a workplace assault can subject the participants to several criminal charges.  The most common of these is Assault in the Third Degree (Penal Law Section 120.00, a Class A misdemeanor), which applies to intentional attacks that result in physical injury.  Where the resulting injury is serious or a weapon is used, the employee could be subject to the Class D violent felony of Assault in the Second Degree (Penal Law Section 120.05).  Even when no one is hurt, but punches are thrown, the participants can be arrested for Attempted Assault in the Third Degree, a Class B misdemeanor (Penal Law Section 110/120.00).  Finally, threatening emails, phone calls, or voicemails by one employee to the other might be grounds for an arrest for the Class A misdemeanor of Aggravated Harassment in the Second Degree (Penal Law Section 240.30).

All of these charges can be defended in a variety of ways, and an experienced criminal defense attorney with a good relationship with the local prosecutor’s office may be able to negotiate a plea bargain whereby the defendant avoids receiving a criminal record in exchange for community service or anger management.

However, in some cases, the assault or injury is so serious that jail is a real possibility.  In those cases, defendants and employers should be especially wary.  Typically, employers conduct internal investigations whereby they interview witnesses and the participants in the assault.  The participants should understand that these statements that they make in response to questioning by their employers can and will be used against them in later criminal or civil proceedings, as the statements are neither privileged nor taken while in the custody of police officers.  There are thus no Miranda rights and no Fifth Amendment rights for the employees, either, so unfortunately, their decision not to answer questions could potentially result in their lawful termination.  (On a side note: The attorneys at Galluzzo & Johnson have used their prosecutorial and investigative experience to assist employers with investigations such as these, and have also represented individuals in connection with their employment arbitrations following workplace assaults).

Generally speaking, employers will not be held liable for a workplace assault.  Some exceptions may apply where it is alleged that the employer was on notice of a “hostile work environment” that contributed to the fight, or failed to provide adequate security to prevent one.  Worker’s Comp also does not usually cover workplace assaults, as intentional criminal acts by an employee are not typically contemplated as routine workplace hazards.  Employers should be aware that victims of workplace assaults typically seek to sue their attackers in civil court, and may attempt to record conversations with their co-workers or employers so as to collect evidence for their lawsuits.

Finally, workplace assaults can result in Orders of Protection being issued by Criminal Courts, and these court orders can make it especially difficult for the participants in the fight to go back to work.  Experienced criminal defense attorneys can sometimes successfully petition the arraignment judge to carve out exceptions to the typical orders of protection such that their clients can return to work without interruption, but employers may have to be prepared to make arrangements so that the employees can work separate and apart from each other.

If you or a loved one have been involved in a workplace assault, you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson LLP.  They have successfully represented many criminal defendants and many civil plaintiffs stemming from workplace violence.  As experienced criminal investigators, they are also able to assist employers in interviewing witnesses and conducting internal investigations into the circumstances of the fight, as necessary.  Call them or email them to set up a free consultation.

NYPD officers regularly arrest people without probable cause.  A wrongful arrest such as this often results in an innocent person spending a night, or more, in jail before he/she is released from custody. Sometimes the falsely arrested person has to spend months, even years, battling his/her case. Needless to say, criminal cases can result in huge legal fees, missed days of work, tremendous anxiety, and, at worst, the deprivation of liberty for those unfortunate enough to be forced to remain behind bars.  Fortunately, victims of false arrest can seek justice for these wrongs by filing lawsuits against the city.

What you might not know, however, is that even those people who are fortunate enough to have their cases dismissed early in the process can still potentially win money in civil lawsuits against the city.  Almost every night, the District Attorney’s Office issues a “decline prosecution,” whereby the office overrules the decision of the arresting police officer and releases the arrested person from custody (oftentimes, from Central Booking).  In some ways, the DA’s decision to dismiss the case can be construed as evidence that the police officer’s decision to arrest was in fact wrongful.  Thus, the person freed by the District Attorney this way can be surprisingly successful in winning a decent and quick settlement with the help of an experienced attorney.  Oftentimes, the person released from custody before seeing a judge for the first time (arraignment) has no idea why he is being released – if this sounds familiar to you, the DA probably decided to “decline prosecution” in your case, and you may have a viable lawsuit against the city.

If you or a loved one have been falsely arrested and had your case dismissed by the District Attorney’s Office, you should consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  Their team of former prosecutors understands how best to pursue civil lawsuits against the city for false arrest and malicious prosecution, and can maybe help you or your loved one win a settlement. They work on contingency, meaning that you don’t pay them a dime unless you collect.  Call them to schedule a free consultation to discuss the possibility of pursuing justice in civil court.

Studies have shown that a surprising number of women that have been raped or sexually assaulted still choose not to report the attacks to the authorities.  Assuredly, even fewer pursue civil actions against their assailants.   Victims may be intimidated by the legal system and rightfully fear a loss of their privacy.  But the attorneys at Galluzzo & Johnson are firm believers that the system does work for those who are brave enough to pursue justice, and they are prepared to help victims skillfully navigate those waters.

Recently, the high-profile matter of Dominique Strauss-Kahn’s arrest has caused many laypeople to wonder how the criminal prosecutions of rape cases relate to the civil lawsuits filed by the victims.  Generally speaking, a smart civil attorney will wait to file a lawsuit alleging a sexual assault until after the criminal court case has resulted in a conviction, for three reasons.  First, if the defendant decides to plead guilty to a sex crime to resolve the criminal matter, his plea and allocution – which are done under oath – can be used as evidence (an admission, really) in the civil lawsuit.  Of course, an admission by the defendant under oath makes the civil lawsuit very easy to win.  Second, if the defendant is convicted after trial, that decision by the jury does not automatically guarantee a victory in the civil suit (as the criminal verdict does not constitute evidence in the civil proceeding), but it certainly makes a big settlement in favor of the plaintiff more likely.  Third and finally, civil lawyers also want to delay the filing of the civil lawsuit because the filing of that suit is likely to jeopardize the victim’s credibility in the criminal trial.  Indeed, one of the easiest ways for a criminal defense lawyer to discredit a rape victim at trial is to ask her, “And you have filed a civil lawsuit seeking millions of dollars, have you not?”  Of course, the implication for the jury is that the complainant has fabricated her story because she wants to get rich.  (This may have in fact contributed to the acquittal of the “Rape Cops” Kenneth Moreno and Franklin Mata).  Fortunately, the CPL allows attorneys to delay the filing of their sexual assault lawsuits when the criminal case is pending, without statute of limitations penalties.

An acquittal of the perpetrator in criminal court doesn’t necessarily mean that a civil lawsuit will be unsuccessful, however.  For example, O.J. Simpson was found “not guilty” of murder in criminal court, but was later found to be criminally responsible for the death of Nicole Brown in a civil trial.  The reason for these different results is that the standards of proof are different: in criminal court, the defendant must be found guilty beyond a reasonable doubt, but in civil court, the defendant must be proven liable by a preponderance of the evidence.  Clearly, the latter is a less difficult standard of proof than the former.   Thus, a civil claimant need not abandon her lawsuit simply because her accuser was found not guilty by a criminal jury.  (As an example, the writer thinks it will be very interesting to see the resolution of the $57 million civil lawsuit in the “Rape Cop” case involving Kenneth Moreno and Franklin Mata, who were found not guilty of rape and sex abuse but found guilty of official misconduct.).

Civil lawsuits can even be successful in cases where the perpetrator is destitute or not apprehended.  That is because there may be liability on the part of the operator of the premises where the rape occurred.  Hotels, bars, and concert venues that fail to provide adequate security to prevent a sexual assault can also be sued, even where the perpetrator eludes capture or is not apprehended.

If you or a loved one have been a victim of a rape or sexual assault and are considering starting a lawsuit against the perpetrator, you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson, LLP.  In particular, Matthew Galluzzo served as a prosecutor in the famous Sex Crimes Unit of the Manhattan D.A.’s Office, and thus he has real-world experience building and proving cases of sexual assault and rape.  His efforts have resulted in the conviction and incarceration of numerous sexual criminals, and now, he is available to help victims obtain the justice they deserve in civil court.  He has been recognized by the U.S. government as a leading expert in the investigation and prosecution of sex crimes, and his opinions on the prosecution of sex crimes have been sought out by television and print media.  Plainly put, if you have been a victim and are seeking justice in civil court, or if you just need help understanding the often daunting and intimidating criminal justice process, you would be hard-pressed to find someone better suited to do so.  Give him a call today to schedule an appointment.

Now that the warm weather is here, most native New Yorkers and tourists can enjoy the sunny weather by going to any one of our gorgeous parks to take in all of the historic sights and sounds the city has to offer.

Well, maybe not the sounds so much these days…You may have noticed green and white signs which are being placed in public areas by the Department of Parks and Recreations or the Central Park Conservancy, most notably in the Park’s Strawberry Fields, Bethesda Fountains and the Boathouse. The signs, which have been placed in areas where talented musicians play soothing music which enriches the city’s cultural value and history, designate the areas they are posted in as “Quiet Zones” and prohibit musical instrument playing in addition to playing music through amplifying devices. So, no radios or speaker systems to disturb the peace…but what about the gentle classical music you may have been accustomed to hearing when strolling through the park? You won’t hear it anymore, if the city can help it…So far this year cellists, saxophonists, violinists, guitarists, and flutists playing without any electric amplification have been issued summons by the Parks Department charging them with making unreasonable noise, and asked to cease playing music at all in these areas.

While the New York Civil Liberties Union has gotten involved in the matter to address the First Amendment issues associated with the city’s prohibition of music playing in our city, the fact of that matter remains that musicians are being summoned to criminal courts to answer to judges for their actions and pay fines. Presumably they are being charged under Parks and Recreations Regulations § 1-05, section (a) which deals with:

Noise; Musical Instruments; Sound Reproduction Devices

1. No person shall make, or cause or allow to be made, unreasonable noise in any park so as to cause public inconvenience, annoyance or harm. Unreasonable noise means any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivity or injures or endangers the health or safety of a reasonable person of normal sensitivity, or which causes injury to plant or animal life, or damage to property or business.
2. No person shall play or operate any sound reproduction device, as defined in §1-02 of these Rules, in any park without a permit from the Department of Parks & Recreation and any other City agency or agencies with pertinent jurisdiction. This paragraph (2) shall not apply to the regular and customary use of portable radios, record players, compact disc players, or television receivers, or tape recorders played or operated in full accordance with these Rules so as not unreasonably to disturb other persons in their permitted uses of the park, except that in areas designated by the Commissioner as “quiet zones,” such regular and customary use of sound reproduction devices shall be prohibited. Signs shall be posted in all quiet zones advising the public of such prohibition. Use of radios and other sound reproduction devices listened to solely by headphones or earphones, and inaudible to others, is permitted in all areas of the parks.

While subdivision two would apply where people are enhancing the volume of their music with speakers or amplifiers, subsection 1 applies to those who simply play their instruments with no sound enhancement. Subsection one, however, requires that the “unreasonable noise” cause “public inconvenience, annoyance or harm.” It’s hard to imagine a violinist in Central Park causing such harm…especially if people are surrounding the musician and giving him or her a few dollars for the performance.

If not charged under the Parks and Recreations Regulations, perhaps a police officer could charge a musician under Administrative Code  § 24-218, which classifies “making unreasonable noise” as a misdemeanor, meaning it can leave the person charged with a permanent criminal record and carries a potential sentence of up to 20 days imprisonment, and/or a fine of anywhere from $50 – $500.

So, before you pick up your instrument and perform in Central Park, or anywhere in the city for that matter, check to make sure you are not in a designated “Quiet Zone.” If you are, be prepared to be stopped by the police and issued a summons for violating the city’s new “noise” policy.

If you or someone you know has been given a summons to appear in court, accused of making “unreasonable noise” in violation of any New York statute, contact an experienced criminal lawyer from the firm of Galluzzo and Johnson to represent you.

The most serious drug-related felonies in New York state law are Criminal Possession of a Controlled Substance in the First Degree (Penal Law Section 220.21) and Criminal Sale of a Controlled Substance in the First Degree (Penal Law Section 220.43).  As Class-A1 felonies, they are punishable by a minimum of 8 years in state prison for first-time offenders, and by as many as 20 years.  (Unfortunately, people charged with these crimes are ineligible for Judicial Diversion- the program whereby drug offenders are given an opportunity to attend a drug rehabilitation treatment program instead of prison.)

A person is guilty of Criminal Possession of a Controlled Substance in the First Degree when he or she knowingly and unlawfully possesses:

1) one or more preparations, compounds, mixtures or substances containing a narcotic drug (which includes cocaine or heroin, for example) and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more; or

2) methadone and said methadone weighs five thousand seven hundred sixty milligrams or more.

(An ounces to grams converter is available here).

Sometimes, in First Degree possession cases, multiple individuals are charged with the same crime at the same time for possessing the same large quantity of narcotics.  Typically, the prosecutor will use one of the statutory presumptions available to him under Penal Law Section 220.25 – such as the “automobile presumption” (subsection 1) or the “room presumption” (subsection 2).  However, both of these presumptions are rebuttable, and a skilled defense attorneycan refute them with evidence and arguments that the accused was unaware of the presence of the narcotics in the automobile he was riding in or the room he was sitting in.

A person is guilty of Criminal Sale of a Controlled Substance in the First Degree when he knowingly and unlawfully sells:

1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more; or

2) methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

As you can see, the minimum quantities for the sale charges are smaller than the minimum quantities for the first-degree possession charges.

In our experience, an arrest for a First Degree sale usually suggests a long-term investigation by undercover narcotics officers.  In those cases, an undercover officer has probably made multiple purchases from an accused (in order to gain his trust) before attempting to purchase a large enough quantity to qualify for an A-1 charge.  We find, however, that sometimes people are arrested and accused for these crimes even when they played a small or non-existent role in the sale(s).  These individuals can have very defensible cases.  A skilled defense attorney can also challenge the credibility of the confidential informant or undercover officer through a variety of other cross-examination techniques, as well.

In a nutshell, these cases carry very stiff penalties but can be defeated with the assistance of a defense attorney that understands how to win them.  If you or a loved one have been arrested for one of these crimes, then you should strongly consider hiring the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Their team of three former senior Manhattan prosecutors understands how these sorts of cases are constructed by the police, and thus, they have unique insight into how best to defend against them.  Give them a call to schedule an appointment today: 212-918-4661.

Being accused of driving under the influence of alcohol, marijuana, or any controlled substance in New York is not a matter to be taken lightly. A conviction for any DWI-related offense can have serious consequences, such as incurring a permanent criminal record, driver’s license suspension and/or revocation, payment of hefty fines, enrollment in counseling programs, requirement of the use of an ignition interlock mechanism, vehicle forfeiture, and/or incarceration. In fact, merely being charged with a DWI-related offense can impose a hardship upon a person before he/she is even convicted, as certain Vehicle and Traffic Law (“VTL”) provisions provide for immediate suspension of driver’s licenses which can disrupt a working person’s life. This post will explain the most commonly used DWI charges and the penalties associated with them so that you know what to expect if you or someone you know are in the position of facing a prosecution for DWI.

The basic component or “elements” of alcohol and drug related driving offenses are the following: (a) operation of a motor vehicle or vessel, (b) on a public highway or the waters of the State, (c) while in an impaired or intoxicated condition at the time of such operation, (d) due to the voluntary consumption of alcohol or drugs.

You might be surprised to learn that a person is deemed to “operate” a motor vehicle if he/she is behind the wheel while the engine is running. As such, there is no requirement that the person charged be observed “driving” the vehicle in the traditional sense that the vehicle be observed in motion. The law is clear that “operation” of a motor vehicle is established where there is a “present intention” of placing the vehicle in operation. Courts have found that people who are asleep at the wheel of a parked car with a key in the ignition and the engine running “operated” a vehicle for purposes of a DWI charge. In fact, courts have upheld convictions where drivers were asleep or unconscious at the wheel of vehicles which were parked in their own driveways as they were deemed to have operated a vehicle on a “public highway” – public highway including highways, private roads open to motor vehicle traffic, parking lots, and even driveways to residences.

As you can see from the summary of charges below, DWI offenses are very serious, and they carry severe penalties and consequences. If you or someone close to you has been accused of driving while impaired or intoxicated, contact an experienced criminal attorney immediately.

Some of the more common drinking and driving offenses:

VTL § 1192.1: “Driving while ability impaired.” This section states that no person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. “Impairment” means impairment to any extent of the physical and mental abilities needed to be possessed in order to operate a vehicle as a reasonable and prudent driver.

Penalties: This is the least severe of the DWI charges as it is a traffic infraction (not a crime) which is punishable by up to 15 days in jail, and/or a fine of $300-$500, and 90 day license suspension for first time offenders. Second offenders face up to 30 days in jail and increased fines and license revocation for 6 months, while third time offenders face up to 90 days in jail, as well as increased fines and 6 month license revocation.

VTL § 1192.2: “Driving while intoxicated, per se.” This section states that no person shall operate a motor vehicle while such person has .08 per centum or more by weight of alcohol in the person’s blood* as shown by chemical analysis of such person’s blood, breath, urine or saliva.

Penalties: first time offenders convicted under this section face up to one year in jail, and/or a fine of $500-$1000 and a mandatory license revocation of six months. The law may also require that an ignition interlock device be placed on any vehicle operated by the defendant for a specified period of time.

*Note: If a person has .18 of one per centum or more by weight of alcohol in their blood, they may be charged with aggravated driving while intoxicated, a misdemeanor which carries up to one year in jail and a fine of $10,000-$25,000.

VTL § 1192.3: “Driving while intoxicated (common law).” This section states that no person shall operate a motor vehicle while in an intoxicated condition, meaning the consumption of alcohol has caused impairment which renders that person incapable, to a substantial extent, of employing the physical and mental abilities which are needed to be possessed in order to operate a vehicle as a reasonable and prudent driver. There is no requirement that a person submit to a breathalyzer test for a charge under this section to apply.

Penalties: This is a class “A” misdemeanor which carries up to one year in jail and/or a fine of $500-$1,000, and a mandatory license revocation of six months.

VTL § 1192.4: “Driving while ability impaired by drugs.” No person shall operate a vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug.

Penalties: This is a class “A” misdemeanor for first time offenders, which carries up to one year in jail and/or a fine of $500-$1,000 and mandatory license revocation of 6 months.

Felony DWI: A person who operates a vehicle in violation of § 1192.2, 1192.3 or 1192.4 can be charged with a class E felony if he or has been previously convicted of any DWI misdemeanor, vehicular assault or vehicular manslaughter within the preceding ten years*.

Penalties: As a class “E” felony, incarceration of up to 4 years may be imposed, as well as a fine of $1,000-$5,000, and mandatory license revocation for 1 year.

*If a person has two such prior convictions, they may be charged with a class “D” felony which carries up to 7 years in jail and higher fines.

“Lenadra’s Law”: Under Leandra’s Law, first time offenders driving while intoxicated or impaired by drugs who have a child passenger younger than sixteen years old can be charged with a class E felony which is punishable by up to 4 years in jail. Intoxicated drivers or those under the influence of drugs who cause the death of a child younger than 16 in the car can be charged with a Class B felony, which is punishable by up to 25 years in prison. If such a driver causes serious physical injury to a child in their vehicle, they can be charged with a Class C felony, which is punishable by up to 15 years in prison.

This week, Manhattan federal prosecutors scored a huge victory with a conviction in the insider trading trial of billionaire Raj Rajaratnam, the former manager of the successful Galleon hedge fund.  Rajaratnam is expected to be sentenced to anywhere between 15.5-19 years in prison as a result of his conviction, though he plans to appeal to the Second Circuit Court of Appeals.  Now that the trial phase is over, however, it is time to contemplate what, if any, consequences this conviction could have for the financial industry and the professionals working in it.   Smart defense attorneys will also dissect this trial – in particular, the strategies used by the attorneys – and learn some valuable lessons from it.

To begin, it is widely believed that this conviction will embolden prosecutors and make them even more willing to pursue financial professionals suspected of insider trading.  This is probably true, though some commentators seem to forget that federal prosecutors were already under significant pressure from the public and their politicians to hold the perceived Wall Street fat cats criminally accountable for the nation’s economic woes.  (And the numbers speak for themselves: over the last 18 months, the Manhattan U.S. Attorney’s Office has charged 47 individuals with insider trading crimes and 36 have pleaded guilty or been convicted. Preet Bharara, the U.S. Attorney for the Southern District, has promised more prosecutions to come, as well.)

From an attorney’s standpoint, it was interesting to see techniques that were once reserved for cartel and Mafia prosecutions – such as wiretaps and cutting testimony deals with cooperating co-defendants – put to such effective use against Raj Rajaratnam.  Indeed, as Rajaratnam’s attorney, John Dowd, discovered, an incriminating tape recording of your client can be very difficult to overcome. (Coincidentally, the other front-page trial currently in progress – that of the “rape cops” Kenneth Moreno and Franklin Mata –  involves a highly damaging secret recording of the defendant.)  The techniques prosecutors used were not new, but until now, Wall Street defendants were not used to seeing them used against them.

In some ways, though, this very public trial and conviction of Mr. Rajaratnam might yield some subtle silver linings for future inside trading defendants.  From a criminal lawyer’s standpoint, the case against Mr. Rajaratnam was a grand affair : Mr. Rajaratnam was one of the richest and most successful hedge fund managers on the Street, the government had numerous recorded wiretapped conversations, and the prosecutors cut deals with other defendants for their testimony.  So, the question becomes: will juries accept anything less?  What if prosecutors don’t have incriminating wiretapped conversations?   In some ways, the issue is analogous to the “CSI Effect” often lamented by prosecutors: without elaborate DNA evidence or scientific proof, juries that have spent years watching fictional and unrealistic television courtroom dramas are often less willing to convict defendants.  So, what was once considered a cutting-edge prosecutor’s advantage – DNA evidence – has now almost become a prerequisite for their success. Similarly, juries in white collar/insider trading cases may not be willing to convict someone without the sort of wiretapped conversation that they may have read about in Rajaratnam’s case.  Prosecutors have made it clear that they intend to pursue more wiretaps against Wall Street executives, but there is simply no way that every prosecution case will involve this evidence.  Thus, those lucky defendants – particularly the lower-level defendants with less of a profile than Mr. Rajaratnam – may be able to successfully take advantage of this “CSI Effect” with their juries.

Hindsight always being 20/20, we hesitate to criticize the defense strategy, as it was most assuredly a difficult case to defend.  However, there are two things that we can probably take away from this case: first, the jury on white-collar cases should probably not be blue collar.  Right now, anti-Wall Street sentiment is at an all-time high in this country.  Mr. Rajaratnam’s team deliberately avoided putting financial professionals on the jury – we suspect that they did that because they were concerned about jurors that would be personally familiar with the issues relating to public and private investment information.  However, that strategy may have backfired; certainly, it is difficult for teachers and blue collar workers to relate or sympathize with the plight of billionaires.  A few financial professionals on the jury might have felt a little “defensive” about the prosecution’s case, if, as defense attorney John Dowd suggested, what Mr. Rajaratnam did wasn’t a crime because this sort of thing “happens every day on Wall Street.”

Additionally, Mr. Rajaratnam perhaps should have testified in his defense.  The decision whether or not to testify is a complicated one and we are sure that Mr. Rajaratnam and his team agonized over it, but ultimately, we think that it is exceptionally difficult to win cases like these unless the defendant personally provides an explanation for his actions, and, perhaps even more importantly, demonstrates to the jury that he is a decent and likable human being.

If you or a loved one have been arrested or are being investigated for insider trading or some other financial-related crime, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Our attorneys include three former Manhattan prosecutors that have tried, and won, exceptionally difficult trials and arbitrations under intense pressure.  We have successfully represented Wall Street brokers, traders, and other financial professionals in a wide range of criminal and civil matters.  Our attorneys have a deep and sophisticated understanding of the financial industry, and we have used that expertise to win stunning victories in cases involving alleged financial fraud.  Call us or email us today to set up an appointment at our convenient Wall Street location.

Before you send that threatening email or text message, or scream in anger at someone over the phone, you should take a deep breath and stop to consider whether you might actually be committing a crime by doing so.  In New York state, Aggravated Harassment in the Second Degree (Penal Law 240.30) is a Class A misdemeanor punishable by up to 1 year in jail.  A person is guilty of this crime, when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or

4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.

In our experience, these crimes are frequently reported in cases involving bickering spouses or ex-boyfriends/girlfriends.  The cases brought under subsection 1 of Penal Law Section 240.30 can be easy for prosecutors to prove because there is oftentimes some electronic or recorded evidence of the crime.  In cases involving e-mail or text messages, for example, the complaining witness or victim can show the email/text to the police or prosecutor and easily give them probable cause to make an arrest. Sometimes the identity of the sender of the message is obvious, but even when illegal messages are sent anonymously, police can sometimes trace the origin of the message with an IP address or telephone account information.  Keep in mind, though, that a person that says something threatening over the phone can be arrested for Aggravated Harassment in the Second Degree even when the telephone call is not recorded, so long as the complaining witness is sufficiently credible to the police and/or prosecutor.

Skilled defense attorneys will generally either try to argue one of two things 1) that the message at issue was not, in fact, made or sent by the accused person, or 2) that the accused person did not have a criminal intent in sending the message.

If you or a loved one have been arrested for or are being investigated for a violation of Penal Law Section 240.30, you should strongly consider contacting the skilled criminal defense attorneys at Galluzzo & Johnson LLP about possible representation.   Their attorneys include three former prosecutors that worked extensively on these types of cases.  Matthew Galluzzo, in particular, was a supervising attorney in the domestic violence unit of the Manhattan D.A.’s Office, and has significant experience both prosecuting and defending individuals charged with violations of this crime.