Former Manhattan prosecutors specializing in criminal defense and civil rights in state and federal courts.

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Rape/sexual assault charges and foreign citizens (non-U.S. citizens) in New York

Posted By Galluzzo & Arnone || 12-Jun-2015

Being falsely accused of rape or a sex crime is a nightmare for anyone, but it presents a particularly complex set of problems for foreign citizens living, working, or visiting New York. Not only are they facing deportation as a potential consequence of a conviction, they also generally have increased difficulty securing bail or being able to travel during the pendency of the case. Additionally, we find that foreign citizens frequently make mistakes in dealing with police officers during sex crimes investigations because they are unfamiliar with the American justice system and do not understand their rights. That is why it is absolutely critical that a foreign citizen suspected or accused of committing a rape or sex crime in New York immediately retain a lawyer to intervene and protect him before it is too late.

The ultimate immigration consequences for a non-citizen are sometimes difficult to predict and involve a multitude of factors, including the precise conviction, the immigration status of the defendant (e.g. green card, visa holder, illegal alien), the date of admission to the United States, and the length of the prison sentence, if any. Generally speaking, though, for a conviction to render the defendant deportable, the crime must fall under one or more of several classifications of crimes. Some of those classifications include “sex crimes against minors,” “crimes involving moral turpitude,” “aggravated felonies,” “crimes of domestic violence,” “crimes against a child,” and “prostitution and vice crimes”. Thus, it can often be necessary for a defense attorney to negotiate a plea bargain whereunder a deportable offense is reduced to a non-deportable offense (our offense has had success with this strategy in the past), or to use the fact of an impending and inevitable deportation as a way to persuade a judge to impose a non-jail sentence.

This resource published by the National Immigration Project pretty accurately summarizes some of the relevant charges, most of which are contained in chapter 130 of the Penal Law (Note: most rape and sexual assault charges in New York are pursued under New York state law, though the authors have experience defending foreign individuals in federal sex crimes cases as well). Some of those common charges include Sexual Abuse in the Third, Second and First Degrees, Rape in the Third, Second and First Degrees, Sexual Misconduct, Prostitution/Promoting Prostitution/Patronizing a Prostitute, and Criminal Sexual Act in the Third, Second and First Degrees. Click here and scroll to learn more about the elements of these charges and what they mean.

Unfortunately, we find that many foreign citizens believe that they have to speak to the police investigating them of a sex crimes. In some foreign legal systems, there are negative consequences to failing to put forth a defense from the outset. In our experience, though, it is almost never a good idea to speak voluntarily with the police about any criminal investigation. Accordingly, if your non-citizen loved one is being investigated by police officers, you should absolutely drop everything and get a skilled defense attorney to help you immediately before your inexperienced loved one dooms himself with a well-intentioned statement that he later regrets.

In addition, foreign citizens are generally less likely to be able to post bail than Americans accused of sex crimes. In determining whether to grant bail at arraignment, a criminal court judge has to determine whether the individual is a potential flight risk. Certainly, if the defendant lives abroad, then there is perhaps good reason to believe that he would choose to flee and go home rather than face the serious charges against him. Moreover, extradition of criminal fugitives from one nation to another is governed by treaty, and some nations have not agreed to extradite their citizens to the U.S. and/or are notorious for not delivering their citizens to the United States to face justice (for example, France). As a result, we find that bail can also be much higher for foreign citizens; the surrender of the passport is also often required by the judge at arraignments too. Additionally, arranging for a bail bond can sometimes be difficult for foreign citizens whose foreign property may not be acceptable as collateral to a bail bondsman, though premier bail bondsman can usually make it work.

Another complication is that even those individuals that are able to get bail and keep their passport pending an investigation really cannot and should not travel outside of the United States. They understandably may want to go home and get back to work and see their families immediately after getting out of jail, but for some non-citizens, that is not an option so long as the case is pending. The reason is counter-intuitive: the accused defendant may not be permitted to get back into the country by Customs/Immigration agents, even if they are coming back for a court date in connection with their ongoing case. Customs/Immigration officials have the discretion to deny a non-citizen entry into the United States, and since that non-citizen has been fingerprinted and identified during his arrest, those agents at the border will be made aware of the pending case upon an attempted re-entry at the airport. So, it is quite possible that a non-citizen trying to return for his court date would be denied entry and sent home; as a result, the criminal court judge will order a bench warrant for that defendant, and he will never be able to come back to the United States without being immediately arrested, detained, and brought back in handcuffs and in custody to face additional prosecution for being a fugitive from justice. Accordingly, many foreign citizens – even tourists and visitors – are forced to stay in the United States for months or even in excess of a year awaiting the outcome of their criminal case, which can be agonizing.

If you or a loved one are a non-citizen of the United States facing sex crimes charges in New York, you should strongly consider contacting the former prosecutors and experienced criminal defense attorneys at Galluzzo & Arnone LLP. Their team includes Matthew Galluzzo, a former Manhattan sex crimes prosecutor and widely-acknowledged national expert in rape investigations (see here and here for articles written by him in the Daily News about rape investigations). In addition, their lawyers have extensive experience representing foreign citizens, as they are the go-to criminal defense firm for the New York consulates of several foreign countries including France, Australia, Saudi Arabia, Belgium, and Switzerland, among others (Mr. Galluzzo speaks fluent French). They have been successful in having many rape cases dismissed (for Americans and non-citizens alike) and in securing results without jail for non-citizen defendants from around the world, and are prepared to explain to you the unique challenges you face as a non-citizen facing these accusations. Give them a call to schedule an appointment today.

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