What Is a Desk Appearance Ticket (DAT)?

A Desk Appearance Ticket is a written notice issued by law enforcement directing an arrested individual to appear in criminal court on a specified date. DATs are commonly used for lower-level offenses, allowing individuals to be released from custody without immediate arraignment. Failure to appear in court as directed can result in a bench warrant for arrest.

Charges and Potential Penalties

Obstructing Governmental Administration (Second Degree)

Under New York Penal Law § 195.05, this offense occurs when someone intentionally obstructs or impairs a public servant from performing an official function through intimidation, physical force, interference, or an independently unlawful act. This is classified as a Class A misdemeanor, punishable by up to one year in jail, probation, and fines.

Resisting Arrest

Defined by New York Penal Law § 205.30, resisting arrest involves intentionally preventing or attempting to prevent a police officer from making an authorized arrest. This is also a Class A misdemeanor, carrying similar penalties of up to one year in jail, probation, and fines.

Trespass

Trespass charges can vary based on circumstances. In New York, criminal trespass ranges from a violation to a Class A misdemeanor, depending on factors such as the type of property and intent. Penalties can include fines, community service, or up to one year in jail for more serious offenses.

Criminal Mischief

Criminal mischief involves intentionally damaging another person’s property. Under New York Penal Law § 145.10, if the damage exceeds $1,500, it’s considered Criminal Mischief in the Second Degree, a Class D felony, punishable by up to seven years in prison. Otherwise, it is typically prosecuted as a misdemeanor.

Next Steps for Those Arrested

Individuals who received DATs must appear in court on the date specified in the ticket. Failure to do so can lead to additional charges and a bench warrant for arrest. It’s advisable for those charged to consult with an attorney to understand their rights and prepare for the legal process.

Legal and Community Implications

The arrests at Brooklyn College highlight the legal risks associated with protest activities, especially when demonstrations lead to confrontations with law enforcement or property damage. While the right to protest is protected, participants should be aware of the potential legal consequences of certain actions during demonstrations. These arrests can be especially problematic for foreign students on F-1 visas, as their immigration status can be placed in peril.

Matthew Galluzzo is a former Manhattan prosecutor and experienced criminal defense attorney who has successfully defended many students accused of illegal actions during political protests. He has helped students keep their criminal records clean and remain in school without suspension or discipline. If you or a loved one have been arrested in connection with the Brooklyn College protests, you should strongly consider engaging Mr. Galluzzo.

On May 7, 2025, approximately 75 pro-Palestinian protesters were arrested at Columbia University’s Butler Library after occupying the reading room in a demonstration organized by Columbia University Apartheid Divest (CUAD). The university cited safety concerns and the presence of non-affiliated individuals as reasons for requesting NYPD intervention. Two campus safety officers were allegedly injured during the incident.

Many of those arrested were issued Desk Appearance Tickets (DATs), a common practice in New York for certain offenses. A DAT is a written notice issued by a police officer directing an individual to appear in criminal court at a future date in connection with an alleged offense. It allows the individual to remain out of custody until their court date.

Relevant Statutes and Potential Charges

The protesters may face charges such as trespassing (Penal Law §140.05 or §140.10), disorderly conduct (Penal Law §240.20), or criminal mischief (Penal Law §145.00) if property damage occurred. There could also be charges of Obstructing Governmental Administration (Penal Law §195.05) or Resisting Arrest (Penal Law 205.30) for those individuals accused of fighting with law enforcement officers during their arrests. These offenses are typically classified as violations or misdemeanors.

Possible Penalties

Convictions for these offenses can result in prison sentences and permanent criminal records (which may impact future employment and education). These arrests are also particularly problematic for foreign students on F-1 visas, as they could negatively impact immigration status in the current environment.

Failure to Appear Consequences

If an individual fails to appear in court on the date specified in the DAT, the court may issue a bench warrant for their arrest. Additionally, under Penal Law §215.58, willfully failing to appear within 30 days can result in a separate violation charge. In some cases, Mr. Galluzzo has been able to appear in court for his clients in lieu of their personal appearances.

Legal Considerations

Given the potential legal ramifications, individuals issued a DAT are advised to consult with a criminal defense attorney to understand their rights and options. Matthew Galluzzo is a former Manhattan prosecutor and experienced criminal defense attorney. He has represented many students arrested and accused of crimes relating to political protests, with an excellent track record of success. If you or a loved one have been arrested for the protests at Columbia University on May 7, you should strongly consider engaging Matthew Galluzzo.

News links:

Protesters arrested as Columbia calls in New York police to clear Gaza solidarity sit-in – as it happened

Pro-Palestinian demonstrators clash with security guards at Columbia University

Dozens of pro-Palestinian protesters arrested after Columbia calls in police

Oftentimes, in these cases in which no one was injured, a protester-defendant could – with the help of an experienced attorney – successfully negotiate a plea bargain whereby the protester will have no criminal record and spend no time in jail (such as an “adjournment in contemplation of dismissal or a violation like Disorderly Conduct). In cases involving Desk Appearance Tickets, such negotiations may even be possible prior to the return date (i.e. the first court appearance). However, for reasons relating to principle, many protester-defendants refuse to accept any such deal, preferring to demand dismissal or a trial where their voices can be heard by a jury. Such an attitude is certainly understandable but it does tend to increase the risk of a negative result (such as a permanent criminal record).

Unfortunately, some protests escalate into confrontations with police officers. In those cases, charges like Assault in the Second Degree can sometimes be levied against arrested protesters alleged to have injured police officers. That charge is a serious felony that can carry real jail time, and should not be treated lightly at all. The best defense in these cases is often to argue that the defendant did not act unreasonably, and that any injuries to the police officer were sustained on account of his/her own aggressive or improper actions. In today’s current climate, that argument can have real traction with some jurors.

Thankfully, nowadays many protesters have video footage of their arrests, or their behavior just prior to being arrested. Oftentimes, this footage can be helpful to their defenses. In those cases, it may make sense for their attorneys to share the footage with prosecutors in the hopes of securing outright dismissals. Of course, an outright dismissal of an arrest charge can open the door to a lawsuit for wrongful arrest against the City.

Sometimes people attempt to intervene during an arrest of a protester by trying to prevent the police officer from apprehending someone else. In these cases, the intervenors typically are charged with Obstructing Government Administration or Resisting Arrest, misdemeanors. A person being unlawfully arrested can argue that they are not guilty of Resisting Arrest because the arrest was unlawful or unauthorized under the circumstances, and an intervenor may also be able to successfully argue the same thing.

Generally speaking, defendants (and defense attorneys) prefer some anonymity with respect to their cases, and prefer to try their cases discretely in the courtroom. However, for those defendants seeking trials by jury, attorneys should consider trying to garner public sympathy and/or publicity for the client’s case before the trial. After all, these cases frequently depend less on the facts presented at trial so much as they do upon the attitudes of the fact-finders (i.e. judges or juries) deciding the case.

If you or a loved one have been arrested or given a Desk Appearance Ticket in New York City for protesting, you should strongly consider contacting Matthew Galluzzo. He is an experienced criminal defense attorney and former Manhattan state prosecutor. He is also a civil rights attorney who has successfully sued members of the NYPD for false arrest and police brutality.

Under CPL 440.10, a defendant can ask the trial court that accepted the guilty plea to vacate the conviction if the defendant did not receive the effective assistance of counsel in some way that was not apparent from the trial record. Typical claims of this sort tend to focus on attorney conflicts of interest, failure to advise clients on the immigration consequences of their pleas, failure to interview witnesses or investigate leads, or failing to communicate plea bargain offers.

Article 10 of the New York Mental Health and Hygiene Law gives the state the power to seek the civil commitment of certain convicted sex offenders following their release from prison. In short, a sex offender can serve his sentence for his sex crime but still be kept in custody against his will if it is proven, by a preponderance of the evidence, that he has a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.”

An interesting question arises: what if a convicted sex offender accepted a plea bargain without being advised of the possibility that they would actually be civilly committed and thereby forced to spend a significantly longer time in custody than he had expected under the terms of his plea deal? One might argue that the attorney’s failure to advise his client of this potential consequence constituted ineffective assistance of counsel worthy of the vacatur of the plea pursuant to CPL Section 440.10. The argument suggested here is potentially analogous to the vein of cases under Padilla, which gave many convicted defendants the right to claim that they did not receive the effective assistance of counsel because they, too, were not properly advised of the “civil consequence” of deportation stemming from their guilty pleas. One of the difficulties of this argument, on the other hand, is that only approximately 7% of convicted felony sex offenders ultimately become civilly committed, whereas immigration consequences for certain criminal convictions are more certain for non-citizens.

The attorneys at The Law Office of Matthew Galluzzo are experienced appellate practitioners with a background in prosecuting and defending sex crimes. They have been successful in overturning convictions via CPL 440.10 in a variety of contexts, resulting in much more favorable outcomes for their clients. If you or a loved one are being subjected to an upcoming sex offender civil commitment proceeding that you did not anticipate, you should strongly consider contacting the experienced criminal defense attorneys at The Law Office of Matthew Galluzzo to determine whether you might be able to pursue such an appeal via CPL 440.10.

The article is available here:

http://www.nydailynews.com/new-york/nyc-crime/barber-nypd-cops-beat-controversial-iphone-sting-article-1.2026380

According to Mr. Gurley’s girlfriend, Melissa Butler, Mr. Gurley did absolutely nothing wrong and was merely walking down the stairs when the rookie cop gunned him down. Why the officer felt the need to even unholster his firearm is unknown.

Mr. Gurley’s estate will undoubtedly have a compelling civil lawsuit against the officer and the City of New York for the violation of the innocent man’s constitutional rights, as well as claims for wrongful death and quite possibly negligent training. A police officer CANNOT use deadly force unless the officer has probable cause to believe that a suspect poses a significant threat of death or serious physical injury to the officer or others. In this instance, Mr. Gurley appeared to have been violating no law whatsoever, and the police officer who shot him is going to be hard-pressed to demonstrate that he posed a threat to his or anyone’s safety.

Aside from the civil ramifications of this case, it is unknown whether a criminal investigation will ensue, although if history is any indication, no charges will brought against this officer.

If you or a loved one know someone who has been the victim of police brutality, you should contact an experienced civil rights attorney at once to ensure that your rights are protected and you are justly compensation for any and all injuries unjustifiably suffered.

The link to the story and interview is available here:

http://www.myfoxny.com/story/25447973/brooklyn-judge-voids-convictions-tied-to-former-detective

The Obama administration has recently taken notice of the epidemic of rape and sexual assault on American campuses; shockingly, it has been reported that 1 in 5 female college students are sexually assaulted during their time at university. This number is incredibly alarming and has attracted the attention of numerous legislators seeking additional funding to investigate and combat the problem. Other legislators have proposed legislation requiring college administrators to report all allegations of sexual assault on campus to local law enforcement, to prevent the problem of school administrators subtly and sometimes not-so-subtly discouraging students from making the reports themselves. In further response to the growing awareness of this massive problem on American campuses, a task force was convened in January 2014 that proposed a number of protocol suggestions for administrations to reform their policies for handling sexual assault complaints.

Title IX is federal legislation designed to prevent gender discrimination in schools and universities that receive federal funding. Most people familiar with Title IX have heard of it because of its widespread impact upon college athletics. However, the legislation is actually much broader than that, and most certainly creates a duty on the part of school administrations to protect female students from sexual assault on campus.

Many of the litigants in the recently-filed complaints with the Department of Education seemingly have hoped to spur reforms in their universities’ policies for investigating and handling complaints of sexual assault (as well as improve the educating of students about issues relating to rape and sexual assault). However, what many of these litigants may not realize is that Title IX suits can also be brought privately in federal district courts, and that compensatory damages are available. That means that victims of sexual assault on university campuses might be able to recover significant monetary rewards if they can demonstrate that their universities’ failures somehow further injured them after the assaults that they sustained. One of the seminal cases on the subject of private lawsuits under Title IX was Mercer v. Duke University (though that case applied to college athletics).

It seems to us that many of the victims of rape and sexual assault whose complaints to their college administrations were mishandled could have very meritorious claims that they were secondarily victimized by the people in whom they placed their trust. In short, the jury awards in these types of lawsuits could potentially be substantial, in addition to forcing significant changes in policies and behavior.

If you or a loved one have been the victim of a rape or sexual assault on a college or university campus, and the administration failed to provide adequate security, failed to properly investigate the complaint or take appropriate action against the abuser, and/or discouraged the pursuit of formal charges with law enforcement, then you should strongly consider contacting the experienced civil rights attorneys at The Law Office of Matthew Galluzzo to determine whether there might be a viable and valuable lawsuit for damages against the institution.

The New York Post recently reported on an incident involving an 84 year old man on the Upper West Side that was arrested and beaten by police officers after supposedly jaywalking. The article explained that Kang Wong, an 84-year-old with limited English skills, was stopped by police officers after walking across the street against the light. Of course, jaywalking is so common in New York that it’s practically an Olympic sport, but the Mayor’s Office defended the NYPD’s new crackdown on jaywalkers as being designed to curb the rash of recent pedestrian traffic deaths.

As is often the case in street-level police interactions, an apparent misunderstanding or miscommunication between the police officer and the citizen led to an escalation. Now, instead of a ticket for jaywalking, Ms. Wong has a bleeding head wound to deal with and faces a desk appearance ticket in Manhattan for resisting arrest (Penal Law Section 205.30, a class A misdemeanor), obstruction of governmental administration (Penal Law Section 195.05, a class A misdemeanor), and disorderly conduct (Penal Law Section 240.20, a violation). These crimes are potentially punishable by up to a year in prison.

Resisting arrest, obstructing governmental administration, and disorderly conduct charges are routinely applied to people that have been wrongfully arrested as a way to justify police misconduct.. Defendants facing these charges often accept plea bargains to violations or low-level misdemeanors in order to avoid the risk of going to trial and getting jail after losing a trial (in these cases sometimes referred to as a “swearing contest”) with one of “New York’s Finest.” That is a shame, because police officers know that a defendant’s plea will almost certainly absolve them of any civil liability or departmental discipline, and the acquiescence of defendants only reinforces this misconduct.

Should the case against Mr. Wong ultimately be dismissed or result in an acquittal, however, he may very well have a viable lawsuit against the police officers for false arrest and/or police brutality, among other torts. He would need to file a notice of claim within 90 days of this incident in order to preserve his rights under state law, but he could also file in federal court up to three years afterwards.

If you or a loved one have been wrongfully arrested or physically abused by police officers, you should strongly consider contacting an experienced criminal defense and civil rights attorney immediately. Our team of three former prosecutors has succeeded in exposing police misconduct on several occasions, resulting in dismissals of criminal charges and significant settlements in civil rights lawsuits against the NYPD.

The facts are shocking. Last April, Mr. Peltomaa – who was recovering from open-heart surgery – and Ms. LaFont were home enjoying a quiet night and drinking some wine. Earlier in the evening, Mr. Peltomaa took pain medication prescribed to him after the surgery. At some point in the evening, he felt nervous that the pills and the wine were reacting negatively and he asked his wife to call the police, who were dispatched to the apartment.

Once they had arrived, Ms. LaFont began to explain the situation to one of the officers when her dog ran out into the street, causing her to chase after it before she had a change to fully the inform the officer of what was happenig. According to the article, the officer then inexplicably proceeded to throw her husband against a wall in an attempt to handcuff him, slamming his surgical wounds against the surface. When Ms. Lafont returned, she told the officer not to do this to her husband and SHE was promptly placed under arrest.

The police would describe Mr. Peltomaa in court documents as an “emotionaly disturbed person” who was “willing to be placed in handcuffs for his protection” but who also”fought back, kicking the officer in the groin and shins.” In any event, the officer had slammed Mr. Peltomaa face first on the floor causing his chin to split open and injuring his hand. He was ultimately hospitalized while his wife spent 19 hours in custody before being arraigned on charges of Obstructing Governmental Administration and Harassment. Nine months later, Ms. Lafont’s case was finally dismissed by a Judge.

As terrible as this case was, the facts could have been even worse, given Mr. Peltomaa’s fragile health condition. Fortunately, the criminal charges filed against Ms. LaFont were dismissed, but only after nine months of court appearances and legal fees. Without question, the family should (and likely is) pursuing Federal claims against the individual officers, the police department and the City of New York for violations of the couple’s constitutional rights, police brutality, malicious prosecution, false arrest, and intentional infliction of emotional distress, all of which may have resulted due to the department’s inadequate training of the officers. The discovery process of the ensuing litigation will reveal whether or not the police officers involved have prior instances of brutality on their records. Sadly, cases like this occur more often than the New York Times reports; as a civil rights lawyer, I’ve realized that all too often the police officers who commit these offensive acts do so repeatedly, and without any sort of punishment. This is why it is important for people who are victims of such abuse of power and brutality to pursue their legal rights by consulting with a civil rights attorney in order to justly compensate them and possibly prevent the officers involved from re-offending.

“Civil Rights Lawyers on the Police Brutality of Suzanne LaFont and Karl Anders Peltomaa” – Criminal charges against an innocent family were dismissed; but the legal battle to hold officers accountable must continue.

S T A T E O F N E W Y O R K
_____________________________________________________________________________________________

8214

2013-2014 Regular Sessions

I N A S S E M B L Y

October 24, 2013
___________

Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, SCHIMEL, McDONOUGH, DUPREY, MONTESANO — Multi-Sponsored by — M. of A. CROUCH, SKARTADOS, WEISENBERG — read once and referred to the Committee on Codes

AN ACT to amend the penal law, in relation to establishing the crime of non-consensual disclosure of sexually explicit images

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1. Section 1. The penal law is amended by adding a new section 250.70 to
2. read as follows:
3. S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
4. A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT
5. IMAGES WHEN HE OR SHE INTENTIONALLY AND KNOWINGLY DISCLOSES A PHOTO-
6. GRAPH, FILM, VIDEOTAPE, RECORDING, OR ANY OTHER REPRODUCTION OF THE
7. IMAGE OF ANOTHER PERSON WHOSE INTIMATE PARTS ARE EXPOSED OR WHO IS
8. ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON’S CONSENT, AND
9. UNDER CIRCUMSTANCES IN WHICH THE PERSON HAS A REASONABLE EXPECTATION OF
10. PRIVACY. A PERSON WHO HAS CONSENTED TO THE CAPTURE OR POSSESSION OF AN
11. IMAGE WITHIN THE CONTEXT OF A PRIVATE OR CONFIDENTIAL RELATIONSHIP
12. RETAINS A REASONABLE EXPECTATION OF PRIVACY WITH REGARD TO DISCLOSURE
13. BEYOND THAT RELATIONSHIP.
14. 1. FOR THE PURPOSES OF THIS SECTION:
15. (A) “DISCLOSE” MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
16. MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
17. ENT, EXHIBIT, ADVERTISE OR OFFER.
18. (B) “INTIMATE PARTS” MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS,
19. OR FEMALE ADULT NIPPLE OF THE PERSON.
20. (C) “SEXUAL CONTACT” MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
21. TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER BETWEEN PERSONS
22. OF THE SAME OR OPPOSITE SEX.
23. 2. THIS SECTION SHALL NOT APPLY TO:
1. (A) LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
2. ING, OR LEGAL PROCEEDINGS; OR
3. (B) SITUATIONS INVOLVING VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
4. SETTINGS.
5. 3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 80.05
6. OF THIS CHAPTER, THE COURT MAY IMPOSE A FINE NOT TO EXCEED THIRTY THOU-
7. SAND DOLLARS.
8. NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES IS A CLASS A
9. MISDEMEANOR.
10. S 2. This act shall take effect on the first of November next succeed-
11. ing the date on which it shall have become a law.

EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11834-06-3
A. 8214 2

The bill is commendable and New York needs some sort of statue to protect victims. We have some questions about this legislation, however. First, it is unclear whether a person convicted of this crime would be forced to register as a sex offender. We think that such a designation could be unduly harsh in a situation in which, for example, a boyfriend discovers that his girlfriend is cheating on him and posts these pictures in a fit of rage. Also, it would be questionable as to whether such a person convicted of a crime would need to be registered and monitored as a sex offender for twenty-five years (the minimum registration duration as a low-level Level 1 offender), since there may not be any scientifically valid basis to believe that such a person is at a higher risk of re-offending or committing some other sex crime.

Of course, there are legitimate concerns about the First Amendment being violated by this proposed criminal statute. Certainly, it is legal for a person to say terrible things about a person on a blog or website, so why should it be illegal to post photos?

We suggest that this legislation would be more sensible if it provided a civil court remedy for victims by creating a tort for the violation of this criminal statute (and thereby violating the victim’s privacy and/or dignity) and by creating a specific statute of limitation for pursuing these lawsuits that starts running when the disclosure of the images is discovered by the victim. (It would be akin to New York’s CPLR 213-c civil statute of limitation that applies to victims of certain sex crimes, or it would be an amendment of that statute). New Jersey’s statute relating to “revenge porn” does provide a civil remedy – New York should offer the same protections to victims. Some victims might not be able to pursue a claim at civil law, as attorneys can be expensive and would be necessary, and some perpetrators are so broke as to be “judgment proof,” but the option should be made available, as we think it could certainly be an effective deterrent for some people seriously considering posting sexually explicit images of their exes.

If you or a loved one have been a victim of “revenge porn” or the non-consensual disclosure of sexually explicit images, you should seriously consider contacting an experienced victim’s lawyer and former sex crimes prosecutor.

Most lawsuits involving “intentional torts” against another individual, such as an assault, have a one-year statute of limitation, meaning that any such count in a civil lawsuit will be dismissed outright if it was not filed within one year of the date of the assault itself. However, there are three specific types of sexual assaults for which the statute of limitation is set at five years pursuant to New York CPLR § 213-c. That statute states:

§ 213-c. Action by victim of conduct constituting certain sexual offenses. Notwithstanding any other limitation set forth in this article, a civil claim or cause of action to recover from a defendant as hereinafter defined, for physical, psychological or other injury or condition suffered by a person as a result of acts by such defendant of rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be brought within five years. As used in this section, the term “defendant” shall mean only a person who commits the acts described in this section or who, in a criminal proceeding, could be charged with criminal liability for the commission of such acts pursuant to section 20.00 of the penal law and shall not apply to any related civil claim or cause of action arising from such acts. Nothing in this section shall be construed to require that a criminal charge be brought or a criminal conviction be obtained as a condition of bringing a civil cause of action or receiving a civil judgment pursuant to this section or be construed to require that any of the rules governing a criminal proceeding be applicable to any such civil action.

Thus, the statutes that relates to the deadline for filing rape or sexual assault lawsuits refers to the criminal codes – the New York Penal Law – to define the types of acts for which the five year special deadline applies. First, CPLR § 213-c refers to Rape in the First Degree as defined in Penal Law Section 130.35. Penal Law 130.35 makes it a crime for a person to engage in sexual intercourse with another person: 1) by forcible compulsion; or 2) who is incapable of consent by reason of being physically helpless; or 3) who is less than eleven years old; or 4) who is less than thirteen years old and the actor is eighteen years old or more. Please note that the term “sexual intercourse” as it is currently defined includes only vaginal intercourse; subsection 1 thus requires that it be proven that the penis penetrated the vagina. Also, Physical helplessness is defined in Penal Law Section 130.00(7) as the state of being “unconscious” or “physically unable to communicate unwillingness to [] act.”

Penal Law Section 130.50 instructs that a person is guilty of Criminal Sexual Act in the First Degree when he or she “engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion; or 2) who is incapable of consent by reason of being physically helpless; or 3) who is less than eleven years old; or 4) who is less than thirteen years old and the actor is eighteen years old or more.”

Penal Law Section 130.00(2) defines “oral sexual conduct” as “conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina,” and “anal sexual conduct” as “conduct between persons consisting of contact between the penis and anus.”

(Author’s Note: Recently, there have been lobbying efforts in the New York State Assembly to change the definition of “rape” in the Penal Law to include forcible oral sexual conduct and forcible anal sexual conduct; such conduct is currently called a “Criminal Sexual Act” instead of rape, and many victims do not feel that that term adequately conveys the seriousness of the violation. We would not be surprised if this sort of legislation eventually passes, and generally think that it is a good idea, though we would point out that all of these acts are presently equally serious per the Penal Law – they are all Class B violent felonies.)

Penal Law Section 130.70 makes it a Class B felony to “insert[] a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person (a) by forcible compulsion; or (b) when the other person is incapable of consent by reason of being physically helpless; or (c) when the other person is less than eleven years old.” This crime is called Aggravated Sexual Abuse in the First Degree, and there is an obvious exception for conduct performed for a valid medical purpose. Penal Law § 130.70(2).

Lastly, Penal Law Section 130.75 states that a person is guilty of Course of Sexual Conduct Against a Child in the First Degree when, over a period of time not less than three months in duration, (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than eleven years old; or (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

In sum, if a victim can allege that he or she was the victim of one of the crimes described above, then he can sue his attacker within five years of the date of the crime. Notably, it remains unclear whether one would have a five-year statute of limitation to sue if one had been a victim of an “attempt” at one of these crimes, as defined by Penal Law Section 110.00.

However, those deadlines can be extended even further in some cases. For example, CPLR Section 215(8) provides that (a) “[w]henever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining, and (b) [w]henever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, and such criminal action is for rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree asdefined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law [the same charges listed in CPLR 213-c]m the plaintiff shall have at least five years from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.”

Thus, the commencement of a criminal action against the perpetrator can extend the deadline for filing a civil lawsuit, even if the criminal action is eventually dismissed or the defendant is acquitted. Tactically, we think it is better for a victim to wait to file his or her lawsuit after any criminal procedure is completed, for a variety of reasons that we explored in a previous post. The bottom line, though, is that if the criminal statute of limitation has not expired for an unreported criminal sexual act, then a victim could conceivably file a civil lawsuit for a very old sexual assault so long as they are able to persuade police or prosecutors to initiate a criminal prosecution against his or her attacker.

In the event that a defendant is arrested and ultimately convicted of a sexual assault, the deadline for the victim to file a subsequent lawsuit is extended even further. Specifically, CPLR Section 214-b states in part: “an action by a crime victim… may be commenced to recover damages from a defendant (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime…within ten years of the date the defendant was convicted of such specified crime.” Notably, there is a limitation upon the scope of the damages for which a plaintiff can recover under this approach – for example, psychological or physical damages suffered in the eighth year after the date of the crime would not be compensable in the action.

Finally, if the victim that intends to bring the lawsuit for one of above-described sexual assaults described in CPLR 213-c was a juvenile (under the age of 18) at the time that he or she was assaulted, then the five-year statute of limitations period does not start running until the victim turns 18 (put another way, a juvenile victim of certain types of sexual assault can bring the lawsuit anytime before his or her 23rd birthday). See e.g. Cordero v. Epstein, 869 N.Y.S.2d 725 (Sup. Ct. N. Y. County 2008).

If you or a loved one are in need of a lawyer to assist you with a civil lawsuit involving allegations of rape or sexual assault, you should strongly consider contacting the experienced former prosecutors at the Law Office of Matthew Galluzzo for a free consultation. In particular, one of their attorneys, Matthew Galluzzo, was a prosecutor in the famed Sex Crimes Unit of the New York County (Manhattan) District Attorney’s Office and now regularly represents people involved in criminal and civil cases involving allegations of rape and sexual assault.

That statute makes it an infraction punishable by up to 10 days in jail and/or a fine or civil penalty for obstructing or interfering with the flow of traffic in the subway system. (See Section 1050.10). The statute specifically states that artistic performances, including the acceptance of donations, is generally speaking permissible, so long as the performance does not cause any disturbance in the flow of traffic. The precise language is below:

http://www.mta.info/nyct/rules/rules.htm

Section 1050.6

Use of the transit system.

1. No person may perform any act which interferes with or may tend to interfere with the provision of transit service, obstructs or may tend to obstruct the flow of traffic on facilities or conveyances, or interferes with or may tend to interfere with the safe and efficient operation of the facilities or conveyances of the Authority.
   1. No person, unless duly authorized by the Authority, shall engage in any commercial activity upon any facility or conveyance. Commercial activities include (1) the advertising, display, sale, lease, offer for sale or lease, or distribution of food, goods, services or entertainment (including the free distribution of promotional goods or materials); and (2) the solicitation of money or payment for food, goods, services or entertainment. No person shall panhandle or beg upon any facility or conveyance.
   2. Except as expressly permitted in this subdivision, no person shall engage in any non-transit uses upon any facility or conveyance. Non-transit uses are noncommercial activities that are not directly related to the use of a facility or conveyance for transportation. The following non-transit uses are permitted by the Authority, provided they do not impede transit activities and they are conducted in accordance with these rules: public speaking; campaigning; leaf-letting or distribution of written noncommercial materials; activities intended to encourage and facilitate voter registration; artistic performances, including the acceptance of donations; solicitation for religious or political causes; solicitation for charities that: (1) have been licensed for any public solicitation within the preceding 12 months by the Commissioner of Social Services of the City of New York under section 21-111 of the Administrative Code of the City of New York or any successor provision; (2) are duly registered as charitable organizations with the Attorney General of New York under section 172 of the New York Executive Law or any successor provision; or, (3) are exempt from Federal income tax under section 501(c)(3) of the United States Internal Revenue Code or any successor provision. Solicitors for such charities shall provide, upon request, evidence that such charity meets one of the preceding qualifications.

The statute is obviously somewhat vague – what does it really mean to obstruct the flow of traffic? – and unfortunately, as is often the case with vague criminal statutes, it invites abuse by police officers. In particular, we have been made aware of police officers arresting musicians on subway platforms that are doing nothing more than standing in one place and playing musical instruments. This conduct can hardly be said to be an unreasonable obstruction of the flow of traffic, and seems to be specifically permitted by the statute itself. After all, if someone is permitted to perform music in the subway system, how can he possibly by any less obtrusive than that? Certainly, a criminal defense attorney may also be able to prove that the accusatory instrument was insufficient as a matter of law with respect to this element or as to the “authorization” element. See e.g. People v. Flowers, 8 Misc.3d 516 (Crim. Ct. New York County, 2005).

If you or a loved one have been arrested and wrongfully detained for allegedly violating Section 1050.6 whilst performing in the subway system, you may be able to successfully pursue a civil lawsuit for damages against the NYPD, and you should contact an experienced criminal defense and civil rights lawyer to discuss your case immediately.

Hopefully, this decision leads to further curtailing of unconstitutional stop-and-frisk policies enacted by the NYPD, either through voluntary changes by the NYPD or further court decisions on the constitutionality of similar policies.

Interestingly, this decision may make it easier for people to succeed and win solid settlements in lawsuits against the City stemming from false trespass arrests. The Bronx District Attorney’s Office, for example, recently changed its policy on the prosecution of these matters, and as a result, a large number of people falsely arrested recently for “trespassing” have had their cases “DP’d”, or dismissed as a result of the District Attorney’s Office decision to “decline prosecution”. What many of these individuals that were released by the prosecutor might not realize is that they can win significant settlements for these false arrests, depending upon the length of time that they were unconstitutionally held against their will by the police.

If you or a loved one have been falsely arrested for allegedly trespassing, you should strongly consider pursuing a lawsuit with the assistance of an experienced civil rights attorney. Contact one today for a free initial consultation to see whether you might be entitled to a cash settlement from the City.

As a preliminary matter, it is virtually certain that dozens, if not hundreds, of passengers will be considering lawsuits against Seastreak for negligence. Their attorneys will have to determine why the boat crashed (and may have the assistance of the Coast Guard or law enforcement in determining this question) and whether either the operation or maintenance of that boat somehow fell below acceptable minimum standards. If so, then the passengers injured by the crash can expect significant monetary awards.

Law enforcement may have to determine whether any criminal liability should attach as well. First and foremost, if any of the passengers ultimately die as a result of injuries sustained in the crash, then employees of the company could theoretically be looking at charges of Criminally Negligent Homicide, a Class E felony under Penal Law Section 125.10, or even worse, Manslaughter in the Second Degree, Penal Law Section 125.15(1) a Class C felony.

A person is guilty of Criminally Negligent Homicide when, with criminal negligence, he causes the death of another person. “A person acts with criminal negligence with respect to a result or to a circumstances described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” See Penal Law Section 15.05[4].

A person is guilty of Manslaughter in the Second Degree when he recklessly causes the death of another person. “A person acts recklessly with respect to a result or to a circumstances described by a statute defining an offense when he is aware of an consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntarily intoxication also acts recklessly with respect thereto.” See Penal Law Section 15.05[3]. The driver of the boat might theoretically be charged with Assault in the Third Degree (Penal Law Section 120.00[3], a Class A misdemeanor) for negligently causing physical injuries to another person or persons by means of a dangerous instrument.

If the operators of the ferry were determined to have acted recklessly, then charges for Reckless Endangerment and Reckless Assault might also apply for any injuries caused to victims that were hurt but not killed. A person is guilty of Assault in the Third Degree (Penal Law 120.00[2], a Class A misdemeanor) if he “recklessly causes physical injury to another person,” and can be charged with the Class D felony of Assault in the Second Degree (Penal Law 120.05[4]) where he “recklessly causes serious physical injury to another person by means of a … dangerous instrument,” such as a ferry, arguably.

Obviously, if the operators of the vessel were intoxicated at the time of the crash (though there is no such evidence available at this point), then a whole host of other criminal charges could apply as well, particularly under the Vehicular Homicide statutes in Chapter 125.

If you or a loved one were injured in the recent ferry crash, you should strongly consider contacting an experienced attorney to determine whether you may have a viable injury lawsuit against the ferry operators.

For example, Ramarley Graham was recently shot and killed because the police officer supposedly believed that Graham had a weapon, though he did not. In the case of Ramarley Graham, the police officer was indicted for first- and second-degree manslaughter (Penal Law Sections 125.15 and 125.20) for recklessly causing the death of a young man in his apartment. Penal Law Chapter 15 explains recklessness thusly: “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” Generally speaking, recklessness is more difficult to prove than negligence, and thus the charge of manslaughter is more serious than the charge of criminally negligent homicide (Manslaughter in the First Degree is a Class B violent felony, and Criminally Negligent Homicide is a Class E felony). Penal Law Chapter 15 further defines negligence: “A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

So, in short, the difference between recklessness and negligence in this context is whether the police officer that fired his weapon consciously disregarded the risk that he was making a mistake and fired anyway, or whether he simply did not realize that there was a risk that he was making a mistake.

In cases in which the shooting victim is not killed, such as in the case of James Austin (who was recently shot as an innocent bystander by some police in Brooklyn) then charges of Assault in the First or Second Degree can also be possible. In particular, Assault in the Second Degree, Penal Law Section 120.05(4) is typically applicable: A person is guilty of Assault in the Second Degree when “he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” Notably, there is no criminal charge for “negligent assault,” though a police officer can still be sued in civil court for negligence in the absence of an applicable criminal charge.

If you or a loved one have been wrongfully shot by a police officer, you should strongly consider contacting an experienced criminal defense and civil rights attorney that has successfully defended complex criminal cases involving police shootings and pursued civil matters in federal court on behalf of the victims of police shootings.

In 2000, the U.S. Congress passed the Trafficking Victims Protection Act, and later passed the Trafficking Victims Reauthorization Act of 2003, which provided for a civil remedy in Federal court for victims against their traffickers. In a nutshell, victims of sex trafficking (for example, underage prostitutes) have the right to sue their pimps/traffickers for damages, lost wages, and punitive damages (which can be significant). Many other types of civil actions – including civil RICO claims – might lie for this conduct as well. These sorts of remedies are rarely pursued in these sad situations, however, as the pimps/traffickers typically do not have enough money to make a lawsuit worthwhile for the plaintiffs, and almost certainly never have enough money to truly make their victims whole, from a tort standpoint. However, this case presents a unique twist on this tragic story: potentially, the victims of trafficking may be able to sue the police officers that provided protection (and thereby assisted in the trafficking) and by proxy the City of New York (with its very deep pockets) for its failure to monitor its officers and prevent their misconduct. Indeed, this may be the case in which victims of sex trafficking could actually recover judgments worth millions of dollars.

Matthew Galluzzo, the author of this article, is a criminal defense and civil rights lawyer at the Law Office of Matthew Galluzzo. He served for years as a rape prosecutor in the famous Sex Crimes Unit of the Manhattan District Attorney’s Office and continues to volunteer his time to assist in the effort to eradicate sexual violence. If you or a loved one have been a victim of a sexual assault or sex trafficking, or been falsely accused of having committed such a crime, you should strongly consider calling him or emailing him to schedule a consultation.