Key Offenses Classified as Domestic Violence

In New York, acts of domestic violence are prosecuted under specific Penal Law sections, depending on the nature of the offense. Common charges include:

  *   Assault: Causing physical injury to another person.
  *   Menacing: Intentionally placing or attempting to place another person in fear of death or serious physical injury.
  *   Stalking: Engaging in a course of conduct that causes substantial emotional distress or fear.
  *   Harassment: Engaging in a course of conduct or repeatedly committing acts that alarm or seriously annoy another person.
  *   Strangulation: Intentionally impeding the normal breathing or blood circulation of another person by applying pressure to the throat or neck.
  *   Criminal Obstruction of Breathing or Blood Circulation: Similar to strangulation but may involve less force or result in less severe injury.
  *   Criminal Mischief: Damaging or destroying property belonging to another person.
  *   Sexual Offenses: Including sexual abuse, forcible touching, or rape.
  *   Coercion: Compelling or inducing another person to engage in conduct by instilling fear.

These offenses are categorized based on their severity, with corresponding penalties.

Penalties for Domestic Violence Offenses

The penalties for domestic violence offenses in New York City vary depending on the classification of the crime:

  *   Class A Misdemeanors (e.g., Third-Degree Assault, Harassment in the Second Degree):
     *   Up to 1 year in jail.
     *   Fines up to $1,000.
     *   Probation and mandatory counseling or anger management programs.
 
  *   Class E Felonies (e.g., Second-Degree Strangulation):
     *   Up to 4 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.
 
  *   Class D Felonies (e.g., Second-Degree Assault):
     *   Up to 7 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.
 
  *   Class C Felonies (e.g., First-Degree Strangulation):
     *   Up to 15 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.
 
  *   Class B Felonies (e.g., Aggravated Sexual Abuse, Rape in the First Degree, Assault in the First Degree):
     *   Up to 25 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.

In addition to these penalties, individuals convicted of domestic violence offenses may face:

  *   Protective Orders: Courts may issue orders of protection to prevent further contact between the offender and the victim. This can also result in defendants being prohibited from returning to their own homes or communicating with family members (such as children) while the charges are pending.
  *   Firearm Restrictions: Convicted individuals may be prohibited from possessing firearms.
  *   Employment Consequences: A criminal conviction can impact current employment and future job prospects.
  *   Immigration Consequences: Non-citizens may face deportation or difficulty obtaining citizenship.

Recent Legislative Developments

New York State has enacted several laws to address domestic violence more effectively:

  *   Melanie’s Law: Signed into law in November 2024, this legislation allows courts to issue orders of protection for all family members of domestic violence victims, regardless of their age. This law was prompted by the tragic murder of Melanie Chianese by her mother’s abusive ex-boyfriend in 2022. Previously, protective orders could only be issued for children under 18. Melanie’s Law aims to close this legal loophole and expand protections for domestic violence victims to all their family members.
  *   Domestic Violence Survivors Justice Act: This act allows for reduced sentences for individuals convicted of serious crimes, such as murder, if they can demonstrate that they were victims of significant domestic abuse. The law aims to provide justice for those who commit crimes in response to prolonged abuse.

Conclusion

Domestic violence offenses in New York City are treated with utmost seriousness, and the legal system provides various avenues for both prosecution and defense. The penalties for such offenses can be severe, impacting an individual’s freedom, reputation, and future opportunities. Oftentimes complaints are made to the police in the heat of the moment, but arrests may be made and cases pursued even where complainants wish to retract their complaints.

If you or someone you know is facing domestic violence charges, it is crucial to seek experienced legal counsel to navigate the complexities of the legal system and to ensure that rights are protected throughout the process. Matthew Galluzzo is a former Manhattan supervising prosecutor within the domestic violence unit. He is an experienced criminal defense attorney who has successfully defended dozens of people accused of domestic violence offenses of all sorts. If you or a loved one have been arrested for domestic violence, you should strongly consider engaging him to be your lawyer.

Reasons for Overturning the Conviction

The appellate court’s 4–3 decision centered on the trial judge’s allowance of testimony from women whose allegations were not part of the formal charges against Weinstein. The court determined that this testimony served no material non-propensity purpose and prejudiced the jury, effectively putting Weinstein on trial for his character rather than specific alleged criminal acts. 

This ruling emphasized the importance of adhering to evidentiary rules that protect a defendant’s right to a fair trial, particularly concerning the admissibility of prior bad acts.

The Retrial

Following the overturning of his conviction, Weinstein’s retrial began on April 23, 2025, in Manhattan. The retrial includes charges related to the alleged assaults of Miriam Haley in 2006 and Jessica Mann in 2013, as well as a new charge involving an unidentified woman from 2006.  Prosecutors argue that Weinstein exploited his significant influence in the entertainment industry to manipulate and assault women. 

Weinstein has pleaded not guilty to all charges. The retrial is expected to last up to six weeks and is being closely watched as a significant case within the broader context of the #MeToo movement. 

Despite the overturned New York conviction, Weinstein continues to serve a 16-year sentence from a 2022 rape conviction in California. 

Despite the negative media perception of Mr. Weinstein, he could actually win this retrial. The witnesses will have to testify again and be cross-examined by skilled attorneys who have access to the transcripts from the prior trial. Inconsistencies in their testimony will be pounced upon by the defense. The defense intends to paint these complaining witnesses as opportunists who only claimed to be victims after their Hollywood dreams fizzled. They will be mercilessly asked about their pursuit of relationships with Mr. Weinstein after the alleged rapes, as evidence that they simply wanted something in exchange from him that they never received. Without the Molineux witnesses that prejudiced the jury at the last trial, there is at least a chance that the jury will have some reasonable doubt this time.

Matthew Galluzzo is a former Manhattan sex crimes prosecutor and experienced criminal defense attorney. He has earned acquittals at trial in sex crimes cases in state and federal courts across New York, and he has frequently commented on the Weinstein case in television and print media. 

Matthew Galluzzo is a former sex crimes prosecutor who now represents both plaintiffs and defendants in civil sex abuse cases. He also regularly defends individuals accused of white collar crimes and fraud in federal court.

The link to the interview is available here.

The case presents several interesting questions. First, the investigation was uncommonly lengthy. Law enforcement spokespeople explained that “The crime was immediately reported, and the Guernsey County Sheriff’s Office conducted a detailed investigation.” That detailed investigation evidently took over three years to complete, for some reason. This is not the typical length of a rape investigation; indeed, it is an extraordinarily long time to investigate a rape accusation. A few things might have been going on during that three year time period.

First, there might have been DNA to analyze. Not every rape investigation involves DNA evidence, and DNA does not necessarily prove that a rape occurred at all, anyway (as DNA evidence could also indicate a consensual sexual encounter). Generally speaking, though, DNA analyses do not normally take more than a few months to process – it depends entirely on the state laboratory’s backlog.

Law enforcement might have made several attempts to record Mr. Sills making an admission. Oftentimes, after a complainant reports a sexual assault, the complainant wears a police-issued wire and confronts the suspect in person and tries to get him to confess to his crime. On other occasions, they call the suspect on the phone while sitting with police officers who are listening and recording the conversation. These “controlled calls” are done in the hopes of eliciting an incriminating apology, generally. These types of investigative techniques are not violative of suspects’ constitutional rights because the suspects are not in custody. It is unknown whether this happened in Mr. Sills’ case, but it is a common police tactic in these types of investigations.

Law enforcement probably invited Mr. Sills to speak with them with the assistance of his attorney. This is not uncommon for police or prosecutors to do during the course of a sex crimes investigation. In New York City, for example, detectives from the Special Victims Unit have been known to visit the apartments of suspects or call them to say that there has been a complaint and that they would like to “hear their side of the story”. Only idiots would agree to such an interview without consulting with an attorney, of course. Prosecutors in the city have also been known to call suspects and politely suggest that they retain attorneys to speak to them about complaints.

It is unclear from the articles about Mr. Sills’ case whether he “proffered,” or spoke with law enforcement, about the allegations. Certainly, though, that process could have added significant time to the investigation.

In any case, the matter ultimately made its way to a grand jury about three years after the fact. A grand jury is a group of 23 people selected from the community at random (much like trial juries) who sit in a private chamber and hear testimony from witnesses under oath about various criminal cases. Prosecutors present the evidence and respond to questions from the grand jurors. There are no judges inside the chamber, and there are no defendants or defense attorneys. Defendants do typically have the right to testify in their own defense, should they so choose, but they are not otherwise permitted to observe or participate in the proceeding. If a majority of the grand jury believes that there is reasonable cause to believe that a crime has occurred – a much lesser standard of proof than proof beyond a reasonable doubt – then a person becomes indicted, or formally charged with a crime (typically a felony). So, in Mr. Sills’ case, we can safely assume that the complainant testified in the grand jury and was sufficiently convincing to persuade the grand jury to formally charge and arrest Mr. Sills.

The author of this article, Matthew Galluzzo, is a criminal defense attorney and former sex crimes prosecutor in the Manhattan D.A.’s Office.

If you or a loved one have been arrested and charged with misdemeanor assault or forcible touching in New York City, you should strongly consider contacting the experienced team at the Law Office of Matthew Galluzzo PLLC. Their lead counsel is a former Manhattan prosecutor with considerable experience representing foreign citizens, with a strong track record of success.

The question on everyone’s mind has been whether Ms. Maxwell will finally disclose the names of the other purportedly rich and powerful celebrities who engaged in illicit conduct with minors and Jeffrey Epstein. Ms. Maxwell has steadfastly refused to do that, even after Epstein’s death (to the surprise of some). Ms. Maxwell initially denied being knowingly involved in any criminal conduct, and her statement at sentencing was hardly an apology, either.

Ms. Maxwell may also have a legitimate ground for an appeal to the Second Circuit Court of Appeals. After the verdict, a juror disclosed that they had not told the Court during jury selection about having been a victim of a sexual assault. Judge Nathan (the trial judge) denied a motion for a new trial on that basis, and Maxwell will almost certainly pursue that argument on appeal.

The question now is whether Ms. Maxwell will consider disclosing the names of the Epstein “clients” pursuant to Federal Rule 35. That rule makes it possible for a convicted defendant to have their sentence reduced for providing “substantial assistance” to law enforcement following the imposition of sentence:

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

As you can see, Ms. Maxwell will need to disclose this information within a year, or it will be too late for her to benefit. She theoretically might try to appeal her sentence before making that decision to cooperate, but her appeal might take longer than a year to resolve. Clearly, though, were she to divulge important information about “the clients” to federal prosecutors, she might be able to reduce her sentence such that she does not risk dying in prison.

Matthew Galluzzo is a New York City federal criminal defense attorney and former sex crimes prosecutor in Manhattan.

After a federal conviction – by guilty plea or by jury verdict – the defendant is interviewed by a specialized officer from the U.S. Department of Probation. These officers typically have backgrounds in social work, and it is their responsibility to prepare a biography – or presentence report – for the court. The judge uses this presentence report at sentencing to understand the defendant’s life, background, and circumstances. (The Bureau of Prisons also uses this report in determining the defendant’s prison designation.) The preparation of a report can easily take two months or more, as the interview has to be scheduled, a draft report prepared, edits and objections made by both the defense and the prosecution, and a final draft with a sentencing recommendation submitted to the sentencing court.

Following the preparation of the presentence report, both the prosecution and defense prepare sentencing memoranda for the judge. Both sides make arguments about the proper application of the U.S. Sentencing Guidelines and the sentencing factors pursuant to 18 U.S.C. § 3553(a). Defense lawyers usually submit character letters from friends and family of the defendant, and sometimes the defendant also submits his/her own letter of remorse. Eventually, the sentencing court then holds a sentencing hearing at which both sides make oral arguments about the sentence and the court pronounces its decision. That sentencing hearing could be anywhere from 4 to 6 months after the conviction, though it could take even longer.

Every federal offense has a maximum and a minimum possible prison penalty, but it is the Sentencing Guidelines that help courts and defendants understand what Congress considers reasonable with more precision. The U.S. Sentencing Commission promulgates Sentencing Guidelines for each offense that includes factors for the courts to consider for each type of offense. For example, the Guidelines instruct the courts to consider a defendant’s role in the offense, how much money was stolen, how many drugs were trafficked, whether firearms were used or not in the offense, and whether any minors were injured.

It is thus extremely difficult to estimate Ms. Maxwell’s sentencing range under the U.S. Sentencing Guidelines without knowing all the details of the case and her background, but she is clearly facing a significant sentence. When a person is convicted of sex trafficking or enticement of multiple individuals, the Guidelines instruct that a person should receive consecutive sentences for each victim. Here, there are three victims in the case with corresponding convictions, so the penalties for each offense will “stack,” rather than be imposed concurrently. See U.S.S.G. 2G1.1(d)(1). Assuming Ms. Maxwell has no prior criminal record, she is probably looking at Guidelines ranges of around 97-121 months per victim, imposed consecutively. U.S.S.G. 2A3.1(a)(2). The court and parties will refer to the Sentencing Table to calculate the Guidelines range for each offense. See Table. There could be other aggravating factors or reasons for departures from these Guidelines calculations, however, so this is hardly a definitive calculation. Regardless, a very rough and preliminary estimate has her realistically facing thirty years under the Guidelines, or more. Ms. Maxwell is sixty years old.

Following the sentencing, Ms. Maxwell will be able to pursue a direct appeal to the federal appeals court (in this case, the Second Circuit Court of Appeals). She can make legal arguments about alleged mistakes by the trial court in its rulings and/or arguments that the sentence was excessive. Prior to sentencing, Ms. Maxwell’s lawyers could also pursue various appellate arguments with the trial judge, Judge Nathan, though those probably have zero chance of success and would probably only serve to delay the sentencing. At first glance, there does not appear to be many arguments displaying any probability of success.

A defendant of course does not have to testify at trial, as they are entitled to a presumption of innocence and the burden of proof is on the prosecution. Moreover, a defendant’s decision not to testify cannot be held against them, either. That being said… sometimes defendants simply cannot expect to win without testifying. Elizabeth Holmes, for example, elected to testify that she is not criminally responsible for the alleged fraud at Theranos because she was controlled and abused by her boyfriend, who also managed that doomed corporation. Though she may ultimately be convicted, Ms. Holmes almost certainly made the jury’s decision more difficult by testifying. It was somewhat surprising to see Ms. Maxwell decline to testify here, because she frankly had no chance of winning with the strategy she employed. Nobody wins by sitting silent while four complainants point the finger at you with similar stories of abuse. It’s just basically impossible in this #MeToo era. That’s how Cosby and Weinstein lost at trial, and how Cuba Gooding Jr. and Andrew Cuomo will likely be convicted someday, too.

Despite the defiant post-verdict language from her lawyers, Ms. Maxwell likely knew that she was going to lose at trial. Perhaps she chose not to testify because she hopes to one day sell her story to newspapers. After all, you cannot sell what you give away for free on the witness stand. It’s also likely that she did not testify so that she could be cooperating witness someday. This is where the matter becomes truly interesting going forward.

Though most government cooperators choose to “snitch” before trial, it is possible to become a government cooperator after a guilty plea or conviction at trial. Virtually every government cooperator agrees to cooperate in exchange for a lesser criminal penalty, or for a shorter prison sentence. To be a cooperator, though, a witness cannot normally have testified under oath that they had nothing to do with the criminal conspiracy at issue. After all, a government cooperator is typically expected to testify under oath against his or her co-conspirators, and the government cannot elicit testimony from a witness that contradicts prior sworn testimony. Interestingly, Ms. Maxwell is actually indicted – and remains to be tried – for making allegedly false statements about this matter under oath in a parallel civil proceeding. Those statements were relatively short and brief, however, so the government may be willing to overlook some minor prior perjury on her part, in exchange for truly juicy information. If Ms. Maxwell had testified under oath, though, she would have spent the better part of three days denyingher involvement on the stand under withering cross-examination. After that, she would have been useless to the government as a witness against other unnamed co-conspirators because she could not possibly testify against her co-conspirators at a future prosecution of them. She would have destroyed her credibility as a government witness by that point.

So, it is quite possible that Ms. Maxwell and her lawyers deliberately withheld her testimony at trial so that she could still possibly cooperate with the government after a trial conviction. There have been more than a few rumors that President Trump, President Clinton, and Prince Andrew may have been involved in Jeffrey Epstein’s illegal abuse of minors. Given Mr. Epstein’s suspicious suicide at MCC New York, many people have been clamoring to know whether powerful people have been trying to hide the truth about Mr. Epstein’s systematic abuse of minors. Surely, the government would like to know whether Ms. Maxwell can confirm those rumors or provide any documentary proof as to their involvement. Perhaps Ms. Maxwell did not want to be perceived as a snitch or rat by participating with the government voluntarily pre-conviction. But now that she has been convicted at trial, she may acknowledge the futility of her continued resistance and offer the government her assistance in pursuing other prominent people. Maybe she is determined to be loyal to the memory of her dead friend, Jeffrey Epstein, but it would be a bit surprising if she would be willing to die in prison for him at this point.

The author of this article, Matthew Galluzzo, is a New York City criminal defense attorney specializing in federal criminal law. He is also a former Manhattan sex crimes prosecutor. His thoughts and opinions have been published many times in the New York Times and the Wall Street Journal, among other publications. He is also a regular television commentator for Radio Canada.

Specifically, Cuomo will be charged with one count of Forcible Touching, in violation of Penal Law Section 130.52.* That code makes it a class A misdemeanor to intentionally, and for no legitimate purpose:

1. forcibly touch the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire; or

2. subject another person to sexual contact for the purpose of gratifying the actor’s sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

The crime carries up to one year in jail as a maximum punishment, though jail is not mandatory. A person convicted of this crime can also be sentenced to community service, a conditional discharge, or probation, among other things. The first conviction for this crime does not trigger sex offender registration, but the second does. That fact may prove important for Cuomo as there are other complainants and possible criminal charges potentially awaiting him in the future. Should he be convicted of this charge, and then convicted of another similar charge in the future, then he would become a registered sex offender.

It is difficult to predict whether Cuomo would prevail in this case at trial. Obviously, he is a well known political figure and he has been the subject of tremendous publicity concerning these allegations, so it will be difficult to find an unbiased jury in New York. Also, the other interesting variable for trial will be whether other complainants who have made accusations against Mr. Cuomo will be allowed to testify in this matter regarding the groping at the governor’s mansion. This issue of Molineux witnesses, as they are sometimes called, in sexual misconduct cases, is a subject of tremendous disagreement amongst lawyers and judges. Prosecutors recognize that these witnesses can be extremely powerful (see, e.g. the cases of Harvey Weinstein and Bill Cosby, in which the key to conviction was the fact that multiple witnesses testified about similar conduct by the defendants). Defense attorneys see this sort of “gang tackling” with multiple cases and complaints being presented at once as being violative of due process and constitutional protections. Regardless of where you fall on that issue, there is no doubt that Cuomo’s chances will almost certainly hinge on whether he is permitted to simply defend against one complainant, or whether the jury will hear from several of his alleged victims at once.

Matthew Galluzzo is a former prosecutor from the Manhattan Sex Crimes Unit. As a defense attorney, he has won stunning victories in groping cases in both state and federal court.

*Cuomo will likely also be charged with Sexual Abuse in the Third Degree and other related misdemeanors.

The biggest changes in the policy involve 1) granting accused students the right to cross-examine and confront their accusers (though not personally), 2) establishing that the standard of proof for a finding of guilt may be either “clear and convincing” or a “preponderance of the evidence,” (matching civil law standards, generally) , and 3) and redefining the meaning of “sexual harassment” to align with the U.S. Supreme Court’s definition: “sexual harassment” is unwelcome conduct that is “so severe, pervasive and objectively offensive that it denies a person equal educational access.” (Under the Obama administration, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”)

These changes will have a huge impact on Title IX sexual harassment/assault proceedings on college campuses. Previously, in connection with complaints of sexual assault to school administrators, student/complainants would give their version of events (one way or another) during an investigation and/or hearing, and the accused would have the ability to give his/her version of events. However, there would be no confronting of the witnesses by the adverse parties. Moreover, the standard of proof was so low, the administrators so risk-averse and generally sympathetic to victims, and the elements of an actionable offense were so broad that successfully defending against these accusations was exceptionally difficult. As a practical matter, accused students generally lost and were disciplined or expelled. However, many students complained that the trials were akin to the Salem witch trials, with no due process and no real chance to win. Indeed, lawsuits were filed by accused students in federal courts across the country, and so many of them persuaded courts that they had been denied due process during Title IX investigations that these changes by the current administration may have been an inevitable response to the litigation.

Victims’ advocates are complaining that these new measures will prevent complainants from coming forward, thus increasing the frequency of sexual assault on campus. There may be some truth to this concern, admittedly. Of course, our criminal justice system would also find it much “easier” to prosecute and convict criminals if there were no juries, constitutional rights, or defense attorneys. These victims’ advocates perhaps fail to acknowledge that our criminal justice system provides those protections, thankfully, to prevent rampant abuse of the system by untruthful complainants and to ensure that innocent people are not punished for things they did not do. Within the context of Title IX, it only seems fair that students accused of “crimes” should not lose their valuable educational “rights” without some similar due process. Some victims’ advocates promote the mantra “Believe Victims,” but to pretend or believe that every complainant is honest and truthful would require one to have no actual experience in the field. Thankfully, our lead attorney is a former Manhattan sex crimes prosecutor and longtime criminal defense attorney with significant experience in these matters.

We have represented university students who have been the victims of flat-out false complaints. These complaints were made for a variety of terrible reasons, and live cross-examination will make it easier for falsely-accused students to demonstrate these issues to the administrators. The introduction of cross-examination also makes the advice or assistance of a seasoned criminal defense attorney – whose stock and trade is cross-examination – even more important than before in this process. Keep in mind that the new rules will permit cross-examination (with serious restrictions to prevent the questions from becoming abusive), but the accused themselves will not be permitted to perform the cross-examinations so as to prevent that uncomfortable confrontation/conversation between accused and accuser. As such, an attorney will almost have to be employed to perform the cross-examination on behalf of the accused student. Accused students should not be relying upon pre-law student friends or random uncles to cross-examine their accusers with so much at stake.

Other complaints are just frivolous, and the more strict definitions of “sexual harassment” should restore some sanity. Our office once represented a promising male college student at a prestigious NYC-area university who went on a date with another student. They had an enjoyable date and drank some alcohol and then back to her dorm room. There, they had an admittedly consensual “make out” session on her bed. However, the woman later reported him for sexual assault because although their kissing was consensual, he had touched her breast without asking first. As a result of this complaint, this exceptional student who had worked hard to get into this school (and whose parents had paid a fortune to send him there), faced possible expulsion, discipline and/or negative notations on his transcript that jeopardized his ability to get into graduate schools. Although his actions might have technically been in violation of school policy, the student benefited from the assistance of a credible attorney who was not afraid to face and talk sense to social justice warriors working for the university. Defending a young man with a similar set of facts to his allegation should be easier under the current definition of “sexual harassment”.

If you or a loved one have been accused of a sexual assault or sexual harassment on campus, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC. Mr. Galluzzo is a former Manhattan Sex Crimes Unit prosecutor and a longtime criminal defense attorney with numerous trial victories in difficult and high profile rape and sexual assault cases. He and his colleagues have also helped many students accused of Title IX violations, and are prepared to help you and your family.

Weinstein has a right to a direct appeal to the appellate court, in this case called the Appellate Division, First Department, based upon issues that were raised “on the record” (i.e. issues which can be pointed to in the trial transcript). The deadlines for filing and responding to an appeal are typically somewhat flexible in actual practice, as both sides routinely ask for and are awarded extensions of time to file their appellate arguments and responses. Given the complexity of this case, a reasonable estimate is that the appellate court will arrive at a decision about a year after sentencing, though it could potentially be sooner if the defense team submits their arguments quickly.

If Weinstein were to win his appeal, then he would earn a new trial on the two charges for which he was convicted. (He can never be convicted of or retried on the predatory sexual assault charges for which he was acquitted at trial.) If Weinstein loses his appeal, he could ask the Court of Appeals (the highest court in the New York State system) to hear his next appeal – this process is called “seeking leave” to appeal. Unlike the Appellate Division, the Court of Appeals is not required to hear his appeal. Typically, the Court of Appeals chooses to only consider cases with novel legal issues or cases of great importance, or cases involving issues about which lower courts in the state have disagreed. Theoretically, if the Court of Appeals denies leave, then Weinstein could seek the remedy called a writ of habeas corpus in state court, and then even pursue that type of appeal in federal court. This process of “exhausting” his appeals could potentially take several years.

The overwhelming majority of criminal appeals are unsuccessful, but Weinstein has some reasonable basis for an appeal here. In short, his chances probably aren’t good, but they’re better than the chances of most defendants. As a preliminary matter, readers should understand that although a single legal error by a trial court might not be sufficient to warrant a reversal of a conviction, if there are enough small errors in the trial, it can result in a conclusion by an appellate court that the trial was unsafe, in sort of a “death by a thousand wounds” situation.

First, there was some controversy regarding a juror who might have given misleading or even false answers about a book that she had written. The defense sought to have her removed from the jury based upon her misleading answers during voir dire, and the court refused to release her. This decision might prove to be problematic for the prosecution on appeal. There have been several cases in the past in which the failures of trial courts to remove biased jurors for cause have resulted in reversal on appeal; here, the juror gave potentially untruthful answers that perhaps should have resulted in her removal for cause. A significant issue involving just a single juror can be enough by itself to warrant reversal in some circumstances.

Also, some women who claimed to have been victimized by Mr. Weinstein – but who were not the basis for any of the criminal charges in the indictment – were permitted to testify as “prior bad act” witnesses, or “Molineux witnesses” under New York law. Generally speaking, prosecutors are not allowed to present evidence that a defendant has done other bad things if those things are not factually related to the crime at issue for the jury, nor are prosecutors allowed to prove that a defendant has a propensity to commit a certain crime. (Indeed, for reasons that are complicated to explain, that is the reason why most defendants with criminal records elect not to testify at trial). There are some very limited exceptions to this prohibition on prior bad act evidence, including for example demonstrating that a defendant has a unique modus operandus, or that the crime was part of an ongoing scheme or plan, or if there is an issue as to the motive or intent of the defendant in committing the instant crime. Objectively, as a former sex crimes prosecutor, I completely fail to see how the prior bad act witnesses that testified in this case were even remotely permissible under New York law. Though the prosecution argued that Weinstein had some sort of overarching plan to rape women who wanted to work in Hollywood, their testimony was plainly presented for the sole purpose of proving that Weinstein was a rapist, and that is precisely the reason for which this sort of testimony is supposed to be precluded. The Appellate Division needs to carefully consider whether rape cases deserve some sort of special treatment when it comes to prior bad act evidence – otherwise, a whole lot of defendants on trial for drug crimes, for example, could potentially be convicted by evidence of their past crimes. Frankly, the evidence against Weinstein without these prior bad act witnesses was not overwhelmingly strong at all. Indeed, the two prior complainants had some serious questions regarding their credibility. These prior bad act witnesses undoubtedly tipped the balance in the prosecution’s favor (as they appear to have done in Bill Cosby’s retrial, when they were permitted after having been precluded in the first trial). If I were an appellate judge on this case, I would have some serious concerns about the use of these witnesses in Weinstein’s trial in light of current New York law. (IMPORTANT NOTE: We are pleased to see that Harvey Weinstein was finally held accountable. However, as criminal justice practitioners who have worked as both prosecutors and defense attorneys, we want to see everyone receive a fair trial. We also don’t want to see dangerous precedents set, no matter how well-intentioned they might have been or how much they satisfied the public’s lust for justice. We thus have some concerns about the way his conviction happened, without feeling any sympathy for Mr. Weinstein.)

Weinstein will also likely make arguments that the expert witness’ testimony about the “typical responses of rape victims” was based on junk science and also essentially asked the expert to opine as to whether the purported victims in this case were actually victims or not. Weinstein also sought to present an expert as to the evolution of memories but was denied in that regard. Weinstein will also argue that the Judge was biased against him (based upon a terse comment made to him about his text messages in court), and that he did not receive a fair trial in Manhattan in light of the media coverage, and that his motion for a venue transfer should have been granted. All in all, his arguments will be taken quite seriously on appeal.

Finally, Weinstein’s lawyers will undoubtedly seek to get him bail pending his appeal. Such a thing is possible. A judge from the Appellate Division can grant bail pending appeal if s/he thinks that Weinstein has a reasonable chance of succeeding on appeal (and if they have sufficient assurance that he will not flee). Weinstein, of course, is a huge flight risk at this point, having been convicted of crimes with mandatory jail sentences, so his bail would have to be astronomical for him to have a chance at bail pending appeal. I don’t expect him to be successful in getting bail pending appeal, and he will probably be sent to an upstate New York prison facility within the New York State Department of Corrections while his appeal is pursued.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He also regularly handles criminal appeals.

This sentence is near the top end of the Pennsylvania sentencing guidelines for Cosby. Indeed, the guidelines recommended a sentence of between 22 and 36 months, and Cosby essentially got a sentence of 36 to 120 months. This case illustrates a few issues, probably, as it relates to sentencing. First, remaining defiant in the face of sentencing may feel good to a defendant, but judges hate it. The best way to get leniency is to show remorse and ask forgiveness, and the opposite is absolutely true as well. Cosby may think he is going to be vindicated on appeal, but frankly, I would bet a lot of money that he will not. So, copping an attitude like he did throughout the post-conviction and sentencing phase almost certainly did nothing but cost him a few of his precious remaining years of life in jail. Any smart defendant knows that even if he feels like he was wrongly convicted, the best thing to do at sentencing is say you’re sorry to the judge and victim. Cosby does not appear to be a smart defendant.

Second, judges are human, and this case might demonstrate that. Although he is not supposed to the evidence of Cosby’s prior alleged misdeeds and sexual assaults of other victims (some of whom testified at Cosby’s trial in support of Andrea Constand’s complaint), the judge probably factored those things into consideration in concluding that he was a sexually violent predator worthy of serious detention. It would have been understandably difficult for the judge to ignore those other purported complainants, not to mention the dozens of others who have publicly come forward.

We shall soon know whether Cosby will be forced to report to prison right away or after his appeal has been concluded (of course, if he wins on appeal, he will not be incarcerated unless he is convicted on a retrial). But, barring an unlikely reversal on appeal, it appears quite likely that Cosby will be incarcerated for at least the next three years.

If you or a loved one require the services of an experienced criminal defense attorney, you should strongly consider contacting the attorneys at the Law Office of Matthew Galluzzo. Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor whose opinion on sex crimes and investigations has been sought after by countless news and televisions reporters over the years.

If you or a loved one have been accused of rape or sexual assault, you should strongly consider contacting the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor and nationally-recognized expert on sex crimes investigations whose opinion on pending cases has been solicited by radio, television, and print news sources around the world.

Per the statute: “A person is guilty of Rape in the Third Degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

Subsection 2 is the most common charge, which involves a criminal charge being brought against an older person (21 years old or older) and a complainant younger than 17. Notably, this charge can be brought against the will of the younger party, meaning that it is not necessary for the complainant to “press charges” for the older person to be convicted. Sometimes these charges are proven without the testimony of the younger party by medical evidence or pregnancy, third party witnesses (who catch and observe the people in the act of sexual intercourse), or admissions by the older party.

Sometimes, undercover officers pretend to be minors online and communicate with older men interested in having sexual intercourse with a minor. Those cases sometimes result in those older men being charged with Attempted Rape in the Third Degree, under the theory that the defendants attempted to have sexual intercourse with someone younger than seventeen, but obviously did not because the police officers were not really minors. These charges are nonetheless serious and can result in sex offender registration.

The other two subsections of this charge are vaguer and apply to situations where there is a lack of consent or an incapacity to consent on the part of the alleged victim. Notably, this charge does not apply in situations in which the victims were allegedly “physically helpless,” meaning severely intoxicated, asleep, anesthetized, or in a coma, basically. These other types of “incapacity to consent” include mentally disabled or incapacitated victims, victims in custody of a correctional facility or juvenile placement agency, those undergoing medical or psychological treatment at the moment of the sexual act, and some other hypothetical situations. Thus, it is flat-out illegal for a corrections officer to have sexual intercourse with an inmate, or for a doctor or therapist to have sexual intercourse with a patient during a treatment session, or for anyone to have sexual intercourse with a mentally disabled or incapacitated person. Recently, the outcry over a woman who claims to have been raped by police officers while in their custody caused legislators to propose a bill adding prisoners in police custody to the list of those “incapable of consent” for the purpose of this charge, as well.

Finally, this charge is a serious felony and can be punishable by up to four years in state prison. It also results in registration as a sex offender. If you or a loved one have been arrested or are being investigated for a charge of Rape in the Third Degree, you should strongly consider retaining the services of The Law Office of Matthew Galluzzo. Matthew Galluzzo is a former Manhattan sex crimes prosecutor and has successfully represented dozens of clients against serious charges of rape and sexual assault. He has been quoted as an expert on sex crimes investigations countless times by television and newspaper outlets, including the New York Times, the Wall Street Journal, the New York Daily News, Fox News, and CBS News, among others.

Predatory Sexual Assault charges are very serious Class A-II felonies. They carry mandatory minimum prison sentences of ten years in jail, and a conviction for this crime carries a mandatory maximum sentence of life in prison. (Thus, for example, a person sentenced to an indeterminate prison sentence of ten years to life would be eligible for parole after roughly ten years, and if granted parole would then be on parole for the rest of his life.) These charges can apply in a variety of circumstances, but here, they have been applied because he is accused of committing the crimes of Rape in the First Degree or Criminal Sexual Act in the First Degree against multiple people. See Penal Law Section 130.95(2). Basically, Mr. Weinstein would be convicted of this charge if it is proven that he in fact sexually assaulted more than one of the complainants. (There are two Predatory Sexual Assault counts that presumably apply to different combinations of complainants in this matter).

These charges have an important practical effect on the case (notwithstanding these potential penalties). Specifically, in order to get convictions on these charges, the prosecutor would now have to prove at trial that Weinstein assaulted more than one of the three current complainants in the case. It might at first seem that the prosecutors have made their jobs more difficult by adding these charges, but in actuality, this new evidentiary necessity thwarts an anticipated defense strategy for trial severance.

Weinstein’s defense attorneys currently face the obvious problem that the trial jury is going to hear from multiple complainants describing similar crimes by their client. Of course, any uncertainty that the jury might have about one complainant’s testimony could be erased by the testimony of two other complainants with similar accounts. This is the prosecution’s huge advantage at trial, and the prosecutors have so far been smart to join the three complainants on the same indictment for this purpose of overwhelming Mr. Weinstein at trial. (Note: the charges relating to the three complainants can legally be brought on the same indictment – the legal principle is called “joinder,” and the basis for joinder is the fact that the charges from the separate crimes allegedly committed by Mr. Weinstein are similar or identical).

However, the defense would have had a strong argument for severance in this case, meaning that the evidence relating to each of the three incidents would have had to be heard by different juries. Basically, prior to the addition of these new Predatory Sexual Assault charges, a judge could have ordered severance such that there would be three trials in front of three juries instead of one trial in front of one jury. (To be fair, the severance request by the defense would not have been uncontested by the prosecution, and there is no guarantee that the court would have granted such a request). Under this scenario, the defense would have to undergo three trials, unfortunately. But, the defense could at least force the prosecution to prove each crime without presenting to the jury the evidence of the other crimes involving the other complainants. Because of the compounding effect of a jury hearing from multiple complainants, one might reasonably say that defending against a case involving three rape complainants would be ten times more difficult than defending against a case involving one complainant. Thus, it would have been tactically sound in this case for the defense to split the cases up and take the complainants on one-at-a-time. (As a defense attorney, it is analogous to fighting three winnable one-on-one fights instead of fighting three people at once. Generally, one would think that an individual would have better odds of winning three one-on-one fights than defeating three people at once. After all, the latter scenario is a fight you would almost assuredly lose.)

However, by charging Weinstein with Predatory Sexual Assault, severance may be legally impossible. Indeed, the prosecution is now obligated to prove to a jury that Weinstein assaulted two or more women in order to get the convictions on the Predatory Sexual Assault charges. To do that, a single jury will have to hear the evidence relating to all three complainants. In a very shrewd tactical move, the prosecutors have thus basically made it impossible for the defense to get trial severance for their client.

Prior to today, I thought that a guilty plea would never happen. Now, however, I think there is a distinct possibility that Weinstein will eventually plead guilty. I would bet some money that there will be plea deal involving a five to ten year jail sentence on several Class B felony charges. On the other hand, Mr. Weinstein may think that his life is already ruined and would not be worth living if he pleads guilty and goes to prison. In that case, we will have a trial. But, these new charges make his chances of winning at trial much slimmer.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He has represented numerous criminal defendants accused of sexual assault, and has also represented victims of sex crimes in civil lawsuits. He has been interviewed countless times by television and news reporters in connection with various rape and sexual assault cases in the news, and the South African government hired him for a period in 2012 to train its law enforcement officers in sexual assault investigations.

Federal criminal law prohibits a wide range of activities relating to transporting people and/or traveling across state lines or internationally for the purpose of engaging in illegal sexual activity. Specifically, 18 U.S.C. § 2423 prohibits four types of activities and carries very severe penalties.

First, 18 U.S.C. § 2423 makes it a felony punishable by a minimum of 10 years in prison (and by as much as life in prison) to “knowingly transport[] an individual who has not attained the age of 18 years in interstate or foreign commerce… with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” This provision obviously applies to those engaging in the human trafficking of underage prostitutes, and also potentially applies to an adult who drives or attempts to drive a minor across state lines so that he or she can have sex with that minor in another state. It could also apply to people who purchase bus or plane tickets for minors to travel into the U.S. or across state lines for the purpose of engaging in illegal sex.

Next, 18 U.S.C. § 2423 makes it a federal felony punishable by up to 30 years to travel across state lines, into the United States, or even to a foreign country (if that person is a U.S. citizen or permanent resident) for the purpose of engaging in illegal sexual conduct. So, this means that it is illegal to travel across state lines to hire a prostitute or have sexual contact with an underage person. It also means that it is illegal for a citizen or permanent resident to travel to a foreign country to hire a prostitute or have sex with a minor. Interestingly, a person can be guilty of this crime without actually engaging in the sexual conduct, so long as the prosecutor can prove the illegal purpose of the travel. This charge is frequently brought in cases involving undercover sting operations, in which the supposed prostitute or underage person is actually an FBI agent.

18 U.S.C. § 2423 prohibits illegal sexual intercourse after having traveled across state lines or into the U.S., or even to a foreign country (if that person is a U.S. citizen or permanent resident). Occasionally, U.S. citizens get arrested returning to the United States because Customs officers discover incriminating photographs or videos during border inspections of their laptops, phones, or cameras. Most people are surprised to learn that their electronic devices can be searched at U.S. Customs without probable cause or a warrant. Registered sex offenders returning from known “sex tourism” countries should be prepared to have their devices inspected at the border.

Finally, 18 U.S.C. § 2423 makes it a federal felony punishable by up to 30 years to arrange for the interstate or international transport of people for the purpose of engaging in illegal sex (i.e. prostitutes or minors), for commercial advantage or private financial gain. This could apply not onto the pimp or chief of a human trafficking operation, but also to the driver of a vehicle.

If you or a loved one have been arrested or accused of violating 18 U.S.C. § 2423, you should strongly consider hiring the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. In particular, Matthew Galluzzo is a former Sex Crimes prosecutor and acknowledged expert in the field. Mr. Galluzzo has earned dozens of difficult dismissals and numerous trial acquittals for individuals charged with serious sex crimes. He is routinely interviewed by television and radio news outlets regarding sex crimes investigations, and was even once hired by the government of South Africa to fly there to train its law enforcement officers about modern rape investigation techniques. Plainly put, his talent and qualifications for these sorts of cases are beyond dispute, and he may be able to help you.

According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.

It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.

The odds of prevailing in the grand jury are poor because it does not take much convincing of the grand jury for a prosecutor to earn an indictment. A grand jury consists of 23 people, and only twelve (12) of those 23 must find that there is reasonable cause to believe that the defendant has committed a crime. Plainly put, the prosecutor only need convince half of the grand jury that it is possible that the defendant is guilty. That’s an extremely low bar to clear, and it is the reason why lawyers routinely quip that a decent prosecutor “can indict a ham sandwich” if so motivated.

Now that Weinstein has been indicted, he will be arraigned in Supreme Court on the new accusatory instrument (the indictment) in about six weeks or so. Prosecutors can request an increase in bail for defendants who have been indicted, but I would not expect that to be requested or granted at this point. After all, Mr. Weinstein has already posted a considerable amount of negotiated bail and will present himself on time at his arraignment.

Weinstein’s attorneys will file pretrial motions with the court following this Supreme Court arraignment. In this case, I expect that we will see considerable pre-trial litigation (motions in limine) regarding the testimony of other alleged victims of Mr. Weinstein. In the Bill Cosby case, by way of comparison, the prosecutors were permitted to present testimony of several other victims to demonstrate Mr. Cosby’s modus operandus in subjecting women to non-consensual sexual contact. The trial judge permitted this testimony in Mr. Cosby’s case even though Mr. Cosby was not charged with any crimes involving those other women. Something similar could happen in this case, because there appear to be many Weinstein victims. Obviously, this is an incredibly important issue for Weinstein’s defense team, as the testimony of other similar victims could easily make the case against him overwhelming (just as it did in Mr. Cosby’s case, ultimately).

Interestingly, Weinstein’s defense attorney has claimed that he intends to seek dismissal of the indictment by the reviewing judge. In all cases, a Supreme Court judge must review the transcript from the grand jury presentation to ensure that the prosecutor properly instructed the grand jury as to the applicable law and that the evidence presented was legally sufficient. Defense lawyers routinely move for dismissals of indictments without having read the legal instructions that were given to the grand jury because they do not ever get copies of those instructions. And, defense attorneys normally do not normally have copies of the witnesses’ grand jury testimony at that point, as those documents are usually turned over shortly before the beginning of trial. So, I admit that I am puzzled as to why the defense attorney seems confident that the indictment will be dismissed upon his motion. It seems extraordinarily unlikely that the indictment would be legally insufficient. After all, the judge would have to affirm the sufficiency of the indictment so long as it is theoretically possible that the defendant is guilty where it is assumed that the witnesses were believed by a jury. Thus, in a sexual assault case, so long as the complainant says that she was subjected to non-consensual sexual contact, an indictment is likely to be sufficient.

I suspect that the defense believes that the indictment will be dismissed because the prosecutor failed to present evidence of the defendant’s innocence. This is potentially an interesting argument, albeit a somewhat unusual one. A prosecutor normally controls what evidence is presented to a grand jury, so the presentations are routinely one-sided. However, there is some case law to support the proposition that a prosecutor must present a “fair” presentation to the grand jury, meaning that if there is evidence of the defendant’s innocence, that the prosecutormust also present it along with the evidence of the defendant’s guilt. For example, if a witness known to the prosecution says that a defendant shot someone on Monday, but another witness known to the prosecution says that the witness was somewhere else on Monday, then that second witness should be presented to the grand jury (though, honestly, the prosecution should be rethinking its decision to indict at that point). The defense in this case may have told the prosecutors that they were obligated to present evidence of a consensual relationship between a complainant and the defendant. Of course, even if there exists evidence that the defendant and the complainant had a consensual relationship at one point, it does not mean that a rape did not occur as the complainant described. So, the prosecutors probably refused to present that evidence, and that would explain the defense’s somewhat bold statements about the dismissal of the indictment. (Of course, puffery by defense attorneys speaking to the press is hardly uncommon).

Plea bargain negotiations would normally take place after the indictment as well, but I do not suspect that there will be any agreements here between the prosecution and defense. Legally, the prosecution cannot offer Weinstein anything less than a plea to a Class C violent felony, which carries a minimum jail sentence of 3.5 years in jail. (It might be possible if the DA took the rather unusual and extreme step of asking a judge to dismiss the top count of the indictment for the sole purpose of effectuating a plea bargain agreement, but a judge would be unlikely to grant such a motion without any better reason than that).

Thus, it seems that we should probably expect a trial sometime in about twelve to eighteen months from now (and it certainly could be farther away than that). Another blog post will discuss the strategies the defense is likely to employ.

The author of this post, Matthew Galluzzo, is a former Manhattan sex crimes prosecutor now working as a criminal defense attorney with the law firm of Matthew Galluzzo PLLC.

Recently, numerous media outlets have published stories suggesting that the NYPD has built a “viable case” of rape against Harvey Weinstein based upon a complaint made by actress Paz de la Huerta. (Specifically, according to a recent Vanity Fair article, the actress claims that Harvey Weinstein raped her in her apartment on two occasions in 2010). Given that dozens of women – mostly Hollywood actresses – have now publicly complained of sexual misconduct by Harvey Weinstein, the public’s desire to see Weinstein punished is incredibly high. The Manhattan District Attorney, Cy Vance, is deservedly under considerable pressure to bring Weinstein to justice. After all, his office made a basically indefensible decision to dismiss a strong sexual assault case against Weinstein based upon a timely and straightforward complaint by a victim which was corroborated by an audiotaped confession and a prompt outcry to a friend. This decision is especially ripe for criticism since Weinstein’s defense attorneys donated money to Vance’s re-election campaign.

However, bringing this new rape case against Weinstein may actually be far more difficult and problematic than this prior sexual assault case against Weinstein that the D.A.’s office chose not to prosecute. What follows is the objective and detached opinion of Matthew Galluzzo, a criminal defense attorney and former prosecutor in the Sex Crimes Unit of the Manhattan District Attorney’s Office.

The average layperson would normally and reasonably describe a rape as a nonconsensual sexual act of penetration. However, New York criminal law is slightly more specific than that. First, the New York Penal Law only defines rape as involving the non-consensual penetration of the penis into the vagina (see Penal Law Section 130.00[1]); nonconsensual oral sexual contact and nonconsensual anal sexual contact are defined as “criminal sexual acts,” though the penalties are just as serious (see e.g. Penal Law Sections 130.40, 130.45 and 130.50).

The issue of consent under New York criminal law is much more complicated, however. People who are unconscious (i.e. asleep or in a coma, for example), extremely intoxicated, or underage are legally incapable of consenting to sexual contact of any sort (see Penal Law Section 130.05[2]). However, there are basically only two ways for a perpetrator to commit the crime of rape (or any other non-consensual sexual act of penetration) of a conscious and sober adult: by physical force (implied or actual) (see Penal Law Sections 130.05(2)(a) and 130.00(8)), or by refusing to acknowledge a clear refusal to have sexual contact (see Penal Law Section 130.05(2)(d)).

In the case of Paz de la Huerta, her descriptions of the alleged rapes do not clearly indicate the use of physical force. To be sure, in New York, a rapist does not have to use physical force to commit the crime of rape – the threat of force can be enough to make the act non-consensual (see Penal Law Section 130.00(8)(b)). However, Paz de la Huerta’s recitation of the first incident to her therapist (as detailed in the Vanity Fair article mentioned above) suggests that it was not physical force that caused her to be unable to resist, but her fear of his power and influence. Her therapist wrote her these words in a letter intended to memorialize this conversation: “I recall you telling me that it felt coercive to you and that you didn’t want to have sex with him, but felt that you had to as he was a man of power and rank and you couldn’t say no to his sexual advances.” This admission is going to make this case very difficult for Manhattan prosecutors, unfortunately. Prosecutors may conclude that Weinstein’s act of pushing her onto the bed and suddenly penetrating her without warning could qualify as physical force used by Weinstein to overcome her consent… but Ms. de la Huerta’s explanation to her therapist for the reason for her inability to resist seems to undercut that contention. Without having had the benefit of speaking directly with Ms. de la Huerta, it is impossible to know for sure precisely how she has described the encounter in detail. At first blush, though, it appears at best to be a very questionable “forcible rape” as that term is described by the Penal Law.

I say “unfortunately,” because certainly we can all agree that it is abusive and morally abhorrent to take advantage of one’s position and power and influence to have sex as Weinstein is alleged to have done with Ms. De la Huerta. However, abusing one’s position to have sex with somebody is not, technically, a crime in New York (with some exceptions, for example, corrections officers cannot have sex with inmates, nor doctors with patients during treatment sessions, see e.g. Penal Law Sections 130.05(3)(e)-(h)). For example, if a man in New York were to demand that his secretary have sex with him or else be fired and she agreed because she felt compelled to do so for the sake of her job, this would be civilly actionable but not criminally prosecutable. One might describe this situation as “coercive rape,” or an “abuse of power,” but it is not a crime in New York. The author is aware of the existence of “coercive rape” statutes in the criminal codes of other countries (South Africa, for example, where the author worked briefly as a consultant on rape prosecutions). Perhaps the New York criminal code should make it illegal to use one’s power and influence to “force” a man or woman to have sex, but, for now, it does not outlaw that behavior. In sum, Paz de la Huerta may have genuinely, sincerely, and correctly feared that Harvey Weinstein would somehow ostracize her, blackball her, or ruin her chances as a movie star in Hollywood if she refused his advances. However, his taking advantage of this situation would not be criminal, either (unfortunately). The argument, if made at trial, would be more technical than many defense attorneys prefer and might infuriate some jurors, but it would be correct, too.

In the case of the second alleged rape, Ms. de la Huerta explains that she told Weinstein “no” but he continued to have sex with her nonetheless. Though it is unclear from this account whether Weinstein used actual or implied physical force to overcome her consent (it does not appear that he did according to this account), Mr. Weinstein could theoretically have been prosecuted for the crime of Rape in the Third Degree, a class E felony (Penal Law Section 130.25). That charge applies where “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.” (see Penal Law Section 130.05(2)(d)). A conviction for that charge does not carry a mandatory minimum jail sentence though a state prison punishment greater than one year is possible.

However, there is an insurmountable problem with this charge in this case. Unlike Rape in the First Degree (forcible rape), which has no statute of limitation, the Class E felony only has a five-year statute of limitation (see New York Criminal Procedure Law Section 30.10(2)(a) and (2)(b)). As a result, if the most serious crime alleged by Paz de la Huerta in her complaint is only a Class E felony, then this entire complaint would by now be too old to prosecute.

If the Manhattan D.A.’s Office decides to pursue rape charges against Harvey Weinstein, the defense will also have considerable ammunition. To begin, Paz de la Huerta has had her own run-ins with the criminal justice system in Manhattan. She was arrested in 2012 for allegedly assaulting another model during a drunken dispute, and the encounter does not reflect well upon either her temperament or her sobriety during that period. Additionally, the defense could credibly argue that this entire complaint was conveniently manufactured to help the actress gain publicity for herself while her career flounders. Perhaps they might even argue that Paz de la Huerta willingly had sex with Weinstein to gain an advantage in terms of landing film roles, and when those roles didn’t materialize, she decided to exact revenge by accusing him of sexual misconduct after other women had already done so. Defense attorneys will also argue that the fact that she voluntarily allowed Mr. Weinstein to come back to her apartment a second time (the second alleged rape) demonstrates that the first incident was not a rape; after all, they will argue, who would allow their rapist back into their apartment so they could to do it again? Ms. de la Huerta may in fact be a rape victim, but these are the sorts of arguments that the defense will use, and the prosecutors have probably already acknowledged that these arguments may be difficult to deal with.

The Manhattan D.A. shouldn’t be too afraid of Weinstein’s defense at trial either, though. Unlike Bill Cosby – who continues to enjoy some residual popularity among former fans despite the myriad horrifying allegations and revelations about him – nobody in America likes Harvey Weinstein. As a universally unpopular person, he will not benefit from any jury forgiveness as Bill Cosby may have in his recent trial for sexual assault in Pennsylvania (or as R. Kelly or Michael Jackson may have benefitted in the past). The negative publicity surrounding Weinstein would be an absolute nightmare for his defense attorneys. Other women could conceivably be called to testify at trial as to Harvey Weinstein’s modus operandus in committing sexual misconduct. In short, Weinstein should be deeply concerned about this investigation and it would not be impossible for this case to result in him going to state prison.

It is difficult to predict what the Manhattan D.A.’s Office will do because they are facing considerable political pressure to bring a case against Weinstein, from across the country and even from its own local police department. However, based upon the account described in the Vanity Fair article, it appears that they probably cannot in fact bring a viable case against him. Or perhaps, as a strict matter of law in its current unfortunate state, perhaps they should not.

The author, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He also represents victims of rape and sexual abuse and is a frequent television and news commentator on the subject of sexual assault investigations.

Thorough investigation of these cases is the key to success. Individuals that allege that they have been assaulted or harassed by co-workers frequently (perhaps, typically) report the incident to management before they contact the police or plaintiffs’ attorneys. One of the keys to defeating these allegations is by highlighting the inconsistencies in the reports. Accordingly, determining what exactly the accuser said to management – as well as to other co-workers – about the alleged incident can be crucial to undercutting the allegations later brought in a police complaint or lawsuit. Significant inconsistencies can be devastating to the complaining witness’ credibility and must be uncovered as soon as possible.

Plaintiffs also oftentimes threaten to file police reports unless their civil settlement demands are met by the accused individuals or their employers. A skillful and trusted advocate may be able to pre-emptively undermine the credibility of such a plaintiff by communicating with the prosecutor after the criminal complaint has been made but before an arrest has been authorized. Matthew Galluzzo is a former Manhattan sex crimes prosecutor and understands some of the concerns and reservations that prosecutors sometimes have about civil plaintiffs in this arena, and has the respect of many prosecutors specializing in this area of investigation.

Finally, in some circumstances in which both a civil and criminal case are pending, a skillful attorney can manuever to allow himself to either take a civil deposition of a complaining witness prior to his/her testimony at the criminal trial, or to use the lawsuit to undermine the credibility of the complaining witness (by painting the complainant/plaintiff as a lying money-seeker or manipulator of the justice system).

Individuals accused of sexually assault or harassing a co-worker should be wary of any attorneys hired by their employer or any interviews by in-house counsel. Of course, one wants to cooperate with their investigation so as to maintain a good relationship with the employer, but individuals should make no mistake that the employer will "throw them under the bus" if it absolves them of liability. Individuals in these circumstances never regret having independent counsel assisting them along the way, if for no other reason than to know that their attorneys owe them their full allegiance.

The attorneys at The Law Office of Matthew Galluzzo are uniquely qualified to represent individuals and employers in these sorts of matters. Their former prosecutors have defended many individuals in civil and criminal court against allegations of rape and sexual abuse, with a tremendous record of success at trial (see here (rape), here (sexual abuse), and here (sexual abuse). Matthew Galluzzo, a former sex crimes prosecutor, is uniquely qualified to interview witnesses and conduct internal investigations in these sorts of cases. Having represented individuals accused of sexual assault in both civil and criminal court proceedings, he can also eliminate the need for multiple attorneys to handle both aspects. His clients find it extremely advantageous to have one attorney handling both the civil and criminal aspects, as it affords him a global perspective on both cases with an eye towards resolving both matters favorably and at the same time.

If you or a loved one have been accused of sexually assault or harassing a co-worker, you should thus strongly consider contacting the experienced attorneys at the Law Office of Matthew Galluzzo.

First and foremost, sex crimes cases involving acquaintances are among the most difficult cases in which to secure convictions. Some talking heads in the media seem to think that this case should have been an easy conviction but that presumption simply belies the reality of what happens in criminal court. These types of cases are inherently challenging for prosecutors for several reasons that were at issue here.

To begin, these “he said/she said” sexual assault cases depend enormously on the credibility of the accuser, and the defense attorneys did everything that they should have done as advocates for their client to raise doubts about Ms. Constand. First, they highlighted her inconsistent statements to law enforcement about the incident. Nothing torpedoes a sex crimes case faster than inconsistent reports from the accuser. After all, inconsistent statements also tend to be made more often by liars than by those telling the truth. Inconsistent statements by the complainant suggest that the complainant has little respect for the truth and thus cannot be trusted to tell it at trial under oath. They also tend to suggest that the complainant has a nefarious agenda that causes him or her to “tailor” her testimony to her audience be perceived more favorably or to increase his/her chances of success. Understandably, defense attorneys always pounce on evidence that suggests those things and they did in this case. Specifically, they argued (as they should have) that the complainant was an attention-seeking, money-grubbing liar who had attempted to minimize her prior contacts and relationship with Cosby when initially making her report to law enforcement in an obvious effort to be perceived more favorably by them. They further argued that she had had a consensual romantic relationship with Cosby and only made a report to police when she did not profit from the relationship in the way that she had hoped.

The other obvious problem for the prosecution in this case is that the complainant did not behave as a perceived “normal victim” after the alleged incident. Rather than immediately run to the police after the incident, or break off all contact with Cosby, Ms. Constand communicated with him frequently and even allegedly gave him a Valentine’s Day gift. Oftentimes, jurors in these cases say to themselves, “well, if he had done that to me, I would have gone straight to the police and never spoken to him again.” Truthfully, though, most victims of sex crimes never report the incidents to law enforcement, let alone report them immediately. When the parties to the case are acquaintances, then it is more typical, in fact, for there to be a delay in the report and/or some gradual unwinding of the relationship prior to the filing of the police complaint. This is especially so in a case like this one in which the facts of what happened may have been initially confusing and unclear to the victim. Unfortunately, misconceptions about “typical responses” from sex crimes victims are widespread. The prosecution did its best in this case to address this problem by presenting an expert witness to testify about the psychology of sex crimes victims (which can cause delays in reports or behavior that might seem counterintuitive to some), but it is likely that these issues nevertheless caused some doubt in the minds of the jurors.

To be sure, there was powerful evidence in favor of a conviction in this case, too. By most accounts, Ms. Constand demonstrated uncommon poise under cross-examination. Observers (including an alternate juror) also remarked that the testimony of the complainant’s mother about Cosby’s apology to her was particularly moving and powerful. Mr. Cosby’s statements to law enforcement and in his deposition were fairly damning; in the least, they were highly suspicious. It is head-scratching to argue, as Cosby’s lawyers did in this case, that a relationship can be consensual but still somehow involve drowsiness-inducing pills to initiate the first act of sexual contact.

Finally, and perhaps most importantly, was the testimony of another of Cosby’s alleged victims. She testified that Cosby had abused her in practically the exact the same way, supporting the argument that Cosby had used his unique modus operandus to victimize Ms. Constand. It will be interesting to see whether the trial judge in the second trial will permit more (or fewer) such witnesses to testify at the retrial. The prosecution could conceivably call as many as a dozen such witnesses to testify to this modus operandus, but were prevented from doing so by the trial judge (who must exercise some discretion in deciding how many such “prior bad act” witnesses may testify in a criminal case). One suspects that this could very well make a difference at the retrial. If the prosecution is permitted to call, say, three or four witnesses (instead of one) at the retrial, then the chance of a conviction on the retrial will just simply skyrocket. Of course, a conviction obtained this way could get overturned on appeal as having been an abuse of discretion by the trial judge. The concern among appellate judges would be that Cosby was convicted for a specific crime based not on the evidence that he abused Ms. Constand, but based on evidence that he abused someone not at issue in the trial.

Needless to say, it is entirely possible that some jurors were reluctant to convict an old man in ill health that was once one of the most beloved entertainers in the United States. Frankly, it can be baffling to see Cosby supporters standing outside the courtroom cheering him on during the trial, despite the fact that in the very least, in carrying on questionable affairs with dozens of women (if not outright raping them), Cosby has clearly demonstrated himself to be a terrible husband, tremendous phony, and generally lousy and hypocritical human being (if not much much worse, i.e. a serial rapist). Even his most ardent supporters would have to acknowledge that in reality Cosby is hardly the wholesome family man that he tried to present to the public at the height of his career. Celebrities don’t always benefit from residual admiration, however. Indeed, one can point to the case of Aaron Hernandez, the exalted New England Patriots football star who was convicted of murder on his “home turf” of Boston, as a recent example. Moreover, it is unlikely that the entire jury truly ignored everything it had heard in the media and on TV about Cosby’s dozens of accusers, despite the judge’s specific instructions not to consider those things. To put it plainly, Cosby’s notoriety might have worked both for and against him in this case. Certainly, there must have been at least one juror that was unimpressed by Cosby’s celebrity status and wanted to convict him. (Note: an anonymous juror recently revealed to the New York Post and other sources that ten out of the twelve jurors wanted to convict on two of the three criminal charges).

One of the interesting things about trying cases that the general public doesn’t necessarily realize is just how big of a difference jury selection can make in the outcome. In fact, a different jury might have convicted or acquitted Cosby on the same evidence, plain and simple. Selecting a favorable jury through voir dire is probably one of the most difficult skills for a trial lawyer to master (especially in federal court, where attorneys are not generally permitted to ask direct questions of potential jurors). Few, if any, honest practitioners would claim to have truly mastered that aspect of a trial. The simple fact is that it is actually very difficult to formulate useful opinions of potential jurors after learning only superficial things about them (their education level, their famliy situation, their employment, etc.) and hearing them speak for less than a minute. It is even doubly difficult to predict how a potential juror will respond to certain evidence and arguments. Trial lawyers oftentimes rely upon prepared assumptions and shortcuts in selecting their jurors and those sorts of assumptions are routinely wrong. Assuming, for example, that women will be better prosecution jurors in sex crimes cases is simply a losing strategy for a prosecutor (if anything, a jury full of men might be better for prosecutors in many such cases). The truth is that above all else, prosecutors need jurors with agreeable dispositions. After all, the real challenge for a prosecutor is not just in proving the case but in getting twelve people to agree on the defendant’s guilt. Sadly, when it comes to group decision-making, personalities within the group are oftentimes more important than the thing being decided (or in the case of a trial, the evidence). Individuals with strong personalities are more likely to take contrarian positions for the sake of being contrarians, and a diverse group of strong personalities is unlikely to agree on anything. An article in the New York Daily News offered this interesting tidbit about the Cosby jury from an alternate juror: “We had a hard time deciding where to go for dinner,” he said. “We had so many personalities in the room.” In a nutshell, during the jury selection for the Cosby retrial, the prosecutor might want to more carefully focus on whether the jurors he/she selects to be on the jury can “play nice together,” rather than just whether he/she thinks the individual will find Cosby guilty. Of course, the prosecutor should exclude any potential jurors that demonstrate obvoius bias in favor of Cosby or any hostility towards the criminal justice system, but beyond that, the key in selecting a jury (from a prosecutor’s perspective) is to select a good group of twelve, not a group of twelve good individuals.

To put this idea in different terms, consider the old maxim that “every happy family is alike, and every unhappy family is unhappy in its own way.” A prosecutor wants a “happy family” that can agree on things. This requires a jury of twelve people that can listen and be open-minded to each other’s ideas and work together as a team to reach a unanimous verdict (after all, a “hung jury” is basically a win for the defense). A defense attorney, on the other hand, tries to assemble a jury that is going to be chaotic (“unhappy”) when deliberating. Strong and outspoken personalities, arrogant and condescending individuals, overly sensitive people, and stubborn people often make great selections as jurors from the perspective of defense attorneys. These types of people tend to cause disagreements in group discussions, become intractable, or refuse to change their mind as a result of perceived “personal attacks” by other jurors.

In any event, the retrial will be interesting to professionals in the criminal justice business. Prosecutors oftentimes do better at retrials, as they have the opportunity to correct their perceived mistakes and present evidence differently. On the flip side, every time a prosecution witness testifies, it creates the possibility that they will make mistakes (i.e. inconsistent statements) under oath upon which defense attorneys can seize. Interestingly, the judge has ordered the jurors not to discuss many of the specific aspects of the deliberations (including the juror vote counts), so it will more difficult than usual for the prosecution to gage its performance. (Note: it is quite common for these sorts of questions to be asked of the jurors following mistrials. Indeed, the “holdout juror” in Etan Patz’s first trial – which ended in a mistrial – gave extensive press interviews about the jury deliberations). That being said, an anonymous juror recently told the press that ten of the twelve jurors wanted to convict Cosby on two of the criminal charges, which strongly suggests that a retrial is more likely to result in a conviction than an acquittal.

For what it’s worth, the author of this post is a criminal defense attorney and former sex crimes prosecutor, and has never lost a sex crimes trial in his career. You can read about some of his sex crimes acquittals here.