an unserialized “ghost gun” seized from a client

🛠️ Defining Ghost Guns and Unserialized Components

Under New York law, a “ghost gun” refers to an unserialized firearm, including both completed and unfinished frames or receivers. An “unfinished frame or receiver” is defined as any material that has been shaped or formed for the purpose of becoming the frame or receiver of a firearm and which may readily be made into a functional frame or receiver through milling, drilling, or other means. 

⚖️ Key Statutes and Offenses

1. Criminal Sale of a Ghost Gun in the Second Degree (Penal Law § 265.60)

• Offense: Knowingly selling, exchanging, giving, or disposing of a ghost gun to another person.
• Exceptions: Not applicable if the individual voluntarily surrenders the ghost gun to law enforcement or, within six months, disposes of it to a licensed gunsmith.
• Penalty: Class E felony.  

2. Criminal Sale of a Ghost Gun in the First Degree (Penal Law § 265.61)

• Offense: Selling, exchanging, giving, or disposing of ten or more ghost guns to another person.
• Exceptions: Similar to the second-degree offense, including voluntary surrender or transfer to a licensed gunsmith within six months.
• Penalty: Class D felony.

3. Criminal Possession of an Undetectable Firearm (Penal Law § 265.01(9))

• Offense: Knowingly possessing a firearm that is not detectable by metal detectors or X-ray machines.
• Penalty: Class D felony. 

🛡️ Legislative Background

In 2021, New York enacted the Jose Webster Untraceable Firearms Act and the Scott J. Beigel Unfinished Receiver Act, which collectively prohibit the possession and sale of ghost guns and their components. These laws also require gunsmiths and dealers to register firearms and unfinished frames or receivers they assemble. 

📌 Enforcement and Legal Precedents

In March 2024, New York Attorney General Letitia James secured a $7.8 million judgment against Florida-based retailer Indie Guns for illegally selling ghost gun components in New York. The company was permanently banned from selling such parts in the state.

Additionally, in December 2024, Congressman Ritchie Torres called on Governor Kathy Hochul to close loopholes in New York’s ghost gun laws, particularly concerning the manufacturing of 3D-printed ghost guns, following a high-profile murder involving such a weapon.

📝 Conclusion

New York’s stringent laws aim to curb the proliferation of ghost guns and enhance public safety. Individuals found in violation of these statutes face serious legal consequences, including felony charges and significant penalties. The state’s proactive approach underscores its commitment to addressing the challenges posed by untraceable firearms. Of course, the possession or sale or use of ghost guns can also be prosecuted in federal courts by federal prosecutors under federal law, too.

Matthew Galluzzo is a former Manhattan prosecutor and experienced criminal defense attorney who has successfully defended and represented people arrested for the possession of ghost guns. If you or a loved one have been arrested for this offense in the New York City area, you should strongly consider engaging Matthew Galluzzo to be your attorney.

Thankfully, these cases can be defended on many fronts. The protesters may have very strong arguments that their arrests were unconstitutional. The criminal statutes as applied to them may be unconstitutionally vague under the circumstances. Police bodycam footage may ultimately vindicate some protesters as well. These are just some of the possible defenses in protest-related cases.

Matthew Galluzzo has successfully represented many people who were arrested for exercising their lawful right to protest. A former Manhattan prosecutor, he has over 20 years of experience practicing criminal law in Manhattan. If you or a loved one have been arrested or given a Desk Appearance Ticket for protesting at Columbia, you should strongly consider contacting him about possible representation.

Unlike most of the other charges in Chapter 220 of the Penal Law, this particular charge focuses on the value of the narcotics, rather than the weight or quantity of the narcotics. Of course, the value of a quantity of narcotics can be easily disputed. Interestingly, this charge also aggregates the narcotics trafficking over time, whereas most state-court drug cases involve single transactions. Also, many times, charges are brought without sufficient proof that the accused played a supervising role in an actual organization.

This Class A-I felony drug charge carries serious potential prison sentences, as even someone without a criminal record faces a minimum 15 years in prison, with a maximum of 25 years.

Matthew Galluzzo, an experienced criminal defense attorney and former Manhattan prosecutor, has extensive experience representing individuals accused of large-scale narcotics trafficking offenses in state and federal court. If you or a loved one have been accused of Operating as a Major Trafficker, you should strongly consider contacting him to discuss the case.

Mr. Galluzzo worked with a social worker to describe the client’s extremely difficult upbringing, which included parental abuse, poverty, homelessness, the foster care system, and drug abuse as a pre-teen. Mr. Galluzzo convinced the judge that pursuant to the recent Second Circuit decision in US v. Gibson, the client was not a Career Offender under the Federal Sentencing Guidelines despite his two prior convictions for NY Penal Law Section 220.39, resulting in his classification as a Criminal History Category IV instead of VI. He also convincingly described the overdose as a terrible accident and expressed his client’s remorse to the judge.

Ultimately, the Court granted a significant downward variance and gave him a sentence equal to roughly half that recommended by the Sentencing Guidelines, 120 months (10 years). The client was pleased with the result and felt that his voice had been heard. The case was US v. Huertero, 20-cr-580 (ER) before Judge Ramos.

If you or a loved one are facing federal narcotics charges resulting in an overdose, you should strongly consider contacting Matthew Galluzzo. A former federal prosecutor, he has experienced litigating against government prosecutors attempting to prove that defendants are responsible for fatal overdoses, and has effectively cross-examined scientific expert witnesses (doctors, toxicologists, pathologists, etc.) on the subject. He also knows how to effectively present requests for merciful treatment from sentencing judges. Give him a call to schedule a consultation.

Mr. Galluzzo practices primarily in the New York City area, as well as the federal courts of Connecticut, White Plains (NY), and New Jersey. However, he is also able to defend federal criminal cases in other jurisdictions under certain circumstances.

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.

Mr. Galluzzo submitted a sentencing memorandum that the judge described at sentencing as “very compelling,” and sentenced the client to time served, equivalent to 51 months. The client – who had spent the last 4+ years in various facilities including MCC New York and MDC Brooklyn, was released from the courthouse and went straight home. Obviously, he was elated with the result, which about half of the sentence recommended by Probation and considerably less than that recommended by the Sentencing Guidelines.

Most federal defendants plead guilty. Indeed, statistics show that almost 98% of federal defendants plead guilty to some crime. Oftentimes, a defense attorney’s most valuable contribution in a case is at the sentencing phase. There, criminal defense attorneys must make the most persuasive case for leniency. Mr. Galluzzo spends time to really understand his client and his history in order to make the best arguments to the judge. As a result of his hard work, he consistently gets his clients sentences below those recommended by the US Sentencing Guidelines, with this last case being a particularly striking example.

If you or a loved one have been charged with a federal crime, you should strongly consider contacting the Law Office of Matthew Galluzzo. Mr. Galluzzo is an experienced former Manhattan prosecutor who specializes in defending federal criminal cases, and he gets exceptional results for them.

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.

According to a press release from the U.S. Attorney’s Office for the Eastern District of New York, the rapper and five other men trafficked in significant quantities of heroin, cocaine, and the especially-dangerous drug, fentanyl. The defendants (including Anthony Leonardi, Robert Leonardi, Brian Sullivan, Anthony Syntje, and Kavaughn Wiggins) have all been arrested and detained pending trial. Prosecutors claim to have recovered at least 16 kilograms of cocaine, 2 kilograms of heroin, and fentanyl, though it is certain that they will allege that the group is responsible for far more than that. Indeed, the press release describes the amount of drugs trafficked by the crew as “massive”.

Fetty Wap is unlikely to be released on bail pending trial, though it may be possible given his likely financial resources. However, in federal narcotics cases of this size and scale, the presumption for judges is that a defendant should be detained pending trial. Fetty Wap would have to convincingly demonstrate that he does not pose a risk to the public, and that he would not flee if released on bond. Given his resources (and possible ability to live abroad), the amount of prison time that he is potentially facing, the fact that his codefendants are indicted for using firearms, and the fact that he allegedly trafficked in fentanyl, which is notorious for causing fatal overdoses, it seems unlikely that he will be bailed out pending trial.

The maximum penalty for these charges (21 U.S.C. 841) is, in this case, life. The minimum statutory penalty is ten years in prison. In some cases, defendants facing ten year mandatory minimum sentences under 21 USC 841 are able to negotiate five year mandatory minimum sentences, or even plea agreements without mandatory minimums. However, given the amount of narcotics seized in this case, Fetty Wap is probably going to receive no better than a ten year mandatory minimum offer from the prosecutors, which he will either have to accept or try his luck with a jury.

The U.S. Sentencing Guidelines generally enable more precise estimates for how much time defendants are really facing, however. It is difficult to predict at this stage, though, as there are some unknown variables in Fetty Wap’s case. We do not know, for example, whether there are any overdoses potentially attributable to the defendants’ conduct. We also do not know whether Fetty Wap played a supervisory role in the conspiracy to traffic narcotics. Those factors can significantly increase the penalties for drug defendants. Pleading guilty, on the other hand, usually earns significant reductions in the sentencing range for defendants (as opposed to being convicted at trial).

Fetty Wap is of course presumed innocent. As of yet, we have no idea what evidence law enforcement has against him. But odds are that his outlook is very bleak. Federal indictments in cases like this tend to involve numerous controlled undercover purchases, wiretaps, surveillance, and confidential informants working with the government. Put another way, the evidence is typically overwhelming. It is thus no surprise that over 95% of federal criminal defendants plead guilty. So, Fetty Wap is unfortunately probably looking at a huge sentence that will end his music career and see him emerge from prison as an old man. It seems inexplicable that a talented artist with a lucrative career would risk everything to make illegal money in the drug trade. His lawyers will probably be seeking to get him the best plea bargain possible, and then beg a sentencing judge for leniency. That is oftentimes the best that defense attorneys can really do in these sorts of cases. But top notch advocacy for a client is truly invaluable and can make a huge difference in the outcome.

Matthew Galluzzo is a former Manhattan prosecutor who regularly represents criminal defendants charged with major narcotics crimes in federal and state courts throughout New York. He has helped many defendants escape prosecution, earn dismissals of criminal charges, and negotiate favorable plea bargain outcomes. If you or a loved one have been arrested and charged with a serious drug felony, you should contact Matthew Galluzzo to discuss your options.

Ms. Exum is being charged with one count of Assault in the Second Degree, a class D violent felony in violation of New York Penal Law Section 120.05. A person is guilty of it when they intentionally cause injury to another person by means of a weapon or dangerous instrument. Stabbing someone definitely qualifies (indeed, if the injuries were more serious, she would be looking at Assault in the First Degree). This the appropriate charge here.

At arraignments, the judge will issue an order of protection in favor of the victim of the stabbing (i.e. Ms. Exum’s boyfriend/ex-boyfriend), precluding her from having any contact with him whatsoever. She cannot contact him electronically, through social media, in person, or through third parties (some judges even go so far as to say that you cannot like the other person’s social media postings). Even if Ms. Exum’s boyfriend forgives her and tries to call her, for example, she cannot speak with him or communicate with him without violating the order of protection and risking a re-arrest by the police. The order is not the victim’s to apply as he sees fit – it is issued by the court and must be obeyed. These sorts of orders are particularly complicated when the parties lived together, as the criminal defendant simply has to vacate and find somewhere else to sleep.

Frequently, victims/complainants in these cases do not wish to cooperate with law enforcement. When someone gets stabbed, the police are usually called, and an arrest usually happens. Police basically have to make an arrest in a situation like this. It is hardly uncommon for these victims to immediately try to undo the arrests or ask prosecutors to dismiss the cases. That doesn’t always work, however. Ms. Exum’s boyfriend/ex-boyfriend is not a plaintiff in a civil case, he is simply a witness in a criminal case prosecuted by the state. As such, prosecutors will get to decide whether to dismiss the case or not, regardless of the boyfriend’s preferences. And, the order of protection will remain in place so long as the prosecution continues. This is a frustrating reality for a lot of people involved in domestic violence cases.

As a practical matter, though, it can be very difficult for prosecutors to successfully prosecute domestic violence cases without cooperative victims. After all, their testimony is normally necessary to prove what happened during the crimes. However, there are some circumstances in which a prosecutor can prosecute a case even without a cooperative witness. Police have probably taken photographs of the injuries to Ms. Exum’s ex-boyfriend, and may have a 911 recording describing the crime in the heat of the moment (possibly causing it to be admissible at trial). Ms. Exum may have made admissions to police as to what happened, too. The statements that the ex-boyfriend made to emergency medical personnel might also be admissible at trial, even without his cooperation. Finally, it could be possible for prosecutors to subpoena the ex-boyfriend to testify about what happened, forcing him to either tell the truth or commit perjury under oath.

A stabbing case is serious and can certainly result in multiple years in prison. Assuming Ms. Exum does not have a criminal record, and the injuries are not too terrible, it may be possible for her to negotiate a deal for a misdemeanor with probation and anger management and counseling. But should she lose at trial, she could definitely face some time in prison.

If you or a loved one have been arrested for domestic violence, you should strongly consider contacting Matthew Galluzzo, an experienced criminal defense attorney who has helped celebrities, athletes, actors, models, doctors, lawyers, and a variety of financial professionals defend against charges of domestic violence.

(g) It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Thus, a person who was convicted of a criminal charge carrying a potential maximum penalty of one year – typically a felony – can be charged under federal law for possessing a firearm, even if the person was not in fact previously sentenced to a year or more in prison.

It is important to understand that possession is not the same as ownership. Possession can also be constructive, meaning that people can possess firearms in their homes, their cars, their places of employment, or their storage lockers, for example, without even being physically present at the time of the discovery of the firearms. If law enforcement can prove that a person has access to a firearm, and potential control over that firearm, then the person can be found to be in possession of it. Possession need not be exclusive either – under the law, multiple people can possess the same firearm. Indeed, it is common for all of the passengers in a vehicle to be charged with possessing a single firearm in a vehicle.

Determining the penalties for a violation of this crime are complicated and depend largely upon the individual’s criminal history. However, absent other aggravating factors, straight possession of firearm by a felon has a maximum penalty of 10 years. 18 U.S.C. § 924.

If you or a loved one have been arrested for a violation of 18 U.S.C. § 922g, you should strongly consider retaining the services of the Law Office of Matthew Galluzzo PLLC. Mr. Galluzzo is an experienced federal criminal defense attorney and a former prosecutor. He defends relentlessly against the prosecution and advocates fiercely for his clients. Give him a call to discuss your case.

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien –

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that –

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

In these cases, federal law generally requires the agents to send a notice to the person from whom the cash was seized. The person who receives the notice is typically given the opportunity to make a claim for the cash, which includes an explanation as to the source of the cash. This response must be made under penalty of perjury, and can include supplemental documentation from a related business (such as tax returns or bank statements), or sworn statements from other people, among other things. Every once in awhile, the agents return the cash to the claimant based upon the representations made by the claimant, or based upon the evidence demonstrated to the agency. Our attorneys have successfully assisted clients in getting cash returned by federal agents this way.

If, however, the agency refuses to return the money based upon these representations, then they must commence a civil forfeiture action in federal court. The precise procedures for doing so are outlined in 18 U.S.C. § 983. Ultimately, in a civil court proceeding, the federal agency (DEA) must prove by a preponderance of the evidence that the seized cash represents proceeds of illegal activity. This is the civil standard for proof and it is much lower (easier) than the “beyond a reasonable doubt” standard necessary to prove a person’s guilt of a crime.

Of course, the DEA may also elect to arrest the claimant as a co-conspirator to narcotics trafficking or money laundering. In that case, the DEA and federal prosecutor (U.S. Attorney) can add a forfeiture count to the indictment, and a civil forfeiture proceeding no longer becomes necessary.

The person considering whether to respond to this initial seizure notice has many things to consider. First, the response has to be made under oath. Thus, a false statement relating to the seized cash is punishable as a federal crime pursuant to 18 U.S.C. § 1001. Second, the claimant should carefully consider the circumstances under which the cash was seized. They should ask themselves: how did the DEA agents know that there was cash to be seized? Did they simply stumble upon it, or has there been a long-term investigation with wiretaps, cooperating witnesses, and/or surveillance that led them to make this cash seizure? The latter is normally more likely. Of course, it could be suspicious for a claimant to let DEA agents seize a huge quantity of cash without any protestations – after all, if, say, one million dollars in cash were lawfully obtained, wouldn’t the owner want it back?

Ultimately, the top priority for someone whose cash has been seized by the DEA should be avoiding an arrest or an indictment by federal authorities. Thus, any response to a seizure notice should be made after careful discussion with a knowledgeable criminal defense attorney. Matthew Galluzzo, an experienced criminal defense attorney and former prosecutor, has assisted many clients in these sorts of matters and is prepared to assist you or a loved one as well.

The most common two murder charges at the federal level are contained in 18 U.S.C. § 1111 and § 1117. The former describes federal murder as being the unlawful and killing of another human being with “malice aforethought.” Spur-of-the-moment killings thus might be charged as manslaughter instead, though “malice aforethought” does not require more than a moment’s reflection on the part of the actor. The charge is broken down into two degrees: first and second degree murder.

First degree murder involves those intentional killings perpetrated by “poison, lying in wait, any other kind of willful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed…” First degree murder is punishable by death or life in prison.

All other murders with malice aforethought are considered murder in the second degree, which carries either a life sentence or “any term of years” in prison.

18 USC § 1117 applies to conspiracies to commit murder. Specifically, “if two or more persons conspire to violate §1111… and one or more such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or life.”

Thus, the mere agreement to commit a murder, plus some action in furtherance of the plot, can land both parties in prison for life. Frequency, these cases are brought when one of the conspirators tells law enforcement, or when the discussion is overheard on a law enforcement wiretap. “Overt acts” can be as simple as looking for the intended target or acquiring a weapon to use.

Keep in mind however that multiple people can be charged with murder via §1111 by assisting the actual killer. Providing knowing and intentional assistance to someone who is about to commit a federal murder can get one arrested and convicted of the same crime. A good defense attorney may be able to cast doubt on the co-conspirator’s role in a §1111 murder, however.

If you or a loved one have been charged with a federal homicide charge, you need an experienced criminal defense attorney representing you. Matthew Galluzzo has successfully defended numerous individuals accused of homicide at the state and federal level, and he is an experienced federal criminal defense attorney who was selected to be on the Criminal Justice Act panels for both of the federal courts in New York City (the Southern and Eastern District of New York). Give him a call to schedule a case evaluation and you will receive a fair quote for his services.

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.

First, let’s explain to you what your Desk Appearance Ticket (“DAT”) is.

The Criminal Procedure Law defines the DAT as “a written notice issued and subscribed by a police officer or other public servant authorized by state law…directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense.” In other words, if you’ve received a DAT, you’re being directed to appear in Criminal Court where you should expect to be formally prosecuted as a defendant. People are often mislead by DATs because they think they were stopped by the police and then “let go.” The reality is that very serious misdemeanors such as Assault and Criminal Possession of a Weapon are often charged following the issuance of a DAT. While it might be tempting to think that the charge “can’t be that serious” since you were “only given a ticket,” nothing could be farther from the truth. To be sure, your failure to appear on a scheduled Court date will result in the issuance of a warrant for your arrest. So it is absolutely imperative that you appear on your Court date.

“What should I expect when I go to Court?” The DAT is a legal mechanism to bring you to Court to face criminal charges, so you have to prepare yourself to assume the role of a defendant in a criminal action once you get there. If you’ve received a DAT, it’s because a member of law enforcement has accused you of breaking the law – which means a local prosecuting agency is going to prosecute you when you get to Court. You should expect to appear before a Judge and be formally charged by formal accusatory instrument which is provided to the defense on that day (which is why it’s necessary to be represented by counsel).

“What am I being charged with?” If you’ve already been issued a DAT, take a look in the upper left hand corner, under your name and address. You should see a line that says “Top Offense Charged” and then the letters “PL” followed by some numbers. The numbers correspond to the section of the Penal Law that you have been accused of violating. Some common Penal Law numbers on DATs are “120.00” (Assault), “155.25” (Petit Larceny), “220.03” (Criminal Possession of a Controlled Substance in the Seventh Degree), and “265.04” (Criminal Possession of a Weapon in the Fourth Degree), just to name a few (the Penal Law sections mentioned here are all Class “A” misdemeanors, punishable by up to 1 year in jail). It’s important to keep in mind that the DAT only has space for your top count, so it’s not uncommon for defendants to appear in Court only to find that they’re being charged with additional violations of the Penal Law.

“So do I need a lawyer?” Yes. We can see how you may have beeen lulled to sleep by the fact that you were arrested and released “with just a piece of paper.” Or perhaps you thought the situation was less serious since they weren’t “put through the system” and held in jail for 24 hours before coming out before a Judge. Hopefully you now understand that the DAT process simply allows you to make your appearance at a later date, while the same stakes and penalties that come with being criminally charged apply.

If you or a loved one have received a Desk Appearance Ticket, do not hesitate to reach out to The Law Office of Matthew Galluzzo; our team of former prosecutors and experienced criminal defense attorneys can help extricate you from the case as soon as possible.

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.

Recently, an unfortunate tragedy occurred in Queens resulting in a man’s death. A tourist from Florida named Sandor Szabo requested an Uber to take him from a family member’s wedding. In an apparently intoxicated effort to find his Uber, Mr. Szabo banged on several nearby cars with his fists. He eventually banged on the car belonging to Jamill Jones, an assistant coach for the Wake Forest University men’s basketball team. Mr. Jones got out of his car and punched Szabo one time in the face. Szabo fell to the ground and hit his head on the pavement. Jones drove away. Szabo was taken to the hospital and later died from the injury. See “Wake Forest coach could face murder charges,” NY Post, August 10, 2018.

Jones was identified and surrendered himself to police. As of yet, he has only been charged with a misdemeanor assault in violation of Penal Law Section 120.00 (Assault in the Third Degree, to be precise). That charge makes it a crime, punishable by up to one year in prison, to intentionally cause physical injury to another person. This is a typical charge for a single punch to the face. The fact that Mr. Szabo tragically died, however, makes the situation more complicated from a legal perspective. The New York Post article suggests that Mr. Jones could face murder charges, but that is perhaps imprecise or incorrect. Murder charges (such as the most common charge of Murder in the Second Degree, in violation of Penal Law Section 125.25) would require a showing that Jones not only killed Szabo, but that he intended to kill Szabo. That seems unlikely given that he only punched Szabo once.

There is precedent for these situations, as this is not the first time in New York that a person has been arrested for killing someone with a single punch; indeed, the author of this article has seen several such unfortunate cases in his days as a Manhattan prosecutor. Normally, one of two things happens: either the defendant is charged with a misdemeanor assault, as Jones has been here, or the defendant is charged with Manslaughter in the Second Degree, in violation of Penal Law Section 125.15. Manslaughter in the Second Degree is a Class C felony with a maximum possible sentence of 15 years, though probation and non-jail sentences are possible. See Penal Law Sections 60.01 and 65.00. Manslaughter in the Second Degree requires a showing that the defendant recklessly caused the death of another person. “A person acts recklessly with respect to a result or to a circumstance…. When he is aware of and consciously disregards a substantial and unjustifiable risk that such result will 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.” Penal Law 15.05(3).

The question thus becomes: when he raised his fist to punch Szabo, did it occur to Jones that he might kill Szabo with a single punch? Most people probably don’t think that one punch will kill, and that is the dilemma facing prosecutors in these cases. Certainly, the prosecutors will feel pressure from the victim’s family and the community to prosecute Jones to the fullest extent of the law. However, it will likely be extremely difficult to secure a felony conviction in this case. Mr. Jones could still receive a sentence of one year in prison for the assault, not to mention the misdemeanor crime of Leaving the Scene of an Accident (VTL Section 600) that he will surely face, as well. But, we expect that he will not even be charged with manslaughter under the circumstances.

If you or a loved one have been arrested or investigated for an accidental homicide, you should strongly consider contacting the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former Manhattan prosecutors have both prosecuted and defended homicide cases, and can bring their balanced understanding to your defense team.