Assault in the Third Degree lies in Penal Law 120.00, which states that a person can be guilty of that charge in the following three situations:

1. When, with intent to cause physical injury to another person, he or she causes such injury to such person or to a third person; or

2. He or she recklessly causes physical injury to another person; or

3. With criminal negligence, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

The vast majority of alleged assaults fall within the ambit of subsection (1), however subsection (2) is usually charged as an alternate theory to the same conduct for which subsection (1) applies. Thus, a person who punches another person causing some form of injury will usually be charged will violating PL 120.00(1) (for intentionally causing physical injury) and PL 120.00(2) (for recklessly causing physical injury). The common denominator for all three subsections of Assault 3 is “physical injury,” which is defined as “impairment of physical condition or substantial pain.

As defense attorneys, we are charged with the duty of attacking our cases from every viable angle. This may not only include a challenge to the allegation that our client was actually the person who did the assaulting, but also a challenge to the “sufficiency” of the allegation of injury. In other words, we argue that the injury alleged to have occurred does not even rise to the level of a misdemeanor, regardless of who caused it. A more specific challenge we might employ involves an assertion that the prosecutor’s allegations do not legally make out “substantial pain.” (Similar arguments are made up the chain as the threshold level of injury increases for Assault 2 and 1, respectively).

How is this done? When a defendant is formally charged with assault, he/she is arraigned on the charges and their attorney provided a copy of the charging instrument, usually referred to as the criminal court complaint. This complaint contains a brief summary of allegations which serves the purpose of putting the defense on notice of the nature of the case. For example, a complaint might state, in relevant part, that the defendant was observed “punching (the victim) several times about the head with a closed fist thereby causing (the victim) to sustain a bloody lip, a laceration below the eye and substantial pain.” A less severe complaint might state that the defendant was observed striking the victim numerous times “with his hand, causing redness to the (victim’s) face and substantial pain.”

Of critical importance is the fact that the Court of Appeals (New York’s highest Court) has held that a victim’s subjective description of an injury will not always be sufficient to support a finding of physical injury, and that injuries are to be looked at objectively as well. This rule exists to prevent a complaint stating the “victim” experienced substantial pain after being slapped with a feather from sufficiently stating a case for assault.

So which types of cases have been held to have sufficiently plead physical injury and which have not? We discuss that and more here in Part II.

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.

Nike’s Air Jordan line of sneakers are some of the most popular and expensive athletic shoes in circulation. Nike has released a different Air Jordan model almost every year since the shoe line was first introduced in 1984. Many of these models are known by their model number, like the Air Jordan XIII, the 13^th model, and some models are known by the year of introduction, like the Air Jordan 2009. Air Jordan sneakers can cost from approximately 100$ to the thousands of dollars, depending on color and design.

More than 42 containers carrying nearly 400 000 pairs of the trendy fake sneakers traveled from factories in China to Port Newark. These sneakers were produced to resemble Air Jordan sneakers in design and color but are “generic” (the “Generic Air Jordan”). They were imported into the U.S. without the inclusion of logos that are trademarks registered with the United States Patent and Trademark Office (“USPTO”). Once the Generic Air Jordan arrived in the U.S., they were altered within the New York area to add trademarked logos to the shoes in warehouses in Queens and Brooklyn. Once this alteration took place, the shoes were considered “counterfeit”. Finally, the Counterfeit Sneaker Ring processed with the distribution of the fake shoes within the U.S. at a significant profit.

The case is being prosecuted by the U.S. Attorney in Manhattan, Geoffrey Berman, because many of the shoes were shipped in and out of that jurisdiction. The U.S Attorney said in a statement that he commends “our law enforcement partners for helping to bring today’s charges, which send a clear message to would-be counterfeiters: ‘Just don’t do it’ ”.

Indeed, the 5 defendants face two charges according to the complaint:

• Counterfeit trafficking conspiracy (Title 18 United States Code Section 2320(a) (1))
• Trafficking in counterfeit goods (Title 18 United States Code Section 2320 and 2.)

Under Title 18 United States Code section 2320, it is unlawful to willfully and knowingly perform, attempt, or conspire to perform any of the following acts:

• traffic in goods or services and knowingly use a counterfeit mark on or in connection with such goods or services;
• traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive;
• traffic in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security; or
• traffic in a counterfeit drug.

In order for the five defendants to be found guilty of federal counterfeiting, the U.S. Attorney will have to prove all of the following beyond a reasonable doubt:

• They trafficked, attempted to traffic, or conspired to traffic in goods, services or pharmaceutical drugs;
• The goods, services or pharmaceutical drugs were counterfeit or unoriginal from those created by the trademark owner of these goods, services, or drugs;
• They knew the goods, services or pharmaceutical drugs were unoriginal or counterfeit in nature;
• And they intended for the goods, services, or pharmaceutical drugs to be fraudulently passed as original, and for them to be distributed as such.

The term “counterfeit mark” means a spurious mark:

• that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
• that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United StatesPatent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
• that is applied to or used in connection with the goods or services for which the mark is registered with the United StatesPatent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and
• the use of which is likely to cause confusion, to cause mistake, or to deceive.

Under 18 USC 2320, counterfeiting is a federal offense. These defendants face a sentence of up to 10 years in federal prison and fines of up to $2 million if they are convicted of this crime. If it is their second or subsequent offense for federal counterfeiting, they face a fine of up $5 million and up to 20 years in prison.

The author of this article is a federal criminal defense attorney and former prosecutor. If you or a loved one have been arrested for a federal offense, you should strongly consider contacting him to discuss your case and his possible representation.

The sentencing range for the original criminal charges under the Federal Sentencing Guidelines was 12-18 months (Base Offense Level of 13 with a two level increase for obstructing justice offset by a possible two level reduction for acceptance of responsibility following a guilty plea). Of course, the client also now faced the possibility of additional criminal charges and penalties for acting as a fugitive and failing to appear in court. The prosecution initially submitted a proposed plea agreement whereby the client would receive a sentence of between 12-18 months in prison.

However, the attorneys at The Law Office of Matthew Galluzzo presented to the federal prosecutor considerable mitigating evidence of our client’s life story and family, as well as circumstances surrounding his original crimes. Ultimately, the prosecutors agreed to allow the client to plead guilty to the second count of the original indictment and avoid additional charges for acting as a fugitive. The second count of the indictment carried a 0-6 month Guidelines sentence, representing a considerable savings on the original 12-18. Then, we were able to persuade the judge to schedule an expedited sentencing hearing and ultimately to sentence our client to time served. Thus, instead of receiving a sentence of between 12-18, as it originally appeared our client would, our client received a sentence of less than four months. Obviously, the client is quite happy with the result.

If you or a loved one have been arrested for a violation of federal criminal law in Brooklyn or Queens (i.e. the Eastern District of New York), you should strongly consider contacting the experienced federal criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former prosecutors has considerable experience representing individuals charged with a wide variety of crimes in that courthouse, and may be able to help you as well.

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.