1. Understanding the Process

The criminal justice system can be intimidating for a victim, so much so that many crime victims decline to even make a report or complaint. As a longtime former Manhattan prosecutor, Matthew Galluzzo can answer questions a crime victim might have about the process, including: 1) whether, and how the perpetrator will be arrested, 2) what the perpetrator might be charged with and what penalties he/she would face, 3) whether the crime victim will have to testify, and/or when and how often, 4) whether the crime victim will ever have to confront the perpetrator in court, 5) whether the crime victim’s identity will ever be known to the perpetrator, and 6) what sort of outcome the crime victim might reasonably expect. Many crime victims have found these sorts of consultations with Mr. Galluzzo to be invaluable, in that it relieves some of the stress in the process and helps them decide what course of action to take.

2. Protecting your Rights and Interests

For those victims who have chosen to make reports, Mr. Galluzzo can help protect their rights and interests throughout the process. Oftentimes, crime victims may themselves be at some risk for arrest or criminal prosecution based upon their complaints, and need an attorney to ensure the proper invocation of their Fifth Amendment rights. Victims should not assume that just because they are cooperating with law enforcement that they themselves are immune from punishment fo their own actions.

3. Advocating for a Result

Crime victims may also wish to have an attorney communicating with the prosecution to skillfully advocate for a particular result. Attorneys for victims can possibly help victims get full restitution in fraud cases, for example, or convince prosecutors to seek certain penalties in assault cases. The advantage of having an attorney for this purpose is that he/she should have a better understanding of the prosecutorial options. Moreover, a former prosecutor will be more credible in discussing these options with a prosecutor.

4. Bringing a Lawsuit

Victims of crimes may wish to pursue civil lawsuits against the criminals or the establishments where the crimes happened. These suits can be sometimes be brought after the criminal justice process has concluded, but can also be brought while the criminal case is pending. The decision as to whether or not to bring such a suit depends not only on whether the facts can be proven, but on whether money damages can actually be recovered from the perpetrator. Mr. Galluzzo has also assisted crime victims in bringing civil lawsuits against perpetrators of crimes. In many ways, his background as a former prosecutor makes him ideally suited to “prosecuting” a crime in civil court. He has helped victims of rape, sexual assault, assault, and other crimes sue individuals and establishments for money damages sustained by crime victims, and has helped them navigate the criminal justice system so as to maximize their results in civil court. Mr. Galluzzo is very selective about the cases that he pursues in this way, but is prepared to discuss the possibility with you.

If you or a loved one have been the victim of a crime, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC and speaking with Matthew Galluzzo, a former Manhattan prosecutor.

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.

In an American criminal case, the jury’s decision as to a particular charge must be unanimous, meaning that all twelve jurors must agree as to the verdict (guilty or not guilty) for a specific charge. A jury can convict unanimously on some charges and acquit unanimously on other charges in the same trial (and that happens quite frequently). A jury indicates to the court and judge that it has reached a verdict by sending out a written note that they have reached a verdict, and the jury emerges to announce the verdict in the courtroom.

Sometimes, as is the case in Cosby’s trial, a jury sends out a note indicating that the jury cannot agree as to a particular charge (or any charges). Typically, a judge will then tell the jury that they should continue to deliberate. There is a very specific text that judges are usually required to read back to their deadlocked juries, and this text is typically referred to as an “Allen charge” (based upon a Supreme Court case with that name). An Allen charge is meant to encourage the jury to continue to try to reach a unanimous verdict, and reminds the jurors of the importance of arriving at a conclusion in light of the interests of the parties and the time and resources already spent trying the case.

Sometimes, after an Allen charge, a jury returns with a unanimous verdict. Other times, it comes back and indicates that it still cannot agree. Frequently, the jurors ask for evidence to be presented to them again or for “read back” of certain portions of the testimony. If the jury ultimately cannot agree, then a judge may declare a mistrial (based upon a defense motion), meaning that the case would have to be tried over as to any counts on which a verdict was not reached. A court can give multiple “Allen charges” before finally declaring a mistrial, however, though the Allen charging cannot be overly coercive of the jury, either.

Once, a jury in a case that Mr. Galluzzo tried sent a note after several Allen charges that stated, essentially, “We are deadlocked and will remain so until the end of time.” Basically, the jury told the judge that it would be impossible for them to reach a unanimous verdict and that he should stop giving them Allen charges. At that point, the judge declared a mistrial.

Defense attorneys generally consider “hung juries” or mistrials to be victories. After all, prosecutors frequently decide not to try their cases again after having failed to secure convictions the first time, so defendants, as a practical matter, may escape conviction after mistrials. In a high profile case such as this one, one can expect the jurors to be “polled” extensively as to their opinions on the evidence, and the attorneys will attempt to “count the votes” to see whether it was 11-1 in favor of conviction or vice versa, for example. These sorts of inquiries frequently play big roles in prosecutors’ decisions as to whether to try their cases again or simply dismiss the charges after the mistrials.

This trial has in some ways been fairly simple and straightforward, as there were not a lot of witnesses and there was no forensic evidence. However, the main witness’s credibility may have been shaken in the minds of some jurors by some prior inconsistent statements to law enforcement. They jury may also be confused by some of the complainant’s behavior after the alleged sexual assault. There are also some very large and murky issues regarding the nature and scope of consent that could be very much at issue in the jury deliberations.

In sum, Mr. Galluzzo anticipates that there will ultimately be a mistrial on all of the charges in this case, and that the breakdown of votes will be fairly evenly split.* Thus, the prosecution will have a hard decision to make as to whether to try the case over or simply abandon the effort.

* In the alternative, if there is no mistrial, Mr. Galluzzo suspects that there could be a conviction as to one charge only: assaulting Ms. Constand while using drugs to substantially inhibit her ability to consent. To him, the prosecution’s case is strongest as to that charge, and weaker as to the other because there could be questions as to whether she might have consented to sexual contact without the pills that he gave her, or whether she was fully unconscious at the time of the sexual assault. But, he still thinks that a mistrial as to all three charges is probably more likely.

(Note: Mr. Galluzzo will appear on Curtis Silwa’s radio show on June 15 to further discuss the case.)

A typical serious charge in these scenarios is Rape in the Third Degree (Penal Law Section 130.25[2]). That charge makes it a Class E felony for a person over the age of twenty-one years to engage in sexual intercourse with another person less than seventeen years old. This is a strict liability crime and there is no need for the prosecutor to demonstrate any forcible compulsion on the part of the elder person. A conviction for this charge – sometimes referred to as “statutory rape” – carries serious potential jail sentences and mandatory registration as a sex offender. Similarly, Criminal Sexual Act in the Third Degree (Penal Law Section 130.40[2]) makes it a Class E felony for a person older than twenty-one to engage in oral or anal sexual contact with a person under the age of seventeen.

Rape in the Second Degree (Penal Law Section 130.30[1]) is a more serious Class D felony and applies to individuals over the age of eighteen that engage in sexual intercourse with people younger than fifteen years old, and Criminal Sexual Act in the Second Degree (Penal Law Section 130.45[1]) also makes it a Class D felony for a person older than eighteen to engage in oral or anal sexual contact with a person younger than fifteen.

On some occasions, the adult educators are accused of sending lewd or sexually explicit photos, videos, or text messages to the underage students. Those teachers are then potentially facing felony charges of Disseminating Indecent Materials in the Second or First Degree, depending on the content of the messages (Penal Law Sections 235.21 or 235.22).

Sometimes, teachers partake of controlled substances like ecstasy prior to engaging in sexual contact with their underage students, and in those cases, the teachers may face the Class D felony charge of Facilitating a Sex Offense with a Controlled Substance, in violation of Penal Law Section 130.90.

On the other hand, the victimized students can potentially pursue civil lawsuits for damages against the school districts and the teachers themselves. (Of course, the lawsuits against the school districts are more likely to be lucrative because they have insurance and public funds to pay settlements, whereas teachers often become bankrupt in these situations.) There is no need to prove that the underage victim was an “unwilling participant” in the sexual activity because a minor cannot legally consent to sexual contact with an adult. A lawsuit by a victimized student against a school district will not succeed solely because the offending teacher was employed by the district – the victim plaintiff must demonstrate that the district was negligent in the hiring of the teacher (i.e. failed to do a sufficient background check that would have revealed a propensity for such offending behavior), negligent training, negligent retention (failing to discharge the teacher after learning about misconduct prior to the basis for the lawsuit), and/or negligent supervision of the teacher. In short, if the district had reasonable no way of knowing, predicting, or preventing the behavior by the teacher, then the district cannot be held to blame for the teacher’s actions towards the student. The amount of damages can be difficult to predict but is mostly determined by the psychological or psychiatric harm that the student has suffered or can expect to suffer as a result of this victimization.

If you or a loved one have been accused of an improper relationship with a student, or been victimized by a teacher, you should strongly consider contacting the experienced litigators at the Law Office of Matthew Galluzzo. Their team of former prosecutors, including Matthew Galluzzo, a former Manhattan sex crimes prosecutor, has expertise representing people on both sides of this scenario, and can advise you how to best proceed.

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

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

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

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

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