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A huge percentage of the criminal cases in federal court involve charges relating to the trafficking of drugs, narcotics, and controlled substances. Convictions for these crimes carry serious penalties and sometimes involve mandatory minimum prison sentences. Usually, a person accused in federal court of possessing or trafficking controlled substances is charged with violating 21 USC 841, which makes it a crime to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Section 841(b) sets forth the potential penalties for this offense, and it depends primarily upon the quantity of controlled substance possessed/distributed in the aggregate. What matters for sentencing purposes is not the number of transactions or the frequency of the activity, but the total volume of drugs possessed or distributed over time. If the quantities involved surpass a certain threshold (depending on the drug), as set forth in Section 841(b), then there can be serious mandatory minimum prison sentences for the offenders. Those mandatory minimum sentences notwithstanding, the potential penalties for these offenses are governed by the complex system set forth in the federal sentencing guidelines. For more on the federal sentencing guidelines, click here.

Federal cases involving narcotics charges typically are the result of long-term investigations by the FBI, the DEA, Homeland Security, or a joint task force involving local police like the NYPD. As such, there are oftentimes wiretaps, surveillance tapes, confidential informants, and search warrants. An effective defense requires an attorney who can review the evidence and the law enforcement processes to determine whether any constitutional rights were violated.

Many unfortunate individuals never actually possessed or distributed narcotics but nonetheless find themselves charged in federal court on account of the conspiracy laws encapsulated in 21 USC 846. That statute explains: “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Basically, this means that a person who plays any knowing role whatsoever in another person’s illegal business is criminally liable for the entirety of that conduct. For example, a person who introduces two people for the purpose of a drug transaction can be expected to be charged as an equal to whatever drug transaction ultimately occurred. A person who acts as a lookout during a drug transaction could be treated as equally culpable to the seller of the narcotics. A person who simply rents an apartment to someone whom he knows is dealing drugs from the apartment could be guilty of “conspiring” to assist the dealer. These are just a few examples of people who could be charged in ways that seem unfair in light of their relatively modest role in the crime. We have however defended many girlfriends of drug dealers and casual acquaintances of true criminals who have found themselves knee-deep in serious federal cases after having had only fleeting or tangential involvement in the cases. But this is the reality of federal conspiracy law.

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Here’s one question we are consistently asked: “Do I need to hire a lawyer for my desk appearance?” The short answer is “yes” and “absolutely.” In this blog, we discuss why this is.

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.

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From at least in or about January 2016, up to and including July 2018, in New York and New Jersey, Mikuki Suen, 43, Jian Min Huang, 42, Songhua Qu, 54, Kin Lui Chen, 53, and Fangrang Qu, 31 and others known and unknown allegedly smuggled hundreds of thousands of pairs of fake Nike Air Jordan sneakers. The five accused fake-shoes traffickers were arrested for having counterfeited over $70 million in Fake Nike shoes and sold them to buyers on the U.S. market. The NYPD and the Department of Homeland Security received the help of a confidential source who helped make numerous purchases during the investigation. This confidential source has been a law enforcement source for approximately two years.

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 13th 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.

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Today, Judge Steven O’Neill (who presided over Cosby’s recent sexual assault trial in Pennsylvania), sentenced Cosby to a sentence of 3-10 years in prison. The court had previously classified him as a sexually violent predator following a prior hearing. The court defended this decision by explaining that although the evidence of Cosby’s guilt had been “overwhelming,” including his own civil deposition, Cosby had refused to acknowledge his guilt or express any remorse for his actions. His attorneys had requested a sentence of house arrest, citing Cosby’s poor health and functional blindness, but the court did not agree. Cosby plans to appeal his conviction and sentence, and could conceivably stay free on bail until his appeals are resolved, though the court may deny the request that he be free pending his appeal.

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

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

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Perhaps someday, the New York Assembly will legalize sex work (several political candidates have recently promised to take steps toward legalization).  For now, however, it is still a Class B misdemeanor in New York to “engage or agree or offer to engage in sexual conduct with another person in return for a fee.” Penal Law § 230.00. Similarly, it is illegal to patronize a prostitute, meaning that it is a misdemeanor to “pay a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him or her, or to pay or agree to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person shall engage in sexual conduct with him or her.” Penal Law §§ 230.02 and 230.04. Of course, it is also illegal to promote prostitution (i.e. be a pimp or madam), which means to “knowingly cause or aid a person to commit or engage in prostitution, procure or solicit patrons for prostitution, provide persons or premises for prostitution purposes, or operate or assist in the operation of a house of prostitution or a prostitution enterprise, or engage in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution.” Penal Law §§ 230.15 and 230.20.

Law enforcement has long sought, with mixed results, to combat prostitution offenses in New York City. Back when prostitutes used to walk the streets of notorious neighborhoods in Manhattan, police would arrest prostitutes for just “loitering for the purpose of prostitution” (basically, walking on the sidewalk dressed like a prostitute talking to potential customers about tricks). Police would also go undercover and pose as johns to get prostitutes to make illegal offers of sexual conduct for fees. Police officers continue to pose as prostitutes to entice johns to make illegal offers, though nowadays they are more likely to find a target inside of a nice establishment in the city instead of on the sidewalk.  Indeed, undercover police officers dressed as attractive prostitutes often target middle aged men alone at hotel bars and proposition them to see if they will “take the bait,” so to speak. These sting victims oftentimes have legitimate entrapment defenses, but not after already having been humiliated and having had their livelihoods placed in danger as a result of the arrests.

With the advent of the internet, much of the prostitution business moved online to websites like Craigslist and Backpage. Prostitutes and escorts would post ads on these sites and johns would simply call them to make appointments. The postings were so numerous that despite some law enforcement efforts to make undercover arrests of these prostitutes – and perhaps more effectively, arrests of johns via false prostitution ads – the sheer volume of ads on these sites made it impossible to realistically stop the trade via undercover operations. Ultimately, the “escort” sections of these sites were shut down by law enforcement threats to hold the managers of these sites criminally and civilly liable.

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Last week, the criminal defense attorneys at Galluzzo & Arnone LLP persuaded the prosecutors at the Brooklyn DA.’s office to dismiss serious Rape in the First Degree charges levied against our client. Matthew Galluzzo, a former Manhattan sex crimes prosecutor, carefully presented to the prosecutors his client’s version of events along with evidence of the complainant’s repeated lies and motive to fabricate the allegation. The prosecutors were convinced of our client’s innocence and dismissed the charges. Our client, a foreign student earning a graduate degree in the U.S. with an F1 visa, was thus able to obtain his OPT extension after the dismissal of the charges. He is now elated to be finishing his studies and finding work in America.

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 Galluzzo & Arnone LLP. 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.

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After fighting aggressively for over five months – both in and out of New York Criminal Court – Eric Arnone has secured outright dismissal of all eight charges filed against his 20-year-old client, who faced over 25 years in prison if convicted.

In this challenging case for the defense, Arnone’s client had been falsely accused by multiple complaining witnesses of robbing them of their cell phones while brandishing weapons. These serious allegations were made even more difficult to overcome in light of an allegation that a cell phones belonging to one of the complaining witnesses was recovered from the client at the scene. The client was further accused of acting in concert with a co-defendant to strike one of the complaining witnesses in the head with a broken bottle, thereby causing serious injury. A number of people at the scene were treated by EMS and some were hospitalized.

After conducting an extensive investigation on his client’s behalf, Arnone was able to affirmatively disprove that the robbery ever took place, and demonstrated to prosecutors that any physical force undertaken by his clients was indeed justified under New York law. Thankfully, the defense investigation succeeded in turning up invaluable surveillance camera footage which contradicted the account of the alleged victims.

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Today, a federal jury in Virginia found President Trump’s former campaign manager, Paul Manafort, guilty of eight of the eighteen crimes contained in an indictment filed against him. Specifically, Manafort was found guilty of five tax fraud charges, one charge of hiding foreign bank accounts and two counts of bank fraud. The question now is how much jail time he will receive from the sentencing judge.

As a preliminary matter, for the purposes of this analysis, we assume that Mr. Manafort will not be pardoned by the President. Also, we assume that Mr. Manafort will not be convicted of any other charges. The judge in this trial declared a mistrial as to ten of the eighteen counts in the indictment on account of the jury’s inability to decide guilt or innocence on those charges, but that does not mean that Manafort is clear of those charges. Indeed, prosecutors could attempt to convict him again with a new jury. However, I expect that will not happen, as the prosecutors are likely satisfied by the result, and convicting Manafort on the remaining charges would not really change things very much.

Federal sentencing can be extraordinarily complex and is often very uncertain. By statute, a sentencing court must impose a sentence “sufficient, but not greater than necessary,” to serve the ends of justice. 18 U.S.C. § 3553(a). A sentencing judge is obviously constrained by the statutory maximums and minimums for the crimes of conviction, but oftentimes, the crimes have enormously wide sentencing possibilities (for example, the bank fraud charge for which Manafort was convicted has a potential statutory sentence of between zero and thirty years in prison, 18 U.S.C. 1344). So, federal judges look to the U.S. Sentencing Guidelines, promulgated by the federal government.

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The case of Jamill Jones and whether he should be charged with homicide.

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.

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In this blog, we continue our discussion of the common criminal charges people face when accused of Making Graffiti.

CRIMINAL MISCHIEF

In Part 1 of this series, we discussed the various elements of the crimes of Making Graffiti and Possession of Graffiti Instruments, two charges which often go hand in hand in these types of cases. However, in cases where actual damage is caused to property, arrestees may find themselves faced with the charge of “Criminal Mischief” [Penal Law §145.00] (note that the Graffiti statute only requires intent to damage property, whereas this statute requires actual damage be caused). Once again, any argument that graffiti is “improving” property, absent permission by the property owner, will fail and graffiti that defaces property will be deemed to also damage it. Any damage to property, regardless of the dollar amount of such damage, would fall under Criminal Mischief in the Fourth Degree, which is a class “A” misdemeanor punishable by up to one year in jail. In cases where damage is alleged to exceed $250.00, the charges may be elevated to Criminal Mischief in the Third Degree, a Class “E” felony which is punishable up to 1 and 1/3 – 4 years in jail for a first time offender. The addition of these charges can sometimes be problematic for those who seek to preserve their records and change the landscape of any plea negotiation.