New York skyline and picture of Attorneys
Former New York Prosecutor Aggressive Representation With
Over 20 Years of Experience
The National Trial Lawyers
AVVO
AVVO
AVVO
AVVO
AVVO
Expertise
abc News
AP
CNN
Fortune
Fox News Channel
NY1
New York Post
Reuters
The Wall Street Journal
Published on:

Federal prosecutors sometimes have a powerful statute to use against drug sellers whose products cause fatal overdoses. Specifically, 21 U.S.C. Section 841 – the most common federal narcotics distribution charge – includes enhanced penalties for situations in which the defendants have sold or distributed narcotics that caused overdose deaths. A charge with no mandatory minimum under normal circumstances might carry a 20-year minimum where it can be proven that the drug that was sold caused someone to die. Some prior felons can also face potential mandatory life sentences for selling narcotics that cause fatalities. Even in a case in which the prosecution may not be able to prove beyond a reasonable doubt that the narcotics caused a death, the prosecution may be able to secure a very stiff sentence under the federal Sentencing Guidelines, where the evidence proves by a preponderance of the evidence that the defendant’s product is responsible.

First, the government has to prove that the defendant actually sold drugs to the deceased person. Law enforcement frequently uses text messages and phone records to prove transactions in these cases. Law enforcement also frequently attempts to purchase narcotics themselves (undercover) from the target/suspect. That way, in the very least, the government can prove a charge of 21 U.S.C. Section 841, if not the overdose aspect.

Many drug overdoses are polydrug situations, meaning that the deceased person ingested more than one drug recently. In those cases, it can be more complicated to ascertain the precise “but for” cause of death. Certain drugs may interact with each other in unclear ways, and other drugs may work together in aggregate towards the same toxidrome. It is critical to have the assistance of a toxicological expert and an attorney familiar with some of the issues in overdose analysis. Many if not most of the federal prosecutions in this sphere nowadays involve fentanyl, and that drug is indeed far more potent, prevalent and deadly than most others. But that doesn’t mean that fentanyl – even when it shows in the victim’s bloodwork – is always the but for cause of death.

Published on:

Last week, a client of the Law Office of Matthew Galluzzo PLLC was very pleased to receive a very lenient sentence in a federal case involving charges of 18 U.S.C. Section 922(g). Our client – a 49-year-old man with several prior (but old) felony convictions – was arrested after shooting another person in the leg following a dispute on a Brooklyn sidewalk. The federal government charged him violating 18 U.S.C. Section 922(g) for possessing ammunition and having previously been convicted of a felony. The charge carries a maximum penalty of ten years in prison.

The entire incident was captured on surveillance tape from nearby buildings, and a witness identified our client as the shooter. Initially, the prosecutors sought a sentence near the maximum, between 8 and 10 years in prison. After a lengthy period of negotiation, the client’s attorney, Matthew Galluzzo, secured a plea agreement for the client with a sentencing range of between 33-41 months under the Federal Sentencing Guidelines. However, following the client’s guilty plea, it was up to the federal judge to decide his ultimate sentence (the Sentencing Guidelines are advisory but not mandatory).

Prior to the sentencing hearing, Mr. Galluzzo submitted a lengthy memorandum detailing the client’s difficult upbring, his long period of productive employment, his supportive family network, his remorse for the crime, and the terrible conditions the client had endured at MDC Brooklyn during the pendency of the case. The federal judge (Judge Donnelly) was thus persuaded to give our client a downward variance far below the sentencing Guidelines, in sentencing him to 24 months in prison. Given the time that he has already spent in custody, that amounts to a sentence only slightly longer than time served. The client was thrilled was this result and with the prospect of returning home to his wife and son soon.

Published on:

Following her conviction at trial in the Southern District of New York for various federal charges relating to the sex trafficking of minors, disgraced Jeffrey Epstein associate Ghislaine Maxwell received a sentence of 20 years in prison. She will get credit towards that sentence for the time she has already spent in prison, and assuming she receives the maximum amount of good time credit for her behavior in custody, she will probably only serve about 85% of that sentence, or 17 years.

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

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

Published on:

Recently, Matthew Galluzzo, an experienced federal criminal defense attorney and criminal appellate lawyer, was appointed by a federal court to represent an individual previously sentenced to 48 years in prison in connection with two armed robberies in the 1990s. The client, Leonard Johnson, had been so harshly penalized in part because of the now outdated laws relating to the “stacking” of federal firearm sentences pursuant to 18 U.S.C. Section 924(c). Mr. Johnson filed a pro se motion for reconsideration under 18 U.S.C. Section 3582(c), and Mr. Galluzzo was appointed to supplement that appeal and improve upon it with his legal expertise.

Previously, judges were required to impose 25-year consecutive sentences on convictions for 924(c) firearm charges when the defendants had previous convictions for 924(c). However, the problem with this law is that a person who committed two violations of 924(c) would be sentenced to a 25-year mandatory minimum consecutive sentence, even if they committed that second 924(c) violation before being convicted of the first 924(c). That is precisely what happened to Mr. Johnson: he was arrested in North Carolina for a bank robbery with a firearm, and then charged shortly thereafter with another robbery with a firearm in New York. Even though he had not yet been convicted of a 924(c) charge when he committed the robbery in New York, he got the mandatory minimum consecutive 25-year sentence because the other 924(c) crime happened in North Carolina (and he was convicted in that case) before being sentenced in New York.

Congress clarified this issue recently such that in order for the mandatory consecutive 25-year sentence to apply, the first conviction for 924(c) had to have been final before the commission of the second 924(c) crime. Judges then generally have discretion to modify sentences imposed under the old scheme. United States v. Ballard, 2021 WL 3285009, at *4-*5 (S.D.N.Y. Aug. 2, 2021); 18 U.S.C. Section 3582. Mr. Galluzzo and Mr. Johnson argued that Mr. Johnson had undergone significant rehabilitation, that he suffered from a variety of health ailments, and that the requested sentence modification still constituted sufficient punishment for his offenses, in which no one was injured.

Published on:

Yesterday, during the Oscars award show in Los Angeles, comedian Chris Rock – the emcee/host of the event – made a joke about Jada Pinkett Smith’s hair loss. Will Smith, her husband and a famous actor, promptly walked onstage and smacked Rock hard in the face. Smith then sat back in his seat and cursed repeatedly at Rock. Obviously, this happened in California, so California state law applies to Smith’s slap. Apparently, Chris Rock has decided not to file any criminal charges or make any police reports in connection with the event, which was obviously witnessed by millions of people on live television.

This interesting and unexpected exchange provides a fun example to consider New York criminal law: What charges, if any, might have applied to this slap had it happened onstage in New York?

The most significant plausible charge here would be the Class A misdemeanor or Assault in the Third Degree (Penal Law Section 120.00). That statute makes it a misdemeanor punishable by up to a year in jail to intentionally cause physical injury to another person. Here, however, it does not seem that Chris Rock suffered any physical injury significant enough to justify the charge. Indeed, although he was obviously dazed and it appeared to be a fairly hard slap, Rock carried on with his emcee duties and even made a few quips about what had happened. A physical injury, as defined by New York law, is supposed to be “substantial pain” and/or “impairment of a bodily function.” Surely Rock felt some pain from the slap, but it appears to have been too temporary to have really justified an assault charge under New York law.

Published on:

Extradition is the process by which a person wanted for (or convicted of) a crime in another country is seized by local law enforcement and delivered to the nation seeking to prosecute. The United States has extradition treaties with most of the other nations of the world. See 18 U.S.C. 3181. Each of these treaties is unique, however. So, before determining whether a person on American soil can or will be apprehended and extradited, the applicable treaty must be read and examined.

Generally speaking, if a foreign nation suspects that a person it wants to prosecute is currently on American soil, it will send a request for an arrest of that person to American federal law enforcement. If the U.S. government determines that its treaty with the other nation requires it to deliver to that nation a person currently on American soil, an American federal prosecutor will seek an arrest warrant and then an extradition certification for that person.

Once the person is in custody, the accused can attempt to prevent the transfer to the requesting nation. As a practical matter, it is normally difficult to succeed in preventing the transfer. The trial of the person’s guilt or innocence is not had on American soil – that happens in the requesting nation. In deciding whether to certify an extradition, an American court’s review is limited to determining: (1) whether the court has jurisdiction; (2) whether the offense charged is covered by the applicable treaty; (3) whether that treaty is in force; and (4) whether there is sufficient evidence to support a finding of probable cause for the charges. 31 U.S.C. § 3184.

Published on:

After a long trial followed by over forty hours of jury deliberations, Ghislaine Maxwell finally stands convicted of several federal charges relating to the sexual abuse of minors. Ms. Maxwell somewhat curiously chose not to testify in her own defense, and she now faces a sentence of up to 65 years in federal prison. Ms. Maxwell’s fight is far from over, but ultimately it will almost certainly lead to one final choice: cooperate with the government or die in prison.

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

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

Published on:

Platinum selling rap artist Fetty Wap (real name Willie Junior Maxwell II) was arrested and arraigned on October 29 pursuant to a federal indictment charging him and five other men with Conspiracy to Distribute Narcotics (the other five men were also charged with Use of Firearms in Connection with a Drug Crime). The charges are incredibly serious and Fetty Wap faces very significant jail time.

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.

Published on:

It was recently announced by the New York Attorney General’s Office that disgraced former New York governor Andrew Cuomo would be criminally prosecuted for an alleged groping of a female staffer at the governor’s mansion in Albany. 

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

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