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In late 2017, we reported on the enactment of CPL Section 160.59, New York’s newest sealing statute. According to a recent New York Daily News article, however, the benefits of the statute have been largely ignored, which is unfortunate.

In a nutshell, CPL Section 160.59 allows people with certain non-violent/non-sex offense convictions to apply for judicial sealing of their records after a ten year waiting period. The law also allows people with criminal records to apply for sealing for up to as many as two convictions, one of which may be a non-class “A”/non-sex offense/non-violent felony, while those who have been convicted of more than two crimes or more than two felonies are ineligible. The effect of the statute is to render records of convictions unavailable to the public and remove the stigma of having a criminal record after an apparent and demonstrable period of rehabilitation.

While we have personally expressed that the sealing statute did not go as far as it should have in truly expunging the records of low-level offenders, the reality is that passage of CPL 160.59 was unprecedented for the state of New York and has constituted a much needed step in the right direction towards giving people who makes mistakes a much needed second chance. As the Daily News reports, less than 1% of the estimated 600,000 people considered to be eligible for sealing under CPL 160.59’s have taken the opportunity to petition the Courts for help, unfortunately. We would like this to change by creating awareness of the laws passage.

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As criminal defense attorneys, we defend people from all walks of life who have been accused of committing a wide variety of crimes. Here, we discuss two of the more embarrassing charges some of our clients face: Public Lewdness (P.L. § 245.00) and Exposure of a Person (P.L. § 245.01).

P.L. § 245.01 – Exposure of a Person

We’ll deal with this one first. Simply put, Exposure of a Person makes it a violation to expose one’s private parts in public. This statute is fairly straight forward enough.

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Our attorneys have represented dozens of people arrested and/or given Desk Appearance Tickets for cases involving assault allegations. The recent disposition of actor Alec Baldwin’s (most recent) case provides an excellent example of what can happen in a straightforward assault case.

Mr. Baldwin was arrested in November after allegedly punching someone over a parking spot in Manhattan. Mr. Baldwin generally denied punching the other person though he admitted to pushing him. Baldwin was actually given a Desk Appearance Ticket and eventually charged with Attempted Assault in the Third Degree (Penal Law 110/120.00), a Class B misdemeanor, and Harassment in the Second Degree (Penal Law 240.26), a violation. Prosecutors reviewed video surveillance footage, spoke to witnesses, and considered the complainant’s medical records before ultimately making a plea bargain offer to Mr. Baldwin. Under the terms of that deal, which Mr. Baldwin accepted in January 2019, Mr. Baldwin pleaded guilty to Harassment in the Second Degree and will undergo a short anger management program.

By pleading guilty, Mr. Baldwin was convicted of Harassment in the Second Degree. However, this conviction is not a “crime” under New York state law, it is a violation and/or criminal offense. As such, in response to the question, “Have you ever been convicted of a crime,” Mr. Baldwin could answer “no”.  Also, upon completing this short anger management course (typically completed within one day), Mr. Baldwin’s records will be sealed to the public after one year. The most important benefit to this deal, of course, is that Mr. Baldwin avoids the possibility of being convicted of the misdemeanor charge and receiving a possible (though unlikely in this case) sentence of jail.

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This week especially, we observe the life of the great Dr. Martin Luther King Jr. The day should serve as a stark reminder that we must continue to fight against many of the same injustices that Dr. King did. A substantial portion of these injustices acutely manifest themselves in the criminal justice system. As such, we must continue to focus on bail reform, ending the mass incarceration of minorities, evening the criminal justice playing field by instituting better discovery provisions, appointing Judges who come from and understand the dynamics of the communities they preside over, helping prisoners obtain education so they may readjust to life after prison, enacting true expungement mechanisms to remove the life-long handicap of certain criminal convictions and allow for second chances, and more… Much of Dr. King’s Dream has yet to be realized. We all must do our part to ensure that justice is applied equally. Today we should reflect upon and honor everything Dr. King stood for, as well as ask ourselves how we can participate in fulfilling every aspect of his dream. -Galluzzo & Arnone.

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With the advent of smartphones – which arm practically every citizen with a readily available high-definition camera – Unlawful Surveillance has become an incredibly common charge in New York, especially in the populated City. In a nutshell, the charge applies when someone inappropriately records, views or broadcasts another without their consent. And it’s a serious one.

Those who are accused of using cameras of any kind to record into dressing rooms, for example, are generally charged under Penal Law Section 250.45(1) and/or 250.45(2), which applies where a defendant surreptitiously views, broadcasts or records a person dressing or undressing, or the sexual or other intimate parts of a person when such person expects to be in private.

Those who surreptitiously view, broadcast or record someone in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, or shower, among other places, are charged under PL 250.45(3)(a).

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In this continuation from Part I of our discussion on assault, we discuss the sufficiency of allegations of physical injury.

So what constitutes substantial pain and what does not? The Court of Appeals has found sufficient evidence of substantial pain in the following instances:

  • Where victim was struck with a baseball bat resulting in discoloration, swelling and lost sensation to arm;
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Whether it stems from a bar fight, an incident involving road rage, a domestic spat, or even an altercation at the work-place, cases involving charges of Assault in the Third Degree are among the most common – and serious – we see in the City of New York. A Class “A” misdemeanor punishable by up to 1 year in jail, “Assault 3” cases are among the most serious misdemeanors because they involve allegations of physical injury inflicted upon another, and prosecutors thus subject them to increased scrutiny. In this article, we discuss some of the legal components of Assault in the Third Degree, and a powerful tool our team of former prosecutors often uses to attack assault charges prior to trial: challenges to legal sufficiency.

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

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Between 2007 and 2016, over 58,000 unruly passenger incidents were reported on International aircraft in-flight by the International Air Transport Association (IATA). In 2016, the rate was one incident for every 1.424 flights. The majority of reports were Level 1 incidents which are verbal in nature and can usually be dealt with to a successful conclusion by crew using de-escalation training. 12% of reports relate to Level 2 incidents which involve physical aggression to others or damage to the aircraft. Intoxication from alcohol or drugs was identified as a factor in 33% of reported cases. Unruly passenger incidents include violence against crew and other passengers, harassment, verbal abuse, smoking, failure to follow safety instructions and other forms of riotous behavior. Recently, a woman was removed from a Frontier Airlines flight when she attempted to fly with her “emotional support” squirrel and then refused to get off the plane when she was told rodents, including squirrels, are not allowed on Frontier flights. Frontier, like many airlines, has a policy on emotional support and trained service animals allowing cats, dogs and miniature horses. Federal regulations do permit them on airplanes but give the airlines permission to turn away unusual animals, like squirrels. The passenger was advised of the policy and asked to deplane, but when she declined, other passengers were forced to deplane so that authorities could remove the woman from the aircraft.

Although such acts are committed by a tiny minority of passengers, they have a disproportionate impact, create inconvenience, threaten the safety and security of other passengers and crew, and lead to significant operational disruption and costs for airlines. The aircraft cabin is a unique space and it is necessary to recognize the limitations that exist when you are flying in the air in a metal tub. As a result, these sorts of in-flight disturbances frequently result in law enforcement officers becoming involved.

One of the likely reasons for the increasing reports of disruptive passengers is the existence of a gap in international law and the fact that many countries don’t apply their laws to foreign aircraft arriving on their soil. Passenger behavior is subject to the law of the country the plane is registered in. The passengers responsible often walk away and victims of violence can’t always take practical legal actions. Yet, American Federal law bans passengers from interfering with flight crew. Also, certain acts which would be punishable if they occurred in the special maritime and territorial jurisdiction of the United States, defined in 18 U.S.C. § 7, are made criminal under 49 U.S.C. § 46506(1) (formerly 49 U.S.C. App. § 1472(k)(1)) if they occur within the special aircraft jurisdiction of the United States.

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New York City has some of the nicest urban scenery to be found anywhere on Earth. Drones equipped with cameras may seem perfectly suited to photograph these scenes. Generally speaking, drones are becoming increasingly popular, so if you are an enthusiast, it is important to educate yourself on the law, rules and regulations that come with flying drones in the 55,000 square mile area of New York. Unfortunately, flying any sort of (manned or unmanned) aircraft over the city is banned except in certain designated locations (see below for exceptions). Paolo Prosetti, a Swiss tourist, was arrested two weeks ago after he crashed his drone through a 21st floor window in Times Square and tried to retrieve the drone and pay for the damage.

Notably, federal law and regulations take precedence over state and local laws. This means that everyone in the USA must register his drone with the Federal Aviation Administration and follow the FAA’s Special Rule for Model Aircraft.

There are nine major cities in New York State and all of them have made it illegal to fly drones in them (except for commercial drone applications which might get individual permits or licenses). Luckily, New York City allows you to take your drone to the skies in designated parks and model airfields like:

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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.