One of the great things about living in (and visiting) New York City is the amazing nightlife. The city is home to some of the best nightclubs and bars in the world, including places in the Meatpacking District like Tenjune, 1Oak, The Griffin, Gaslight, Beaumarchais, the Standard (The Top of the Standard and Le Bain), as well as other clubs throughout Manhattan, such as Lavo, Santos Party House, Provocateur, Output, the Jane Hotel, Mehanata, Verboten, Cielo, Webster Hall, the Pyramid Club, the 40/40 Club, and the Marquee, among countless others. Unfortunately, arrests for theft, assault, sexual assault, weapons, and drugs are common at these sorts of establishments, and some unfortunate people are saddled with more than just a hangover after a night partying at these places.
The attorneys at Galluzzo & Arnone LLP have represented dozens of people arrested at nightclubs and bars throughout the city, and our experience as prosecutors and defense attorneys has taught us that certain types of cases are quite common. Through our experience on both sides we have also learned that these types of cases present unique challenges and opportunities for defense attorneys, and have learned how to best take advantage of the unique circumstances that these cases often present.
First, assaults in nightclubs and bars are very common. Alcohol and drug use combined with loud music and packed crowds seems to cause some individuals to act violently, unfortunately. Assault in the Third Degree (Penal Law Section 120.00), a class A misdemeanor punishable by up to one year in jail, is the most common arrest charge for punching or striking another person, but Assault in the Second Degree (Penal Law Section 120.05), a class D violent felony punishable by multiple years in jail, is also typical in cases in which bottles or other objects are used during the assault.
Being falsely accused of rape or a sex crime is a nightmare for anyone, but it presents a particularly complex set of problems for foreign citizens living, working, or visiting New York. Not only are they facing deportation as a potential consequence of a conviction, they also generally have increased difficulty securing bail or being able to travel during the pendency of the case. Additionally, we find that foreign citizens frequently make mistakes in dealing with police officers during sex crimes investigations because they are unfamiliar with the American justice system and do not understand their rights. That is why it is absolutely critical that a foreign citizen suspected or accused of committing a rape or sex crime in New York immediately retain a lawyer to intervene and protect him before it is too late.
The ultimate immigration consequences for a non-citizen are sometimes difficult to predict and involve a multitude of factors, including the precise conviction, the immigration status of the defendant (e.g. green card, visa holder, illegal alien), the date of admission to the United States, and the length of the prison sentence, if any. Generally speaking, though, for a conviction to render the defendant deportable, the crime must fall under one or more of several classifications of crimes. Some of those classifications include “sex crimes against minors,” “crimes involving moral turpitude,” “aggravated felonies,” “crimes of domestic violence,” “crimes against a child,” and “prostitution and vice crimes”. Thus, it can often be necessary for a defense attorney to negotiate a plea bargain whereunder a deportable offense is reduced to a non-deportable offense (our offense has had success with this strategy in the past), or to use the fact of an impending and inevitable deportation as a way to persuade a judge to impose a non-jail sentence.
This resource published by the National Immigration Project pretty accurately summarizes some of the relevant charges, most of which are contained in chapter 130 of the Penal Law (Note: most rape and sexual assault charges in New York are pursued under New York state law, though the authors have experience defending foreign individuals in federal sex crimes cases as well). Some of those common charges include Sexual Abuse in the Third, Second and First Degrees, Rape in the Third, Second and First Degrees, Sexual Misconduct, Prostitution/Promoting Prostitution/Patronizing a Prostitute, and Criminal Sexual Act in the Third, Second and First Degrees. Click here and scroll to learn more about the elements of these charges and what they mean.
Criminal assault charges for non-citizens in New York
As the go-to criminal defense firm for the New York City consulates of France, Australia, Saudi Arabia, Switzerland and Belgium, the attorneys at Galluzzo & Arnone LLP routinely represent foreign citizens charged with criminal assault (including, for example, Assault in the Third Degree [Penal Law 120.00], Assault in the Second Degree [Penal Law 120.05], and Assault in the First Degree [Penal Law 120.10]). These charges are especially problematic for non-citizens as they can result in deportation or future inadmissibility into the United States.
(Though this is a bit of an oversimplification, deportation is the process by which a person is forcibly removed from the United States and barred from returning, whereas a person determined to be "inadmissible" cannot enter or re-enter the United States after leaving).
There has been a media firestorm about NFL running back Ray Rice’s assault of his wife Janay Rice. While exiting an elevator in Atlantic City, NJ, Ray Rice – a powerfully built football player – punched his wife in the face and appeared to knock her unconscious. He then dragged her along the floor of the casino; the entire gruesome episode was captured on videotape and Ray Rice was arrested.
Generally, the reaction from the public and other players has been appropriately scornful of this detestable conduct. After initially suspending him for just a few games (a decision for which the league commissioner, Roger Goodell, received considerable and deserved criticism), the NFL suspended him from playing for a year. His team waived him despite his multi-million dollar contract and importance to their on-field success. Ray Rice’s Nike sponsorship has been canceled and his high jersey even removed from the display case of his high school. If there’s any silver lining to this terrible tragedy, it is that it has forced people to have frank conversations about the problem of domestic violence.
Some people have been wondering aloud, also, about the disposition of the criminal case that arose from this act. Ray Rice was indicted for aggravated assault but ultimately allowed to enter into a pre-trial intervention (or diversion) program, whereby he will avoid jail or even a criminal conviction so long as he attends and successfully completes an anger management program. Also, seemingly, there is no order of protection preventing him from interacting with his wife.
Blog – University Sexual Assaults:
The White House Council announced in January of 2014 their intention to target sexual assault against women and girls, particularly college women, in a report entitled ‘A Renewed Call to Action’. This report referenced a number of recent studies into this seemingly increasing epidemic, including the statistic that one in five women will experience sexual assault or rape while in college. It is also important to note that most victims of sexual assault know their attacker, and that sexual assaults often happen at parties.
Many New Yorkers have read reports in the news media about cases, oftentimes assault cases, which are eligible for enhanced sentencing because the underlying act is treated as a hate crime.
In 2000, The New York State legislature passed new laws providing for stiff prison sentence enhancements for offenders standing convicted of “hate crimes.” Penal Law (“PL”) 485.00. Penal Law section 485.05 defines a hate crime as follows:
§ 485.05 Hate crimes. 1. A person commits a hate crime when he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientationof a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientationof a person, regardless of whether the belief or perception is correct. 2. Proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying the people’s burden under paragraph (a) or (b) of subdivision one of this section.
CPL 485.05 (emphasis added). The “specified offense[s]” noted in subsection one include all of the Assault provisions found in Article 120 of the CPL. PL sec. 485.05(3). If a person is convicted of the specified offense, and the jury finds that the offender or offenders committed the offense “as a hate crime,” the convicted person is eligible to be sentenced under CPL 485.10:
§ 485.10 Sentencing. 1. When a person is convicted of a hate crime pursuant to this article, and the specified offense is a violent felony offense, as defined in section 70.02 of this chapter, the hate crime shall be deemed a violent felony offense. 2. When a person is convicted of a hate crime pursuant to this article and the specified offense is a misdemeanor or a class C, D or E felony, the hate crime shall be deemed to be one category higher than the specified offense the defendant committed, or one category higher than the offense level applicable to the defendant’s conviction for an attempt or conspiracy to commit a specified offense, whichever is applicable. 3. Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class B felony: (a) the maximum term of the indeterminate sentence must be at least six years if the defendant is sentenced pursuant to section 70.00 of this chapter; (b) the term of the determinate sentence must be at least eight years if the defendant is sentenced pursuant to section 70.02 of this chapter; (c) the term of the determinate sentence must be at least twelve years if the defendant is sentenced pursuant to section 70.04 of this chapter; (d) the maximum term of the indeterminate sentence must be at least four years if the defendant is sentenced pursuant to section 70.05 of this chapter; and (e) the maximum term of the indeterminate sentence or the term of the determinate sentence must be at least ten years if the defendant is sentenced pursuant to section 70.06 of this chapter. 4. Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class A-1 felony, the minimum period of the indeterminate sentence shall be not less than twenty years.
PL sec. 485.10 (emphasis added). Using the example of a standard felony assault case, then, we can observe the potential “hate crime” enhancements at work, and note that those enhancements are significant. Assuming (and speculating) that a given defendant in a given case is charged with and convicted of Assault in the second Degree, PL sec. 120.05, a class D violent felony, he could be sentenced as though convicted of a class C violent felony. The most significant aspect of the jump from a “D” to a “C” here is the 8 year difference in the maximum allowable sentence. If a given defendant is sentenced as a first-time offender, then, his exposure jumps from a determinate prison sentence in the range of 2-7 years to a determinate prison sentence in the range of from 3.5 t-15 years, if a second felony offender, from 3-7 to 5-15, and if asecond violent felony offender from 5-7 to 7-15.
If, on the other hand, a given defendant is charged with Assault in the first degree, PL sec. 120.10, aclass B violent felony, his maximum exposure would remain the same, but his minimum exposure would increase by three years (from 5 to 8 years) if a first-time offender, by two years (from 8 to 10 years), if a second felony offender, or by two years (from 10 to 12 years), if a second violent felony offender.
Fig. Sentence Enhancements for Assault as Hate Crime in New York
|Offender Status||Assault 2 (Non-Hate Crime)||Assault 2 (Hate Crime)|
|First Offense||2-7 determinate||3.5-15 determinate|
|Second felony offender||3-7 determinate||5-15 determinate|
|Second violent felony offender||5-7 determinate||7-15 determinate|
|Assault 1 (Non-Hate Crime)||Assault 1 (Hate Crime)|
|First Offense||5-25 determinate||6-25 determinate|
|Second felony offender||8-25 determinate||10-25 determinate|
|Second violent felony offender||10-25 determinate||12-25 determinate|
Additional prosecutorial leverage in plea bargaining are part and parcel to the sentence enhancements. Under some circumstances, then, New York criminal defense attorneys may consider taking such a case to trial in an attempt to challenge the “hate” intent element, rather than advising their clients to plead to the top count of the indictment. This is especially so in the case of those representing clients charged with a “B” violent hate crime. On the other hand, however, the 8-year ceiling increase authorized for offenders convicted of the “D” Assault may cause their attorneys (and, of course, their clients) to think twice about risking trial. If you have been charged with either felony assault as a hate crime in New York or misdemeanor assault as a hate crime in New York, call the experienced attorneys of Galluzzo & Arnone LLP at (212) 918-4661 or email us at email@example.com
New York Assault Attorney Explains Misdemeanor New York Assault Charges.
Assault charges are one of the more commonly prosecuted types of cases. You only need to flip open a newspaper to read about bar fights and domestic violence disputes. These cases can lead to the arrest of one or more parties, and the imposition of serious criminal charges. The most basic of these charges is Assault in the Third Degree. This charge is often leveled against one, both, or in some cases all of the participants in a fight where someone is (not seriously) hurt. Of course, if a participant or an alleged victim is seriously injured, the charges may rise to felony level. This post, however, is designed to give some basic facts about the simple misdemeanor charge.
The third-degree assault offense is set forth in New York PL 120.00(1), which prohibits a person from intentionally, recklessly, or with criminal negligence, causing "physical injury" to another:
§ 120.00 Assault in the third degree. A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor.
Defense Attorney explains Strangulation charges in New York
New York state's Penal Law Chapter 121 contains the strangulation-related charges. These charges often arise in cases that prosecutors would describe as involving domestic violence (a crime committed by a person against his or her romantic partner). They also frequently stem from bar fights or brawls in which one person allegedly puts another person into a headlock or chokehold.
The lowest level offense in this chapter is Penal Law Section 121.11, entitled Criminal Obstruction of Breathing or Blood Circulation. A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she:
Our client – an associate at one of the world's leading investment banks – was arrested for disorderly conduct and allegedly resisting arrest outside of a nightclub in Manhattan. We advised him on how to report this incident to his employer and what his possible FINRA consequences were as a result of this arrest. Ultimately, though, we were able to obtain a total dismissal of these charges for him, and he has had no career consequences as a result of this arrest.
If you are a FINRA-licensed professional facing a criminal case, you should strongly consider contacting the experienced criminal defense and FINRA litigators at Galluzzo & Arnone LLP. Their unique background allows them to give expert advice to financial professionals facing serious professional consequences as a result of an arrest.