Articles Posted in Assault

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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.

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Sadly, many individuals living in New York City develop sexual compulsions that cause them to rub or grind strangers on the subway system. These frotteurs can be high-functioning professionals that simply need therapy. Just as sadly, though, some individuals are wrongly accused by NYC police officers of serious sexual offenses despite having done nothing more than simply try to get to work on a very crowded train. Both of these categories of individuals need experienced criminal defense representation, as the consequences of these charges can be very serious and have lifelong effects on one’s family situation, future, and employment prospects. The most common criminal charges for this sort of behavior include Forcible Touching (Penal Law 130.52, a Class A misdemeanor), Sexual Abuse in the Third Degree (Penal Law 130.55, a Class B misdemeanor), and Public Lewdness (Penal Law 245.00, a Class B misdemeanor). Our office has defended several individuals accused of these sorts of crimes, and have been successful in either obtaining dismissals or avoiding criminal convictions in exchange for treatment and therapy.

These arrests usually arise in one of two ways. Sometimes a complaining witness notices that they are being touched unlawfully or unusually and alerts a nearby policeman. In those cases, an identification of the arrested person by the complaining witness and an affidavit from the complaining witness are typically necessary to pursue the case in criminal court. Surprisingly though, it is probably more common for the arrests to come as a result of undercover police officers witnessing the acts themselves. The Transit police have undercover officers trained and assigned to identify, follow, and monitor people that they suspect of being on the hunt for victims to sexually abuse or touch in the train system. Typically, these undercover officers are looking for men that are following women in the system, standing on the platform ignoring trains (while waiting for a train that they notice may be carrying vulnerable targets), or “looping” up and down the system (meaning, they travel uptown for a few stations and then travel back downtown in an effort to find a victim). In these cases, affidavits or testimony from the victims of the sexual abuse might not even be necessary.

These arrests cannot be taken lightly as even misdemeanor convictions for the crime of Forcible Touching potentially carry prison sentences of up to one year. Convictions on these charges can also potentially result in registration as a sex offender, which can be extremely onerous and embarrassing. Furthermore, repeat offenders can be charged with the Class E felony of Persistent Sexual Abuse (Penal Law 130.53) and receive state prison sentences. Accordingly, if you or a loved one have been arrested or issued a Desk Appearance Ticket and accused of Forcible Touching or Sexual Abuse on the subway, you should strongly consider immediately contacting an experienced criminal defense attorney and former sex crimes prosecutor with a track record of success in these matters.

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New York Assmeblyman Edward Braunstein, who has previously proposed legislation to combat and criminalize the growing phenomenon of revenge porn, has proposed a new bill relating to the investigation and prosecution of sex crimes. Specifically, he has proposed legislation requiring universities to report rape allegations to local law enforcement. Although this proposal has some appeal, we think that it is important to consider its potential negative side effects.

Without question, far too many allegations of campus-based sexual assault never go anywhere. For one reason, universities and university police officers typically lack the necessary expertise, training or resources to handle these sorts of investigations as ably or professionally as local city/state police or prosecutors. More importantly, perhaps, is the fact that universities are in many ways incentivized to make these cases go away. After all, no university wants to develop a public reputation as a place where rapes happen, and some administrators might even fear that the university could be liable for failing to provide adequate security in some cases (God forbid that a star athlete or child of a wealthy alumnus be accused of such a crime). Accordingly, one should not be surprised to hear tales from some victims of university officials subtly and sometimes not-so-subtly discouraging the victims from pursuing their complaints against fellow students.

Recently, it was suggested by some (not us) that Columbia University bungled (or perhaps intentionally ignored) the investigation of a student-athlete that had had several complaints made against him for sexual assault or misconduct. This proposed bill appears to be in response to that media flap. But would making universities mandatory reporters really help decrease the problem of sexual assault on New York college campuses?

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Yesterday, a client of the firm charged with Assault in the Second Degree, a class D violent felony, had all charges against him dismissed. The client – who had been indicted by a grand jury and was potentially facing up to seven years in state prison – will have no criminal record as a result of this arrest.

If you or a loved one have been arrested and charged with felony assault, you should strongly consider contacting the criminal defense attorneys at Galluzzo & Arnone LLP.

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G&J recently secured a total dismissal of all charges against our client in Manhattan. The client, a foreign investor with a U.S. visa, was charged with multiple felonies for allegedly raping and sexually assaulting a woman in his hotel room. Obviously, he was facing significant state prison time if convicted. However, his attorneys at G&A presented their version of the encounter to prosecutors, and the prosecutors were persuaded to drop all charges.

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Today, a ferry traveling from New Jersey to Pier 11 in Lower Manhattan and carrying 326 passengers (as well as 5 crew members) crashed into the pier at a high rate of speed causing numerous injuries. As of the time of this post, two passengers were listed as being in critical condition. This particular boat, operated by Seastreak LLC, a private ferry company, was involved in a terrible accident in 2003 that killed 11 people. The question presented now is what sort of criminal or civil liability that company or its crew members might be facing as a result of this accident.

As a preliminary matter, it is virtually certain that dozens, if not hundreds, of passengers will be considering lawsuits against Seastreak for negligence. Their attorneys will have to determine why the boat crashed (and may have the assistance of the Coast Guard or law enforcement in determining this question) and whether either the operation or maintenance of that boat somehow fell below acceptable minimum standards. If so, then the passengers injured by the crash can expect significant monetary awards.

Law enforcement may have to determine whether any criminal liability should attach as well. First and foremost, if any of the passengers ultimately die as a result of injuries sustained in the crash, then employees of the company could theoretically be looking at charges of Criminally Negligent Homicide, a Class E felony under Penal Law Section 125.10, or even worse, Manslaughter in the Second Degree, Penal Law Section 125.15(1) a Class C felony.

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Police officers are authorized to use lethal force under various life-threatening scenarios. But sometimes, they make mistakes and shoot the wrong person, or shoot someone under the wrong circumstances. Police officers that make these sorts of tragic mistakes can face a wide variety of criminal charges, the most serious of which are contained in Chapter 125 of the Penal Law. Two common charges are Manslaughter and Criminally Negligent Homicide (Penal Law Section 125.10). The most relevant things to consider are: 1) the facts available to the officer at the time that he made his decision, 2) whether the decision to fire was reasonable under the circumstances, and 3) the harm suffered by the shooting victim.

For example, Ramarley Graham was recently shot and killed because the police officer supposedly believed that Graham had a weapon, though he did not. In the case of Ramarley Graham, the police officer was indicted for first- and second-degree manslaughter (Penal Law Sections 125.15 and 125.20) for recklessly causing the death of a young man in his apartment. Penal Law Chapter 15 explains recklessness thusly: “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” Generally speaking, recklessness is more difficult to prove than negligence, and thus the charge of manslaughter is more serious than the charge of criminally negligent homicide (Manslaughter in the First Degree is a Class B violent felony, and Criminally Negligent Homicide is a Class E felony). Penal Law Chapter 15 further defines negligence: “A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

So, in short, the difference between recklessness and negligence in this context is whether the police officer that fired his weapon consciously disregarded the risk that he was making a mistake and fired anyway, or whether he simply did not realize that there was a risk that he was making a mistake.

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We have previously discussed the law on Assault in the Third Degree (Penal Law Section 120.00), but in our experience, these cases often proceed differently and require a different strategy when they are initiated by Desk Appearance Tickets. A Desk Appearance Ticket (or “DAT”) for Assault in the Third Degree is usually only issued when the arresting police officer thinks that the case should be further investigated by the prosecutor prior to arraignment. Thus, an Assault in the Third Degree via Desk Appearance Ticket often signals to the defense attorney that there may be something suspicious about the underlying proof against the client (so much so that the arresting officer himself was unsure about the guilt of the suspect). Typically, these Desk Appearance Tickets result from complaints made by individuals against people that they know, or from complaints that are made long after the alleged crime, or are issued by police in situations in which it is somewhat unclear to them who might have initiated the fight at issue in the case. On the flip side, these cases can be especially challenging because in cases in which the complainant has a pre-existing relationship with the defendant, we find that the complaining witnesses often have agendas, can be very vindictive and manipulative, and may aggressively demand action from the prosecutor. Therefore, it is important to have a sensible and well-respected attorney to speak rationally to the prosecutor and thereby counter-balance the crazed and forceful demands of the complainant.

In our experience, it is also exceptionally important for people charged with Assault in the Third Degree to hire an aggressive and intelligent defense attorney prior to the arraignment on the Desk Appearance Ticket because the attorney might be able to convince the prosecutor not to pursue the case at all prior to the court date. Sometimes the filing of a cross-complaint against the complaining witness is an appropriate strategy for a defendant in a case like this, as is the proffering of witnesses or the defendant himself prior to the arraignment. Without these sorts of strategies considered prior to the first Desk Appearance Ticket date, a defendant can be virtually assured of having to return to court many many times to resolve the affair. Keep in mind, of course, that Assault in the Third Degree is a serious charge for which jail time can often be a very realistic possibility.

If you or a loved one have been arrested for Assault in the Third Degree (Penal Law Section 120.00), you should strongly consider contacting a team of experienced criminal defense attorneys and former Manhattan prosecutors to represent you and to work on your case prior to your arraignment on the Desk Appearance Ticket.

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Every year, police officers in New York City make thousands of arrests for “domestic violence,” or violent crimes by one person against a family member or romantic partner. (Click here for recent New York state statistics). There are so many arrests of this sort that prosecutors receive specialized training about these cases and every precinct in New York City has a “domestic violence officer” responsible for investigating reports of domestic violence. Also, many counties use specialized domestic violence courts, including the relatively-new “Integrated Domestic Violence” courts. Nonetheless, many people have serious misconceptions about these cases and how they proceed through the criminal justice system.

The most common arrest charges falling under the general umbrella of “domestic violence” include Assault in the Third Degree (Penal Law Section 120.00) and Aggravated Harassment in the Second Degree (Penal Law Section 240.30). Both are Class A misdemeanors punishable by up to a year in prison. Other less-common charges include Strangulation, Stalking, Assault in the Second Degree (Penal Law Section 120.05, a Class D felony), and homicide and manslaughter.

Once a complaint or report about domestic violence is made to the police (usually in the form of a 911 call), an arrest is virtually guaranteed. Indeed, people routinely call the police to say that they were assaulted by their partners but are surprised to learn that the police will actually arrest their assailant. Seemingly, many complainants think that the police will come and simply calm down the situation at home. However, if the complaint is for assault or some other form of violence, an arrest is almost certainly going to happen, even if the complainant changes her mind about the report and begs the police not to arrest her partner/assailant.

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We have previously covered the basics of the recently (2010) enacted set of crimes involving strangulation. As noted, Penal Law section 121.11 states that “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: a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person. Criminal obstruction of breathing or blood circulation is a class A misdemeanor.”

Strangulation in the Second Degree under Penal Law 121.12 states that “A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment. Strangulation in the Second Degree is a class D felony.”

Some lawyers have questioned, however, whether it would be possible to be convicted of an Attempt to Commit the Crime of Strangulation in the Second Degree, or whether such attempt would be completely encapsulated by the misdemeanor charge. For example, suppose the facts were that a man intended to impede the normal breathing or circulation of the blood of another person by applying pressure to the neck of another person and that person did NOT suffer stupor, loss of consciousness for any period of time, or any other physical injury or impairment. That would clearly be a prima facie case of the misdemeanor charge.