Articles Posted in Current Events in Criminal Law (national)

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The viability of the Paz de la Huerta rape case against Harvey Weinstein

Recently, numerous media outlets have published stories suggesting that the NYPD has built a “viable case” of rape against Harvey Weinstein based upon a complaint made by actress Paz de la Huerta. (Specifically, according to a recent Vanity Fair article, the actress claims that Harvey Weinstein raped her in her apartment on two occasions in 2010). Given that dozens of women – mostly Hollywood actresses – have now publicly complained of sexual misconduct by Harvey Weinstein, the public’s desire to see Weinstein punished is incredibly high. The Manhattan District Attorney, Cy Vance, is deservedly under considerable pressure to bring Weinstein to justice. After all, his office made a basically indefensible decision to dismiss a strong sexual assault case against Weinstein based upon a timely and straightforward complaint by a victim which was corroborated by an audiotaped confession and a prompt outcry to a friend. This decision is especially ripe for criticism since Weinstein’s defense attorneys donated money to Vance’s re-election campaign.

However, bringing this new rape case against Weinstein may actually be far more difficult and problematic than this prior sexual assault case against Weinstein that the D.A.’s office chose not to prosecute. What follows is the objective and detached opinion of Matthew Galluzzo, a criminal defense attorney and former prosecutor in the Sex Crimes Unit of the Manhattan District Attorney’s Office.

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After an incredibly long period of deliberation – 52 hours – a Pennsylvania jury recently announced that it could not reach a unanimous decision regarding any of the criminal charges against Bill Cosby involving his alleged sexual assault of Andrea Constand. The judge was forced to declare a mistrial and the prosecutor has already declared that their office intends to retry the case with a new jury. Of course, this now begs the questions: 1) what went wrong for the prosecution, and 2) what could they do differently to get a conviction? Matthew Galluzzo, a criminal defense attorney and former Manhattan sex crimes prosecutor, offers a few thoughts on the subject.

First and foremost, sex crimes cases involving acquaintances are among the most difficult cases in which to secure convictions. Some talking heads in the media seem to think that this case should have been an easy conviction but that presumption simply belies the reality of what happens in criminal court. These types of cases are inherently challenging for prosecutors for several reasons that were at issue here.

To begin, these “he said/she said” sexual assault cases depend enormously on the credibility of the accuser, and the defense attorneys did everything that they should have done as advocates for their client to raise doubts about Ms. Constand. First, they highlighted her inconsistent statements to law enforcement about the incident. Nothing torpedoes a sex crimes case faster than inconsistent reports from the accuser. After all, inconsistent statements also tend to be made more often by liars than by those telling the truth. Inconsistent statements by the complainant suggest that the complainant has little respect for the truth and thus cannot be trusted to tell it at trial under oath. They also tend to suggest that the complainant has a nefarious agenda that causes him or her to “tailor” her testimony to her audience be perceived more favorably or to increase his/her chances of success. Understandably, defense attorneys always pounce on evidence that suggests those things and they did in this case. Specifically, they argued (as they should have) that the complainant was an attention-seeking, money-grubbing liar who had attempted to minimize her prior contacts and relationship with Cosby when initially making her report to law enforcement in an obvious effort to be perceived more favorably by them. They further argued that she had had a consensual romantic relationship with Cosby and only made a report to police when she did not profit from the relationship in the way that she had hoped.

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On June 15, after over thirty hours of deliberations and several requests for read back of testimony, the Cosby jury indicated that it was deadlocked. Matthew Galluzzo, a criminal defense attorney and former Manhattan sex crimes prosecutor, tweeted the night before that he expected the jury to hang (meaning, to be deadlocked). The judge told the jury to continue deliberating (this is called "giving an Allen charge") and denied a defense motion for a mistrial as being premature. However, Mr. Galluzzo expects the jury to be unable to reach a verdict.

In an American criminal case, the jury's decision as to a particular charge must be unanimous, meaning that all twelve jurors must agree as to the verdict (guilty or not guilty) for a specific charge. A jury can convict unanimously on some charges and acquit unanimously on other charges in the same trial (and that happens quite frequently). A jury indicates to the court and judge that it has reached a verdict by sending out a written note that they have reached a verdict, and the jury emerges to announce the verdict in the courtroom.

Sometimes, as is the case in Cosby's trial, a jury sends out a note indicating that the jury cannot agree as to a particular charge (or any charges). Typically, a judge will then tell the jury that they should continue to deliberate. There is a very specific text that judges are usually required to read back to their deadlocked juries, and this text is typically referred to as an "Allen charge" (based upon a Supreme Court case with that name). An Allen charge is meant to encourage the jury to continue to try to reach a unanimous verdict, and reminds the jurors of the importance of arriving at a conclusion in light of the interests of the parties and the time and resources already spent trying the case.

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On June 14, an article in the Washington Post announced that special prosecutor Robert Mueller was investigating whether President Trump had obstructed justice by taking steps to impede the FBI's investigation into possible collusion by his campaign with Russian intelligence agents. Matthew Galluzzo appeared as a legal commentator on Fox 5 News New York to discuss this announcement.

The link is available here:

Report: Special counsel investigating Trump for possible obstruction of justice

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New York City owes much of its energy and excellence to the foreign citizens living and working here. Unfortunately, a visa or green card holder's right to remain in the United States can be seriously jeopardized by a Desk Appearance Ticket, even when the charges are comparatively minor misdemeanors. Many visa holders fail to take these arrests sufficiently seriously because the charges seem minor (like marijuana or subway fare theft) or because the arresting officer tells them "it's no big deal." Truthfully, though, career, educational, and family plans can be completely devastated by even a minor case of walking through the subway gate without paying, so it is absolutely critical that a foreign person arrested and issued a Desk Appearance Ticket retain competent counsel immediately.

In many ways, a Desk Appearance Ticket does not feel like such a big deal. The arrested person is usually handcuffed and taken to a police station where they are fingerprinted. They typically wait a few hours in a holding cell until they are given a piece of paper telling them the date and location of their appearance in court. Before Desk Appearance Tickets became routine, criminal defendants could expect to get "sent downtown" and spend the night in jail before seeing a judge. Obviously, Desk Appearance Tickets are preferable for criminal defendants because they spend less time in custody and also have the opportunity to choose counsel for themselves prior to going to court.

Make no mistake, however: the issuance of a Desk Appearance Ticket is in fact an arrest – it is not "just a ticket". More importantly for visa holders, this event is not going to "fly under the radar" with the immigration agencies. If you were arrested and given a Desk Appearance Ticket, your fingerprints and the arrest charges have been sent to a New York state agency (the Division of Criminal Justice Services) and to the FBI, which maintains a federal nationwide law enforcement database of all arrest events across the United States (the Interstate Identification Index). Visa and green card holders should understand that the immigration agencies, in processing visa renewal requests, access this database to investigate whether the visa applicant has an arrest record. Indeed, some visa holders actually receive emails from Department of Homeland Security (Immigration & Customs Enforcement) agents after their arrests, because the agency was notified of the arrest via the fingerprint database.

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Galluzzo & Arnone is now on Instagram! Follow the adventures of our attorneys and staff as they fight for their clients in state and federal court (and relax after hours).

The Instagram handle is "newyorkdefenselawyers" and we will be updating frequently.

Click below to see and learn more about us:

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G&A defense attorney Matthew Galluzzo recently earned a stunning trial acquittal in a federal sexual abuse case that had been extensively covered in the press. The client, charged with one count each of sexual abuse on an airplane (18 U.S.C. 2244(b)) and assault on an airplane (18 U.S.C. 113(a)(5)), went to trial in Brooklyn federal court (the Eastern District of New York) before Judge Pamela Chen. The jury deliberated about a day and acquitted the client of all charges, accepting his defense that his touching of the complainant had been an involuntary act committed while asleep. Five eyewitnesses testified for the prosecution.

If you or a loved one have been accused of a sex crime, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Arnone. In particular, Matthew Galluzzo is a former Manhattan sex crimes prosecutor and widely recognized expert on the investigation, prosecution, and defense of rape and sexual assault charges.

Some articles about the case from the press:

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H1B visas (allowing foreign citizens with highly specialized expertise in the areas of math, science and engineering, among others, to live and work in the United States) are highly sought after and not easy to get due to the limit – or “cap” – on the number of such visas granted each year. There are many highly-qualified professionals working in New York thanks to the H1B visa program, and they are welcome additions and assets to the community.

Unfortunately, even a minor arrest can derail an application or renewal for an H1B visa. The attorneys at Galluzzo & Arnone have represented many individuals with H1B visas who have received Desk Appearance Tickets for misdemeanor arrests, including, among other things: Theft of Services (PL 165.15), Petit Larceny (PL 155.25), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Mischief (PL 145.00), Unlawful Possession of Marijuana (PL 221.10), and Assault in the Third Degree (PL 120.00). Some of these cases are oftentimes resolved with adjournments in contemplation of dismissal (“ACDs”) that would generally be considered to be favorable dispositions. However, ACDs typically involve six month waiting periods before the cases are dismissed, and any people who need to apply for or renew their H1B visas during that six month period are precluded from doing so (and thus unable to remain in the United States at their chosen and hard-earned job). Put plainly, an H1B visa will not be renewed if a criminal case is pending or if the ACD waiting period is still outsanding. This effect has also been noted in the context of other visa applications, such as F1 and J1 visas.

While these are generally not considered the most serious of cases, for visa holders, even these comparatively minor criminal cases can impact your life, career and renewal applications in a number of other ways. For example, convictions for these crimes can result in job loss, permanent criminal records, deportation or inadmissibility, fines, and potentially even jail time. A criminal case should never be taken lightly, but foreign citizens with visas need to be even more mindful of the consequences of an arrest.

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Matthew Galluzzo, a criminal defense attorney and former Manhattan prosecutor, appeared on Fox 5 New York to share his thoughts and analysis of the judge's decision to grant Adnan Syed a new trial. Adnan Syed's murder conviction was made famous by the NPR podcast "Serial".

The TV segment is available here:

http://www.fox5ny.com/news/167860570-story