Articles Posted in Current Events in Criminal Law (New York)

Published on:

The New York District Attorney’s Office recently announced that a Manhattan grand jury has indicted Harvey Weinstein for additional sexual assault charges relating to a third complainant. Specifically, Mr. Weinstein is facing an additional charge of Criminal Sexual Act in the First Degree (Penal Law Section 130.50). Mr. Weinstein was already facing a charge of Criminal Sexual Act in the First Degree based upon the allegation that he had forced a different woman to perform oral sex upon him against her will, and a separate count of Rape in the First Degree for allegedly raping a second complainant. Interestingly, he is also now facing two counts of Predatory Sexual Assault (Penal Law Section 130.95). These new charges significantly alter the forecast for Mr. Weinstein and seriously hamper his defense for tactical reasons discussed below.

Predatory Sexual Assault charges are very serious Class A-II felonies. They carry mandatory minimum prison sentences of ten years in jail, and a conviction for this crime carries a mandatory maximum sentence of life in prison. (Thus, for example, a person sentenced to an indeterminate prison sentence of ten years to life would be eligible for parole after roughly ten years, and if granted parole would then be on parole for the rest of his life.) These charges can apply in a variety of circumstances, but here, they have been applied because he is accused of committing the crimes of Rape in the First Degree or Criminal Sexual Act in the First Degree against multiple people. See Penal Law Section 130.95(2). Basically, Mr. Weinstein would be convicted of this charge if it is proven that he in fact sexually assaulted more than one of the complainants. (There are two Predatory Sexual Assault counts that presumably apply to different combinations of complainants in this matter).

These charges have an important practical effect on the case (notwithstanding these potential penalties). Specifically, in order to get convictions on these charges, the prosecutor would now have to prove at trial that Weinstein assaulted more than one of the three current complainants in the case. It might at first seem that the prosecutors have made their jobs more difficult by adding these charges, but in actuality, this new evidentiary necessity thwarts an anticipated defense strategy for trial severance.

Published on:

Understanding the Weinstein indictment and the next steps

According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.

It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.

Published on:

Manhattan District Attorney Cyrus R. Vance, Jr. recently announced a change in policy that will soon effect many low-level marijuana offenders in Manhattan. To those who smoke and possess marijuana in New York City, the message was clear: he does not want to prosecute you. The new policy will be aimed at countering the NYPD’s proven disparate treatment of racial minorities in the form of unequal enforcement of the marijuana laws, as well as reduce the number of low-level cases that are handled in the City’s Courts by the thousands. Echoing Vance’s desire to reduce unnecessary arrests and disparity in the enforcement of the law, Mayor Bill De Blasio announced that the NYPD would be required to overhaul it’s marijuana policy as well.

Vance’s policy change comes on the heels of a disturbing (albeit unsurprising) study which revealed that African-Americans are arrested for low-level marijuana offenses at a rate 8 times that of whites in New York City, and 15 times more than white people in Manhattan alone. The critical component of the study of course indicated that both African-American and white folks use marijuana at the same rate.

In light of these (and other) statistics, beginning on August 1, 2018, the Manhattan District Attorney’s Office will simply stop prosecuting low-level criminal cases involving smoking and possession of marijuana, with few exemptions. Yes, you read that correctly: If you are arrested for smoking a marijuana cigarette, joint, blunt or pipe in public, or otherwise possess a small enough quantity of marijuana, the Manhattan DA’s office will not prosecute you as of that date. DA Vance expects that the number of marijuana cases handled by the system annually to be reduced from roughly 5,000 to 200 as a result.

Published on:

Earlier this month, Manhattan District Attorney Cyrus Vance, Jr., announced three new policies to further streamline the criminal justice system and reduce the backlog of cases in New York County’s Criminal Courts. As of February 1, 2018, the Manhattan DA’s Office began declining to prosecute, with certain exceptions, all New York City subway farebeat (“turnstile jump”) and unlicensed general vendor cases. That same date, the Manhattan DA’s office instituted a sweeping desk appearance ticket policy in which first-arrestees who are issued tickets for low-level, non-violent misdemeanor charges are given the option of attending a two to four-hour “pre-arraignment diversion program” in lieu of being formally prosecuted in a court of law. Upon proof of program completion, the Manhattan DA’s Office promises to then decline to prosecute entirely – meaning, no formal charges will be brought. Only those who opt out of the program (or otherwise fail to complete it) will be directed to appear in court to face prosecution. Simply put – first arrestees for low-level offenses will now have the option of going to class instead of court.

While this new policy would appear to be a noble effort on the part of the Manhattan District Attorney to benefit all, this new first-arrest policy will have an unintended but disastrous effect on arrestees who (a) work for FDIC-insured banks or intend to do so in the future, and (b) are charged with petit larceny (or any theft-related offense). Whereas our lawyers normally strive to secure adjournments in contemplation of dismissal (“ACD”) for first-arrestee clients charged with low-level theft-related offenses, these delayed dismissals can have a disastrous effect on current or prospective employees of FDIC-insured institutions.

As we have explained carefully in a previous blog, Section 19 of the Federal Deposit Insurance Act prohibits, without the prior written consent of the Federal Deposit Insurance Corporation, a person convicted of a criminal offense involving dishonesty, breach of trust, money laundering,

Published on:

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.

Published on:

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:

Published on:

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:

Published on:

Many professionals – especially those that work in the finance industry – are unpleasantly surprised when records of a prior case they believed to be sealed pursuant to an ACD have been discovered by prospective employers who conduct background checks. This is often accompanied by embarrassing and/or devastating consequences. How can this happen if the case was “sealed,” and what, if anything, can be done?

First, some background: When you are arrested for any state crime (such as misdemeanor shoplifting, theft of services, assault, or possession of drugs), you get fingerprinted by the police, which creates an “arrest event” in the system. If this is your first time being arrested, it also creates a New York State ID number (“NYSID”) which is associated with your fingerprints (some individuals who work in sensitive industries like law enforcement, finance/securities, and teaching may have already been issued a NYSID for certification). The arrest event not only contains your fingerprints, but also some details about your case – namely, the date, time, precinct of arrest, and the criminal charge(s) as designated by the arresting officer. The arrest event is then simultaneously sent to both the Division of Criminal Justice Services (the New York state agency responsible for the maintenance of criminal records) and the Federal Bureau of Investigations, which maintains a database of criminal records from across the country called the “Interstate Identification Index.”

An ACD (adjournment in contemplation of dismissal, as described by New York Criminal Procedure Law Sections 170.50 and 170.55) is typically a great result for a criminal defendant; all the defendant has to do is stay out of trouble for a measure of time and possibly perform some community service, then the case is dismissed and sealed pursuant to CPL Section 160.55. The problem is that the authority for this sealing provision is found in state law, and does not govern the conduct of the Federal Bureau of Investigation, which maintains its own database of criminal records. Thus, when the state agency updates its records after ACD dismissal, there is no guarantee that the federal database will also be updated to reflect the sealing of the case. Certain individuals (like FINRA professionals) are screened by employment checks against this federal database, to which FINRA has access. Thus, unless affirmative steps are taken to ensure that the FBI database is updated to reflect the dismissal and sealing of the state law charges, there is no reason to have any confidence that a background check of a FINRA professional will be “safe” for a professional that has received an ACD.

Published on:

Matthew Galluzzo, a former Manhattan sex crimes prosecutor, recently appeared on MSNBC to talk about whether the women currently accusing Donald Trump of sexual assault should be discredited on account of the delay in their reporting. The link is available here:

http://www.msnbc.com/msnbc-news/watch/why-sex-assault-victims-sometimes-delay-reporting-787086915704

Published on:

Matthew Galluzzo, a criminal defense attorney, after a six week trial in the Bronx, recently convinced a jury to acquit his defendant of the most serious murder charge on the indictment. The client was instead convicted of a lesser manslaughter charge, meaning that he will not be facing the life sentence that he would have faced upon a conviction for murder. Sentencing is scheduled for August 11, 2016.

A link to a news report about the case is available below. If you or your a loved one is facing homicide-related charges, you should seriously consider retaining the services of Matthew Galluzzo and/or his partner Eric Arnone.