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

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Appeals (440.10) for Sex Offenders that were Civilly Committed without Being Advised by their Attorneys of That Possibility

Under CPL 440.10, a defendant can ask the trial court that accepted the guilty plea to vacate the conviction if the defendant did not receive the effective assistance of counsel in some way that was not apparent from the trial record. Typical claims of this sort tend to focus on attorney conflicts of interest, failure to advise clients on the immigration consequences of their pleas, failure to interview witnesses or investigate leads, or failing to communicate plea bargain offers.

Article 10 of the New York Mental Health and Hygiene Law gives the state the power to seek the civil commitment of certain convicted sex offenders following their release from prison. In short, a sex offender can serve his sentence for his sex crime but still be kept in custody against his will if it is proven, by a preponderance of the evidence, that he has a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.”

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News reports of high school teachers engaging in illicit acts with underage students are becoming almost routine and regular nowadays. The advent of modern smartphones, the prevalence of texting, Snapchat, and the rise of social media platforms have perhaps facilitated these problematic relationships. Regardless, a teacher accused of having engaged in such inappropriate relationships faces a potential litany of terrible consequences including permanent criminal convictions, sex offender registration, public humiliation and vilification, loss of career and professional licensure, and civil lawsuits for damages. It is thus absolutely critical that those educators accused of such crimes retain competent counsel to guide them through these minefields.

A typical serious charge in these scenarios is Rape in the Third Degree (Penal Law Section 130.25[2]). That charge makes it a Class E felony for a person over the age of twenty-one years to engage in sexual intercourse with another person less than seventeen years old. This is a strict liability crime and there is no need for the prosecutor to demonstrate any forcible compulsion on the part of the elder person. A conviction for this charge – sometimes referred to as "statutory rape" – carries serious potential jail sentences and mandatory registration as a sex offender. Similarly, Criminal Sexual Act in the Third Degree (Penal Law Section 130.40[2]) makes it a Class E felony for a person older than twenty-one to engage in oral or anal sexual contact with a person under the age of seventeen.

Rape in the Second Degree (Penal Law Section 130.30[1]) is a more serious Class D felony and applies to individuals over the age of eighteen that engage in sexual intercourse with people younger than fifteen years old, and Criminal Sexual Act in the Second Degree (Penal Law Section 130.45[1]) also makes it a Class D felony for a person older than eighteen to engage in oral or anal sexual contact with a person younger than fifteen.

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The criminal defense attorneys at the Law Office of Matthew Galluzzo have successfully defended professional athletes against criminal charges in New York City, and have been asked to comment on television and in the news as experts in criminal cases pending against professional athletes such as Ray Rice and Oscar Pistorius. They also understand the unique issues facing professional athletes accused of crimes, such as visa issues, contractual issues, and negative publicity. As such, they are uniquely qualified to represent professional athletes facing criminal cases in New York

Many professional athletes belong to player unions that have labor contracts with their professional sports leagues that dictate suspension procedures for violations of the player conduct rules. (For example, the NBA Collective Bargaining Agreement requires individuals convicted of felony violence to receive minimum suspensions of ten games.) These agreements can sometimes be used to persuade prosecutors to permit plea bargains to lesser offenses so as to avoid these bright-line career penalties that can be unduly harsh. Additionally, sentences that include probation can be impossible for professional athletes that are required to train and compete across the country.

In addition, there are frequently immigration (and therefore, career) consequences for professional athletes. Many foreign professional athletes are able to live and work in the United States pursuant to P-1A visas, and these visas can be jeopardized by criminal arrests and convictions. As the go-to criminal defense attorneys for the New York consulates of France, Australia, Switzerland, Belgium, and Saudi Arabia, Matthew Galluzzo routinely represents foreign citizens and has represented foreign professional athletes. Unlike many criminal defense attorneys, their lawyers are acutely aware of the potential immigration and visa consequences of criminal cases, including the lesser-known consequences, and can help foreign athletes successfully navigate the criminal justice system in such a way as to avoid jeopardizing their playing careers.

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Frequently, non-citizens seeking American visas or renewal of current ones make the mistake of accepting seemingly excellent criminal dispositions without understanding the immigration consequences. For example, people arrested in New York for misdemeanor charges such as possession of marijuana (PL 221.05 or PL 221.10), trespass (PL 140.05 or 140.10), theft of services (PL 165.15), petit larceny/shoplifting (PL 155.25), or possession of a controlled substance (PL 220.03) often receive adjournments in contemplation of dismissal (“ACDs”) at their first court appearances. Under those scenarios, the case is automatically dismissed after a period of six months, assuming certain conditions are met. However, many non-citizens make the mistake of accepting these otherwise favorable dispositions (typically upon the advice of counsel) without recognizing that an American visa cannot be obtained or renewed during the six months “probationary period” of an ACD.

The attorneys at the Law Office of Matthew Galluzzo regularly represent foreign citizens charged with misdemeanors in New York courts. As criminal counsel to the French Consulate and a regular representative of the nations of Belgium, Switzerland, Australia, and Saudi Arabia, their lawyers understand that a regular ACD cannot be accepted by some foreign citizens in cases in which it would be perfectly acceptable for citizens to accept them. The attorneys at the Law Office of Matthew Galluzzo have been successful on many occasions in convincing prosecutors to dismiss charges early in the interest of justice, so that people that have encountered minor arrests in New York can stay in New York, get visas to attend university, or continue to work in New York. If you or a loved one are a non-citizen facing criminal charges in New York (or if you made the mistake of accepting an ACD that you shouldn’t have accepted), you should strongly consider contacting the experienced criminal defense attorneys at The Law Office of Matthew Galluzzo. Their multilingual attorneys can help you navigate the confusing issues facing non-citizens attempting to live, study and/or work in the New York while confronting criminal charges.

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An Attorney's Analysis of Proposed NY Legislation to Upgrade Subway Sexual Assaults to Felonies

Everyone can agree that sexual assaults on the subway are a serious problem in New York City. Recently, Senator Savino (D-Staten Island) proposed legislation that would upgrade the charges for sexual assaults in the subway system from misdemeanors to felonies. Currently, these sexual assaults are generally prosecuted as Sexual Abuse in the Third Degree (a Class B misdemeanor under Penal Law Section 130.55) and Forcible Touching (a Class A misdemeanor under Penal Law Section 130.52). However, it is our opinion that the legislation may not be entirely logical or the most effective approach.

There is a coherent argument to distinguish between sexual assaults on public transportation and sexual assaults that occur in other places; indeed, federal law makes it a felony to sexually assault someone on an international airplane flight under the theory that the victim has no means of escape. However, by that logic, it should be a felony in New York to punch someone in the face on public transportation, and it is not (it's just a misdemeanor Assault in the Third Degree). Why should a momentary lapse of weakness by a person who pats a woman on the derriere be worthy of a felony conviction, when a punch in the face that breaks someone's nose or fractures his cheekbone is only worthy of a misdemeanor? After all, the latter crime involves a more malicious intent on the part of the perpetrator and a greater suffering on the part of the victim, period. In short, Senator Savino's proposed legislation throws the penal code a bit out of balance.

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The New Frontier of Drug Crimes: Silk Road, Agora, and the Dark Web

The traditional business model of drug trafficking, though potentially lucrative, is fraught with peril and obstacles for its participants at all levels. Thanks to fantastic television programs like The Wire and Breaking Bad, many Americans already have a basic understanding of this business model: Transactions are conducted using cash, and regulatory safeguards at banks and other institutions make it difficult for dealers to use their income to make large purchases (thereby necessitating the risky business of money laundering). Transactions are also generally made face-to-face and hand-to-hand, meaning that the dealers and buyers can be fairly easily identified or apprehended by law enforcement.

These sorts of traditional drug dealing operations use levels and levels of intermediaries to protect the chiefs from being directly implicated, but law enforcement officers have routinely been able to force low- and medium-level dealers to “snitch” on their suppliers. Moreover, this business model’s need for a human being to personally deliver contraband makes the buyers and sellers potentially subject to violent acts by thieves or competitors.

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Operating as a major trafficker – NY’s “Kingpin” statute (Penal Law Section 220.77)

A few years ago, the New York Assembly enacted into law a tough new statute designed to increase the penalties for major narcotics traffickers or managers of drug trafficking organizations. Penal Law 220.77, oftentimes referred to as New York’s “kingpin statute,” makes it a Class A-1 felony offense to

  1. act as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
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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.

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Recently, federal law enforcement authorities announced the arrests of 71 people in the New York City area in connection with an alleged child pornography production and distribution ring.

The federal charges most often applied to the creation, manufacture, possession and distribution of obscene materials involving minors are typically the following: 18 USC § 1466A, 18 USC § 2251, 18 USC § 2252, 18 USC § 2252A. The full language of those charges is available below at the end of the article.

Of course, a conviction for any of these crimes can have serious potential consequences. Serious jail time is a very realistic possibility for anyone convicted of any of these crimes, as is registration as a sex offender in your home state. Careers, reputations and families can be ruined. Enormous civil penalties and fines can also be levied against those convicted of these crimes.

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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.

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