Articles Posted in Homicide and Murder

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Last week, criminal defense attorney Matthew Galluzzo successfully persuaded a federal judge in Manhattan to sentence his client to a very favorable sentence. The client was guilty of selling fentanyl that led to the overdose death of a customer. Though there was no mandatory minimum for this offense, the Federal Sentencing Guidelines recommended a sentence of between 234 and 240 months in prison (i.e. approximately 20 years). The client had an extensive criminal record including, among other things, two prior felonies for drug trafficking and a conviction for a violent felony assault.

Mr. Galluzzo worked with a social worker to describe the client’s extremely difficult upbringing, which included parental abuse, poverty, homelessness, the foster care system, and drug abuse as a pre-teen. Mr. Galluzzo convinced the judge that pursuant to the recent Second Circuit decision in US v. Gibson, the client was not a Career Offender under the Federal Sentencing Guidelines despite his two prior convictions for NY Penal Law Section 220.39, resulting in his classification as a Criminal History Category IV instead of VI. He also convincingly described the overdose as a terrible accident and expressed his client’s remorse to the judge.

Ultimately, the Court granted a significant downward variance and gave him a sentence equal to roughly half that recommended by the Sentencing Guidelines, 120 months (10 years). The client was pleased with the result and felt that his voice had been heard. The case was US v. Huertero, 20-cr-580 (ER) before Judge Ramos.

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Federal prosecutors sometimes have a powerful statute to use against drug sellers whose products cause fatal overdoses. Specifically, 21 U.S.C. Section 841 – the most common federal narcotics distribution charge – includes enhanced penalties for situations in which the defendants have sold or distributed narcotics that caused overdose deaths. A charge with no mandatory minimum under normal circumstances might carry a 20-year minimum where it can be proven that the drug that was sold caused someone to die. Some prior felons can also face potential mandatory life sentences for selling narcotics that cause fatalities. Even in a case in which the prosecution may not be able to prove beyond a reasonable doubt that the narcotics caused a death, the prosecution may be able to secure a very stiff sentence under the federal Sentencing Guidelines, where the evidence proves by a preponderance of the evidence that the defendant’s product is responsible.

First, the government has to prove that the defendant actually sold drugs to the deceased person. Law enforcement frequently uses text messages and phone records to prove transactions in these cases. Law enforcement also frequently attempts to purchase narcotics themselves (undercover) from the target/suspect. That way, in the very least, the government can prove a charge of 21 U.S.C. Section 841, if not the overdose aspect.

Many drug overdoses are polydrug situations, meaning that the deceased person ingested more than one drug recently. In those cases, it can be more complicated to ascertain the precise “but for” cause of death. Certain drugs may interact with each other in unclear ways, and other drugs may work together in aggregate towards the same toxidrome. It is critical to have the assistance of a toxicological expert and an attorney familiar with some of the issues in overdose analysis. Many if not most of the federal prosecutions in this sphere nowadays involve fentanyl, and that drug is indeed far more potent, prevalent and deadly than most others. But that doesn’t mean that fentanyl – even when it shows in the victim’s bloodwork – is always the but for cause of death.

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Federal murder cases are some of the most obviously serious cases in American criminal law. Under some circumstances, federal murder charges can involve the death penalty (even in states where the death penalty is illegal at the state level).

The most common two murder charges at the federal level are contained in 18 U.S.C. § 1111 and § 1117. The former describes federal murder as being the unlawful and killing of another human being with “malice aforethought.” Spur-of-the-moment killings thus might be charged as manslaughter instead, though “malice aforethought” does not require more than a moment’s reflection on the part of the actor. The charge is broken down into two degrees: first and second degree murder.

First degree murder involves those intentional killings perpetrated by “poison, lying in wait, any other kind of willful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed…”  First degree murder is punishable by death or life in prison.

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The case of Jamill Jones and whether he should be charged with homicide.

Recently, an unfortunate tragedy occurred in Queens resulting in a man’s death. A tourist from Florida named Sandor Szabo requested an Uber to take him from a family member’s wedding. In an apparently intoxicated effort to find his Uber, Mr. Szabo banged on several nearby cars with his fists. He eventually banged on the car belonging to Jamill Jones, an assistant coach for the Wake Forest University men’s basketball team. Mr. Jones got out of his car and punched Szabo one time in the face. Szabo fell to the ground and hit his head on the pavement. Jones drove away. Szabo was taken to the hospital and later died from the injury. See “Wake Forest coach could face murder charges,” NY Post, August 10, 2018.

Jones was identified and surrendered himself to police. As of yet, he has only been charged with a misdemeanor assault in violation of Penal Law Section 120.00 (Assault in the Third Degree, to be precise). That charge makes it a crime, punishable by up to one year in prison, to intentionally cause physical injury to another person. This is a typical charge for a single punch to the face. The fact that Mr. Szabo tragically died, however, makes the situation more complicated from a legal perspective. The New York Post article suggests that Mr. Jones could face murder charges, but that is perhaps imprecise or incorrect. Murder charges (such as the most common charge of Murder in the Second Degree, in violation of Penal Law Section 125.25) would require a showing that Jones not only killed Szabo, but that he intended to kill Szabo. That seems unlikely given that he only punched Szabo once.

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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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The most serious crimes in New York state law are classified as Class A-I felonies; one of these Class A-I felonies is Murder in the First Degree, Penal Law Section 125.27. The majority of homicides in New York are prosecuted pursuant to Penal Law Section 125.25 (Murder in the Second Degree). However, especially violent and terrible murders – those murders that involve “aggravating factors” – are prosecuted as first-degree murders. The penalty for a conviction for Murder in the First Degree includes, potentially, life without the possibility of parole. (The minimum possible sentence is from 20 years to life.)

Recently, a nanny accused of murdering two children under her care, Yoselyn Ortega, was indicted for Murder in the First Degree. The basis for the first-degree charge comes from 125.27(1)(a)(xi): “the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan.”

Basically, a person is guilty of Murder in the First Degree when they commit Murder in the Second Degree – the intentional killing of another person, but do so with an “aggravating factor”. In addition to the factor applied to Ms. Ortega’s case, other aggravating factors for first-degree charges include:

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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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The horrendous killing and dismemberment of Leiby Kletzky and subsequent arrest of Levi Aron has shocked New York. In light of recent reports which suggest that Aron has been hallucinating and hearing voices, the question arises, “Will Aron actually be tried or be subject to normal criminal procedures for this murder?” The arraignment judge apparently ordered Aron to undergo psychiatric testing. What this means is that his lawyer most likely asked for a psychiatric examination under Article 730 of the Criminal Procedure Law.

§ 730.10 Fitness to proceed; definitions. As used in this article, the following terms have the following meanings: 1. "Incapacitated person" means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense. 2. "Order of examination" means an order issued to an appropriate director by a criminal court wherein a criminal action is pending against a defendant, or by a family court pursuant to section 322.1 of the family court act wherein a juvenile delinquency proceeding is pending against a juvenile, directing that such person be examined for the purpose of determining if he is an incapacitated person.

Thus, the issue that must be determined by the examination is whether Aron is an “incapacitated person.” If Aron is, in fact, an incapacitated person, then he may be subject to procedures under section 730.50, under which he could be committed to the custody of the commissioner of mental health. He would be entitled to hearings to determine whether he is still an incapacitated person a year after the initial order, and then one every two years or so following the first hearing. If, on the other hand, he is not committed, then the prosecution would continue and the criminal action against him “must proceed.”

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The arrest of a friend or loved one often happens unexpectedly. The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set. This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.

First of all, the question may arise, “What is bail?” Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections. In most cases, that would be an amount of money designated by the judge in either cash or bond. The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all. This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges. Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes. Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance. This is sometimes called “ROR.” In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender. The criteria that the judge will consider is set forth in the Criminal Procedure Law:

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Many juveniles in New York City are arrested every week and given a family court summons for a crime that would otherwise subject him or her to a permanent criminal record. A juvenile is “defined” in the Penal Law as a person under the age of sixteen years old. To be more precise, it is actually a defense to a criminal charge that the defendant was less than sixteen at the time the offense was allegedly committed. See Penal Law 30.00. Often times juveniles are arrested for such offenses as Criminal Possession of Marijuana in the Fifth Degree, Penal Law 221.10, Unlawful Possession of Marijuana, Penal Law 221.05, Petit Larceny, Penal Law 155.25, Assault in the Third Degree, Penal Law 120.00, Criminal Mischief, Penal Law 145.00, and Making Graffiti, Penal Law 145.60. However, in other cases, the charges can be more serious, especially where a victim has been killed or seriously injured or a felony charge, such as a drug sale, are involved.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters. A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing. The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing. It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases. If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases). The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility. The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call The Law Office of Matthew Galluzzo.

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