Articles Posted in Homicide and Murder

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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 Galluzzo & Arnone LLP.

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In addition to prohibiting attempts to commit crimes (for example, where a person walks into a bank armed with a gun intending on holding up a teller, but is thwarted by a security guard before he can obtain any property) the law also punishes agreements to commit crimes. Thus, where two or more people have the specific intent that a crime be performed, and agree to engage in or cause a crime to be performed, those people can be charged in New York with any one of six degrees of the crime of Conspiracy, as long as at least one of the members of the agreement has committed an “overt act” in furtherance of the agreed upon crime. New York Penal Law Article 105 breaks conspiracy down into varying degrees based on the classification and degree of the agreed upon or “object” crime, and the age of one or more of the participants.

The core of conspiracy is the illicit agreement. There is no requirement that a prosecutor prove the exact language of an agreement to commit a crime, and obviously there is no requirement that the agreement be written or recorded anywhere. In fact, prosecutors have a lot of leeway in proving this element as the existence of an agreement can be inferred from other facts. The charge of conspiracy is a powerful tool employed by prosecutors because it is relatively easy for them to prove; it often only takes the word of one informant to take down ten and sometimes even twenty individuals who are somehow associated with each other in one fell swoop. The charge allows law enforcement to cast a wide net, which unfortunately often means that the little fish find themselves lumped together on the same page of an indictment with the big fish, since the law allows people who have committed carrying degrees of conduct with respect to the “agreement” to be treated the same for charging purposes. Even worse, sometimes people who have committed nothing illegal find themselves swept up in the net as well.

To better understand the concept of conspiracy, consider the following scenario: Roger and Cindy decide that they are going to rob a bank next week. They agree that Cindy will drive Roger to the bank where Roger will slip a note to a teller which says “hand over $500. I’ve got a gun in my pocket don’t make me use it.” Roger knows there are probably going to be cameras inside of the bank so he decides to buy a ski mask to cover up his face during the robbery. Roger goes to the shopping mall by himself and purchases a black ski mask. At this point, both Roger and Cindy are on the hook for Conspiracy in the Fifth degree without even having stepped foot in the bank because they have agreed to commit a felony (Robbery in the Third Degree in this case) and at least one of the parties to the agreement has committed an overt act in furtherance of the conspiracy (Roger bought the mask).

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Most commonly, a person is guilty of Murder in the Second Degree, Penal Law Section 125.25, when he intentionally causes the death of another person. (There are other ways that one can be guilty of this charge as well, but this is by far the most common.) A person acts "intentionally" in homicide cases when it is his conscious objective to achieve another person's death.

Murder in the Second Degree is a Class A-1 felony punishable by a minimum indeterminate sentence of from 20 years to life. Some lesser homicide-related charges include Manslaughter in the First Degree, Penal Law Section 125.20, a Class B violent felony punishable by a determinate sentence between 5 and 25 years, and Manslaughter in the Second Degree, Penal Law Section 125.15, a Class C violent felony punishable by a determinate sentence between 3.5 and 15 years in prison.

People charged with Murder in the Second Degree frequently employ "mitigation defenses" whereby they do not deny that they are ultimately criminally responsible for another person's death, but instead argue that they are not guilty of the Class A-I violent felony. Basically, they are hoping to be convicted of a lesser charge such as Manslaughter in the First Degree or Manslaughter in the Second Degree, which carry much lower sentences. For a comparison of the potential sentence differences between a Class A-1 violent felony and a Class B or Class C violent felony, see here.

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On Tuesday, February 16, the Appellate Division, First Department, reversed the 2008 conviction of Freddy Rodriguez. Rodriguez had been convicted in Bronx County Supreme Court of manslaughter, vehicular manslaughter, and two counts each of assault in the second degree, vehicular assault in the second degree, and DWI. The full text of the decision is available here.

The prosecution presented evidence that the defendant got into a parked delivery truck without permission and, while intoxicated, caused it to roll downhill through an intersection and strike three persons (killing one child and seriously injuring two other people). The defendant testified that he observed the parked truck suddenly start rolling downhill, and that he jumped into the moving vehicle in a heroic, but ultimately unsuccessful, attempt to prevent it from causing harm.

The majority (by 3-2 vote) overturned the conviction because the trial judge declined to charge the jury on the defense of justification, provided in Penal Law Section 35.05: