Articles Posted in Recent Significant New York Decisions

Published on:

On March 23, Matthew Galluzzo appeared on Fox 5 as an expert legal commentator to discuss the Brooklyn District Attorney’s decision to recommend a non-jail sentence for Peter Liang, a former police officer convicted of manslaughter for accidentally killing Akai Gurley in a Brooklyn housing project.

A link to the TV segment and interview is available here:

DA: No prison for Peter Liang in manslaughter of Akai Gurley

Published on:


The authors of this blog represent an individual that recently had a significant charge dismissed against her by the Court of Appeals, New York’s highest state appeals court. The case involved a very interesting and complicated question concerning the proper scope of prosecutions pursuant to the Organized Crime Control Act, pursuant to NY Penal Law Section 460.00 et seq. Fortunately for our client, she will no longer have to face these serious Class B felony charges. The full text of the decision is below. Furthermore, if you or a loved one are facing charges of Enterprise Corruption, you should seriously consider contacting an experienced criminal defense attorney with a proven track record of success in this area.
Font Size: increase font decrease font

People v. Western Express International Inc., No. 156

New York State Court of Appeals

No. 156

New York Law Journal

10-19-2012
Cite as: People v. Western Express International Inc., No. 156, NYLJ 1202575459447, at *1 (Ct. of App., Decided October 18, 2012)

Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion.

Decided October 18, 2012

Jan Hoth, for appellant Latta.

Submitted by Marianne Karas, for appellant Vassilenko.

Allen Fallek, for appellant Roach.

Matthew J. Galluzzo, for appellant Perez.

David M. Cohn, for respondent.

*1

Jonathan Lippman, Chief Judge:

Appellants have been indicted for enterprise corruption (Penal Law §460.20 [1] [a]), a class B felony, based in essential part on their commission of numerous predicate offenses.1 There was proof before the grand jury that three of them-Douglas Latta, Lyndon Roach and Angela Perez –

*2

repeatedly purchased stolen credit card data which they then used for fraudulent purposes, and that the remaining appellant, Vadim Vassilenko, through the company he controlled, defendant Western Express International, Inc. (Western Express), facilitated transactions by which the purloined credit card data was transferred.

Appellants’ conduct, the People claim, was part of a larger enterprise to traffic in stolen credit card information. To make out the corrupt enterprise, the People adduced before the grand jury proof that Eastern European vendors of stolen credit card data engaged in internet transactions with buyers in New York. There was also proof that, in consummating these transactions, buyers and sellers sometimes availed themselves of services offered by Western Express through its publicly accessible internet web sites. While Western Express’s menu of services – i.e., check cashing, mail receiving, issuing money orders, digital currency exchange, and Russian/English translation – was superficially unremarkable, the services themselves being legal and admitting of legitimate utility in the conduct of international transactions, there was evidence that some Western Express customers, among them defendants Latta, Roach and Perez, used the company’s services for “carding” purposes, i.e., to traffic in stolen credit card information.

The People, in presenting the matter to the grand jury, dwelt principally on the carders’ use of Western Express’s digital currency exchange service. Western Express, having

*3

purchased large sums of the unregulated internet currencies EGold and Webmoney, was an authorized vendor of those forms of tender. For a commission of between two and five percent, the company would transfer into a customer internet account held in an assumed name digital currency purchased from it by the customer with US dollars. The digital currency could then be, and on occasion was, transferred to pay for stolen credit card information, after which the vendor would sell the digital currency received in payment back to Western Express for its value in another digital currency or US Dollars, with Western Express taking an additional commission. This transactional pattern recommended itself for money laundering purposes by reason of the circumstance that E-currency was not government regulated and that international transactions using it went largely unscrutinized.

There was evidence that Western Express was not a neutral observer of this use of its services; its employees offered advice on how to structure transactions to avoid detection and defendant Vassilenko, the company’s president, recognizing that a significant portion of Western Express’s business was from “carding” transactions,2 actively sought the patronage of carders. Carder business was encouraged by postings on the Western Express web sites and there was proof that Vassilenko attempted (evidently unsuccessfully) to advertise Western Express’s services on Carder Planet, a members-only web site devoted exclusively to facilitating

*4

illegal carding activities.

Supreme Court granted appellants’ respective motions to dismiss the subject indictment’s enterprise corruption count upon the ground that the proof before the grand jury, even when viewed most favorably to the People, did not make out the existence of a “criminal enterprise.” As is here relevant, guilt of enterprise corruption under New York’s Organized Crime Control Act (OCCA) (Penal Law §460.00 et seq.) requires proof that the accused “when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise … intentionally conducts or participates in the affairs of [the] enterprise by participating in a pattern of criminal activity” (Penal Law §460.20 [1] [a]). For OCCA purposes a “criminal enterprise” is “a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents” (Penal Law §460.10 [3]). In dismissing the enterprise corruption count, Supreme Court focused upon the absence of proof of an “ascertainable structure distinct from a pattern of criminal activity”:

“Here, the People have failed to even articulate-much less adduce evidence proving-any system of authority or hierarchy in which the defendants participated … [W]hat the People allege are a series of arms-length business transactions-admittedly extensive and, if the People’s allegations are true, illegal-conducted by a variety of organizations and individuals, each operating independently

*5

and with no overarching structure or system of authority. In essence, the People have described an illegal industry rather than a corrupt enterprise, the criminal parallel of a typical legitimate industry consisting of producers, wholesalers, distributors, retail outlets, and credit suppliers, each of [whom] has a unique but independent role in the industry.”

In reversing and reinstating the enterprise corruption count (85 AD3d 1 [1st Dept 2011]), the Appellate Division, while acknowledging that there was no evidence of a traditionally structured, i.e., hierarchical, entity, theorized that Vassilenko had used Western Express to create a structured enterprise the purpose of which was to “actively encourage more and larger transactions by its participants on an ongoing basis” (id. at 14). The evidence, said the Court, permitted the inference that defendants knowingly played roles in the enterprise even though, for the most part, they had no personal interaction (id.). Two Justices dissented, expressing the view that the requisite “ascertainable structure” to the alleged enterprise had not been demonstrated, even to the bare bones extent necessary to sustain the enterprise corruption count to trial. The dissenters found compelling the absence of “evidence of any collective decision-making or coordination with respect to the purported enterprise’s activities or of any overarching structure of authority or hierarchy in which defendants participated” (id. at 19). One of the dissenting Justices granted appellants’ separate applications for permission to appeal to this Court. We now reverse and reinstate the orders of Supreme Court dismissing the enterprise corruption count as

*6

against appellants.

New York’s OCCA was enacted in 1986 to afford state prosecutors a means of exacting heightened penalties for criminal activity referable to or generative of structured criminal enterprises (see Penal Law §460.00). Those enterprises were understood to present a distinct evil by reason of their unique capacity to plan and carry out sophisticated crimes on an ongoing basis while insulating their leadership from detection and prosecution (see id.; People v. Besser, 96 NY2d 136, 142 [2001]). The Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC §1961 et seq.) had, of course, for some time enabled federal prosecutors to prosecute enterprise corruption as such, but until the enactment of the OCCA there was no New York State analogue.

The common challenge posed both federal and state legislators in penalizing enterprise corruption as a separate crime was to delineate the circumstances under which conduct already fitting under a criminal definition would additionally be subject to prosecution and more serious penalization for its connection to a criminal organization. To justify the superadded penalties for participation in a corrupt enterprise, and concomitantly to avoid sweeping relatively minor offenders into complex multi-defendant, multi-count prosecutions entailing a risk of draconian punishment, it was necessary to distinguish between what on the one hand were merely patterns of criminal conduct and what on the other were patterns of such conduct demonstrably designed to achieve the purposes and promote the

*7

interests of organized, structurally distinct criminal entities. Accordingly, both RICO and the OCCA require the prosecution to prove, in addition to a pattern of criminal activity, the existence of a separate criminal enterprise to which that pattern of activity is beneficially connected (see United States v. Turkette, 452 US 576, 583 [1981]; Penal Law §§460.20 [1]; 460.10 [3]). While RICO does not explicitly require proof of the enterprise’s structural integrity, it is settled that a qualifying enterprise must have structure (Boyle v. United States, 556 US 938, 940-941 [2009]). And, as noted, the OCCA, which is assertedly of more narrow application than RICO (Penal Law §460.00),3 makes the requirement of “an ascertainable structure distinct from a pattern of criminal activity” express in its definition of “criminal enterprise” (Penal Law §460.10 [3]). Both statutes demand or have been understood to demand proof of an association possessing a continuity of existence, criminal purpose, and structure – which is to say, of constancy and capacity exceeding the individual crimes committed under the association’s auspices or for its purposes (id.; Boyle, 556 US at 946).

There is no question that the People presented as to each appellant considerable evidence of a pattern of illegal activity. The issue to be decided is whether they also presented evidence from which a petit jury could reasonably

*8

infer (see People v. Bello, 92 NY2d 523, 525 [1998]) that that activity bore the requisite relation to a distinct criminal enterprise-a “group of persons” seeking a “common purpose” and associated in an ascertainably structured entity. The People and the Appellate Division majority proposed a structure composed of buyers and sellers of stolen credit card information arrayed around Western Express’s hub-like web sites, drawn there by reason of the sites’ menu of facilitative services. As Supreme Court perceptively observed, however, this does no more than describe a prevalent pattern evidently organic to the “carding” market; it is how that business often happens to be configured given the needs and interests of the individual market participants. It is, however, not indicative of a distinct, structured criminal enterprise. There is no hint that any of the market participants acted except for and according to their own particular interests,4 much less that their actions within the illicit market were somehow connected to the workings of a structured, purposeful criminal organization.

The People urge that a criminal enterprise need not be hierarchical to be structured and that structure may be inferred from patterns of criminal conduct. While both of these propositions may be true in theory, it remains that under the OCCA a “common purpose” is required and the structure of a criminal enterprise must be “ascertainable.” Here these conditions are not met. The presented evidence was indicative

*9

of no more than the manner in which international transactions in stolen credit card data were commonly conducted, with or without the use of Western Express’s services5; it did not support the further inference of a distinct, beneficially related criminal enterprise.

It is true that in Boyle the RICO requirement of enterprise structure was deemed satisfied simply by proof of the underlying pattern of criminal activity and the inference of structure that that proof would bear (see 556 US at 947-948). The OCCA, unlike RICO, however, specifically demands that the structure be distinct from the predicate illicit pattern, and not surprisingly there are no New York cases in which the requisite structure has been inferred simply from an underlying pattern. Moreover, Boyle involved a ring of thieves whose relatively constant membership met from time to time to plan and execute bank heists, the proceeds of which they shared (see id. at 941). There was, then, some evidence from which a continuing cooperative criminal enterprise possessed of a common purpose and some, albeit loose, structure could be inferred. Here, although there was evidence of many arms’ length transactions, there was no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a “criminal enterprise” within the meaning of Penal Law §460.10 (3).

Doubtless, the internet may be used to facilitate crime, and we do not exclude the possibility that a web site

*10

singularly preoccupied with processing a screened clientele’s illicit transactions could be understood as elemental to and reflective of a criminal enterprise. But crimes committed by resort to cyber means are not invariably referrable to distinct nefarious enterprises, and the web sites here involved do not permit the inference of an overarching criminal purpose or organization; while Western Express may have sought to make its web sites attractive to carders, the sites themselves presented simply as publicly accessible loci for the conduct of business, the legality of which turned in the end upon the independent agendas of individual users. To the extent that the usage was for illegal purposes, it reflected the existence of a prevalent black market but did not reasonably justify the additional inference necessary to the viability of the proposed enterprise corruption prosecution, that there was within that market an enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and the orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated.

*11

Eugene F. Pigott, Jr., J.(dissenting):

The days of traditional organized crime families seem to be fading. Instead, in today’s modern world, criminal organizations now vary in size and even operate on a global span by way of the computer. Criminal organizations operating on the internet do so without any notion of a hierarchy or any formalized decision-making process. The New York State Legislature, recognizing that organized crime is evolving, has expressly permitted courts and prosecutors to apply the Enterprise Corruption statute (Penal Law §460.20 [1] [a]), in their discretion, to organizations that engage in a pattern of criminal activity and that possess any sort of “ascertainable structure” (see Penal Law §460.00).

The majority correctly summarizes the Grand Jury presentation by the People, noting the following: (1) defendant Western Express purchases “large sums of the unregulated internet currenc[y]”; (2) it then transfers this money to customers with “assumed name” accounts; (3) those “customers” then buy stolen credit card information with this unregulated money; and (4) the “customer” then sells the currency back to Western Express obtaining U.S. dollars in return with Western Express taking an additional commission. As the majority notes,

*12

this is simply a digital form of money laundering.

My colleagues conclude that no “ascertainable structure” was presented to the Grand Jury in this case because, although there was a “prevalent black market” for stolen credit card information, within that market there was no “enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated” (majority op at 11). I find no such requirement in the statute.

The People allege that a cybercrime group (which the People termed the Western Express Cybercrime Group), was formed. The group included a pre-existing corporation, Western Express International, Inc., that acted as the “money mover” for the other members of the group. Those other members included “vendors” and “buyers” who trafficked in stolen credit card numbers and other stolen personal identifying information.

The group acted with a common purpose to engage in conduct constituting the crime, among others, of trafficking stolen information, while avoiding detection by law enforcement. Specifically, the vendors and buyers, through Western Express, were permitted to conduct anonymous transactions, via the internet and by other means, using sophisticated payment schemes. Western Express further assisted the buyers and vendors by helping structure the transactions to avoid federal reporting requirements. For instance, via computer, Western Express employees advised certain members to structure wire transfers in small amounts under various names. Thus, although the members had their own self-interest to profit from the

*13

criminal activity, they also acted for the benefit of both the vendors and buyers. Indeed, all of the participants of the group were acting together for the intended result and common goal of ensuring that all parties to and proceeds of the transactions remain virtually untraceable.

The purpose in enacting the Enterprise Corruption statute “was to address the particular and cumulative harm posed by persons who band together in complex criminal organizations” (People v. Besser, 96 NY2d 136, 142 [2001]). Here, Western Express and the other group members banded together in a way that was distinct from a simply buy-sell transaction on the black market. Rather, the parties acted in an organized way, or, in other words by an “ascertainable structure”, which allowed the members to be more successful in effecting their criminal purpose and to avoid detection from law enforcement for several years.

I would, therefore, affirm the order of the Appellate Division.

1. These included scheme to defraud, conspiracy, grand larceny, money laundering, possession of stolen property, and falsifying business records. No issue is before us respecting the sufficiency of the counts charging these offenses; this appeal concerns no more than the sufficiency of the evidence offered in support of the enterprise corruption count.

2. Vassilenko estimated that 5 percent of his business was from carding transactions. The People contend that the actual percentage was much higher.

3. As is here relevant the Legislature in enacting the OCCA was careful to explain that “[t]he organized crime control act is a statute of comparable purpose [to that of RICO] but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons. Because of its more rigorous definitions, this act will not apply to some situations encompassed within comparable statutes in other jurisdictions” (Penal Law §460.00 [emphasis supplied]).

4. We note that, while the Appellate Division offered that the common purpose of the purported enterprise was to encourage more and larger criminal transactions, there was no proof that Western Express’s customers availed themselves of the company’s services with any objective other than the expedient conduct of their own individual transactions.

5. There are numerous providers of such services and, in fact, after Western Express’s demise, its carder clientele simply switched to different providers of comparable services.

Order, insofar as appealed from, reversed and orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated. Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion.

Published on:

On June 14, 2004, night club owner Neville Wells struck with his vehicle and and killed 37-year-old Judith Gubernikoff on Manhattan’s Lower East Side. A grand jury charged him with one count of murder in the second degree and assault in the first degree (both under depraved indifference theories), and one count each of vehicular manslaughter in the second degree, vehicular assault in the second degree, and assault in the second degree.

The defendant “benched” the case and a trial was held without a jury before the Hon. Richard Carruthers beginning on May 3, 2005. According to the trial transcript, Wells blew through a red light and hit the vehicle in which Ms. Gubernikoff and her father were riding. Eyewitnesses stated that Wells was driving very fast at the time of the accident, completely disregarded the semaphore in the intersection, and was completely incoherent immediately after the accident. In fact, Wells’ blood alcohol content at the time he was tested shortly after the accident was between .25% and .27%, which is more than three times the legal limit.

After trial, Wells was convicted of Murder in the Second Degree under a “depraved indifference” theory and sentenced by the judge to concurrent indeterminate prison terms of from seventeen years to life. Wells appealed his conviction directly to the Supreme Court, Appellate Division, First Department, arguing that “that the evidence [was] insufficient to sustain conviction of murder in the second degree and assault in the second degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct.” See People v. Wells, 53 A.D. 3d 181 (1st Dep’t 2008). Additionally, before his appeal was decided in the intermediate appellate court, New York’s highest court, the Court of Appeals, decided People v. Feingold, 7 N.Y.3d 288 (2006), which overturned People v. Register 60 N.Y.2d 270 (1983). After Feingold, the standard for depraved indifference crimes to require courts to look at the mental state from a subjective point of view, finding guilty only where the particular defendant demonstrates “‘a willingness to act not because [he] intends harm, but because [he] simply doesn’t care whether grievous harm results or not . . . . A defendant must possess an “utter disregard for the value of human life . . . embodied in conduct that is so wanton, so deficient in a moral sense of concern, and so blameworthy as to render the actor as culpable as one’ who intends the result of his acts.” Wells v. Perez, 10 Civ. 1107 (S.D.N.Y. 2010) (Report and Recommendation of Francis IV, J.).

Published on:

Criminal Possession of a Controlled Substance in the Third Degree: Possession with the Intent to Sell. PL 220.16(1).

cocaine_hcl3

Cocaine

A common felony in New York is Criminal Possession of a Controlled Substance in the Third Degree, or Possession with the Intent to Sell (New York Penal Law Section 220.16[1]). Interestingly, possessing a controlled substance with the intent to sell it is a Class B felony, which means that it is just as a serious as selling a small quantity of a controlled substance (see Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39 [sentencing chart]). There is no minimum weight or amount of drugs required under this crime. Indeed, one can be found guilty of this crime even when he possesses a miniscule amount of drugs, so long as the prosecution can prove that the person intended to sell those drugs.

Published on:

On March 31, 2010, the Second Circuit Court of Appeals issued a landmark decision in which it held that a New York state sentencing law that gave trial judges the discretion to sentence repeat felony offenders to life sentences was unconstitutional. See Besser v. Walsh, 2010 U.S. App. Lexis 6704 (2nd Cir. Mar. 31, 2010). The decision is significant for many reasons, and it will be interesting to see how prosecutors and the New York state legislature responds.

Previously, a criminal defendant convicted of a felony was eligible for "discretionary persistent felony offender" sentencing if he had two prior felony convictions for which he had received sentences of one year (or more) in jail. See Penal Law Section 70.10. Then, if the court decided that the "history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision indicate that extended incarceration and life-time supervision will best serve the public interest," the court could sentence the defendant to a sentence ranging from 15 years to life to 25 years to life. Id.

Many defendants sentenced to life sentences as "discretionary persistent felony offenders" unsuccessfully challenged the constitutionality of the law in New York state appellate courts. However, in 2004, the U.S. Supreme Court issued a decision – Blakely v. Washington, 542 U.S. 296 (2004) – that laid the groundwork for Besser. In that case, the Supreme Court decided that a Washington state statute that permitted judges to enhance sentences where they found "aggravating factors" was unconstitutional, in that it violated the Sixth Amendment by allowing judges to sentence defendants based upon facts that were not expressly determined by juries. The Second Circuit relied on this decision in Besser, explaining: "the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York's [discretionary predicate felony offender] statute." Besser v. Walsh, 2010 U.S. App. Lexis 6704, at *4 (2nd Cir. Mar. 31, 2010).

Published on:

Switchblade
Attorney employs technical defense to win Acquittal in Criminal Possession of a Weapon Case. Matthew Galluzzo, of Galluzzo & Arnone LLP and the newyorkcriminaldefenseblawg.com recently won an jury acquittal in Manhattan for the firm’s client who had been charged with possessing a switchblade knife. The facts of the case were relatively straightforward. One morning in October 2009 the defendant was about to board a New York City subway train carrying what he believed to be a perfectly legal knife on his waistband. Police observed him with the knife attached to his belt in plain view, arrested him, and charged him with a variation of Criminal Possession of a Weapon in the Fourth Degree, Penal Law section 265.01.

At trial, Galluzzo conceded the facts of the arrest and that the defendant possessed the knife in question. The defense employed was simple, yet effective: the knife was not a switchblade.

Penal Law section 265.01 reads as follows:

Published on:

Yesterday the Appellate Division, First Department decided In re: Tatiana N., N.Y.L.J. (1st Dep’t April 8, 2010). The facts of the case were somewhat interesting:

“This juvenile delinquency proceeding arose from events that occurred at a movie theater on East 161st Street in the Bronx, in which a family was subjected to a moviegoer’s worst nightmare: a group of rowdy, uncontrolled teenagers sat near them and disrupted their enjoyment of the movie, and then, having ignored or mocked requests to behave properly and been ejected from the movie theater, lay in wait for the family outside the theater in order to surround, threaten and attack them when they emerged from the theater.

On November 24, 2007, appellant Tatiana N. and her co-respondent Terrence M., accompanied by a number of other youths, arrived at the theater at approximately 10 p.m. Complainants J.F. and R.W., along with J.F.’s 24-year-old daughter and her two-year-old son, were watching a movie that was about two-thirds under way. The youths sat near the family and began making crude remarks, using their cell phones, and being noisy and disruptive. J.F. and then R.W. asked them “to please keep the noise down.” Some unpleasant remarks were offered in response, which J.F. and R.W. initially disregarded, until, after a subsequent request to keep the noise down, the group responded by becoming aggressive and cursing, saying “[t]he [h]ell with you,” “[f]___ you,” and “[s]hut up.” R.W. then left his seat to go to the lobby to complain, brushing Terrence’s arm or cell phone in the process. The teenagers followed him out. J.F., concerned for R.W.’s safety, followed as well.

Published on:

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:

Published on:

In People v. Ortiz, 2010 NY Slip Op 00387, the First Department overturned a man’s burglary conviction on account of numerous prejudicial trial errors. First, the court noted that prosecuting attorney improperly impeached the defendant by implying that his initial plea of not guilty to certain past convictions followed by a subsequent guilty plea implied that he was dishonest. Of course, most, if not all criminal defendants will initially enter a plea of not guilty, even if they fully intend to take responsibility for their actions, so as to allow both sides to come together with all of the relevant information necessary to make a decision on plea negotiations or decide on going to trial. Thus, the prosecutor’s use of the defendant’s not guilty plea was unfair and unfounded. As put by the court: “This questioning not only tended to draw an improper inference of dishonesty, but also violated the court’s Sandoval ruling, which only permitted elicitation of the existence of defendant’s prior convictions.”

Next, the prosecutor introduced a mugshot photograph of the defendant’s girlfriend and asked the defendant about her own criminal record. The Court chastised the government for this guilt-by-association tactic: “This evidence had no purpose but to suggest that defendant was associated with a disreputable person (see People v Cheatham, 158 AD2d 934, 935 [1990]).” Id.

Finally, the prosecutor made improper remarks on summation, including an assertion that the defendant “was waiting for the jury to ‘give him his razor back and let him walk out the door.’” Id.

Published on:

The Court of Appeals last week decided the case of People v. Roland Ramos. In a memorandum opinion, the Court ruled that the prosecutor failed to lay the proper foundation under Civil Practice Law and Procedure 4518 to support the admission of several sets of business records. As the Court stated in a seminal case in this area, People v. Kennedy, 68 N.Y.2d 569, (1986), “[t]he essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise. . .” Attorneys must use those certain magic words in laying the foundation for the admission of business records and establish the following four factual predicates:

i) that the record be made in the regular course of business,

ii) that it be the regular course of such business to make the record,