Articles Posted in Sex Crimes

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Philadelphia Eagles football player Josh Sills was recently indicted by a grand jury and arrested for allegedly raping and kidnapping a woman in Ohio in December 2019. The team immediately suspended him; otherwise, Mr. Sills would have suited up for the Super Bowl in two weeks.

The case presents several interesting questions. First, the investigation was uncommonly lengthy. Law enforcement spokespeople explained that “The crime was immediately reported, and the Guernsey County Sheriff’s Office conducted a detailed investigation.” That detailed investigation evidently took over three years to complete, for some reason. This is not the typical length of a rape investigation; indeed, it is an extraordinarily long time to investigate a rape accusation. A few things might have been going on during that three year time period.

First, there might have been DNA to analyze. Not every rape investigation involves DNA evidence, and DNA does not necessarily prove that a rape occurred at all, anyway (as DNA evidence could also indicate a consensual sexual encounter). Generally speaking, though, DNA analyses do not normally take more than a few months to process – it depends entirely on the state laboratory’s backlog.

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On October 24, The Law Office of Matthew Galluzzo PLLC successfully secured the full dismissal of misdemeanor Assault in the Third Degree, Forcible Touching, and Sexual Abuse in the Third Degree charges for a client in Manhattan criminal court. Our client, a holder of an H1B visa, allegedly groped a woman’s buttocks and punched a man in the face in a nightclub in Manhattan. The investigative team at the Law Office of Matthew Galluzzo PLLC performed its own investigation of the incident and presented its findings, which told a very different story. About three months after our client’s arrest, the Manhattan D.A.’s Office moved to dismiss all charges and our client’s arrest record was sealed. He can now move forward with his life – including his anticipated application for American citizenship – without having to worry about this unfortunate incident impeding his future.

If you or a loved one have been arrested and charged with misdemeanor assault or forcible touching in New York City, you should strongly consider contacting the experienced team at the Law Office of Matthew Galluzzo PLLC. Their lead counsel is a former Manhattan prosecutor with considerable experience representing foreign citizens, with a strong track record of success.

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In 2019, to combat the phenomenon known as “revenge porn,” the state of New York added Penal Law Section 245.15 to its list of criminal charges. Specifically, it is now a class A misdemeanor for a person to unlawfully disseminate or publish an intimate image without the consent of the person depicted in the image. This generally prevents an ex-boyfriend from humiliating an ex-girlfriend by using intimate photos taken during the relationship and sharing them with friends or posting them to the internet. So, even though the images might have been freely given during the relationship, a person is not necessarily free to distribute or dispose of those images however they want. Of course, a person could be subject to a civil lawsuit for engaging in “revenge porn” behavior as well. Depending on the circumstances, other charges might also be brought against an alleged “revenge porn” offender, including extortion, aggravated harassment, stalking, or unlawful surveillance.

The criminal charge states:

1. A person is guilty of unlawful dissemination or publication of an intimate image when: (a) with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or publishes a still or video image of such other person, who is identifiable from the still or video image itself or from information displayed in connection with the still or video image, without such other person’s consent, which depicts: (i) an unclothed or exposed intimate part of such other person; or (ii) such other person engaging in sexual conduct as defined in subdivision ten of section 130.00 of this chapter with another person; and (b) such still or video image was taken under circumstances when the person depicted had a reasonable expectation that the image would remain private and the actor knew or reasonably should have known the person depicted intended for the still or video image to remain private, regardless of whether the actor was present when the still or video image was taken.

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Following her conviction at trial in the Southern District of New York for various federal charges relating to the sex trafficking of minors, disgraced Jeffrey Epstein associate Ghislaine Maxwell received a sentence of 20 years in prison. She will get credit towards that sentence for the time she has already spent in prison, and assuming she receives the maximum amount of good time credit for her behavior in custody, she will probably only serve about 85% of that sentence, or 17 years.

The question on everyone’s mind has been whether Ms. Maxwell will finally disclose the names of the other purportedly rich and powerful celebrities who engaged in illicit conduct with minors and Jeffrey Epstein. Ms. Maxwell has steadfastly refused to do that, even after Epstein’s death (to the surprise of some). Ms. Maxwell initially denied being knowingly involved in any criminal conduct, and her statement at sentencing was hardly an apology, either.

Ms. Maxwell may also have a legitimate ground for an appeal to the Second Circuit Court of Appeals. After the verdict, a juror disclosed that they had not told the Court during jury selection about having been a victim of a sexual assault. Judge Nathan (the trial judge) denied a motion for a new trial on that basis, and Maxwell will almost certainly pursue that argument on appeal.

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After a long trial followed by over forty hours of jury deliberations, Ghislaine Maxwell finally stands convicted of several federal charges relating to the sexual abuse of minors. Ms. Maxwell somewhat curiously chose not to testify in her own defense, and she now faces a sentence of up to 65 years in federal prison. Ms. Maxwell’s fight is far from over, but ultimately it will almost certainly lead to one final choice: cooperate with the government or die in prison.

After a federal conviction – by guilty plea or by jury verdict – the defendant is interviewed by a specialized officer from the U.S. Department of Probation. These officers typically have backgrounds in social work, and it is their responsibility to prepare a biography – or presentence report – for the court. The judge uses this presentence report at sentencing to understand the defendant’s life, background, and circumstances. (The Bureau of Prisons also uses this report in determining the defendant’s prison designation.) The preparation of a report can easily take two months or more, as the interview has to be scheduled, a draft report prepared, edits and objections made by both the defense and the prosecution, and a final draft with a sentencing recommendation submitted to the sentencing court.

Following the preparation of the presentence report, both the prosecution and defense prepare sentencing memoranda for the judge. Both sides make arguments about the proper application of the U.S. Sentencing Guidelines and the sentencing factors pursuant to 18 U.S.C. § 3553(a). Defense lawyers usually submit character letters from friends and family of the defendant, and sometimes the defendant also submits his/her own letter of remorse. Eventually, the sentencing court then holds a sentencing hearing at which both sides make oral arguments about the sentence and the court pronounces its decision. That sentencing hearing could be anywhere from 4 to 6 months after the conviction, though it could take even longer.

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It was recently announced by the New York Attorney General’s Office that disgraced former New York governor Andrew Cuomo would be criminally prosecuted for an alleged groping of a female staffer at the governor’s mansion in Albany. 

Specifically, Cuomo will be charged with one count of Forcible Touching, in violation of Penal Law Section 130.52.* That code makes it a class A misdemeanor to intentionally, and for no legitimate purpose:

1. forcibly touch the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire;  or
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The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government (as provided in 18 U.S.C. § 7(3)), when the act or omission is not already a crime under Federal law. For example, a person who commits the New York state law crime of Assault in the Third Degree on federal property might actually be prosecuted in federal court for, essentially, a violation of that state crime. The Assimilative Crimes Act could also possibly provide for the prosecution of sexual assault, burglary, and theft cases on federal property, to name a few examples. See e.g. Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). See also United States v. Bowers, 660 F.2d 527 (5th Cir. 1981) (child abuse); United States v. Smith, 574 F.2d 988 (9th Cir. 1978)(sodomy); United States v. Johnson, 967 F.2d 1431 (10th Cir. 1992)(aggravated assault); United States v. Griffith, 864 F.2d 421 (6th Cir. 1988)(reckless assault); United States v. Kaufman, 862 F.2d 236 (9th Cir. 1988)(assault); Fesler v. United States, 781 F.2d 384 (5th Cir.), cert. denied, 476 U.S. 1118 (1986)(child abuse).

Finally, it should be noted that although many crimes can be prosecuted in both state and federal court without violating the principle of Double Jeopardy, a state law crime prosecuted in federal court via the Assimilative Crimes Act cannot also be prosecuted in state court. See Grafton v. United States, 206 U.S. 333 (1907).

If you or a loved one have been arrested and charged with a crime occurring on federal property in the New York City area, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC. Many defense attorneys know state law but are unfamiliar with the unique procedures of federal practice. Matthew Galluzzo, however, is a former Manhattan state prosecutor with over twenty years of experience who now specializes primarily in the defense of federal crimes. Give him a call to discuss your case and his possible representation of you.

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The Department of Education recently released new policies and procedures for American colleges and universities to follow in investigating allegations of sexual assault and sexual harassment involving its students. Generally speaking, the new policies afford more protections for accused students than were required under the Obama-era Title IX policies, and victims’ rights advocates are already decrying the changes.

The biggest changes in the policy involve 1) granting accused students the right to cross-examine and confront their accusers (though not personally), 2) establishing that the standard of proof for a finding of guilt may be either “clear and convincing” or a “preponderance of the evidence,” (matching civil law standards, generally) , and 3) and redefining the meaning of “sexual harassment” to align with the U.S. Supreme Court’s definition: “sexual harassment” is unwelcome conduct that is “so severe, pervasive and objectively offensive that it denies a person equal educational access.” (Under the Obama administration, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”)

These changes will have a huge impact on Title IX sexual harassment/assault proceedings on college campuses. Previously, in connection with complaints of sexual assault to school administrators, student/complainants would give their version of events (one way or another) during an investigation and/or hearing, and the accused would have the ability to give his/her version of events. However, there would be no confronting of the witnesses by the adverse parties. Moreover, the standard of proof was so low, the administrators so risk-averse and generally sympathetic to victims, and the elements of an actionable offense were so broad that successfully defending against these accusations was exceptionally difficult. As a practical matter, accused students generally lost and were disciplined or expelled. However, many students complained that the trials were akin to the Salem witch trials, with no due process and no real chance to win. Indeed, lawsuits were filed by accused students in federal courts across the country, and so many of them persuaded courts that they had been denied due process during Title IX investigations that these changes by the current administration may have been an inevitable response to the litigation.

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Harvey Weinstein was recently convicted by a jury of two of the five charges contained in a Manhattan indictment (Criminal Sexual Act in the First Degree and Rape in the Third Degree). He will be sentenced on March 11 by the presiding judge at trial, James Burke. Weinstein faces a minimum sentence of five years in prison and a possible maximum sentence of 29 years. One can reasonably expect Weinstein to receive a sentence in the 10-15 year range, though it could be higher. We doubt he will receive a single-digit sentence, though, even in light of his advanced age and ill health.

Weinstein has a right to a direct appeal to the appellate court, in this case called the Appellate Division, First Department, based upon issues that were raised “on the record” (i.e. issues which can be pointed to in the trial transcript). The deadlines for filing and responding to an appeal are typically somewhat flexible in actual practice, as both sides routinely ask for and are awarded extensions of time to file their appellate arguments and responses. Given the complexity of this case, a reasonable estimate is that the appellate court will arrive at a decision about a year after sentencing, though it could potentially be sooner if the defense team submits their arguments quickly.

If Weinstein were to win his appeal, then he would earn a new trial on the two charges for which he was convicted. (He can never be convicted of or retried on the predatory sexual assault charges for which he was acquitted at trial.) If Weinstein loses his appeal, he could ask the Court of Appeals (the highest court in the New York State system) to hear his next appeal – this process is called “seeking leave” to appeal. Unlike the Appellate Division, the Court of Appeals is not required to hear his appeal. Typically, the Court of Appeals chooses to only consider cases with novel legal issues or cases of great importance, or cases involving issues about which lower courts in the state have disagreed. Theoretically, if the Court of Appeals denies leave, then Weinstein could seek the remedy called a writ of habeas corpus in state court, and then even pursue that type of appeal in federal court. This process of “exhausting” his appeals could potentially take several years.

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With the advent of smartphones – which arm practically every citizen with a readily available high-definition camera – Unlawful Surveillance has become an incredibly common charge in New York, especially in the populated City. In a nutshell, the charge applies when someone inappropriately records, views or broadcasts another without their consent. And it’s a serious one.

Those who are accused of using cameras of any kind to record into dressing rooms, for example, are generally charged under Penal Law Section 250.45(1) and/or 250.45(2), which applies where a defendant surreptitiously views, broadcasts or records a person dressing or undressing, or the sexual or other intimate parts of a person when such person expects to be in private.

Those who surreptitiously view, broadcast or record someone in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, or shower, among other places, are charged under PL 250.45(3)(a).

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