Articles Posted in Uncategorized

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"Can I seal my criminal conviction in New York?" For years, our answer to this question was generally "no," but that's about to change. New York has just enacted a piece of legislation which will greatly benefit people with criminal records: As of October, 2017, CPL § 160.59 will allow people to apply for judicial sealing of misdemeanor and some felony convictions. This is an unprecedented development for New York, and one which the attorneys at Galluzzo & Arnone are looking forward to utilizing in order to achieve a fresh new start for our clients, both personally and professionally. Here are some of the highlights of this groundbreaking law:

  • People with criminal records will soon be able to apply for sealing for as many as two convictions, one of which may be a felony, except that sealing will not be available for convictions involving most sex offenses, and class "A" and violent felonies. CPL § 160.59(2)(a);
  • Anyone convicted of more than two crimes, or more than two felonies, will be ineligible. CPL § 160.59(3), as will those against whom any charges are pending. CPL § 160.59(5);
  • Sealing will become available after a 10 year waiting period. In other words, you'll have to wait 10 years, counted from the date of the imposition of sentence, or the date of release from the latest period of incarceration; before you can file an application to expunge any records. CPL § 160.59(5);
  • Once granted, sealing will render any records of conviction unavailable to the public, although they will remain available to law enforcement and some licensing agencies.

How can I get my records sealed?

Those eligibe under CPL § 160.59 will be required to make a formal application before the sentencing judge and possibly conduct a hearing where the District Attorney will be entitled to object. The application will be fairly detailed and will require an attorney to submit sworn allegations in support of sealing as well as prepare to rebut any information the prosecuting attorney submits in opposition to sealing.

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Federal criminal charges for solicitation of a minor

It is a serious federal crime to for an adult to solicit a minor (under age 18) across state lines for sexual purposes. Pursuant to 18 USC 24221 and 2423, it is illegal to:

  • Knowingly persuade, induce, entice, or coerce any minor to travel between states or internationally to engage in prostitution or in any unlawful sexual activity, or to attempt to do so;
  • Use the mail or any facility (including the internet) or means of interstate or foreign commerce to knowingly persuade, induce, entice, or coerce any minor to engage in any unlawful sexual activity, or to attempt to do so.
  • Knowingly transport a minor between states or internationally with the intent to engage in unlawful sexual activity; or
  • Travel between states or internationally for the purpose of engaging in any unlawful sexual conduct with a minor;

Defenses against federal criminal charges for solicitation of a minor

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There are several federal statutes which prohibit the act of taking or giving a bribe to a governmental official.

The "general" federal bribery statute is set forth in Title 18 of the U.S. Code ("U.S.C.") section 201. The federal law prohibits any person from corruptly, whether "directly or indirectly" giving, offering, or promising anything of value to a public official (or their delegates) with intent to (i) influence any official act, (ii) influence that person to commit fraud upon the United States, or (iii) induce such person to act in violation of their lawful duty, whatever that may be. 18 U.S.C. 201(b)(1).

A mirror provision prevents public officials (or their delegates) from seeking such gratuities in exchange for favorable exercises of their public duties. 18 U.S.C.201(b)(2).

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One of the great things about New York City is that a fun night of partying can be had relatively safely because taxis are so readily available to drive residents home. The proliferation of Uber has also made it easier for people without cash on hand to get a ride home after a night of drinking. However, sometimes, people having a good time in the city get into taxis without realizing that they don’t have any way of paying for the taxi – either they don’t have enough cash on hand or they have forgotten their wallet at the bar. It is a common and honest mistake made time and again by law-abiding citizens and professionals in New York City. What is surprising to most people, however, is that this mistake routinely results in a criminal arrest that can have serious immigration and job consequences for the person that made the innocent mistake.

Though it seems like a simple and small matter that ought to be handled civilly, taxi drivers typically will call police or drive their passengers to police precincts for arrest. There, police officers will typically arrest the passengers and fingerprint them and give them Desk Appearance Tickets charging them with one count of Theft of Services, a class A misdemeanor in violation of Penal Law Section 165.15 (PL 165.15). Recently, the stepdaughter of Attorney General Loretta Lynch was arrested for this mistake (though the arrest was ultimately voided when her boyfriend came to the precinct and paid her fare), and the attorneys at Galluzzo & Arnone LLP have represented dozens of people charged criminally under this scenario.

A conviction for a misdemeanor gives a person a permanent criminal record and potentially carries a maximum jail sentence of one year. However, this is not a typical result for most individuals arrested and charged with Theft of Services (PL 165.15). It should be noted that a person is only guilty of this crime if he or she intends to withhold payment for taxi services – in most of these cases, the failure to pay is an accident, and not intentional. That being said, the arrest itself can have serious consequences for some professionals and non-citizens.

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gjllp.com/francais

De nombreux citoyens français se sont installés à New York pour y travailler, étudier ou fonder une famille. Les touristes français affluent également chaque année en masse vers la grosse pomme, attirés par le shopping, les restaurants et théâtres.

Malheureusement, certains français se font arrêter à New York et se retrouvent alors dans une situation inconnue, confrontés au système pénal américain intimidant et déroutant. (Pour un résumé détaillé de la procédure pénale de l'état de New York en français, cliquez ici.)

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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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University Campus Sexual Assault Disciplinary Proceedings

Sexual assault on university campuses has long been a huge and underreported problem, but recently, the topic has received a tremendous amount of press coverage. As a result of this – as well as a spate of Title IX lawsuits alleging that universities have failed to make campuses safe from rape – schools have been frantically overhauling their investigative procedures and retraining its investigators. Unfortunately, the pendulum has swung so far in the other direction that the rights of the accused are being trampled and false or trivial accusations are oftentimes now presumed to be legitimate. False accusations do happen – consider the cases of the Duke lacrosse team or the recent accusation at the University of Virginia – and they can ruin innocent lives and reputations.

Of course, an accusation of sexual misconduct can have huge consequences for the accused beyond mere academic suspension or expulsion: criminal charges or civil lawsuits can ensue and be even more terrifying and damaging. Thus, it’s critical for an accused to mount a vigorous defense from the outset to both prevent career-derailing academic punishments and discourage the complainant from pursuing the matter in any other forums (such as the criminal justice system).

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G&A defense attorney Matthew Galluzzo appeared in the New York Daily News on Monday in connection with a story about his client who pleaded guilty in federal court to sexual abuse on an international airplane flight. The Sentencing Guidelines and the prosecutor recommended a sentence of between 6 to 12 months in jail, but Mr. Galluzzo was able to successfully persuade the judge to sentence him to time served, or zero days in jail. The client is now on his way home.

The article is available here: http://www.nydailynews.com/new-york/nyc-crime/plane-passenger-apologizes-nyc-court-woman-groped-article-1.2029296

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Over the course of two days (yesterday and today), Judge Masipa issued her verdict in the South African murder trial of former paralympian sprinter Oscar Pistorius. After a lengthy explanation of her factual findings and legal conclusions, she declared him not guilty of murdering his girlfriend, Reeva Steenkamp, but convicted him of a lesser charge called culpable homicide. To begin to understand this verdict, we have to consider first South African trial procedural.

The verdict itself was delivered in a way unfamiliar to most American audiences. In the U.S., when a verdict is reached by a judge or jury in a criminal case, the verdict is simply read aloud by the judge or jury foreperson: “Guilty” or “Not Guilty.” These verdicts come without explanation. Not so in South Africa; the judge reads aloud pages and pages of factual findings and conclusions about the evidence that was presented (with this process sometimes taking days) while the defendant agonizingly waits for the verdict at the end: guilty or not guilty.

Also, unlike in the United States, in South Africa, there are no jury trials (they were abolished in response to concerns that the country’s history of apartheid would often make fair jury trials nearly impossible). Thus, judges always decide the verdicts in criminal cases. (In the U.S., defendants can typically waive juries and request that their judges decide guilt or innocence in a similar fashion).

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When a person is arrested for a crime in New York State, the immediate concerns are to avoid jail time and to protect against criminal conviction. However, for certain licensed professionals and employees of banks and other FDIC-insured institutions, other collateral concerns must be addressed at the earliest possible time. In fact, critical mistakes can be made with respect to these concerns at the earliest stages of criminal prosecutions. Even a seemingly beneficial disposition offer at the arraignment proceeding can lead to disastrous consequences down the road. Thus, if such individuals find themselves under arrest and being processed through the system to arraignment, it is important to retain FINRA and FDIC knowledgeable counsel prior to any arraignment or court appearance, even if it takes place hours after the initial arrest and detention.

FINRA Concerns

As set forth on FINRA’s website, Form U4 is the Uniform Application for Securities Industry Registration or Transfer. Representatives of broker-dealers, investment advisers, or issuers of securities must use the form to become registered persons in appropriate jurisdictions. See http://www.finra.org/web/groups/industry/@ip/@comp/@regis/documents/appsupportdocs/p015111.pdf.

Section 14 of the Disclosure Questions contains certain, specific criminal history questions:

Rev.FormU4(05/2009)

UNIFORM APPLICATION FORSECURITIES INDUSTRY REGISTRATION OR TRANSFER

INDIVIDUAL NAME: INDIVIDUAL CRD #:
FIRM NAME: FIRM CRD #:
14.DISCLOSURE QUESTIONS
IF THE ANSWER TO ANY OF THE FOLLOWING QUESTIONS IS ‘YES’,

COMPLETE DETAILS OF ALL EVENTS OR PROCEEDINGS ON APPROPRIATE DRP(S)

REFER TO THE EXPLANATION OF TERMS SECTION OF FORM U4 INSTRUCTIONS FOR EXPLANATIONS OF ITALICIZED TERMS.
YES NO
Criminal Disclosure
14A. (1) Have you ever:

(a)been convicted of or pled guilty or nolo contendere (“no contest”)in a domestic,foreign,or military court to any felony?

(b)been charged with any felony?

(2) Based upon activities that occurred while you exercised control over it, has an organization ever:

(a)been convicted of or pled guilty or nolo contendere (“no contest”) in a domestic or foreign court to any felony?

(b)been charged with any felony?

14B. (1) Haveyouever:

(a)been convicted of or pled guilty or nolo contendere (“no contest”) in a domestic, foreign or military court to a misdemeanor involving:investments or an investmentrelated business or any fraud, false statements or omissions,wrongful taking of property,bribery,perjury,forgery, counterfeiting, extortion,or a conspiracy to commit any of these offenses?

(b)been charged with a misdemeanor specified in 14B(1)(a)?

(2) Based upon activities that occurred while you exercised control over it, has an organization ever:

(a)been convicted of or pled guilty or nolo contendere (“no contest”) in a domestic or foreign court to a

misdemeanor specified in 14B(1)(a)?

(b)been charged with a misdemeanor specified in 14B(1)(a)?

O O

O O

O

O O

O

O O

O O

O

O O

O

Thus, as is clear from the form itself, section 14A deals with felonies. Both arrests and convictions must be reported. However, if you are a registered person who is facing felony charges, it is important to seek competent representation familiar with the form and how your criminal charge is applicable. Sometimes cases which come in as felonies are not prosecuted as such, and other times cases begin as misdemeanors and later become felonies. Certain dispositions of felonies may mean a change to the answer to these questions.

Section 14B., on the other hand only requires disclosure of arrests or convictions of theft or dishonesty related misdemeanors. When handling your criminal matter or dealing with the form itself, it is important again to retain counsel who can guide you through the process taking into consideration relevant New York procedural law.

FDIC Concerns

Section 19 of the Federal Deposit Insurance Act makes clear that any individual charged with a crime involving dishonesty cannot control or participate in the affairs of any FDIC-insured institution:

“Section 19 of the Federal Deposit Insurance Act (12 U.S.C. 1829) prohibits, without the prior written consent of the Federal Deposit Insurance Corporation (FDIC), a person convicted of any criminal offense involving dishonesty or breach of trust or money laundering (covered offenses), or who has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, owning or controlling, directly or indirectly an insured depository institution (insured institution), or otherwise participating, directly or indirectly, in the conduct of the affairs of the insured institution. In addition, the law forbids an insured institution from permitting such a person to engage in any conduct or to continue any relationship prohibited by section 19. It imposes a ten-year ban against the FDIC’s consent for persons convicted of certain crimes enumerated in Title 18 of the United States Code, absent a motion by the FDIC and court approval.” http://www.fdic.gov/regulations/laws/rules/5000-1300.html

Although this may have been originally meant to apply to situations of embezzlement, large-scale theft, forgery, or other seemingly serious crimes, consider that people in New York are commonly charged with Theft of Services for seemingly minor offenses, such as jumping the subway turnstile, not having enough cash on hand to pay a taxi, or as a result of a dispute with a restaurant or nightclub over a bill. In many of these situations, the benefit of the doubt is given to the police officer, taxi driver, or club owner and an arrest is made even though the underlying conduct is the result of a mere misunderstanding. Then, because of the minor nature of the offense, the arrestee is brought to court either within a 24-36 hour period following the arrest or pursuant to a Desk Appearance Ticket (“DAT”) and offered an adjournment in contemplation of dismissal (“ACD”). An ACD is essentially a 6-month adjournment of the case. At the termination of that period of time, the court dismisses and seals the case, and the arrest and prosecution are deemed to be legal nullities. On its face, this sounds like an appealing disposition to most criminal justice novices because they hear that the case will be dismissed and that they will not have to return to court.

Unfortunately, an ACD may be a trap for the unwary FDIC employee because the FDIC has interpreted its own rule to state that an ACD is a pretrial diversion or similar program within the meaning of section. See, e.g., In the Matter of Gaby Cucu, FDIC-08-341L available at http://www.fdic.gov/bank/individual/enforcement/2009-03-39.pdf. Moreover, in Smith v. Bank of America Corp., 865 F.Supp.2d 298 (2012), a bank employee sued Bank of America in the Eastern District of New York for discrimination on account of the bank’s withdrawal of an offer of employment based on plaintiff’s prior petit larceny case that had been adjourned in contemplation of dismissal. In that case, the Hon. Judge Weinstein ruled that the FDIC was entitled to interpret its statute that way, and dismissed the lawsuit against the bank.

Thus, it is of critical importance thatall efforts are exhausted to seek total dismissal of the case prior to accepting an ACD for a seemingly minor matter, such as Petit Larceny (Penal Law § 155.25) or Theft of Services (Penal Law § 165.15) as noted above. While such a disposition may be an unavoidable alternative to a criminal conviction, all possibilities must be considered before entering into a disposition which could jeopardize a career.