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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.

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Today, it was announced that the New York State Senate passed legislation criminalizing the act of “revenge porn”. The bill needs to be approved by the New York Assembly in order to become law, but we suspect that it will. We have previously written about revenge porn and New York state’s need for a criminal statute that applies, so we consider this a welcome development, generally. Also, in theory, victims of this crime will have an implied cause of action in civil court for damages against the perpetrators, which we think is of critical importance and ideally would have been explicitly added to New York state law as a civil cause of action.

However, we have one minor quibble with the bill as it stands. The bill makes it a class A misdemeanor to disseminate “sexually intimate images or images of intimate parts of another person without that person’s explicit consent in order to harm, harass, scare or alarm that individual.” (It also makes it a class E felony for re-offenders). It seems to us that it would be better and more precise if the charge caused one count of this crime to issue for each sexually explicit image that were disseminated. Otherwise, someone might be charged with one count of this crime for disseminating dozens of images, whereas another person might be charged with the same crime for disseminating just one image.

In any event, the announcement is great news for victims of revenge porn, as it indicates that public officials have finally recognized just damaging revenge porn truly is to the mental and emotional health of victims.

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On Monday April 7, Galluzzo & Arnone LLP partner and criminal defense lawyer Matthew Galluzzo appeared on CNN with Carol Costello to discuss the latest news concerning the Oscar Pistorius murder trial in South Africa. Mr. Galluzzo formerly worked as a legal consultant for the National Prosecuting Authority in South Africa and was asked to comment in light of his experience with the South African criminal justice system.

Mr. Galluzzo, a former Manhattan prosecutor, has also previously defended numerous individuals in high-stakes and high-profile criminal defense matters with an outstanding record of success. If you are interested in getting his perspective on this Pistorius case, you can follow him on Twitter at @mattgalluzzo and #Pistoriustrial.

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Blog – § 1983 Case Plan:

Given the ever increasing number of claims being filed for excessive force, false arrest, and/or malicious prosecution against the City and/or the New York City Police Department (‘NYPD’), the United States District Court of the Southern District of New York (‘SDNY’)(serving Manhattan, White Plains and Middletown, NY) came up with a case plan to ensure the timely hearing of such cases. This is known as the ‘§ 1983 Plan’. This Plan intends to facilitate the speedy disposition of such cases, however, it only applies to certain types of cases (those which are less complicated, and could be resolved quickly by following this Plan).

Service of the Complaint:

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Jumping a turnstile: How a little mistake can become a big problem.

Imagine this scenario: You’re running late for an important meeting in the city, and as you are standing at the subway turnstile you can see the subway train pulling up to the platform. In a nervous rush, you swipe your Metrocard only to get that dreaded message: SWIPE AGAIN THIS TURNSTILE. You swipe again and again to no avail. Realizing that your window is closing fast, you make the split-second decision to quickly hop over the bar. Sadly, though, an undercover police officer notices your amazing display of grace and athleticism and places you under arrest. Although it’s really only a crime worth $2.50, you’d be surprised at the consequences that you might face.

First and foremost, it is possible to spend a night in jail – or twenty-four hours – as a result of this arrest. Police officers have the authority to give first-time offenders a Desk Appearance Ticket for this sort of arrest, meaning that the arrestee gets taken back to the precinct, fingerprinted, held for a few hours, and then instructed to return to court for their arraignment at a later date (maybe about six weeks later). However, when the arrestee does not have valid ID on their person, or has been previously arrested, or has an open warrant (including even on a minor matter like a summons warrant), then that person is probably getting processed by the police as a “regular arrest,” meaning that they will be arrested and taken to Central Booking to await their arraignment straightaway. Obviously, a Desk Appearance Ticket is vastly preferable to a “regular arrest,” as the person is probably only in custody for about four hours, as opposed to maybe twenty-four hours per a normal “regular arrest”.

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New York Assmeblyman Edward Braunstein, who has previously proposed legislation to combat and criminalize the growing phenomenon of revenge porn, has proposed a new bill relating to the investigation and prosecution of sex crimes. Specifically, he has proposed legislation requiring universities to report rape allegations to local law enforcement. Although this proposal has some appeal, we think that it is important to consider its potential negative side effects.

Without question, far too many allegations of campus-based sexual assault never go anywhere. For one reason, universities and university police officers typically lack the necessary expertise, training or resources to handle these sorts of investigations as ably or professionally as local city/state police or prosecutors. More importantly, perhaps, is the fact that universities are in many ways incentivized to make these cases go away. After all, no university wants to develop a public reputation as a place where rapes happen, and some administrators might even fear that the university could be liable for failing to provide adequate security in some cases (God forbid that a star athlete or child of a wealthy alumnus be accused of such a crime). Accordingly, one should not be surprised to hear tales from some victims of university officials subtly and sometimes not-so-subtly discouraging the victims from pursuing their complaints against fellow students.

Recently, it was suggested by some (not us) that Columbia University bungled (or perhaps intentionally ignored) the investigation of a student-athlete that had had several complaints made against him for sexual assault or misconduct. This proposed bill appears to be in response to that media flap. But would making universities mandatory reporters really help decrease the problem of sexual assault on New York college campuses?

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Search Warrants

In New York, a valid search warrant signed by a judge can give law enforcement officers the right to search your home or place of business (among other places) for evidence of criminal conduct. Sometimes search warrants are obtained after long criminal investigations, and sometimes they are applied for quickly in emergency cases in which law enforcement fears that evidence will be destroyed. A judge can sign a search warrant where he believes, based upon sworn affirmations made to him by law enforcement and/or civilian informants, that there is probable cause to believe that the targeted location contains evidence of criminality.

Most commonly, search warrants obtained by officers from the NYPD are sought for firearms or narcotics (though the list of possible reasons for a search warrant is endless). With respect to narcotics-related search warrants, police officers will typically not apply for a warrant until they can affirm to a judge that some police officer or police informant has either seen or purchased narcotics inside the location, and done so recently. (When information about possible contraband in a location is not recent, it is considered “stale” and insufficient to justify a search warrant.)

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One of the most common criminal charges in the federal system is a violation of 18 USC 922(g). This chapter makes it illegal for certain persons to possess firearms. Notably, this charge in this subsection does not depend upon the type of firearm possessed, though that factor can affect the potential penalties for the offender.

The statute states the following:

(g) It shall be unlawful for any person-
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien-
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.