One of the most serious charges in New York state criminal law is Operating as a Major Trafficker, in violation of Penal Law 220.77. That charge makes it a Class A-I felony to traffic in controlled substances worth $75,000.00 or more. This can be accomplished in three different ways:
Last week, criminal defense attorney Matthew Galluzzo successfully persuaded a federal judge in Manhattan to sentence his client to a very favorable sentence. The client was guilty of selling fentanyl that led to the overdose death of a customer. Though there was no mandatory minimum for this offense, the Federal Sentencing Guidelines recommended a sentence of between 234 and 240 months in prison (i.e. approximately 20 years). The client had an extensive criminal record including, among other things, two prior felonies for drug trafficking and a conviction for a violent felony assault.
Mr. Galluzzo worked with a social worker to describe the client’s extremely difficult upbringing, which included parental abuse, poverty, homelessness, the foster care system, and drug abuse as a pre-teen. Mr. Galluzzo convinced the judge that pursuant to the recent Second Circuit decision in US v. Gibson, the client was not a Career Offender under the Federal Sentencing Guidelines despite his two prior convictions for NY Penal Law Section 220.39, resulting in his classification as a Criminal History Category IV instead of VI. He also convincingly described the overdose as a terrible accident and expressed his client’s remorse to the judge.
Ultimately, the Court granted a significant downward variance and gave him a sentence equal to roughly half that recommended by the Sentencing Guidelines, 120 months (10 years). The client was pleased with the result and felt that his voice had been heard. The case was US v. Huertero, 20-cr-580 (ER) before Judge Ramos.
Recently, former prosecutor Matthew Galluzzo appeared on PBS Channel 13 to explain several legal issues relating both the recent verdict in the Trump civil sex abuse trial and the new indictment of Congressman George Santos.
Matthew Galluzzo is a former sex crimes prosecutor who now represents both plaintiffs and defendants in civil sex abuse cases. He also regularly defends individuals accused of white collar crimes and fraud in federal court.
The link to the interview is available here.
Last Friday, Matthew Galluzzo achieved another great sentencing result for a client in a New York City federal case. The client had pleaded guilty to a long list of violent crimes, including participating in a robbery that resulted in a homicide. Pursuant to the federal Sentencing Guidelines, the client faced a recommended sentence of life. Taking several other factors into consideration, the Department of Probation recommended that the judge impose a sentence of 96 months, or eight years, instead of the life sentence recommended by the federal Sentencing Guidelines.
Mr. Galluzzo submitted a sentencing memorandum that the judge described at sentencing as “very compelling,” and sentenced the client to time served, equivalent to 51 months. The client – who had spent the last 4+ years in various facilities including MCC New York and MDC Brooklyn, was released from the courthouse and went straight home. Obviously, he was elated with the result, which about half of the sentence recommended by Probation and considerably less than that recommended by the Sentencing Guidelines.
Most federal defendants plead guilty. Indeed, statistics show that almost 98% of federal defendants plead guilty to some crime. Oftentimes, a defense attorney’s most valuable contribution in a case is at the sentencing phase. There, criminal defense attorneys must make the most persuasive case for leniency. Mr. Galluzzo spends time to really understand his client and his history in order to make the best arguments to the judge. As a result of his hard work, he consistently gets his clients sentences below those recommended by the US Sentencing Guidelines, with this last case being a particularly striking example.
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.
Platinum selling rap artist Fetty Wap (real name Willie Junior Maxwell II) was arrested and arraigned on October 29 pursuant to a federal indictment charging him and five other men with Conspiracy to Distribute Narcotics (the other five men were also charged with Use of Firearms in Connection with a Drug Crime). The charges are incredibly serious and Fetty Wap faces very significant jail time.
According to a press release from the U.S. Attorney’s Office for the Eastern District of New York, the rapper and five other men trafficked in significant quantities of heroin, cocaine, and the especially-dangerous drug, fentanyl. The defendants (including Anthony Leonardi, Robert Leonardi, Brian Sullivan, Anthony Syntje, and Kavaughn Wiggins) have all been arrested and detained pending trial. Prosecutors claim to have recovered at least 16 kilograms of cocaine, 2 kilograms of heroin, and fentanyl, though it is certain that they will allege that the group is responsible for far more than that. Indeed, the press release describes the amount of drugs trafficked by the crew as “massive”.
Fetty Wap is unlikely to be released on bail pending trial, though it may be possible given his likely financial resources. However, in federal narcotics cases of this size and scale, the presumption for judges is that a defendant should be detained pending trial. Fetty Wap would have to convincingly demonstrate that he does not pose a risk to the public, and that he would not flee if released on bond. Given his resources (and possible ability to live abroad), the amount of prison time that he is potentially facing, the fact that his codefendants are indicted for using firearms, and the fact that he allegedly trafficked in fentanyl, which is notorious for causing fatal overdoses, it seems unlikely that he will be bailed out pending trial.
Today, New York-area.news outlets reported that an Instagram model with about 34,000 followers, Genie Exum, had been arrested and was awaiting arraignment in Manhattan on felony charges. Allegedly, she stabbed her boyfriend (ex-boyfriend) numerous times during an argument. The author of this post, Matthew Galluzzo, is a former supervising attorney in the domestic violence unit at the Manhattan District Attorney’s Office, and has defended dozens of people charged with felony domestic violence. This is his analysis of what might happen to Ms. Exum and her case, and why.
Ms. Exum is being charged with one count of Assault in the Second Degree, a class D violent felony in violation of New York Penal Law Section 120.05. A person is guilty of it when they intentionally cause injury to another person by means of a weapon or dangerous instrument. Stabbing someone definitely qualifies (indeed, if the injuries were more serious, she would be looking at Assault in the First Degree). This the appropriate charge here.
At arraignments, the judge will issue an order of protection in favor of the victim of the stabbing (i.e. Ms. Exum’s boyfriend/ex-boyfriend), precluding her from having any contact with him whatsoever. She cannot contact him electronically, through social media, in person, or through third parties (some judges even go so far as to say that you cannot like the other person’s social media postings). Even if Ms. Exum’s boyfriend forgives her and tries to call her, for example, she cannot speak with him or communicate with him without violating the order of protection and risking a re-arrest by the police. The order is not the victim’s to apply as he sees fit – it is issued by the court and must be obeyed. These sorts of orders are particularly complicated when the parties lived together, as the criminal defendant simply has to vacate and find somewhere else to sleep.
One common federal criminal charge applies to the possession of firearms by felons. 18 U.S.C. 922g includes a variety of situations involving illegal firearm possession, but subsection 1 of that provision states:
(g) It shall be unlawful for any person –
(1) who has been convicted in any court of, a crime punishable
Federal law enforcement agents from the DEA routinely seize quantities of cash that they suspect to be tied to or derived from narcotics trafficking. Frequently, these seizures happen in conjuncture with the arrests of those in possession of the cash, or pursuant to indictments. But most of the time, agents seize cash – even huge sums of it – without arresting anyone. In those cases, the owners or possessors of that seized cash have some difficult decisions to make.
In these cases, federal law generally requires the agents to send a notice to the person from whom the cash was seized. The person who receives the notice is typically given the opportunity to make a claim for the cash, which includes an explanation as to the source of the cash. This response must be made under penalty of perjury, and can include supplemental documentation from a related business (such as tax returns or bank statements), or sworn statements from other people, among other things. Every once in awhile, the agents return the cash to the claimant based upon the representations made by the claimant, or based upon the evidence demonstrated to the agency. Our attorneys have successfully assisted clients in getting cash returned by federal agents this way.
If, however, the agency refuses to return the money based upon these representations, then they must commence a civil forfeiture action in federal court. The precise procedures for doing so are outlined in 18 U.S.C. § 983. Ultimately, in a civil court proceeding, the federal agency (DEA) must prove by a preponderance of the evidence that the seized cash represents proceeds of illegal activity. This is the civil standard for proof and it is much lower (easier) than the “beyond a reasonable doubt” standard necessary to prove a person’s guilt of a crime.
Federal murder cases are some of the most obviously serious cases in American criminal law. Under some circumstances, federal murder charges can involve the death penalty (even in states where the death penalty is illegal at the state level).
The most common two murder charges at the federal level are contained in 18 U.S.C. § 1111 and § 1117. The former describes federal murder as being the unlawful and killing of another human being with “malice aforethought.” Spur-of-the-moment killings thus might be charged as manslaughter instead, though “malice aforethought” does not require more than a moment’s reflection on the part of the actor. The charge is broken down into two degrees: first and second degree murder.
First degree murder involves those intentional killings perpetrated by “poison, lying in wait, any other kind of willful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed…” First degree murder is punishable by death or life in prison.