Financial professionals who have taken and passed the Series 6, 7, 63, 65 or 66 exams know that an arrest and conviction can decimate careers regulated and overseen by FINRA. Many of these men and women, however, are unaware that New York State allows people with no more than two criminal convictions, of which only one can be a non-violent felony, to apply to have their criminal record sealed pursuant to NY Criminal Procedure law 160.59. Although not expunged, once the record is sealed, except for some specified organizations and law enforcement agencies, employers and the general public are prevented from “seeing” their past. With the above in mind, the following questions come time mind that are worthy of review with a lawyer versed in New York sealing law. If, for example, you were convicted of Assault, Criminal Possession of a Controlled Substance or even Grand Larceny, must you disclose on your FINRA U4 the old arrest and criminal conviction if you successfully had the same sealed? For that matter, if you already shared the information as broker-dealers are obliged, is there a way to remove these records or prevent FINRA from keeping or sharing your history or taking adverse actions? Simply (albeit, not that simply), before responding to Criminal Disclosure questions 14A and 14B and determining how to protect yourself if you already disclosed a now sealed criminal conviction, it behooves you to discuss your specific matter with a knowledgeable attorney experienced in NYS’s pseudo-expungement law, FINRA’s U4 and relevant statutes including NYS Human Rights Law 296(16).
As miserable as it likely was for Kristaps Porzingis to play for the perennially cellar-dwelling New York Knicks, the current Dallas Maverick’s All-Star forward is in the type of foul trouble that outweighs any he experienced at Madison Square Garden. Either a victim of Extortion and Blackmail or a man on the precipice of an arrest for a heinous Rape crime, the “Unicorn” finds himself playing both offense and defense as the game clock is expiring.
If what alleged is true, forcing another person to engage in sexual intercourse by a threat or use of physical force – defined as “forcible compulsion” in the New York Penal Law – is not only a statutorily identified “violent crime” of First Degree Rape, but exposes a person to registration as a sex offender upon conviction. Alternatively, if the complainant’s allegation was nothing but a money grab to unjustly enrich herself, then in lieu of find himself with handcuffs slapped on his wrists, 7’3” Latvian can steal the ball of public opinion and the criminal justice system and demand that the Manhattan District Attorney’s office prosecute his accuser for Second Degree Attempted Grand Larceny by Extortion in violation of New York Penal Law 110/155.40.
Some may deem Paul Manafort’s roughly seven and a half year sentence in Federal Court as light, but should the Manhattan District Attorney’s Office prevail in its prosecution of Manafort, the former Trump campaign chairman, lobbyist and jet-setter will likely not be so fortunate the second time around. While there may be Double Jeopardy grounds that the criminal defense team can explore to dismiss the indictment if close enough to the Federal case, if convicted of First Degree Residential Mortgage Fraud or the lesser offense of Attempted First Degree Residential Mortgage Fraud as reflected in New York Penal Law sections 187.25 and 110/187.25 respectively, Manafort’s days (years?) of yearning for the penthouse will be that much longer as he cools his heels in the Big House. Whether or not he is deemed a “predicate felon” for his Federal conviction, meaning New York views his plea and sentence as a prior felony in this state, Manafort would face up to 25 years in prison and no less than 1 to 3 years for the class B felony of Residential Mortgage Fraud in the First Degree. In the event he is deemed a “predicate felon,” his minimum sentence would be 4.5 to 9 years “upstate.” All of this ignores the lesser, but nonetheless serious crimes of Attempted First Degree Mortgage Fraud, a class C felony, and the class E felonies of First Degree Falsifying Business Records, Fourth Degree Conspiracy and First Degree Scheme to Defraud. If convicted, as a predicate, Manafort’s sentencing judge would be mandated to incarcerate him to no less than 3 to 6 years and 1.5 to 3 years on these two respective felony classes and a corresponding maximum of 15 and 4 years as a temporary leasee of an 8 by 8 SRO with unobstructed views of New York’s finest concrete and iron construction.
Understanding Residential Mortgage Fraud
If what prosecutors claim is true, Actresses Felicity Huffman and Lori Loughlin could have Razzy worthy roles starring next to Marlon Brown in a remake of 1989’s “How I Got into College.” The alleged easy way out amateurs who, with others, collectively paid millions of dollars to “assist” their genetic lottery winners’ successful college admission into such universities as USC, Yale, Stanford, Georgetown, Wake Forrest, Ramsey (well, not really), and others, relied on the good old power of the almighty dollar to perpetrate the nationwide college entrance scheme. In lieu of cheating the old-fashioned way, “Operation Varsity Blues,” the relatively unoriginal but cutely named federal bribery and cheating investigation, resulted in dozens of arrests involving paid off Division 1 coaches, photoshopped pictures of high schoolers playing sports when they were likely absorbed in selfie inspired “insta” posts, and some old school cheating on SATs and ACTs. A heck of a scheme if you don’t get caught, this entire criminal enterprise had nothing on the one-man professional test-taking operation and self-proclaimed “GMAT Hero” along with his larger band of [admission slot] thieves. Responsible for taking in excess of 500 GMAT, GRE and TOEFL exams (go ahead, Google “Lu Xu” and “GMAT”), his proficiency and skill was unparalleled even among his test-taking cohorts. Sorta’ a lesser known of the Uncanny Xmen of the college admissions underground.
If fighting City Hall is difficult, battling the District Attorney’s Office is arguably harder when your arguments and evidence falls on deaf ears and your client’s exposure is not measured in money but a permanent criminal record and the duration of incarceration. Fortunately, however, when your client is left standing and walks away exonerated, there are few greater victories worthy of battle scars. For a recent Crotty Saland PC client arrested for Second Degree Burglary and other crimes, and subsequently charged with Third Degree Assault and Criminal Obstruction of Breathing or Blood Circulation, leaving the justice system unscathed other than by a undeserved and miserable experience could not be more rewarding. The following is lesson of how prosecutorial inexperience coupled with expansive power can result in potentially grave miscarriages of justice. Simply, no matter the allegation, it is incumbent upon any criminal defense attorney to question and challenge law enforcement to protect your rights.
If being arrested for a crime you did not commit isn’t bad enough, when you don’t live in New York City and your witnesses aren’t fluent in the English language and are returning to their homes in Europe that same day, its reasonable to assume that things are about to go from bad to terribly worse. While it is a legitimate thought to have as you are hauled away in handcuffs, charged with crimes including Assault in the Third Degree, New York Penal Law 120.00, and tossed into Manhattan’s Central Booking to wait and meet a criminal lawyer your friends or family retained, your initial pain need not foretell the ultimate outcome. As experienced by a recent Crotty Saland PC client, the trauma of being accused of Assault by a cab driver and the anxiety of being 1000s of miles from home was fortunately (if one can use that term when falsely accused of a crime) the worst part of a roller coaster ride that ended in a meritorious dismissal.
As of November 2018, New York Coercion laws and crimes have changed. Penal Law 135.61 replaces Penal Law 135.60 as the “new” Second Degree Coercion making the latter statute the Third Degree offense. This class “E” felony adopts much of the language from the lesser misdemeanor but adds a new and critical element that in turn elevates the direct and collateral consequences of an arrest and conviction. Although you should fully examine the law with your attorney to ensure you do not conflate Extortion and Blackmail with any level of this statute, the following provides some basic insight into the definitions, elements and punishment of and for PL 135.61.
“Only the guilty hire defense attorneys.”
“If he was arrested, he clearly did something wrong.”
“Innocent people aren’t accused of crimes. Clearly, she’s guilty.”
Somewhat common refrains by those who have never had the misfortune of being accused of wrongdoing, whether fair or not, until you find yourself in handcuffs or before a judge it is quite easy to sit in judgment. However, when it is your name that is replaced by a docket number, the misconceptions you may have held will likely give way quite quickly. How are you going to get yourself out of this conundrum and who is the best attorney to protect your rights and bring your nightmare to a swift end? For a recent Crotty Saland PC client who found himself the subject of a wrongful arrest and prosecution, he took the right steps and debunked the myth as to why innocent people – or any accused for that matter – hire criminal defense lawyers.
Our client, previously convicted of Fourth Degree Criminal Mischief, was sentenced in 2015 to a conditional discharge. Further, as part of the disposition of a case involving, among other allegations, Criminal Possession of a Weapon and Menacing, the Court issued a five year Order of Protection in favor of a cab driver despite the fact that the complainant and our client were strangers. After moving out of New York State and pursuing a new career, the Restraining Order, not the underlying conviction, began to cause our client issues because it appeared on background checks. Wanting to secure relief from the Order of Protection that functionally served no purpose to protect an unknown person in a state where our client did not reside, the client reached out to the criminal lawyers at Crotty Saland PC to vacate the Order of Protection.
When it comes to Harassment in the Second Degree, New York L 240.26, one of the most frequently charged offenses in New York City and likely throughout the State, one issue that criminal attorneys and prosecutors litigate time and time again is what constitutes a meaningful and real threat of harm. Wherever mere words are punishable by law, either civilly or criminally, vagaries and inconsistencies of law inevitably follow. Not only that, but the interaction of such criminal statutes or common law bases for civil liability inevitably run up against the very important and foundational First Amendment protection of free speech.