As a defendant already under arrest or as an accused or target confronted by law enforcement during an investigation, one of the most important rights you can ever exercise is your right to remain silent. Whether you are legally in custody or you are lawfully being interrogated by a police officer, detective, state trooper or DA investigator, once you invoke this right, all questioning must cease once you ask for your lawyer. Should further statements be elicited, anything you say as it relates to the crime or investigation will not be admissible against you in the prosecution’s case in chief. If you fail to ask for a lawyer or an attorney, then you should expect that anything you say can and will be used against you in court.

With the above in mind, what happens if you exercise your Miranda Rights before one detective or agent but hours later find yourself before different officers? Does it matter if law enforcement is the same, meaning, all from the NYPD? Would you have to invoke your rights again if you changed hands from one agency to another? For that matter, what if law enforcement questioned you while in custody and were honestly were unaware of your prior demand? In People v. Roman, decided by the Appellate Division, First Department on 9/24/2019, the Court addressed these critically important issues.

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While the law is clear and known to criminal lawyers practicing throughout the New York City region, when one thinks of menacing behavior one often thinks of threats with words, body, weapons or some combination of the three. Despite what those outside the legal profession may think, the Penal Law and court decisions that define the crime of Menacing is clear. Words alone are insufficient. More is needed. In a recent decision addressing the sufficiency of Third Degree Menacing, New York Penal Law 120.15, a trial court once again examined the statute providing further clarity to an often litigated section of the Penal Law.

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Similar to Penal Law 245.15,  NYC Administrative Code 10-180(b)(1) is the crime of Revenge Porn within the confines of Manhattan, Brooklyn, Queens, Bronx and Staten Island. Both of these offenses, Unlawful Dissemination or Publication of an Intimate Image and Unlawful Disclosure of and Intimate Image, are misdemeanor statutes and provide for civil prosecutions and law suits as well. Irrespective of which charge is pursued, the law mandates prosecutors to plead certain elements. Specifically, AC 10-180, formerly AC 10-177*3, requires that a “covered recipient” discloses an “intimate image” without the consent of the “depicted individual.” Further, the wrongful sharer or poster must have an objective to cause economic, physical or substantial emotional harm to the depicted person and that individual must be identifiable either because it is clear in the image or from the circumstances the same was disclosed. Without parsing out all of the definitions and legally defined terms, People v. Ahmed, 2018BX038930, demonstrates the legal minimum standard the District Attorney must set forth in a complaint to survive a defense lawyer’s motion to dismiss and the necessity that a “covered recipient” is established within the four corners of the accusatory instrument.

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As a both a New York criminal lawyer representing the accused and serving as an advocate for complainants as well as a Title IX attorney representing alleged perpetrators and victims of Dating Violence and Gender Based Discrimination on college and university campuses, it is sometimes a heavy lift and difficult task to secure the justice a client wants, needs and deserves. While justice may manifest itself in different forms to different people, exoneration of the innocent is the pinnacle achievement and best outcome irrespective of the allegation.

With the above in mind, my words cannot accurately reflect the emotions – from anxiety and fear to joy and relief – that wash over the vindicated when the battles commence and rage until the almost literal war is over. It is the target of the wrongful, hurtful and traumatic claim that lives through these emotions who can best articulate them. The following is one such client’s review that makes me proud of my efforts and of my client’s strength while providing me with immeasurable satisfaction and relief that I delivered her the justice she unequivocally deserved.

If you shook Robert Morgenthau’s hand, you were one clasp away from the men and women whose names you read about in history books, faces you saw in black and white photographs and movies, and voices you heard in scratchy inaudible recordings. From Presidents Franklin Delano Roosevelt and John F. Kennedy to Prime Minister Winston Churchill and Dr. Martin Luther King, Morgenthau was not merely a secondary figure, but a core piece of the fabric and events that shaped New York, the United States and the world. With these men’s blood, sweat and tears, and that of countless other men and women whose names we will never know, the nation leapt forward with a purposeful objective even if only at times incrementally. Sadly, with Morgenthau’s passing, night descends upon an era that we, as a nation, have already strayed for far too long. Gone are the days of FDR, JFK, and King when leaders unhesitatingly rose to preserve and protect the greater public good. Few are our leaders today who embrace their duty to selflessly safeguard the public irrespective of their personal agendas or beliefs.Morgenthau-Family-300x193

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College Title IX lawyers and student misconduct attorneys representing clients in cases alleging gender-based misconduct and dating violence accusations know firsthand how the system is not one founded in due process. Simply, university violations, from NYU and Columbia to Pace and Fordham, not only lack the checks and balances taken for granted in the criminal justice system but are enforced by university administrators often lacking the investigative experience necessary to pursue the right leads and effectively parse through the evidence. Couple these factors with a legal threshold that is not beyond a reasonable doubt but a preponderance of the evidence, the subject of an accusation is often left without the tools and recourse necessary to defend him or herself. Fortunately, for a client falsely accused of a horrific rape that morphed into claims she was a monster-like stalker and manipulative predator, after a five month long investigation and ultimate adjudication, the college exonerate our client. Only slightly less gratifying, the college found that the accuser was in fact the abuser leading to a responsible finding and multi-year hold on her diploma post-graduation.

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Criminal charges dismissed on the motion of the prosecution [*check*]. Maltreatment and Negligence finding by the Office of Children and Family Services (OCFS) amended from indicated to unfounded [*check*]. Article 10 Negligence Petition filed by the Administration for Children’s Services (ACS) withdrawn [*check*]. A Criminal Court and Family Court “hat trick” by Crotty Saland PC’s defense team? Check yet again.

While Crotty Saland PC’s family law attorneys and criminal defense lawyers secured yet another successful disposition, and more importantly fair and just one, above cases demonstrate once again that when accused of wrongdoing, one often has many battles ahead on one’s way to vindication. After being targeted by the mother of his child with fictitious allegations as a likely means to pry custody away from our client, the mother’s attempts ultimately backfired in spectacular fashion. The exoneration of our client aside, now it is she who appears to be the subject of an ACS investigation.

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While our client charged with Third and Second Degree Menacing and Fourth Degree Criminal Mischief cannot get back the months of his life lost to the criminal justice system, what started off as a bogus claim and an arrest of a federal law enforcement officer finally ended with his complete exoneration in a New York City Criminal Court. Although our client can now pursue the back pay he was denied during his suspension, as grateful as he was that the system “worked,” our client unfortunately witnessed firsthand how difficult it is when the system sees you as guilty even if the law is supposed to protect you with the presumption of innocence. Thankfully, after months of back and forth with a prosecutor who did her due diligence and, even if disagreeing, kept an open mind, pushing the case to a trial and rejecting an Adjournment in Contemplation of Dismissal was the final straw that broke the proverbial camel’s back of this unfounded case. A great effort – and even better resolution – for the criminal attorneys and former Manhattan prosecutors at Crotty Saland PC.

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Although there may be victims and their advocates who will argue it does not go far enough, with the passage of New York Penal Law 245.15, Unlawful Dissemination or Publication of an Intimate Image (awaiting the Governor’s signature) police departments and District Attorneys throughout the State of New York will have the ability to prosecute certain types of actions that fall under the umbrella of Revenge Porn crimes. Similar to NYC’s Unlawful Disclosure of an Intimate Image, Administrative Code 10-177*3, this new statute would allow victims to pursue their alleged abusers criminally in a NY Criminal Court as well as in a Civil Court by establishing the means for a private right of action – a lawsuit – pursuant to Civil Rights Law 52-b. Equally important, a violation of Penal Law 245.15 would also constitute a Family Offense thereby potentially allowing a petitioner to secure a Family Court Order of Protection without the arrest of their alleged tormentor.

Whether you are a victim or an accused, before you find yourself on either end of a Criminal, Family or Civil Court proceeding, educate yourself on the law, consult with your counsel or lawyer, and take the steps to protect yourself going forward.

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U4-Disclosure-300x166Financial 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).

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