Prosecuting the Prosecutor: Possible Criminal Charges Against Former NYS Attorney General Eric Schneiderman

By no means are multiple allegations proof of criminal conduct nor any wrongdoing whatsoever, but the claims against Eric Schneiderman, who only about an hour prior to drafting this blog served as the New York State Attorney General and chief law enforcement officer of the Empire State, are quite serious. Deserving of the same due process and presumption of innocence, what, if any crimes could Mr. Schneiderman face if prosecuted by the Manhattan District Attorney’s Office should any of the four woman, and claimed victims of his alleged aggression, pursue criminal charges? Putting aside the conflict that might arise due to the fact that Governor Andrew Cuomo recently tasked former Attorney General Schneiderman with investigating District Attorney’s Vance’s handling of the Harvey Weinstein predation, there are definitely potential violations of the New York Penal Law that Gotham’s District Attorney could pursue against the former NYS Attorney General and NYS Senator.

What first jumps out, if Mr. Schneiderman struck a woman in the manner described he would easily run afoul of New York Penal Law 120.00(1), Third Degree Assault. Based on the allegation that he cracked at least one of the women with an open hand leaving a mark, causing her great pain and impacting her inner ear, it appears the elements of Third Degree Assault are satisfied. That is, with the intent to cause a physical injury, aka, substantial pain, he in fact caused this type of an injury to another person. A class “A” misdemeanor, if convicted of violating NY PL 120.00(1), Mr. Schneiderman, or anyone for that matter, could find himself “renting” a room at the  all-inclusive Hotel Rikers Island for up to a year. Not mandated by law, any class “A” misdemeanor conviction can also lead to punishment ranging from a conditional discharge and time served to probation and community service.

Another potential crime that Mr. Schneiderman could face is Aggravated Harassment in the Second Degree pursuant to New York Penal Law 240.30(3). Although associated with harassing texts, calls and other communications,  subsection three of this crime would likely get a long look by law enforcement. In substance, you are guilty of Aggravated Harassment in the Second Degree if you intentionally harass, annoy, threaten or alarm your targeted person by, among other things, striking her. You must do so based on your perception about your victim’s gender irrespective of its accuracy. Although this may not be the purpose of the statute and Mr. Schneiderman could argue his intent related to intimacy and sexuality, not to harass, threaten, alarm or annoy, according to The New Yorker, Mr. Schneiderm stated in response to one of his girlfriends confronting him for his painful slap, “You’d really be surprised…A lot of women like it. They don’t always think they like it, but then they do, and they ask for more.” Based on this statement, along with other alleged crude remarks, one could argue that he believed women liked to be insulted and physically struck. Again, its worth noting that the law does not require the perception and reality to be one one in the same. NY PL 240.30 is also a class “A” misdemeanor.

The most concerning crime that prosecutors could pursue against Mr. Schneiderman is not a mere misdemeanor, but a felony offense. Assuming the the statements from the women identified in the New York Magazine article are accurate, Mr. Schneiderman’s alleged conduct could violate New York Penal Law 121.12, Second Degree Strangulation. Even if the evidence did not support the elements of this class “D” felony punishable by a presumptive minimum of two years in prison and as long as seven years “upstate” (not north of the Bronx “upstate” and well past Albany), there is little doubt that prosecutors could sustain a charge of New York Penal Law 121.11, Criminal Obstruction of Breathing or Blood Circulation.

The latter offense, NY PL 121.11, criminalizes as a class “A” misdemeanor the applying of pressure to a person’s neck or throat with the intent to impede the flow of oxygen or blood. If prosecutors could prove this crime beyond a reasonable doubt and further establish that as a result of his actions Mr. Schneiderman caused any of his former girlfriends stupor, then the District Attorney could elevate the crime to the felony offense of NY PL 121.12 and present a case to a Grand Jury.

It is worth repeating and stressing that allegations are just that. Claims. Anyone, whether true or not, can accuse  anyone else of criminal wrongdoing whether or not it is reported in The New Yorker. It is never the burden of the accused to exonerate him or herself, but the responsibility of the District Attorney or Attorney General to prove a criminal case beyond a reasonable doubt. Former NYS Attorney General Eric Schneiderman is no less deserving of this presumption and right than any other person whether he or she is a family member, close friend or stranger. Time will certainly tell where, if anywhere, these allegations go, but if nothing else, NYS politics just got a little more crazy ahead of what will no doubt be a frenzied campaign season.

To learn more about any of the crimes addressed here, follow the links provided. Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors.

 

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