No matter what side you find yourself in terms of whether Jordan Neely’s homicide at the hands of Daniel Penny on a Manhattan subway was the result of a lawful response to an imminent threat, a violent overreaction by a fellow straphanger, or something in between, there is one undeniable fact – Neely’s passing was as unnecessary as it was tragic. Period. There is no other reasonable interpretation nor view. Setting aside this truth, along with the raw emotions of the incident and questions about race which permeate it, however, leaves us with an important question that needs answering: what crime(s), if any, did Penny commit.
Due to the nature of the underlying allegations and elements of the offenses themselves, there are certain crimes in New York that carry with them a horrendous stigma. Both misdemeanors and felonies, many of these crimes are New York Penal Law Article 130 sex offenses and include Forcible Touching, Penal Law 130.52, on the “lesser” end, and varying degrees of Rape on the more violent side of the spectrum. While it would be hard to disagree that individuals convicted of these crimes are deserving of our collective scorn for their sexual misbehavior and abuse of another, what is unjust is our cavalier willingness to strip these individuals, often men, of their presumption of innocence. Instead of treating and holding them to the same standard we are entitled and would demand for our loved ones, we, without pause, saddle them with something far worse – not a mere presumption but a firmly held determination of their guilt right out of the box. Fortunately for a recent Saland Law client accused of Forcible Touching by a former co-worker, despite this presumption of his guilt and months of challenging the arrest, prosecutors finally dismissed the case against him on the merits.
While everyone is both entitled and deserving of the presumption of innocence, when a man is charged with Sex Abuse and Endangering the Welfare of a Child, the assumption is that he did something terribly wrong. When the accuser is a 13-year-old girl, this belief is compounded, and the overwhelming majority of people will conclude he must be guilty. Why? Because there is no reason a young girl – or anyone – would ever make up such a lie, of course. Unfortunately for a recent client of Saland Law PC’s criminal defense attorneys, despite his unwavering assertion that he did not abuse his girlfriend’s daughter, it took a trial by his peers for his voice to be heard. Fortunately, however, after a nearly two-week trial where prosecutors accused our client of rubbing the young girl’s buttocks and attempting to penetrate her vaginally with his fingers, that same jury rendered a verdict of not guilty on all counts. As much as I would like to say my hard work and trial skills won the day, and that was no doubt a part, sometimes it is not an experienced criminal lawyer who enables a client to escape responsibility for his or her criminal conduct. Instead, an acquittal can simply be a just resolution on the facts and evidence, and exoneration of an innocent person wrongfully accused of a heinous crime.
While being selfish is not criminal, is potentially exposing others to the coronavirus, knowing that you may be infected with COVID-19, a violation of the New York Penal Law? What if you were concerned enough to be tested for the coronavirus and were awaiting the results? What if before you confirmed one way or another whether you were sick and infected, you boarded a JetBlue flight from New York’s JFK Airport to West Palm Beach, Florida? What if that plane carried 114 passengers and crew? What if there were countless news reports about voluntary quarantines, the concerns over air travel, how the disease spreads, and, most importantly, the potential for illness or even death? Sadly, this is not a “what if” hypothetical. The real questions should be whether this passenger committed a crime, and more specifically, Reckless Endangerment in the Second Degree pursuant to New York Penal Law 120.20.
At his State of the State address, New York Governor Andrew Cuomo formally rolled out his proposal to codify the Hate Crime Anti-Terrorism Act and combat anti Semitic and other discriminatory attacks. Encompassing more stringent elements than his late summer consideration of the law, the Governor views this future offense as a class “A1” violent felony. The statute, if passed by the legislature and ultimately incorporated into the Penal Law, would be punishable by life in prison without the possibility of parole.
While by no means an examination of the law since none has yet been codified, the following is a brief review of the potential crime as addressed in a recent New York Law Journal article.
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.
“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 Saland Law 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.
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.
In most negotiated guilty pleas throughout New York City’s Criminal and Supreme Courts, as well as town, village and County Courts throughout Rockland, Westchester and the Hudson Valley, defendants are expected to waive their right to appeal their conviction and sentence. From one point of view, this makes sense. After all, if a defendant and his or her attorney have negotiated a plea deal that they are happy with, why would the defendant turn around and try to unwind what transpired with an appeal to the Appellate Division or Appellate Term. One simple answer is that people change their minds, which is typically not a reason to vacate a guilty plea. However, that change of mind often goes hand in hand with new information or guidance from some other source – information that the defendant’s counsel and/or the sentencing court failed to provide to the defendant when they made the decision to plead guilty. Depending on the nature and importance of that missing information, the voluntariness and intelligence of a guilty plea can be called into question. Despite this, when defendants are routinely expected to waive their right to appeal as part of the plea deal, this often forecloses any otherwise available avenue of vacating that uninformed or underinformed plea.
Thanks to the passage of New York City Administrative Code 10-180, Unlawful Disclosure of an Intimate Image, victims of Revenge Porn and the unauthorized sharing of compromising images in New York City – Manhattan, Brooklyn, Queens, Bronx and Staten Island – now can protect themselves in a court of law. Similarly, those abused elsewhere in the state can avail themselves of NY Penal Law 245.15, Unlawful Dissemination or Publication of an Intimate Image. Not only are distributors of intimate images, videos, pictures and other recordings committing a crime, but you, as a victim, can also file a lawsuit to hold them financially accountable for, among other things, punitive damages. Simply, if an ex-boyfriend, former spouse, or even an affair, shares your intimate images that he or she may have lawfully had at some point but were not permitted to send out to friends, business associates or online, a NYC Revenge Porn lawyer can help you secure justice in every sense of the word. No longer will you have to shrug when you ask, “How can I protect myself as a victim of Revenge Porn?”