What’s next for disgraced movie mogul Harvey Weinstein after a Manhattan jury convicted him of First Degree Sexual Act, Penal Law 130.50? Is jail mandatory and, if so, how much prison time is Weinstein facing at his sentencing? Additionally, will the former producer have to register as a sex offender pursuant to New York’s Sex Offender Registration Act (SORA)? What happens now with Weinstein’s potential prosecution in Los Angeles? Setting these issues and questions aside, what is in store for the former silver screen tycoon as he awaits Judge James “Jim” Burke’s last gavel strike on March 11th and beyond?
As I noted on FoxBusiness.Com, Weinstein was remanded – likely in the “tombs” or on Rikers Island – pending sentence. For those who have not experienced the misfortune of being arrested, indicted or convicted of a crime, when a judge orders the Department of Correction to hold a you without the ability to post bail, you are considered remanded. As such, whether you are a multi-millionaire or rely on public assistance, you will not be released. While the attorney for the convicted can seek to change this status and ask for bail to address medical issues before sentencing or assist in a pending appeal, for example, it seems unlikely that Judge Burke or a higher court would alter these conditions knowing that Weinstein is facing mandatory incarceration and further prosecution in Los Angeles.
Whether sentenced on March 11th or not, there are multiple issues that Weinstein’s counsel must consider. First and foremost, Penal Law 70.02 defines First Degree Criminal Sexual Act as a “Violent Felony Offense.” Because of this, the law mandates an enhanced determinate sentence with a mandatory term of incarceration as opposed to an indeterminate sentence with a potential range and no required minimum. Therefore, even if the judge is swayed to limit or minimize imprisonment, he would be unable hand down a sentence less than five years in a NYS prison on this class “B” felony. In fact, Judge Burke can sentence Weinstein to as long as twenty-five years on the charge of Penal Law 130.50 alone. While not technically a life sentence, at 67 years old not only is five years significant but ten, fifteen or twenty-five years “upstate” has the potential to be the functional equivalent. Even assuming Weinstein is released he would not merely get a proverbial walk. Instead, Weinstein would remain under supervision and register as a sex offender.
Its worth noting that according to numerous media reports, the District Attorney in Los Angeles is pursuing separate charges against Weinstein. Because he is in custody in New York, the Los Angeles County District Attorney’s Office would have to secure a Governor’s Warrant to extradite or bring Weinstein back to California. At some point, other than protecting himself from further civil liability, Weinstein may consider trying to secure a plea in the California matter and, if prosecutors and the court agree, run any potential sentence “nunc pro tunc,” meaning that the time on the newer matter would not start upon his return to California, but apply retroactively to give him credit for his time already served in New York. Alternatively, Weinstein can “go for broke” and exercise his rights at trial if there is no offer or plea recommendation made of his liking.
Time will tell – and there is plenty of it for Weinstein – whether there are grounds for a successful appeal in the New York case, what defense he may pursue in Los Angeles and how long he will remain incarcerated. But make no mistake. A Manhattan jury spoke loud and clear. Whether influenced by Weinstein’s notoriety, the #Metoo movement, or they hung their hats solely on the evidence as required, justice and the rule of law can be quite firm. Equally clear, no matter your power, money and privilege, regret and accountability sometimes inescapable.
Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors.