This morning  a suspect in a New York City shooting was  shot six times  in the chest after the suspect was spotted leaving the erotica book launch party on West 22nd Street between Sixth and Seventh Avenue in midtown Manhattan. According to witness accounts, several individuals became involved in an oral argument and seemed to quash it and even hugged. Then one party started shooting.  One of the gunman crashed his vehicle with a police vehicle after fleeing and during a police pursuit. The suspect will likely face charges of attempted murder, assault in the first degree, reckless driving and criminal possession of a  handgun, among others.  Our New York City criminal defense lawyers have defended these types of charges in the past.

In Queens, a woman was arrested after shooting a New York City Detective with a pellet gun. Although the detective was not seriously injured,  the woman, who is being arraigned in the Queens Criminal Court in Kew Gardens, will likely face felony charges of Assault in the Second Degree. Whenever a garden variety assault occurs and the victim is a police officer, emergency medical technician or a bus driver or transit worker, the victim’s occupation raises the level of the crime to a felony. Bus drivers were recently added to this law. The underlying rationale is that these public employees are a protected class and it signals the New York legislature’s intent to add more serious punishment when the victim is employed in certain occupations.

Our White Plains criminal defense attorneys know that Westchester is no longer just a quiet suburb and many of the Westchester cities  such as Yonkers, White Plains, Mount Vernon, Port Chester are now seeing criminal activity that was thought to only occur in New York City. For example, this weekend in Yonkers, there was a car jacking at a local gas station. The victim was held up at gun point and the robbers took his car. Since a gun was involved, this is a high level felony of robbery in the first and if caught the perpetrators face significant jail time.

A constitutional challenge has been launched against New York’s law prohibiting loitering for the purpose of prostitution law. The law prohibits  remaining or wandering about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of patronizing a person for prostitution. The law also prohibits remaining or wandering about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of promoting prostitution. Westchester criminal defense attorneys who fight prostitution charges keep abreast on the development of the caselaw which pertains to New York prostitution laws. 

To establish a violation of this law, an it is not necessary to prove n that the accused made a direct offer of sex for a fee and a case can be proven exclusively upon circumstantial evidence. It is enough for an officer to testify that he observed the defendant engage in a  series of brief encounters with  several passing male motorists.

The latest challenge to New York’s loitering for prostitution law asserts that the law is unconstitutionally imprecise on its face because it allows police officers to decide what kinds of activities constitute “loitering” by suspects.The complaint also alleges that the law impermissibly allows officers the discretion of deciding if a suspect’s clothing was provocative enough to signal that he or she was attempting to solicit customers for prostitution. It is also asserted that the New York City police have enforced the loitering statute in a way that discriminates against minorities, women and transgender suspects because between 2012 and 2015, almost 70 percent of the arrests were in New York City were predominately in the heavily black or Hispanic dominated precincts of New York City.

Our White Plains criminal defense attorneys keep up to date on changes in the law as it relates to civil rights and criminal defense. One of the firmest beliefs among criminal defense lawyers is that the accused has a right to confront their accusers and cross examine those who give evidence against them. This fundamental principal prevents evidence from going before a jury without being challenged and is one of the fundamental principles underlying the hearsay rule. The hearsay rule which is a common law rule that prevents out of court statements from being stated to the jury, when the statement is offered for the truth of the matter asserted.

Since the hearssay rule is intended to ensure the reliability of the evidence that gets offered in Court, the Courts have been hesitant to create exceptions to the hearsay rule and have done so when there are indicia of reliability. One such exception is the dying declaration.  The underlying theory of the dying declaratoin is that if someone is under the fear of impending death, they are likely to tell the truth as to the cause of their death.

In a recent decision, the Appellate Court reversed the trial court and ordered a new trial for two men who were convicted in the Bronx criminal court of arranging the murder of an alleged drug dealer who made dying declarations implicating the two defendants in the crime, The officer was allowed to testify that the victim stated that the two defendants were involved and the First Department Appellate Department in Manhattan held that declarations were mere expression of beliefs  and suspicions rather than statements of facts that a living witness could provide on the stand.. The Court held that although the dying declarant may accuse his or her killer in conclusory language, the declaration is kept out if the setting of the occasion satisfies the judge, or should reasonably  satisfy the Judge, that the speaker is giving expression to suspicion or  conjecture, and not to known fact. So if the victim says, it was John who shot me that would be admissible whereas, if he said I think it was John, that would not be admissible


The Westchester business litigation lawyers at The Law Office of Michael H. Joseph, PLLC are breaking new ground in the legal field involving an unjust enrichment claim. Our New York commercial litigation attorneys won a major victory in overcoming a motion to dismiss in a case where  our client who is   an import company had property which was stored at a warehouse and a customer, who was going out of business  unlawfully  took their inventory and sold it.  While the company that misappropriated the goods was clearly liable, they are in Bankruptcy, so our attorneys were able to establish  that the their lender could be held liable.  The insolvent customer sold the goods to a third party  and the funds went to their factor, with whom the owners of the company had signed a personal guarantee.  The seller had a factoring agreement, a financing method in which a business owner sells accounts receivable at a discount to a third-party funding source to raise capital, with the defendants, a national bank, and an inventory loan agreement, which gave the defendants’ a security interest in, and lien upon, the merchandise contained within a storage warehouse. When a container of the import company’s goods arrived at the warehouse, an employee would confirm delivery, count the goods, and store them until the import company provided express written authorization for their release. However, over a period of two years, the seller unlawfully took possession of the goods and sold them to a third party.

Continue reading

The Westchester Criminal lawyers with offices in the White Plains and midtown New York City are all too familiar with incidents involving police officers using excessive force on inmates or suspects in police custody. However, the long-standing corruption that allegedly existed within the Suffolk County Police Department perpetuated by ex-chief James Burke is at the helm is almost unfathomable. The Suffolk County Police Department is among the top 15 largest police forces in the country with nearly 2,000 officers and patrols most of eastern Long Island.

The ex-chief of the Suffolk County Police Department, James Burke, was criminally charged with deprivation of civil rights and conspiracy to commit obstruction of justice and plead not guilty. In 2012, Burke allegedly took revenge against and beat a man who stole a bag from Burke’s work vehicle which contained his gun belt, ammunition, sex toys, pornography, and other items. In an attempt to retrieve the embarrassing items, Burke abused his discretion as a police office by entering the house of the suspect’s mother to search for evidence and ultimately retrieve his bag. Despite the abuse of authority by Burke and cover-up by the Suffolk Police Department, the suspect was charged and sentenced to three years in prison. During the investigation the ex-police chief used unreasonable and excessive force while interrogating the suspect in a holding cell at the precinct, in which he attempted to cover-up by instructing his subordinates to report that while he was in the precinct, but did not participate in the interrogation. Further, Burke allegedly threatened to kill the suspect with a lethal dose of heroin known as a “hot shot.” Burke continued the abuse as he threatened, punched and kicked the suspect who was already chained to a bolt in the floor.

However, it appears that the beating of the suspect was only the tip of the iceberg. According to prosecutors, James Burke poses a threat to the Long Island community because of his nearly three decade long stint with the police force and the ongoing coercion and secrecy within the police force which included, among other things, paying to hide evidence that he was drunk and crashed his car while following a state official, and planting a GPS device on a rival’s car in order to “dig up dirt” on her and destroy her career. At the grand jury proceeding approximately 11 current and former police officers testified against him, which led to the judge holding him without bail. Although the Judge had originally made a decision to keep the trial closed to the public, opposition challenging the legality of a closed trial voiced from various news organizations such as The New York Times and Associated Press led to the decision to be overturned.

This week two corrections officers at Rikers Island Correctional facility in New York City were criminally charged with orchestrating an attack on an inmate to settle a personal score. If convicted, these guards will be strictly liable for civil damages under the theory of collateral estoppel.

The officers reportedly locked the inmate in a vestibule, while four inmates attacked him. Even though it is the duty of corrections officers to prevent inmate on inmate attacks, the criminal allegations against the guards allege that the guards, not only were complicit in the attack, but actually orchestrated it. This comes on the heals of the recent discovery that some guards were actually members of the Bloods street gang. This is no surprise to New York civil rights lawyers who handle cases arising in Rikers Island. Normally, in an inmate on inmate attack, the Plaintiff or injured prisoner must show that the corrections officers knew or should have known about a threat to the inmate’s safety and they failed to take adequate measures to protect the inmate that was victimized. In this case, the guards are actually ordering the inmates, which clearly means they are not providing reasonable protection. While the standards for civil liability under Federal Law differ depending on whether the inmates are pre-trial detainees or convicted prisoners, the direct ordering of an assault will qualify under either. For State law claims, which require a notice of claim within 90 days of the incident, there is ordinarily negligence liability, but in this case, since it was an intentional act, the correct cause of action is facilitation of a battery and vicarious liability for the battery under agency principles.

Our clients and many other inmates have long complained that the guards are as bad as the prisoners, and these tactics are not new. We have handled cases where the guards turn inmates against other inmates because they are not down with the program and the program is doing whatever the guards say. We have seen cases where low level classification inmates are suddenly put in “hot rooms” which are housing areas where violent and gang affiliated inmates are housed as retaliation for some petty grievance. Despite efforts at so called policy reform, Rikers Island continues to have a systemic culture of violence and our New York City police misconduct lawyers will continue to handle cases for individuals injured by guards directly or by inmates at the direction of corrections officers. While prisoners are not expected to receive the best treatment and are often less sympathetic than the rest of society, we never forget that every inmate is someone’s son or daughter and more often than not, the ones who are victimized are the kids who made a mistake and suddenly find themselves around hardened criminals. While criminals are expected to pay for their crime, they are not expected to be brutalized by other inmates or those who are charged with their care and protection.

Until recently, heroin was thought of as a 1970s drug and had taken a back seat to the more popular drugs such as crack cocaine in the 80’s and cocaine and oxycotin in the 90’s. In the recent decade crystal meth, often called meth or ice, and PCP had gained in popularity. Now heroin seems to have made a major comeback. Our Westchester criminal defense lawyers are handing more and more heroin cases in Westchester County, especially in Port Chester and New Rochelle. Heroin arrests have even been popping up in the more suburban and even rural towns in Westchester County.

While heroin was always in New York City, the volume seems to have increased. Just this week, in Brooklyn, numerous arrests were made in a Brooklyn Heroin ring that was doing one point five million dollars in volume per year. Among the arrests was a Manhattan based drug counselor, which is certainly ironic. In total, twenty five separate individuals are being charged in a 368 State Court indictment which arises out the family run heroin trafficking ring. Our Manhattan criminal defense lawyers have handled numerous felony drug cases and know that especially a lot of the smaller players in these cases are addicts that get caught up just trying to feed their own habits. These smaller players often face sentences that are disproportionate to their crimes and really they need help, not incarceration. Our attorneys have successfully got reductions by getting clients into rehab and are strong proponents of the new drug courts and judicial diversion programs that give people a second chance.

Penalties for heroin depend on the amount of heroin a person is caught with. Small amounts of heroin are punishable as a misdemeanor,larger amounts of heroin or several packages of heroin, which appear to be packaged for sale are usually charged as felonies. Regardless of the level of the charge, our experienced attorneys are here to help.

Courts have struggled with the standard of when they will allow grand jury testimony to be used by prosecutors as evidence in their case in chief to prove a defendant’s guilt at trial.

The introduction of grand jury testimony as evidence-in-chief is normally prohibited because it is violative of both the evidentiary rule barring hearsay testimony and the constitutional right of confrontation. Such testimony would not otherwise be admissible because it has not been subjected to “the vigorous truth testing of cross-examination by a criminal defense lawyer, Recently, the New York Court of Appeals, for the first time, however, rejected a prosecutor’s attempt to introduce grand jury testimony of a recalcitrant witness where the People relied on only a speculative inference to establish the defendant’s misconduct.

Even though prosecutors  bear a heavy burden in seeking to introduce grand jury testimony when a witness is unavailable at trial. Prosecutors may, utilize a framework of inferential reasoning that relies on circumstantial evidence. However, any inferences must be adequately supported by sufficient facts in the record from which a court may infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, caused the unavailability of the witness.This situation typically arises in cases involving gang or organized crime. The situation arises where a prosecution witness is unavailable at trial and the government wants to read into evidence their testimony at a grand jury proceeding where they are not subject to cross examination and in New York a lawyer for the defense cannot even be present. The underlying rationale is that the defendant has intimidated the witness so it is fair, however, often witnesses don’t appear for a number of reasons and our New York City lawyers know that the most common reasons that complaining witnesses don’t come to a trial is that they were lying in the first place or just used a prosecution for an ulterior purpose.

New York civil rights lawyers who handle malicious prosecution cases know that if the client has been indicted in State Court, it is important to obtain the Grand Jury minutes.

While out of respect for comity, a Plaintiff should first make the application in State Court, a Federal Court is not bound by state law protecting the secrecy of grand jury proceedings and the Federal Court must make an independent determination of whether the grand jury transcripts should be released. Where a Plaintiff seeks disclosure of grand jury minutes in Federal Court, principles of federal law dictate the applicable privilege rules.

While the New York State Courts require a compelling interest to overcome the presumption of secrecy, to obtain unsealing of grand jury transcripts in Federal Court, the Plaintiff must show a particularized need for access to the grand jury transcripts. In determining whether to unseal State grand jury minutes, federal courts utilize the ‘particularized need’ requirement for the unsealing of federal grand jury minutes, which is based upon Rule 6 of the Federal Rules of Criminal Procedure.

handcuffs-1413638 (1).jpgA Brooklyn Court has recently granted a motion to suppress the identification of a teenage boy who was accused of firing shots during an armed robbery. A motion to suppress identification is made when the identification procedure is compromised and there is a high probability of misidentification. When a court decides to suppress the identification, it means the identification evidence will cannot be introduced a trial and as a consequence will not be considered by the jury. Often an identification is the crucial evidence in a case, especially in crimes such as robbery, assault and larceny where the parties don’t know each other. Where an identification is suppressed it usually delivers a fatal blow to the prosecution’s ability to prove a case.

The seventeen year old suspect in People v. Newman was identified by a victim of armed robbery as the culprit; however his identification was insufficient because he was placed in a lineup amongst people who were too dissimilar to him. In other  words the placement of the fillers was so poor that it suggested that the defendant was the one that the police believed to be the suspect, so it suggested the defendant as the guilty party. In this case, the defendant’s physical characteristics were so different than the other people in the lineup that there was no chance he could avoid being singled out as the suspect. The other people in the lineup were much older than the defendant and most of them had facial hair while the defendant did not. This type of line up is particularly problematic and potentially unfairly prejudicial because where the defendant is the only person who has a physical appearance which is similar to the person who committed the crime, such as the skin color, age or height. When everyone else clearly does not match the description of the perpetrator, it singles our the accused unfairly.

The police involved with this case said the men in the lineup did not look a lot like the defendant because they were chosen from a local shelter, but the judge did not accept their excuse. He believes they should have done more to provide a lineup composed of people who looked more like the defendant. The Judge said the police officers work was, “woefully inadequate”.