In a somewhat unprecedented move after U.S. Attorney for the Southern District of New York, Preet Bharara refused to resign when Trump took office. Not missing a beat, Trump told Bharara, “You’re Fired” much like the line from his Apprentice TV reality show.

Now New York Federal Criminal Defense lawyers are wondering how Bharara being fired will affect the policy decisions of Federal criminal prosecutions in the Southern District of New York, which encompasses Manhattan, the Bronx, White Plains and Rockland. There is some speculation that Trump’s administration will be more business friendly and there are likely to be a drop in questionable white collar prosecutions, such as for tax evasion, inside trading and other white collar crime. While there is some chatter that Bharara was terminated because of his tough stance against white collar defendants and political figures such as the Republican state assemblyman Sheldon Silver, however, since all of the U.S. Attorneys were simultaneously asked to resign, this theory is probably missing the mark.  But in general, mass resignation requests or firing are significant for an intention to change policy and change the priorities of the Federal government from top down.  While the United States Attorney’s office is supposed to be non-partisan, there can be no doubt that the priorities which the office chooses to focus on for prosecution reflect political choices that often reflect party influence as well as socio-economic backgrounds.

Given Trump’s rhetoric on illegal immigration, he will likely set policy to target immigrants who enter the United States, after previously being deported, which is federal felony and probably using the Racketeering Statute (RICO) to go after gangs and street level crime, such as low level drug dealers, which imposes significant higher sentences than those allowed by New York State law.  This is a shift in priorities from those which Bharara focused on which included insider trading, and public corruption cases where both Republicans and Democrats have been indicted. Ironically, when Bharara was chief counsel to Senator Charles Schumer, he investigated whether the firings of U.S. attorneys in several districts by the Bush administration were politically motivated. Now, he is the one who has been fired.

Our New York Trial Lawyers have a surplus of experience in defending our client’s Fourth Amendment rights, which protect a person against unreasonable searches and seizures. With new technology always developing and the ability to store unlimited amounts of information on a smartphone or website, the protections provided by the Fourth Amendment are constantly looked at and interpreted to see how they apply to this type of data.

This was the central issue of an argument made before New York’s High Court earlier this week after an investigation was launched by the Manhattan District Attorney’s Office into whether certain municipal employees took part in a scheme to fraudulently receive disability benefits. As part of the investigation, 381 search warrants were directed toward Facebook seeking information contained on the accounts of those municipal employees.

Facebook ultimately complied after failed attempts to quash the warrants, however, they have continued to challenge their constitutionality. Facebook’s counsel, Thomas Dupree Jr., argued that the warrants failed to state, with particularity, the things to be searched and items to be seized. He argued they were “general warrants” as they had no time restrictions or content restrictions and also failed to link the material sought to the alleged crime. Dupree fears that the warrants will establish a precedent preventing Facebook from opposing requests by other prosecutors for unreasonable requests thus hindering their subscriber’s privacy.

It was over six months ago that 30 year-old Karina Vetrano went for a jog at Spring Creek Park near Howard Beach, Queens, New York  and did not return. Karina was found raped and murdered prompting a massive manhunt that left  the New York City Police without a suspect. Police had several leads but all fell short when trying to identify a suspect. Police hoped that DNA evidence would serve as a link to Karina’s killer as she scratched the attacker leaving his DNA under her fingernails, however, it was not a match to any State or National database, leaving Police still searching for a suspect.

The New York City Police recently had a break in the case when Lt. John Russo, a Detective, recalled several complaints about three months before Karina’s murder regarding a “suspicious person” holding a crowbar in the area adjacent to Spring Creek Park. At the time of the complaints, Police located the individual, Chanel Lewis, and questioned him as to what he was doing in the area, but nothing came of it. Lt. Russo felt that Lewis may have been a person they should have looked into further.

Acting on Lt. Russo’s hunch, Police uncovered that the day after Karina’s murder Lewis went to the hospital for what he claimed were injuries to his hand, sustained when he was mugged. Lt. Russo believed that Lewis’ injuries and their proximity to the date Karina was murdered, coupled with his complained of behavior in the area where she was found, was very unsettling and asked Lewis to submit to a DNA test.

This week,  sixteen people were arrested in Queens following a raid of an underground casino. The New York City Police department found not only gambling devices, but also found drugs. Presumably everyone present will be charged with possession of the drugs, but whose drugs were they. This unfortunately is an issue that our New York City criminal defense lawyers deal with frequently. It is fundamentally unfair that people who did not even know the drugs were present can be charged under the theory of constructive possession of drugs. Basically the government argues that a person’s presence at a location where drugs were present is sufficient to show constructive possession of the drugs. However, while merely sufficient to bring a charge, it is not enough to win a case because constructive possession of narcotics requires both knowledge that the drugs were present and evidence of some degree of control over the drugs.

The New York State police are presently searching for two individuals who used counterfeit money at a Mohegan Lake game stop. While counterfeiting may seem like a victimless crime, it has serious consequences because it is not only a violation of New York State law, but also violates federal law.  Our Federal criminal defense lawyers who practice in Westchester, know that the penalties for  a federal offense can be much more severe than for a state law charge.

Also, this week,A Mount Kisco woman was arrested and charged with stealing a wallet from a Yorktown wine bar. The woman is being charged with Grand Larceny in the Fourth degree. While stealing a wallet may seem like a petty crime, stealing a credit card is a felony, in and of itself, so there are serious consequences, which a lot of people don’t realize. Most people would think stealing a wallet would be a petty larceny, but the credit card creates significant consequences. For example if you steal  a wallet which has only five or ten dollars, that is a petit larceny,  but if there is a credit card in that wallet, it is now a felony, even if the person was not trying to steal the credit  card.

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Earlier this week a panel of the New York Appellate Division, Second Department published a decision that is of interest to all criminal defense lawyers who handle gun crime cases. In this decision, the New York Court reversed a trial court decision in People v. Graham, where a man was charged with second-degree criminal possession of a weapon and fifth-degree criminal possession of a controlled substance in February 2013. A panel of judges held that the trial court should have suppressed a gun found by police because the man had not been arrested prior to the police discovery of the weapon.

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The United States Supreme Court recently ruled that a subsection of the federal Armed Career Criminal Act, which imposes an increased prison term upon a defendant with three or more prior convictions for a “violent felony,”  which is commonly known as the ‘Three strikes and your out rule” infringes upon the Constitution’s guarantee of Due Process. The Supreme Court held that the “residual clause” of this federal statute was unconstitutionally vague such that it fails to give ordinary people fair notice of the conduct it punishes. Our Westchester criminal defense lawyers  have long fought against arbitrary definitions and unnecessary harsh resuls for transgressions of criminal law  Continue reading

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

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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.

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