New York Criminal Defense Attorney Blog

In an eye opening article by Brent Staples in the New York Times this past week, the issue of the substantial number of NYC Summons Court dismissals was highlighted. The numbers are rather astonishing: in 2011, of the 528,618 summonses issued for a variety of low level offenses, 330,364 were either dismissed outright or thrown out for various evidentiary reasons. The top ten offenses for which summonses are issued include public drinking, (124,498) at number 1; pedestrians obstructing traffic, (35,051) at number 2; and bicycling on the sidewalk, (28,101), at number 3. Public urination was charged both criminally as a misdemeanor and as an administrative violation a total of 25,419 times. Reckless driving, which is a violation of the New York State Vehicle & Traffic Law Section 1212 and is both a misdemeanor charge and a 5 point traffic infraction, (11 points results in a suspended driver’s license), resulted in 11,803 tickets.

Failure to appear in Summons Court is a serious mistake, particularly when such a large number of the summonses are dismissed. A failure to appear will result in a warrant for the person’s arrest. The defendant will likely then be handcuffed, fingerprinted, and jailed. In New York City, there could be a several day wait before the person is brought before a Criminal Court judge. The issuance of a warrant could lead to a permanent criminal record, which clearly can cause significant difficulties obtaining employment or being granted citizenship, for example.

The civil rights suit which was certified by Judge Robert Sweet of the U.S. District Court in Manhattan, Stinson v. City of New York, alleges that a huge number of the summonses were issued without probable cause by officers who have departmental quotas to meet. The plaintiffs claim that they lost time from work and school and were subject to detention for crimes that never happened. In the lead plaintiff’s case, Sharif Stimson, he alleges that he was leaving his aunt’s apartment building on New Year’s Eve 2009 when several officers appended him without cause, and then threw him in a jail cell for four hours. He was issued a summons for disorderly conduct, which was dismissed three months later.

Another allegation addressed in the suit is the apparently disproportionate number of summonses for public drinking issued to minorities. Officers routinely demand to smell juice containers and coffee cups in an effort to find violators of the public drinking law. Lawyers for the City deny the charges and have requested that Judge Sweet reconsider his certification decision.

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A former Westchester County Police Officer was recently sentenced in New Haven Federal Court to 37 months in prison for his reported role in a drug smuggling ring. 36-year-old Michael Brady of Thornwood was accused of taking approximately $20,000 in cash in exchange for allegedly assisting drug smugglers pass through security at the Westchester County Airport on multiple occasions between December 2010 and April 2011. Mr. Brady reportedly allowed large quantities of the painkiller Oxycodone to pass through security while he was stationed at the airport in his capacity as a Westchester County Police Officer. The United States Justice Department stated drug smugglers carried as many as 8,000 pills per trip through the airport. According to the United States Drug Enforcement Agency, the drugs were smuggled from Florida and later distributed in Connecticut.

Mr. Brady and about 20 other people who were allegedly related to the purported drug smuggling ring were arrested in September 2011. Following a November 2011 indictment, Mr. Brady resigned from the Westchester County Department of Public Safety after 11 years on the police force. In February 2012, Mr. Brady pleaded guilty to two federal offenses: receipt of a bribe by a public official (18 U.S.C. § 201) and extortion under the color of right (18 U.S.C. § 1951). In addition to the 37 month prison term, Mr. Brady was also ordered to forfeit the money he reportedly received as a result of his involvement in the drug smuggling ring and sentenced to three years of additional supervision following his release from prison. If the case had gone to trial, Mr. Brady faced up to 35 years in prison.

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Last Friday, a New Brunswick, New Jersey jury reached a verdict in the case of Dharun Ravi, the 20 year old Rutgers sophomore charged with bias intimidation as a hate crime, invasion of privacy and various evidence tampering charges in connection with webcam spying on his roommate Tyler Clementi, as well as text messages, twitter messages and e-mails he sent to several students to watch the video with him. who three days later committed suicide by jumping off the GW Bridge. After 13 days of testimony and 30 witnesses’ testimony, the jury found Ravi guilty on all fifteen counts against him, with the most serious charge of bias intimidation carrying with it the possibility of ten years in prison. Further, as Ravi is not a citizen of the United States, he is subject to removal (previously called deportation) from the United States after his prison term, if he is sentenced to jail by the Court, or immediately, if he is not.

I was somewhat surprised at the conviction of Ravi for bias intimidation, based on the reports of the testimony in the case, with testimony from both prosecution and defense witnesses that Ravi did not hate homosexuals, had never expressed opinions in this regard, and simply was an immature student who was involved in a prank without much consideration to potential consequences. Although it was not well publicized, it is ironic that Ravi apparently apologized to Clementi in a text at approximately the same time that Clementi updated his Facebook page with this ominous message: “Jumping off the GW Bridge, sorry.”

From quotes I’ve read from the jury, it appears that critical evidence against him on the bias intimidation charges was that he attempted to spy on Clementi a second time, two days after the first webcam video on September 19, 2010, and sent numerous texts and twitter messages to friends to watch the potential sexual encounter between Clementi and his male friend. One juror, Bruno Ferreira, indicated that the jury voted to convict on these charges because Ravi sent multiple twitter messages and Clementi’s sexual encounter, and did this on two separate days. Similarly, Lynn Audet, a 45 year old schoolteacher, said that what convinced her on the bias intimidation charge was “to attempt a 2nd time…A reasonable person would have closed it and ended it here, and not tweeted about it.” She also believed, despite arguments from Ravi’s attorney, that it was Clementi, not Ravi, who turned off the camera on that second occasion, preventing any video from being taken.

In any criminal case, the defense attorney is always faced with the conundrum of whether to put his client on the stand, and perhaps in this case, Ravi might have been able to convince the jury that he did not have malicious and homophobic intentions in setting up the webcam to watch his roommate’s gay sexual encounter. The problem, particularly in this case, is that the prosecution was armed with several inches worth of twitter feeds, text messages, and e-mails in which Ravi was quoted as saying things like “got to keep the gays out”, which he certainly would have been confronted with on an extended and grueling cross examination.

The jury obviously soundly rejected the defense theory that the webcam, spying and twitter/text messages were the actions of an immature kid who had no hostile intentions. The defense had offered the clearly weak explanation that Ravi believed Clementi’s older male visitor (identified only as “M.B.”) was “shady” and might try to steal some of Ravi’s possessions while in the room he shared with Clementi. Further, the jury was persuaded that Clementi felt intimidated by the fact that Clementi checked Ravi’s Twitter feed 38 times from the time he learned of the webcam spying until his suicide three days later.

Ravi rejected two plea deals prior to trial. The first would have required a plea of guilty to the bias as a hate crime charge, with a recommendation of 3-5 years in prison, although the judge could have decided to waive the jail time. The second would have included no jail time, probation, 600 hours of community service, and counseling. It is hard to fathom why Ravi would turn down that deal, particularly because the prosecutors were also offering their assistance in working with immigration authorities to prevent Ravi’s removal from the United States.

Ravi’s attorney has vowed to appeal the verdict. He will be sentenced on May 21, 2012 and faces a maximum prison term of 10 years. If Ravi does get prison time, Immigration and Custom Enforcement officials (ICE) would be informed when Ravi is being released from jail, and he could be removed to his native India at that time. Bottom line is that the New Brunswick jury sent a message which will have far reaching and long lasting reverberations: Cyberbullying is just as serious as physical intimidation and the “kids will be kids” defense is, literally, not a “Get Out of Jail Free” card.

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This week, one of the five Columbia University students who were charged with selling drugs on campus in December 2010 was sentenced by a Manhattan court to five years probation. 21-year-old Adam Klein was sentenced after he agreed to a plea bargain in which he pleaded guilty to attempted criminal possession of a controlled substance in January 2012. According to the agreement, if Klein completes his term of probation without any problems, the charge will be expunged from his record. Klein initially faced a prison term of up to 2 1/2 years.

In a statement read before the court, Klein, who is no longer a student at Columbia University, apologized to classmates and professors. He stated that he realized that his behavior was unacceptable and brought needless negative attention to Columbia. The former neuroscience and behavior major and fencing team competitor now attends the City University of New York. He also works as a tutor.

The five arrests were part of a New York City police sting operation during which narcotics officers purchased more than $10,000 worth of drugs from Columbia University students. Most of the drug sales took place inside three fraternity houses, Alpha Epsilon Pi, Pi Kappa Alpha, and Psi Upsilon. All of the students charged with drug sales and the three fraternity houses where drug sales purportedly took place were suspended from the school. The fraternities are currently on university required three-year improvement plans.

Previously, three of the other students charged pled guilty and another, 21-year-old Christopher Coles, was allowed to enter into a pretrial rehabilitation program for drug addiction. The drug treatment program is part of a 2009 reform of New York’s drug laws which provides state judges with the discretion to send some nonviolent criminals to rehabilitation in lieu of prison. Although Klein and two other students asked to enter the program, their requests were rejected. Three drug suppliers who did not attend the university also pled guilty in 2011.

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In a follow up to our post on March 2, 2012 “Rutgers Dorm Spying Trial Begins”, testimony in the case against 20 year old student Dharun Ravi ended on March 12, 2012 without Ravi taking the stand. The case involves Ravi spying on his Rutgers roommate Tyler Clementi with a webcam on September 19, 2010 and then trying to do the same on September 21st in order to capture Clementi in a sexual encounter with a male friend. A day later, Clementi committed suicide by jumping off of the George Washington Bridge, although the specific reasons for his suicide have never been made public by the family (a note was left) and Ravi is not charged with Mr. Clementi’s death.

Ravi was charged with invasion of privacy, attempted invasion of privacy, witness tampering, tampering with evidence, hindering apprehension, and the most serious charges, bias intimidation as a hate crime. This latter charge has garnered the case international attention due to the prevalence of bullying and “cyber bullying” in the news. The bias intimidation charges, which are premised on the claim that Ravi set up the webcam because he hated gays and was trying to intimidate Clementi due to his sexual preference, carries with it a ten year maximum sentence as well as the possibility of Ravi’s removal (formerly known as deportation) from the United States as he is not a U.S. citizen. The defense has refuted the bias intimidation charges with evidence that Ravi never expressed a dislike of gay people to any of his friends or classmates, and allegedly told friends he liked Clementi.

Based on witness accounts of the evidence at the trial, this is an assessment of the relative strengths and weaknesses of the prosecution’s case and the likelihood of a conviction on each of the charges.

Invasion of privacy: This charge arises from Ravi’s setting up the webcam in the room that he and Clementi shared to observe the sexual encounter between Clementi and his male friend. The evidence on this charge appears to be strong as numerous witnesses have confirmed that this occurred, including testimony from the male friend identified only as “MB.”

Attempted invasion of privacy: This charge results from the effort by Ravi two days after the original videotaping to record Clementi again. Apparently, Mr. Clementi was aware of the camera by this time, and either he disabled the webcam or it malfunctioned, since no video was obtained. However, there was testimony from a friend of Ravi’s, Lokesh Ojha, who admitted assisting Ravi in positioning the camera so that it was pointed at Clementi’s bed. The evidence seems strong on this count, increasing the likelihood of a conviction.

Tampering with physical evidence: This charge is based on the deleting of a tweet that Ravi initially sent to his friend Molly Wei (who testified in the case under a deal with prosecutors for a lighter sentence). Wei viewed the original video with Ravi on September 19th and is a critical witness in several counts of the prosecution’s case. This also appears to be a strong count for the prosecution.

Hindering apprehension of prosecution: These charges arise from Molly Wei’s testimony that Ravi instructed her to tell the police that the taping was a “prank” and that they did not intend to spy on anyone. This is another charge which if Ravi was convicted of, he could serve jail time of 5-10 years. However, apparently the judge indicated before the trial that he would be lenient on sentencing if there is a conviction on this charge.

Witness tampering: This charge also relates to communications that Ravi had with Molly Wei when she was being questioned by police. He sent her a message stating: “Did you tell them we did it on purpose…because I said we were just messing around with the camera…He told me that he wanted to have a friend over and I didn’t realize they wanted to be all private.” This also would seem to be a solid charge for the prosecution.

Bias intimidation: This is the primary part of the State’s case, that Ravi meant to intimidate Clementi and his friend because they were gay. The prosecution has offered evidence to establish Ravi’s negative feelings toward gay people including computer messages from Ravi as follows: “We have to keep the gays out…[I saw] Clementi making out with a dude…Ew.” To counter these charges, the defense has noted that even the prosecution’s witnesses indicated that Ravi never expressed animosity towards homosexuals and told some of his friends that he liked his roommate. Thus, it may be a very hard sell to make to the jury, and particularly with the harshness of the outcome of a guilty verdict on this charge, including a possible ten year sentence and removal from the United States, it is unclear if the jury will convict on this charge.

It is likely that the jury will reach a verdict this week and we will report further after this very interesting and potentially trend setting case is decided.

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On February 24th, the trial of 20 year old Rutgers University student Dharun Ravi began in Middlesex County, New Jersey. Ravi has been charged with 15 counts of invasion of privacy, evidence and witness tampering, and the most serious charge of bias intimidation as a hate crime. Ravi is accused of having set up a webcam in the dorm room he shared with his then roommate Tyler Clementi on September 19, 2010 in order to record Clementi’s intimate sexual encounter with another man. Ravi also posted on Twitter that he observed his roommate “making out with a dude.”
Three days after Ravi recorded and viewed the encounter, Clementi, 18, committed suicide by jumping from the George Washington Bridge. The case is being followed nationally, and raises many issues prevalently in the news, including privacy in the age of Facebook, Twitter and other social media, and cyber bullying resulting in teen suicide. The evidence and witness tampering charges arise out of several text messages sent by Ravi to witness Michelle Wei when she was being questioned by prosecutors. She testified that Ravi wanted to know what she was telling them, and stated: “Did you tell them we did it on purpose? What did you tell them when they asked why we turned it on? Ravi wanted Wei to give investigators the impression that the videotaping was “more of an accident.”

On the bias intimidation charge, if found guilty, Ravi could be sentenced to up to 10 years in jail. Additionally, as Ravi was born in India and is not a U.S. citizen, he faces potential deportation (now officially called “removal”) from the United States if convicted of the most serious criminal charges.

Prosecutors contend that Ravi’s actions were “meant to cross one of the most sacred boundaries of human privacy—engaging in private sexual human activity…and were planned to expose Tyler Clementi’s sexual orientation.” In contrast, the defense denied that there was any element of intimidation in Ravi’s actions, and claimed that Ravi did not dislike gay people. The defense argued that Ravi made a “stupid mistake”, and “did not intend to intimidate anyone.”

Generally, New Jersey’s 10 year old bias intimidation statute has been utilized when there has been an assault or other physical intimidation, rather than in invasion of privacy cases. But in recent years, there have been reported cases of online intimidation leading to tragic instances of suicide and serious mental distress. In order to prevail on the most serious charge of bias intimidation, the prosecution will have to show that Clementi reasonably believed that he was singled out for his sexual orientation, and was intimidated by Ravi’s actions. Thus, the state of mind of both Clementi, as victim, as well as Ravi, as alleged perpetrator, will be critical in deciding the outcome.

Prosecutors called Molly Wei to the stand as one of their first witnesses. Ms Wei was initially charged with invasion of privacy for watching the furtive video as well, but in a plea deal with prosecutors, the charges against her were dropped in exchange for her testimony against Ravi and the requirement to perform 300 hours of community service. Wei testified that she observed Clementi kissing another man for a few seconds. She alleged that although Ravi knew his roommate was gay, but did not consider this to be an issue. Similarly, other witnesses offered by the prosecution denied that Ravi had a problem with homosexuals, and one witness claimed that the only comment that Ravi made about the encounter he witnessed is that the male guest of Clementi “looked shady.”

In an important victory for the defense, they were able to prevent the jury from hearing that Mr. Clementi had requested a room change from the Rutgers administration due to “roommate with webcam spying on me.” The jury was only advised that Clementi did make the room change request, but not the reason. Although there has been a presumption that Clementi committed suicide due to his exposure in the webcam video, his motivation for killing himself has never been publicized.

We will monitor developments in this potentially groundbreaking trial.

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On February 17, 2012, ex Westchester County Police Officer Michael Brady pled guilty in the U.S. District Court in Bridgeport, Connecticut to federal charges of accepting bribes in connection with an Oxycodone distribution ring. The case began back in September of 2011 when Brady was charged with being a participant in a conspiracy to distribute and sell Oxycodone from Florida to Connecticut. The other alleged members of the ring included two TSA Officers from Florida, a Florida State trooper, two livery drivers from Westchester County, and three couriers whose job it was to transfer the drugs to Connecticut and return cash proceeds to Florida.

Brady was accused of having accepted approximately $20,000 in bribes between late 2010 and April of 2011. He was with the Westchester County Police for 11 years, and had previously been employed as an officer with the New York City Department of Environmental Protection.

The investigation by the U.S Attorney’s Office in Connecticut began in April of 2011, and was called “Operation Blue Coast”. In April of last year, a courier was arrested by DEA (Drug Enforcement Administration) officers in Bridgeport in possession of 6,000 Oxycodone pills. The Courier admitted to agents that he shuttled several times a week between Florida and Connecticut carrying thousands of pills on each trip. He began cooperating with the DEA, leading to Mr. Brady’s apprehension and arrest on September 13, 2011. Brady had been out on $750,000 bond with the requirement that he wear an electronic monitoring device.

As part of the guilty plea on February 17, 2012, Mr. Brady agreed to a prison term between 37 and 46 months, and will pay fines between $7,500 and $75,000. Additionally, he will have to make a payment of $20,000, which is alleged to be the amount he received in bribes. Had Mr. Brady gone to trial, he could have faced a maximum sentence of 20 years in jail and up to $250,000 in fines. He will be sentenced on May 10, 2012.

The National Institute on Drug Abuse reports that Oxycodone was responsible for 176,000 emergency room visits in 2009. Last June, New York State Attorney General Eric Schneiderman stated that he was behind a bill to create an online database to record the prescription and provision of controlled substances, which include Oxycodone. The bill would attempt to curtail excessive prescription of controlled substances and seek to track down traffickers with multiple prescriptions. Schneiderman noted that the amount of Oxycodone prescriptions in Westchester increased 31% between 2008 and 2010. Federal authorities claim that Florida prescribes ten times more Oxycodone pills than all other U.S. states combined. One Oxycodone pill can sell for between $10.00 and $40.00 on the black market.

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On January 18, 2012, Steven Rivera, a 25 year old resident of Ossining, was arrested by the New York State Police and charged for his role in a fatal car accident on June 26, 2011 on Interstate 287 in Yonkers. In the incident, which police have charged was an “Unauthorized Speed Contest”, two people were killed in the vehicle Rivera was reportedly racing, Travis Clark, 27, and Jillisa McCarthy, 20. Clark was the driver of the other vehicle and Ms. McCarthy a front seat passenger.

Allegedly, Rivera and his friend Clark were racing at speeds over 100 m.p.h when Clark lost control of his vehicle and struck a signpost, tearing the post from the pavement. Initially, Mr. Rivera gave a statement to police but did not acknowledge any role in the fatal crash other than as a witness, according to the New York State Police.

Mr. Rivera is now charged with three misdemeanors. The first is “Unauthorized Speed Contest”, an unclassified misdemeanor under Section 1182 of the New York Vehicle & Traffic Law. If found guilty of this charge, the maximum penalty is up to 30 days in jail, a $300.00 to $525.00 fine, or both. He is also charged with Reckless Endangerment under section 120.25 of the Penal Law of the State of New York, which is a class A misdemeanor, punishable by up to 1-3 years in jail and a $1,000 fine. Lastly, Rivera is charged with Falsely Reporting an Incident under section 240.50 of the Penal Law, also a Class A misdemeanor with the same possible penalties.

Due to the two fatalities in this case, a New York State Police spokesperson noted that the charges against Mr. Rivera could be superseded and enhanced, depending on a determination by the Westchester County District Attorney’s Office.

Mr. Rivera has been released on his own recognizance and for the moment, his case is pending in the Yonkers City Court. If the charges against Mr. Rivera were upgraded to felonies, this would be beyond the jurisdiction of the local City Court in Yonkers and the case would be transferred to the Westchester County Court in White Plains.

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In what has the potential to become one of the biggest scandals in NFL history, (and possibly in any of the major sports), Chicago Bears wide receiver Sam Hurd was arrested by Department of Homeland Security Agents on December 14, 2011 and charged with conspiring to distribute cocaine. Hurd, 26, is in his first year with the Bears and previously played for the Dallas Cowboys for 5 years. There was a 5 month investigation leading up to the arrest, which began in Dallas. Federal authorities allege that Hurd was attempting to set up a drug distribution network. There have been reports, denied by the NFL and Hurd’s defense attorney, that Hurd had a list of at least 20 NFL players that he was distributing drugs to.

Immediately upon learning of his arrest on drug distribution charges, the Chicago Bears announced that they were releasing Hurd.

The facts as they are presently reported are that Mr. Hurd arranged to meet with a man he believed to be a drug distributor on December 14th. He told the man, who was in fact George Ramirez, a special agent with Homeland Security, that he was seeking to develop a drug distribution network in which he could obtain 5 to 10 kilograms per week of cocaine, and 1000 pounds of marijuana per week at a price of $25,000 per kilogram of cocaine and $450.00 per pound of marijuana. (A kilogram is approximately 2.2 lbs.). Hurd reportedly informed Ramirez that he had been distributing four kilograms of cocaine weekly in Chicago but his supplier was not able to provide him with sufficient quantity.

After believing that they had an agreement, Hurd took possession of one kilogram of cocaine and assured the agent that he would pay for the drugs after practice the next day. When Hurd walked to his car, he was arrested when he placed the bag in his vehicle.

I have reviewed the criminal complaint and the affidavit of Agent Ramirez, which was sworn to on December 15, 2011. In the United States of America v. Samuel George Hurd III, Hurd is charged with a violation of Title 21 of the United States Code, Sections 841 (a)(1), (b)(1)(B)(ii)(II), and 846, in that he allegedly:

Knowingly, intentionally and unlawfully combined, conspired, confederated and agreed with other persons known and unknown, to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a controlled substance.

Reviewing Mr. Ramirez’ affidavit, it indicates that back in July of 2011, Hurd’s associate, identified only as “T.L”, was involved in a routine traffic stop in Dallas. A search of T.L.’s car revealed bag containing marijuana and $88,000.00 in cash. T.L. informed the authorities that the money was Hurd’s, that he serviced Hurd’s vehicles and claimed that Hurd frequently left large sums of money in his vehicles. (At the time, Hurd was still playing for the Dallas Cowboys). Rather than simply forget about the money, Hurd began contacting the Homeland Security requesting a return of the $88,000. Over the next month, Homeland Security agents determined that Hurd was associated with four individuals from California who were apparently involved in narcotics trafficking and money laundering.

For the next four months, according to the affidavit, Hurd continued to pursue the drug trafficking network, and placed numerous phone calls and text messages to pursue this goal. Ultimately, Hurd arranged to meet with the “supplier” to discuss terms of an agreement and a “long term business relationship.” It was after this meeting that Hurd was arrested.

Hurt was arraigned on December 16th in Chicago and released on $100,000 bond, with the requirement that he surrender his passport and any firearms. The case will be tried in Texas, where the charges originate. If Hurd is convicted on the drug conspiracy charges, he faces up to 40 years in jail and a $2,000,000.00 fine.

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