New York Criminal Defense Attorney Blog

On September 12, 2011, David P. Rosen, the 63 year old head of MediSys Health Network, was convicted of Honest Services Fraud in a non-jury trial before the Honorable Jed S. Rakoff in U.S. District Court in Manhattan. Specifically, Rosen was convicted of providing several hundred thousand dollars in bribes to 3 New York State legislators.

Honest Services Fraud is part of a federal statute enacted by the U.S. Congress in 1988 under 18 U.S.C. Section 1346 which defines this crime as a: “Scheme or artifice to defraud [includes] a scheme or artifice to deprive another of the intangible right of honest services.”

The three legislators are Democrats Anthony Seminerio of Queens, William F. Boyland of Brooklyn, and Senator Carl Kruger of Brooklyn, who received bogus, no-show contracts worth close to six hundred thousand dollars. Further, in the case of Mr. Kruger, he allegedly received proceeds from a lucrative contract with a hospice care company. Supposedly, Mr. Seminerio received almost $400,000 and Mr. Boyland received approximately $177,000.

MediSys is a non-profit sponsor of hospitals, nursing homes, and neighborhood health centers in Queens and Brooklyn. In exchange for the monies Rosen provided to the three legislators, they were charged with lobbying the State on MediSys’ behalf, and delivering State money to MediSys. Federal agents had taped conversations of Mr. Seminerio, who had supposedly bragged that “…Rosen kisses my feet…they all do; without me, they wouldn’t be in business.” Evidence like this led Seminerio to plead guilty to Honest Services Fraud in 2009. The original charges against Rosen, Boyland and Kruger were filed in March of 2011, which returned the issue of widespread corruption in Albany to the forefront. This corruption resulted in the conviction and removal of former New York State Senate leader Joseph Bruno in December of 2009 for mail and wire fraud.

Assemblymen Boyland and Senator Kruger pled not guilty and are headed to trial, with Boyland scheduled for a non-jury trial before Judge Rakoff on November 1, 2011 and Kruger electing to have his case heard by a jury beginning on January 17, 2012. Mr. Seminerio was convicted of fraud in an earlier case and died earlier this year while in prison. Other defendants in the case include a well known lobbyist, a hospital executive, a health care consultant and a real estate developer, who all pled not guilty and will also have their cases heard in Federal Court.

Mr. Rosen decided to “waive a jury” and proceed in a non jury trial before Judge Rakoff. He faces as much as 70 years in prison, but under federal sentencing guidelines, it is likely that Judge Rakoff will sentence Rosen to considerably less than that. For example, former Illinois Governor George Ryan was sentenced to six and one half years on similar charges, and former Enron executive Jeffrey Skilling was originally sentenced to 24 years and 4 months on similar charges. The conviction was then nullified by the U.S. Supreme Court, which sent the case back to the lower Court for further proceedings, since Skillings’ conduct did not involve bribes to public officials.

Preet Bharara, the U.S. Attorney in the Southern District, said of the Rosen conviction: If there were any doubt about the pervasive nature of public corruption in Albany, today’s multicount conviction of David Rosen should put it to rest once and for all…while this verdict is a very sad comment on the state of affairs in Albany, it also should send a clear message that we will pursue those who violate the public trust.” Judge Rakoff called Mr. Rosen’s conviction a “sad, even tragic case.”

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Motorists who continue to text while driving, beware! There has been a major increase in tickets for texting while driving in 2011, in line with tougher penalties for this traffic infraction that went into effect in July of this year. Most will recall that when the texting while driving ban first went into effect in 2009, it was a secondary infraction, meaning that a police officer could only issue a ticket if he observed the driver committing another violation of the Vehicle & Traffic Law, such as speeding or disregarding a traffic control device. In July of 2011, the texting law was strengthened in a big way as follows:

1. The infraction became a primary violation, so that a police officer can issue the ticket solely based on observations of the driver composing, transmitting, accessing, saving, browsing, retrieving, sending or reading a text;
2. The infraction now results in 3 points assessed to the driver’s license, which is the equivalent amount of points for a speeding ticket (1-10 miles over the speed limit), unsafe lane change, or passing through a stop sign, for example, and;

3. There is a $150.00 fine for the infraction.

In signing the new legislation on July 12, 2011, Governor Cuomo was quoted as saying: “It’s plain and simple…distracted driving leads to tragedies that have affected families all across New York. This new law will help ensure that drivers keep their eyes on the road and their hands on the wheel.” Presently, 34 states and the District of Columbia ban text messaging for all drivers. 31 states and the District of Columbia make the ban a primary infraction and 3 states continue to make the testing ban secondary, meaning that the driver would have to be pulled over for another infraction in addition to texting while driving.

The New York State Department of Motor Vehicles (NYSDMV) statistics tell the tale: In 2011, texting tickets are up 65% from 100 in 2010 to 165 to date in 2011; In Rockland County, there were 21 tickets in all of 2010, and 71 in 2011; and in Putnam County, tickets have increased 77% from 13 in 2010 to 23 in 2011. Across New York State, there were 3,248 tickets issued for texting while driving in 2010 and 4,634 in 2011 to date. Outside of the 5 counties of New York City, texting tickets increased from 1,617 in 2010 to 2,777 in 2011.

The DMV reports that driver distraction is involved in one out of 5 automobile accidents. In 2009, almost 5,500 people were killed in accidents that were attributable to inattentive or distracted motorists and more than 440,000 were injured. The Virginia Tech Transportation Institute found in 2009 that texting drivers were 23 times more likely to be involved in an automobile crash than those who did not text.

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On September 13, 2011, a Westchester County Police Officer was charged along with several Transportation Security Agency officers, a Florida State trooper and several couriers in a drug smuggling conspiracy involving the distribution and sale of Oxycodone (OxyContin) from Florida to Connecticut. The Westchester County Police Officer, Michael T. Brady, 36, is alleged to have been given bribes of more than $20,000 over a several month period to permit the controlled substance deliveries to move through security at the Westchester County airport without detection by authorities.

Also charged in the scheme were two TSA officers from Palm Beach Florida, Christopher Allen and John Best, T.S.A. Officer Brigitte Jones, stationed at Westchester Airport, Florida State trooper Justin Kolves, two Westchester livery drivers, Sami Naber and Manny Babe, and three couriers who transported the drugs and cash proceeds between Florida and Connecticut. The basic allegations are that the TSA officers, along with Brady, made sure that the Oxycodone shipments and cash would avoid standard airport security. On one occasion, it is alleged that Officer Brady intervened and prevented further questioning from airport security when one of the couriers was being interviewed about his possession of almost $100,000 in cash.

The investigation was known as “Operation Blue Coast”, and began in April of this year when a courier was arrested by the federal DEA (Drug Enforcement Administration) officers in Bridgeport with 6,000 Oxycodone pills, and admitted to agents that he would make several trips a week between Florida and Connecticut carrying thousands of pills each time. The courier began cooperating with the DEA, which was supplemented by surveillance and undercover officers to assist in the operation.

Officer Brady was arrested on September 13, 2011 and was released on $750,000 bond after a hearing before a U.S. Magistrate judge in Florida. On September 19, 2011, Mr. Brady appeared before U.S. Magistrate Judge Holly Fitzsimmons in Bridgeport, who allowed him to remain out on bond with the added requirement that he must wear an electronic monitoring device. If convicted of the federal charges of conspiracy to distribute Oxycodone, the defendants face up to 20 years in prison and a one million dollar fine.

According to studies conducted by the federal government’s National Survey on Drug Use and Health, prescription drugs such as Oxycodone (OxyContin), Hydrocodone (Vicodin), meperidine (Demerol), pentobarbital (Nembutal), diazepam (Valium) and alprazolam (Xanax) are second to marijuana in first time abuse by teenagers and adults in 2010. The National Institute on Drug Abuse reports that Oxycodone was responsible for 176,000 emergency room visits in 2009. Apparently, synthetic opiates such as Oxycodone and Hydrocodone are in the same class of drugs as heroin and provide a similar high and “euphoria” to abusers.

In June 2011, 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 including Oxycodone. The bill would assist in limiting overprescribing and locate traffickers with multiple prescriptions. According to Schneiderman, the amount of Oxycodone prescriptions in Westchester went up 31% between 2008 to 2010. Federal authorities maintain that Florida prescribes ten times more Oxycodone pills than all other U.S. states combined, and individual pills sell from $10.00 to $40.00 per pill on the illegal market.

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As reported by Sydney Ember of the New York Times last week, on February 3, 2011, an undocumented immigrant (whose name has not been released by authorities), entered the N & K Quik Pick store in Spring Valley, New York to buy a $10.00 scratch off instant lottery ticket. Lo and behold, the ticket was a $3,000,000 winner! When the man informed the store owner that he had won this huge prize, the store clerk, Atif Ali, told the man that he “would be deported” from the United States if he attempted to claim his winnings. In order to “help” the winner, the clerk stated that he would take the ticket and claim the prize for him.

According to the Rockland County District Attorney Thomas R. Zugibe, Mr. Ali, the store owner, Riaz Khan of Monroe, New York, and a third man, Mubeen Ashraf, also of Monroe, were charged with grand larceny in the first degree. First degree grand larceny is a Class B felony under section 155.42 of the New York State Penal Law, punishable by a maximum of 25 years in state prison. Realistically, if the defendants do not have a prior criminal record, even if they pled to a larceny charge, or another negotiated plea, they would not be facing anywhere near the maximum jail time for this offense.

In order to collect the lottery prize, the winner must sign the back of the ticket to prevent others from claiming the winnings. But since the man had already signed the ticket, the store owner requested that he sign an affidavit indicating that they had purchased the ticket together. Skeptical lottery officials nevertheless paid the first of 20 annual $150,000 payments to the store owner, who then decided to sell the remaining rights to the jackpot to a company known as “Advance Funding” for $600,000. Advance Funding allegedly stated that they entered the transaction after confirming with lottery representatives that Mr. Ali had in fact purchased the ticket.

The majority of the money is now in a bank account which has been frozen pending resolution of this issue. The man will be entitled to receive his winnings, but is unclear how much of the loot he will get, since Advance Funding will certainly claim they entered the transaction in good faith and are entitled to the rights to the prize. According to the attorney representing the man, he “wants to get his money back and get left alone.”

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Ophadell Williams, the tour bus driver behind the wheel on I-95 in the Bronx on March 12, 2011 when the bus flipped over, struck a stanchion and 15 people died, was indicted by a Bronx County Grand Jury last week in the fatal bus accident. Williams, 40, was charged with 15 counts of vehicular manslaughter; 15 counts of criminally negligent homicide; and 23 counts of vehicular assault for the number of injuries suffered by the passengers in the crash. Williams was also charged with reckless driving and aggravated unlicensed operation of a motor vehicle.

The facts are that on March 12, 2011, Mr. Williams was driving 31 Chinese immigrants back home to Chinatown from a gambling trip to the Mohegan Sun Casino in Uncasville, Pennsylvania. Prosecutors charge that Williams was driving recklessly, weaving in and out of traffic, changing lanes unsafely, and speeding. They also contend that he had not had enough sleep to be driving safely. U.S. Department of Transportation investigators have determined that the bus was proceeding at 78 m.p.h when Williams lost control at the time of the fatal accident, which occurred on I-95 near the Bronx-Westchester border southbound. At 5:30 AM that March day, the Worldwide Tours bus swerved, toppled, skidded for 100 yards, and then slammed into a metal road sign, decapitating some passengers and causing severe injuries to others.

Mr. Williams informed investigators that he lost control of the bus when it was clipped by a tractor-trailer, but D.O.T. investigators have not been able to confirm this through physical evidence or witness statements. Williams was driving the bus despite the fact that he had two felony convictions on his record, for manslaughter in 1990, and grand larceny in 1998. Apparently, he used an alias so that his employers and the New York State Department of Motor Vehicles (NYDMV) would not find out about his background.

On the vehicular manslaughter charge, which is a C felony under the New York State Penal Law, Mr. Williams is facing a maximum of 15 years in state prison. On the Criminally Negligent Homicide charge, which is an E Felony, the maximum jail term is 4 years, along with a $5,000 fine. Williams is also charged with the misdemeanor of aggravated unlicensed operation of a motor vehicle under Section 511 of the New York Vehicle and Traffic Law. This charge is issued, for example, when a driver has been determined to be operating a motor vehicle without a valid driver’s license and has already been convicted of this offense, or when a driver is operating without a valid license and has a previous DWI conviction. Lastly, Williams is also charged with the misdemeanor of reckless driving under section 1212 of the Vehicle & Traffic Law.

Mr. Williams was arraigned and held on $250,000 bail. The tragic accident has shed light on some of the practices of the tour bus industry and lax supervision and investigation by the Federal Motor Carrier Safety Administration, (FMCSA), who has pledged reform through the efforts of the head of the U.S. Department of Transportation, Ray LaHood. Further, calls for reform and stricter enforcement have been made by New York Senator Chuck Schumer as well. We will follow this case as it proceeds and report when there are further developments.

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The sexual assault case against Dominique Strauss-Kahn, the 62 year old former International Monetary Fund head which has so captured the public attention for the last 3 1/2 months, was dropped by the Manhattan District Attorney’s Office on August 23, 2011. Strauss-Kahn, the 62 year old former head of the International Monetary Fund, was accused of sexually assaulting Hotel Sofitel housekeeper Nafissatou Diallo on May 14, 2011. Ms. Diallo, 32, accused Strauss- Kahn of forcing her to engage in non-consensual oral sex when she came in to clean his room. The District Attorney’s Office made clear in requesting that Judge Michael Obus drop all charges that Ms. Diallo had major credibility problems. These included the fact that Ms. Diallo had lied about being gang raped in her native Guinea; was recorded discussing the finances of Mr. Strauss-Kahn and stating: “I know what I’m doing”; lied on an asylum application submitted to immigration authorities, and on the date of the alleged attack, continued to clean rooms after she had purportedly been sexually assaulted by Strauss-Kahn.

The ADA handling the case stated: “The nature and number of the complainant’s falsehoods leave us unable to credit her version of events beyond a reasonable doubt. If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so.” Supposedly, this same ADA also remarked that “no one with half a brain would put her [Diallo] on the stand.”

The standard of proof to prove a criminal case, as most people know, is beyond a reasonable doubt, which is an extremely difficult standard to obtain, even in case with the strongest of evidence. The slightest of doubts, as long as there is some basis in fact for those doubts, is enough to result in a not guilty verdict. Each of the credibility issues that Ms. Diallo presented would be enough to defeat the case against Strauss-Kahn, who hired very experienced and competent counsel to defend him against the allegations. It seems likely that the Manhattan District Attorney, Cy Vance, was looking to establish his reputation as a tough and aggressive D.A., having assumed the office only one year earlier from the legendary Robert Morgenthau. Morgenthau was selected by President John F. Kennedy in 1961 as the U.S. Attorney for the Southern District of New York and was elected to the New York County D.A. Office in 1974.

In all likelihood, Vance acted quickly to indict Strauss-Kahn after he had attempted to leave the United States immediately after the alleged assault (he was on an Air France jet at JFK airport when he was arrested) to return to France. Vance may even have been swayed by numerous reports that Strauss-Khan had been accused of sexual assaults in France on at least two occasions previously. Further, the United States has no extradition treaty with France, meaning that had Strauss-Kahn left the United States on May 14, 2011, he might never have returned to face the charges against him. This is precisely what occurred with famed director (and husband of “Helter Skelter” murder victim Sharon Tate) Roman Polanski, who pled guilty to sexual assault in Los Angeles in 1977 and then fled to France to avoid sentencing. Polanski has never returned to the United States since the plea. If Mr. Vance had more time to investigate pre-indictment rather than after Mr. Strauss-Kahn had been charged, it is likely that the D.A.’s office could have been spared the embarrassment and criticism it is now facing for the “rush to judgment.”

Local women’s groups have criticized Vance, claiming that the dismissal will have a chilling effect on other women coming forward to report sexual assaults. Diallo’s attorney attempted to file a motion to appoint a special prosecutor to investigate the charges against Strauss-Kahn, but this motion was denied.

Ms. Diallo has a filed a multimillion dollar civil lawsuit against Strauss-Kahn, but the evidence of the dismissal of the criminal case will be introduced in the defense of the civil action to refute the allegations. On the other hand, the O.J. Simpson civil case verdict, in which he was found liable civilly (in an amount over 30 million dollars) for the wrongful deaths of Nicole Brown Simpson and Ron Goldman (despite being found not guilty in the original murder case) should be a cautionary reminder to Mr. Strauss-Kahn that he is not in the clear just yet.

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Almost two years to the day of the wrong way fatal accident on the Taconic Parkway that killed 8, on July 24, 2011, Tanisha Gomez, a 26 year old resident of East Stroudsburg, PA drove northbound in the southbound lanes of I-95. Ms. Gomez’ 2011 Chevrolet HHR minivan struck a 2005 Nissan approximately one half mile south of the New Rochelle toll plaza. The accident killed the passenger in the Nissan, Reginald Lee of East Orange , NJ, and the driver, Mark Toppin suffered a broken leg, among other injuries. Ms. Gomez is being charged with second degree manslaughter, which is punishable by up to 15 years in prison and a maximum of a $5,000 fine under the New York State Penal Law.

Mr. Toppin was taken to Jacobi Hospital and listed in fair condition on Monday. Blood samples have not yet been disclosed as to whether Ms. Gomez was intoxicated at the time of the accident. It appears that the accident occurred within 2 minutes of notification to state police of the wrong way driver.

Sunday’s crash was almost exactly two years after the now well documented accident involving Diane Schuler, who on July 26, 2009, drove southbound in the northbound lanes of the Taconic, colliding head on with a car heading northbound in the left lane, and killing Ms. Schuler, her 2 year old daughter, her three nieces ages 5,7 and 8, and the three men in the other vehicle. The only survivor of the crash was Ms. Schuler’s 5 year old son Brian.

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Earlier this month, Governor Cuomo signed into law a much tougher ban on texting while driving, effective immediately. Previously, texting while driving was a secondary offense, meaning that a motorist would have to be pulled over for another infraction such as speeding or following too closely in order to be charged with texting while driving. Under the new statute, texting while driving is a primary violation, and the officer can issue a ticket without any other traffic infraction committed.

Penalties for texting while driving have been significantly strengthened as well, as a violator of the law will receive 3 points on his or her license. Fines with surcharges could reach as high as $230.00. According to the National Highway Traffic Safety Administration, 16% of fatal car crashes in 2009 across the United States were due to distracted driving. Governor Cuomo was quoted as saying: The message today is those electronic devices and driving do not mix. Period.”

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