New York Criminal Defense Attorney Blog

New York Traffic Accidents-Arrest in Fatal Drag Race Case

Mon, 23 Jan 2012 15:41:48 -0500

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 Rivera could be superseded and enhanced, depending on a determination by the Westchester County District Attorney’s Office.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.

Red Light Cameras—Safety Enhancer Or Revenue Inducer?

Fri, 13 Jan 2012 16:43:36 -0500

Since October of 2010, 37 red light cameras have been installed in the City of Yonkers at 16 intersections. These cameras are also known as “Intersection Safety Cameras.” The question I am addressing in this article is, do red light cameras actually improve safety by deterring red light violations, or is the true motivation behind these cameras to obtain revenue for the municipality?

As background, New York City has utilized red light cameras since 1993, (garnering close to 100 million dollars in revenue for the City in that 18 year period), and they are now installed throughout New York's five boroughs, Nassau and Suffolk Counties, and Rochester. Across the United States, big cities including Atlanta, Baltimore, Chicago, Denver, Los Angeles, New Orleans, Philadelphia, Phoenix, San Francisco, Seattle, and Washington D.C, are now deploying these cameras.

Red light cameras automatically photograph vehicles as they pass through red lights. The camera is connected to the traffic signal and follows the vehicle before, during, and as it passes through the red light, purportedly getting a clear photo of the rear license plate when the transgression is complete. The photographs are reviewed by police officers to confirm that the infraction was committed. If so, the owner of the vehicle (which of course may not be the motorist who actually committed the violation) is sent a notice demanding payment of $50.00 by a certain date, with an additional $25.00 penalty for late response.

Only emergency vehicles including police cars, fire trucks, and ambulances are exempted from red light violations.

Back in May of 2009, the New York Times published an article entitled “Revenue Low, Yonkers Dreams Of Green From Red Light Cameras”, which made the motivation behind the cameras fairly apparent. In the article, a Yonkers City spokesman noted that Yonkers expected to have a budget shortfall of 100 million dollars in 2010, and was hoping to reap millions of dollars in revenue from the fines generated by the cameras. The revenue was to be split with a company called “American Traffic Solutions” (ATS), which was allegedly selected after a competitive bidding process to furnish, install, operate and maintain the cameras. In two recent articles by Phil Reisman of the Journal News, the first of which is entitled “Money Is The Motive For City’s Red-Light Cameras” on January 5, 2012, Mr. Reisman explores the relationship between Yonkers officials such as Mike Spano and Mayor Phil Amicone, and ATS. He points out that Spano was part of a lobbying firm, Patricia Lynch Associates, that was paid a whopping $400,000 to push the red light camera plan, and that ATS also made campaign contributions to both Spano and Amicone.

So the question remains, do the cameras increase safety or is this simply all about the money?

Chicago Bears Wide Receiver Faces Federal Drug Charges

Mon, 19 Dec 2011 14:50:24 -0500

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.

In A Surprise, Jerry Sandusky Waives Preliminary Hearing

Fri, 16 Dec 2011 14:13:55 -0500

On December 13, 2011, Jerry Sandusky, the 67 year old former Penn State assistant football coach accused of 52 counts of sexual assault of 11 victims, made the decision to waive a preliminary hearing in the case. There was tremendous anticipation and drama attached to this hearing, as Sandusky’s attorney and Sandusky himself have denied the charges, and this would have been the first opportunity for Sandusky to confront his accusers and learn exactly what they would be testifying to in a trial of this case. The drama was heightened this week due to inflammatory statements by Joseph Amendola, Sandusky’s attorney, who accused the young men of pursuing their cases to receive compensation, stating: “What better motivation can there be than money?” Amendola further lit the flames by stating that the defense team was “in a fight to the death.”

At a preliminary hearing, unlike a trial, the purpose is to determine if there is sufficient evidence to hold the defendant for a trial of the charges against him. Thus, rather than proving the elements of the charges beyond a reasonable doubt, the prosecution only needs to establish that there is probable cause to believe that the charges are valid and can be proven in a Court of law. The defense does have an opportunity to cross examine witnesses, but not to the same extent as the full cross examination permitted during a criminal trial. The key advantage from the defense point of view is the opportunity to pin down the complainants’ testimony as to exactly what occurred, for later use in cross examination at trial if there are contradictions between hearing testimony, and testimony at trial.

Therefore, it was somewhat surprising that Sandusky chose to waive the preliminary hearing, depriving his defense attorneys of the opportunity to obtain definitive evidence of what he will be facing at trial. Considering that Mr. Amendola waived the preliminary hearing within minutes of its commencement, it appears that a last minute decision to waive the hearing was made by Sandusky and his attorney.

During an interview on NBC News, Mr. Amendola was confronted with the late waiver issue by newscaster Ann Curry, and his explanation was that he had received assurances that if the hearing was waived, Mr. Sandusky’s bail would not be increased at this time (it is presently $250,000) and he could continue to remain out of jail (on house arrest) with an ankle monitor to assure that he does not flee the jurisdiction.

Many legal analysts speculated that the reason for the waiver of the hearing was that a plea deal is in the offing. However, given Sandusky’s age of 67, and the likelihood that a plea would have to involve at least 12-15 years of jail time, it is doubtful that a plea will be accepted by Sandusky, assuming that the prosecution was prepared to offer a plea. Mr. Amendola vehemently denied that a plea deal was offered or being considered, indicating that this would amount to a “life sentence” based on Sandusky’s age.

Another explanation might be that Mr. Sandusky was fearful of the graphic nature of the allegations of abuse that might be offered by the six accusers who were prepared to testify at the hearing. In the “Court of public opinion”, Sandusky is guilty as charged, and he may have been concerned that the additional details of abuse testified to during the hearing would exacerbate an already complicated defense. If the case does reach trial, Mr. Amendola will likely attempt a motion to change venue in the case to avoid jurors who are too familiar with the case to be objective, but with the national notoriety of this case, this will be an exceedingly difficult task.

Comments On Murray Verdict & Sentencing

Thu, 08 Dec 2011 17:07:06 -0500

In the aftermath of the Conrad Murray guilty verdict of involuntary manslaughter and his sentencing on November 29, 2011, there is no question that the prosecution was handed some enormous breaks which do not normally occur in a criminal case. Further, in my opinion, the prosecution of Dr. Murray, while warranted, completely obscured the issue of significant drug addiction in an effort to assess blame for Jackson’s untimely death.

Without question, Dr. Murray provided the prosecution with the basis for a case against him when he voluntarily chose to speak with the police immediately after the singer died on June 25, 2009 and acknowledged having administered propofol to Jackson in the hours leading up to his death. Under normal circumstances, had Murray consulted an attorney first, no defense attorney would have permitted unrepresented questioning of their client which was designed to, and did, obtain damaging admissions by Murray which were used by the prosecution at trial. Compare this with the murder trial of O.J. Simpson, who immediately “lawyered up” after he was accused of the murders of his wife Nicole Brown-Simpson and her friend Ronald Goldman. We all know how that original criminal trial against Simpson ended up, despite a mountain of evidence against him.

What has been obscured in the successful effort to convict Dr. Murray for Jackson’s death is that Michael Jackson was addicted to numerous medications for a substantial period of time, and certainly was given propofol by several doctors, not just Dr. Murray, in the months prior to his death. When one doctor would stop giving Jackson his “milk” as he called it, the singer would simply find another target to obtain this powerful anesthetic. Thus, perhaps Dr. Murray should have had some co-defendants in this case, and possibly, as Dr. Murray claimed but could not prove, Jackson himself administered the fatal dose that June day.

I am in no way excusing Dr. Murray’s conduct, and he certainly was guilty of gross medical malpractice in administering propofol in a non-hospital setting, without monitoring equipment, and leaving the bedroom to go to the bathroom or call his girlfriend, whatever the truth is regarding leaving Jackson unattended. Further, Dr. Murray is guilty as charged for violating his oath to do no harm, and from the start should have resisted the temptation, however enticing, to be paid $150,000 per month as Jackson’s enabler for serious drugs and anesthesia. Dr. Murray deserves to lose his license to practice medicine, period. But to suggest that Jackson bore no responsibility for his own death in light of the evidence of his widespread and longstanding drug addiction, including addiction to painkillers, psychotropic medications and anti-depressants, is a little hard to accept.

There are many similarities to the case of Elvis Presley’s doctor George Nichopoulos, (who issued 10,000 prescriptions to Presley in the first eight months of 1977 before Presley died) who was charged, but not convicted, in August of 1977 when Presley reportedly died of cardiac arrest, but in reality died of a drug overdose. At autopsy, Presley’s blood contained the painkillers Morphine and Demerol, Chloropheniramine, an antihistamine, the tranquilizers Placidyl and Valium, and Codeine, Ethinamate, (prescribed at the time as a "sleeping pill”, Quaaludes, and a barbiturate. If Murray had not admitted to the administration of propofol shortly after Jackson died, he might have ended up as Nichopoulos did, charged but never convicted, even though his license to practice medicine would be gone.

Dr. Murray also made the colossal error, almost beyond conception, of baring his true feelings about the charges against him in a shockingly inadvisable interview with NBC conducted prior to the conclusion of the trial but aired after the verdict. In the interview with Samantha Guthrie of NBC, a former prosecutor herself, Dr. Murray had the very poor sense to utter these words: “I don’t feel guilty because I did not do anything wrong.” Firstly, if his attorneys had any idea that Dr. Murray was planning on being interviewed BEFORE SENTENCING, they should have absolutely forbidden him to do so, and I have to assume that the interview was granted against their strong objections. The statements by Dr. Murray, mentioned over and over by the prosecution during sentencing on November 29, 2011, caused Judge Michael Pastor to castigate Murray for a full 27 minutes, which I would surmise was by far his longest statement during a sentencing in his entire judicial career. Pastor was clearly seething as he pronounced Dr. Murray a continuing danger to society, practicing “experimental medicine” and “money for medicine madness.” The judge continued his diatribe, stating that Murray showed no remorse, and flatly rejected a request by Murray’s defense team for probation rather than incarceration with these words: “Why give probation to someone who is offended by the whole idea that that person is even before the Court?”

Due to overcrowding in the California prison system, Dr. Murray will likely serve a fraction of the 4 year maximum sentence he was assessed. But his problems are just beginning. Dr. Murray will undoubtedly lose his license to practice medicine in Texas, Las Vegas, and California, and the Jackson family is reportedly seeking 100 million in compensatory damages.

Penn State Scandal Spotlights Campus Law Enforcement

Fri, 18 Nov 2011 07:44:43 -0500

The sexual abuse allegations against former Penn State defensive coordinator Jerry Sandusky has led to an upheaval at the renowned university and the firing of legendary coach Joe Paterno. The bigger issue presented by this scandal is the fact that in a majority of the larger colleges and universities, law enforcement is the responsibility of police personnel who report to university authorities, rather than the general public.

The substantial discretion afforded to local campus police in determining whether to refer cases to police and prosecutors answerable to the public rather than school authorities has resulted in some tragic cases in universities throughout the United States, and the promulgation of The Clery Act in 1990. The Clery Act was named for Jeanne Clery, a 19 year old Lehigh University student who was raped and murdered by another student in her residence hall in 1986.

The Clery Act, also known as the Jeanne Clery Disclosure Of Campus Security Policy and Campus Crime Statistics Act, requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crimes on and off their campuses. Enforcement of the Act is monitored by the United States Department of Education, and mandates that institutions give timely warnings of crimes that could be a threat to the safety of students and school employees. A violation of the Clery can result in fines of up to $27,000 for each violation.

Prior to the sexual abuse charges against Sandusky at Penn State, which spanned a 15 year period and at least 8 victims (although there have been numerous reports of additional victims coming forward), there have been several sexual abuse cases in U.S. colleges and universities in which the rights and interests of students received short shrift and the Clery Act appears to have been violated. These include:

Two alleged sexual assaults at Marquette University in October of 2010 and February of 2011 involving student athletes, who were allowed to meet with coaches prior to discussing the incidents with campus police. Apparently, the campus police never notified the Milwaukee Police Department about either alleged assault;

The case of an Eastern Michigan University freshman whose body was found naked from the waist down with a pillow over her head in her dorm room in 2006. The Chief of University Police shockingly found “no reason to suspect foul play” and led her parents to believe that she died of natural causes. The University kept quiet for two full months about the fact that the student eventually convicted in her murder had been previously apprehended climbing into a university building window;

An Arizona State student who was raped in her dorm room in 2004 by a football player who had been expelled from a summer class at the University for threatening and sexually harassing several women on campus. The student was readmitted to the university within weeks of his expulsion at the request of his coach.

The Eastern Michigan University case resulted in a federal investigation and lawsuit that was resolved with Eastern Michigan paying the victims’ family $2.5 million. In the Arizona State University case, the student received a settlement of $850,000 for a violation of her Title IX rights to be free of a hostile environment, with the exact statutory language of the Title IX of the Education Amendments of 1972 requiring that: “"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance..." Arizona State was also required to revise its sexual assault policies and appoint a student safety coordinator.

As for the Marquette University assault cases, they are still being reviewed by the Education Department as to Clery Act violations.

Penn State is now under investigation for its own potential violations of the Clery Act. Further, the scandal has placed the school under the scrutiny of the Education Department’s Civil Rights Division, which sent out a letter this past April to all colleges and universities that accept federal money warning them that they must take cases of sexual violence more seriously and in accordance with Title IX to prevent a hostile environment which would impede equal access to education.

Jackson Doctor Murray Now Faces Civil Lawsuits

Sun, 13 Nov 2011 12:14:31 -0500

Dr. Conrad Murray, the 58 year old cardiologist who was convicted by a Los Angeles County jury this week of involuntary manslaughter in the June 25, 2009 death of Michael Jackson, will now face two additional cases in civil court. In September of 2010, Jackson’s mother Katherine Jackson filed a wrongful death lawsuit against the company AEG Live LLC, the promoter of the ill fated “This Is It” tour that Michael Jackson was rehearsing for when he died. Two months later, in November of 2010, the pop star’s father Joe Jackson filed a civil case against Dr. Murray for wrongful death.

The burden of proof in a criminal case is beyond a reasonable doubt, which is defined as “evidence to a moral certainty…” Reasonable doubt is “doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain, not imagined doubt.” Conversely, in a civil case in which the plaintiff is suing for money damages, the burden of proof is known as “a preponderance of the evidence”, which is defined as: “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it…that is, evidence which as a whole shows that the fact sought to be proved in more probable than not.” Essentially, preponderance of evidence means that the plaintiff must prove the case by evidence just over 50% to prevail, which is obviously a significantly easier burden than in a criminal case, in which the prosecution must prove that the defendant is guilty “beyond a moral certainty.”

Now that the criminal case has resulted in a finding that Dr. Conrad Murray is legally responsible for Michael Jackson’s death, this is a major advantage for the Jackson family in the civil suits, as the criminal conviction of Murray is certainly admissible in the civil trial against Dr. Murray, although it most likely would not be admissible in the civil case against AEG Live LLC, since the defendants are not the same in both cases as they will be in the civil case against Dr. Murray.

Even if Dr. Murray had prevailed in the manslaughter case, we all recall how O.J. Simpson was exonerated of killing his wife and Ronald Goldman in the murder case in October of 1995, and then found liable in the civil case (in a masterful performance by Goldman’s attorney’s Daniel Petrocelli) for 33 million dollars in February of 1997. Thus, a verdict of not guilty in a criminal case does not guarantee that a civil case will have the same favorable outcome. However, conversely, when a defendant is convicted in a criminal case of manslaughter, this is very strong evidence of liability in a subsequent wrongful death civil case for money damages.

Assessing these two cases individually, it is understandable why Katherine Jackson would want to proceed with a civil case against the promoter AEG, since they are undoubtedly seen as the prototypical “deep pocket” defendant who will either try to settle the case for a significant amount prior to trial or have sufficient insurance and or assets to pay a judgment should a Los Angeles County civil jury find AEG to be liable for the singer’s death. I reviewed the complaint for damages filed by Ms. Jackson on September 15, 2010 on behalf of her grandchildren Michael Joseph Jackson, Jr., Paris-Michael Katherine Jackson, and Michael Jackson II. In the 18 page complaint, Ms. Jackson, through her attorneys, has painted a picture of Michael Jackson having no free will, and being the prisoner of a contract with AEG in which in exchange for considerable advances for his contract with AEG to deliver concerts in the “This Is It” tour, they required him to utilize the services of an incompetent physician, Dr. Murray, whose main responsibility was to make sure that Jackson showed up at rehearsals. Further, the complaint contends that Jackson was warned to receive medications and drugs administered to him by Murray, and to discontinue any treatment from previous physicians including his friend and family doctor, Arnold Klein. To be frank, and having watched the movie “This Is It”, Jackson appears fully in control of everything that was going on, and in my opinion will be a hard sell to a jury to claim that AEG forced Michael Jackson to take drugs and use their alleged physician in order to appear for rehearsals. Why would AEG enter into a contract with Jackson if they were so concerned that he would not be physically able to perform the concerts?

In contrast, the case against Dr. Murray in light of the criminal verdict would appear much more solid. Dr. Murray was the person who obtained the propofol, who treated Jackson with this sedative for more than two months at the time of Jackson’s death, and knew or should have known that propofol should only be used in a hospital with the necessary personnel and equipment for such a powerful anesthetic drug. It is probable that a civil jury might also ascribe some or a significant amount of responsibility to Jackson himself, as he was clearly addicted to numerous drugs, and had utilized the services of several physicians prior to Dr. Murray to continue obtaining multiple prescriptions.

In either of the civil cases, there is also the question of what the actual damages are. In wrongful death cases, the elements of damage include the loss of parental support of the children, both emotional and financial. Thus, there would have to be an analysis of what Jackson’s earnings were at the time of his death, as well as his future earnings potential. There are also potential damages for Mr. or Ms. Jackson, if they could prove that Jackson was providing some financial support to them at the time of his death, but based on what appeared to be Jackson’s estrangement from his family at that time, this element of damages will likely not be substantiated.

Michael Jackson Doctor Convicted Of Involuntary Manslaughter

Wed, 09 Nov 2011 09:07:06 -0500

A Los Angeles jury found Dr. Conrad Murray guilty of involuntary manslaughter in the death of Michael Jackson on November 7, 2011. There were 22 days of testimony and 49 witnesses presented to the seven man and five woman jury. The jury deliberated for approximately 2 days before reaching their verdict. Dr. Murray, who is 58 years of age, faces a maximum of four years in prison and will lose his license to practice medicine in the State of California. It is unknown whether he will lose his license to practice medicine in Nevada, Hawaii, and Texas, but since he has now been convicted of a felony, it is likely that he will lose his license in those states as well.

The jury determined that Dr. Murray had been guilty of criminal negligence in providing Jackson with the powerful anesthetic propofol in an inappropriate setting, without the proper monitoring and resuscitative equipment available to be administering this medication normally used in surgical cases in a hospital setting. The prosecution argued that Murray was a greedy, incompetent doctor who was persuaded by a $150,000 monthly salary and the allure of being close with one of the world's most well known entertainers. The defense had countered with the claim that Jackson was a well known drug addict who had in fact administered the fatal dose of propofol while Dr. Murray briefly left Jackson's bedroom to use the bathroom, along with ingesting several pills of Lorazepam which Dr. Murray was unaware of.

The Los Angeles coroner ruled that Jackson’s death was caused by “acute propofol intoxication", in conjunction with two other drugs, including Lorazepam. Dr. Murray certainly did not help his defense in speaking with Los Angeles police investigators two days after the June 25, 2009 death and acknowledging that at Jackson’s request, he had provided propofol to Jackson in his home for two months prior to his death. The most damming evidence against Dr. Murray was in all likelihood the fact that he did not have the proper resuscitative equipment, did not call 911 for twenty minutes (instead calling Jackson’s personal assistant first) and did not inform the 911 personnel that he had given Jackson propofol. He taped some of his conversations with Jackson when Jackson was under the influence of some sedative, which was a double edged sword. On the one hand, the tapes showed that Jackson was certainly complicit and actively requesting that Dr. Murray administer the propofol to help him fall asleep. On the other, the taped conversations raised questions as to Murray's judgment in continuing to provide drugs which would cause Jackson to be incoherent and in need of serious help. Jackson apparently used the euphemism "milk" in repeatedly imploring Dr. Murray to give him propofol.

Dr. Murray’s counsel Ed Chernoff requested that Murray be allowed to remain free on $75,000 bail. However, Judge Michael Pastor noted that Murray was “now a felon convicted of homicide” and stated: “Dr. Murray's’ reckless conduct in this case poses a demonstrable risk to the safety of the public”, in ordering that Murray be remanded to prison until his November 29, 2011 sentencing date.

With the overcrowding of the jails in the California penal system, with all non-violent inmates being transferred to county jail, it is unlikely that Murray will serve any significant time in prison, even if Judge Pastor does sentence him to the maximum of four years. For example, as was widely reported this week, Lindsay Lohan, who was sentenced to 30 days in jail on a probation violation, was brought to prison and then released the same day due to overcrowding. The more likely scenario is that Dr. Murray will end up serving one year of house arrest and no time in state prison.

Florida Life Sentence For Possession Of Child Pornography

Mon, 07 Nov 2011 12:28:19 -0500

Last week, a 26 year old East Naples, Florida man was sentenced to life imprisonment for possession of child pornography. This has set off a debate among prosecutors, defense attorneys, law school professors, former judges and commentators: namely, does the punishment fit the crime? The background is that Daniel Enrique Guevara Vilca, a 26 year old stockroom employee with no prior criminal background, was found to have downloaded 300 sexually explicit photographs and 38 hours of child pornography on his home computer. He was charged with 454 counts of child pornography under Florida law, which makes possession of child pornography a third degree felony, punishable by up to five years in prison. However, since Mr. Vilca was charged with one count for each image he had stored on his computer, he faced more than 300 years in prison, with a minimum of 152 years in state prison.

Mr. Vilca was offered a plea deal of 25 years before trial. His sentence came after a guilty verdict was delivered by a six person jury on October 6, 2011. Mr. Vilca’s sentence was the harshest in the history of Collier County. Previously, one of the harshest sentences for this crime was in 2009, when Naples resident Douglas Deering received a 25 year sentence after pleading guilty to 197 child pornography possession counts.

Vilca’s defense lawyer Lee Hollander argued that people who create child pornography or have been convicted of child molestation do not receive sentences as harsh as his client, and noted: The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute. Daniel has nothing to do with the original victimization of these people; there is no evidence that he’s ever touched anybody improperly, adult or minor; and life in prison for looking at images, even child images, is beyond comprehension.” Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sexual offender statutes, stated: I don’t think [possession of child pornography] should be the same as somebody who commits first degree murder or a string of violent crimes. Part of what the justice system needs to do is punish proportionality.” Douglas Berman, who has a sentencing blog and is a law professor from Ohio State University, noted that in the Vilca case there was a failure to distinguish between the viewers of child pornography and those who actually abuse children sexually, resulting in a “lack of nuance and proportionality that our law demands.”

Conversely, the prosecutor on the Vilca case, Steve Maresca opined that consumers of child pornography keep the market for child sexual abuse alive, and that the sentence sent a message that possession of child pornography is a serious crime, with the images on a computer lasting forever.

Mr. Hollander has indicated that he intends to appeal his client’s sentence, alleging that the sentence violates the 8th Amendment of the U.S. Constitution which prohibits cruel and inhuman punishment. Interestingly, Mr. Vilca could have received a lighter sentence if he had been sentenced under federal guidelines, with federal guidelines recommending a minimum of 57 to 71 months in prison for possession of 600 or more images of young children. Paul Cassell, a former federal judge and present University of Utah law professor stated that a “life sentence is what we give first degree murderers…and possession of child pornography is not the equivalent of first degree murder.”

In New York, under section 263.11 of the Penal Law, possession of an obscene sexual performance by a child is an E felony, punishable by up to four years in prison, 10 years probation, the requirement to register as a sexual offender under Megan’s Law, and fines of up to $5,000.00.

L.I.R.R. Disability Fraud Charges Filed in U.S. District Court

Sat, 29 Oct 2011 12:27:38 -0500

The United States Attorney for the Southern District, Preet Bharara, has had a busy few months, with successful large scale prosecutions against health insurance officials, New York State lawmakers, and inside trading investment bankers. On October 27, 2011, the latest bombshell was dropped: Several former L.I.R.R. workers, including a former railroad union president, and two physicians, have been charged in a massive fraud scheme which could end up costing the U.S. Railroad Retirement Board up to one billion dollars. The charges are premised on a scheme in which former L.I.R.R. employees, who were eligible to retire on a pension at age 50, would be seen by three physicians, Dr. Peter J. Ajemian, and Dr. Peter Lesniewski, (and a third unnamed doctor who recently died), who would prepare false medical assessments in support of the employees’ disability pensions, which would be paid in addition to the retirement pensions. Allegedly, these three doctors were involved in 86% of the false disability applications. The U.S. Government alleges that the doctors were paid between $800.00 and $1,200 in cash for each false assessment and narrative reports, along with millions of dollars to perform unnecessary medical treatments.

The former employees would be able to receive disability and general pension funds which equaled their pre-retirement income. The discovery of the purported fraud was developed from videotapes of many of the defendants playing golf, tennis, working out at the gym and going on 400 mile bike rides, while having claimed that they suffered from severe and disabling back, neck and other injuries. Allegedly, surveillance video obtained by the government depicts one defendant at the gym for over two hours after claiming she could no longer walk stairs, and another defendant shoveling snow for 40 minutes after alleging that she could no longer stand for more than five minutes and had terrible shoulder and hand pain. In the case of the former railroad union president, Joseph Rutigliano, he allegedly never took a sick day, worked 570 hours of overtime in the 12 months before his retirement, and then received disability payments after his retirement in 2006. Rutigliano is also charged as a “facilitator” in assisting other employees in preparing false applications for disability benefits.

Mr. Bharara noted that: ”Employees, in many cases, after claiming to be too disabled to stand, sit, walk or climb steps, retired to lives of regular golf, tennis, biking and aerobics.” The 74 page complaint filed in the United States District Court in Manhattan on Thursday, October 27th charges the defendants under Section 18 of the United States Code, section 1347, which states in pertinent part as follows:

“Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both;”

The defendants were also charged under section 1349, the conspiracy statute, which states:

“Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

It appears that one of the reasons that the scheme was uncovered was reporting in the New York Times as early as 2008 in which it was noted that the federal Government Accountability Office found that LIRR employees applied for disability pensions 12 times as often as any other commuter railroad. MTA data showed that 79% of LIRR employees over the age of 50 received disability benefits from 2004 through 2008. Additionally, the defendants seemed to have not been at all concerned that the scheme would be uncovered. The federal complaint alleges that one of those charged was receiving $105,000 in pension and disability benefits while playing tennis several times a week and golf 140 times during a nine month time frame.

The defendants were arraigned on October 27th and October 28th, with most released on personal recognizance bonds, which would be forfeited if they failed to appear in Court. If convicted on all charges, the defendants could be facing up to 20 years in prison under federal sentencing guidelines.

Queens Mother Acquitted Of Murder But Convicted on Weapons Possession

Mon, 17 Oct 2011 15:41:31 -0500

On October 12, 2011, Barbara Sheehan, the 50 year old Queens mother charged in the shooting death of her husband Raymond Sheehan, was acquitted by a Queens County jury of 2nd degree murder but convicted on a gun possession charge. The case achieved both national and international notoriety as a test of the “battered woman” defense, by which the defendant claims to have committed a violent act due to fear for her life.

The shooting occurred on February 18, 2008 in their Howard Beach, New York residence. Ms. Sheehan shot her husband 5 times using a .38 revolver. When Mr. Sheehan reached for, and then lost control of his 9 mm Glock, Ms. Sheehan grabbed that weapon before he could retrieve it and shot him an additional 6 times.

Ms. Sheehan’s defense was premised on a 17 year history of both physical and verbal abuse by her ex-police sergeant husband, who she alleges committed acts including throwing boiling hot pasta sauce at her, smashing a phone in her face, and locking her out of the house in freezing weather in her pajamas. Sheehan’s daughter Jennifer testified that her father abused her mother for years, and after the verdict, stated that even if her mother had to spend some time in prison, “she’s safe…he was going to kill her.” Raymond Sheehan Jr. called his father an abusive monster who would eventually kill their mother.

The prosecution’s focus appears to have been on the fact that Ms. Sheehan never attempted to leave her husband before the shooting, went on family vacations with him, and killed her husband to end a miserable marriage utilizing the battered woman defense to elude prison. The jury deliberated for three days, and at one point, they claimed that they were “hopelessly deadlocked”, leading to the possibility of a mistrial. However, using what is known generically (and more specifically in the federal Courts), as the "Allen charge", the judge instructed the jury to reexamine their opinions and try to reach a unanimous verdict. It is likely that the 9 woman, 3 man jury finally reached a compromise by acquitting on the much more serious murder charges and convicting on the illegal weapons possession charge.

Apparently, the jury was of the opinion that Mr. Sheehan was seriously wounded after the initial five bullets struck him, and was not a threat to her safety when she fired another six bullets from the Glock. However, if Ms. Sheehan’s accounting of events was accepted by the jury, it is hard to fathom how a violent abuser reaching for his Glock would not be a threat to her safety.

Ms. Sheehan could have faced anywhere from 15 years to a maximum of life in prison on the second degree murder charge under Section 125.25 of the Penal Law of the State of New York, which is an A1 felony. On the criminal possession of a weapon charges, she will likely be sentenced to approximately three years in prison. Although she had been free on one million dollars bail, Ms. Sheehan was immediately taken into custody after the verdict. This was somewhat surprising, since having relinquished her passport, she is not a flight risk, she has apparently appeared for all Court appearances, and has ties to the community, including her two children in Queens. Her attorney has indicated his intention to file an appeal of the gun possession charge, and Ms. Sheehan is due back in Court for sentencing on November 10, 2011.

Former Eastchester Police Officer Convicted of Manslaughter

Fri, 07 Oct 2011 12:24:25 -0500

Former Town of Eastchester Police Officer James Pileggi was convicted of second degree manslaughter by a Westchester County jury on October 5, 2011. Pileggi, 30, was charged in the November 3, 2009 killing of his friend Andre Everett in the driveway of Everett’s residence in New Rochelle, New York. Pileggi, who was off-duty at the time, was apparently trying to show Everett a laser device on his 9 mm Glock 26 when the gun discharged, and Mr. Everett suffered a fatal gunshot wound to the throat. He was pronounced dead at Sound Shore Hospital in New Rochelle.

Pileggi claimed that he believed that the gun was not loaded and that he had inspected the weapon to ensure it was safe. The Westchester D.A. argued to the jury that Mr. Pileggi had disregarded his training in pulling the trigger on a weapon with three other people in close proximity. They further contended that Pileggi showed conscious disregard for the safety of others and was trying to avoid accountability for his recklessness.

Pileggi had been with the Eastchester Police Department for 6 years. Several days after the shooting, he resigned from the department.

The original trial of this case in March of 2011 ended in a hung jury with 10 of the 12 jurors voting for conviction. In a criminal trial, the verdict must be unanimous, whereas in a civil trial for money damages, liability can be established against a defendant with 5 out of 6 jurors in agreement.

Second degree manslaughter under Section 125.15 (1) of the Penal Law of the State of New York is defined as: “recklessly causes the death of another person.” Second degree manslaughter is a Class C felony, with a maximum sentence of 15 years in state prison. After the conviction, Mr. Pileggi’s attorneys had requested that he be allowed to remain free on $50,000 bail, arguing that he had no criminal history and had been early for every Court appearance. However, Judge Barbara Zambelli disregarded this application and ordered that Pileggi be immediately transferred to the Westchester County jail until his sentencing on January 17, 2012.

The judge could sentence Mr. Pileggi to five years probation with time served, but it is likely that Judge Zambelli will sentence Pileggi to some jail time. There is also the likelihood that the family members of Andre Everett will commence a wrongful death suit for compensation against James Pileggi, particularly if Mr. Everett was providing financial support to either a wife, children, or parents. The other viable claim for civil damages would be for the loss of parental guidance if Mr. Everett did have children at the time of his death. However, under New York law, a family member cannot sue for the deceased’s pain and suffering, which claim dies with the death of that person, nor can they make a claim for mental and emotional pain suffered due to the death of a family member.

Michael Jackson Doctor On Trial For Involuntary Manslaughter

Fri, 30 Sep 2011 10:39:06 -0500

The criminal trial of Houston, Texas cardiologist Dr. Conrad Murray, 58, began this week in Los Angeles Superior Court. Murray is charged with involuntary manslaughter in the June 25, 2009 death of the famed pop singer Michael Jackson, who died of cardiac arrest at the age of 50 after Dr. Murray administered the powerful sedative Dipravan, (more commonly known as “propofol”) to help Jackson sleep. Reportedly, Jackson referred to propofol as his "milk."

Under the California Penal Code 192 (b) PC, involuntary manslaughter is defined as an unlawful killing that takes place:
1. during the commission of an unlawful act (not amounting to a felony), or
2. during the commission of a lawful act which involves a high risk of death or great bodily harm that is committed without due caution or circumspection.

Prosecutors started off the case with powerful evidence, including photographs of Jackson from June 24, 2009, during a rehearsal for Jackson’s tour “This Is It”, and a photograph from the following day, depicting Jackson’s lifeless body laying on a gurney. Additionally, the prosecution played a May 10, 2009 recorded message from Jackson (ironically, from Murray’s own cell phone—perhaps he was worried about future liability), in which an incoherent and obviously drugged Jackson discussed his excitement about the upcoming tour.

In opening statements on September 27, 2011, prosecutors claimed that Michael Jackson was abandoned by Dr. Murray after propofol was administered, with Ativan, Valium and Versed in his system, and that Murray “left this vulnerable man, without monitoring equipment, or resuscitative equipment…to fend for himself.”

One of Murray’s defense lawyers, Ed Chernoff, noted in his opening statement that Jackson had 8 Lorazepam (Ativan) pills in his system, “enough to put six of you to sleep”, that Jackson self administered an additional dose of propofol in a fit of frustration when Dr. Murray left the room, which created a “perfect storm in his body that killed him instantly.” Chernoff also continuously referred to what the “science will show you”, clearly in an effort to warn the jurors against deciding Murray’s fate solely on sympathy for Jackson rather than on the admissible evidence presented in Court.

Lorazepam (Ativan) is generally used to relive anxiety, and is in the class of medications known as benzodiazepines. It is generally not supposed to be taken more than 2-3 times per day, and is very addictive. Tolerance is known to develop with long term or excessive use, which it is fairly clear was the situation with Michael Jackson. Further, the literature for Lorazepam advises that the medication should not be taken for longer than 4 months at a time.

Prosecutors contend that Dr. Murray:

1. Gave Jackson propofol as a sleep aid (approximately 4 gallons over the last six weeks of Jackson’s life), knowing that the singer was taking several other sedatives including Valium, Ativan, and Versed;
2. Administered these sedatives without proper monitoring equipment and in a non- clinical environment, such as a hospital where Jackson’s vital signs could be monitored;
3. Was not sufficiently trained in the properties of the various medications that Jackson was taking, in that Dr. Murray is a cardiologist, not a anesthesiologist;
4. Abandoned Jackson by leaving the room to take personal phone calls and to go to the bathroom after he gave Jackson the dosage of propofol at 11:56 am on June 25, 2009;
5. Did not call for an ambulance until 12:20 PM, a full 24 minutes later, instead calling Jackson’s personal assistant at 12:13 PM and leaving a message “call me right away…[Jackson] suffered a bad reaction.”
6. When ambulance and emergency personnel arrived at the Jackson home, Dr. Murray allegedly did not inform them that he had administered propofol, nor that Jackson also had Ativan, Valium and Versed in his system.

Propofol is an anesthetic which is utilized to produce relaxation and sleep in surgical patients. It is also used for patients in intensive care and on a ventilator. Propofol is supposed to be infused into a vein at a hospital or clinic, and only by trained medical professionals. In the contraindications for this medication, patients are warned not to take propofol if they are also taking “barbiturates for sleep and seizures, medicines for depression, anxiety, or psychotic disturbances, or medicines for sleep.” This will be a difficult issue for Dr. Murray to overcome with a jury, in that he knew Jackson was taking a number of contraindicated medications which could negatively interact with the propofol.

Dr. Murray was reportedly being paid $150,000.00 monthly for his services as Jackson's personal physician, and it is well known that Jackson had a proclivity for using numerous drugs to fight insomnia.

The defense claims that Michael Jackson was a drug addict who retained various doctors in an effort to provide him with a continuing supply of powerful medications and prescriptions. Further, because autopsy results indicated that there was a small amount of propofol in Jackson’s stomach contents, the defense contends that Jackson took some of the drug himself, which contributed to the fatal reaction. According to defense counsel, Jackson had a tremendous volume of benzodiazepines in his system, each of which could easily have caused Jackson’s cardiac arrest, alone or certainly in combination with the propofol.

If Dr. Murray is convicted of the involuntary manslaughter charges against him, he could face up to 4 years in prison. Under New York’s Penal Law, there is no specific charge of involuntary manslaughter, but rather, the equivalent charge is known as criminally negligent homicide pursuant to Section 125.10:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

Criminal negligence is defined in Section 15:05 (4) of the New York Penal Law as:

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Criminally negligent homicide in New York is an E felony, punishable by up to 4 years in prison. We will report further on the Murray criminal trial as the case proceeds for the next several weeks.

Hospital Executive Convicted In Bribe Scheme With NYS Legislators

Mon, 26 Sep 2011 10:12:34 -0500

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."

Texting Tickets Dramatically Increased

Fri, 23 Sep 2011 06:51:16 -0500

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.