Criminal Defense

Appellate Division affirmed that “clear and convincing” evidence showed that a defendant was a “stranger” to a 13-year old complainant in a defendant’s appeal of a New York Supreme Court Order that designated defendant a level three sex offender pursuant to  the Sex Offender Registration Act (SORA).

The Court reasoned that since the defendant and the complainant had never met until shortly before the crime occurred, when the defendant happened to be present at the apartment of the complainant’s friend.   Accordingly, the People established, by ‘clear and convincing evidence’ that the defendant was a “stranger” to the complainant within the meaning of risk factor 7 (Guidelines at 12).   Thus, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level, since the defendant failed to identify a mitigating factor not otherwise adequately taken into account by the Guidelines.

People v Sooknanan, 2014 NY Slip Op 04910 [2d. Dept July 2, 2014]

Judge Shira Scheindlin ruled “overwhelming evidence” exists that the NYPD is running a centralized “stop-and-frisk” program that has led to thousands of unlawful stops and arrests.   As a result the federal judge certified a 2008 class action lawsuit that challenges the NYPD “stop and frisk” program.  The class action plaintiffs’ allege the NYPD purposefully engages in the widespread practice of concentrating the “stop-and-frisk” program in minority neighborhoods based specifically on racial composition and quotas.  Judge Scheindlin reasoned the “Defendants cavalier attitude towards the prospect of a widespread practice of suspicionless sops displays a deeply troubled apathy towards New Yorkers’ most fundamental constitutional rights.”   The class action lawsuit challenges the Fourth Amendment’s right to be free from unlawful searches and seizures and the 14 ^th  Amendment right to be free from discrimination.

If you or a loved one has been the victim of an unlawful search and seizure or arrest, please contact the New York criminal attorneys of Bashian & Papantoniou to schedule a consultation.

All businesses, individuals and residents in Nassau County are required to comply with the Nassau County Fire Prevention Ordinance.  The Nassau County Fire Prevention Ordinance is enforced by the Nassau County Fire Marshal and individuals appointed by the Nassau County Fire Marshal to enforce the Nassau County Fire Prevention Ordinance (the “Nassau County Fire Code”).   

The Nassau County Fire Code establishes uniform regulations in conjunction with the recommendations of the Nassau County Fire Commission for the fire and life safety standards of Nassau County businesses, buildings, restaurants, residents and individuals.  The Nassau County Fire Code is also designed to implement the requirements for Nassau County fire detection and suppression systems, which include Fire Sprinkler Systems, Fire Alarm Systems, Fire and Smoke Detection Systems and Automatic Fire Extinguishing Systems.  The Nassau County Fire Code also sets forth the requirements for applications, fees, plans, inspection, testing and recognition of required life safety systems and equipment. 

As business owners, individuals and residents of Nassau County, it is required that you adhere to all provisions of the Nassau County Fire Code.  In fact, many times Nassau County business owners, individuals and residents are unfamiliar with the Nassau County Fire Code, and find themselves facing violations under the Nassau County Fire Code that carry substantial fines and/or potential criminal charges without the knowledge required to properly resolve such allegations.  

Many Nassau County business owners are also unaware that general rule for corporate representation is that corporations are “artificial entities” and must only appear in court through an attorney when confronting a Nassau County Fire Code violation.   Unfortunately, numerous Nassau County business owners are unaware of the requirement to appear by attorney until they are summoned to court and told to reappear on a future date with an attorney present.  Our team of Nassau County Fire Code Violations lawyers prides itself on representing the best interests of your Nassau County corporation, while allowing you to run your Nassau County business in an efficient manner.

At Bashian & Papantoniou, our Nassau County Fire Code Violations Attorneys can assist you in effectively resolving your Nassau County Fire Code violations by appealing such orders through the Nassau County Fire Marshal office or by appearing on your behalf in the Nassau County court assigned to hear and determine such Nassau County Fire Code violation.   In Nassau County, all Nassau County Fire Code violations are heard in Arraignment Room B of the District Court of Nassau County, at 99 Main Street, Hempstead, New York.   The Nassau County Fire Code Violations lawyers of  Bashian & Papantoniou  have a history of successfully representing business owners and restaurants charged with violations of the Nassau County Fire Code.

David Whitaker, 36, is awaiting sentencing on December 2 ^nd  this year, a sentence that prosecutors have asked to be reduced to the lowest possible point thanks to the criminal’s part in a recent FBI investigation. Whitaker, having already served 3 prison sentences, was looking down the barrel of a possible 65-year sentence in Rhode Island when he scored this deal with authorities. The con artist had pleaded guilty in 2008 to ripping off anywhere form $8.7 to $22.6 million from small businesses and credit cards in the state. After creating a corporation known as Mixitforme, Inc. Whitaker would lure clients by claiming strong ties to overseas suppliers as well as being an authorized distributor for Apple, Motorola and Sony products. He would send photographs of inventory and fulfill small customer orders but as more money poured in, to the dismay of paying customers, Whitaker would squander the funds on luxury automobiles, private jet rides and limousine drivers.

Facing charges of wire fraud and conspiracy, among others, Whitaker seemingly had no other choice but to strike the plea deal of a lifetime with officials. He spent two years helping federal agents crackdown on Google, Inc’s involvement with illegal advertisements on their website. Whitaker partook in setting up phony websites in efforts to uncover operators exploiting Google’s advertisement program AdWords to market illegal Canadian pharmacies to American consumers. This past August, the company settled on paying out $500 million dollars for their knowing participation in the scam. Although Whitaker’s bankrupt victims are undoubtedly unpleased with this result, the millionaire con artist now awaits a lenient sentence for his slew of charges.

Allen Stanford, who was convicted in early March of masterminding a ponzi scheme that swindled consumers out of $7 billion, lost his bid for a retrial. Stanford contended that at trial, the judge permitted the media to be present during court sessions where the jury was not present and the parties were off the record. Members of the media tweeted what was said during those sessions and Stanford argued that members of the jury could have easily learned about the contents of those tweets, through Twitter or through family members using Twitter.

Stanford attorney said in papers submitted to the court, “This broadcasting is likely to have reached a juror, since Twitter does not require active pursuit of information, but rather, if a friend of the juror’s was following the ‘Stanford trial,’ the tweets might automatically show up on a juror’s Twitter account.”

According to Stanford’s attorney, members of the jury were not instructed to stay off of Twitter and could have easily learned information outside of the scope of what was permitted, entitling Stanford to a new trial.

The motion for retrial was made to U.S. District Judge David Hittner, the same judge who presided over the trial; the motion was denied in a one-sentence order. Stanford is scheduled for sentencing in June and faces 230 years in prison.

USDJ Judge Paul G. Gardephe granted former New York Police Department officer Gilberto Valle’s motion for a judgment of acquittal by overturning a jury’s conviction of engaging in a Kidnapping Conspiracy (Count One), but denied Valle’s motion for a judgment of acquittal or a new trial for his conviction of conducting a computer search of a federal database that went beyond his authorized access (Count Two).  The Court ruled that this case reflects “the Internet age in which we live” and held that the United States government’s reliance on numerous Internet chats, in which Valle allegedly planned to kidnap, torture, rape, murder and cannibalize women was nothing more than a “fantasy” and not an actual conspiracy to commit the crimes alleged.   The primary issued raised in Valle’s motion was whether the evidence and the reasonable inferences may be drawn from that evidence (i.e. the Internet chats) were such that a rational jury could find that criminal intent had crystallized.  Did Valle and his alleged co-conspirators actually enter into an agreement to kidnap and physically abuse the targeted women?   Justice Gardephe’s decision confirms that Valle did not and that his lack of criminal intent was evidenced by his “veritable avalanche of false, fictitious, and fantastical information concerning himself and the steps he had allegedly taken to facilitate a kidnapping.”

See decision here:  http://www.nysd.uscourts.gov/cases/show.php?db=special&id=410

Greg Kelly, the son of NYPD Commissioner Ray Kelly and a television anchor for  Good Day New York , will not be charged with the rape of a 28 year old woman after an investigation by the Manhattan District Attorney’s Office. The NYPD elected to have the DA’s office, led by Cyrus Vance, investigate the rape allegations to avoid any conflicts of interest from the commissioner.

As reported by the  Daily Mail , in a letter to Kelly’s attorney, Martha Bashford, the chief of the sex crimes unit in the Manhattan DA’s office, wrote,” After reviewing all of the evidence, we have determined that the facts established during our investigation do not fit the definitions of sexual assault crimes under New York criminal law.”

The two-week long investigation included interviews of numerous witnesses, including the accuser and Kelly, and analyses of receipts, security logs, phone records, and text messages. As a result of this investigation, “criminal charges are not appropriate,” wrote Bashford.

“I am thankful that the investigation established what I’ve known all along, that I am innocent of the allegations that were waged against me,” Kelly told the  Daily Mail.

New York State Senator  Jeffrey Klein  aims to modernize the state’s laws with respect to ‘cyberbullying.’ The relatively new term is defined as “causing fear of harm or emotional distress using electronic communications to a person under 21.”

The legislation seeks to include its definition of cyberbullying in the state’s category of third-degree stalking. Furthermore, ‘bullycide’ defined as, “when a person engages in cyberbullying and intentionally causes the victim of such offense to commit suicide,” would be categorized as second-degree manslaughter. Such a conviction could hold up to a 15-year prison sentence, and many would say, rightly so. This piece of legislation reform was presented in a news conference earlier this week, sadly it finds itself on the heels of tragic suicide by  Jamey Rodemeyer , a 14-year old boy from Buffalo who took his life due to years of emotional suffering caused by cyberbullying.

Law reform is a necessity in our growing and evolving society. Bullying has taken on some ugly forms where perpetrators hide themselves behind the safety of a computer, utilizing new popular Internet forums such as Facebook, and Twitter. According to CNN Politics, Klein emphasized this during Monday’s news conference noting that, “no longer is bullying only confined to the schoolyard, it is now piped in an instant through victim’s computers and onto the devices they carry in their pockets. This legislation will help provide protections to those who need it, as well as send a strong message about the seriousness of this destructive behavior.”

At least 30 states already have laws set in place to deal with online harassment and 5 have reformed their laws to explicitly include cyberbullying. Although cyberbullying was addressed at the federal level in 2008, it has been left up to the individual states to address the problem. This bill seeks to elevate New York to the level of modernization so many others have already reached.

Over thirty-five people have been arrested in and around Garden City as part of an investigation into a healthcare fraud scheme that defrauded insurance carriers, including  Medicare  and  Medicaid , out of as much as $250 million, according to the  New York Times . Those arrested are expected to face charges that include racketeering, healthcare fraud, money laundering, insurance fraud, and wire fraud. The forthcoming charges are believed to be based on bills for unnecessary medical treatments from auto accident claims.

This news follows just one day after seven were arrested in Dallas, Texas in a home healthcare scheme that defrauded the federal government out of as much as $375 million in Medicare and Medicaid disbursements. The Texas defendants are said to have registered homeless people for healthcare services never rendered, and the scheme is described as “staggering in its breadth and scope” by federal prosecutors and as the largest known fraud perpetrated by a single doctor to date.

While it is not yet clear what led to the discovery of the NY insurance fraud, the discovery of the Texas operation grew out of newly-administered computer analysis techniques that search for suspicious billing patterns. Since 2009, as reported by the  New York Times , the Department of Justice as charged more than 800 defendants with fraud totaling more than $2.2 billion.

Seven teenagers sit in prison today after committing a fatal hate crime to Ecuadorean immigrant Marcelo Lucero back in November of 2008. Their reason? Because he was Hispanic, they say; and he was not the first. The group of high schoolers found pleasure in seeking out Hispanic members of their community to attack. They expressed their confidence in doing so and in escaping prosecution because their victims do not seek justice out of fear of an investigation into their immigration status or the mere fact that the authorities simply would not address their complaints.

A letter to the County leaders sent last week lists a number of necessary improvements in police policy in addressing and tackling the issue of hate crimes. Steve Levy of the Suffolk County department’s Civil Rights Division, to whom the letter was addressed, was given a 28-page memorandum of recommendations to improve these issues. Of high priority on the list is the implementation of a system where people are free of fear in registering their complaints. Another topic of great importance, awareness that youth are capable of committing heinous crimes such as this one against Lucero and they are not to be easily dismissed.

A PBS documentary entitled “Not in Our Town: Light in the Darkness” is set to air this Wednesday, September 21. It depicts the attack of Marcelo Lucero, his death and provides a narration of the trial that followed. The documentary makes note of community leaders who, in the wake of Lucero’s death, stepped up to address the prevalence of violent hate crimes. The program seeks to highlight the positive actions that some communities are taking in response to anti-immigrant violence.

While six of the seven teens involved will serve a number of years in prison, 19-year old Jeffrey Conroy who inflicted Lucero with the fatal blow, will serve out his manslaughter crime for the next 25 years.

The newest “victims” of the government’s crackdown on insider trading: are father and son  H. Clayton Peterson, 65 and Drew Peterson, 35.  The pair from Denver pled guilty last week, each to one count of securities fraud and one count of conspiracy to commit securities fraud. Clayton Peterson, a board member of Houston-based Mariner Energy is accused of providing his son with insider information about an upcoming acquisition. In April, 2010, Apache Corp. was set to purchase Mariner, which was trading at $17 per share, for $25 a share. Drew Peterson, who traded on the information himself, was also found to have shared the information with family and friends, namely the Chief Executive of a Denver hedge-fund. 

The hedge-fund manager purchased a total $225,000 shares in Mariner stock in addition to over $5,000 options. When the business deal was publically announced on April 15, 2010, he sold his shares and options, making out with a net profit of roughly $5 million. Drew Peterson and his friends are said to have made out with approximately $150,000.

The SEC has filed civil claims against the Petersons, requesting the court to order the return of all illegally obtained money.  The possibility of up to a 25-year sentence in prison and fines of $5.25 million each looms overhead.

Daniel Osazuwa, a homosexual male, who was born in Nigeria was arrested for assaulting a prison guard while serving time after a bank fraud conviction.  Mr. Osazuwa claimed he was giving the guard a hug, a gesture native to his African traditions, and that the homophobic man overreacted. 

At Osazuwa’s trial last year, the prosecution used one of their peremptory challenges to remove a woman from the jury pool.   Now, the subject of the current Appellate Court case in the 9 ^th  circuit, is whether this woman was removed from the jury selection pool because she was purportedly a lesbian.   Peremptory challenges  allow both parties to remove potential jurors without giving a reason justifying their decision to do so.  Although this provides the attorneys with quite a bit of flexibility, it does not however, trump the equal protection clause of the Constitution, forbidding discrimination against certain groups based upon one’s race, gender or ethnicity.  Osazuwa’s defense attorneys have submitted that the clause’s protection should now extend also to one’s sexual orientation.

Prosecutor Mark R. Yohalem claims that the woman was removed from the jury for reasons other than her sexual orientation.   Specifically, the prosecutors submit that when the woman was asked whether anyone had positive or negative feelings towards Nigerians, the woman allegedly replied that she had close Nigerian friends.  On the other hand, Osazuwa’s defense counsel argues that the prosecution’s submission of this information was untrue in that the potential juror was stricken from the jury pool due to her sexual orientation as a lesbian and therefore, the constitutionality of such a peremptory strike should be addressed.  

A ruling that homosexuals are to be included in the heightened protection of the equal protection clause would prove a dramatic advancement in the rights of gay people.  A blanket of security under the Constitution means the right to challenge a whole new set of laws on the grounds of discrimination against one’s sexual orientation. Osazuwa’s jury selection case could have a ripple effect far beyond expected lengths.

 A Federal Judge has ruled that a lawsuit against former Defense Secretary  Donald Rumsfeld  by an Army veteran claiming he was tortured while in U.S. military custody in Iraq will be permitted to move forward.  The 50-year-old veteran was working for an American contracting company as a translator for U.S. Marines in Iraq and was taken into custody right before he was scheduled to return home to the U.S. 

The man claims his family was never notified and he was never charged with a crime or told while he was being held. He further alleges that he was repeatedly tortured until he was released in August of 2006, after nine months of imprisonment, without any explanation regarding his detainment.  In response, government officials have stated that the detainment was predicated upon suspicions that he was helping to provide the enemy with classified information and was aiding anti-coalition forces with their efforts to get into Iraq. The original lawsuit was filed in 2008, two years after the man’s release.  The Obama Administration has asserted that a former defense secretary cannot be sued personally for actions undertaken in the course of his official duties.  This position appears to accord with prior Supreme Court rulings requiring that high-ranking officials must be tied directly to a violation of constitutional rights and must also have clearly understood that their actions were in violation of those rights.

Despite the high bar set by prior Supreme Court precedence,  U.S. District Judge James Gwin  has ruled that the case can proceed.  In his ruling, Judge Gwin stated that “The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad,” This is the second time that a federal judge has allowed a U.S. citizen to sue former Defense Secretary Rumsfeld in a personal capacity.

Eleven former long island railroad workers have been arrested and charged for their role in an enormous fraud scheme.  Retired LIRR employees were found fraudulently claiming to have disabling injuries, some collecting more than $100,000 in pension funds and spending their winnings on the golf courses and tennis courts of long island. The defendants were taken into custody from their homes this past week, comprised of former railroad employees, a federal pension agency employee and doctors who helped prepare false medical assessments of the retirees.

Defendant Gregory Noone, 62, of East Islip, NY, collects $105,000 each year in pension money and disability payments resulting from his work on the railroad. While claiming issues such as severe pain when gripping objects, bending or crouching, Noone can be found gripping a tennis racket several times a week as well as a golf club he used a total of 140 days out of the 9-month golf season last year. Another defendant, Steven Gagliano, 55, of North Babylon, NY, collects roughly $75,000 in annual payments for what he claimed was severe and disabling back pain. Back pain that didn’t seem to cramp his 400-mile bike tour around New York State. The doctors involved, together, account for 86% of the railroad’s disability applications. Receiving roughly $1,000 for each false assessment in addition to the millions they each received in health insurance payments for the unnecessary medical treatments and charges in preparing the false medical records for their clients. The payouts for these fraudulent reports could amount to more than $1 billion if fully disbursed.

The Federal investigation sprung from a series of 2008 New York Times articles revealing the fraudulent scheme. The article reported that nearly every single career employee of the railroad was receiving disability payments for their service in what would seem like the most crippling job in the world.  Now, if convicted, the defendants each face up to 20 years in prison for their crimes.