15 Year Old Driver In Fatal Crash in Bucks County, Pennsylvania

September 4, 2014 by Mark Siesel

A 15 year old girl from Pleasantville behind the wheel of a 2001 Chevy Suburban in Lake Ariel, Pennsylvania on August 30th is now facing several criminal charges, including possible vehicular manslaughter, as the result of a fatal accident which left three 15 year old boys dead and two other passengers injured. Because of the girl’s age, authorities have not released her name. At approximately 11:30 AM this past Saturday, August 30th, the driver, four 15 year old boys from Bucks County, Pennsylvania, and a 16 year old girl from Westchester were passengers in the vehicle which overturned while the group was on their way home from a local restaurant for breakfast.

According to investigators, the vehicle was purportedly travelling at a high speed on Goose Pond Road. This road is described as a hilly, winding, 2 lane roadway with a speed limit of 40 miles per hour. The car went into a left hand curve, one of the right tires apparently went off the roadway, and the car flipped more than once. A local resident from Lake Ariel heard one of the passengers screaming “Slow down…slow down” just before hearing a loud crash. One of the 15 year old boys was pronounced dead at the scene and two others were taken to local hospitals and died there. The three boys who were killed in the crash were identified as Ryan Lesher, Shamus Digney and Cullen Keffer, who all attended Council Rock High School in Bucks County.

Under both New York and Pennsylvania law, a driver must be at least 16 years of age to obtain a learner’s permit. Further, both states mandate that 16 year old drivers travel with a licensed driver who is at least 18 years of age. Here in New York, if the driver was charged as an adult, she could face vehicular manslaughter and criminally negligent homicide charges, which are felonies with potential jail sentences of up to 4 years in jail on each count. It would appear that if the driver is going to be criminally charged, as has been reported, there would be three charges of vehicular manslaughter or criminally negligent homicide, for the three boys that were killed. Additionally, she is also likely to be charged with misdemeanor reckless driving, the less serious criminal charge of unlicensed operation, and the traffic infraction of speeding.

Because the driver is under 16, she will be charged under the Pennsylvania Juvenile Act and under this statute, the details will not be made public.

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NY D.A. Announces Indictments In Stub Hub Hacking Case

July 25, 2014 by Mark Siesel

In a chilling account for those of us who purchase tickets for concerts, sports events and Broadway Shows, Manhattan District Attorney Cyrus Vance, Jr. announced on July 23rd the indictments of six men on charges that they were members of an international group that defrauded Stub Hub and its customers of approximately 1.6 million dollars. Stub Hub is owned by eBay.

The indictments were against residents of New York, New Jersey and a Russian national who was vacationing in Spain and was arrested there. Three others were arrested in London, and one in Toronto. Apparently, using technology which allowed “key loggers” (which record each keyboard stroke of the user to steal the user’s identity) to get the login credentials and passwords of a small number of accounts, hackers were then able to obtain credit card and debit numbers of these unwitting victims. It has been reported that Stub Hub was alerted to the purported criminal activity last year and has been cooperating with the authorities to apprehend the members of the international crime ring.

The defendants are charged in the New York County Supreme Court with several counts of money laundering, grand larceny, criminal possession of stolen property, and identity theft. Each of these charges are felonies, ranging between Class B and Class E felonies.

The group would use the stolen credit and debit cards to buy thousands of tickets to events such as Yankee games, Justin Timberlake concerts and popular Broadway shows including “The Book of Mormon”, and then resell the tickets for a substantial profit. The authorities were able to track the defendants using their I.P addresses (Internet protocol), Pay Pal accounts, and bank accounts. Proceeds of the resold tickets were apparently deposited in bank accounts in Germany and Britain, as well as in multiple Pay Pal accounts.

The defendants range in age from 21 to 37, and are charged with buying approximately 3,500 tickets to then resell for a profit. The Russian national, Sergei Kirin, 37, advertised money laundering services on the internet and is charged with laundering the profits from the resold tickets for a fee. He was apprehended in Barcelona on July 3rd. A former security officer for Stub Hub was quoted as stating that the indictments sent a message to the “cyber-criminals” that “you are no longer safe to travel and operate outside of your home country without significant risk of arrest and prosecution.”

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Tracy Morgan In Critical Condition After NJ MVA

June 9, 2014 by Mark Siesel

“30 Rock” and “Saturday Night Live” star Tracy Morgan was seriously injured, and a friend in the vehicle killed, as the result of a multi-vehicle crash on the New Jersey Turnpike early on Saturday, June 7, 2014. After performing at a comedy club in Dover, Delaware on Friday evening, Mr. Morgan, 45, along with a mentor who often performed with Mr. Morgan, “Jimmy Mack” McNair, 63, Jeffrey Millea, 36, Ardie Fuqua, Jr., 43, and Harris Stanton, 37, were travelling back to New York in Morgan’s Mercedes limousine bus on the New Jersey Turnpike near Cranberry, New Jersey early Saturday morning. The vehicle was struck in the rear by a Wal-Mart tractor-trailer operated by 35 year old driver Kevin Roper, who failed to stop when traffic slowed in front of his vehicle and is being charged with vehicular assault and for the death of Mr. McNair.

Mc. McNair apparently died at the scene of his injuries. He hailed from Peekskill, New York, and was described as a close friend and mentor to Morgan. Mr. Morgan suffered a fractured femur, a broken nose and several broken ribs, is listed in critical condition and is expected to remain in the hospital for several weeks recuperating. Stanton suffered a fractured wrist in the accident, and the injuries suffered by Fuqua and Millea were not described in news reports.

Roper attempted to swerve but was unable to avoid striking the rear of the Mercedes, leading to a chain reaction crash with another tractor-trailer, and SUV and two cars. Investigators have not uncovered any evidence at this time that Mr. Roper fell asleep at the wheel, and have no proof of any alcohol or drug involvement at this stage of the investigation. Wal-Mart President Bill Simon acknowledged that a Wal-Mart vehicle was involved in the tragic crash and stated: “This is a tragedy, and we are profoundly sorry that one of our trucks was involved. We are working quickly to understand what happened and are cooperating fully with law enforcement to aid their investigation," Simon noted that the company “will take full responsibility” if investigators determine that its driver was responsible for the crash. Wal-Mart placed Roper on administrative leave pending the outcome of the legal proceedings.

The National Transportation Safety Board is also investigating the crash in conjunction with the New Jersey State Police to investigate safety issues regarding commercial trucking and limousine safety, including vehicle maintenance, testing for alcohol and drugs, and other factors that may have played a role in the accident, according to NTSB spokesman Keith Holloway.

Roper was charged with four counts of assault by auto and one count of death by auto. He was released on $50,000 bail on Saturday evening and was due to be arraigned in Middlesex County on June 9, 2014.

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New York Drivers Beware—Operation Hang-Up Starts This Week

April 10, 2014 by Mark Siesel

For drivers in New York State beginning today, April 10, 2014, be careful if you are a hand held cell phone user on the highways and local streets. Governor Andrew Cuomo announced the start of “Operation Hang Up”, by which officers will on the lookout for the next week for drivers who violate the cell phone law through texting or speaking on a cell phone while driving. Gov. Cuomo stated: “The message is clear: distracted driving is deadly and will not be tolerated on New York roads.”

State troopers will be in marked and unmarked vehicles seeking violators of the hand held cell phone ban. Further, officers will be in SUV’s that are modified to sit a greater height, so that officers can see in to vehicles for operators who are trying to text next to their seats so that they are not discovered.

The fine for a cell phone violation under New York’s Vehicle & Traffic Law is now 5 points, which is almost half of the 11 points in eighteen months that results in a suspended license. The fine for a first offense is $150.00. A third offense in 18 months results in a fine of $500.00. Beginning on November 1 of this year, drivers with a learner’s permit, junior or probationary license will be assessed a 120 day suspension of their privileges for a first texting or cell phone infraction. A second violation will lead to a one year suspension.

The more stringent enforcement of the hand held cell phone ban has resulted in an 82% increase in texting while driving tickets in New York City 2013 as compared to 2012. Outside of the city, the increase was even more substantial, at 89% from 2012 to 2013. In almost one half of New York’s 62 counties, (26), the amount of texting tickets issued more than doubled from 2012 to 2013. Locally, this was true in Westchester, Rockland and Dutchess counties. Statewide, there were 55,000 texting while driving tickets issued in 2013, increased from approximately 30,000 in 2012.

The National Highway Traffic Safety Administration (NHTSA) has reported that in 2012, 3,328 people were killed and approximately 421,000 injured in motor vehicle accidents involving distracted drivers.

The New York State Police issued a statement that the State Police are “committed to keeping our highways safe for all motorists…this campaign is about protecting travelers from preventable injuries and property damage caused by distracted drivers using electronic devices."

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Will The Bronx D.A. Pursue Criminal Charges In Train Derailment?

December 12, 2013 by Mark Siesel

In the aftermath of the tragic Metro North derailment of December 1st which killed 4 passengers and injured more than 70, some critically, the Bronx District Attorney’s office is considering bringing criminal charges against the train engineer, William Rockefeller. The reported evidence indicates that at the time of the accident, the 5:54 AM southbound train was travelling at 82 miles per hour entering a sharp curve just north of the Spuyten Duyvil station, where the speed limit is 30 miles per hour. Rockefeller’s attorney claims that he “dozed off” just prior to the derailment and that this was the reason for his failure to apply the brakes until a few seconds before the accident. Mr. Rockefeller then attempted the emergency measure of “dropping the brakes”, meaning that he pressed on the brakes with full force, but it was too late.

To prove a criminal case against Rockefeller, the D.A will have a difficult hurdle. Prosecutors must prove that the train engineer either:
1. Intentionally caused the crash;
2. Knowingly caused the crash;
3. Recklessly caused the crash; or
4. Was criminally negligent in his actions that early Sunday morning two weeks ago.
In my opinion, the D.A. will not have any chance of proving, nor are they likely to attempt to do so, that Rockefeller intentionally or knowingly caused the accident. By all accounts, Mr. Rockefeller was an experienced engineer who enjoyed his work. Similarly, I believe prosecutors will not try to prove that Rockefeller was reckless on that fateful December morning.

The only possible charge that the D.A. may pursue is “criminally negligent homicide.” However, even this charge will be fraught with difficulty for the prosecution. In order to prove criminally negligent homicide, the D.A. must prove that Mr. Rockefeller exhibited a reckless or indifferent disregard for the rights of others, and failed to perceive a substantial and unjustifiable risk that his actions constituted a gross deviation from the standard of care that a reasonable person would use in the situation.

Last year, the Bronx D.A. was unsuccessful in prosecuting Ophadell Williams, who was a 41 year old bus driver charged with manslaughter and criminally negligent homicide in a fatal bus accident on March 12, 2011 on I-95 in the Bronx in which 15 were killed and many others injured. Prosecutors attempted to prove that Williams was so sleep deprived that he should be held criminally responsible for his conduct in operating the bus in that condition. This theory of “driving while drowsy” has never been established in New York State, and the prosecution would be attempting a similar argument in prosecuting Rockefeller. The Bronx jury rejected the argument and acquitted Mr. Williams in December of 2012 of all but one of 55 charges against him, despite the fact that he had a rather extensive criminal record in addition to the horrific fatalities and injuries Mr. Williams caused in the bus accident.

Ultimately, I believe the Bronx D.A. will decline to prosecute Mr. Rockefeller as their experience in the Williams case was instructive and cautionary—trials are costly and time consuming, and they must utilize limited personnel and resources judiciously.

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Penn State To Pay Almost 60 Million To Sandusky Victims

November 4, 2013 by Mark Siesel

After approximately one year of negotiations, Penn State announced last week that it will pay approximately 60 million dollars to settle the cases of 26 sexual abuse victims of Jerry Sandusky. In June of 2012, the former Penn State assistant football coach was convicted by a Pennsylvania jury of 45 of 48 counts of sexual abuse. The conviction was after a several week long trial with testimony from 8 of Sandusky’s victims, who described in detail the abuse, including fondling, oral sex, anal rape and psychological manipulation.

The 69 year old Sandusky is serving a 30-60 year sentence as a result of his conviction last June. The settlement will apparently be paid from liability insurance policies, not from Pennsylvania taxpayers, donations or tuition funds. It will resolve the cases of 26 victims, leaving another six whose cases are still in negotiation with the victims’ attorneys and a few that the university’s counsel are questioning the legitimacy of.

The Sandusky scandal, which terminated the career of legendary football coach Joe Paterno for failing to report what he allegedly knew of Sandusky’s transgressions, also includes three university officials who are charged with covering up the scandal. They are former Penn State president Graham Spanier, retired vice president Gary Schultz, and retired athletic director Tim Curley, who have each denied the allegations against them. Spanier, Schultz, and Curley each await trial on the charges against them, which has not been scheduled to date. In my opinion, based upon the reported evidence, they have an uphill battle to avoid convictions, as it appears that their main concerns were to determine how best to avoid damaging the reputation of Penn State University and maintaining enrollment, not stopping a sexual predator.

The settlements were negotiated by the law firm of Kenneth Feinberg, who is well known for his role as a mediator distributing funds in the 9/11 “Victim Compensation Fund” and as a special master in the Agent Orange litigation. As expected, each victim will be required to execute a confidentiality agreement, prohibiting them and their attorneys from disclosing the amounts of the settlements and in all likelihood, further commenting on anything to do with Jerry Sandusky or Penn State’s employment of Sandusky.

Penn State is also under investigation for potential violations of the Clery Act. The Clery Act was named after Jeanne Clery, a 19 year old Lehigh University student who was raped and murdered by another student in her residence hall in 1986. The significant discretion afforded to local campus police in determining whether to refer cases to police and prosecutors instead of school authorities has resulted in some tragic cases in universities throughout the U.S., and the implementation of the Clery Act in 1990. Colleges and universities must give prompt warnings of crimes committed on their campuses which could pose a threat to the safety of students and school employees. A violation of the Clery Act can result in fines of up to $27,000 for each violation.

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New York County DWI Now A Perjury Case

July 9, 2013 by Mark Siesel

In a DWI case with a twist, the Manhattan DA’ s Office announced on July 1 that it was filing perjury charges against a Navy officer who was acquitted of the DWI last year by a New York County jury. Petty Officer First Class Leonel Polanco-Colon, age 32, was found not guilty by the jury after he and a friend, Luis D. Nunez, age 29, who is also charged with perjury, purportedly concocted a story that a Mr. Nunez had been Polanco-Colon’s designated driver on the night in question, and that Polanco-Colon never operated or intended to operate the motor vehicle when he was stopped by police.

Under the New York Vehicle & Traffic Law, in order for prosecutors to prove a DWI charge, they must establish that the defendant driver operated the vehicle or intended to operate the car at the time of the alleged offense. The latter situation has come up frequently in our office’s experience, when, for example, a driver pulls over the side of the road either to “sleep off” the effects of alcohol or to wait for a period of time before driving after leaving a bar or other establishment which serves alcohol. If the keys are in the ignition, and the car is running, this is indicia of “operation” and will often be enough for prosecutors to obtain a conviction of driving while intoxicated.

In the Polanco-Colon case, he and his friend Mr. Nunez testified that on August 16, 2011, they had been together at two bars in Manhattan, and that when they were stopped by police, the only reason that Polanco-Colon was in the car was to charge his phone, not to drive. Mr. Nunez described in detail their trip down the West Side Highway from the Café Tabaco y Ron to the Gaslight Lounge. The jury believed the testimony of the two men, and found Mr. Polanco-Colon not guilty of DWI. Polanco-Colon cannot be retried on the DWI charge, as that is double jeopardy. However, the Manhattan District Attorney’s Office has apparently determined that Mr. Polanco-Colon and Mr. Nunez were never together on the evening in question, and has charged Polanco-Colon with 8 counts of perjury, a D felony that has a maximum sentence of 7 years in prison. Mr. Nunez has been charged with 6 counts of first degree perjury.

One of the ironies of this case is that had Mr. Polanco-Colon been convicted of the DWI, which is a misdemeanor, he would have faced a maximum of only 1 year in jail, rather than 7 years on the first degree felony perjury charges he is now charged with. The attorney representing Mr. Polanco-Colon is also implicated in the case as having apparently discussed coordinating the testimony of Mr. Polanco-Colon and Mr. Nunez. In announcing the charges, New York County District Attorney Cyrus Vance stated: Honest testimony is the bedrock of our legal system…The cover-up, is, in this case, more serious than the crime.”

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Yorktown Assemblyman Charged With Unlawful Possession of Marijuana

March 19, 2013 by Mark Siesel

Steve Katz, an Assemblyman from Yorktown who was first elected in 2010, was charged on Thursday, March 14 with unlawful possession of marijuana and speeding after being stopped by a trooper on the New York State Thruway near Albany, New York. Katz was ticketed for traveling at 80 miles per hour in a sixty five m.p.h zone. Apparently, when the trooper approached Katz’ car, he detected an odor of marijuana. Katz then handed over what is described as a small bag of marijuana to the trooper.

Mr. Katz is a member of the New York State Assembly’s Committee on Alcoholism and Drug Abuse. Last year, he was vocal in his opposition to the legalization of medical marijuana and voted against a bill to do so in the assembly. During the consideration of the legislation, Mr. Katz was quoted as stating: “Our community has been stricken with an increase in drug use and drunk driving by our youngest citizens.”

Katz was given an appearance ticket and must appear in the Coeymans Court on March 28, 2013. For the unlawful possession of marijuana violation, Katz could be fined $100.00. For the traffic infraction of excessive speed based on 15 miles an hour over the posted limit, Katz is facing a fine in the range between $90.00 and $300.00 in addition to a mandatory New York State surcharge of $85.00. Further, drivers who are convicted of or who plead guilty to driving 11-20 miles per hour over the speed limit will have 4 points assessed on their licenses. Drivers who accrue 11 points in an 18 month period will have their licenses suspended.

I would expect that Mr. Katz will retain an attorney to plead the speeding infraction to a non moving violation such as failure to wear a seat belt, which would still involve fines and surcharges of approximately $135.00 total, but not result in points on his driver’s license. As for the criminal violation of unlawful possession, Mr. Katz will probably seek what is called an “ACD”, or adjournment in contemplation of dismissal. This means that if has no other charges with a 6 month or one year time frame, the charges will be dismissed. A conviction on an unlawful possession of marijuana violation would result in fines with mandatory surcharge of approximately $200.00 for a first offense under the New York Penal Law Section 221.05.

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Hit And Run Driver In Fatal Accident Apprehended in Pennsylvania

March 11, 2013 by Mark Siesel

Julio Acevedo, the 44 year old suspected driver in the March 3 fatal car crash in the Williamsburg section of Brooklyn, was taken into custody in Bethlehem, Pennsylvania on March 6th. 21 year old Raisy Glauber, who was several months pregnant, and her 21 year old husband Nachman, were en route to a nearby emergency room for a medical examination when the fatal car crash occurred at the intersection of Kent Street and Wilson Street in Williamsburg. The Glaubers were passengers in a cab driven by Pedro Nunez Delacruz.

Mr. Delacruz was turning from Wilson Street where there is a stop sign; it is unclear if he stopped before making his turn. Mr. Acevedo who was traveling on Kent Street, which has no traffic control at the intersection, was driving a BMW at approximately 60 miles per hour. He struck the driver’s side of the cab with such force that the engine of the cab ended up in the back seat and Ms. Glauber was thrown from the vehicle. In addition to killing both Glaubers, the blunt force impact caused the baby to be delivered 3 months early by Caesarian section at Bellevue Hospital. The baby died of what was described as “extreme prematurity due to maternal blunt force injuries” by the New York City Medical Examiner’s Office on March 4th.

After the accident, Mr. Acevedo fled the scene and was charged initially with leaving the scene of an accident with serious injuries, which is a felony under the New York State Vehicle & Traffic Law. After the Glaubers and their baby died, the charges were upgraded to three counts of criminally negligent homicide, also felonies, (Criminally negligent homicide is an E felony with a maximum sentence of four years in prison) and one additional count of first degree involuntary manslaughter in the death of the baby, which is also a felony. It is uncertain if the Kings County D.A.s office will pursue the involuntary manslaughter charge against Mr. Acevedo, as it will be harder to prove.

The key evidence in the criminally negligent charges against Acevedo will involve a reconstruction of the accident by investigators to determine whether one or both drivers committed traffic infractions which led to the fatalities, including disregarding a traffic control device, speeding, and reckless driving. Additionally, officials will examine whether distracted driving such as texting, or alcohol was involved.

Acevedo may have fled the scene because he is presently facing DWI charges from a February 17, 2013 arrest in which his blood alcohol concentration (BAC) was allegedly 0.13%, well over the New York State limit of 0.08%. Additionally, according to reports, Mr. Acevedo served approximately 8 years in prison for a conviction of manslaughter in the death of a Brooklyn man known as “50 Cent”. The rap star Curtis Jackson later utilized this as his stage name.

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Manslaughter Trial Begins In Bronx For Tour Bus Driver

October 10, 2012 by Mark Siesel

On September 27, 2012, the trial began for 41 year old Ophadell Williams, the tour bus driver charged with manslaughter and criminally negligent homicide in the March 12, 2011 accident on I-95 in the Bronx which killed 15 passengers. The prosecution contended that Williams was fatigued and speeding when he lost control of the bus while returning from the Mohegan Sun in Uncasville, Connecticut. As we originally reported on September 6, 2011, the bus struck a guardrail, flipped over, struck a stanchion and the roof was sheared off, killing 15 people and seriously injuring 23, including one man whose arms were torn off trying to protect his head. Williams was indicted by a Bronx County Grand Jury on 15 counts of vehicular manslaughter; 15 counts of criminally negligent homicide; and 23 counts of vehicular assault. Additionally, he was charged with reckless driving and aggravated unlicensed operation of a motor vehicle.

In its opening statement, the prosecution contended that Williams was fatigued and driving recklessly, swerving in an out of lanes and never slowing down, when he lost control of the bus and struck a signpost stanchion on I-95 in the Bronx, “peeling off the roof like a sardine can and wreaking death and destruction.” The prosecutor acknowledged that Williams was not on drugs and was not intoxicated, but argued that Williams was so sleep deprived that it affected his reflexes as if he were intoxicated.

Williams’ defense attorney repeated the defense that his client made since the accident happened, that he was cut off by a tractor-trailer, and that this maneuver led to the fatal crash. He also argued that despite Williams' own injuries, he made a valiant effort to rescue some of the passengers from the wrecked bus.

Investigators have never been able to substantiate that there was any tractor trailer involvement in the accident. What is known is that Williams was traveling at approximately 78 miles per hour shortly before the crash (the speed limit in that area is 55 m.p.h). and there is no evidence to show that Williams either slowed down or downshifted before the accident.

To prove that Mr. Williams is guilty of vehicular manslaughter, the prosecution must establish that Williams knew or should have known of a substantial and unjustifiable risk in his operation of the bus and disregarded the risk. For the criminally negligent homicide charges, there is a somewhat lesser burden of proof on the prosecution, to prove that Mr. Williams “failed to perceive” the substantial and unjustifiable risk in driving while fatigued and speeding, in contrast to a reasonable person who would have perceived these risks and avoided the conduct. Frequently, the prosecution files different levels of charges, so that if they do not obtain a conviction on the highest level, they have the opportunity to establish the lesser charges and still get a guilty verdict.

To substantiate their contention that Williams drove the bus recklessly and was speeding, the prosecution called Robert and Sonia Varley to the stand. Mr. Varley was driving with his wife south on I-95 at approximately 4:15 am when they observed a brightly colored bus weaving in and out of lanes and speeding. Mr. Varley testified that he was using his cruise control in the range of 63 to 73 m.p.h., and Williams would pass him and then slow down. Varley thought the driver might have been intoxicated and he testified that he was “afraid to be near him” and honked his horn at the bus.

The prosecution also put on testimony from some of the surviving passengers on the bus, including Truc Thanh Tran, who testified that she heard people screaming and yelling, and saw people dying. They showed the jury a 55 minute video of the investigation of the accident, replete with flattened guardrails, crushed bus parts, a blood splattered metal pole and shoes and cell phones spread around the bus. Ms. Tran also testified that the man seated next to her died in the accident, and that she was pinned in her seat and had to be removed by emergency personnel. In his cross examination of Ms. Tran, the defense attorney for Mr. Williams attempted to show that Ms. Tran’s injuries were not serious and that she, along with numerous family members and surviving passengers, are suing Mr. Williams and the bus company, World Wide Travel, in civil lawsuits for money damages. Other passengers were expected to testify during the trial, which is expected to proceed for several weeks.

Mr. Williams has been in jail since September of 2011, as he has not been able to raise the $250,000 bail. World Wide Travel has since gone out of business but the tour bus industry appears to be a thriving business, despite significant safety concerns.

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Postal Worker on Trial For Leaving Scene of Fatal Accident

September 14, 2012 by Mark Siesel

In New York County Criminal Court this week, the trial of 63 year old postal truck driver Ian Clement commenced. Clement is charged with leaving the scene of a fatal accident under Section 600 of the New York State Vehicle & Traffic Law, which carries with it a maximum sentence of 7 years as a D felony under the Penal Law. The case involves an accident on July 2, 2011. 68 year old Marilyn Dershowitz, the sister in law of well known attorney Alan Dershowitz, was riding her bicycle with her husband Nathan on West 29th Street in an area which was clogged with postal trucks both parked and moving in and out of traffic. Mr. Dershowitz was riding ahead of his wife. Apparently Ms. Dershowitz attempted to operate her bicycle between two postal trucks when she was struck by the seven ton postal truck operated by Mr. Clement.

Ms. Dershowitz was pinned under the right tire of Clement’s truck. The prosecution claims that rather than remain at the scene and report the accident, Mr. Clement drove off, despite the screams of onlookers and honking horns of other drivers in the vicinity. Mr. Clement pulled the truck into a Postal Service parking lot at the end of the street, where a co-worker supposedly asked him: Did you see the terrible accident?” The Manhattan A.D.A. prosecuting the case, Erin La Farge, stated to the jury that “Practically everyone went to her side, except the person who caused her death.” She argued that Mr. Clement either knew, or should have known that he struck someone, but kept driving. Clement did acknowledge that he “felt a bump” and the truck shook somewhat, but he admittedly left the scene of the fatal accident.

Ms. Dershowitz died approximately one hour later at Bellevue Hospital.

In what I believe was a very dangerous argument to make to a jury in a case involving a fatality, Mr. Clement’s defense lawyer contended that: “The City would come to a standstill” if truck drivers stopped and investigated every honking horn or bump in the road. He further suggested that there was no one to blame criminally, and that the case was being pursued because of the notoriety of the Dershowitz family. In addition to Alan Dershowitz being a nationally known lawyer, Ms. Dershowitz’ husband Nathan Dershowitz is also an attorney.

Under Section 600 (2) of the Vehicle & Traffic Law, entitled “Leaving the Scene of An Incident Without Reporting”, “Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person, shall before leaving the place where said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle, …and give his name, residence, insurance carrier…”

Due to the death of Ms. Dershowitz in the accident, Mr. Clement is charged with a violation of the most serious section of this regulation, and faces a maximum of seven years in jail and a fine of not less than $2,000 nor more than $5,000.00.

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Civil Lawsuits Commence In Wake Of Sandusky Verdict

August 1, 2012 by Mark Siesel

In what should come as no surprise to anyone, the first civil lawsuit has been filed against Penn State University subsequent to the guilty verdict against ex-football coach Jerry Sandusky, who was found guilty of 45 counts of sexual assault involving ten victims last month by a Pennsylvania jury. The lawsuit was also filed on the heels of a scathing 267 page report by ex-FBI director and federal judge Louis Freeh, who conducted a eight month investigation during which he interviewed 430 current or former Penn State employees.

Mr. Freeh found that Penn State displayed a “total disregard for the safety and welfare of Sandusky’s child victims by the most senior leaders at Penn State…the most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized.” Freeh named Coach Paterno, President Graham Spanier, athletic director Tim Curley and vice president Gary Schultz as the facilitators of Sandusky’s egregious conduct in “failing to protect against a child sexual predator for over a decade.” He noted that the school officials continued to allow Sandusky to have unfettered access to school facilities and to continue his affiliation with the Penn State football program, and condemned them for failing to intervene after a reported shower incident in 1998, and the sexual assault in 2001 of Victim number 2, witnessed by then Paterno assistant Mike McQueary.

Victim number 2’s attorneys noted that their client was the victim of sexual abuse by Sandusky over several years, not solely the 2001 incident, and that top officials at Penn State facilitated and enabled Sandusky's access to his victims. If the Sandusky victims were permitted to go to trial, (which would be shocking beyond belief if this happened) the civil attorneys can introduce evidence of Sandusky's criminal conviction, obtained by a burden of proof “beyond a reasonable doubt”, to prove cases in which the burden would be the much easier civil lawsuit standard of a preponderance of the evidence—meaning essentially by 50.1% of the credible evidence. Additionally, there is damning proof against Penn State, including Curley’s decision not to report Sandusky for Victim 2’s assault but rather recommending professional help and calling his decision “humane”. Curley also apparently sent an e-mail in which he admitted: “the only downside for us is if the message [to get professional help] isn’t heard and acted upon and we then become vulnerable for not having reported it…” Thus, it is clear that all Penn State officials were concerned about in 2001 was protecting the University and its football program, not the innocent victims of Sandusky.

The sanctions by the NCAA for the Sandusky scandal, including a 60 million dollar fine, the inability to pay in bowl games for the next four years, and the wiping out of all football team victories from 1998 through 2012, seem insignificant in comparison to the damage that Sandusky has caused.

The Penn State Board of Trustees is already on record as stating that their goal is “to find solutions that rest on justice for the victims.” One question that naturally occurs is, does Penn State have enough money through its liability insurance and assets to pay out on all of the presently pending claims and absolutely inevitable claims coming in the future? What is the individual value of each of these cases, in which the victims have been permanently traumatized and as reflected in some of the anonymous statements during the three week trial, bitterly angry. That remains to be seen, and must be keeping the Board of Trustees from sleeping at night.

Continue reading "Civil Lawsuits Commence In Wake Of Sandusky Verdict" »

Yonkers Cardiologist Charged With Illegal Drug Distribution

July 27, 2012 by Mark Siesel

On July 25, 2012, Dr. Rohan Wijetilaka, 63, a cardiologist with a practice in Yonkers, was arrested by DEA agents on federal illegal drug distribution charges. It is alleged that Dr. Wijetilaka issued prescriptions for Oxycodone, a Schedule II controlled substance, and other controlled substances for cash or in exchange for an agreement to bill health insurers for tests that were never performed. Other agencies that were involved in the sting operation included the FBI, the U.S. Department of Health, the Human Service Office of the Inspector General and the Yonkers Police Department. Apparently, the DEA utilized a confidential informant wearing a wire, who was able to obtain an Oxycodone prescription for himself and another person for cash.

The operation began in late April went the informant went in the Yonkers office and paid Dr. Wijetilaka’s receptionist for Oxycodone prescriptions for himself and his ”girlfriend”, although neither was examined by the doctor. Purportedly, Dr. Wijetilaka continued to make sales to the confidential informant through June, in exchange for cash and therapy and exams that were never conducted.

It has been reported that Dr. Wijetilaka also issued prescriptions for Percocet, OxyContin and other controlled substances besides Oxycodone. Also arrested was Dr. Wijetilaka’s assistant and girlfriend, Rachida Naciri, 50, who was charged with criminal diversion of prescription medications and prescriptions, which is a misdemeanor. Ms. Naciri’s case is not in Federal Court, but in Yonkers City Court, where she was arraigned, pled not guilty and is due back in Court on August 16, 2012.

When Dr. Wijetilaka was arrested on the 25th, officers allegedly seized $15,000 in cash from his apartment. He was arraigned before a federal magistrate on July 26, 2012 and released on $200,000 bond secured by $50,000 and two co-signers. As conditions of his bond, Dr. Wijetilaka was required to surrender his passport, not practice medicine, not possess firearms and remain in New York. Interestingly, it has been reported that Wijetilaka’s medical license had recently been revoked earlier in July for performing unnecessary tests, failing to keep records, and for gross incompetence. He was fined $50,000.

The U.S. Attorney for the Southern District, Preet Bharara, has been very aggressive in his pursuit of illegal drug distribution and corruption by public officials, with several high profile convictions in New York and Westchester, most recently of ex State Senator and assemblyman Nick Spano earlier this year.

Dr. Wijetilaka is due back in White Plains Federal Court on August 22, 2012. If convicted of the charges against him, Dr. Wijetilaka faces a maximum jail term of 20 years and a fine of $1,000,000 or twice the gain from his alleged crimes, whichever is greater.

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Sandusky Conviction--Just The Beginning of Penn State's Problems?

June 28, 2012 by Mark Siesel

As we all know by now, 68 year old ex-Penn State assistant coach Jerry Sandusky was convicted by a Centre County, PA jury on June 22, 2012 of 45 counts of sexual abuse of children. Sandusky was acquitted of only 3 of the total of 48 charges against him. The relatively brief trial included the testimony of eight victims, as well as that of former assistant coach Michael McQueary, who testified that he observed Sandusky engaging in sexual conduct with a ten year old boy in the university showers back in 2001 and reported this abuse to university officials.

In the wake of the long anticipated and emotional conviction of Mr. Sandusky, with a cheering crowd outside the Bellefonte, PA Courthouse when the verdict was announced late last Friday, Penn State is now facing significant issues that will have long-lasting repercussions for the reputation and finances of the institution. First, there is the ongoing perjury case against the two ex-officials that McQueary claimed he informed of the Sandusky sexual abuse, athletic director Tim Curley and senior vice president Gary Schultz. The charges are that Curley and Schultz lied to a grand jury investigating the abuse charges and testified that McQueary never informed them of his observations. Concurrently, former FBI director Louis Freeh, who was hired by the Penn State to do an investigation into whether the school responded properly to allegations against Sandusky in the late 1990’s, will be issuing his findings in the very near future.

Without question, if Schultz and Curley are convicted, this is strong evidence that the university allowed a sexual perpetrator to continue his conduct on school grounds for at least several additional years after they knew there was a problem and could have averted same by alerting authorities and not permitting Sandusky to have access to school facilities and an office on campus.

Another huge problem Penn State is facing are the inevitable civil lawsuits which will now be filed by at least some, if not all of Sandusky’s victims for monetary damages. From an evidentiary point of view, the burden of proof in a civil action, a “ preponderance of the evidence”, (which means that it is slightly greater than 50% that the plaintiff’s version of the events is accurate) is a much easier burden to prove than beyond a reasonable doubt, the standard of proof required to convict in a criminal case. We saw this 16 years ago when O.J. Simpson was acquitted by a criminal jury of the murder of his wife Nicole Brown and her friend Ron Goldman, yet found liable for the killings by a civil jury a year later.

There is no question that Penn State is plenty worried about the possibility of significant civil verdicts against the university, and in keeping with this fear has already begun attempting to begin negotiations to resolve potential civil cases. In a statement, Penn State indicated: “Now that the jury has spoken, the university wants to continue that dialogue and do its part to help victims continue their path forward…to that end, the university plans to invite victims of Mr. Sandusky’s abuse to…facilitate the resolution of claims against the university arising out of Mr. Sandusky’s conduct.”

Even if Penn State is able to resolve the potential civil claims from the victims that testified in the Sandusky trial, that will still not end its legal difficulties and financial concerns. Matt Sandusky, his adopted son, recently revealed that he was also a victim of sexual abuse at the hands of his father. Matt was prepared to testify as a rebuttal witness at the recently concluded trial if Mr. Sandusky took the stand in his own defense, which he elected not to do, as is the case with the great majority of criminal defendants. Further, a state grand jury is still in place, and there is a strong likelihood that either additional victims, other defendants involved in the failure to stop Sandusky, or both, will be identified in the near future.

In sum, Penn State officials are probably being overly optimistic if they believe that they can end their legal problems with an overture to resolve civil claims with the presently known Sandusky sexual abuse victims. Their legal issues as a result of the Sandusky sexual abuse scandal may persist for years to come.

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Federal Judge Grants Class Action Status To NYC Summons Court Defendants

June 20, 2012 by Mark Siesel

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

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

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

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

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Former Police Officer Sentenced in Westchester County Airport Drug Smuggling Case

May 13, 2012 by Mark Siesel

800px-westchester_county_airport%20Wikipedia%20Commons%20via%20omoo.jpgA former Westchester County Police Officer was recently sentenced in New Haven Federal Court to 37 months in prison for his reported role in a drug smuggling ring. 36-year-old Michael Brady of Thornwood was accused of taking approximately $20,000 in cash in exchange for allegedly assisting drug smugglers pass through security at the Westchester County Airport on multiple occasions between December 2010 and April 2011. Mr. Brady reportedly allowed large quantities of the painkiller Oxycodone to pass through security while he was stationed at the airport in his capacity as a Westchester County Police Officer. The United States Justice Department stated drug smugglers carried as many as 8,000 pills per trip through the airport. According to the United States Drug Enforcement Agency, the drugs were smuggled from Florida and later distributed in Connecticut.

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

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New Jersey Jury Sends Strong Message In Webcam Case

March 20, 2012 by Mark Siesel

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

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

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

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

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

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

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

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Former Columbia University Student Sentenced to Five Years Probation for On Campus Drug Sales

March 16, 2012 by Mark Siesel

12754_hand_cuffs%20sxchu.jpgThis week, one of the five Columbia University students who were charged with selling drugs on campus in December 2010 was sentenced by a Manhattan court to five years probation. 21-year-old Adam Klein was sentenced after he agreed to a plea bargain in which he pleaded guilty to attempted criminal possession of a controlled substance in January 2012. According to the agreement, if Klein completes his term of probation without any problems, the charge will be expunged from his record. Klein initially faced a prison term of up to 2 1/2 years.

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

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

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

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Testimony Complete in Rutgers Webcam Spying Case

March 14, 2012 by Mark Siesel

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

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

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

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

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

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

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

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

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

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

Continue reading "Testimony Complete in Rutgers Webcam Spying Case" »

Rutgers Dorm Spying Trial Begins

March 2, 2012 by Mark Siesel

On February 24th, the trial of 20 year old Rutgers University student Dharun Ravi began in Middlesex County, New Jersey. Ravi has been charged with 15 counts of invasion of privacy, evidence and witness tampering, and the most serious charge of bias intimidation as a hate crime. Ravi is accused of having set up a webcam in the dorm room he shared with his then roommate Tyler Clementi on September 19, 2010 in order to record Clementi’s intimate sexual encounter with another man. Ravi also posted on Twitter that he observed his roommate “making out with a dude.”

Three days after Ravi recorded and viewed the encounter, Clementi, 18, committed suicide by jumping from the George Washington Bridge. The case is being followed nationally, and raises many issues prevalently in the news, including privacy in the age of Facebook, Twitter and other social media, and cyber bullying resulting in teen suicide. The evidence and witness tampering charges arise out of several text messages sent by Ravi to witness Michelle Wei when she was being questioned by prosecutors. She testified that Ravi wanted to know what she was telling them, and stated: “Did you tell them we did it on purpose? What did you tell them when they asked why we turned it on? Ravi wanted Wei to give investigators the impression that the videotaping was “more of an accident.”

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

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

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

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

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

We will monitor developments in this potentially groundbreaking trial.

Continue reading "Rutgers Dorm Spying Trial Begins" »

Guilty Plea In Westchester County Airport Drug Distribution Case

February 27, 2012 by Mark Siesel

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

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

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

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

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

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New York Traffic Accidents-Arrest in Fatal Drag Race Case

January 23, 2012 by Mark Siesel

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

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

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

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

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

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Chicago Bears Wide Receiver Faces Federal Drug Charges

December 19, 2011 by Mark Siesel

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

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

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

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

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

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

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

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

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

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In A Surprise, Jerry Sandusky Waives Preliminary Hearing

December 16, 2011 by Mark Siesel

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.

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Penn State Scandal Spotlights Campus Law Enforcement

November 18, 2011 by Mark Siesel

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.

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

October 29, 2011 by Mark Siesel

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.

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Queens Mother Acquitted Of Murder But Convicted on Weapons Possession

October 17, 2011 by Mark Siesel

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.

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Former Eastchester Police Officer Convicted of Manslaughter

October 7, 2011 by Mark Siesel

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.

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Hospital Executive Convicted In Bribe Scheme With NYS Legislators

September 26, 2011 by Mark Siesel

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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Texting Tickets Dramatically Increased

September 23, 2011 by Mark Siesel

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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Westchester County Police Officer Charged in Drug Ring

September 20, 2011 by Mark Siesel

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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Lottery Winner Scammed From Prize

September 8, 2011 by Mark Siesel

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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Tour Bus Driver Indicted By Bronx County Grand Jury

September 6, 2011 by Mark Siesel

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.

Continue reading "Tour Bus Driver Indicted By Bronx County Grand Jury " »

Strauss-Kahn Case Dropped By Manhattan D.A.'s Office

August 24, 2011 by Mark Siesel

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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Wrong Way Driver On I-95 Charged With Manslaughter

July 27, 2011 by Mark Siesel

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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New York Texting Ban Gets Tougher

July 25, 2011 by Mark Siesel

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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Plea Deal In White Plains Hit And Run Case

July 3, 2011 by Mark Siesel

Back on December 19, 2010, Raul Rios, a 23 year old man, was nearly killed when he was struck by a car as he was crossing Post Road in White Plains on his way to the Kennedy Fried Chicken at 4:00 AM that morning. The driver who struck Rios, 29 year old Christin Ewing, was driving a black Mercedes and was charged with a hit and run in the accident. Rios was in the hospital for several weeks and had surgery for head, leg and skin injuries.

Police tracked Ewing down after approximately six weeks using various resources including enhanced videotapes from local businesses and repair records from local dealers and shops to determine if similar vehicles had been brought in for repair. Mr. Ewing, a former wrestling coach in Mahopac, stated that he did not know he had struck anyone that December day.

On June 27, 2011, Ewing pleaded guilty in Westchester County Court to leaving the scene of a personal injury accident as a felony. His plea involves a sentence of 5 years "shock probation", which includes a six month jail term for the first six months of his sentence. Mr. Ewing will be free until September 19, 2011, the date of sentencing.

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Orange County Fatal Crash--Van Driver Charged

January 31, 2011 by Mark Siesel

The New York State Police have filed criminal charges against the driver in the tragic van rollover accident that killed six people last September in Woodbury, New York. The police arrested Bernard Lattibeaudiere on January 18, 2011 and charged him with first degree unlicensed operation of a vehicle, under section 511-3 (a) (ii), which is a felony. He was released without bail and must return to Court on February 1.

Back on September 18, 2010, Mr. Lattibeaudiere was at the wheel of a church van which rolled over on the New York State Thruway after one of its tires blew out. The accident occurred north of Exit 16 in the Town of Woodbury. There were 14 passengers in the van, and six died, including the Rev. Simon White of the Joy Fellowship Christian Assemblies in the Bronx, his wife, and his sister.

Of the 14 passengers, only Mr. Lattibeaudiere and one passenger were wearing seat belts, although there is some question as to how many seat belts the vehicle was equipped with. According to the police, the van was traveling northbound in the left lane when the left rear tire blew out. After the van swerved over the rumble strip, the driver allegedly overcorrected to the right, causing the vehicle to roll over several times.

Apparently, Lattibeaudiere's license had been suspended 25 times, leading to the felony charge on what is normally a misdemeanor. If convicted of first degree aggravated unlicensed operation, Lattibeaudiere faces fines of between $500 and $5,000, and must be sentenced to either a term of imprisonment, a sentence of probation, or a term of imprisonment as a condition of probation.

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NYC Firefighter Charged In Fatal Hit & Run

December 23, 2010 by Mark Siesel

On December 21, 2010, New York City firefighter Pat Quagliariello, 39, was arraigned on charges including criminally negligent homicide and leaving the scene of a personal injury accident before Judge John G. Ingram in Kings County Court. The District Attorney's Office has alleged that on October 10, 2010, at approximately 12:30 AM, Mr. Quagliariello was texting and speeding while driving his BMW X3 at the intersection of 65th Street and 20th Avenue, when his vehicle struck and killed Manuel Tzaj Guachiac, a 35 year old Guatemalan immigrant.

It is further alleged that after the accident, Quagliariello fled the scene and left Mr. Guachiac to die, according to Craig Esswein, the ADA appearing at the arraignment for the Kings County District Attorney's Office. Mr. Quagliariello then abandoned his car and contacted relatives, including his brother, Anthony Quagliariello, who is a detective with the NYPD Joint Terrorism Task Force. The BMW was apparently located about a block from Mr. Quagliariello's home in Midwood. The DA's office also claims that records revealed that Quagliariello was texting at the time of the collision and made calls which place him at the accident scene.

Mr. Guachiac had returned to New York from Guatemala in the spring after visiting his parents and was going home from a late shift at his second job when the fatal accident occurred.

Mr. Quagliariello was also charged with reckless driving and several traffic infractions. He pled not guilty and was released on $50,000 bail. Mr. Quagliariello could face up a minimum of 1 year and maximum of 4 years in jail on the criminally negligent homicide charge if convicted.

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Five Columbia University Students In Felony Drug Bust

December 16, 2010 by Mark Siesel

Five Columbia University students, all between the age of 20 and 22, have been charged with felony drug sales including LSD, marijuana, cocaine, ecstasy, and Adderall, which is used to treat attention deficit hyperactivity disorder. The arrest arose out of a five month undercover sting known as "Operation Ivy League" by the NYPD and prosecutors. The students were arrested on December 7, 2010 after making sales to undercover officers of approximately $11,000 since July of this year. Two of the students claimed that they needed the money because their father would not pay his tuition.

All five students were apparently videotaped making sales, and when police searched the students' rooms, they allegedly seized a bottle of LSD, Ecstasy capsules, more than half a pound of marijuana and $2,000 in cash. The students were arraigned in Manhattan Criminal Court last week before Judge Michael Sonberg and each pleaded not guilty. They were held in custody at Rikers Island pending making bond payments, which ranged from $30,000 to $75,000.

Under the Penal Law of New York State, felony drug sales of a controlled substance carry a potential jail term of a minimum of 1 to a maximum of 7 years on the D felony of Criminal Sale of a controlled substance in the 5th degree. This charge also has a fine of up to $5,000.00.

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NY Mets Pitcher Charged With Assault

August 25, 2010 by Mark Siesel

Francisco Rodriguez, the New York Mets' former All-Star relief pitcher, was charged with third degree assault on August 11, 2010. The charges arise out of an incident in which Rodriguez punched Carlos Pena, his girlfriend's father, in the Citifield clubhouse. As a result of the incident, Mr. Pena allegedly suffered facial trauma and other injuries.

Rodriguez was arraigned in the Queens Criminal Court on August 12, 2010. Shortly thereafter, it was learned that Rodriguez has a torn ligament in his right thumb and is out for the season. The Mets have placed the pitcher on the disqualified list for the 2010 season and the move allows them the possibility of voiding Rodriguez's contract altogether. The voiding of Rodriguez' contract could be accomplished if it is determined that Rodriguez violated the "morals" clause of his contract.

Assault in the third degree is a misdemeanor under section 120.00 of the New York State Penal Law. If Rodriguez is convicted of the charge, he could face a sentence of 1 to 3 years in prison and a fine of up to $1,000.

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U.S. Supreme Court Rules Miranda Rights Don't Prevent Questioning

February 26, 2010 by Mark Siesel

In what appears to be a continuing effort by the U.S. Supreme Court to limit the rights of criminal defendants, the Court ruled on February 24 that the police may continue questioning of a suspect after he has invoked his Miranda rights, as long as they wait 14 days to continue their interrogation. The case, Maryland v. Shatzer, involved a Maryland man who was suspected of sexual abuse and was in prison for another crime. While Shatzer was in prison, he was questioned by a police detective and invoked his rights under Miranda v. Arizona, refusing to answer questions without an attorney present. However, two and a half years later, with Mr. Shatzer still in prison, another detective approached him and began questioning him after he had waived his Miranda rights related to the same incident involving his son.

Mr. Shatzer's lawyers argued before the Supreme Court that any statements made by Shatzer during the second questioning should be suppressed as he had previously asked for a lawyer during the original interrogation, and that Miranda prohibited re-questioning under those circumstances without a lawyer present. In a decision written by Justice Antonin Scalia, the Court found the main issue to be whether the prohibition in further questioning after Miranda rights is "eternal." Scalia noted that the reason repeated attempts at questioning was forbidden was to prevent "badgering" of a suspect while a crime was under investigation. However, using a completely arbitrary 14 day standard, the highest Court ruled that two weeks "provided plenty of time for the suspect to get acclimated to normal life, to consult with friends and counsel, and to shake off any residual effects of his prior custody." Interestingly, even the most conservative member of the Court, Clarence Thomas, questioned the arbitrary 14 days rule in his concurrence. In Thomas's view, any break in custody would be sufficient to allow questioning to continue--no surprise there.

Despite the fact that no one would wish to protect child molesters in our society, and particularly if it was proven that someone abused his own son, this decision is part of a grander scheme by the conservative members of the Court-- Scalia, Alito, Thomas and Roberts, to chip away at the rights of criminal defendants long protected by such landmark decisions as Miranda, and the 1981 decision in Edwards v. Arizona, in which the Court ruled that once a suspect asks for an attorney under Miranda, the authorities may not resume questioning.

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Maximum Jail Time In Putnam County Fatal DWI Case

January 21, 2010 by Mark Siesel

In an update to our June 20, 2009 blog entitled "Putnam County Manslaughter Charge In Brewster DWI Crash", Conses Garcia-Zacarias, the 35 year old illegal immigrant from Guatemala who pled guilty to two counts of New York vehicular homicide in the deaths of Lori Donahue and her 8 year old daughter Kayla, was sentenced to the maximum 8 1/2 to 25 years in state prison on January 13, 2010. Mr. Garcia-Zacarias had a blood alcohol content (BAC) of almost twice the legal limit of 0.08 when he drove his pickup truck on the wrong side of Main Street in Brewster and struck the mother and daughter as they were exiting the Seven Stars School of Performing Arts on Rt. 6. Reportedly, Mr. Garcia-Zacarias told a probation officer he was so intoxicated that he did not remember anything about the crash.

Mr. Garcia-Zacarias worked on numerous horse farms in the United States and was operating a Ford pickup truck owned by Valerie Renihan, a horse trainer who has claimed that Garcia-Zacarias did not have permission to operate the vehicle and stole the keys. However, neighbors near the Tonetta Lake Road house in Southeast where Garcia-Zacarias and several other men lived claimed that they would all frequently drive the vehicle. Clearly, if the Putnam County District Attorney's Office had solid proof against Renihan, she would have been charged in this tragic case as well.

In sentencing Mr. Garcia-Zacarias to the maximum jail time under New York's Penal Law, Judge James Rooney of the Putnam County Court stated to the defendant: " Do not look to me for forgiveness...God may grant you mercy, but this Court will not." After Garcia-Zacarias serves his prison term, he faces immediate removal (deportation) to his native Guatemala.

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New York Grand Larceny--Astor Heir Sentenced To 1-3 Years

December 22, 2009 by Mark Siesel

Anthony Marshall, the 85 year old son of the late philanthropist Brooke Astor, was sentenced on December 21st to 1-3 years in jail for looting his mother's fortune. Mr. Marshall was convicted last October of first degree grand larceny, and scheming to defraud, along with twelve other counts, based on charges that he took advantage of his mother's mental frailty to get more than his share of her almost 200 million dollar fortune. Grand larceny in the first degree under section 155.42 of the New York Penal Law is defined as stealing the property of another which has a value in excess of one million dollars. It is a class B felony, punishable by up to 25 years in prison.

Prosecutors utilized testimony from high profile witnesses and friends of Ms. Astor including Barbara Walters and Henry Kissinger to establish that Marshall had manipulated his mother to change her will and had stolen priceless artwork from her walls. The defense contended that Marshall had an unrestricted complete power of attorney permitting his actions, and argued that Astor was mentally competent when she made the changes to her will. Apparently, the Manhattan jury did not accept those arguments.

Marshall got the minimum allowable sentence under sentencing guidelines. He was unsuccessful in trying to get the judge to drop the part of his conviction which required jail time, despite his lawyers' arguments that any jail time would amount to a death sentence due to his poor health.

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Westchester County Jury Convicts Ex Cop In Rape Case

November 26, 2009 by Mark Siesel

Jose Arroyo, a 47 year old ex-NYPD cop and ex-Marine, was convicted by a Westchester County jury of two counts of rape and one of New York felony assault on November 24th. The jury acquitted Mr. Arroyo of two counts of felony kidnapping. The facts are that on November 14, 2008, Mr. Arroyo met the 31 year old victim at Doyle's Pub in the Bronx. The woman was visiting a friend from Texas. Mr. Arroyo apparently spiked the woman's drink with Ambien, which the evidence showed he had a prescription for. When she passed out, Mr. Arroyo took the victim to the Alexander Motel in Greenburgh, where he sexually assaulted and raped her. He then took several nude photographs of the victim.

The defense was that the sexual relations were consensual and that Mr. Arroyo did not drug the victim. The problem with this defense was that the victim is a lesbian and testified that she never would have consented to sexual relations with any man. Further, the jury was provided a security video from Doyle's Pub which apparently showed Mr. Arroyo moving his hand over the woman's drink, stirring the drink, and then handing it to her. During deliberations, the jury asked to see the video several additional times; this video obviously played a large part in the conviction.

Mr. Arroyo is incarcerated in the Westchester County Jail. He is scheduled to be sentenced on January 20, 2010 and faces a maximum jail term of 25 years on the rape charges.

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Westchester County Grand Jury to Decide Ex-Cop Pileggi's Fate

November 21, 2009 by Mark Siesel

A Westchester County Grand Jury will be convened soon to determine whether there is enough evidence to indict former New Rochelle Police officer James Pileggi on a second degree manslaughter charge. The facts are both shocking and particularly tragic. It is alleged that on November 3rd, Officer Pileggi was demonstrating the laser function of his 9 mm Glock to a boyhood friend, Andre Everett, when the gun accidentally discharged, and Everett died later that night at Sound Shore Hospital at the age of 27.

Pileggi waived his right to a felony hearing, and his attorney has indicated that Mr. Pileggi may testify at the grand jury, which is always a risky decision, and an opportunity that many defendants forego, in the hope that the prosecution will fail to convince the grand jury to indict.

New York Second degree manslaughter is a Class C Felony under the New York State Penal Law, and carries with it a potential jail term of up to 15 years. Pileggi is free on $50,000 bail, and has resigned from his position with the Eastchester Police Department, where he was employed for 2 years.

Apparently, a New York City lawyer has filed a notice of claim against the Eastchester Police Department and Mr. Pileggi, alleging wrongful death, which is the first step in commencing a civil lawsuit.

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Ex NYC Police Commissioner Pleads Guilty To Tax Fraud

November 10, 2009 by Mark Siesel

Bernard Kerik, the former New York City Police Commissioner under Rudy Giuliani, pled guilty to eight felonies in federal court in White Plains on November 5, 2009. Kerik was facing potential jail time of 61 years for a combination of charges including tax fraud, submitting false statements on a mortgage application, and lying to White House officials in 2004 when he was under consideration for secretary of the Department of Homeland Security. Regarding the latter charge, apparently Mr. Kerik had received more than $200,000 in apartment renovations from Interstate Industrial Corp., in exchange for his assistance in trying to ease municipal regulations for the company, but he denied this when questioned by federal officials.

Under the plea deal, the 54 year old Kerik is likely to serve between 27 and 33 months in prison. He will be sentenced in U.S. District Court by Judge Steven C. Robinson on February 18, 2010.

Contact the White Plains criminal defense lawyers at the Law Office of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation if you are charged with a New York felony, misdemeanor, violation or traffic infraction.

New York Illegal Weapons Possession Plea For Ex-Giant Burress

August 24, 2009 by Mark Siesel

Plaxico Burress, the 32 year old ex-New York Giant wide receiver who caught the winning touchdown pass in Super Bowl 42, pled guilty on August 20th to attempted weapons possession and will serve two years in prison. Burress, who will be sentenced on September 22nd, took the plea to avoid a mandatory 3 1/2 year sentence if he was convicted of NY illegal weapons possession arising out of his arrest last November when he accidentally shot himself in the leg with an unlicensed Glock automatic pistol.

Prior to the plea deal, Mr. Burress testified before a grand jury, during which he admitted to possessing and firing the pistol. In most cases, defendants are advised to not testify before a grand jury, as it provides the prosecutor with an opportunity to obtain damaging admissions prior to trial.

After his sentencing on September 22nd, Mr. Burress will reportedly be sent to Downstate Correctional Facility in Fishkill, a maximum security prison, to determine where he should be incarcerated. With good behavior, Burress can reduce his sentence by three and a half months.

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Ex-New York Giant Burress Testifies Before Grand Jury

July 30, 2009 by Mark Siesel

In a follow up to an article we published last December, former New York Giants wide receiver Plaxico Burress testified before a grand jury yesterday on a New York illegal weapons charge. Burress was charged with two counts of illegal weapons possession last December after an incident in the Latin Quarter Nightclub when he accidentally shot himself with a Glock semiautomatic pistol he had in his waistband.

Pursuant to Section 265 of the New York Penal Law, the illegal weapons charges could land Burress in prison for up to 3 1/2 years, and apparently, Manhattan District Attorney Robert Morgenthau is insisting on jail time for the ex-star. Burress has been out on $100,000 bail since last December, and there was widespread speculation that Burress would work out a plea deal in which he would not have to serve any jail time. However, since the DA's office is pushing for a jail sentence, Burress decided to take his chances and testify before the grand jury, which will decide whether to indict Mr. Burress on the charges.

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Putnam County Manslaughter Charge In Brewster DWI Crash

June 20, 2009 by Mark Siesel

Conses Garcia-Zacarias, the Southeast man who was behind the wheel of a Ford F350 pickup that killed a mother and daughter in Brewster on June 8th, has been charged with first degree vehicular manslaughter, a felony, and driving while intoxicated, a misdemeanor. Garcia-Zacarias allegedly drove the vehicle with a BAC (blood alcohol content) of 0.15 percent, well in excess of the legal limit of 0.08 percent, when he struck Lori Donohue, 37, and her eight year old daughter Kayla, as they were leaving the Seven Stars School of Performing Arts on Rt. 6 in Brewster at 6:30 PM on June 8th. Garcia-Zacarias does not have a license and is in the United States illegally, according to authorities.

The Ford truck is owned by Valerie Ann Renihan, a northern Westchester horse trainer, who has claimed through her attorney that Mr. Garcia-Zacarias stole the keys and did not have permission to drive the vehicle. However, the lawyer did acknowledge that Mr. Garcia-Zacarias, who listed his occupation on a bail form as "horse farm", had done work for Ms. Renihan in the past.

This case has stirred debate over the twin problems of illegal immigration and unlicensed operation of a motor vehicle, especially in light of calls over the last several years to provide a path to citizenship for those who are here illegally and must operate a vehicle to go to work. Prior to his fall from grace, Governor Elliot Spitzer had offered a proposal for various types of licenses in New York State, which recognized the fact that many undocumented workers are driving vehicles and should be properly trained to do so. However, those proposals died out when Spitzer was forced to resign early last year.

Representatives of Mothers Against Drunk Driving (MADD) contend that the issue is not undocumented laborers operating motor vehicles, but rather the need for stricter enforcement and penalties for New York DWI's in that this tragedy could just have easily been caused by a United States citizen or legal resident as an undocumented worker.

Mr. Garcia-Zacarias is being held without bail at the Putnam County jail. He will be represented by Putnam County Legal Aid, according to chief attorney Patrick Brophy. The federal Immigration and Customs Enforcement has filed a detainer against Garcia-Zacarias, and in all likelihood, he will face removal (deportation) proceedings at the completion of any criminal sentence against him if he is convicted, or immediately if the charges are not proven.

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New Rochelle Doctor Charged With Larceny

June 9, 2009 by Mark Siesel

Michael Palmieri, an orthopedic surgeon with offices in New Rochelle and the Bronx, was indicted last week on charges that he assisted a former Sing Sing correctional officer defraud the Workers' Compensation Board out of $40,000. The charges are 3rd degree grand larceny, which is defined as stealing property with a value of more than $3,000, and Fraudulent practice under the Worker's Compensation Law. The New York grand larceny charge is a felony with a maximum sentence of up to 7 years in prison.

Palmieri is accused of helping former state correction officer Leo Coletti file false injury claims of over $40,000 to the State Insurance Fund between 2004 and 2006. Specifically, it is alleged that Dr. Palmieri prepared and filed false medical reports which claimed that Coletti was unable to work subsequent to September of 2000, when Coletti became Palmieri's patient. However, according to prosecutors, Coletti in actuality had a thriving general contracting and home renovation business during this time, and was renovating Palmieri's office and home while collecting Workers Compensation benefits.

Mr. Coletti pled guilty to grand larceny and tax fraud in 2006, and was sentenced to five years probation and ordered to pay back taxes and reimburse the Workers' Compensation Board. Prosecutors alleged that Coletti collected more than $110,000 in benefits and compensation while earning close to a million dollars in his home improvement business during the same period. It is unclear why it took three years after Coletti's guilty plea to charge Dr. Palmieri.

Dr. Palmieri was released without bail and is due back in Court on June 26, 2009.

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Hendrick Hudson H.S. Student Charged With Rape

June 6, 2009 by Mark Siesel

A 15 year old student at Hendrick Hudson High School has been charged with raping a schoolmate earlier this year at the school in Montrose, New York. The New York first degree rape charge is a Class B felony under the New York Penal Law punishable by a sentence of up to 25 years in prison. State police arrested the unidentified teen on May 18 and indicated that the decision whether he would be prosecuted as an adult will be determined by the Westchester District Attorney's Office.

The girl reported the rape to her guidance counselor early last month, and school officials contacted police. The victim stated that she had been fondled and then raped in a school bathroom. There is no indication that the teen had a criminal record, but this is still under investigation.

The alleged assailant was held at the Woodfield Cottage Juvenile Detention Center in Valhalla until May 29, 2009, when he was released on $50,000 bond. The case is presently being prosecuted in criminal court, but as the suspect may be charged as a juvenile offender, it may be transferred to the Westchester Family Court.

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NY Homicide Charge For Cortlandt Driver in Boy's Death

April 25, 2009 by Mark Siesel

A Westchester County grand jury has indicted Thomas Chadeayne, of Cortlandt, on a charge of criminally negligent homicide in the death of 11 year old Michael Cody last August. The indictment arises out of an tragic accident which occurred on the Saw Mill River Parkway on July 30, 2008. Mr. Chadeayne was allegedly driving southbound on the Saw Mill when he attempted to make an an illegal U-turn onto the northbound lanes of the parkway near the county police headquarters in Hawthorne. Chadeayne's vehicle was rear ended by another driver, and pushed into the northbound lanes, where it struck a vehicle being operated by Michael Cody's uncle, John Predham, who was driving back home after the family had attended a Yankees game.

Micheal Cody suffered a serious head injury in this New York fatal motor vehicle accident, and died 6 days later from complications of the injury on August 5, 2008. Two other family members in the Predham vehicle were not seriously injured.

Mr. Chadeayne was arraigned on April 23rd, pled not guilty, and released on $10,000 bail. The indictment was issued after a several month investigation by the Westchester County Police and the District Attorney's Office. According to his attorney, Mr. Chadeayne has no criminal record and is the married father of two handicapped children.

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Ex-Cops Get Life In Prison For Mob Hits

March 25, 2009 by Mark Siesel

Former New York police detectives Stephen Caracappa and Louis Eppolito were sentenced to life in prison this month for their involvement in eight mob executions as employees of the Luchese crime family. Eppolito was sentenced to life in prison for the New York conspiracy, in addition to 100 years for offenses including money laundering, and he was fined $4.7 million. Caracappa was handed a life sentence plus 80 years, and must pay a fine of $4.2 million.

The two ex-cops were partners in New York City and were on the job for a combined 44 years. They were found guilty of secretly being on the payroll of Luchese underboss Anthony "Gaspipe" Casso beginning in the 1980's, and would use their police credentials to make traffic stops that resulted in the murder of the driver. Apparently, the two former detectives also kidnapped a man suspected in a mob hit against Mr. Casso and delivered the man to Mr. Casso, who has been accused in 36 killings. Their murderous scheme came to an abrupt end in 2005, when Caracappa and Eppolito were arrested in a drug sting in Las Vegas, where they had both retired.

At the sentencing, both men continued to deny their guilt, and Eppolito probably did not engender any good will with legendary U.S. District Court Judge Weinstein when he claimed: "I was a hard working cop...I never hurt anybody...I never kidnapped anybody...I never did any of this." A son of one of the eight murder victims stated to Caracappa and Eppolito: May you have a long life in prison."

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