OUTCOME: Worked out low jail time plea in heavy gang case.
Client was charged with Arson in the First Degree (carrying a potential life sentence) and related crimes as part of alleged retaliatory gang action that involved driving a car into the lobby of a buil...ding and setting it on fire intending it to explode. I challenged the validity of the Arson in the First degree charges in a Motion to Dismiss and, in a hotly contested litigation, Judge Shea granted my motion to dimiss this most serious charge against Mr. Fernandez, citing my arguments as to why the facts were insufficient to support this charge. I investigated this case very thoroughly and was prepared to punch holes in the DA's case at trial, although it was a bad case for Mr. Fernandez on charges that included reckless endangerment and attempted murder. However, my preparation allowed me to obtain an excellent plea offer that Mr. Fernandez was very happy with and the case was well resolved.
Criminal defense
United States v. Malike
N/A
OUTCOME: Reversed and remanded to sentencing court
After the Supreme Court repudiated the mandatory nature of the U.S. Sentencing Guidelines, my colleague and I challenged the 39 month sentence of our client by the Hon. Nina Gershon. I argued the appe...al before the Second Circuit, claiming that the sentencing court had ignored very clear mitigating factors in its decision to depart upward against Mr. Malike in her sentence. At the time, the general rule was that the Circuit court would remit cases for a review by the sentencing court for error and, if need be, an adjustment. Here, for the first time since the law changed, the Second Circuit took matters a step further and reversed the sentence of Judge Gershon and remanded the case to her for a de novo (new) sentencing hearing.
Criminal defense
People v. O'Toole
N/A
OUTCOME: Indictment Dismissed and Record Sealed
Client was arrested for a homicide in the shooting death of a drug dealer on Madison Avenue in the low 100s. At the time of his arrest, he was stradding his bicycle at a phone booth and surrounded by ...3 cops and the decedent's sister. Client ditched the bike and ran when the sister said "Now we got you for killing Alex". Two cops gave chase. Third cop stayed back, but claimed to see, from some distance, a gun fall out of client's rear waistband when other cop grabbed client's jacket. Neither of the other cops laid claim to seeing this gun, nor hearing it hit the concrete. Third cop claimed he seized the gun by inserting a pencil in the barrel to preserve an fingerprint evidence (even though he said he saw it fall out of the client's rear waist area). He then claimed that ESU came in to the precinct to unload the gun. Client was indicted for murder and gun possession.
I investigated the case and determined that the ESU job was cancelled and the ESU unit actually never went to the precinct. I also determined that the gun attributed to my client was a very cheap street gun that a bad cop would more likely use to "flake" a client with than a more expensive model.
I also found the DA's alleged witnesses to this case, a heroin addict named Leah who worked for the deceased and a crackhead extraordinaire nicknamed "Dimples" who was high more frequently than she was not. While Leah was inaccessible, I took numerous conflicting statements from Dimples in preparing for trial. I visited the scene, went out and found the ESU cop who filled out the report showing the job that the other cop said was done at the precinct was canceled and readied for trial. In doing so, I found a solid witness, then in military training in Texas (where I visited her) who had seen the shooting and described the shooter completely differently from the way my client appeared. Bound to be my star witness.
At trial, my cross of Leah was persistent and, when I didn't finish after the first afternoon, she fled to New Jersey. The DA had to go with NYPD and NJ cops to get her back to court where I finished her off. Dimples was easy. Then there was the lying cop. I set him up with the information I had lying in wait. He went in hook, line and sinker on the ESU job, describing how he watched the ESU cops come in to the precinct to unload the gun, when they never did. My defense of flake on the gun (which was not alleged to have been used in the homicide) was set to work. Then, on cross of the lead deterctive, it was discovered that there were some 40 pages of police reports that were not provided to the defense. A mistrial was declared.
I then read the newly provided police reports and found a wealth of useful information showing witnesses describing the shooter and his accomplices as looking different from my client and his friends. On top of that, I discovered, on my own, that the lying cop was in trouble with NYPD after getting himself arrested for working as muscle at an apartment brothel. Eventually, the prosecutor and an investigator from his office came to my office and spoke with my star witness in my conference room. They took this information back to their boss and, based on my advocacy, the District Attorney's Office dismissed the charges against my client, who had been released from jail months earlier.
