Dismissal - The District Attorney's Office.
Client: Prominent real estate developer charged with assaulting his wife, while their very difficult divorce proceeding was pending.
Criminal Charges: Assault in the 3rd Degree.
Result: The Manhattan District Attorney ultimately Dismissed the criminal charges, over the complaint’s very strong objection. After reviewing all of the material presented, the DA’s Office dismissed the case the following day.
District Attorney’s initial Position: The client had been arrested and charged with misdemeanor assault and harassment here in New York County. The DA’s Office’s initial offer was a plea to a non-criminal violation, with a two-year order of protection granted in favor of the complainant wife.
Key Problem: The Client was nearing the end of a very expensive and nasty divorce in Family Court. A plea, even to the non-criminal violation, would have been problematic. The Family Court Judge was waiting to see what the final criminal court result would be, before signing off on a settlement.
My Office’s Approach: I was able to convince the assigned Assistant District Attorney (ADA) and his supervisor, to essentially try the case in their office, without the risks involved in a criminal court jury trial.
I brought the client in to speak to the ADA directly twice. A member of the household staff, who had been present at the time of the alleged incident, also met with the ADA. A video of the complainant, showing her in an aggressive posture at a family event, was also turned over to the DA’s Office.
Final Analysis: A prosecutor’s obligation to do justice, in the right case, can be a powerful concept. For experienced defense counsel, the same evidence that would be presented at trial, can often effectively be presented to the District Attorney’s Office directly to obtain a just result, in this case a dismissal.
A success in all respects for the client and his infant daughter.
Federal Court Dismissal.
Client: 70 year-old French Citizen.
Criminal Charges:Conspiracy & Wire Fraud in the Southern District of New York.
Result: After seven months in United States custody, and an initial plea offer of from 51 to 63 months in federal prison, a deferred prosecution request, made by my office, was ultimately successful. The matter was dismissed and the defendant immediately released.
Facts: The defendant had opened six checking accounts and formed two corporations in New York. These were ultimately used by a co-conspirator to steal approximately $400,000, from over 200 individuals throughout the United States.
My Office’s Approach: I had visited the defendant in the Metropolitan Detention Center approximately fifteen (15) times during his incarceration. It became clear to me that immediately prior to the financial fraud, the defendant had suffered a nervous breakdown, and was in an extremely fragile mental condition when recruited to participate in the conspiracy.
Why I Believe My Office Had Success: I have a reputation throughout the Criminal Justice Community in New York as a skilled and practical defense attorney who is also, very realistic. I am not a lawyer who blindly vouches for each and every client’s innocence. As a result, when my office’s Deferred Prosecution request was received at the United States Attorney’s Office, it carried a great deal of weight. I believe that an AUSA, who was on the Deferred Prosecution committee, and had known me since I was a young Assistant District Attorney, basically said, “McCarthy says the guy is innocent?! Let me see that file!”
Final Analysis: The matter was dismissed, the defendant was released, and he immediately returned home to his family in France. A wonderful result in all respects for the client and his family.
Dismissal of two Gun Charges Upon Completion of the Pre-Trial Intervention Program (PTI).
Client: 65 year old retired food service worker.
Criminal Charges: Criminal Possession Of A Weapon (Level 3 Offense) 2 Counts (two semi-automatic Handguns).
Result: Dismissal of both Gun Charges Upon Completion of the Pre-Trial Intervention Program (PTI).
Facts: Client was in possession of two loaded semi-automatic handguns in his vehicle upon returning from an upstate hunting trip.
State Court Prosecutor’s Initial Position: The local prosecutor in Hackensack, New Jersey had no initial sympathy for the client. The client had a valid permit for each weapon in New York. However, a loaded Glock 9mm semi-automatic in a shoulder holster, appeared, in the prosecutor’s judgment, to be inconsistent with a hunting trip. As a result, the initial offer to the client after indictment, was three (3) years in State Prison.
My Office’s Approach: The client had to be humanized with the Prosecutor’s Office as effectively as possible. He had led an exemplary life; his only misstep had been getting off of the New York State Thruway, to cut through New Jersey, to save money on gasoline. He had valid permits in New York, no prior criminal record, and the car was filled with legitimate hunting gear.
Final Analysis: I was able to establish a very effective relationship with the assigned prosecutor over a six month period of negotiations. The equities of the situation eventually won him over, and he ultimately became an ally in convincing the Chief Administrative Judge to take the extraordinary step of allowing entry into PTI on a gun case. The client successfully completed a 12 month period of minimal supervision, and the charges were ultimately dismissed. A wonderful result for the client.
No arrest of the client
Client: 40 year old father of two.
Initial Accusation: The NYC Human Resources Administration accused the client of inappropriately obtaining Medicaid Benefits valued at approximately One Hundred Thousand dollars ($100,000).
Key Problem: The client had a previous Felony Conviction for Grand Larceny in New York, on a similar set of facts, within the past 5 years.
Result: No referral by the agency's Fraud Investigation Unit, to the District Attorney’s Office.
My Office’s Approach The client had a previous Felony conviction for the same type of fraud. As a consequence my goal was to reach a resolution with the investigator as quickly as possible, without her referring the case to the DA’s office. Such a referral would have likely resulted in a state prison sentence for the client.
Result: No criminal charges brought, with no referral of the matter to the District Attorney’s Office. The client paid a reduced restitution amount directly to the Human Resources Administration of approximately half of the original amount sought by the Fraud Investigation Unit.
Final Analysis: The Fraud Investigation Unit is overworked. I was able to characterize the matter as more of an inappropriate accounting error, than criminal conduct. As a practical matter, I was able to speak the Investigator’s language persuasively and effectively. As a result, the Fraud Investigation Unit choose not to see this as criminal conduct and ultimately accepted a reduced financial settlement. A success in all respects, for the client and his family.
Not Guilty - Jury Verdict
Client: 41 year-old truck driver from Westchester County.
Criminal Charges: Operating a Motor Vehicle While Under The Influence of Alcohol (VTL § 1192.3)
Result: “NOT GUILTY” Jury Verdict after a trial in Bronx County Supreme Court.
Bronx District Attorney’s Initial Position: The Bronx County District Attorney’s Office refused to negotiate a plea and recommended jail time to the court. This no plea position was based upon the defendant’s two prior Driving While Ability Impaired by Alcohol (VTL § 1192.1) convictions, and his refusal to submit to a blood alcohol test in this case.
My Office’s Approach: Initial negotiations were attempted with the Assistant District Attorney (ADA) and his supervisor. I had visited the arrest scene a number of times, and it was obvious that the arresting officers could not have made the observations alleged in the Criminal Complaint. The physical layout of the Bruckner Expressway service road, under the elevated highway, prevented it.
The police officers were not being truthful and the case was flawed. Since the DA’s office refused to negotiate, I moved the case to trial.
Final Analysis: I have had significant success over the past 19 years as a defense attorney, forcing prosecutors to do justice. Here the DA’s office took a position that was not supported by the facts. As a consequence, a successful result could only be obtained by forcing a trial and asking a jury to do justice. The not guilty verdict returned by the jury was appropriate and mandated by the facts. In all respects, a wonderful result for the client and his family.
Diversion Into Pre-Trial Intervention - Case Ultimately Dismissed
Facts: The Client was arrested and indicted for a violent assault that resulted in significant injuries to the alleged victim.
Criminal Charges Brought: The Grand Jury returned a number of charges, the most serious of which was Aggravated Assault, a Level 2 Offense in New Jersey. (Similar to Assault in the First Degree, a Class B violent Felony in New York.)
The Bergen County Prosecutor’s Office Initial Position: The client was charged and indicted by the Grand Jury while represented by previous counsel. The plea offer to my client, by the time my office was retained, was a plea to the charge and five (5) years in state prison.
My Office's Approach: After a thorough review of the facts, it became clear that there was a viable self-defense claim that should have been presented to the Grand Jury. Since previous counsel had failed to take advantage of that opportunity, my goal was to convince the prosecutor that the self-defense claim was legitimate and had a significant chance of success at trial.
Successful Result: After a nine month period of negotiation, the State Prosecutor ultimately granted special permission for this Level 2 Assault case to be diverted out of the criminal justice system and into the Pre-Trial Intervention Program (PTI). The client successfully completed a twelve (12) month period of probationary-type supervision through PTI, and the case was ultimately dismissed.
Final Analysis: The case required careful and sophisticated intervention with the Bergen County Prosecutor’s Office. The goal was to enable the client to obtain a just result, equal to a success after trial. As a practical matter, the successful completion of the PTI program resulted in a dismissal of the entire indictment. A gratifying success in all respects for the client.
Sentenced to 6 Months of Home Confinement, Followed by 3 years of Probation
Criminal Charges: Conspiracy to distribute crack cocaine, in the Federal District Court, Southern District of New York.
Client: 41 year-old business owner.
Result: The defendant was sentenced to six months of home confinement, followed by three years of probation, despite a Federal Sentencing Guidelines analysis that recommended significant federal prison time.
Facts: On at least two occasions, the defendant sold crack cocaine to a confidential informant, while being observed by FBI agents stationed across the street from his place of business.
The Government’s Initial Position: The evidence against my client was extraordinarily strong, and the Government viewed him with absolutely no sympathy. He owned a large, successful local business and had begun distributing crack with another individual to bring in extra income.
My Office’s Approach: My client was faced with significant Federal prison time, and the forfeiture of his business property. As a consequence, I determined that attempted cooperation with the United States Attorney’s Office was the only appropriate way to proceed in an effort to avoid significant jail time. Unfortunately, my client was not a sophisticated drug dealer and had very little useful information for the Government. After an extensive series of meetings with the Assistant United State Attorneys handling the case, as well as the FBI agents who arrested my client, the decision was made by the Government not to use my client as a cooperating witness. He did not have enough information to be of value to them. My office was left in the difficult position of facing extremely strong evidence, mandating serious federal prison time, and a client with no useful information for the Government.
Result: Despite these significant obstacles, my office was able to obtain for the client a sentence of six months of home confinement, followed by three years of probation, with no federal prison time being imposed. The key to such a result was to initially win over the Assistant United States Attorneys handling the case. My approach was to first humanize my client in the series of face to face meetings with the Government, noted above. These meetings proved to be extremely effective with respect to a key issue, the Government’s willingness to characterize the drugs sold as powder cocaine, and not crack. This significant use of discretion by the Government reduced the Federal Sentencing Guidelines analysis to call for only 12 to 18 months in federal prison. The next, and in my judgment, crucial success, was to convince the Senior Federal District Court Judge that my client’s attempted cooperation had value. My argument was that the client should be given credit for his attempt to cooperate, despite the Government’s unwillingness to use him as a witness.
Final Analysis: This strategy was a success in all respects. At sentencing, the judge adopted my argument as to why my client had earned a sentence of home confinement, followed by probation, through his attempted cooperation with the Government. Equally as important, the judge did not order my client to forfeit his interest in the business property where the sales occurred. In my judgment, this extraordinary result was achieved through careful and sophisticated intervention with both the Government and the District Court. At each important stage of the proceedings, both the United States Attorney’s Office, as well as the District Court Judge, were effectively persuaded to treat the defendant in the most favorable way possible. Ultimately, this was a very gratifying representation and a wonderful result in all respects for my client and his young family.
Dismissal at the Grand Jury Level
Client: 20 year-old female college student.
Criminal Charges: CRIMINALLY NEGLIGENT HOMICIDE, in violation of P.L. §125.10, A Class “E” Felony
Result: DISMISSAL OF ALL CRIMINAL CHARGES. No True Bill Returned by the Grand Jury
Facts: The defendant was arrested and charged after a six-month police investigation into an automobile accident, recorded on video, which resulted in a death.
District Attorney’s Initial Position: A post-arrest statement by District Attorney Daniel Donovan, Esq. read in part, “This was a very lengthy and thorough investigation between our office and the [NYPD] Accident Investigation Squad. Based on the law and available evidence, [Criminally Negligent Homicide] is the most appropriate charge.”
My Approach: After being retained in March, 2010, my office began the process that led to the client testifying very effectively in the Grand Jury. After a number of visits to the scene of the accident, meetings with the assigned Deputy Bureau Chief and assigned prosecutor, lead police investigator and my client, she was then extensively prepared to testify successfully in the Grand Jury.
Result: The resulting “No True Bill” was very gratifying, and as a practical matter, saved the client’s promising future. The case was dismissed at the Grand Jury level.
Final Analysis: While this was not an extraordinarily complex matter, it was one requiring careful and effective intervention with the DA’s Office. The goal was to put the client in a position to be fairly treated when she testified in the Grand Jury, and to prepare her to testify in the most effective way possible. Ultimately, a success in all respects.