In an overwhelming victory, the New York City Board of Corrections has finally made strides to improve conditions for inmates on not only the infamous Rikers Island facility but also across all city jails in New York. On June 25, 2024, the board unanimously voted in favor of new rules to end solitary confinement.

This vote makes sense, considering the City Council recently passed Local Law 42. Local Law 42 mandates that jails eliminate solitary confinement that extends past four hours. Rather than rely on this archaic method, the City Council, as well as members of the New York City Board of Corrections, hopes to see jails implement alternative separation methods. According to these authorities, research and reports have proven that alternative methods not only support inmate health but also reduce violence.

Solitary confinement, in contrast, has been shown to cause significant physical and psychological harm. Unfortunately, even a short period of solitary confinement while behind bars can greatly increase an inmate’s likelihood of harming themselves.

It also increases the chances the inmate will develop a mental illness or eventually commit suicide. Even worse, multiple studies have repeatedly revealed that correctional facilities in New York disproportionately apply solitary confinement as a penalty against inmates of color.

For these reasons, Local Law 42 was passed. It makes sense that inmates should only have to endure this type of punishment for four hours or less, which should provide ample time for staff to de-escalate a situation or deal with any emergency situation. After that brief four hour period, staff should be able to apply other alternative methods that can help the inmate reintegrate into the jail.

To help ensure that solitary confinement isn’t banned by law but continued in practice under the guise of another name, the law also mandates that all inmates must have access to 14 hours of out-of-cell time and seen hours of group programming.

Initially, the mayor of New York vetoed Local Law 42, but that veto was later overridden by a massive 42-9 vote.

Do Inmates Have Rights?

Yes. Even when a citizen has been accused or convicted of a crime, they still maintain specific rights. These rights come from the U.S. Constitution, The Prison Rape Elimination Act, the Americans with Disabilities Act, the Prison Litigation Reform Act, and a combination of other federal, state, and local laws.

One of the most important rights is the right to be free from cruel and unusual punishment. In the past, solitary confinement may have been seen as appropriate, but today’s research and studies prove that the penalty causes a whole host of unintended consequences.

Do you feel like your rights have been violated as an inmate, or do you have a loved one who may be being abused illegally in prison? If so, then it’s a good idea to consider talking to a lawyer as soon as possible.

Here at Bukh Law Firm P.C., our team of attorneys are prepared to advocate for you. Schedule a consultation with us now to get started on pursuing justice.

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Avoiding the fare on New York’s subway was a misdemeanor so these few minutes were just a brief interruption in his busy, but poor, life.

Richard was surprised when he was put in the paddy wagon and taken to Rikers.

He was even more shocked two-months later when he was still behind bars in a filthy, overcrowded cell.

Is Vance A Prosecutor For The Well-Heeled?

To listen to the media, the district attorney of Manhattan’s, Cyrus Vance, Jr., tends to look the other way when it comes to white-collar crime. And there’s evidence of a soft spot in the DA ’s heart for the Uber-wealthy.

In 2012 when Trump siblings, Ivanka and Donald Junior, were not prosecuted for hoodwinking prospective buyers in the SoHo Trump Tower, their attorney, Marc Kasowitz,  threw a fundraiser for Vance and raised tens of thousands for Vance’s campaign.

Even after falling-from-grace, Harvey Weinstein confessed on tape, Vance still decided not to file sexual-assault charges. The International Business Times reported David Boies, Weinstein’s attorney, had made a $10,000 donation to Vance in 2015.

In March, New York’s Governor Cuomo, instructed the NY Attorney General to look into Vance’s treatment of the Weinstein Case.

Vance’s star is falling. Facing an unchallenged vote for a return trip to the office in November, 10% of Manhattan’s citizens are so tired of Vance’s willingness to say one thing but do another, they wrote in someone else’s name. Whose name? ABV — Anybody But Vance.

Smoke And Mirrors

With all the clouds hanging over Vance’s care and feeding of the affluent and acclaimed, another facet of his work is starting to become noticed. In spite of wrapping himself in a blanket, he calls “progressive reform,” Vance is more punitory to poor and ethnic defendants than he is to the fat-and-bloated.

Vance’s record is even worse than district attorney’s in the other divisions.

A survey released by a board on Rikers Island, revealed Vance was accountable for 38% of the jailed populace in 2016 — despite handling only 29% of all cases in the city. “No other district gets close,” the paper said.

Parade of Imprisonment

The march of confinement is exacerbated by Vance’s draconian requirements for bond. In 2016, Vance’s stats show he detained 17% of people accused of misdemeanors or insignificant violations — everything from jumping a turnstile to smoking a join.

Vance is also known for his tight-fisted approach to making defense attorneys available to detainees. It’s not just defense lawyers Vance refused to make available. When an accused has his lawyer, Vance still won’t hand over law enforcement’s reports and eyewitness accounts needed to mount a vigorous defense.

As the rest of the metro’s DAs have crept toward “open file discovery,” Vance’s approach is called “trial by ambush”  by the city’s defense lawyers.

Reforms? What Reforms?

New York lawyers who work with the poor say Vance has failed to enforce his reforms. “We’re still getting bail requests on people who are charged with misdemeanors and nonviolent felonies,” says Tina Luongo, chief attorney for the Legal Aid Society. “The whole country is talking about not setting bail for the poor, but Vance can’t motivate his office to follow suit.”

“It’s frustrating to hear someone boast about reform and not see they are running two different prosecutorial shops,” said Arkady Bukh, an internationally known criminal defense attorney. “New York has two pipelines for justice. One for those with influence and the other for the poor.”

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The narcotics cops from New York’s 83rd Precinct didn’t get much for their effort when they opened a stake-out at J&C Mini Mart in Brooklyn four years ago.

The sun was setting that autumn afternoon when they moved in on what appeared to be a crack deal. Seizing what they thought were two packets, they ended up with just residue. The undercover cops arrested two men, the buyer, and the seller, but the charges against one of the individuals was dropped later.

The cops didn’t get an arrest. Instead, they ended up with twenty-hours overtime and took home an extra $1,400 in additional cash.

The officers involved in the arrests appeared in Federal District Court for the beginning of a civil-rights trial where they faced accusations they detained one of the men, Hector Cordero, merely to juice their income. If any of the four officers involved are found responsible, another trial will be scheduled and could be the most significant challenge to the city’s policing practices since stop-and-frisk.

Collars For Dollars

The drill, legendary as collars-for-dollars, has been around for decades. The 1994 Mollen Commission first detailed the variety of devious overtime cons used in the department’s history.

In one popular one, the cops would bring additional officers while securing an arrest thus leveraging the number of officers entitled to overtime. The extra officers would allege to have found evidence the defendant allegedly tried to hide. Sometimes, additional cops entered the case as “peripheral witnesses.” They made sure to be available to complete the paperwork or be ready to testify — all in exchange for overtime pay as well.

NYPD has also participated in ‘trading dollars’ where cops often directed arrests to the member of their team who was positioned to get the most overtime. Felony arrests are usually sent to a grand jury five days following the incident, but if a cop were scheduled to work on the anticipated date, he would defer to a colleague who was not.

The second cop would ‘take the rest,’ and get the overtime pay due for going to court on a day off. Even if that meant testifying about occurrences, the officer never saw.

If Cordero’s claims are upheld, then years of reform may have been marginally useful at best.

“The scheme of making arrests for overtime pay is longstanding,” said Harry G. Levine, a sociological professor at Queens College.

Gabriel Harvis, Cordero’s attorney, has pointed out the second case would be the biggest challenge to the unconstitutional policing habits in New York since the 2013 federal trial which ended the stop-and-frisk routine.

“A rational jury may determine this exercise is not limited to a few ‘bad apples,’ Judge Jack B. Weinstein wrote. “If they find this is endemic, that NYPD managers are aware of this pattern, then steps would need to be taken to intercede and implement proper supervision.”

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Michael Brown’s killing wasn’t the first time in American history where a black male was unarmed yet shot dead by a white police officer. It wouldn’t be the last.

But Brown’s death — and the outrage which followed — seems to be a watershed moment separating the era of ‘it happened again’ from ‘it can’t happen anymore.’

Playwright Phelim McAleer addresses the unrest which was based on a lie started by Brown’s friend. The turmoil was amplified by an eager, credulous media. Now it falls to McAleer, a New York City playwright, to perform a public service and sift the truth.

The 90-minute courtroom drama just wrapped production at the 30th Street Theatre in Manhattan but will be restaged in a different venue if interest is sustained.

Governor Finally Intervenes

Missouri’s Governor, Jay Nixon, had seen weeks and months of sometimes peaceful, often violent protests in the little suburb of St. Louis. While everyone waited for the grand jury decision, Nixon detailed law enforcement preparations.

Tensions had been building, and some groups threatened to hunt down Wilson if the officer was not charged with a crime.

When rumors of an impending announcement swept social media, the prosecuting attorney, Robert McCulloch, reiterated his thought that the grand jury wouldn’t decide until the last two weeks of November.

I Know What I Saw

The National Lawyers Guild and American Civil Liberties Union assisted in protester training and tried to negotiate terms of engagement with police officers for the expected demonstrations.

Looting and vandalism in Ferguson followed the shooting. Protesters clashed with law enforcement, and some businesses boarded up and decided how to protect themselves and their property if violence and destruction spewed from the angry volcano again.

The school district reviewed plans in case of protests, and the schools were required to repeatedly dismiss classes early for safety.

While people from Ferguson said, “I know what I saw, You can’t deny it,” they forget there is a difference between “I know what I saw,” and “I know what I was shown.”

Vengeance And An Eyewitness

Ferguson broke out the summer of 2014 from a need for vengeance. Vengeance comes out of anger, frustration, and passion. Revenge has just one goal: destruction. Destruction of what went wrong, but vengeance is often turned on anything else the anger focuses on.

The protester’s claims begin to fall apart as one last witness, Ciara Jenkins, played by Renika Williams in McAleer’s stage version which is based verbatim on grand jury transcripts.

Speaking of Brown charging Wilson “like a football player,” Jenkins wonders, “I don’t understand why he just didn’t stop.”

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The New York Legislature has just passed the Raise the Age initiative. For decades, the issue was contentious and divisive. This act now provides significant protection to juvenile defendants. The key feature of this initiative is how the state will deal with 16 and 17-year-old defendants. Rather than send them to adult prisons they will now be diverted to the family court with access to social services and will also be offered special training.

For Governor Cuomo this has been a major coup in his political career. For years, he has sought to raise the age of juveniles so that they would not be treated and incarcerated like adults. Up until this initiative during the last few days, New York and North Carolina were the only two states in the nation which viewed 16 and 17-year-old as adults in criminal court.

After passing the initiative, Governor Cuomo stated that despite being a progressive state, New York had a very unjust criminal system. Over the years, countless juveniles have been incarcerated in adult prisons and many suffered significant harm.

The effort to get this bill passed was not a trivial matter. There was a lot of opposition. One would think that just treating a 16/17-year-old like a 15-year-old would be an easy matter, but not so in Albany politics.

The new law does have some simple features; now all 16 and 17-year-old individuals accused of misdemeanors will be handled by Family Court. Non-violent felony cases will start in criminal court, but in a new section known as ‘Youth Part.’ But the cases will be head by judges trained in family court law. These individuals will then be automatically diverted to the Family Court after 30 days unless there are extraordinary circumstances.

Those arrested for violent felony cases, which make up about 1% of the more than 20,000 juveniles charged in New York, will be diverted from the Youth Part first to see if the crime involved physical injury, a weapon or if the perpetrator engaged in criminal sexual conduct.

This law will also change the detention rule for juveniles. Offenders under 17 will no longer be held in county jails. This bill is considered major progress for the 16 and 17 year olds who run afoul of the law. Only time will tell if it is successful.

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Marcy Wills was charged with felony theft. She met the criteria for pretrial diversion and started to get her life back on track. When she had trouble paying the related fees and court costs, her case was sent to trial, she was found guilty and sent to jail.

There’s the catch in the pretrial diversion concept. Sure, it may keep you out of jail and avoid trial, but if something goes wrong — even if it’s not your fault — the hammer can fall and fall hard.

The pretrial portion of criminal justice processing is unique. For most individuals it is brief, and the outcome can be dingy. It is an opportunity to identify people who could benefit from a path other than incarceration.

Why Pre-Trial Diversion

A process named “pretrial diversion” is meant to help unburden overburdened courts as it permits low-risk offenders to move forward with their lives.

That’s the theory. In reality, it’s not that simple.

You’ve been arrested, and even if you get probation, that criminal conviction could trip you up in unimaginable ways. You could get evicted and even forbidden to volunteer at your kid’s school.

A pretrial diversion is an option that sometimes helps people keep their (criminal) records clean.

There will probably be a fine, classes to take potentially, counseling to attend as well as community service. Accomplish that shopping-list and the case could be dismissed. You may have to make other concessions, though — like forfeiting your right to a jury trial if something goes wrong.

Diversion is considered a privilege — not a right. Eligibility depends entirely on the prosecutor.

How to Decide if Pre-Trial Diversion is Right for You

 If you have been arrested, contact an attorney quickly to determine if a pretrial diversion would be appropriate.

Often, the programs are the ideal choice, as long as you know what the outcome will be once you complete it. Sometimes, pretrial diverse is not a good choice. If you go to trial, you could wind up with more serious consequences, harsher charges or greater penalties.  However, if you have a very strong defense, trial may be the best option.

There are many factors considered when decided on the best option. Work through those face to face with a lawyer who understands the consequences of your choice.

Speak with an attorney even if only for a consultation to learn more about the diversion process.

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During the course of her employment with three different employers, Laurie Bradshaw embezzled more than $240,000.  Bradshaw defrauded these three Chicago area employers by taking advantage of her position with these companies in which they entrusted her with such duties as coordinating purchases from vendors, opening a new office for one of the companies, and supervising executive assistants and administrative staff.  Two of the companies entrusted Bradshaw with corporate credit cards for business expenses, and, in fact, one of those companies entrusted Bradshaw with access to her boss’ e-mail account, which she then used to fraudulently approve her own invoices.

Bradshaw pleaded guilty to one count of wire fraud, but she reserved her right to challenge at sentencing the government’s recommendation of a two level increase for abuse of position of trust, see U.S.S.G., § 3B1.3.

At sentencing Bradshaw argued that § 3B1.3 applies to fiduciaries whereas she was merely “a secretary with a fancy title.”  The district court, however, found the enhancement warranted due to the nature of her relationship with her superiors, including the fact that she was entrusted with a corporate credit card, entrusted to open a new office for one of the companies and entrusted with access to her boss’ e-mail account.

On appeal, Bradshaw argued that she did not occupy a position of trust because her positions with these companies were not characterized by professional or managerial discretion.  She likened her role to that of “an ordinary bank teller or hotel clerk,” and described herself as merely “an administrative assistant without significant authority.”

In a decision issued in February, the Seventh Circuit clarified, however, that the focus is not on the individual’s duties or responsibilities, but rather on the victim’s special trust and reliance placed with the defendant and the degree of discretion given the defendant by the victim.  As such, employees may hold a position of trust even when they do not occupy upper level or even supervisory positions.  The Seventh Circuit held that in this instance, Bradshaw held a position of limited authority that she used to earn the trust of her supervisors so that they would not question the propriety of her purchases.  As such, the judgment of the lower court was affirmed.

This case reemphasizes the focus of any inquiry where an abuse of position of trust enhancement may apply.  The focus should not be on the position held by the defendant or the particular tasks which are delegated to that defendant, but rather the amount of trust placed with that individual by the victim.  As such, it is not the high ranking, supervisory employees that are the only ones subject to the enhancement in an embezzlement situation, but potentially any employee, depending on the circumstances.

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Much has been written recently about the sad case of Aaron Swartz. Described as “a brilliant young software programmer and Internet activist,” Swartz, 26, committed suicide in January. At the time of his death, Swartz was under indictment in the District of Massachusetts for wire fraud, computer fraud, and various other cyber-crime-related offenses. The indictment alleged, in essence, that Swartz, without authority, hacked into a restricted-use online service that provided archiving and research services for academic institutions.

The U.S. Attorney in Boston has acknowledged that there was no evidence that Swartz ever intended to use the information for personal gain. Instead, it appears that Swartz’s actions were driven by a desire to make information available on the internet. Swartz’s supporters and friends have blamed the U.S. Attorney, in large measure, for Swartz’s death. They argue that charges should never have been brought against Swartz, and that the U.S. Attorney’s insistence that Swartz plead guilty to a felony was an example of gross prosecutorial overreach. The U.S. Attorney, on the other hand, has defended her office’s handling of the case, stating that the assigned prosecutors, “took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.” Whether this was a case of prosecutorial overreach or a reasonable prosecution lies in the eye of the beholder. It is a debate in which there will be no clear winner. However, an important lesson should be taken from this tragic case.

Those of us who work in the criminal justice system, whether as defense attorneys, prosecutors, judges, or pretrial services officers, need to always keep in mind that we deal in high-stakes cases, where the stresses and emotions can be overwhelming. I am personally familiar with several cases involving defendants who committed suicide after charges were brought against them. (Fortunately, none of those cases involved individuals whom I prosecuted or defended.) The cases involved no discernible pattern as to the ages of the defendants (they included young and not so young), their level of education, their prior criminal records (or lack thereof), or the nature of the charges (they included charges as disparate as possession of child pornography and violent extortion).

What is apparent is that these individuals all suffered depression, at least in part, as a result of the circumstances in which they found themselves; a depression so profound that they decided to take their own lives. Perhaps such tragedies, including that of Aaron Swartz, couldn’t have been prevented, but we should at least be sensitive to the issue and take appropriate action when the signs of serious depression are present and perceived.

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Americans love trials. Criminal trials, in particular, have been a favorite subject for both television (Law &Order, Perry Mason) and movies (To Kill a Mockingbird, The Verdict). But judges, lawyers, and litigants? Not so much.

It has been widely reported here and here that the number of trials of all varieties (criminal, civil, bench, jury) is in an inexorable, decades-long decline. For example, although the number of federal criminal cases filed between 1962 and 2002 more than doubled, the number resolved by trial was only about 70 percent of what it was in 1962.

There can be little doubt that the influence of mandatory minimum sentences and the sentencing guidelines, both of which give great power to prosecutors to reduce the sentence a convicted defendant receives in exchange for a guilty plea, have contributed heavily to this trend. But the inescapable conclusion is that by reason of law and resources, a federal criminal defendant faces almost staggeringly hopeless odds by proceeding to trial.

In 2009, the most recent year for which statistics from the Bureau of Justice Statistics are available, less than 1 percent of criminal defendants were acquitted following trial. Of the 95,891 defendants charged in federal court in that year, fewer than 500 were acquitted following a jury or bench trial. Defense attorneys have a far better chance convincing a district judge or an assistant U.S. Attorney that the case should be dismissed than they do of winning at trial; in 2009, the cases against more than 8,000 defendants were dismissed.

Although chances for acquittal following trial in federal court may be the equivalent of a snow ball’s survival in hell, there may nonetheless be logical, and even compelling reasons for a defendant to proceed to trial despite the strength of the evidence against him and his statistically feeble odds. Sure, a guilty conviction following trial risks a lengthier guideline sentence due to the loss of the acceptance of responsibility reduction (something that might realistically be viewed as a discount view as and possible addition of the construction enhancement), but it can provide the judge with a more complete picture of a defendant. A presentence report invariably presents a washed out version of a defendant’s background and motives, and even the best sentencing memoranda and sentencing hearing presentations seldom provide the level of detail presented in a trial. Defense attorneys sometime refer to these trials in the face of overwhelmingly long odds as “slow guilty pleas.”

There may be some risk that a sentencing judge will consciously or subconsciously impose a harsher sentence on a defendant for taking a weak case to trial. (Believe me, it has happened.) Nonetheless, in today’s era of the rare trial, that risk may be outweighed by the judge’s gratitude for escaping his chambers and actually getting to try a case.

With each new iteration of plea agreements by the government, the fairness of the plea agreement (and trial-eradicating) system diminishes. Defendants are routinely required to waive the right to appeal errors of which they have no knowledge and to contest facts that are clearly wrong, all in hopes of a morsel of mercy being tossed their way. I’m not aware of any statistics on the topic, but anecdotal evidence suggests that more defendants are pleading guilty sans plea agreements.

Perhaps the drafters of the Federal Rules of Criminal Procedure might consider a hybrid trial/plea proceeding where a defendant would be allowed to put on evidence that did not contest his guilt as a matter of law, but provided the judge with a more expansive and in depth view of the underlying facts than is typically available at sentencing. The end result could leave all participants involved closer to the belief that justice had truly been achieved.

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Mortgage Abuse: And You Really Thought the Lender Was On Your Side

While “Robo-signing” has made the headlines, many loan companies have identified methods to speed foreclosures and generate fees all payable by the homeowner. Many of the uppermost mortgage servicing abuses could be curtailed with a little research and caution by the potential home buyer.

Don’t allow yourself to get stuck on these scams.

Misapplied Payment

Even if you make the payment on time, the loan company may “accidentally” reject the check — or apply it to a completely erroneous account. The outcome is unjustified late charges and frequently other penalties. Misdirected mortgages are a headache for homeowners, but for the finance company, they mean more income.

Illegal Fees

It is not permitted to bill the borrower when the finance business pays for property monitoring, but it happens; so too with other illicit fees.

Hypocritical “Help”

Homebuyers who have been cooperating with their mortgage company to smooth out their loan are shocked to discover that the company is pursuing foreclosure.

Refinancing Blocked

Lenders don’t like to lose so it in their best interest to stall refinancing attempts. Some financiers have even declined to produce loan payoff data.

Legal Rights Squelched

Loan companies frequently include “waivers” with modifications which tell the home buyer, “If you sign this change, you are giving up your right to use any legal action against us — not matter how wicked we get.”

Botched Taxes

Many mortgages include an escrow account for taxes that the lender is supposed to manage. When the banker doesn’t pay taxes or insurance bills on time, the homebuyer is nailed with the penalties — not the lender. Some require costly risk coverage even when adequate insurance is already held.

Zero Communication

When lenders believe a homebuyer is a payment late, it is supposed to send a notice. Often they do; often they don’t.

Foreclosures

Every state has regulations overseeing the foreclosure procedure and when foreclosure can be begun. In the race to foreclose, some lenders ignore critical steps which are legally required.

Wacky Foreclosures

Although difficult to accept, crazy foreclosures happen frequently. The lender initiates foreclosure processes despite the homebuyer being current on their payments.

Robo-Signing

Attorney Arkady Bukh advises Lenders sometimes fail to review important documents. Sometimes they even falsify court documents used to evict the home buyer. When bankers haven’t kept records, the owner is on the hook for legal fees, taxes and penalties.

The lesson in all this? Double check and re-read documents. Make a copy of everything connected with your mortgage so that if the lender claims to have misplaced something, you’re ready with a notarized copy.

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