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Criminal Law Blog

Wednesday, December 10, 2014

MTA Worker Receives $25K Settlement for Wrongful Arrest

Can You Sue After Police Abuse?


Daniel Zajackowksi worked as an MTA transit planner.  As he walked along a street in Brooklyn, perhaps it seemed natural to him to give advice to police on how they could improve traffic at a Bushwick Avenue intersection.  So he approached nearby NYPD officers and gave them his assessment. 

The cops did not appreciate his free analysis, however.  They handcuffed him, threw him in a van, and took to him a nearby police precinct house where he was briefly detained.  The police held Zajackowksi, who has Master’s Degree from Hunter College and who also sings in a punk rock band, for two hours before giving him a desk appearance ticket for disorderly conduct and releasing him.  His girlfriend, who had been strolling with him and who witnessed the entire episode, was deeply shaken by it.

Though the charges were dropped, Zajackowski filed suit against the police department in Brooklyn federal court.  According to his lawsuit, he approached the police offers as a "concerned citizen" and offered his views calmly with the goal of improving traffic safety.

Now he has reached a settlement with the police department and will receive $25,000.

Harassment, mistreatment, and wrongful arrest are, sadly, all too common in the current law enforcement environment.  If it happens to you, however, you are not powerless.  A skilled attorney may be able help you get the charges dropped and, in some cases, obtain compensation for you.  The Law Firm of Michael J. Redenburg, Esq. has years of experience in all types of criminal defense and has successfully handled many false arrest cases.  If you feel you have been unfairly arrested or detained, contact our office at (212)240-9465 so we can discuss your situation and your options for moving forward. 

Monday, December 01, 2014

What Must Be Shown for a Successful False Arrest Case?

A "false arrest" occurs when a police officer (or a private person or business, depending on the circumstances) detains or confines a person against his or her will without proper legal authority. A false arrest could violate federal civil rights law and state common law.  A lack of proper authority for the arrest could be used by a criminal defense attorney to have the charges dismissed, but a false arrest case is a separate, civil lawsuit.

The definition of false arrest is generally the same under federal and state law. Procedural rules under both sets of laws are very different. Failing to comply with them could result in a case being dismissed. 

Under federal law a false arrest claim is based on the Fourth Amendment of the U.S. Constitution, which states in part:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…"  A false arrest involves the "unreasonable" "seizure" of a "person" which is in essence prohibited arrest without probable cause.  State law uses the same definition.

Probable cause means "information sufficient to support a reasonable belief that an offense has been committed by the person to be arrested."  It does not mean proof beyond a reasonable doubt, proof by a preponderance of the evidence or that the person is guilty.  It is a very low standard, one that is usually satisfied by law enforcement performing their jobs competently and in good faith.  

The existence of probable cause is a complete defense to an action for false arrest, under both federal law and state law, even if the person is innocent of the underlying crime.  The plaintiff has the burden of proof and could show there was no probable cause for the arrest if there is evidence that the police officer lied about what happened, wrongly assessed the situation, or acted in bad faith.

To pursue a false arrest action under state law in New York City, a notice of claim must be filed with the city’s Comptroller's Office within ninety days of the false arrest. The notice of claim must be completed and filed properly. Errors in the process can result in the dismissal of your lawsuit. Under federal law, there is a three year statute of limitations and there is no notice of claim requirement.  

If you live in the New York City area and believe you have been falsely arrested, contact Michael J. Redenburg at (212)240-9465 to schedule a consultation today. 


Sunday, November 16, 2014

Court Says Performance Fees Paid to Exotic Dancers Do Not Offset Minimum Wages

In a very interesting case entitled Sabrina Hart et. al. v. Rick's Cabaret International, Inc. et. al., 1:09-cv-03043, Judge Engelmayer recently ruled on multiple issues concerning the monies that exotic dancers a/k/a strippers are entitled to as employees. In an earlier decision dated 09/10/13, the Court ruled that exotic dancers at the New York City club Rick's Cabaret were not independent contractors, as Rick's contended, but rather, the dancers were employees and therefore entitled to the protections afforded by the New York Labor Law and the Fair Labor Standards Act. Importantly, in a decision dated November 14, 2014, the Court ruled that performance fees paid by customers to dancers do not offset the employer's obligation under the Fair Labor Standards Act or the New York Labor Law to pay the dancers minimum wages. 

The Court found that the club was liable for retaining gratuities in violation of NYLL 196-d, more specifically, the $2.00 the club retained without telling customers, concerning "Dance Dollars" purchased by credit card by customers. NYLL Section 196-d reads: "no employer or his agent...shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for any employee. The Court looked to a New York Court of Appeals case, Samiento v. World Yacht, Inc., 10 N.Y.3d 70 (2008) and reasoned that under the standard set forth in that case, a customer would regard a $20 payment for a personal dance - regardless of the form that payment took - as "purported to be a gratuity." The Court then ruled that the club violated NYLL 196-d when it retained $6 and not $4 from each redeemed dance dollar. 

 The Law Firm of Michael J. Redenburg, Esq. PC along with the Law Firm of Osman & Smay LLP (Matthew Osman admitted pro-hac vice), is currently representing exotic dancers who worked at a NY club known as Scandals located in Long Island City, NY. Many of the issues presented in the case are at least similar to the issues presented in the Rick's Cabaret case. Many adult clubs in NY, and indeed throughout the country have long labeled the dancers that work at the clubs as independent contractors therefore denying them important rights that they would otherwise be entitled to under the FLSA and NYLL. 


Friday, November 14, 2014

Brooklyn False Arrest Victim Files His Amended Complaint

Jeffrey B. filed his Amended Complaint in Brooklyn Federal Court alleging a false arrest and other causes of action on November 13, 2014. He amended his complaint to add the names of the NYC police officers who were involved in the Incident when he was arrest after the City of New York disclosed that information within their Initial Disclosures.

Contents of the Amended Complaint

At about 7PM on May 19, 2014, Jeffrey was driving his 2011 Jeep Grand Cherokee which had not been altered or modified in any way from the time that he leased it, new. An NYPD vehicle began following him and signaled for him to pull to the side of the road and when he complied, he was notified that the reason he was stopped was because his vehicle's window tint was too dark. Concerned about the way things were transpiring, Jeffrey decided to record the unfolding Incident with his cell phone. This apparently angered the officers and so they explained to Jeffrey that he was being a "wise-ass" and a Sergeant grabbed his phone, removing the secure digital card as well. Excessively tight handcuffs were then place on Jeffrey and his request to loosen the cuffs was denied.

Next, Jeffrey was transported to the 67th precinct and an officer explained to Jeffrey, "Now you're in my house," You can't talk shit anymore," and "You're not going home." Once at Central Booking, Jeffrey learned that he had been charged with violating NY PL195.05, Obstructing Governmental Administration in the third degree and violating VTL375.12 which is an equipment violation commonly referred to as excessively tinted windows. At his criminal court arraignment, the matter was ACD, adjourned in contemplation of dismissal.

Michael J. Redenburg represents Jeffrey and the Corporation Counsel for the City of NY represents the City and the individually named defendant officers.


Thursday, November 13, 2014

Restaurant Workers Deserve Their Tips and Gratuities

Whether you call it a tip or a gratuity, the bottom line is that hardworking waitstaff including bartenders, waiters and waitresses deserve and are in fact entitled to these monies by state and federal law. In simplistic terms, a good way to determine whether a service fee charged by restaurants and night clubs at banquets or private parties should go to the bartenders and other wait staff is this: Would a reasonable customer believe that the fee would be going to the wait staff? If the answer is yes, or maybe yes, then it should be going to the bartenders, waiters, waitresses and waitstaff.

The Department of Labor answers some questions in this regard on their website at https://labor.ny.gov/legal/counsel/pdf/tips-frequently-asked-questions.pdf

One of the questions answered deals with when a customer leaves a tip for a waitress or bartender on a credit card, and that question and answer provided on the DOL's website is set forth below: 

If a customer leaves a tip for an employee on a credit card slip, how can an employer give the tip to the employee?

When tips are given by customers via credit card, the employer must pay the employee the amount due no later than the next regularly scheduled pay day. The employer may subtract from the employee's tips the pro-rated share of the charge levied by the credit card company. An employer remitting tips to an employee must include a breakdown between the tips and the wages on the employee's wage statement, which must meet all other requirements for wage statements.

This position reflects a change in DOL policy as set forth in DOL opinion RO-08-0032 related to this issue. That opinion is hereby rescinded.

Additionally, tipped employees may provide their employer with a written authorization/assignment to use portions of their tips for wage deductions permitted under Section 193 of the Labor Law (e.g. health insurance, 401k contributions, union dues, etc.).

The above question and answer regarding the amount of money an employer is allowed to retain when a customer leaves a tip on a credit card is taken directly from the DOL's website.


Thursday, November 13, 2014

Allegedly Drunk Man Falls Asleep in Port Authority Parking Lot
It is no secret that alcohol lowers inhibitions and sometimes causes us to make mistakes.  This is part of the reason why so many people drive after they become intoxicated.  An incident of this kind can lead to arrest, criminal charges, a conviction, jail time and other punishments. Unfortunately, some of us make it easier for the police to arrest us for driving while intoxicated and for prosecutors to obtain a conviction.

One morning in early November, Frank Ko, age 36, was driving around John F. Kennedy Airport in Queens, New York.  He pulled his 2014 Acura into a parking lot near one of the many buildings and fell asleep with the engine still running.  Unfortunately, Ko chose a lot that was utilized by the Port Authority Police Department.  A Port Authority cop saw Ko, approached his vehicle and attempted to wake him multiple times.  Once Ko woke up, the officer noticed that his eyes were bloodshot, he was slurring his words and he smelled strongly of alcohol.  The officer suspected that Ko was drunk and proceeded to give him a Breathalyzer test.  It is alleged that he was found to have a .18 blood alcohol content which is more than double New York’s legal limit.  The officer arrested Ko and he was charged with one count of aggravated driving while intoxicated.  He was arraigned at Queens Criminal Court and is awaiting the disposition of his case.

An arrest for driving while intoxicated or driving under the influence can happen in a variety of situations.  No matter the circumstances, if you are arrested for or charged with DUI/DWI, it is in your best interest to retain an experienced criminal defense attorney to represent you in your case. New York City lawyer Michael J. Redenburg regularly represents clients accused of DUI/ DWI/ DWAI.  Contact his office at (212)240-9465 to schedule a consultation today.


Saturday, November 08, 2014

Amended Complaint Filed in Brooklyn False Arrest Lawsuit

On November 6, 2014, Alourdes and Chekina T. filed their Amended Complaint in Brooklyn Federal Court. The case number is 14-cv-0892 and they are represented by Michael J. Redenburg. The Amended Complaint adds one of the individual officers whose name was recently disclosed by the defendant City of New York.

Allegations Within the Amended Complaint

The Incident complained of occurred in the late afternoon of January 26, 2014, in Brooklyn, NY. Alourdes was alerted by a gentleman doing work on her house that numerous NYPD officers were in the front of her home slamming her son's head into an NYPD police car. Once Alourdes objected to the officers' physical assault of her son, she was physically assaulted and punched in the head by an officer. He young daughter, Chekina, was then alerted to what was transpiring and came outside. After retrieving her iPad to record the unfolding Incident, the officers announced, "Arrest her too," and she was subsequently charged with Obstructing Governmental Administration, NY PL 195.05 and Disorderly Conduct, 240.20.

Once before a criminal court judge in Brooklyn Criminal Court for their arraignments, both Alourdes' and Chekina's cases were adjourned in contemplation of dismissal, ACD. They subsequently retained the law firm of MIchael J. Redenburg, Esq. PC to file their civil case seeking compensation for the wrongs perpetrated against them. The Amended Complaint includes claims for unlawful stop and search, false arrest, failure to intervene, unreasonable force under federal law and a claim against the City of New York.  


Wednesday, November 05, 2014

Jonathan W. Settles False Arrest Case Against City of NY

Jonathan W. had been arrested for carrying a knife known as a Spyderco UK Pen Knife which, according to reports, did not have a locking blade. Nevertheless, he was arrested by NYPD officers and charged with possessing an illegal gravity knife.

NY Penal Law Section 265.01 defines criminal possession of a weapon in the fourth degree. In pertinent part, it states that a person is guilty of criminal possession of a weapon in the fourth degree when he or she possesses any gravity knife, switchblade knife, pilum ballistic knife or metal knuckle knife. Criminal possession of a weapon in the fourth degree is a Class A Misdemeanor.

Jonathan had been given a desk appearance ticket after being fingerprinted, photographed and processed at the police precinct. He faced up to a year in jail if found guilty of the crime he was being charged with, although, as a practical matter, a person charged with such a crime in a first arrest situation is not very likely to be facing a jail term. In any event, reports state that his assigned legal aide tried to convince him to plead guilty even though he refused to do so. The criminal charge against him was eventually dismissed and an organization known as Knife Rights referred him to a civil rights lawyer to sue the City of New York for false arrest.

Source: The Daily Caller


Tuesday, November 04, 2014

After Dismissal of Obtstructing Governmental Administration Charge, Shernette Files False Arrest Lawsuit

Brooklyn resident Shernette, a 30 year old woman with no criminal record, was arrested on September 11, 2014, and charged with Obstructing Governmental Administration or OGA, which is a violation of NY PL section 195.05. However, after a twenty eight and one-half (28 1/2) hour detention, the criminal charge levied against her was dismissed in the entirety. She then filed suit.

Allegations Within Federal Lawsuit

The federal filing is 14-cv-6492 and was filed in the Eastern District of New York on November 4, 2014. The Incident took place at or about 11 AM on 9/11/14 and in or near the vicinity of Euclid Avenue and Blake Avenue in Brooklyn, NY. Shernette had been driving and on her way to the dentist. She stopped to see a man who she knew from the neighborhood and then continued on her way. Immediately thereafter, she was surrounded by 8 NYPD cars and ordered to exit her vehicle. The officers then demanded her license and registration which she produced. She was then placed under arrest.

She was transported to the 75th Precinct in Brooklyn, New York where she was fingerprinted, photographed and processed. After an extended-stay of 14 1/2 hours at the precinct, she was then taken to Brooklyn Central Booking. She spent another 14 hours there awaiting arraignment before a criminal court judge. Once at arraignment, the criminal charge lodged against her was dismissed in its entirety.

Michael Redenburg represents Shernette and regularly represents false arrest victims throughout Brooklyn, Manhattan, Bronx and Queens.

 


Sunday, November 02, 2014

Riker's Island False Arrest Claim Gets Green Light to Proceed

The federal lawsuit is DeJesus v. The City of New York, 13-cv-8366 and is venued in the Southern District of NY before the Honorable Paul Oetken. Allegations within the Complaint read that DeJesus was on Riker's Island after being charged with robbery and criminal impersonation. He was held at Riker's while awaiting trial. 

The Complaint also alleges that on November 23, 2010, he had been on the phone and a fight broke out between other inmates being held there. Due to the fight, all inmates were instructed to return to their cells, but when he got back to his cell as ordered, it had already been locked. Thereafter, it's alleged, numerous NYC corrections officers physically beat him which resulted in physical injuries to his legs, arm, abdomen, neck and head. Dejesus was then charged with obstructing governmental administration or OGA, assault in the second degree and assault in the third degree. Following a criminal court trial, he was found not guilty of all the criminal charges that had been levied against him.

Dejesus filed an action alleging that his Fourth and Fourteenth Amendment rights has been violated. The defendants in the false arrest lawsuit moved to dismiss his claims but the judge ultimately ruled that Dejesus had not received any the due process he was entitled to prior to his being sent to punitive segregation, and therefore, hid Fourth Amendment claims can proceed.


Thursday, October 30, 2014

Young Woman Sues City of New York for False Arrest By Highway Cop

False arrest cases often result from routine traffic stops.  Traffic stops can be made for legitimate reasons or for discriminatory and unlawful purposes, such as personal fulfillment.  A New York City woman claims that she was pulled over by the police because the officer found her attractive and that this led to her false arrest.

In 2013, Erica Noonan was pulled over by New York Police Department Highway officer Carlos Becker.  She was arrested for drunk driving and brought to the precinct.  While at the precinct, she claims that Becker used his cell phone to video-record images of her rear.  She also claims that he persistently asked her to go out with him on a date in exchange for getting her charges dismissed.  Noonan is now claiming that she was falsely arrested because Becker’s motives for bringing her in were impure.

Even after the arrest, Noonan claims Becker continued to harass her.  They exchanged hundreds of text messages where Becker further pressured her into going out with him.  When Noonan finally agreed to go out with him she claims she ended up disoriented due to a beverage he gave her and eventually woke up in his bed with a blackened eye.  She claims she was coerced into going out with him and has brought a claim relating to sexual assault among other things.  

Becker was charged with official misconduct for the cell phone incident.  While he was admonished for his behavior, he was cleared.  Noonan has now brought a civil suit against the City of New York and Officer Becker for false arrest, rape, assault, battery, excessive force, malicious prosecution, abuse of authority, negligent training, harassment and libel among other things.  The NYPD has yet to comment on the case.
 
If you believe you have been falsely arrested, you may be entitled to compensation.  New York City lawyer Michael J. Redenburg is experienced in bringing false arrest claims against government officials and agencies.  Call (212)240-9465 for a consultation today.



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