We provide vigorous and effective representation for clients charged with all types of crimes in Federal, State and Appeals courts. Our experienced team of attorneys is led by Ben Ostrer, a criminal trial attorney with an AV-rating from Martindale-Hubbell. He has won acquittals for defendants in felony and misdemeanor trials - including charges of Homicide, Assault, DWI, Sex Crimes, White Collar offenses - as well as conviction dismissals and judgment reversals on Appeal. The case below is one example.

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Judgement of Conviction for First Degree Manslaughter Reversed

Our client, David Carlson, resided on a small farm in a remote, wooded area in Deerpark, New York, in Orange County. In August 2013, Norris Acosta Sanchez appeared on the farm, falsely identifying himself as “Daniel”. Acosta Sanchez claimed to be the caretaker of a nearby camp and asked Carlson if he could do work for him to help support himself. Carlson agreed to provide Acosta Sanchez with eggs and other food items in exchange for work on the farm.

On October 5, 2013, Acosta Sanchez joined Carlson and his wife for a campfire. After consuming a few drinks, Acosta Sanchez confessed that his name was not “Daniel” but Norris, not providing a last name. He also admitted that he was wanted by police in Rockland County for having sex with an underage girl.

The Carlsons were very alarmed by Acosta Sanchez’s admissions. Fearing for the safety of their three young sons and neighbors, Mrs. Carlson advised the Deerpark police that a fugitive was residing nearby. Since they did not know Norris’ surname, the police instructed Mrs. Carlson to arrange for Mr. Carlson to take Acosta Sanchez on a drive, alerting police of when, so they could perform a stop and take Acosta Sanchez into custody to confirm his identity. Mr. Carlson complied, but the stop did not occur. A second stop attempt was made. This time, Mr. Carlson’s car was stopped by two police vehicles. Acosta Sanchez provided a false surname. When there was no name match found, he claimed he was here on a visa, which was back at the cabin.

A pat down produced a knife, and Acosta Sanchez was placed in the back seat of the patrol car, without handcuffs, for the drive to the cabin for the visa. When the officer went to open the car door at the arrival at the cabin, Acosta Sanchez kicked the door, jumped out and escaped into rough terrain.

The police advised Carlson of the escape. He then assisted the police in securing an insurance card that showed Acosta Sanchez’s full name. The police confirmed he was the subject of an arrest warrant and informed Carlson that he was wanted for Rape in the 2nd degree involving a sexual encounter with a 14-year-old girl.

Later that evening, Acosta Sanchez came to Carlson’s home to boast of his escape. Carlson reported this to the police and advised them that his wife and children were leaving their home for their personal safety. Carlson continued to help the police with the capture efforts through an affidavit in support of a no-knock warrant application, description of the area’s terrain, and participation in a meeting with various police units and organizations at which plans were made for Acosta Sanchez’s capture. During this meeting, attendees were informed that Acosta Sanchez had stated in response to a request that he surrender that he would not go to jail for one day.

A SWAT team was employed to execute the high risk search warrants. A perimeter around the cabin was established and Acosta Sanchez was spotted. He then ran into the terrain and law enforcement lost sight of him. The pursuit was terminated at 8PM for the officers’ safety. Two deputies remained in the area until around 4AM, when police presence ended.

Carlson spent the night in fear that Acosta Sanchez might return. Early the next morning, Acosta Sanchez appeared at Carlson’s home in an agitated state. He accused Carlson of helping the police. Carlson grabbed a shotgun and confronted Acosta Sanchez, telling him he was bringing him in. He walked Acosta Sanchez at gunpoint to a neighbor’s house yelling to alert them. At the neighbor’s house, Carlson directed Acosta Sanchez to lie on his belly with his hands behind his head as he shouted to call the police. Carlson turned toward the house and Acosta Sanchez moved to a squatting position, then to one knee with his hand on his thigh, then he rose and lunged toward Carlson, who reacted and shot him in the arm. Acosta Sanchez lunged at Carlson again. Carlson reacted and discharged the shotgun striking him fatally in the ear.

Carlson was indicted and charged with murder in the second degree, manslaughter in the first degree, and manslaughter in the second degree.

The trial spanned seven weeks including 8 days of jury deliberations. Carlson was found not guilty of murder in the second degree but convicted of manslaughter in the first degree in what we believed was a compromise by a deeply split jury.

We Successfully Argued the District Attorney Tainted the Jury

From the moment of jury selection, we argued that the district attorney was tainting the jury by informing all potential jurors that Acosta Sanchez had been charged with “statutory rape” and asking if that would prejudice anyone. We objected to this line of questioning. Outside the presence of the potential jurors, the court heard argument concerning the propriety of this tactic. Acosta Sanchez had been indicted for Rape in the 2nd Degree , a violent felony, and related charges. By describing the offense as “statutory rape” the district attorney was trying to minimize Acosta Sanchez’s actions and misrepresented his criminal conduct to the jury. The court directed the district attorney to refrain from further use of the term during the rest of jury selection. The Judge denied a mistrial application without any curative instructions to the jurors.

After exercising challenges, six jurors were sworn and excused until the completion of the jury selection process. Jury selection continued until the end of day recess. The next day, the court, on its own, provided an instruction about the nature of the rape charges. The six excused jurors were not present for that instruction. The court spoke directly to several jurors who had expressed an issue with respect to the criminal charges against Acosta Sanchez. We objected to this instruction and the singling out of jurors. We also raised objection to the 6 excused jurors not being present for the instruction. A renewed request for a mistrial was denied.

After the verdict and sentencing, we filed an appeal arguing, among other things, that Carlson was prejudiced by the disparate instructions given during jury selection. The Supreme Court, Appellate Division, Second Department, New York agreed with our assertion. It found that the court’s failure to issue curative instruction to the entire jury pool regarding the use of the term “statutory rape”, including those who were already sworn and seated, was error and deprived Carlson of his right to a fair trial. The court reversed the conviction and remitted the case to the County Court, Orange County. We are currently awaiting the re-trial.

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Read more Ostrer & Associates Criminal Verdicts.

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