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 Reversed and Indictment Dismissed for an Orange County Client Charged with Promoting and Possessing Child Pornography

During the spring and summer of 2014, the New York State Police conducted an internet child pornography investigation using software that identifies IP addresses which are believed to produce an increased likelihood of child pornographic content. One investigator downloaded a partial video from an IP address that was traced to the Defendant’s home. The police obtained a warrant and conducted a search of the home, interrogating the Defendant, his wife and son. Then the Defendant was brought to the police barracks for more questioning. The interrogation was conducted in English, although the defendant primarily spoke Spanish.

Defendant Was Erroneously Convicted of 31 Counts of Promoting and Possessing Child Pornography

(The Trial Attorney and Defendant Contacted our Firm to Handle the Appeal After the Conviction)

The Defendant was arrested and charged with 16 counts of promoting sexual performance by a child and 15 counts of possessing a sexual performance by a child. The charges were based on the downloading and/or sharing of 15 video files and 2 still images on multiple dates. The district attorney’s office offered a plea deal, which the defendant rejected, maintaining his innocence. He also waived a jury trial, preserving his right to challenge the voluntariness of certain statements he allegedly made to law enforcement officials.

At trial, the district attorney introduced a written statement, in English, that the defendant allegedly made to the police, where he acknowledged downloading approximately 5 videos containing child pornography. The statement did not specify the names or descriptions of the videos or the dates he supposedly downloaded them. While the statement included the name of the program to download the videos, as well as a term allegedly used in titles of child pornography files, the police investigator acknowledged that he supplied those terms. The district attorney’s sole evidence was that the defendant downloaded or shared the videos and images.

The Defense Attorney at trial introduced evidence to show that the Defendant’s statements to police during his interrogation were not voluntary. The Defendant testified that although he understands quite a bit of English, he made many mistakes during the interrogation. During the trial, he also testified that he was not the sole user of the family computer, did not download the pornography, and only learned of its existence when he was being interviewed by the police. The Defendant claimed that he made the statement to the police because that is what he thought they wanted to hear, and he was attempting to cooperate with them to protect a family member. He said that the detectives first told him that he had to explain the existence of at least one video, but later changed the written statement to say he had downloaded five videos – without his permission.

The defense presented evidence at trial including work time sheets which confirmed the Defendant was at work when at least two of the alleged videos were downloaded. Additionally, a family member acknowledged having unintentionally downloaded videos containing child pornography during the period of the investigation and admitted to being the only member of the household who used the computer program that was used to download the pornography.

The trial court ruled that the statements were voluntarily based on the waiver by trial counsel of a Huntley hearing to determine their voluntariness. The Judge found the Defendant guilty on all 31 counts.

Ostrer & Associates, P.C. Was Retained to File the Appeal of Conviction

We Successfully Argued on Appeal to Have the Judgment Reversed and Indictment Dismissed on All Counts

On appeal, we argued that the trial court improperly denied the Defendant the right to contest the voluntariness of his statements. We provided case law which confirmed that the waiver of a pre-trial hearing does not prevent a defendant from contesting the issue of voluntariness at trial. Our appeal also asserted, among other things, that the conviction was beyond the weight of the evidence.

The Supreme Court, Appellate Division, Second Department, New York, found that the trial court erroneously precluded the Defendant from contesting the voluntariness of his written statement, contrary to his statutory and constitutional rights. The appellate court also found that the verdict of guilt was against the weight of the evidence presented at trial. The judgment was reversed and the indictment was dismissed. The Defendant was released from prison and not subject to a re-trial. He had served over two years of his sentence at Clinton Correctional Facility.

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Our lawyers explore every avenue of defense by thoroughly reviewing police reports, interviewing witnesses, and gathering key facts and evidence. We conduct a comprehensive analysis to ensure that your constitutional rights were not violated.

If you have been charged with a crime, contact the experienced Hudson Valley criminal defense attorneys of Ostrer & Associates, P.C.

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