The Trainor Law Firm, PC

Securing the Best Sentence for Criminal Defendants Over the Prosecutor’s Objection

I recently secured a sentence of probation for my client on a multi-count identity theft and grand larceny indictment arising out of a multi-incident credit card scheme, resulting in losses of over $100,000.00 to major luxury brands, in which the Manhattan District Attorney’s Office had voluminous evidence, including vivid surveillance video, against my client. My client wanted to plead guilty, but the District Attorney’s Office refused to recommend anything less than 1 to 3 years in state prison. This was unacceptable.

In making our case for probation to the court, I submitted a pre-pleading investigation memorandum (“PPI”). While PPIs focus largely on the background of the client, they are often lacking in the foundational aspects of sentencing: the four purposes of criminal punishment. In state court, arguing these points is a lost art. As a former law clerk to a federal judge, I bring my unique experience to my state court (as well as federal) criminal practice to achieve desirable results. If an attorney requests a specific sentence, he needs to convince the court that the proposed sentence is consonant with the four purposes of criminal punishment. By way of example, I provide excerpts from our PPI below, with the client’s identity and other identifying information omitted:

“[Client] proffers no excuse for his conduct, which is why he is ready to accept full responsibility for it. The historic purposes of criminal punishment are (1) deterrence; (2) incapacitation; (3) just punishment; and (4) rehabilitation. Rita v. United States, 551 U.S. 338, 348-49 (2007) (citing U.S.S.G. § 1A1.1, intro. to comment., pt. A, § 2 (The Statutory Mission)). “Ascertaining priorities among these potentially conflicting notions has long been a point of contention amongst legislators, scholars, jurists, and practitioners,” see United States v. Blarek II, 7 F.Supp.2d 192, 200 (E.D.N.Y. 1998); but, in this case, a non-incarceratory sentence of probation satisfies all of these concerns.  ***

“In light of these principles, a sentence of imprisonment cannot be justified and, indeed, would do violence to the just punishment imperative. This is a fraud case. There are no allegations of violence. There are no allegations that anyone was hurt or threatened in any way during the course of the incidents alleged in the Indictment. The nature of the offense, coupled with [Client] having no history of violence in his background or criminal record, demonstrates that incarceration is not only unnecessary but would be unduly harsh and disproportionate in this case. Cf. Graham v. Florida, 560 U.S. 48, 59 (2010) (“Embodied in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’”) (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). Further, because [Client] would benefit from rehabilitation, a sentence of imprisonment raises the risk of recidivism, as it would for anyone similarly situated. The moral perversity of such a consequence counsels against incarceration. Finally, [Client] is already a fully integrated member of the community, whose continued appearances in court, lack of criminal record – or new arrest since the case’s inception – and full-time job as a [omitted] – a job he will lose if he is sent to prison – demonstrates that probation is the wisest and most just resolution for all involved.

“This does not mean, of course, that [Client] escapes consequence. Not only will he have to endure the rigors of probation, but he will be branded a felon, with all of the social stigma and civil disabilities that attend such dishonor. See, e.g., Morissette v. United States, 342 U.S. 246, 260 (1952) (Jackson, J.) (“Stealing, larceny, and its variants and equivalents, were among the earliest offense known to the law that existed before legislation . . . the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which [is] as bad a word as you can give to man or thing.”); Shelton v. Dep’t of Corr., 802 F.Supp.2d 1289, 1302 (M.D. Fla. 2011) (“Convicted felons cannot vote, sit on a jury, serve in public office, possess a firearm, obtain certain professional licenses, or obtain federal student loan assistance. . . . This social stigma precludes, for example, the ability of a convicted felon to reside in any neighborhood of his choosing or to obtain certain employment.”).

“For these reasons, a sentence of imprisonment is not appropriate, and we respectfully request that the Court sentence [Client] to a four-year term of probation.”

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