Author Archives: Mostafa Khairy

Sufficiently Related Crimes and Triggering the Indelible Right to Counsel

Under New York law, a defendant who is represented by counsel on a criminal matter may, under certain circumstances, be questioned by law enforcement about a different, unrepresented crime without violating a defendant’s right to counsel. In People v. Henry (Ct. App. 6/12/2018) (Wilson, J.) (7-0), the Court of Appeals, reversing the Appellate Division, held that police did not violate Mr. Henry’s right to counsel when they interrogated him about a murder charge for which he was not represented by counsel. (Full disclosure: counsel for the appellant in this case is an adjunct professor at St. John’s Law in our advocacy program.)

The case stemmed from a robbery at a tattoo parlor and a shooting at a gas station of a 19-year-old man in which the same getaway vehicle, a black Hyundai Sonata with dark tinted windows, was used at the scene of the crimes. Five days later, Mr. Henry, driving a black Hyundai Sonata with dark tinted windows, was pulled over for traffic infractions and arrested for marijuana possession. Mr. Henry was assigned counsel on the marijuana charges. Upon an inventory search of Mr. Henry’s vehicle, police found evidence in his car linking him to the robbery of the tattoo parlor. Three days after his release, Mr. Henry was again pulled over for traffic infractions, but this time was arrested and brought in for interrogation in connection to the robbery and murder. Mr. Henry was read his Miranda rights, which he waived, and subsequently admitted to being the driver of the vehicle involved in the robbery and murder. A grand jury returned an indictment charging Mr. Henry with multiple counts of Robbery 1º, CPW 2º, Criminal Possession of Stolen Property 5º, Murder 2º, and Criminal Possession of Marijuana 5º. Continue reading

Source Code and Unlawful Use of Secret Scientific Material

In 1967, the drafters of the New York Penal Law sought to ensure that a defendant who makes a copy of secret scientific material, but does not take the original, would still be subject to criminal sanctions even though the defendant has not technically committed larceny. In the digital age where nearly everything is electronically stored, this poses new issues for courts to grapple with. In People v. Aleynikov (Ct. App. 5/3/2018) (Fahey, J.) (7-0), the Court of Appeals, affirming the Appellate Division’s order, held that the defendant made a “tangible reproduction or representation” of source code when he uploaded the code to the hard drive of a German server and subsequently to his personal computer.

Defendant Aleynikov was a former Goldman Sachs’ employee who left the firm to work at a new startup company, Teza Technologies. The defendant, tasked with developing Teza’s high-frequency trading infrastructure and software from scratch, decided to download Goldman’s infrastructure codes to use them at Teza. After the breach was found, the defendant was arrested by FBI Agents and after waiving his Miranda rights, admitted to downloading Goldman’s source code to an unblocked German website where the defendant then downloaded the codes to his personal laptop. Continue reading