Posts tagged with "denied"

In Case Where Employee Abused Her Position to Embezzle Substantial Funds, Modification of Sentence Was Denied

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In a criminal law matter, the Sentence Review Division (Division) of the Superior Court of Connecticut affirmed the sentence of a petitioner who abused her position and embezzled funds from her employer.

Case Background

In this case, the petitioner had a criminal history involving embezzlement, larceny, forgery, and substance abuse. Despite knowledge of this past, the director of a non-profit organization hired the petitioner as its bookkeeper and office manager to give her a chance at an honest living. In this position, the petitioner had “unfettered access” to financial accounts belonging to the organization and director.

Subsequently, various employees at the organization complained they were not being timely paid, and the director discovered not just an IRS tax lien on the organization’s assets, but a $20,000 unauthorized withdrawal from her personal account. Police investigated these financial irregularities and questioned the petitioner, and found that she had stolen at least $134,000.

Trial and Outcome

At trial for larceny in the first degree, the defendant entered into a guilty plea. She asked that her sentence be fully suspended and she be allowed to participate in an alternative to incarceration plan, but the court instead imposed twelve years of incarceration. The petitioner sought downward modification, arguing that her sentence was inappropriate and disproportionate compared to those who committed similar crimes. She asserted that she “cooperated with the police investigation, [was] contrite, willing to make restitution and was employed at the time of sentencing.”

The State opposed modification due to the defendant’s history of committing similar crimes. It noted how the defendant embezzled funds from a former employer, for which she received a five-year suspended sentence, and then violated her probation. The organization’s director also objected, stating that the sentence was proper because the petitioner “abused her position of trust, is unrepentant, and has caused a great deal of suffering.”

The Division declined to reduce the sentence, finding that under applicable statutes, it was neither inappropriate nor disproportionate. Indeed, the twelve-year sentence was within the parameters of the guilty plea, and the Division agreed with the trial court that “[i]t would stand justice on its head if I were to give you another suspended sentence after you already had one.”

Written by Lindsay E. Raber, Esq.

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When faced with a charge of larceny, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

In Case Where Employee Abused Her Position to Embezzle Substantial Funds, Sentence Modification Was Denied

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Superior Court of Connecticut: Sentence Review Division

In a criminal law matter involving sentence modification, the Sentence Review Division (Division) of the Superior Court of Connecticut affirmed the sentence of a petitioner who stole money from her employer.

Case Details

In this case, the petitioner had a criminal history involving embezzlement, larceny, forgery, and substance abuse. Despite knowledge of this past, the director of a non-profit organization hired the petitioner as its bookkeeper and office manager to give her a chance at an honest living. In this position, the petitioner had “unfettered access” to financial accounts belonging to the organization and director. Subsequently, various employees at the organization complained they were not being timely paid, and the director discovered not just an IRS tax lien on the organization’s assets, but a $20,000 unauthorized withdrawal from her personal account. Police investigated these financial irregularities and questioned the petitioner, and found that she had stolen at least $134,000.

The Trial

At trial for larceny in the first degree, the defendant entered into a guilty plea. She asked that her sentence be fully suspended and she be allowed to participate in an alternative to incarceration plan, but the court instead imposed twelve years of incarceration. The petitioner sought downward modification, arguing that her sentence was inappropriate and disproportionate compared to those who committed similar crimes. She asserted that she “cooperated with the police investigation, [was] contrite, willing to make restitution and was employed at the time of sentencing.”

The State opposed modification due to the defendant’s history of committing similar crimes. It noted how the defendant embezzled funds from a former employer, for which she received a five-year suspended sentence, and then violated her probation. The organization’s director also objected, stating that the sentence was proper because the petitioner “abused her position of trust, is unrepentant, and has caused a great deal of suffering.”

The Division declined to reduce the sentence, finding that under applicable statutes, it was neither inappropriate nor disproportionate. Indeed, the twelve-year sentence was within the parameters of the guilty plea, and the Division agreed with the trial court that “[i]t would stand justice on its head if I were to give you another suspended sentence after you already had one.”

Written by Lindsay E. Raber, Esq.

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When faced with a charge of larceny, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

In Light of Reasonable Suspicion, Police Properly Detained Burglary Suspect

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In a criminal law matter, the Appellate Court of Connecticut affirmed the convictions of a burglar who argued that police officers had no reasonable or articulable suspicion to detain him.

Case Details

This case arose from an incident that occurred on March 21, 2007. Earlier that year, a neighborhood was suffering from a series of residential burglaries. On February 14, a victim was leaving her home when she saw a man wearing a dark sweatshirt with dark pants, with the hood pulled up, looking down while walking in front of her house. She later returned to find her house burglarized and many possessions, including a handgun, were stolen. She recalled seeing a similar person two days earlier, and conveyed this as well as the physical description to police; a similar description was developed from victims of other burglaries.

On March 21, the victim saw the defendant, who matched the appearance of the person near her house the day it was burglarized. Her husband called police, who were dispatched to the defendant’s location, and officers were aware that a gun was stolen during the burglary. The defendant was detained, and a pat down revealed a handgun in his sweatshirt pocket. The defendant informed police that “he was not properly licensed nor legally permitted to carry the gun.”

The defendant was arrested and charged for numerous crimes on several dockets. He filed a motion to suppress all evidence because it was obtained during an unlawful search and seizure. The court denied this motion, finding that police had a reasonable and articulable suspicion that justified the search.

Motion to Suppress Evidence

The defendant entered into a conditional plea to larceny in the first degree, burglary in the third degree, and stealing a firearm. Following sentencing he appealed, arguing that the court improperly denied his motion because police had no reasonable or articulable suspicion to stop him. He noted that “the record contains no indication that he was observed directly engaging in criminal conduct or suspicious activity.”

An officer may temporarily detain an individual for investigative purposes if he has a reasonable and articulable suspicion that criminal activity is afoot. The scope of an investigatory stop must be “carefully tailored to its underlying justification,” and an officer may make “reasonable inquiries” to confirm or dispel his suspicions. The ultimate question is “whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.”

The Court’s Decision

In this case, the Appellate Court noted that the defendant’s presence in this neighborhood, the time of day, how he was dressed, and the manner in which he walked would not, on their own, be sufficient to justify a stop. However, in light of the additional information provided by victims, such factors provide sufficient reasonable and articulable suspicion to justify an investigatory stop. “The possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct.” Therefore, the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of larceny or burglary, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport, CT office at 203-221-3100 or at JMaya@Mayalaw.com.

An Illustration: Eligibility for the Pretrial Alcohol Education Program

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Connecticut Pretrial Alcohol Education Program

Connecticut provides individuals charged with operating a motor vehicle while under the influence (OMVUI), and a very limited number of other crimes, the opportunity to take part in a pretrial alcohol education program. The requirements of this program are set forth in Connecticut General Statutes (CGS) § 54-56g. Criminal defendants seek participation in hopes that should they successfully complete the program, they can have their charges dismissed.

However, entry is not guaranteed: in the case where a defendant is charged with OMVUI, eligibility requires that “such person has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as” either the behavioral or per se violations of our OMVUI statute, CGS § 14-227a.

What qualifies as an OMVUI?

To illustrate, in a recent criminal law matter, a defendant was charged in Connecticut with OMVUI and sought participation in the pretrial alcohol education program. The essential elements of OMVUI under CGS § 14-227a(a)(1) are “(1) operation of a (2) motor vehicle (3) while under the influence of alcohol or drugs.” However, the defendant was previously convicted of violating New York Vehicle & Traffic Law § 1192.03, which prohibits “(1) operation of a (2) motor vehicle (3) while in an intoxicated condition.”

As one can readily see, the required elements of these two crimes are substantially the same. Therefore, the defendant was denied eligibility because he was previously convicted of a New York offense that was substantially similar to the crime of OMVUI in Connecticut.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Federal Court Does Not Vacate FINRA Arbitration Award Denying ERISA Claims

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Stephen P. Finkelstein v. UBS Global Asset Management (US) Inc. and UBS Securities LLC,2011 WL 3586437 (S.D.N.Y. Aug 9, 2011)

In a case before the Southern District of  New York, Stephen P. Finkelstein (“Finkelstein”) filed a petition to vacate part of a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award dated October 20, 2010, pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10. UBS Global Asset Management (US), Inc., and UBS Securities LLC, (collectively “UBS”) filed a cross-motion to confirm the arbitration award pursuant to the FAA, 9 U.S.C. § 9.  The court denied Finkelstein’s motion to vacate and granted UBS’s motion to confirm the arbitration award in their favor.

Case Background

The underlying dispute is based on UBS’s denial of Finkelstein’s claim for a special payment under the UBS severance pay plan, which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132.  Finkelstein began his employment with UBS in 2002.  In April 2006, he was internally transferred to a hedge fund as a portfolio manager responsible for a variety of subprime securities.  Within a year of his transfer, the hedge fund suspended his trading authority due to losses of over $300 million in his positions.  A few months later, UBS closed the hedge fund based on its overall losses; hedge fund employees were either offered new jobs or terminated.  Finkelstein was terminated without cause in August 2007.

The UBS separation program contained a provision offering a special payment to employees who were terminated on or after October 1, but before the date on which bonuses are usually paid.  As part of the closure of the hedge fund, UBS adopted a supplemental program that amended the special payment provision to provide eligible employees with a special payment at the discretion of the hedge fund’s management, even though these employees were not terminated on or after October 1.

The written eligibility requirements of the supplemental program specified dates of employment and involuntary termination; the hedge fund’s management exercised its discretion to define the formula for calculating the amount of the special payment and to exclude employees who were responsible for substantial losses at the time of the hedge fund’s closure.  Therefore, despite having satisfied the written eligibility requirements of supplemental program, Finkelstein was offered a separation package that did not include a special payment.

Finkelstein’s Claims

Pursuant to the separation program’s grievance procedures, Finkelstein submitted a claim for benefits demanding a special payment that was equivalent to 25-percent of his 2006 bonus, which was in accordance with the formula determined by the hedge fund management.  Although he acknowledged the losses on his 2007 trading book, Finkelstein attempted to explain that greater than half the losing positions were purchased by his partner without his consent and that the remainder of the losses could be recovered over time.

The severance committee denied Finkelstein’s claim, stating that the hedge fund’s management had appropriately exercised its discretion in denying him a special payment.  Finkelstein requested a review of the severance committee’s denial of his claim, and was again denied his demand for a special payment.

In December 2008, Finkelstein filed a Statement of Claim with FINRA seeking an award of the special payment.  FINRA appointed a panel of three arbitrators to hear the matter and, in October 2010, entered an award in favor of UBS without any explanation or rationale.

Finkelstein filed a petition in federal district court to vacate the arbitration award on the following three grounds: (a) the arbitration panel decision was in “manifest disregard” of ERISA, 29 U.S.C. § 1145; (b) the arbitration award was procured through the fraudulent concealment of material information by UBS; and (c) the arbitrators refused to hear evidence pertinent and material to the controversy.

Basis of Manifest Disregard

Vacating an arbitration award on the basis of manifest disregard of the law requires the challenging party to demonstrate that the arbitrators clearly defied the law either by rejecting precedent or pronouncing a decision that strains credulity. See Stolt–Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 92–93 (2d Cir.2008),reversed on other grounds, 130 S.Ct. 1758 (2010).

However, even if the arbitrators do not explain the reasons for their decision, the court will uphold the arbitration award “if a justifiable ground for the decision can be inferred from the record.” Id.at 97. In his petition, Finkelstein contended that the FINRA arbitration panel manifestly disregarded ERISA, 29 U.S.C. § 1145, on four different grounds.  The most significant basis for his contention was that the arbitration panel should have rejected UBS’s unwritten, oral modification of the ERISA severance pay plan to exclude employees responsible for substantial losses from special payment eligibility.  Both the ERISA statute, 29 U.S.C § 1102(a)(1), and case law within the Second Circuit require that all amendments to employee benefit plans be in writing.

Court’s Ruling on Manifest Disregard

However, the written documents of the hedge fund supplemental program expressly conferred the hedge fund management with certain discretionary powers; therefore, the court determined that it was not erroneous for the arbitration panel to conclude that the unwritten rule excluding employees who incurred substantially losses was a permissible exercise of this discretionary authority, rather than an oral modification of the supplemental program.  Because the ERISA provision on oral modifications cited by Finkelstein was inapplicable, the arbitration panel had colorable justification to conclude that it was not violated.

Consequently, the court determined that Finkelstein failed to demonstrate manifest disregard of ERISA on these grounds. The court also found that each of the remaining challenged panel determinations was supported by a colorable justification.  Therefore, the court concluded that the arbitration award could not be vacated for manifest disregard of the ERISA statute.

Court’s Ruling on Fraud

Vacating an arbitration award on the basis of fraud under the FAA, 9 U.S.C. § 10(a)(1), requires the challenging party to produce clear and convincing evidence that there was fraud that could not have been discovered during the arbitration process and that such fraud is materially related to the award.Chimera Capital, L.P. v. Nisselson (In re MarketXT Holdings, Corp.),428 B.R. 579, 590 (S.D.N.Y. 2010) (citingA.G. Edwards & Sons, Inc. v. McCollough.967 F.2d 1401, 1404 (9th Cir. 1992) (per curiam).   Finkelstein alleged that UBS concealed material information relevant to the dispute.

However, the court determined that UBS could not have fraudulently concealed information that they had no obligation to disclose, and also determined that UBS did voluntarily disclose the challenged information in an accurate manner.  Therefore, the court concluded that the arbitration award could not be vacated on the basis of fraud under the FAA.

Court Ruling on Refusing to Hear Evidence

Vacating an arbitration award on the basis of refusing to hear evidence pertinent to the dispute, 9 U.S.C. § 10(a)(3), has been interpreted by courts to mean that an arbitration award will not be opened to evidentiary review except “where fundamental fairness is violated.” Tempo Shain Corp. v. Bertek, Inc.,120 F.3d 16, 20 (2d Cir.1997) (quotingBell Aerospace Co. Div. of Textron v. Local 516,500 F.2d 921, 923 (1974)).

The arbitration panel denied Finkelstein’s request for production of evidence concerning the value of any parallel investments held by the UBS Investment Bank.  He contended this evidence was highly relevant because it would have negated UBS’s assertion that his trading activities sustained substantial losses.  It was within the arbitration panel’s broad discretion to determine that the requested materials would have been irrelevant and/or unduly burdensome for UBS to produce.

The court determined that the arbitration panel’s refusal to compel UBS to produce this evidence did not deny Finkelstein a “fundamentally fair” hearing because the scope of inquiry afforded him was sufficient to provide him with a reasonable opportunity to be heard and to enable the arbitration panel to make an informed decision.  Therefore, the court concluded that the arbitration award could not be vacated on the basis of refusing to hear evidence.

The court denied Finkelstein’s petition to vacate the FINRA arbitration award, and entered judgment to confirm the arbitration award in UBS’s favor.

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Should you have any questions relating to FINRA, arbitration or employment issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.