Martin Act

New York State Securities Fraud & The Martin Act: NY Gen. Bus. Law 352 & 352-C

Whether you work on Manhattan’s Wall Street or in a smaller shop in Brooklyn, White Plains or any other municipality, if the New York State Attorney General, the Manhattan District Attorney’s Office or any other local prosecutor’s office accuses you of a Martin Act violation, be prepared for law enforcement to come after you with their guns blazing. Potentially armed with subpoenas and search warrants, the Martin Act is a powerful weapon in the arsenal of a District Attorney or the Attorney General investigating securities and related financial frauds. Equally concerning to your Martin Act defense attorney or securities fraud lawyer, by the time detectives or other investigators come to arrest or question you, do not be surprised if you have been the target of a long term investigation. Simply, because of the dire consequences connected to a New York Martin Act arrest, indictment or conviction, it is critical to fully grasp the allegations you face and implement a viable defense as early in the process as possible. As serious as violating the Martin Act may be, associated criminal activity can far exceed it.

• New York Grand Larceny: NY PL Article 155
• New York Scheme to Defraud: NY PL 190.65
• New York Criminal Possession of Stolen Property: NY PL Article 165
• New York Falsifying Business Records: NY PL Article 175
• Federal Securities Crimes: 18 USC 1348

The Martin Act: What is it

Codified in New York General Business Law Section 352 and 352-C, the Martin Act arguably has one central goal. That is, Gen. Bus. Law 352 gives prosecutors the ability to investigate and attack financial frauds. Not only can prosecutors pursue criminal actions as either misdemeanors or felonies, but monies can be clawed back from targets and defendants accused of these crimes through the civil arena as well.

• Elements of the Martin Act and Gen. Bus. Law 352-C

The Martin Act: Who are the Targets

You as an individual and your business or corporation serving the mutual fund, banking securities and financial sector can all be the target of a civil or criminal action based upon a New York Martin Act violation.

The Martin Act: “Mens Rea ” and Intent

If you didn’t intentionally steal from someone, then you surely aren’t guilty of a crime. Right? In the vast majority of criminal cases you are certainly correct, but the Martin Act is not an ordinary criminal statute. Gen. Bus. Law 352 crimes do not require that you have the intent to defraud. In fact, Gen. Bus. Law 353 requires that you merely commit a defrauding act. This act can be intentional or otherwise. Merely apologizing, chalking up your acts to a mistake or claiming a misunderstanding existed will just not cut it. Just as New York imposes a strict liability standard not requiring that you had an unlawful or malicious intent when you possessed an unregistered and loaded firearm outside your home to be guilty of a felony gun crime, the Martin Act does not require your intent to defraud.

• The Martin Act & the Intent to Defraud: People v. Barysh

The Martin Act: Scope and Expanse of Power Gen. Bus. Law 352

Generally, when one is subpoenaed in a criminal action by the Attorney General or a District Attorney, it’s not a legal requirement that one appear outside a court or Grand Jury. In most felony and Grand Larceny type frauds (the main subject of most Martin Act crimes), subpoenaed documents or witnesses are returnable to or must appear before a Grand Jury. The Martin Act, however, gives prosecutors the ability to subpoena individuals and seek records outside the Grand Jury. Why is this relevant or important? Instead of the secrecy of a Grand Jury, prosecutors are left with the latitude of what to do with these materials and information. Even worse, those little things we all take for granted – right to counsel and right against self-incrimination – do not exist in Martin Act investigations. Yes…you read that correctly.

The Martin Act: Penalties, Punishment and Consequences

From a criminal perspective, prosecutors can seek and judges can grant a wide range of punishment and sentences. Misdemeanors carry sentences of up to one year in jail while a Class E felony carries a sentence of up to four years in prison. Keep in mind, should you be charged with or convicted of other felonies such as Grand Larceny, the dollar amount of the claimed fraud can increase your criminal exposure by up to as much as eight and one third to twenty four years in a New York State prison.

• New York State Felony Sentencing Guidelines

Only a primer into the expansive powers of the Martin Act, should you face an investigation, arrest, indictment or trial involving a New York General Business Law 352 related crime, identifying and implementing your defense as early as possible is critical if not central to your success or failure. Nothing good can come from hesitation or delay. Will you be barred from the securities industry or the financial sector? Will you face fines and restitution? Will you be incarcerated and jailed?

Educate yourself on Martin Act and other White Collar crimes you face. Set your defense into motion. Contact the New York criminal lawyers and former Manhattan prosecutors at Saland Law and let our experience, knowledge and advocacy work for you.

Call the New York Martin Act Defense attorneys and former prosecutors at (212) 312-7129 or contact us online today.