Richmond County District Attorney's Office - Press Release for March 2, 2005

PRESS RELEASE

For Immediate Release:

March 18, 2005

Contact: William J. Smith (718) 556-7150
District Attorney’s Office

Testimony of Staten Island District Attorney Daniel M. Donovan Jr. before the New York State Senate Majority Task Force on Immigration

Senator Padavan, distinguished members of the panel, thank you for the opportunity to testify at this public forum concerning the impact of the counterfeit goods trade in New York City. I would like to share with you the observations of New York City’s newest District Attorney in prosecuting these crimes.

Because of the relatively low volume of crime on Staten Island, low relative to the rest of the city, I have the opportunity every morning to review the on-line arrest forms for every arrest made on Staten Island the previous day.

From this first hand experience I can tell you that a week does not go by when I don’t see one or two counterfeit goods cases on Staten Island. In fact in 2004 there were 96 (all misdemeanors) dispositions of counterfeit goods case in my borough.

Typically the defendants are Asian immigrants who give residential addresses in Queens, most often Flushing. Some arrive by the ferry, but many are transported to Staten Island in vans and dropped off and picked up in various locations around Staten Island. The counterfeited goods, most typically, are music CD’s selling for $5.00 and DVD’s of films currently in the area’s theatres that sell for $10.00. The DVD’s are usually of very low quality.

I am informed by my staff that these films have been made by individuals who use hand held cameras focused on the screens of area movie-houses. I am further advised that individuals have, on occasion, filmed these movies at the Travis Theatre on Staten Island and at a multiplex movie house on Route 9 nearby in New Jersey.

As a matter of prosecutorial policy a first arrest will typically result in a violation and a fine. A second arrest typically results in a misdemeanor. A third arrest can result in felony prosecutions if sustainable by the evidence. I say “if sustainable” because the necessary thresholds for a felony prosecution can be hard to meet.

First, those who organize and perpetrate these crimes are careful not to send a vendor out onto the street with more than 100 counterfeited items, 100 counterfeited DVD’s at $10.00 a piece would meet the felony threshold of $1,000.00 dollars set in §165.72 and §165.73 of the Penal Law. Moreover the language of the current statute sets the monetary threshold for a felony at the point where “the retail value of all such goods bearing counterfeit trademarks exceeds one thousand dollars” (§165.72) for a class E Felony and “one hundred thousand dollars” (§165.73) for a class C felony.
It would certainly help in the prosecution of these cases as felonies if the term “retail value” was clarified in new legislation.

For example, a defendant apprehended with 90 DVD’s of a film currently showing in area theatres, that he is selling for $10.00 a piece, is often deemed by judges to be selling goods where “the retail value of all such goods” is only $900.00, and thus fails to meet the $1,000.00 threshold for prosecution of a felony.

But what is the “retail value” of a film currently showing in the theatres?

These films are not being sold in stores. A copy of these films which can be shown over and over is clearly with more than $10.00. And yet because our judges must strictly construe criminal statutes, the failure of the statute to adequately address “retail value” is resolved in favor of the defendant.

If more of these cases were prosecuted as felonies, we would see less of this particular criminal activity. But we will only see more successful felony prosecutions if the definition of “retail value” is clarified in remedial legislation.

[Presumption: For example: If a first run movie was not yet available for retail sale the value of the film could be presumed to be over $1,000.]

Another reason for the persistence of this crime is that for cultural reasons it is difficult to enter into cooperation agreements with these defendants and find the source of the illegal products.

As I said before, our typical defendant is an Asian immigrant. Most speak little or no English and until recently our office was ill-equipped to negotiate with such defendants. I have recently hired a detective investigator fluent in Cantonese and Mandarin Chinese. Still, because of cultural and community imperatives it will be difficult to “flip” these defendants, virtually all of whom live in tight immigrant communities and would fear for their lives if they were to testify for the prosecution.

From my perspective it is difficult to gauge the economic impact on the City of this trade in counterfeit goods but it is very great and Senator Padavan has addressed this issue in detail in his Task Force Report entitled “The Golden Door.” Legitimate business and industries clearly feel great adverse economic effects of this trade and the all-cash sales surely generate large sums of capital that fund various criminal activities.

Many of those activities would pose a far greater threat to our communities than these sales of counterfeited goods, and yet those activities are fueled by these sales of goods.

I hope you have found my observations and suggestions for changes in current law
helpful. I have limited my remarks to counterfeited CD’s and DVD’s because this is currently the most visible manifestations of this illegal trade in my community. However, I am well aware that counterfeited drugs and replacement parts are prevalent in all our communities.

Again, I thank Senator Padavan and the panel for turning their attention to the trade in counterfeit goods and the even more serious criminal activities which I feel are fueled by this trade.

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