Lawyer: McGregor ‘likely’ To Plea To Misdemeanor
Former UFC lightweight and featherweight champion Conor McGregor is awaiting his next court hearing on June 14, stemming from his actions at the Barclays Center in Brooklyn, N.Y. on April 6, which led to a night inside the 78th Precinct and criminal charges.
There are plenty of of possible outcomes that can occur over the course of the next few months as McGregor’s case plays out, so FIGHT SPORTS caught up with Brooklyn lawyer Dmitriy Shakhnevich to discuss what may happen next.
Shakhnevich, who specializes in criminal defense, runs his own firm, The Law Firm of Dmitriy Shakhnevich in downtown Manhattan, N.Y. He is also very familiar with MMA, and hosts a podcast called The Fight Lawyer. In a detailed conversation, Shakhnevich explained some of the nuances of the Brooklyn criminal court system, the likely scenarios that will take place in the near future, and what charges McGregor will ultimately face when all is said and done.
The full conversation can be viewed below:
First, please tell me your law background and familiarity with the Kings County Criminal Court in Brooklyn, N.Y.?
“I began working in law firms when I was 16 years old. At 18, in college, I got a job at the Brooklyn DA’s office, which is prosecuting Conor McGregor. Then in law school I got a job there again. Then after I graduated and was admitted to the bar I worked with several criminal defense attorneys in Brooklyn and elsewhere. I did a lot of work here in Brooklyn. Several years ago I opened up my own law firm. My cases are primarily in Brooklyn, particularly assault cases in Brooklyn, in Kings County Criminal Court and in the Kings County Supreme Court, which is where Conor’s case will go.”
We know based on Conor McGregor’s arraignment on April 6th that he was charged with one count of felony criminal mischief and three counts of misdemeanor assault. It now stands as two counts of criminal mischief and 10 counts of misdemeanor assault. Can any more charges could come to light by the time of McGregor’s next hearing, which is scheduled for June 14?
“More charges could, but it’s a fairly exhaustive list now. He’s charged with 10 misdemeanors and two felonies. The two felonies are the serious charges. It’s criminal mischief in the third, which is the E Felony, and then there is criminal mischief in the second, which is the D Felony.
Can you please explain the difference between a D Felony and an E Felony?
“The difference in theory in terms of penalties, the E Felony will get you up to four years in prison. The D Felony would get you up to seven years in prison. And the way sentencing works in New York is, typically judges sentence concurrently. So if he were to go to trial–which is highly unlikely–and lose, then in my view what would happen is the judge would sentence him to seven years because all those other counts: the one-year misdemeanor counts, the four-year felony and the seven-year felony would basically be merged into a seven-year sentence.”
What do you think the possible defense strategy of McGregor’s lawyer Bruce Mafeo will be?
“Well, he has to get the evidence. He doesn’t have it yet. Typically, the way these cases work is because it’s a felony, he has to be indicted. Felonies are serious crimes, particularly serious crimes and therefore when somebody in New York is charged with such a serious crime they cannot just go to trial. The prosecution cannot just take them to trial. They have to go through this middle stage, which is the grand jury.And they have to present their case to the grand jury, which is a group of people that will determines if there is enough evidence to go to trial. So, that’s what will happen soon.
“Conor has the ability to testify before that grand jury. Every defendant has the right to do that. Almost no defendants exercise that right because you have to waive the fifth amendment and you expose yourself to potential further criminal consequences. And you are bound to a story, which now defendant wants to do because you never know what the trial defense is going to be, especially this early on. Beyond that, like I said earlier, the evidence has to be turned over. So, the prosecution will turn over all of the evidence in this case. Sometimes it’s harder than other times. Sometimes they do it piecemeal. It’s not a smooth process. It is, after all, an adversarial system, so it’s not going to be two sides working together to get a result here.
“The evidence will have to be turned over. There is tons of video evidence with this case it seems. It seems that everybody and their mother took a video of this. So it sounds like there is a lot of video here and video evidence is particularly damaging evidence to a defendant. Assuming that the video shows what the general public tends to think it shows, then it could be a problematic case. I don’t think this is a case they will try, but again it will depend on the gathering of the evidence, the analysis of the evidence, witness statements, and if there is any forensic evidence and things of that nature.”
Based on all of the video evidence, do you think there is any room for Conor’s lawyer to creative a narrative for his defense to say Conor lost control or he didn’t go there with an intent to throw the hand truck at the bus. Is there any wiggle room for the defense to create any type of angle?
“Judging from what I see, it’s tough to surmise that there is going to be a factual defense. And what I mean by that is a defense where Conor can say either, ‘I didn’t do it,’ or ‘I did do it, but I was justified in doing so because of x, y and z.’ He can’t argue he wasn’t there, it seems. He can’t argue that he was acting in self defense of himself or a third party. He can’t argue some form of insanity, though who knows? It doesn’t seem like there is a factual defense. And I don’t know, a lot of this may depend on a lot of this will depend on a lot of different factors.
“Sometimes, although rarely, intoxication can be deemed a defense. Maybe that is a route they’re going to go. But I don’t know if that is a likely scenario. I think the likely scenario is Conor pleads guilty to some reduced charge, avoids jail time entirely, does something akin to community service or public outreach or something of that nature. He may pay a restitution and that will be that. I don’t think that this is a case where real trial defenses are going to be explored too heavily. It just doesn’t seem likely, but who knows?”
Just to cross the T’s and dot the I’s, he would need to be indicted on a charge in order to go to trial?
“On a felony charge, correct. So the misdemeanors on which he could serve up to a year, that can proceed without a grand jury.
So, you are under the impression that he will plea down from the felony charges to misdemeanor and ends up with either probation or community service in the area because he is a famous athlete?
“He will still likely get indicted, and then they can always plea him out to something lesser. He still will likely get indicted. The DA won’t forego their chance at a felony. They won’t just leave him be. They will indict him and then play with it later.”
Just for our readers, because some people assume it’s a fairly easy process, can you explain the severity of a felony charge and the process to have it reduced to a lesser charge?
“It depends. In New York there are five levels of felonies. An A Felony is incredibly serious. Those are your murders, kidnappings, rapes and arsons. Then there are B Felonies, and I’m being general because they can fluctuate. The B Felonies, which are also serious crimes, like possibly robberies and weapon offenses and things of that nature. And so on and so forth as it goes down. Conor is charged with D and E, which are the two lowest level felonies. Typically in those cases, assuming that the defendant has no criminal history and is willing to work with the court system in terms of counseling or classes or things of that nature.
“Typically those cases can be reduced for a variety of reasons. Brooklyn is generally a very good place to be charged with a crime. Prosecutors generally seek justice. They don’t just seek convictions. They’re fair. They’re honest. They turn over evidence. They try to accomplish a result to serve justice, which is important here. And Conor behind bars wouldn’t serve anybody’s purpose here. It’s useless. It would be a lot more effective if you could get him to go and talk to kids about bullying and the positive effects of sports and development, and things of that nature. That’s number one.
“Number two, the court system can’t handle trying every felony because there are just too many of them. So, they don’t try the ones that aren’t as serious like this one. This is a case where, again, the interest would lie in Conor doing something that would serve the public good. To answer your question more directly, do all felonies get reduced? No, of course not. If you can tell a person has a pattern of violent behavior or is a danger to the community, or commits a particularly heinous act. This is not a walk in the park this case. You can tell Conor is not a vicious criminal exercising his evil. It doesn’t seem that way from what I know.”
Also, there were injuries to Ray Borg and Michael Chiesa from the glass, but there weren’t any significant injuries as far as broken bones or something more severe.
“You can definitely classify the cut to Ray Borg’s eye as a serious injury. You can definitely classify the Michael Chiesa cuts as serious injuries. What you may think a serious injury is and what the law requires to prove a serious injury are different. You don’t need dismemberment or loss of an organ or things of that nature.”
Then there would’ve been a much more serious charge on McGregor?
“Correct. Which by the way, Conor is lucky they didn’t charge him with felony assault or other felonies because they could have.”
If that were the case, would we then be looking at a much different situation?
“Possibly. Then we would, in any event, a more serious case. Whether or not the disposition would be different I don’t know? But it would be a more serious case.”
Could there be any difficulty with the DA handling the case as far as potential plea offers go if they wanted to make an example of McGregor?
“Well, the DA is the one making the plea offer and it will be up to Conor’s team to accept it or not. They can kick their heels in and say, ‘We are trying this case. This is a high profile defendant. If we let him go it will look like we are weak. And we are going to move forward on this and you guys can go kick rocks.’ Now, I don’t think that will happen. It doesn’t seem likely, but that could. Is it possible you get a prosecutor that wants a good name on his resume? Possible, though again, Brooklyn prosecutors genuinely are fair and equitable and don’t pursue those kinds of efforts. Brooklyn is a very–again, to the extent you want to be charged with a crime–Brooklyn is the place you want to be charged with a crime. Not because it’s easier to get away with criminal conduct, but just because they are very good at looking at mitigating circumstances and coming up with a just response not just prison time or anything just to punish.”
Can you speak to Bruce Mafeo’s success rate in getting his clients good plea deals?
“I actually don’t know him that well. I’m familiar with some of his work. I know he’s tried some famous cases with some rappers in New York. I know he’s had some celebrity defendants. I don’t know too much about his work.”
Since there are orders of protection with both Ray Borg and Michael Chiesa, what kind of complications can arise for McGregor in regards to being booked on the same fight card as them?
“Right now there are temporary orders of protection placed. In every case in Brooklyn whenever there is a violent encounter the defendant always has an order of protection issued against them. And that happens at arraignment, the initial court appearance. That’s a temporary order. So that lasts a certain period of time. If the case is disposed of there will be a final order issued and depending on the order it will be two years or five years or something like that.
“That can obviously create problems for Conor fighting on the same card or being in the same arena [as other fighters.] An order of protection is all inclusive. You can’t make contact on social media. You can’t tag people. It can get really messy. A lot of those orders allow for incidental contact. Maybe if such an order is issued maybe the defense lawyers will come up with a clause in there that will say ‘no contact unless perhaps there is a fight card and they have to be in the same building or something of that nature.”
And how about McGregor’s Visa status since he’s not a U.S. citizen, how big of a problem will that be?
“In terms of immigration. That’s a problem. As far as I understand, Conor is not a citizen. In order to gain re-entry or stay in the states for an extended period of time, he would have to dispose of this case in a certain way. Typically, criminal consequences have negative impact on immigration status. In this case, closing out with a felony, which I don’t know if that is a likely scenario, but if they do that would be hurtful for sure. Even a misdemeanor is potentially hurtful. But my gut says that he’ll close it out in such a way where the immigration consequences won’t be hit. There are a lot of creative ways to craft a plea to make it so that immigration doesn’t take note. But that’s a very murky area of law. There’s really no law as to what immigration will pay attention to.”
What do you think the DA will offer as far as plea deals go, or do you expect a volley back and forth between the DA and McGregor’s defense team?
“There will likely be a volley. I mean, for sure, there should be a volley. Any good defense lawyer would negotiate heavily and not just take the first deal because you have to selfishly advocate for your client. I think this case will likely end with a misdemeanor. It is possible that he will get out of this with no criminal record. Maybe he will get out of it with a violation or a disorderly conduct. That’s entirely possible. I don’t know if it’s very likely, but it’s possible. The likeliest scenario is a reduction and a plea to some form of misdemeanor with some community service. Certainly, restitution because he damaged property here. And some form of public outreach. He’s going to have to engage the community in some way I would think. That would be what I would do if I were the prosecutor, I would want someone like him to go out and speak to kids and go out to schools and things of that nature.”
What about the New York State Athletic Commission? Can they somehow get involved as far as holding this incident against McGregor if he seeks a fighting license in New York in the future?
“So that’s an interesting question. A lot of these licensing issues come up. I represent a lot of different professionals: doctors, lawyers, securities people, nurses. People that have licenses. They are licensed by the state. And a lot of times there is mandatory reporting. I don’t know how the commission handles it, but a lot of times when you are arrested, for example, a lawyer gets arrested for a felony he must report it right away. And then there is potentially, depending on how the case disposes of itself, there can be a hearing held and the license can be suspended. He can be removed entirely, or he can have a public definition issue or something of that nature. So his lawyer is going to have to look into whether or not there is mandatory reporting here and if there is, how he has to report and what are the steps he takes when this case is disposed of. Eventually, it will be in one form or another.”
McGregor’s next court date is June 14. What are the chances his case gets handled by then or do you think it will get adjourned one or more times and get pushed back a few times on the calendar?
“It’s possible that it will get handled at that point. I don’t think so. These cases take months and months and months. If this was any other case I would tell you that you are going to have to go back to court many, many times. June 14 it’s on for grand jury action. So, the prosecution will tell the court and the defense lawyer whether or not Conor has been indicted. If he has then he will be arraigned on the indictment. If he is not the judge may give more time. The DA may have to give a reason as to why.
“And if an indictment is sought and not rendered, which almost never happens. I mean literally never. And definitely not in a case like this. If the DA wants to get an indictment here they will. If they don’t for some weird reason then that case is over. But it’s on for what they call grand jury action. So it’s on for the prosecution to let the defense lawyer and the judge know that they are working on an indictment, we have obtained an indictment, or we are in the grand jury now presenting testimony or something of that nature.”
So you think it’s more than likely going to go on past June 14?
“Yeah. I would bet the house on that. But again this is such a specific case and such a different case that maybe it won’t. If I were Conor’s lawyers I would want to get rid of this case yesterday right? So, who knows?
Do you expect there will be any civil suits filed against McGregor? And those can run concurrently correct?
“They can run concurrently and will probably run concurrently. He will have lawsuits filed against him in Kings County Supreme Court and other places. But those are a lot less intrusive. Those aren’t criminal cases. You don’t have to appear in a few months. There are no warrants to be issued. There is no bail bondsman that you have to cater to. That’s a lot less of an intrusive process. The complaint is filed, which is a document with the court. It is then served upon Conor in some form. After that Conor will hire a legal team and they will put in an answer, which is basically a responsive document. And then discoveries are turned over, videos are turned over and then depositions are held and usually, those cases settle. I’m assuming those cases will probably settle almost instantaneously.”
I know you can’t have a set strategy because you have to wait to see what exactly the DA will offer in terms of a plea, but how would you go about handling McGregor’s case, and what would you want the plea to be if you were handling this case?
“I would have to look at all the evidence, which takes months to turn over. In addition to that, if this case is indicted then the grand jury will hear testimony. I have to know what that testimony is in order to prepare an adequate defense. Now typically that testimony is handed over very late in the game and you can’t really rely on it. But nonetheless, I’d have to know what the witnesses said and things of that nature. Whether or not you can hang on to any inconsistent statements. Whether there are any witnesses in Conor’s defense that can come out and say, ‘This was done because of this.’ I don’t see what that defense could be, but that’s possible.
“Conor would perhaps have to hire investigators. Damage here is a big issue. Whether or not the damage was caused by the barricade being thrown into the van and fighters sustaining certain injuries. You don’t know what happened there. There investigators assigned to do those things to figure out whether or not … Who knows? There are a lot of fighters in a van and maybe when the van moves things happen. And when a ruckus happens things happen. There are a lot of moving parts here. And so you have to explore all of those parts, but the main issue here is look, the DA has the burden to prove guilt beyond reasonable doubt, not Conor.
“So he should do his due diligence. He should hire investigators. He should hire a team of lawyers. He should hire experts. He should get as much evidence as he can from his side. Gather all the video footage from all the different sources that he can. But it’s the DA’s case to prove. Conor does not have to prove innocence. They have to prove guilt. He shouldn’t be swinging for the fences here. He should wait, see what the evidence is, and operate in light of that.”
Ultimately, how do you think this whole case plays out and what is the endgame for McGregor as far as being charged?
“I think he will end up at some point probably with a misdemeanor, restitution that he will pay right away. Some form of community service. Some exorbitant amount of hours that will satisfy. He can do that in various different forms. As soon as the court receives notice that he satisfied those conditions that will be that. The case will be closed and that’s it. If it’s a misdemeanor in New York he will always have a criminal record. There is no expungement. So he will always have a criminal record unless that conviction is vacated later on, which is unlikely. If it’s a violation he will have no criminal record. It will be gone within a year and nobody will be able to see it, and he will move on with his life, especially if it’s a violation. He won’t have any immigration or any other consequences really. But judging from the felonies and judging that he’s a high profile guy, I’m inclined to think it will be a misdemeanor and some conditions that have to do with community service and outreach to the public.”
As far as community service, what do you think that would entail? Would it be something like 500 hours?
“Something of that nature. 500 hours of lecturing or counseling. He may have to take anger management. There are million different conditions that can come into play: courses, drug testing, a million different things. There is no black and white. But I do think substantively his life will remain unchanged. I don’t think he will suffer any real horror here.”
Just to put things into perspective here, if McGregor were a regular Joe and not a high-profile MMA athlete, what would’ve likely happened to him?
“Well, you don’t know. If it was a regular Joe it probably wouldn’t have been on camera (laughs). Regular Joes can’t get into the Barclays Center and throw barricades around. You and I can’t do that right? Regular Joes also have less of a name, so maybe nobody will really want to go after them. If you are a guy in Brooklyn charged with this sort of thing with no criminal history you are generally going to be OK. On the other hand, if you are a regular Joe you probably can’t afford the lawyers or the investigators or the experts that Conor can afford. So it cuts both ways.
“But a regular Joe probably wouldn’t be caught by 400 cameras doing the same thing. So his case would probably be better right off the bat. Unless there is video footage. You may get something like this in a street corner, some altercation, a grainy video that runs on a loop and will probably be done in a few days. And if it’s not done, it’s blurry and grainy and you don’t see what’s happening. And there are defenses and witnesses and other things. So the fact that this was not a regular Joe may have made it worse because there is so much evidence. I see a new video every day from a different angle.”
One last thing, do you foresee any lawsuits coming from any of the fighters that would be filed against the Barclays Center or the UFC due to Conor’s actions and the lack of security protecting them?
“They could definitely have something with the arena. I don’t know how it works with credentialing. I’m assuming the UFC approves the credentials. My understanding is that someone who was credentialed let McGregor into the arena.”
Yes, the UFC does approve credentials.
“So that is a big one. UFC is also an employer. In theory, these are worker’s compensation cases. From what I understand the UFC contracts to be. So they would get their medical bills covered by that and then they could sue all the third parties like the arena, like Conor himself and a bunch of other places. Who knows. Maybe the bus company. They could also claim that the bus driver could’ve reacted quicker. These are the kinds of things where you sue everybody under the sun and then see what sticks.”