New York Criminal Attorney Blog

What Factors Does a New York Court Consider in Applying the Emergency Exception to a Warrantless Search?

December 26, 2024 | Tilem & Associates

It is well-established in the United States that individuals have a constitutional right to privacy in their homes. Experienced New York criminal defense lawyers screen cases for illegal searches and seizures. Under certain circumstances, though, police officers can obtain warrants from a court and search a private dwelling as part of a criminal investigation. In general, without having obtained a warrant, officers are not allowed to search an individual’s home. There is, however, an exception. In emergency situations, officers are allowed to go into a person’s private residence without a warrant.

Six Factors to Apply

What is an emergency situation? Case law in New York says that officers should consider the following six factors when deciding whether to enter a home without a warrant: the violent nature of the alleged crime; the possible involvement of firearms; the likelihood that a crime has occurred; whether the suspect might be inside the home; the likelihood of the suspect escaping; and the possibility of a peaceful entry.

Ideally, an officer will weigh these factors before entering a home without a warrant. If (and only if) the six factors cause an officer to reasonably believe that an emergency exists, that officer can enter a private dwelling without a warrant. Because an officer will likely not be weighing each factor carefully during what the officer believes to be an emergency, it is the trial court’s job to later review these factors and determine whether the officer’s frame of mind lined up with the factors.

When Can a New York Police Officer Pull You Over for a Traffic Stop?

December 26, 2024 | Peter Howard Tilem

Most drivers are aware that under certain circumstances, a police officer is authorized to pull over vehicles and conduct a traffic stop. What does the law say, though, about what kind of situation allows the officer to legally initiate a traffic stop? Is a traffic stop only allowed if there is a major traffic violation, or do minor ones allow the stop as well?

New York Case Law

According to New York case law, an officer can initiate a traffic stop when that officer has “probable cause to believe that a driver has committed a traffic violation.” The officer uses the entirety of the circumstances to determine whether the driver has committed a traffic violation. The officer can observe any range of traffic violations, whether major or minor. The legal standard is that the officer must have probable cause, i.e. a reasonable basis, for believing that the driver at issue did in fact commit a traffic violation.

Crossing the Fog Line

In a recent case decided by New York’s highest court, the Court of Appeals, the defendant argued that when an officer pulled him over for swerving, the officer did not have probable cause to believe he committed a traffic violation (and therefore that the officer violated the defendant’s rights). In this case, police officers testified that they saw the defendant cross the fog line in the road three times within a tenth of a mile before they pulled him over under suspicion of driving while intoxicated.

The Importance of Credibility During Suspect Identification

December 19, 2024 | Peter Howard Tilem

Recently a juvenile who was adjudicated a Juvenile Delinquent in Family Court recently won an appeal. When a victim or witness makes an identification after a crime, the identification must be both credible and consistent. A recent case before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, goes to show just how important this credibility can be in a criminal case. The takeaway from the appellate case is clear: if you are named as a suspect or defendant, make sure your attorney challenges the identification process in any way that could be helpful to your case. With the right kind of challenge, you may be able to get your charges dropped completely.

Case Before the Second Judicial Department

In the appellate case, a complainant saw several black males riding bicycles, then a few moments later, he noticed that someone struck him from behind. The complainant was unable to see who hit him. He testified both that he had no idea who hit him and, inconsistently, that he had noticed the group of men behind him right before he was struck. The complainant further indicated both that he saw the assailants’ faces “for a little bit” and that he only saw the backs of the assailants’ heads.

New York Defendant Unsuccessfully Argues to Overturn Drug Convictions

December 12, 2024 | Peter Howard Tilem

Recently, a New York defendant in a drug case, appealed his convictions before the Appellate Division, Third Department. In his appeal, the defendant argued that his convictions were “against the weight of the evidence,” a very hard burden to meet given that the Court is obligated to give deference to the Jury’s evaluation of the credibility of the witnesses. Unfortunately, the appellate court disagreed with the defendant’s argument and affirmed the convictions and sentences imposed by the lower court.

Facts of the Case

According to the opinion, the state used two confidential informants to catch the defendant in the act of selling heroin. Prior to each controlled buy, the police searched the confidential informants in order to make sure they were not bringing drugs to their agreed-upon meetup with the defendant. After each controlled buy, the informants brought the heroin to the police officers that the defendant had sold them. Following the controlled buy operations, the police obtained a valid warrant and searched the defendant’s apartment. They found several incriminating items, including a scale, baggies and cutting materials, and glassine envelopes.

The defendant was charged with and later convicted of a) criminal sale of a controlled substances and b) criminally using drug paraphernalia. Following his convictions, he filed an appeal, arguing that his convictions were against the weight of the evidence.

Can a Police Officer Lie to Elicit a Confession from a Suspect in New York?

December 5, 2024 | Peter Howard Tilem

In a recent criminal case before a New York court, the defendant appealed her conviction for driving while under the influence of drugs. According to the defendant, the police officer lied to her when he questioned her directly after the car accident she caused. This deception, she argued, was grounds for the resulting drug test results to have been suppressed by the trial court. The disagreed, citing New York case law explicitly stating that police officers are permitted to lie to suspects to get them to cooperate.

New York Case Law

According to case law in New York, “police are permitted to lie or use some deceptive methods” in order to encourage a suspect to cooperate. If the officer in question does not implicitly or explicitly threaten the suspect, it is lawful for the officer to use the coercive tactic of deception to encourage cooperation.

In the criminal case related to driving under the influence, the officer questioned the defendant because she had hit another vehicle with her car. It became apparent to the officer that the defendant appeared to be under the influence of some substance, and he told her that she might not be arrested if she took (and passed) a drug recognition examination. The defendant proceeded to take the exam, and she failed. In a subsequent motion to suppress, the defendant argued it was illegal for the officer to lie to her and tell her that she might not be arrested if she passed the test.

The Difficulty of Overturning the Denial of a Motion to Suppress in New York Criminal Courts

November 30, 2024 | Tilem & Associates

In a New York criminal case, an experienced criminal defense lawyer will often file what’s called a motion to suppress, asking the trial court to exclude incriminating evidence from the trial record based upon the fact that the evidence was unlawfully obtained by law enforcement. If the trial court denies this motion, it can be very hard to successfully appeal the denial. A recent case before the New York Appellate Division, Second Judicial Department, reminds us of this stark reality.

In the case, the defendant was charged with and convicted of criminal possession of stolen property in the third degree and criminal possession of a forged instrument in the second degree. His case began when officers, patrolling a neighborhood with reports of burglaries, approached the defendant as he carried a FedEx package. The defendant had just left a residential home’s front porch, and he gave the officers inconsistent answers for why he was walking the neighborhood in the first place. When he showed the officers his ID, one of the officers recognized that the ID was counterfeit.

During the course of the interaction, the defendant dropped the FedEx package on the ground, and the officers found $20,000 in cash inside the package. The defendant was then criminally charged. He filed a motion to suppress his statements to the police officers.

Destruction of Surveillance Video During New York Criminal Proceedings

November 23, 2024 | Tilem & Associates

Video evidence has become increasingly common and increasingly important in criminal cases. In New York, criminal defense attorneys can request that a court give something called an “adverse inference” in situations where the prosecution acts inappropriately by failing to preserve evidence. This means that the defendant can ask the court to automatically assume that the prosecution was hiding something simply because of its conduct during the litigation process. How does this “adverse inference” relate to surveillance footage when that footage may be crucial to a criminal case?

New York Case Law

According to New York case law, a court can allow for an adverse inference when a defendant has requested important evidence and when that evidence has been “destroyed by agents of the State.” If a defendant requests surveillance footage that could be crucial to his or her case, and if the State has destroyed the evidence since the time of the alleged crime, this could be grounds for an adverse inference.

Considerations from the Court

The court may, however, deny this request under certain circumstances. For example, if the defendant never formally requested the surveillance video prior to trial, the court may decide the request has no merit. Additionally, if the video was destroyed during routine procedure (i.e. without bad intentions but instead during the course of regular operations), there may be grounds to deny the request.

Understanding the Right to Represent Yourself in New York

November 17, 2024 | Peter Howard Tilem

In both the state of New York and the United States more broadly, criminal defendants have the right to an attorney. If they cannot afford an attorney, the court will appoint an attorney for them. Defendants do have the option, though, of requesting to appear pro se, meaning they can litigate their case without any attorney at all.

Case Law Regarding Self-Representation

In New York, a criminal defendant has the option of requesting to represent himself if three criteria are met: (1) the request is both clearly stated and timely made; (2) the defendant has explicitly waived the right to counsel; and (3) the defendant has not done anything that would make self-representation particularly difficult for the court.

Inquiry by the Court

A trial court is not allowed to deny a defendant’s request to represent himself without sufficiently investigating the facts at issue. The court must make an effort to properly determine whether the defendant can meet these three requirements under New York law. Case law specifically states that a court must “conduct a dispassionate inquiry into the pertinent factors” regarding any request for self-representation.

How Difficult Is it for New York Defendants to Argue Insufficiency of Evidence After Trial?

November 10, 2024 | Peter Howard Tilem

Sometimes, if a jury finds a defendant guilty of a crime like sexual assault or any other criminal offense, the defendant will later argue that the verdict was “against the weight of the evidence” at trial. This essentially means that the defendant wants to claim that the jury did not actually have grounds to find him or her guilty. What is the standard for this argument in New York? And how difficult is it to successfully argue that a verdict was against the weight of the evidence at trial?

Case Law in New York

In New York, a court reviewing a case for the “weight of the evidence” must first determine “whether a different verdict would have been unreasonable” and, secondly, must weigh the conflicting testimony and evidence to determine if the verdict is “supported by the weight of the evidence.” The court will generally review the statute that is relevant to a defendant’s guilty verdict and then determine whether the evidence supports the verdict in relation to the statute.

Case Before New York Appellate Court

In a recent case before the New York Appellate Division, Third Department, the court demonstrated the difficulty of proving that a defendant’s verdict was against the weight of the evidence. The case revolved around alleged sexual misconduct between the defendant and a child, and the jury relied on evidence such as testimony from the victim, a medical examination of the defendant, and the defendant’s own statements about the sexual acts.

What is NY TAC Defense, and Why Every New York Gun Owner Needs It

November 3, 2024 | Peter Howard Tilem

Protecting your rights starts before you ever need to use your firearm.

If you own a gun in New York, you already know the laws are complex, strict, and sometimes unforgiving. Even if you do everything right, a single moment of defending yourself or your family can turn into a legal nightmare — unless you’re prepared.

That’s where NY TAC Defense comes in.