New York Criminal Attorney Blog

Court Overturns Plea After Judge Inflates Maximum Sentence

March 21, 2025 | Peter Howard Tilem

When a judge warns that losing at trial could mean forty-five years behind bars for a series of burglary charges, even the most confident defendant will think twice about exercising the right to a jury. That was the scenario facing twenty-three-year-old Marquese Scott, who accepted a six-to-eight-year offer on three second-degree burglary charges. Recently, the New York Court of Appeals ruled that his plea was not knowing, voluntary, or intelligent because the court overstated the maximum lawful sentence by twenty-five years. The ruling teaches prosecutors, judges, defense lawyers—and anyone charged with a felony—that accuracy is everything when liberty is on the line.

How an Erroneous “Worst Case” Skewed the Decision

Scott stood accused of three burglaries. Each Class C felony carries up to fifteen years, but Penal Law § 70.30(1)(e)(i) caps the combined term at twenty. During the plea colloquy, however, the judge told Scott three separate times that consecutive sentences could total forty-five years. Neither counsel nor the prosecutor corrected the mistake. Confronted with what sounded like an almost half-century exposure, Scott took the plea immediately—only to have the sentencing judge later impose fifteen years after concluding he had not fully accepted responsibility.

Why the Court of Appeals Stepped In

On appeal, Scott’s new counsel argued that the plea was invalid because it rested on patently false information. The prosecution countered that the claim was unpreserved; Scott had never moved to withdraw his plea or filed a CPL 440.10 motion. The Court of Appeals disagreed, applying its “no practical ability to object” exception. When the error is clear on the face of the record and the defendant had no reason to doubt the court’s assertion, preservation is not required. It was unreasonable to expect a young defendant to challenge the judge’s confident, repeated statement of the law.

Can a Police Officer Legally Question and Detain You in Your Driveway?

March 14, 2025 | Tilem & Associates

In a recent case before a New York criminal court, a police officer followed a suspect from the public street into her driveway when he suspected that she was driving while impaired. The officer asked the suspect to step out of her garage after she parked her vehicle. At that point, he conducted field sobriety tests and arrested the defendant for driving while intoxicated (DWI). At issue before the court on appeal was whether the officer had the legal right to enter the defendant’s property to question and then arrest her.

The Fourth Amendment

Under the Constitution’s Fourth Amendment, we all have the right to privacy and to security in our own homes and the right against unreasonable searches and seizures. According to case law, “the Fourth Amendment has drawn a firm line at the entrance to the house,” which means that only in rare circumstances can an officer enter a person’s private property without either consent or a valid warrant. A person’s house, as well as the area immediately surrounding it, fall under the protective umbrella of the Fourth Amendment.

The Court’s February 2025 Decision

Even given the important protections provided by the Fourth Amendment, the court in this case ruled that the officer did have the right to arrest the defendant outside of her garage. This was the case for several reasons: first, the suspect agreed voluntarily to exit her garage and speak with the officer. Second, the officer reached the defendant’s garage by way of public roads. The defendant’s driveway did not make any indication that she expected privacy outside of her garage. Instead, there was “unobstructed access” to the driveway, leading the officer to believe that he could enter the driveway without incident.

When Can a Police Officer Legally Demand that an Occupant Step Out of His Parked Vehicle?

March 7, 2025 | Peter Howard Tilem

In the state of New York, case law is clear that police officers have the right to approach parked cars for any “objective, credible reason.” This gives officers significant leeway to at least approach vehicles that are stopped and parked. When, though, can the officer demand that the car’s occupant step out of the vehicle?

According to a New York case called People v. Eugenio:

“[w]here .. a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint.”

Can an Officer’s Generalized Knowledge about Crime in an Area Give Him Grounds to Search a Vehicle?

February 28, 2025 | Tilem & Associates

In New York, it is well established that to legally stop a vehicle, a police officer must have reasonable suspicion, based on objective evidence, that the car’s occupants were involved in a crime. Courts go back and forth on what it means for an officer to have “reasonable suspicion.” If an officer knows that an area has high crime rates, does this knowledge alone give the officer the required “reasonable suspicion” to stop a vehicle?

A recent opinion published by a New York court affirms that an officer’s general knowledge of crime in an area is insufficient to establish reasonable suspicion on its own. In the case, a police officer went to a residence in Queens after reports of an alleged burglary. The 911 call indicated that two men were entering the back of the residence. The officer arrived at the scene and noticed a car in front of the house. The car that was at the residence left the home upon the officers’ arrival. Officers followed the car, stopped and searched the car, and arrested the driver for carrying concealed weapons in the vehicle.

Upon further review, however, the court learned that the officers did not have legal grounds to stop the car. The car’s driver was a female, whereas the burglary suspects were both males. There was nothing indicating that the driver might have been involved in the burglary, and it was not enough for the officers to cite the fact that the neighborhood was a high crime area.

When Does a Witness Qualify as an Expert in New York Criminal Cases?

February 20, 2025 | Tilem & Associates

During litigation, it is common for one party to have an expert testify in support of their case. In criminal cases, the state will sometimes try to qualify an arresting police officer as an expert in a certain area, which can bolster the officer’s credibility before the court. What does it take to be qualified as an expert in New York criminal cases? And what does this mean for defendants fighting criminal charges?

New York Case Law

A New York case called People v. Cronin sets out the following standard for expert testimony:

Can Police Officers Search a Private Home Without a Warrant but with a Resident’s Voluntary Consent?

February 13, 2025 | Peter Howard Tilem

In the state of New York, it is well established that when police officers have a valid warrant from a judge, they are legally allowed to search a resident’s private property whether the resident likes it or not. What happens, though, if the officers do not have a warrant? Can they still get permission to search by asking for consent of the person living in the home?

New York Case Law’s Answer

In answering this question, New York case law is clear:

“‘[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question.'”

Put another way, if a police officer asks for permission to enter a private home, and if a person with “authority” tells him he can search the home, the officer can do so legally. A person with “authority” could be an owner or a resident of the home, whether that person is the suspect of the crime at issue or not. If, however, the officer wants to search a private bedroom, a resident without access to that bedroom might not have the requisite “authority” to let the officer enter. The burden is on the Police and the Prosecutor to establish that there was voluntary consent.

When Should a Trial Attorney File a Motion to Suppress?

February 6, 2025 | Peter Howard Tilem

As we have often discussed, one powerful tool that criminal defense attorneys can employ is the motion to suppress incriminating evidence. When a trial court grants a defendant’s motion to suppress, the jury never sees the evidence that the defendant has asked the court to keep out of the trial record. These motions, when successful, can make all the difference for defendants in New York, and they often help defendants win their cases.

How do you know if you, as the defendant, should be filing a motion to suppress? There are several flags that should alert you that there might be grounds for the trial court to suppress incriminating evidence in your case. These include: an unlawful encounter with the police, an officer’s failure to give Miranda warnings, errors in a field sobriety test, and problems with how the State handles evidence before it is admitted in court. Generally, if the prosecutor wishes t0 use incriminating statements, physical evidence or a police arranged identification as evidence at trial, an experienced criminal defense lawyer will include a request for suppression of that evidence as part of their omnibus motion.

It is also true that if you think there might be a chance the court could grant your motion to suppress, it is often better to present the motion than to hold back. In a recent case before a New York court, the defendant appealed her guilty verdict, arguing she received ineffective assistance of counsel when her attorney failed to file a motion to suppress that could have been successful. The court granted the defendant’s appeal, concluding that the defendant’s attorney failed her by not asking the court to suppress evidence that investigators found in a search that might have exceeded the scope of their warrant.

Can Minor Violations of Traffic Law Reasonably Lead to a Traffic Stop in New York?

January 30, 2025 | Peter Howard Tilem

If you drive on the roads of New York, you are automatically susceptible to police-initiated traffic stops for traffic violations. There is much debate, however, about what circumstances can lead an officer to have “reasonable suspicion” to stop a driver for a traffic stop. Without reasonable suspicion that some law has been violated, police officers are supposedly prohibited from initiating these stops. Can a minor violation in traffic laws give an officer reasonable suspicion under New York law?

Opinion Issued by New York Court

A New York court recently issued an opinion confirming that yes, minor violations in traffic laws can be legal grounds for a traffic stop. In the court’s opinion, it considered a defendant’s argument that his broken headlights and tinted windows were not enough to give an officer reasonable suspicion to stop him while he was driving. Therefore, argued the defendant, any evidence that the officer found in his car during the traffic stop should have been suppressed by the trial court judge in his criminal case. The two infractions cited by the police for the stop were 0 point traffic infractions.

The court concluded that broken headlights and tinted windows were sufficient grounds for a traffic stop. According to New York traffic law, all motor vehicles must display at least two lighted head lamps on the front. In addition, no motor vehicle is allowed to be covered with material with “light transmittance of less than seventy percent.” The officer’s view of the defendant’s car gave him reasonable suspicion to initiate the stop, given the defendant’s broken headlights and tinted windows. The court was unpersuaded by the defendant’s argument that the officer did not actually have a valid reason to stop him while he was driving.

When Can Police Officers Legally Impound a Vehicle After a Traffic Stop?

January 23, 2025 | Peter Howard Tilem

In some criminal cases, officers impound a suspect’s car after they conduct a traffic stop. Is this allowed? When can an officer impound a suspect’s vehicle under the law in New York? Recent case law helps clarify the answer to this very question.

The standard under New York case law says the following:

“When the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to reasonable police regulations relating to inventory procedures administered in good faith.”

What does this mean? In essence, the police are allowed to impound a car when the driver is arrested and when they impound it according to their office’s regulations. These regulations can vary among police departments, but the case law encourages officers to act “in good faith” when deciding whether or not to impound the vehicle.

New York Court Rules that Lower Court Reasonably Denied Defendant’s Motion to Suppress

January 16, 2025 | Peter Howard Tilem

In a recent gun case before the New York Appellate Division, First Department, the defendant asked the court to reconsider the trial court’s denial of his motion to suppress. After reviewing the defendant’s argument, the higher court disagreed, ultimately concluding that the police officer searching the defendant’s bag was within his rights when he searched the bag and found a firearm.

Facts of the Case

According to the opinion, local officers received a 911 call describing an individual with a firearm at a nearby gas station. Officers arrived at the station and immediately saw the defendant, who matched the suspect’s description. When the officers told the suspect to remain still, the suspect began fleeing the scene. They handcuffed the suspect then searched his bag, noticing that the backpack felt particularly heavy. The officers searched the bag and found a gun. The defendant was later charged with criminal possession of a weapon, and a jury found him guilty as charged.

The Decision

On appeal, the defendant argued that the trial court should have granted his motion to suppress the gun, claiming that the police search of his back pack was an unconstitutional search. The higher court, though, noted several parts of the interaction between the officers and the defendant that warranted their search of his bag. To start, the defendant matched the description of the suspect in the 911 call. Also, the defendant immediately ran when the officers spoke to him. Lastly, the 911 call had come in only a couple of minutes before the officers picked up the bag, which made it reasonable for them to believe the gun might have been inside the bag.