ASSAULT AND BATTERY Category Archives — Page 3 of 4 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Discusses Justification Defense in Recent Attempted Murder Case

February 16, 2019 | Tilem & Associates

Self defense cases in New York can be particularly challenging and require a skilled and experienced attorney. In New York self defense is referred to the defense of justification. Recently, a state appellate court issued an opinion in a New York assault case discussing the defense of justification. Ultimately, the court reversed the defendant’s conviction for assault in the first degree and ordered a new trial based on the trial court’s failure to instruct the jury appropriately.

The Facts of the Case

According to the court’s opinion, the defendant was arrested and charged with attempted murder and several assault charges after he “slashed his roommate across the neck and stabbed him in the abdomen with a large kitchen knife.” Apparently, the alleged assault occurred in the men’s apartment during a physical altercation.

Evidently, the defendant presented evidence suggesting that he was justified in his actions. It is unclear from the court’s opinion the exact nature of the justification defense, but it was most likely self-defense. At the conclusion of the evidence, the court instructed the jury on each of the charged offenses, as well as the defendant’s justification defense.

Court Condones Officers’ Stop of Defendant in Recent New York Assault Case

February 4, 2019 | Tilem & Associates

Earlier this month, a New York appellate court issued a written opinion in a New York assault case involving a motion to suppress the weapon that the defendant allegedly used to assault the complaining witness. The case required the court to discuss a police officer’s legal authority to approach a citizen to investigate a potential crime. Ultimately, the court found that each of the officers’ actions were justified, and affirmed the denial of the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, police officers were in the area of a recent shooting when they saw the defendant and another man “huddling” together. Evidently, there were no other people out on the street around the two men, and the defendant’s hand was in his pocket.

The police were operating without a description of the alleged shooter, and continued to the location of the shooting. After arriving, the officers turned around and began to approach the two men whom they had just passed. As the officers approached, they started walking away at a “high rate of speed.” While the defendant and his companion were walking away from the officers, the officers watched as the defendant discarded an object into an alleyway. The police officers detained the defendant without arresting him while one of the officers went to see what the defendant discarded. Once it was determined that the defendant had dropped a gun, the police arrested the defendant.

“Prior Bad Acts” Evidence in a New York Domestic Violence Cases

January 22, 2019 | Tilem & Associates

Evidence of someone’s prior acts is generally not admissible in a New York criminal trial. However, under The Guide to New York Evidence Sec. 4.21, evidence of past “crimes, wrongs, or other acts” may be admissible under certain limited situations.

Rule 4.21 specifically prohibits the introduction of prior-act evidence when it is being used to show that the defendant acted in conformity with that act, or if it is being used to show that a person had a propensity to act in a certain way. However, when the evidence is being offered for other reasons, such as to show someone’s motive, intent, opportunity, preparation, the existence of a common plan or scheme, knowledge, identity, or to establish the absence of a mistake, the evidence may be admitted if it is more probative than prejudicial.

Judges are left with the discretion to determine if prior-act evidence should be admitted. In a recent New York domestic violence case, an appellate court discussed Rule 4.21 and its application.

Hearsay Evidence in New York Criminal Trials

January 16, 2019 | Tilem & Associates

Generally speaking, hearsay evidence is not permitted to be considered by the jury in a New York criminal trial. However, there are certain exceptions where a hearsay statement may be properly admitted.

What Is Hearsay?

The concept of hearsay can be complex to grasp, but essentially a hearsay statement is one that was made by a party who is not present to testify in court. A statement is only hearsay if it is testimonial, meaning it is being used for “proof of the matter asserted.” Thus, if the statement is not being used to prove that which was said, it will not be considered hearsay.

Why Is Hearsay Prohibited?

The rationale for the hearsay exclusion is based on the fact that the party who made the statement is not in court to explain what was meant and is not subject to cross-examination. For example, sarcasm may not come across when a statement is relayed at a later date through a third party. In criminal trials, there is also the concern that the person making the statement cannot be cross-examined, depriving the defendant of their confrontation rights under the Confrontation Clause of the Constitution.

Suppressing a Defendant’s Statements in a New York Criminal Case

December 16, 2018 | Tilem & Associates

The issue of whether a statement taken by New York CPS workers after a defendant had been arrested in a related criminal case and the defendant’s right to counsel had attached, was recently discussed by a New York Appellate Court. After police make an arrest, they will often bring the arrestee in for questioning. What is said during this questioning can be crucial. Therefore, before questioning someone about their involvement in a crime, police must read the arrestee specific warnings. These warnings – often called the Miranda warnings – explain the rights of the arrestee. Notably, these include the right to remain silent and the right to an attorney.

If a statement is taken by a law enforcement official in the absence of these warnings, the statement may be inadmissible in court because it was taken in violation of the defendant’s rights. However, only statements made during “custodial interrogation” by a law enforcement official require miranda warnings. A recent New York assault case illustrates the limits of a defendant’s rights to be free from questioning by a government employee who is not a non-law enforcement official.

The Facts of the Case

According to the court’s opinion, the defendant was charged with several assault charges stemming from a December 2014 incident in which he was alleged to have struck the mother of his child with a crowbar. At the time of the alleged offense, the defendant’s six-year-old child was present.

New York Court Affirms Assault Conviction, Rejecting Defendant’s Weight-of-the-Evidence Claim

September 30, 2018 | Peter Howard Tilem

Recently, a state appellate court issued a written opinion in a New York assault case requiring the court discuss an issue that is important to understand for all who are facing New York criminal charges. The case presented the court with determining whether the defendant’s conviction was supported by the weight of the evidence presented at trial. Ultimately, the court concluded that the evidence did support the jury’s verdict, and affirmed the defendant’s convictions.

The Facts of the Case

The defendant was arrested and charged with two counts of assault in the second degree and one count of tampering with evidence. The case proceeded to trial in front of a jury, where it was established that the defendant got into a fight with two other men. During the fight, the defendant produced a knife because he wanted to scare the other men. He specifically stated that he did not intend to injure them.

The defendant also testified that during the fight, he swung the knife at the two men when they were very close to him. He could not remember if he used a slashing or stabbing motion, and a medical witness testified that the victims had injuries that were consistent with either slashing or stabbing.

Preservation of Error in New York Criminal Cases

July 21, 2018 | Tilem & Associates

When someone is convicted of a crime in New York, they are entitled to appeal the conviction or to have a higher court review the conviction to make sure that the judge presiding over the trial did not commit any legal errors that may have invalidated the conviction. However, as a general rule, a New York criminal appeal will only be successful if certain steps are taken at trial to preserve the error for appellate review.

The concept behind requiring the preservation of error is that a judge should have the opportunity to review the alleged error at the time it was made so that she can revisit the decision. If a trial judge’s potential mistake is not brought to the attention of the trial judge, there is no opportunity for the judge to reverse their decision or take other corrective actions to remedy the error. In addition, the legislature wants to encourage litigants to bring potential errors to the attention of the judge sooner, rather than later, in order to reduce the chance that a trial is carried on in vain.

For these reasons, a party must generally make a specific objection in order to preserve an error for appellate review. Absent a specific objection, the reviewing court will likely dismiss the appeal. A recent case illustrates this concept.

Court Discusses “Depraved Indifference” Sub-Section of New York Aggravated Assault Statute

July 7, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York aggravated assault case requiring the court to discuss the “depraved indifference” sub-section of the New York aggravated assault statute. Ultimately, the court rejected the defendant’s argument that the prosecution failed to establish that the defendant’s mindset at the time of the commission of the crime met the requirement of showing a “depraved indifference for human life.”

Assault in the First Degree

In New York, there are several sub-sections under which someone can be charged with aggravated assault. Sub-section § 120.10(3) states that “a person is guilty of assault in the first degree when … [u]nder circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.”

The Facts of the Case

The complaining witness lived with the defendant. One day, the defendant called the complaining witness’s mother, explaining that the complaining witness was acting odd and banging her head against the wall. Over the course of the next few weeks, several people visited the complaining witness’s residence, suggesting that the defendant take her in to get medical treatment. The defendant explained he was hesitant because he did not want to be blamed for her injuries.

New York Court Upholds Defendant’s Conviction for Aggravated Assault Against an Officer Based on an Unintentional, Minor Injury

May 2, 2018 | Peter Howard Tilem

When it comes to New York assault cases, there are several different subsections under the general statute outlining what constitutes criminal conduct. One form of aggravated assault is when someone “with intent to prevent a police officer from performing a lawful duty, he [or she] causes physical injury to such police officer.”

This type of aggravated assault does not require any intent to cause harm to the police officer. Under the law, the prosecution need only establish that the defendant was acting to prevent an officer from performing a lawful duty and that the officer was harmed. A 2017 decision issued by a New York appellate court illustrates just how broadly courts will interpret this language when determining if a conviction was appropriate.

The Facts of the Case

The defendant was suspected of theft from a Home Depot store. Police began to follow the defendant as he left the store and soon afterward engaged in a high-speed chase. Eventually, the defendant’s vehicle stopped, and the defendant exited the car and then began to flee.

A New York Prosecutor’s Duty to Provide Evidence to the Defense

April 28, 2018 | Peter Howard Tilem

In New York criminal cases, the prosecution is under a duty to provide certain evidence to the defendant and his attorney, irrespective of whether the prosecutor intends to use the evidence against the defendant. Importantly, the duty attaches to any evidence that may establish innocence or otherwise be favorable to the Defendant. This concept, first discussed by the United States Supreme Court in the landmark case Brady v. Maryland, has since been expanded to cover any evidence that is in the hands of not just of the prosecution but also of the police. The material is commonly referred to by Criminal Lawyers as “Brady Material”.

A recent case illustrates just how seriously courts take the prosecution’s duty to disclose evidence to the defense. Indeed, the court noted that, although the defendant’s argument was not necessarily raised at the appropriate time, the issue was so important that the court ruled on the issue anyway.

The Facts of the Case

The defendant was charged with several crimes related to the assault of a minor. Prior to his arrest, and before the police knew where the defendant was, they “pinged” a cell phone that had been used by the minor earlier in the day (by “pinging” a phone, police are able to get a general idea of where the phone is). The police were able to locate the defendant through the cell phone.