Articles Posted in CRIMINAL APPEALS

As we have been discussing in previous blogs, there are many different issues that can arise in the jury selection process. The main objective is to ensure that the jurors who are selected for the trial will act without bias and that they will be able to apply the law in an objective manner. As seasoned New York criminal defense lawyers, the attorneys at Tilem & Associates have handled many trials and jury selections. We know how important it is to understand the rules of jury selection and how critical it is to ensure that you receive an appropriate and unbiased panel of jurors.

Recently, a New York appellate court considered the role that a juror’s skin color may play in the jury selection process. The court was asked to determine whether a juror’s skin color is a sufficient basis for challenging a prosecutor’s use of a peremptory strike to remove that juror. A peremptory strike describes the right of either party to challenge the selection of a juror without having to provide a reason for wanting to excuse that prospective juror. During the jury selection process, each side has a certain number of peremptory strikes that they are allowed to use. The parties are allowed to assert an unlimited number of challenges to jurors when the parties provide just cause for wanting to excuse that juror.

The United States Supreme Court has held, however, that peremptory strikes cannot be used to dismiss a juror based on his or her skin color or gender. If a party believes that the other side is using peremptory strikes to dismiss jurors based on skin color or gender, the party can challenge the other side’s peremptory strike, particularly when the challenging party believes that the other party is engaging in discrimination. The challenging party has the burden of making a prima facie showing that the other party used peremptory challenges to exclude jurors based on skin color.

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One of the most critical phases of a trial is providing instructions to the jury before deliberation. There are form jury instructions that the judge can use, but the parties are also allowed to offer suggested jury instructions. The type of instructions that the jury receives can have a serious impact on the ultimate verdict that they return. Additionally, if you believe an error was made during jury instructions, it is critical that you object to it on the record so that you can later appeal the matter. At Tilem & Associates, our team of New York criminal defense lawyers has guided numerous clients through the jury instruction phase.

A recent New York appellate opinion discusses alleged errors in jury instructions. The defendant was charged with a number of crimes, including coercion involving his ex-girlfriend. The defendant was accused of making physical threats against the former girlfriend and threatening to ruin a business that she operated after the girlfriend asked the defendant to move out of her apartment. The defendant allegedly made these threats in an attempt to stay at the apartment. The defendant was on parole at the time he made these threats, so the girlfriend reported the threatening conduct to his parole officer. The parole officer then had the defendant arrested. Evidence at trial suggested that the defendant continued to make threats against his ex-girlfriend while he was in prison.

During trial, the defendant asked the judge to instruct the jury on coercion in the second degree as a lesser-included offense of coercion in the first degree. In making this request, the defendant asserted that his conduct did not rise to the level of heinousness contemplated by coercion in the first degree. The trial court denied his request. At the close of trial, the jury returned a verdict convicting the defendant of coercion in the first degree on two counts. The defendant appealed.

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As we discussed in our previous blog, if you are involved in a criminal trial, one of the most crucial steps is selecting the jurors. There are many rules that apply to this part of the legal process, and it is crucial to make sure you protect your right to a fair and unbiased jury. As seasoned New York criminal defense lawyers, the trial attorneys at Tilem & Associates have guided many individuals through the jury selection process and their case in general.

A recent New York appellate opinion discusses a case involving a jury dismissal issue. The defendant was facing criminal charges in connection with the death of a five-year-old. During the jury selection phase, defense counsel questioned one of the prospective jurors regarding whether or not he or she had issues with the fact that the case involved the death of a toddler. The juror indicated that he could not be impartial because of the victim. Another juror indicated that he also felt he could not be impartial. The defense counsel asked the jurors whether they agreed that the burden to prove guilt beyond a reasonable doubt was on the prosecution. The jurors all agreed, including the two jurors who indicated that they did not believe they could remain impartial. The defense counsel then asked whether the jurors would have trouble finding the defendant not guilty if the prosecution failed to meet its burden of proof. One of the jurors who showed initial hesitation expressed doubt about this question.

The trial court then asked the doubtful jurors a series of questions to determine their ability to be unbiased and to apply the law fairly. Based on this examination, the court dismissed one of the jurors. Defense counsel asked the court to dismiss the other doubtful juror, but the court denied this motion. Defense counsel then used one of their peremptory challenges to dismiss the juror. The case proceeded, and the defendant eventually appealed the judgment.

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As experienced New York criminal defense lawyers, we often receive questions about the jury selection process and the rules that apply to ensure that a fair and unbiased jury is selected.  Jury selection, the process of choosing fair and impartial jurors can be one of the most critical stages of a jury trial.  During the selection process, lawyers are permitted to ask the jurors questions and can select certain jurors to be removed, either based on their answers or based on a certain number of challenges they can use without having to explain their reasoning. A recent appellate opinion discusses the rules that apply to questioning jurors.

The defendant in the action was charged with murder. The defendant provided a written and verbal statement to law enforcement officials regarding the shooting and the events that led up to it. He said that the victim approached him to discuss a missing cell phone and that the victim later approached the defendant again and threatened him with an ice pick. The defendant said he then shot at the defendant as the defendant fled. The prosecution identified two witnesses to these events.

Before the jury selection phase of the trial, the defendant’s lawyer asked if the court could instruct the prospective jurors about the rules that apply to the use of the defendant’s statement. The lawyer wanted to make sure that he could weed out any jurors who would be unable to accept the rules that apply to involuntary statements and who would automatically assign weight to any statement regardless of how it was procured. The prosecution indicated that it had not decided whether it intended to admit the defendant’s statement into evidence. The court ultimately declined the defense lawyer’s request, finding that the jury selection phase was not the appropriate time to address this issue.

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New York Criminal Lawyers know that Sentencing is one of the most critical aspects of any criminal prosecution. During this phase, the court will consider many different factors and determine the appropriate sentence for the defendant. There are many types of sentences from which a judge can choose, but in some cases, the judge is required to impose certain mandatory minimum sentences. As a recent appellate opinion shows, having a seasoned New York criminal defense lawyer by your side during sentencing can make all of the difference.

The facts of the case are as follows. The defendant was convicted of two counts of violent robbery in November 2010. In 1994, however, the defendant had been convicted of a class B violent felony assault in the first degree. Initially, the defendant was sentenced to probation regarding the 1994 conviction. Following a probation violation, however, he was resentenced to a prison term.

During sentencing regarding the 2010 charge, an issue arose regarding whether his 1994 conviction constituted a predicate violent felony offense for the purpose of sentencing him as a second-time violent felony offender regarding the 2010 convictions. More specifically, the court was asked to decide whether the date of the first sentence imposed for the 1994 crime in lieu of the date of the resentencing imposed for the 1994 crime should be used to determine whether the prior conviction fell within the 10-year look-back period specified in New York’s violent felony offender statute.

One of the most confusing aspects of a New York criminal case for defendants and suspects to navigate is the procedural rules that apply. There are countless procedural rules that apply in criminal cases, which are primarily designed to ensure a fair proceeding and to provide the parties with fair notice about certain decisions, hearings, and events related to the claim. As New York DWI lawyers, we pride ourselves on staying current with procedural changes and ensuring that our clients’ rights are protected at each step of the legal process. Failing to make objections to procedural errors or to hold the prosecution accountable can have dire consequences for a defendant’s rights.In a recent appellate opinion, the defendant was charged with driving while impaired. In response to the charges, the defendant filed a motion to dismiss after his arraignment. The judge presiding over the motion denied the defendant’s request, and the matter proceeded to a bench trial. A bench trial is a trial that is conducted before a judge without a jury. The same judge who presided over the initial motion presided over the bench trial. Ultimately, the judge found the defendant guilty and issued a sentence against him in response to the conviction.

The defendant appealed the conviction. The matter was heard by the same judge who presided over the pretrial motion and the bench trial. Between the time of the conviction and the defendant’s appeal, the judge was elected to the appellate court. The judge reviewed the defendant’s appeal and upheld the conviction. The defendant appealed again, arguing that the judge should have recused himself from the appeal and that the judge’s failure to do so resulted in a reversible error.

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Sentencing is one of the most challenging aspects of any trial, and perhaps the most critical part of the legal process when it comes to how significantly the matter will affect the defendant’s future. At Tilem & Associates, our seasoned New York criminal defense lawyers assist defendants with ensuring that they receive no greater a sentence than they deserve. As a recent appellate opinion demonstrates, having a knowledgeable attorney in your corner can make all of the difference.

In the appeal, the defendant asked the court to review whether there was a sufficient legal basis for imposing consecutive sentences. The defendant was charged with a number of crimes, including burglary in the first degree and murder in the second degree. The defendant was accused of breaking into his ex-girlfriend’s home and stabbing her with a kitchen knife. Although the defendant admitted to causing the victim’s death, he asserted a defense indicating that he was under an extreme emotional disturbance.

Ultimately, the defendant was convicted of two counts of burglary and intentional murder. During sentencing, the prosecution contended that consecutive sentences were appropriate, due to the evidence presented regarding the brutal nature of the murder, which involved the defendant dragging the victim down a flight of stairs and stabbing her at least 38 times. Specifically, the prosecution noted that the defendant caused injuries to the victim on two separate occasions:  when he dragged her out of bed upstairs, and when he inflicted fatal wounds on her downstairs with the knife. In response, the defendant argued that consecutive sentences were inappropriate because the crimes constituted one continuing sequence of events that the defendant had formulated prior to breaking into the victim’s home.

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In New York one may file a motion to vacate a conviction even after an appeal was denied. A person convicted of a criminal offense after a trial who has exhausted his appeals may still file what is commonly referred to as a “440” motion back in the original court where he was convicted.  Many times “440” motions are based upon newly discovered evidence.

Briefly, under CPL 440.10(1)(g), a court may vacate a conviction where new evidence has been discovered after trial, which could  not have been produced by the defendant at the trial and such evidence creates a probability of an outcome more favorable to the defendant.  Furthermore, the defendant must file his motion with due diligence after discovery of the new evidence.

Generally, however, such “new evidence” cannot be mere impeachment evidence.  In other words, such newly discovered evidence cannot simply be evidence that could have impeached the credibility of a prosecution witness.  However, this is not an absolute rule.  A court can vacate a conviction where the “key” prosecution witness lies at trial about prior criminal activity or other bad acts committed by him prior to him testifying.  In cases where courts have vacated convictions on such grounds, the witness who lied was the key or primary witness against the defendant and the case hinged on that witness’ credibility.