CRIMINAL PROCEDURE Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

The Limits of Appeal When Objections Are Not Raised at Trial

June 20, 2025 | Peter Howard Tilem

In People v. Bacon, the New York Court of Appeals reaffirmed a long-standing rule: if your defense lawyer fails to raise a specific constitutional objection during trial, you may lose the ability to argue that issue on appeal. This decision is a clear warning to anyone charged with a serious crime—the preservation of your rights depends heavily on the conduct and awareness of your attorney during every stage of trial. It is essential to use experienced counsel when facing charges in New York.

What Happened in This Case

The case arose from a robbery and assault in Brooklyn. Two victims gave statements to police officers at the scene. One of them, while being treated in an ambulance, described the attackers, including the defendant. The prosecution did not call either victim to testify at trial. Instead, two police officers testified about what the victims had allegedly said, including identifying information about the defendant.

During the trial, defense counsel made only one specific objection to the officers’ testimony: a hearsay objection to a statement by one victim about what the other had said. The court sustained that limited objection. However, no constitutional objection was made under the Confrontation Clause, which protects your right to cross-examine the witnesses against you.

After the prosecution rested, the defense moved for a trial order of dismissal, arguing that the People’s evidence was not sufficient. Counsel mentioned that the jury could not evaluate the female victim’s physical or mental condition, and noted there had been no chance to cross-examine her. Still, the motion focused solely on the quality and sufficiency of the evidence, not on a constitutional violation.

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.

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

January 2, 2025 | 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.

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.

What Happens When a Judge Exerts Too Much Influence During Trial?

August 19, 2024 | Peter Howard Tilem

In criminal trials, juries must reach unanimous verdicts, which means all jurors must find a defendant guilty in order for the defendant to receive a guilty verdict. In a perfect world, jurors are able to deliberate and come to a verdict without the influence of the judge’s opinion regarding the case’s outcome. In a recent New York case, however, things took a turn when the higher court found that the trial court judge influenced jury members too heavily during their deliberations.

In the case before the Appellate Division, Second Department, the State charged the defendant with conspiracy and criminal possession of a controlled substance. The defendant pled not guilty, and his case went to trial. After both sides presented evidence, the jury went back to deliberate.

Jury Deliberations

After two days of deliberation, the jury submitted a note to the judge indicating that “after intense discussion,” they were unable to reach a unanimous decision. The judge advised the jury to try again, and after one more day, the jury again submitted a note that they were unable to reach a decision. Again, the judge advised the jury to keep trying. On the fourth day of deliberations, the jury again submitted a note indicating that the members were “hopelessly deadlocked.”