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

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.”

New York Case Highlights the Importance of Experience with Criminal Procedure

August 12, 2024 | Peter Howard Tilem

As we have written extensively, discovery is a large part of the criminal process. In a recent case before a New York appeals court, the parties asked the court to address whether certain changes to New York procedural standards, that is the new discovery laws, affected cases that were already in motion prior to the date the changes took effect. The case provides an interesting look at how very procedural and mechanical problems can end up having a big impact in a defendant’s proceedings.

Changes to Trial Procedure in New York

On January 1, 2020, New York made a technical change to its laws about preparing for trial. The change said that the State must file a “certificate of compliance” with the state’s newly enacted discovery rules. “Discovery” is the exchange of documents between parties in preparation for trial, and the 2020 changes essentially sought to make sure the State was in compliance with these new discovery rules prior to stating that it was ready to move forward to trial.

In the case before New York’s highest court, the New York Court of Appeals, the parties went to trial on January 27, 2020. On day one of trial, the State said it was prepared to move forward, even though it hadn’t filed its certificate of compliance under the new law. The defendant asked the court to dismiss the indictment because the State failed to file this certificate. The defendant’s case began, however, before the January 1, 2020 changes went into effect. Did the State still have to comply with the new law, even though it wasn’t in effect when the defendant was arraigned?

Show-Ups in New York Criminal Cases: What You Need to Know

July 11, 2024 | Peter Howard Tilem

In criminal law, a “show-up” is the process through which a witness and a suspect are together face-to-face for the purpose of the witness’s ability to identify whether the suspect indeed committed the crime. A “Show-Up” identification is by its very nature suggestive, as opposed to a line-up identification in which a victim or witness has the opportunity to choose from a group of 6 individuals. Therefore rules are in place that govern how and when a show-up can be employed. In a recent case before a New York court, the defendant argued that the show-up in his case was overly suggestive and therefore unfair. The court reviewed the defendant’s appeal and ultimately disagreed with his argument, affirming his original robbery conviction in the process.

Case Law Around Show-Ups

According to New York case law, courts generally prefer procedures other than show-ups, given that it can be suggestive for a witness to make an identification while face to face with a suspect. However, if there are emergency circumstances, a show-up is permissible. The show-up is also permissible if the witness can view the suspect close to where the crime occurred and close to the time at which the crime occurred.

A June 2024 Case

In the June 2024 case, the defendant argued his show-up was prejudicial. In this case, police officers responded to a robbery committed by two individuals. One individual immediately fled to a nearby house, and officers found and arrested him immediately. In looking for the second individual, the officers drove a witness through the neighborhood to see if he could make any kind of identification. Eventually, the officers and the witness returned to the house, where additional officers had apprehended a second suspect. Upon seeing the second suspect, the witness immediately identified him as the person who committed the robbery. Officers then arrested and charged the defendant with robbery.

New York Defendant Succeeds in Criminal Appeal on Grounds that Prosecution Failed to Offer Explanation for Unreadiness at Trial

April 24, 2024 | Peter Howard Tilem

As we have discussed often, New York’s speedy trial statute can be a defendant’s best friend. A March 2024 case before a New York appellate court emphasized the importance of coming to court prepared for trial when the court expects you to be prepared for trial. In this particular case, the prosecution filed a “statement of readiness” prior to a trial for reckless driving, only to later confess it was not ready to move forward and ask for more time to prepare for trial. Once the prosecution asked for extensions (without any explanation) three times in a row, the trial court dismissed the case. On appeal, the higher court decided this was the correct ruling, given that the state declared it was ready and then, without reason, sought an extension three different times.

The Prosecution’s Extensions

The defendant was arrested and charged with reckless driving in early December 2017. A couple of weeks later, when it became apparent the case was going to go to trial, the State filed what is called a “certificate of readiness,” declaring to the court that it was ready for trial. The State and the defendant appeared for the first day of trial on September 5, 2018, at which point the State asked for a 12-day extension. The parties reappeared on October 18, at which time the State again admitted it was not ready for trial. The court extended the trial for a third time, and again, on November 28, the State told the court it was unprepared.

Each time, the State failed to offer any reason that it needed an extension. By the time the parties appeared for the fourth time on February 4, 2018, 420 days had passed between the defendant’s indictment and the first day of trial. The defendant’s attorney filed a motion to dismiss, which the trial court denied. The defendant appealed, the higher court reversed, and the State again appealed. The case then came before the New York Court of Appeals.

New York Court Grants Defendant’s Speedy Trial Motion to Dismiss in Opinion Highlighting Prosecution’s Unpreparedness for Trial

February 5, 2024 | Peter Howard Tilem

Recently, the New York Court of Appeals, New York’s highest court sided with a defendant who was originally charged with and convicted of harassment in the second degree. in a very important speedy trial case that keeps prosecutors honest about complying with New York discovery laws. After being found guilty, the defendant filed a speedy trial motion to dismiss, arguing that the prosecution incorrectly advised the court it was ready for trial before it had turned over all of the documents it was required to disclose as discovery. Ultimately, the court agreed with the defendant, granting his motion to dismiss.

Facts of the Case

According to the opinion, police officers first arrested the defendant in this case after he became physically aggressive toward his mom. The State charged him with harassment in the second degree, and the defendant pleaded not guilty. The court subsequently scheduled the case for trial several months down the line. Prior to trial, as is standard in New York courts, both the prosecution and the defense appeared for several hearings to report in on the progress of trial preparation.

Also, in the state of New York, the prosecution in a criminal case is always required to file something called a “certificate of compliance” with the court. This certificate advises the court that the prosecution has provided all of the necessary “discovery” to the defense, meaning all of the relevant documents that the defense has requested as part of the trial preparation.

Understanding the Spectrum of Felonies in New York: A Comprehensive Guide

October 23, 2023 | Peter Howard Tilem

Introduction:

In the intricate landscape of New York criminal defense, felonies, as opposed to misdemeanors, stand out as serious offenses, and New York classifies them into distinct categories based on their severity. From Class A to Class E felonies, each level represents a different degree of criminal activity, carrying varying degrees of punishment. In this guide, we’ll delve into the different classes of felonies in New York, shedding light on their definitions and the potential consequences they entail.

Class A Felony:

New York Court Denies Defendant Relief Under Statute Guaranteeing Right to Speedy Trial

July 13, 2022 | Tilem & Associates

We have discussed in past blogs how New York’s speedy trial statute can be effectively used in many criminal cases. In a recent case coming out of a New York court, the defendant appealed convictions for three misdemeanor counts and three traffic infractions that had arisen in 2014. On appeal, the defendant argued that an amendment to New York’s speedy trial statute should apply retroactively; thus, he was entitled to a dismissal. The court of appeals considered the defendant’s argument but ultimately disagreed, explaining that the statute in question did not apply to the offense for which the defendant was seeking relief.

Facts of the Case

According to the opinion, approximately eight years ago, the defendant was criminally charged based on traffic violations. 17 months after being charged, the defendant moved to dismiss the charges based on a New York statute that guarantees defendants the right to a speedy trial. The statute includes provisions stating that if a defendant is subject to unreasonable delay because the prosecution is not ready for trial, that defendant can use this statute to argue for a dismissal. At the time of his motion to dismiss, however, the statute did not apply to defendants charged with traffic infractions. Thus, the defendant’s argument was unsuccessful.

In 2019, however, the legislature changed the language of the New York statute, explicitly including defendants charged with traffic infractions as individuals eligible for dismissal because of unreasonable prosecutorial delay. Upon hearing this news, the defendant again brought up this argument, stating that now he was in the class of people that could benefit from the statute. The court of appeals was thus faced with the decision of whether or not the defendant’s case could indeed be dismissed because of the statute.

New York Defendant Denied Right to Jury Trial in Recent Criminal Case

July 5, 2022 | Peter Howard Tilem

In a recent New York sexual abuse case, the defendant unsuccessfully argued that he had the right to a jury trial under the U.S. Constitution. After being charged with and several sex crimes, the defendant asked for a jury trial so that he could get a fair hearing before potentially being found guilty, and thus being found deportable back to his country of origin. Because the court of appeals disagreed with the defendant’s main argument, it ultimately denied the appeal.

Facts of the Case

According to the opinion, an undercover police officer was standing on a train platform in June 2015 when he observed the defendant standing nearby. The defendant seemed to be masturbating, although the officer was not entirely certain what was happening at the time. A few minutes later, the defendant pushed himself onto a nearby woman, then ran away to board a train. Immediately, the defendant pushed himself onto a second woman.

The defendant was charged with two counts of forcible touching, two counts of sexual abuse, and one count of public lewdness. Because the defendant was not a U.S. citizen, he faced the threat of potential deportation if convicted of the crimes. The crimes were Class B misdemeanors, which means that the defendant did not have the right to a jury trial under state law – he could only secure a jury trial if the misdemeanors had been Class A.

Court Grants Motion to Suppress ID in Recent New York Burglary Case

February 22, 2022 | Peter Howard Tilem

Recently, a state appellate court issued an opinion in a New York burglary case discussing the defendant’s motion to suppress evidence of an identification made by a law enforcement officer. Ultimately, the court concluded that the procedures used by police to conduct the identification were “unduly suggestive,” agreeing with the defendant. Thus, the court reversed the lower court’s ruling, granted the defendant’s motion to suppress, and ordered a new trial. In the subsequent trial, the prosecution will not be permitted to use evidence of the complaining witness’s identification unless there is an independent source for the identification.

The Facts of the Case

According to the court’s written opinion, the defendant was arrested for residential burglary. During the investigation, without prompting from the police, the complaining witness found a Facebook picture of the defendant and told police that’s who had burglarized their home. Based on this information, police officers located an old arrest photo of the defendant and asked the complaining witness if it was the same person. The complaining witness made a positive identification.

The defendant filed a pre-trial motion to suppress the identification testimony, claiming it was unduly suggestive. The trial court disagreed, denying the defendant’s motion. The trial court denied the defendant’s motion on the basis that any suggestiveness in the identification procedure was not the result of any improper conduct of law enforcement. The defendant was convicted by a jury. He then appealed.

A POLICE OFFICER RESPONDS TO OUR LAST BLOG ABOUT HANDCUFFING A LICENSED GUN OWNER

August 13, 2021 | Peter Howard Tilem

A very close friend of mine who is a retired police officer wrote me a very interesting response to our last blog about whether it is lawful to handcuff a licensed gun owner while an officer verifies the validity and authenticity of a gun license. I know this retired officer to be extremely pro Second Amendment and so it was so interesting to hear from an actual police officer who has had to deal with these issues. The two main take-aways are, in my opinion, that there is a complete lack of training (or at least there was back then) on Second Amendment issues and so much of what happens on the street could be remedied if people (including officers) just act nicely and use their words. I know this particular officer and I know that he is not a bully and rather is very good at obtaining compliance with his words. As he points out, if he was a jack a$$, he probably would me in the law books also. I have reprinted his comments below, verbatim except to remove identifying information.

I just read your post about the Connecticut incident. In my rookie year, I was sent to a house on a report of the homeowner mowing his grass while possessing a firearm in an open carry manner. The complaint was the next-door neighbor who had multiple disputes with the subject over the complainant’s dog.

One month prior, the dog got out and almost bit the man who was mowing the grass while he was unloading groceries from his car.