Articles Posted in CRIMINAL PROCEDURE

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As criminal defense lawyers most of the time we represent the rights of the accused but sometimes we are called upon to represents the right of a victim. In the typical case, the victim report a crime to the police, the police investigate, make an arrest and the case is referred to the District Attorney’s Office. The victim needs no lawyer because the prosecutor will prosecute the case and often assist the victim in getting compensation from the perpetrator or the Crime Victim’s Assistance Fund.

However, all too often, especially in New York City, criminal cases are not handled in the typical way leaving victim’s to fend for themselves. In a recent case handled by this office and as reported in the New York Post yesterday, an individual who was ripped off by a car dealership and whose signature was forged on loan documents for a car was repeatedly denied the right to make a police report by the New York City Police Department. With no police report, no investigation and no arrest its as if the crime did not occur and the victim must deal with the consequences, in this case a monthly car loan bill that he didn’t bargain for, by himself.

By getting an experience criminal defense lawyer involved we were able to file complaints, with the Bank that issued the loan, the New York State Attorney General’s Office, credit reporting agencies such as TRW, Experian and Equifax and the United States Federal Trade Commission. In addition, we are working on getting the loan rescinded. As a result of our work the Bank has already terminated its relationship with the car dealership which has more than 40 complaints against it to the New York Department of Consumer Affairs.

The practice of not taking police reports is unfortunate but also wide spread as has been reported on several occasions by the New York Post and other Newspapers. It appears to be a result of a combination of laziness, sometimes ignorance and is also a symptom of how the Police Department tracks crime statistics. Simply put, if there is no police report the crime didn’t happen so crime must be going down. But the practice endangers the public and causes inconvenience and expense for the victims.

Here is a dealership that has over 40 complaints against it and rather than investigating what is happening, the police allow this dealership to continue to rip people off. Sometimes, the consequences of not taking a report or investigating a crime can be even more severe. Its at those times that an experienced New York Criminal defense lawyer can help.

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An article in today’s Wall Street Journal entitled “As Federal Crime List Grows, Threshold of Guilt Declines” focuses public attention on two trends that has long been followed by Federal Criminal Defense lawyers and has raised concerns among civil rights advocates and attorneys. The first trend, involving the rapid and uncontrolled growth of federal crimes (as distinguished from state crimes like murder, rape, assault, etc) has seen the number of federal crimes rise from just 20 to about 4500. The other trend is the erosion of the proof necessary to prove many federal crimes and send someone to prison.

The uncontrolled growth of federal criminal statutes has resulted in many individuals who are clearly not criminals getting caught up in the criminal justice systems for acts that they were clearly not aware constituted crimes. In legal thought there are generally considered two types of crimes. Crimes that are called in Latin malum in se, meaning wrong in itself are crimes that are generally obvious or inherently wrong or evil such as murder, stealing, assault or rape. The other type of crimes are called malum prohibitum in Latin, meaning wrong as prohibited are those crimes which are wrong only because they are prohibited by a statute such as gun possession, drug possession, copy write infringement, tax evasion or illegal immigration.

Since most crimes that are malum in se crimes, the obvious ones, have already been illegal, the new crimes are the malum prohibitum crimes, the crimes that are not so obvious. To make matters worse, according to the Wall Street Journal article, federal criminal offenses are not limited to one section of federal law but are scattered among 42 of the 51 titles of the United States Code. That means there is no one place where you can look to see if your acts are illegal. So the combination of having non obvious criminal offenses scattered all around the law results in frequent accidental transgressions of sometimes serious laws.

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As we have discussed in previous blogs New York has a speedy trial statute than when used by a knowledgeable and experienced criminal defense lawyer can often help get a case dismissed or effect a better plea bargain. Often, when litigation begins over whether the “speedy trial clock” has run out on the prosecution, the prosecutor will try to claim that certain adjournments are excludeable from speedy trial calculations because the defendant had consented to the adjournment.

Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent. People v. Smith, 82 N.Y.2d 676, 678 (N.Y. 1993).

Defendant’s Failure to Object to Adjournment Not Consent: A mere failure by defense counsel to object to an adjournment does not constitute “consent” within the meaning of CPL 30.30 (4) (b). People v Liotta (79 NY2d 841, 843),
Defendant’s Agreeing to a New Date or Notice of a New Date Not Consent:

Defense counsel’s reply “That’s fine” is not deemed consent to an adjournment where court indicated it would notify the parties of the date by mail. “That’s fine” was simply an agreement to the method court would use to notify parties – it was not consent to adjournment. People v Brown, 69 A.D.3d 871 (2nd Dept. 2010) see also People v. Nunez, 47 A.D.3d 545 (1st Dept. 2008)(“Although defense counsel said “fine” in response to the trial court’s suggestion of August 21 as an adjourned date, in context this amounted to a representation that such date was not inconvenient, but did not imply consent.”).

Defense Counsel Participating in Picking New Date Not Consent to Adjournment
In People v D.D., the court found that counsel’s response to the court’s questions about a convenient adjourn date did not qualify as defense counsel actively participating in setting that date such that consent to adjourn could be inferred and the time would be subject to exclusion. 2010 NY Slip Op 50837U, 4, 27 Misc. 3d 1221A (FN 2)(N.Y. City Crim. Ct. 2010).

In addition, a delay caused by plea negotiations is only excludable if the defense requested or consented to the delay. People v. Manning, 52 A.D.3d 1295 (4th Dept. 2008).

A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent. CPL 30.30(4)(b). Therefore, unless an unrepresented defendant is specifically advised of his right to a speedy trial and the consequences of his consent he may not be deemed to have consented even if he indicates that he is consenting to an adjournment.

In the end, It is the People’s burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged. Where the People fail to satisfy this primary obligation, they must assume responsibility for the delay that follows the adjournment. People v. Cortes, 80 N.Y.2d 201, 215-216 (N.Y. 1992) see also People v. Reyes (Carlos), 24 Misc. 3d 51, 55 (N.Y. App. Term 2009)(“As the People failed to satisfy their burden of creating a record establishing that the period from August 10, 2005, to September 28, 2005, is excludeable on the basis of consent, and as they have established no other ground for its exclusion, it must be charged to them.” In other words if there is an ambiguity in the record, the People will be charged for the adjournment.

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In the first two parts in our series of blogs on New York’s assault weapon ban we discussed the absolute silliness in banning firearms based upon certain cosmetic features. Now we discuss the most troubling part of the ban from the perspective of the citizen who finds himself charged under New York law with possessing an Assault Weapon or the experienced criminal defense lawyer who takes on the responsibility of defending the citizen.

Penalties

Generally, possession of a so called “assault weapon” in New York is a violation of Criminal Possession of a Weapon in the Third Degree under New York Penal Law sec 265.02 (7). Possession of a “Large Capacity Ammunition Feeding Device” is a violation of Penal Law sec 265.02 (8). Both are class “D” violent felonies in New York and are therefore punishable by a definite sentence of up to seven years in prison. A person charged under this section could get a sentence of Probation in lieu of a state prison sentence if the judge thought it was appropriate. In other words, prison is not mandatory.

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In Part I in our series of blogs covering New York’s so called “assault weapon” ban we began to highlight some of the most troubling parts of a ban on certain weapons based purely on cosmetic features. At Tilem & Campbell we handle a large number of gun and weapons cases and so are in a unique position to see how some of these laws are applied. We continue with other troubling provisions of New York’s assault weapon ban.

One of the most troubling features of the ban is the ban on flash suppressors. The fact is that there are many devices that attach to the barrel of a rifle and which look alike. There is no definition in the New York Penal sec 265.00 of a flash suppressor. Prior to 2004 when the Federal Assault Weapon ban expired the Federal Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) was responsible for characterizing the various devices that can be attached to the barrel of a gun. Since the federal law expired the BATFE no longer will do that. So manufacturers now attach devices to the barrel of rifles that look like flash suppressors but which manufacturers classify as “muzzle brakes”. These devices look like flash suppressors but are seemingly legal under New York law since the law specifically bans flash suppressors. The problem is that New York does not provide any definition of flash suppressor (or muzzle brake) and the difference can mean the difference between not committing any criminal offense and doing 15 years.

In addition, to the ban on firearms containing certain random cosmetic features, the Federal Assault Weapon Ban also banned detachable magazines that held more than 10 rounds. The ban on detachable magazines similarly expired under Federal Law but still exists in some states. For example New York has a ban on magazines that can hold more than 10 rounds and New Jersey has a ban on magazines that can hold more than 15 rounds. (Since these numbers were selected at random there is no uniformity among the various states that imposed their own ban.)

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The Assault Weapon Ban which was passed as both a federal law and State law in many jurisdictions after a swell of media hysteria and which has since elapsed as a Federal ban is still alive and well in New York and New Jersey and a recent amendment to New York law has left a dangerous trap for innocent New Yorkers. Peter Tilem, the senior partner at Tilem & Campbell and former firearms trafficking prosecutor in the City of New York has dealt with a number of these cases as both a prosecutor and a defense attorney.

The Federal Assault Weapon Ban which was passed as a 10 year ban on “Assault Weapons” expired in 2004 after it was found to be absolutely useless. The original ban which is still in effect in New York banned rifles purely based upon cosmetic features. Since automatic weapons were already illegal, the so called assault weapon ban prohibited semi-automatic weapons that had two or more cosmetic features that were deemed to make them “Assault Weapons” the list of cosmetic features includes: a pistol grip, folding or collapsible stock, bayonet lug, flash suppressor and believe it or not if it was a pistol, the weight of the pistol. If the pistol weighed more than 50 ounces that was one of the two features that would make it an “Assault Weapon”. (Up until the hysteria surrounding the Assault Weapon Ban we were told that it was the small easily concealable pistols the should be banned.) In addition, certain guns were banned by name.

It should be noted that in New York but not New Jersey if you possessed one of these guns prior to September 14, 1994 you could continue to own the so called assault weapon. This provision made the law largely unenforceable since the prosecutor could not prove, if the gun was manufactured before September 14, 1994 when it was first possessed.

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Aggravated Harassment in the Second Degree defined under New York Penal Law 240.30, makes it a class “A” misdemeanor, punishable by up to one year in jail to basically cause a communication to occur with another person by mail or telephone or other electronic means in a manner likely to cause to alarm or annoyance if that communication is made with the intent to annoy, harass, alarm or threaten a person. When the New York State Legislature talks about communication what they are really talking about is speech. New York State is attempting to regulate what you say and that is problematic in light of our Constitution’s First Amendment protection of speech; even unpopular or disagreeable speech.

In a decision issued earlier this week and has huge implications for New York criminal defense lawyers, Judge Valerie Alexander ruled that Penal Law sections 240.30 (1) and (2) were unconstitutional in that they were vague and over broad. She ruled that this Aggravated Harassment statute is analogous to one found unconstitutional by New York’s highest Court in 1989 and that Federal decisions have agreed that the statute is unconstitutional.

Penal Law section 240.30 clearly attempts to punish particular speech. The issue of what speech may be regulated by law in light of the Constitutional protections associated with speech has been the subject of numerous United States Supreme Court decisions. While not an absolute right (for example in might be permissible top punish someone for yelling fire in a crowded theater), freedom of speech is a fundamental right worthy of substantial protection. The New York State legislature made no attempt to distinguish in the statute between protected speech and unprotected speech or define a line that may not be crossed. Rather New York attempted to punish all speech that was annoying or alarming. Clearly, that is unconstitutional. The judge indicated that a criminal prohibition against communicating in an alarming or annoying way is by its nature facially unconstitutional.

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Capping an unbelievable three weeks, New York Criminal Defense Firm, Tilem & Campbell plea bargained three cases with truly remarkable results. While, Tilem & Campbell has successfully gone to trial and won many criminal cases, it does not always take a trial to get a successful outcome in a criminal case. With experience and expertise the lawyers at Tilem & Campbell are often able to negotiate truly spectacular deals for their clients. Having two former prosecutors obviously helps.

In the first case resolved in late June, our client was charged with shooting at an individual with an illegal handgun. The client was charged with felony Reckless Endangerment and Criminal Possession of a Weapon in the Second Degree, both felonies. On the Weapons charge the client faced a prison sentence of 15 years in prison with a mandatory minimum of 3 ½ years in prison. On the Reckless Endangerment in the first degree charge the client faced up to 7 years in prison. After months of litigation and negotiation, the client pled guilty at the end of June to a class “B” misdemeanor with no jail, no probation and only a conditional discharge. The “B” misdemeanor the client pled guilty to was an Attempt to Commit the Crime of Criminal Possession of a Weapon in the Fourth Degree.

In the second case resolved just two days ago, the client was charged with the felony of possessing 4 illegal guns in Rennselaer County, New York. In New York, possession of 3 or more illegal guns elevates the crime to a class “D” felony, punishable by up to 7 years in prison. The firm was able to negotiate a plea bargain for this client in which he pled guilty to a “B” misdemeanor and again received no jail, no fine, no probation but just a conditional discharge. In addition, the Judge signed a “Certificate of Relief From Civil Disabilities” which is a certificate that relieves the holder of all bars to employment that may be imposed by law as a result of a criminal conviction.

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The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor’s office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:

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The Endangering the Welfare of a Child case discussed in today’s New York Post article, demonstrates how experienced criminal defense lawyers need to handle complex criminal cases. The case brought against a school bus matron back in 2006 alleges that the bus matron failed to step in and protect a then 8 year old autistic child that was banging his head against the school bus window and that the bus matron taunted the child. The law firm of Tilem & Campbell, representing the bus matron was able to get the case dismissed soon after the charges were filed in 2006 because the lawyers were able to show to a criminal court judge that the evidence in the case was obtained by illegal eavesdropping. The Appellate Term of the New York Supreme Court eventually overturned the criminal court judge and had the charges were reinstated.

After the case was sent back to the criminal court, Tilem & Campbell, undeterred, again began to vigorously fight the charges. This time in 2009 a new motion was made to dismiss based upon violation of the bus matron’s statutory speedy trial rights. After litigation on that issue a different criminal court judge than had dismissed it the first time, dismissed the case a second time. The Kings County District Attorney’s Office made a motion to reargue the dismissal in the criminal court and after that motion was denied the District Attorney filed its second appeal in the case. Last week, the Appellate Term of the Supreme Court again reversed the dismissal and reinstated the charges.

The case, now more than five years old, will continue to wind its way through the Kings County Criminal Court and no doubt additional motions will be made. The case may even be dismissed a third time. In addition, the lawyers at Tilem & Campbell are planning an appeal to New York’s highest court, the New York Court of Appeals in an attempt to get dismissal reinstated by a higher court.

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