CRIMINAL PROCEDURE Category Archives — Page 10 of 23 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

OVER CRIMINALIZATION – Part I, LEADS TO STAGGERING NUMBER OF YOUTH ARRESTS

December 26, 2011 | Jasmine Hernandez

The issue of the over criminalization of our society has been the focus of an increasing amount of media coverage and even led to recent hearings in congress. As discussed in the past in this blog (September 27, 2011 blog), the number of federal criminal statutes has increased to over 4500 and the watering down of some basic protections has led to convictions of people without criminal intent. Now, a recent study reveals that the number of youths being arrested has steadily increased to a staggering 30% of all youths by the time they turn 23 years old. This number while staggering is not surprising in light of the trend toward over criminalization and the increased reliance on police to address problems.

The number itself bears repeating. Thirty percent of youths are arrested by age 23, nearly one third of all youths. This number reflects all youths, not any particular group and is therefore likely higher among boys than girls and among minorities than non-minorities. The explanation however, is a lot more elusive. Certainly, crime nationally is on a protracted decline but it seems the propensity to arrest, for even minor offenses is clearly on the upswing. There is clearly less of a willingness on the part of the police to allow a school or the parents to handle a minor infraction.

As a criminal defense lawyer, involved with the criminal justice system for more than 20 years, I have noticed, a dramatic increase in the willingness of the police to intervene in what used to be matters often left to the school or the parents. Recent examples that I have noticed include a young high school student who “keyed” another student’s car in the high school parking lot is arrested and charged with the felony of Criminal Mischief for damaging property in excess of $250. Another example involves youths who attend parties where underage drinking occurs are arrested rather than being brought to their parents. Often times the parents who hosted the party are arrested themselves, even if they didn’t know about the drinking.

The potential for these arrests as youths to have long lasting effects even into adulthood is a legitimate fear as youths with arrests and convictions can lose valuable civil rights, the ability to obtain professional licenses and the ability to get jobs. The study which led to the report concluded that risk factors such as “being poor, struggling in school and having a difficult home” life were all factors that increased the likelihood of a youth being arrested.

As we discuss in a future blog, the consequences of an arrest, even if it doesn’t result in a conviction can be devastating to a young person and his or her future plans. The societal issues that have created this problem need to be dealt with. However, more immediately, if you or a loved one has been arrested for an offense you should immediately obtain experienced legal representation who is in a position to explain the process and the potential consequences whether or not a conviction results.

DRUG COURT CONTROVERSY

December 12, 2011 | Jasmine Hernandez

As discussed in our previous blog the Greenburgh Drug Court was so out of control that Court officials eventually had to transfer all of the cases out of the Court to protect the rights of those participating in its Drug Court. As it turns out, Drug Courts in general have become controversial and several studies that have been released this year raise several areas of concern for the people convicted of drug offenses who participate in these programs. Many of the concerns raised are related to the issues that derailed the Greenburgh Drug Court.

Generally, Drug Courts are a type of problem solving Court a new breed of specialized Court that attempts to solve a community problem such as drug abuse, domestic violence or guns. In the case of Drug Courts, participants, individuals arrested for drug related or drug motivated, non-violent crimes are asked to plead guilty in return for entering the Drug Court system where a “carrot and stick” approach will be used to get the participant to deal with their addiction. Participants who are successful are rewarded with such things as applause, certificates, praise and ultimately dismissal of their charges. Participants who are not successful are punished by being required to write essays, do community service, attend extra court sessions and in some cases lengthy jail sentences.

In a series of reports issued this year and discussed in a National Association of Criminal Defense Lawyers magazine article, the efficacy of the drug court model, as well as its expense and denigration of basic constitutional principles are called into question. In the Drug Court model used most often, drug court participants are often forced to plead guilty to crimes more severe than they might without Drug Court in the hopes that they will be able to get the charges dismissed after completing the Drug court program. In this model, as a cost of entering Drug Court, broad waivers are required, contracts and releases are signed and guilty pleas are entered giving the Court the “stick” to punish those who fail.

GREENBURGH DRUG COURT VIOLATES CONSTITUTIONAL RIGHTS Part-1

December 7, 2011 | Tilem & Associates

The Office of Court Administration, transferred all of the cases out of the Greenburgh Drug Court this week in an apparent response to complaints made by Tilem & Campbell partner, Peter H. Tilem. The problems began when a client of Tilem & Campbell, unhappy with her representation in the Town of Greenburgh Drug Court hired the firm to represent her. When Mr. Tilem, a 20 year veteran of the legal profession, and a member of the bar of New York and Connecticut as well as the United States Supreme Court and numerous federal courts initially appeared in Court he was told that he was not permitted to practice before the Greenburgh Drug court. From that moment the situation got worse.
Mr. Tilem observed that this Court was violating numerous constitutional rights of his client and potentially others and reported the conduct to the Deputy Chief Administrative Judge of New York State. After only a couple of hours after the report was made Judge Friedman one of the two judges in the Greenburgh Drug court agreed to comply with the suggestions of the supervising judge. However, when Mr, Tilem appeared next time before Judge Forster, Judge Forster steadfastly refused to comply with basic due process requirements as suggested by the supervising judge. Judge Forster continued to attempt to keep Mr. Tilem from representing his client and permitted the drug court “team” a group of non-judges to vote on matters that can only be decided by a judge such as the issues of bail or sentencing.
Judge Forster told Mr. Tilem and a reporter for the New York Law Journal who wrote a front page article about the matter that because the Court was funded through a federal grant and not through the Court system that they could have their own rules and that the supervising judges were not their supervisors. Judge Forster obviously learned differently when Judge Alan D. Scheinkman, the Administrative Judge for the Ninth Judicial District transferred all of the cases out of the Greenburgh Drug Court to the White Plains Drug Court and leaving Judges Forster and Friedman with no Drug Court cases.
Prior to the actions of Judge Scheinkman, Tilem & Campbell filed an Article 78 seeking to restrain Judge Forster and members of the Drug Court “Team” from continuing a list of illegal activities and from sentencing the firm’s client. On November 25, 2011, an acting Justice of the Westchester Supreme Court signed an order barring Judge Forster from sentencing the Tilem & Campbell client and from continuing other illegal practices that were going on in the Court.
Judge Forster had threatened to give the client one year in the Westchester County Jail for a shoplifting case, a Petit Larceny of less than $250 from a TJ MAXX in the Town of Greenburgh. It was only after Mr. Tilem pointed out that the Court could not conduct the sentencing because Mr. Tilem had not had the required 24 hours to review the pre-sentence report from the Department of Probation, that the sentencing was adjourned giving Tilem & Campbell enough time to file the Article 78 and get the restraining order.
Yesterday, a Judge in the Westchester County Court reversed Judge Forster on the issue of bail. Judge Forster had previously remanded the client, meaning that she was held without bail. Yesterday, after an extensive bail hearing County Court Judge John P. Colangelo agreed that the client should be released on bail.
“Other Judges ruled against Judge Forster every step of the way,” according to Mr. Tilem. “The Supreme Court obviously decided that there was enough evidence of impropriety to issue a stay, an extraordinary remedy. In addition, she was reversed on bail and had her calendar taken away, “according to Mr. Tilem.”

Driving While Intoxicated Per Se In Violation of VTL 1192(2): Sufficiency of Information: Information Must Contain First-Hand, Non-Hearsay Evidence Regarding Breath Test Result

October 7, 2011 | Tilem & Associates

In New York there are two different Driving While Intoxicated charges. Driving While Intoxicated under VTL 1192(3) is based upon the officer’s opinion that a motorist is intoxicated. This charge has nothing to do with one’s Blood Alcohol Concentration (BAC) and is referred to as common law DWI. The other Driving While Intoxicated charge in New York is based solely upon one’s BAC being at or above .08 as determined by a chemical test such as a breathalyzer type test and is found at VTL 1192(2).
When one is charged under VTL 1192(2) based upon a BAC of .08 or above, the allegation of a BAC of .08 or above must be supported by non-hearsay evidence. What is called the accusatory instrument will be deemed insufficient if the allegation regarding the .08 BAC is not supported by non-hearsay evidence. In other words, it is insufficient for one officer to allege that the defendant’s BAC was .08 unless that officer administered the test or witnessed the test.
For example, in People v Bonner (Lisa), 31 Misc. 3d 142A (App. Term 2nd Dept. 2011), the Court found the Information (accusatory instrument) insufficient where Officer
Montemurro alleged that defendant’s breath test result revealed a .16% BAC but he did not state that he had administered the test, or observed the test being conducted. Furthermore, the Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result included the signature of another officer who had conducted the breathalyzer test. Further, the printout that was signed by another officer did not attest to any personal knowledge nor was it properly verified.
Accordingly, the Court found that the lower court should have granted defendant’s motion to dismiss because “[t]he information did not set forth nonhearsay allegations which, if true, established every element, and defendant’s commission thereof, of the offense charged.” Id.

NEW YORK POST ARTICLE – SOMETIMES VICTIMS NEED LAWYERS ALSO

September 28, 2011 | Jasmine Hernandez

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.

WALL STREET JOURNAL ARTICLE FOCUSES ATTENTION ON OVERCRIMINALIZATION IN FEDERAL LAW

September 27, 2011 | Jasmine Hernandez

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.

NEW YORK SPEEDY TRIAL – Part IV – The Defendant’s Consent to an Adjournment Must be Clear.

August 27, 2011 | Jasmine Hernandez

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.

NEW YORK’s ASSAULT WEAPON BAN – Part III

August 20, 2011 | Jasmine Hernandez

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.

NEW YORK’s ASSAULT WEAPON BAN – Part II

August 15, 2011 | Jasmine Hernandez

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.)

NEW YORK ASSAULT WEAPON BAN ALIVE AND WELL – PART I

August 12, 2011 | Jasmine Hernandez

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.