CRIMINAL PROCEDURE Category Archives — Page 11 of 23 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

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.

SECOND DEGREE AGGRAVATED HARASSMENT – SPEECH HAS CONSTITUTIONAL PROTECTION

July 27, 2011 | Jasmine Hernandez

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.

NEW YORK CRIMINAL DEFENSE FIRM SECURES THREE EXTRAORDINARY PLEA DEALS IN THREE WEEKS

July 15, 2011 | Tilem & Associates

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.

DSK Rape Case Highlights Important Issue that Few Prosecutors Take Seriously – BRADY MATERIAL

July 1, 2011 | Jasmine Hernandez

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:

NEW YORK CRIMINAL DEFENSE LAWYER PETER TILEM QUOTED IN TODAY’S NEW YORK POST HAS CASE DISMISSED TWICE AND REVERSED TWICE

June 29, 2011 | Tilem & Associates

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.

NEW YORK SPEEDY TRIAL – Part 2 – Trial Readiness not necessarily Trial

June 15, 2011 | Jasmine Hernandez

As we noted in our previous blog if you are charged with any crime in New York, other than a homicide, or any penal law non-criminal offense you are entitled to a speedy trial under New York Criminal Procedure Law sec 30.30. However, the statute is really misnamed a “speedy trial” statute because it has very little to do with speedy trial but rather has everything to do with “speedy readiness.” In other words NY CPL 30.30 does not require that the trial start within the specified period but only that the People (the prosecutor) announce their readiness for trial within the speedy trial period. This reality sets up a game, all too common in some counties where the People announce their readiness only when the case cannot possible go to trial and are not ready when the case is in Court and the matter is ready to be tried. See for example the “Bus Matron case” which was handled by this office and was dismissed after the Kings County District Attorney’s Office attempted to play this game. To satisfy the Criminal Procedure Law the prosecutor only need state his readiness for trial. This can be done in several ways.

People’s Communication of Readiness – Open Court Statement or Statement of Readiness in Writing:

For the People to be “ready” for trial in accordance with CPL 30.30, there “must be a communication of readiness” by the prosecutor which is made on the record in the trial Court. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).

NEW YORK SPEEDY TRIAL – Part 3 – What must the prosecution do to validly answer ready for trial

June 11, 2011 | Jasmine Hernandez

We have been writing about the importance of New York’s Speedy Trial statute to experienced criminal defense lawyers and how we have had serious cases dismissed based upon the denial of a speedy trial. In our previous blog, we discussed the fact that New York’s Speedy Trial statute is not in fact a speedy trial statute but rather a speedy readiness statute that is satisfied once the prosecution announces their readiness for trial and that fact that this reality sets up a game where prosecutors announce readiness only when they do not expect the case to go to trial and then mysteriously are not ready when the case can go to trial. But, what must a prosecutor do to validly announce his readiness for trial? For example, do the witnesses need to be waiting in the Courthouse?

Actual readiness for trial does not require the prosecution to physically produce their witnesses each and every time they assert trial readiness, because “[a]side from its impracticality, such a requirement would be unduly burdensome and vexing to witnesses.” People v Robinson, 171 A.D.2d 475 (1st Dept. 1991).

Therefore, “[t]he People are not required to contact their witnesses on each and every adjourned date and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid.” People v. Dushain, 247 A.D.2d 234, 236 (1st Dept. 1998)(internal citations omitted) see also People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001)(The People are not required to contact their witnesses on every adjourned date nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid).

NEW YORK SPEEDY TRIAL – Part 1

June 1, 2011 | Jasmine Hernandez

As summarized in our recently posted New York Speedy Trial web page, the New York Criminal Procedure Law contains a statutory speedy trial requirement which is separate and apart from the constitutional right to a speedy trial and which is a very valuable tool in the arsenals of experienced criminal defense lawyers in New York. In this and upcoming blogs we will highlight some of the more important aspects of New York speedy trial.

Firstly, the statutory periods vary depending on the seriousness of the offense. That is to say that the time from the commencement of the action until the time that the people must be ready for trial or face dismissal of the action varies depending on the seriousness of the offense. They are as follows:

Felony; Six months from commencement less excludable periods. [CPL 30.30(1)(a)]

New York Traffic Ticket attorney’s Tilem & Campbell announce a $195 summer blow-out special for Traffic Ticket Defense

May 17, 2011 | Jasmine Hernandez

The Westchester law firm, Tilem & Campbell has announced a summer special for Westchester Traffic Ticket Defense and Rockland Traffic Ticket Defense. This sale is thought to be the lowest cost traffic summons defense in the entire region. Anyone who contacts Tilem & Campbell before August 31, 2011 who mentions coupon code “SUMMER SPECIAL” will automatically receive a rate of $195 to fight any traffic ticket in Westchester County or Rockland County*. This special rate includes all speeding tickets, red light tickets, unsafe lane change, cell phones, tailgating turn signal violations and any other traffic infraction.

This is a sale price that is certain to revolutionize the industry and is believed to be the lowest price traffic ticket defense in the area. Why take off work to try to fight your ticket yourself when you can have a professional represent for you?

This offer applies to all of the following courts: Ardsley Village Court, Bedford Town, Court, Bronxville Village Court, Buchanan Village Court, Town of Cortlandt Justice Court, Croton-on-Hudson Justice Court, Dobbs Ferry Village Court, Eastchester Town Court, Elmsford Village Court, Greenburgh Town Court, Harrison Town Court, Harrison Village Court, Hastings-on-Hudson Village Court, Irvington Village Court, Larchmont Village Court, Lewisboro Town Court, Mamaroneck Village Court, Mamaroneck Town Court, Mt. Kisco Village Court, Mount Pleasant Town Court, Mount Vernon City Court, New Castle Justice Court, New Rochelle City Court, North Castle Justice Court, North Salem Town Court, Ossining Town Court, Ossining Village Court, Peekskill City Court, Pelham Town Court, Pelham Village Court, Pleasantville Justice Court, Pleasantville Village Court, Port Chester Village Court, Pound Ridge Town Court, Rye City Court, Rye Town Court, Scarsdale Village Court, Sleepy Hollow Village Court, Somers Town Court, Somers Justice Court, Tarrytown Village Court, Tuckahoe Village Court, White Plains City Court, Yonkers City Court, Yorktown Town Court, Orangetown Justice Court, Clarkstown Justice Court, Ramapo Town Court and Sloatsburg Justice Court.

A Summons Issued by a Local Criminal Court or Superior Court in a Criminal Case is Not an Appearance Ticket [People v. Hauben, 12 Misc. 3d 1172A; People v. Eckert, 117 Misc. 2d 504 ]

May 1, 2011 | Tilem & Associates

In New York, judges may not issue appearance tickets. Judges can issue warrants for one’s arrest or a criminal summons. Appearance tickets can only be issued by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue appearance tickets. CPL 150.10(1). A judge is not considered a “public servant” authorized to issue an appearance ticket. A judge can issue a summons directing a defendant to appear in a particular court to be arraigned on an accusatory instrument. See generally CPL Art. 130. However, because a judge is not considered a “public servant” authorized to issue appearance tickets, a summons issued by a judge in a criminal case cannot be deemed an appearance ticket. People v. Hauben, 12 Misc. 3d 1172A (Nas. Cnty. Dist. Ct. 2006). In Hauben, the Honorable Kenneth L. Gartner, in a detailed, researched and well reasoned decision on this issue which cited numerous statutes, cases, practice commentaries and dictionaries, concluded that a summons issued by a criminal court pursuant to CPL Art. 130 is not an appearance ticket.

In so holding, J. Gartner observed: “a summons is merely ‘issued’ by the court, while an appearance ticket must statutorily be ‘issued and subscribed’ by the authorized individual. Id. Furthermore, J. Gartner cited an Attorney General Opinion (No. 93-90) which interpreted the term “other public servants” as stated in CPL 150.10(1) “as referring only to law enforcement personnel.” Id. The Opinion went on to state that “[p]rior to the court date, the public official who issued the appearance ticket must file an accusatory instrument.” Id.

Judge Gartner then noted that (1) a judge is not a law enforcement official and therefore does not meet the definition of “other public servants” as stated in the Opinion; and (2) a judge is not charged with filing an accusatory instrument with the criminal court after he or she issues a summons as law enforcement members are required to do after they issue and subscribe an appearance ticket. Id.