Articles Posted in CRIMINAL PROCEDURE

As explained in a prior blog, New York State law requires, with some limited exceptions, that an individual be fingerprinted when he is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction; or (4) loitering for the purpose of engaging in prostitution under Penal Law 240.37(2). [See CPL 160.10(1)].

However, upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, the court may, if it finds reasonable cause to believe the defendant committed one of the “printable” offenses listed above, order that the defendant be fingerprinted. [CPL 130.60(2)].

Therefore, where a defendant appears in court pursuant to a properly served summons and that summons is based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, defense counsel should object to the printing of the defendant absent a finding by the court of reasonable cause to believe the defendant committed one of the printable offenses listed above. Furthermore, defense counsel should further object to defendant’s printing arguing to the court that, under the statute [CPL 130.60(2)], even if the court finds reasonable cause, it “may” but need not order that the defendant be printed. The clear wording of the statute makes the fingerprinting of the defendant discretionary even where the court finds reasonable cause to believe the defendant committed a printable offense.

New York State law requires, with some limited exceptions, that the police take one’s fingerprints when one is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction (For example, a first time DWI is a misdemeanor found in the Vehicle and Traffic Law – not the Penal Law – and therefore one arrested for a DWI is not subject to mandatory fingerprinting.

However, a DWI can be charged as a felony if the individual has a prior DWI conviction within the previous ten years. In such a situation, the individual would be subject to mandatory fingerprinting); or (4) Loitering for the purpose of engaging in prostitution under Penal Law 240.37(2)(which is a violation unless the individual has a prior conviction for violating Penal Law 240.37(2), Penal Law 230.00 (Prostitution) or Penal Law 230.05 (Patronizing a Prostitute in the Second Degree) in which case a violation of Penal Law 240.37(2) is a B misdemeanor.) [See CPL 160.10(1)].

Furthermore, the police may fingerprint an individual they arrest for any offense if the police (1) are unable to ascertain the individual’s identity; (2) reasonably suspect the identification given by the individual is not accurate; or (3) reasonably suspect that the individual is wanted by law enforcement for the commission of another offense. [See CPL 160.10(2)].

As we have discussed often in this blog, suppression of evidence can often be the best avenue of an attack for an experienced criminal attorney. New York Courts have consistently held that one’s flight from the police, absent additional conduct creating a reasonable suspicion that a crime has been, is being, or is about to be committed is insufficient to justify further police pursuit. In other words, one’s flight from police alone, is insufficient to justify further police intrusion.

In People v. Prillo, the New York Appellate Division, Third Department upheld this long-standing legal principle reversing the Broome County Court’s denial of a defendant’s motion to suppress physical evidence. In Priollo, the police received a report of a suspicious person. The first officer to arrive saw a man fitting the description running out of a driveway towards her police car. At that time she had no reason to believe defendant had committed any crimes. She ordered defendant to stop. Defendant ignored her order, turned and started running away from the officer. The officer followed the running defendant in her patrol car. While he was running, defendant pulled jewelry and coins out of his pants and threw them on the lawn of a house he was passing. The property was recovered.

The defendant moved to suppress the property arguing that he tossed the items as a result of unlawful police conduct. The Broome County Court denied the motion. The Third Department reversed writing that while the officer could lawfully request information from the defendant about his presence in the area, the law did not require the defendant to answer the inquiry or stop running. The Court further wrote that flight from police, alone, was insufficient to justify further police intrusion such as a pursuit.

Tilem & Campbell is pleased to announce that Senior Partner Peter H. Tilem, Esq. has earned the highest rating from lawyer rating service AVVO. Peter Tilem earned the maximum rating of 5 out of 5 in each of the rating categories which include experience, industry recognition and professional conduct and received a rating of 10 out of 10 overall, which AVVO ranks as “Superb.” Mr. Tilem is admitted to practice before the Courts of the States of New York and Connecticut, the Federal Courts in the Eastern and Southern Districts of New York, the District of Connecticut and the the District of Columbia as well as the United States Court of Appeals, Second Circuit and the United States Supreme Court.

AVVO is a website that profiles and rates attorneys throughout the country in an effort to assist individuals who wish to hire an attorney. The rating agency has been sued by disgruntled attorneys in the past unhappy with their ratings but is widely believed to be useful in assisting the public in locating qualified lawyers.