CRIMINAL PROCEDURE Category Archives — Page 2 of 22 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

The Importance of Preserving Errors for Appeal in New York Criminal Trials

February 19, 2020 | Tilem & Associates

In a New York criminal jury trial, the judge has several critical roles. In general terms, the judge determines the “rules” by which the trial will be conducted. For example, the judge will resolve all pretrial motions, manages the jury selection process, rules on objections during the trial, and instructs the jury at the conclusion of the trial. One of the most essential roles of a judge is also to act as the gatekeeper, meaning the judge will determine which evidence will be presented to the jury.

Not surprisingly, a judge’s rulings on these issues can drastically affect the outcome of a trial. And because judges are human, they are prone to making errors. In fact, that is the very purpose of the New York appellate process; to review the trial court’s legal decisions which led to a conviction. Thus, when a party believes that a judge made an error at trial, that party must object. When a party objects to a ruling, they must state the basis for the objection. Typically, when an objection is made, the judge will hear argument on the objection outside the presence of the jury and issue a ruling. It is up to the party making the objection to make sure the judge knows the basis of the objection and is aware of the legal support behind the objection. AS a general principle the Judge must be given an opportunity to fix the error in order to preserve your right to appeal on an issue.

When an appellate court grants review of a case, it will typically consider all arguments raised in the defendant’s brief. However, an appellate court may apply various standards when reviewing an error. For issues that were properly raised at trial, an appellate court uses what is called “de novo” review, meaning that the court will not give the lower court’s decision any deference.

The Constitutional Right to a Jury Trial in New York Criminal Cases

January 27, 2020 | Peter Howard Tilem

The United States Constitution and the Bill of Rights provide many invaluable rights to citizens. Among the most important rights included in these documents is the right to a jury trial. The Sixth Amendment to the United States Constitution provides that defendants are entitled to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

In New York, people who are facing certain misdemeanor charges are entitled to a jury that consists of six jurors. In New York City, individuals charged with “B” misdemeanors which carry a maximum sentence of 90 days in jail. May not be entitled to a jury trial. Although that issue has become more complicated with the the New York Court of Appeals ruling that immigrants facing deportation would be entitled to a jury trial even for a “B” misdemeanor. Defendants facing felony charges are entitled to a jury of 12 people. In misdemeanor and felony trials, all jurors must be unanimous before a defendant can be found guilty or not guilty. In the event that the jurors cannot come to a unanimous decision, the court will eventually declare a mistrial, and the prosecution will have the ability to retry the case.

All New York criminal cases are either heard by a judge or by a jury. A trial can be heard by a judge only if the defendant waives their right to a jury trial. This type of trial is commonly known as a “waiver” or “bench” trial. The decision whether to have a judge or a jury hear a case is one that rests with the defendant himself, rather than with his attorney. Of course, defendants often consult with a criminal defense attorney when making the decision because an experienced defense attorney can often provide valuable input. There are several reasons why a defendant may choose to have a judge hear their case rather than a jury.

The Pretrial Discovery Process in New York Criminal Trials

December 15, 2019 | Peter Howard Tilem

When someone is arrested for a New York crime, the prosecution is subject to certain rules. Most of the rules that are imposed on prosecutors are designed to ensure that the defendant is provided a fair trial. After all, the prosecution’s primary responsibility is to see that justice is done, not necessarily to win their case.

This tension between the pursuit of justice and obtaining a conviction has led to some tragic outcomes involving innocent men and women spending their lives in prison based on the crimes that someone else committed. Hence the reason for special rules that govern criminal cases. One of the most essential rules involves pretrial discovery.

Pretrial discovery refers to the process in which the parties provide the opposing sides certain information in their possession. The idea is to prevent the sort of trial by ambush that is commonly seen on television. When it comes to pretrial discovery in a New York criminal case, prosecutors must provide any material evidence that may be favorable to the defense, in either the guilt or punishment phase of a trial.

New York Prosecutors Cannot Make Jury-Selection Decisions Based on Race

August 28, 2019 | Tilem & Associates

New York criminal defendants enjoy many important constitutional rights, one of which is the right to a jury drawn from a cross-section of society. In the 1986 United States Supreme Court case, Batson v. Kentucky, the Court determined that the defendant was deprived of his constitutional rights when the prosecution struck all black potential jurors from the jury panel, resulting in an all-white jury.

Since then, the Court has made it clear the prosecutors cannot use a potential juror’s race as a decision in whether to accept or reject that juror. In its most recent case discussing race in the jury-selection process, the Court again affirmed the principle that race should not be a consideration when selecting a jury.

This case involved a black man who was previously tried five times for the murder of four furniture store employees, three of whom were white. In the first three trials, the case either resulted in a mistrial based on the prosecution’s race-based jury-selection techniques or the jury’s verdict was reversed on appeal based on prosecutorial misconduct. The fourth and fifth trials resulted in hung juries. Thus, this time was the sixth time the state tried the defendant for murder.

New York Firearms Attorneys Get 13 Guns, Hundreds of Rounds of Ammunition Suppressed – 12 Count Indictment Dismissed

July 8, 2019 | Tilem & Associates

Guns, ammunition and magazines that were suppressed by the Judge

New York, Second Amendment attorney and NRA Firearms instructor Peter Tilem scored a major victory in Rockland County Court earlier today, when the Judge holding a suppression hearing ruled that there was no probable cause for the arrest of his client and ordered 13 guns, hundreds of rounds of ammunition, and high capacity magazines, called “high capacity ammunition feeding devices” suppressed, meaning that they could not be used as evidence at trial because of the fact that they were illegally seized. The decision came after an intense suppression hearing in Rockland County Court where two senior police officers testified about the circumstances surrounding the arrest and interrogation of both individuals charged in a 12 count indictment.

Following reports of shots fired on July 8, 2018, in the area of the New York – New Jersey border in Rockland County, police from both New Jersey and New York police departments located three individuals firing weapons which were lawfully purchased and possessed in New Jersey. The handguns were unlicensed in New York and the individuals were found less than a 1/4 mile over the border in New York. In addition, some of the weapons which were lawful in New Jersey violated New York’s “Safe Act” and magazines that were legal in New Jersey violated New York’s ban on magazines capable of accepting more than 10 rounds of ammunition.

New York Court Discusses the Use of Confidential Informants

April 9, 2019 | Tilem & Associates

Prosecutors and Police officers routinely use confidential informants to gather information and perform controlled buys in narcotics cases, firearms cases or cases involving other contraband. Often, police will use what a confidential informant tells them to establish probable cause when they seek to obtain a search warrant. Thus, confidential informants can play a significant role in many New York drug cases.

However, police and prosecutors generally refuse to a provide the defense with the identity of the confidential informant because once an informant’s identification is known, they can no longer be used by police and may face retaliation. At the same time, if a defendant cannot question police about the existence of the informant, there is the concern that the informant may not exist and that police fabricated the informant to get around the warrant requirement.

To alleviate these concerns, courts require that the prosecution present the confidential informant in an ex parte hearing (outside the presence of the defendant). Recently, a New York appellate court issued an opinion in a case discussing the proper procedure a court should follow when presented with a case in which the prosecution is relying on a confidential informant’s testimony to develop probable cause.

Court Holds that New York Recidivist Statutes Look to Original Sentencing Date, Rather than a Subsequent Resentencing Date

March 6, 2019 | Peter Howard Tilem

When courts determine a defendant’s sentence, one of the factors they consider is the defendant’s prior record. Typically, the more convictions a defendant has on their record, the harsher the penalty they can expect to receive.

New York lawmakers have prescribed an escalating punishment scheme for “second felony offenders.” Under New York Consolidated Laws § 70.06, a second felony offender is someone who has recently been convicted of a qualifying offense and has a qualifying predicate offense. The punishments for second felony offenders are mandatory, meaning a judge cannot exercise her discretion to impose a more lenient sentence, and are significantly increased over those for first-time felony offenders. A proficient New York criminal appeals attorney can break everything down further regarding the details of your specific case once you reach out to them.

When it comes to determining whether a previous conviction is a qualifying predicate offense, courts look both to the date of the sentence as well as the type of crime. In a recent case, a New York appellate court clarified that it the original date of sentencing that courts should look to when determining if someone qualifies as a second felony offender.

New York Court Discusses Justification Defense in Recent Attempted Murder Case

February 16, 2019 | Tilem & Associates

Self defense cases in New York can be particularly challenging and require a skilled and experienced attorney. In New York self defense is referred to the defense of justification. Recently, a state appellate court issued an opinion in a New York assault case discussing the defense of justification. Ultimately, the court reversed the defendant’s conviction for assault in the first degree and ordered a new trial based on the trial court’s failure to instruct the jury appropriately.

The Facts of the Case

According to the court’s opinion, the defendant was arrested and charged with attempted murder and several assault charges after he “slashed his roommate across the neck and stabbed him in the abdomen with a large kitchen knife.” Apparently, the alleged assault occurred in the men’s apartment during a physical altercation.

Evidently, the defendant presented evidence suggesting that he was justified in his actions. It is unclear from the court’s opinion the exact nature of the justification defense, but it was most likely self-defense. At the conclusion of the evidence, the court instructed the jury on each of the charged offenses, as well as the defendant’s justification defense.

Motions to Suppress Identification in New York Criminal Cases

January 28, 2019 | Tilem & Associates

As this blog has discussed on several occasions, New York law provides that evidence which is obtained in violation of a person’s constitutional or statutory rights cannot be admitted in a criminal trial against that person. Most often, a motion to suppress evidence refers to physical evidence such as a gun or drugs or confessions or statements made by the person arrested. However, in many cases involving charges of burglary, robbery, or other offenses in which identification may be an issue, there may be a valid motion to suppress the identification of the defendant.

Identification can be an issue in any New York criminal trial. However, identification issues are most common in New York theft crimes. After a crime is committed, police will conduct an investigation. This includes visiting the scene of the alleged crime and interviewing witnesses. While questioning a witness, a police officer may obtain information that leads them to another witness, who the officer will then interview, and so on. This may eventually lead to an arrest, at which point there may be a formal or informal identification conducted.

There are various types of identification procedures. Which procedure a police officer or detective uses depends largely on the type of crime, the nature of the information leading up to the identification, and the time that has elapsed between the alleged crime and the identification. A few examples of identification procedures include:

New York Court Dismissed Criminal Charges Based on Lack of Notice Provided to Defendant

August 15, 2018 | Tilem & Associates

The Federal and New York State Constitutions provide citizens who are charged with New York crimes certain rights that must be respected. In addition, there are certain statutes that grant New York criminal defendants additional rights. In the event that any government agent – including police and prosecutors – fails to respect these rights, courts have an obligation to take remedial action, up to and including dismissing the charges. In a recent case, a New York appellate court dismissed criminal charges against a defendant based on the government’s failure to provide accurate and timely notice of the charges he faced.The Facts of the Case

On June 27, 2016, the defendant was charged with various crimes after a 12-year-old girl observed him touching his penis while sitting in his vehicle. Initially, the girl told police that she saw the defendant at Northern Boulevard and 106th Street.

On May 8, 2017, the prosecution filed additional charges against the defendant. The prosecution did not change the named location of the alleged offense and specified that the conduct at issue took place between June 17, 2016 and May 5, 2017. The defendant objected to the charges, arguing that they were overly broad, and requested that the prosecution file a document more specifically stating what he was charged with committing and when it was alleged to have occurred.