EVIDENTIARY ISSUES Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

When Will a Court Decide that Evidence of a Prior Crime is Admissible?

August 26, 2024 | Peter Howard Tilem

In New York, the prosecution in a criminal case is generally unable to present evidence of a defendant’s prior crimes or bad acts. There are, however, exceptions to this rule, and courts can admit otherwise inadmissible evidence using one of the exceptions laid out in the rules of evidence. As a general rule, evidence of a prior bad act may never be used to demonstrate that a person has a propensity for committing crimes.

The Exceptions

The five exceptions to the rule that evidence of a defendant’s prior crime is inadmissible are when the evidence helps establish a defendant’s (1) intent or purpose, (2) motive, (3) knowledge, (4) plan, or (5) identity. These five categories can all end up being fairly broad, and each trial court might interpret the exceptions a bit differently. This can, in turn, be challenging for defendants who are trying to keep evidence of prior bad acts out of the record to keep the jury from being prejudiced against them.

In a recent case before the Appellate Division, Second Department, the defendant challenged the trial court’s use of exception #1, intent or purpose. During the defendant’s trial for criminal contempt in the first degree and aggravated harassment in the second degree, the prosecution sought to present evidence of testimony about an incident that let to a protective order against the defendant. Allegedly, the defendant had violated that protective order, which brought him to court on the criminal contempt and aggravated harassment charges.

New York Defendant Unsuccessfully Argues for Suppression of Incriminating Evidence, Highlighting the Importance of Establishing Standing in Suppression Cases

November 30, 2023 | Peter Howard Tilem

Recently, in a New York criminal case involving possession of a forged instrument, the defendant argued that the lower court should have granted his motion to suppress evidence found in the car he was driving. An officer first pulled the defendant over for speeding, and the officer found a credit card reader in the passenger seat of the car. The defendant filed a motion to suppress, which the trial court denied, and the defendant appealed. Despite the defendant’s reasoning, however, the higher court ultimately denied the defendant’s appeal.

Facts of the Case

According to the opinion, an officer noticed the defendant driving by because he was speeding and because he ran through a red light. The officer conducted a traffic stop and ended up finding a credit card reader along with several debit cards and several blank cards in the car’s passenger seat. The State charged the defendant with criminal possession of a forged instrument in the second degree.

The defendant filed a motion to suppress, arguing the police officer did not have the legal authority to search and seize the credit card reader and debt cards when conducting the traffic stop. The lower court denied the defendant’s motion, and the defendant promptly appealed that decision.

New York Defendant Successfully Appeals Lower Court’s Decision, Highlighting Importance of Contextualizing Evidence Rules in Sexual Assault Cases

November 25, 2023 | Tilem & Associates

In a recent case before a court in New York, the defendant asked the court to find that the lower court had erroneously excluded evidence during his trial. The defendant was originally charged with two counts of first-degree sexual abuse, and a jury found him guilty as charged. On appeal, however, the higher court agreed with the defendant’s argument and ultimately reversed the lower court’s decision.

The Facts of the Case

According to the opinion, the defendant was sitting on a couch with a minor relative of his when he allegedly penetrated the minor’s vagina and touched her breasts. The minor’s testimony indicated that the two individuals had blankets over their laps, and that the defendant reached under the blanket and proceeded to touch her inappropriately.

The minor immediately texted her mother to tell her what had happened. At that point, the defendant was charged with first-degree sexual abuse. He pled not guilty, and his case went to trial. A jury found him guilty, and the court sentenced the defendant to three years in prison.

New York Defendant Unsuccessfully Asks Court to Suppress Incriminating Statement Made to Attorney

January 25, 2023 | Peter Howard Tilem

Earlier this month, a New York defendant convicted of attempted murder, appealed his guilty verdict before the Appellate Division of the Supreme Court of the State of New York. According to the defendant, the lower court violated his rights by allowing the State to enter into evidence a comment that he had made to his attorney in the presence of law enforcement officials. This statement, said the defendant, was meant to be part of a private conversation, and the lower court should not have let it in as evidence. The higher court reviewed the record and ultimately rejected the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant was charged with several violent crimes, including assault in the first degree and criminal possession of a weapon in the second degree. Once charged, the defendant was taken to a holding room at the local police department. A police investigator stood about five feet outside the open door in full view of the defendant, including while the defendant met with his attorney in the holding room. At one point during the defendant’s conversation with his lawyer, he made an incriminating statement in a loud voice, and the investigator overheard the defendant make this statement.

The defendant argued before the lower court that this statement should not be used in court, given the statement was made to his attorney, was made after his right to counsel had attached and was not meant to be heard by the investigator. The lower court denied the motion to suppress, and the defendant appealed.

Defendant in New York Weapons Case Unsuccessfully Asks Court to Reconsider Evidentiary Ruling

January 6, 2023 | Peter Howard Tilem

Recently, a defendant in New York appealed his guilty conviction for attempted murder and criminal possession of a weapon. On appeal, the defendant argued that during trial, the prosecution inappropriately introduced evidence of a 911 call from the victim’s mother. The call, argued the defendant, was hearsay, and it should not have been admitted. After considering this argument, the appellate court ultimately affirmed the original guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged when police arrested him for shooting another person in Queens. During the altercation, the defendant shot the victim, and the victim walked out of the incident injured but still alive. The State charged the defendant with several crimes, including attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree.

The case went to trial, and a jury found the defendant guilty as charged. Even after the verdict, the defendant maintained that he was unjustly found guilty, and he appealed the jury’s decision.

Criminal Defendant in New York Unsuccessfully Appeals Use of DNA From 1984 Case

November 24, 2022 | Peter Howard Tilem

In a recent murder case before a New York trial court, the defendant argued that evidence relating to a 1984 murder should not have been entered into the court record. The evidence, brought forward by a team of investigators from the State, used DNA from the murder victim to narrow down a list of potential suspects in the case, eventually bringing prosecutors to the defendant. In its opinion, the appellate court denied the defendant’s motion to suppress, concluding that the DNA evidence was indeed admissible.

Facts of the Case

According to the opinion, in November of 1984, the body of a teenager was found in Rochester. The victim appeared to have been raped in addition to killed, and police officers recovered sperm from her body when they investigated the scene. For 33 years, investigators were unable to find a DNA match for the semen.

In 2017, the New York State Division of Criminal Justice Services created a new regulation regarding DNA testing. The new rule allowed investigators to use a suspect’s DNA not only to find the individual that committed the crime, but also to find any known family members of the suspect as well. This new process was known as “familial DNA search”, because when officers found a suspect’s family members, they were then able to more easily track down the suspect him or herself.

Successfully Moving to Controvert a Search Warrant – Evidence Suppressed and Case Dismissed

July 26, 2022 | Peter Howard Tilem

As we have discussed in the past often in New York criminal cases suppression of the evidence may be your best (or only defense. As has been widely reported in the media, all charges were recently dismissed against one of our clients after the Court granted our motion to controvert a search warrant and suppressed all of the evidence recovered during a search of our client’s house. While in can be difficult to have a motion to controvert a search warrant granted by the Court, recent case law makes it easier to file and win such a motion. When a motion to controvert a search warrant is granted, the Court is deciding that the search warrant was not valid and therefore the evidence obtained during the execution of the search warrant may not be used in Court.

Article 710 of the New York Criminal Procedure Law sets out the procedure to file a motion to suppress tangible evidence that is obtained as a result of an “unlawful search and seizure.” The United States Court of Appeals for the Second Circuit, which covers New York State has established that a warrant must at a minimum have three components. One is that the warrant must identify the specific crime for which law enforcement has established probable cause. Then the warrant must particularly describe the places that are allowed to be searched and the things that may be seized with their relationship to the crime.

New York’s highest Court, the New York Court of Appeals has further refined New York’s warrant requirement. (See, People v. Brown, 96 NY2d 80). At a minimum the warrant must particularly describe the places to be searched and the things to be seized. The idea is to ensure that the police have no discretion in either the places to be searched or the things that are permitted to be seized. Exploratory warrants that give police the discretion to look around for evidence are unlawful. If either of those elements are lacking the warrant may be invalid and any evidence suppressed. This is true even though a Judge has signed and authorized the search warrant.

New York Court Denies Defendant’s Argument in Weapons Case that Informant was Unreliable and Untrustworthy

June 5, 2022 | Peter Howard Tilem

In a recent New York gun crime case decided in a Appellate Court, the defendant unsuccessfully appealed his firearm conviction by arguing that his original arrest was based on unreliable information. His sentence was however reversed on other grounds. According to the defendant, there was insufficient evidence that the informant who had tipped police officers off to his activity was reliable and trustworthy. Because it was not clear whether or not the officers could trust the informant, it was unreasonable for the officers to arrest the defendant based on the single tip. The court considered the defendant’s argument but ultimately denied his appeal, citing the officers’ long-term relationship with the informant as evidence of the informant’s trustworthiness.

Facts of the Case

According to the opinion, a confidential informant let police officers know that there was an individual in a specified location with a gun in his hand. Upon hearing this tip, officers went to the scene and found the person matching the informant’s description. The officers approached the person, who later became the defendant in this case, and placed him under arrest. Upon his arrest, the defendant immediately stated, “I have a firearm in my waistband.”

The officers recovered the firearm and the defendant was charged and convicted of attempted criminal possession of a weapon in the second degree. He appealed shortly thereafter.

Court Affirms Mapp Hearing Ruling in New York Illegal Search and Seizure Appeal

February 2, 2021 | Tilem & Associates

Recently, an appellate court issued an opinion in a New York criminal defendant’s appeal, arguing that a trial court erred in denying his motion to suppress evidence found in his vehicle. According to the court’s opinion, police were involved in a high-speed chase with the defendant that ended when the defendant crashed his car into a marsh. Police arrested the defendant, and a private company towed his vehicle. Per the towing service’s protocol, the defendant’s vehicle was inventoried. During the inventory, employees discovered $10,000 worth of automotive tools in a nylon bag. The employees believed that the tools were stolen and contacted the police. An investigator was aware that a local automotive store was burglarized recently and noticed one of the drills inside the bag. The investigator walked around the vehicle and noticed other similar items in plain view. The police then obtained a warrant to search the vehicle, where they found numerous reported stolen items.

Before trial, the defendant requested to proceed pro se and suppress the evidence. The court granted the request and proceeded with a Mapp hearing. A Mapp hearing is relevant when a defendant contests the admissibility of physical evidence that law enforcement obtained during an illegal search. If a judge finds that the evidence was acquired illegally, the prosecutor cannot use the physical evidence obtained during the search against the defendant.

In this case, during the Mapp hearing, the officer testified that he ran the defendant’s license plate and discovered that his license and registration was expired. However, when he turned on his emergency lights, the defendant did not respond and then fled. After police detained the defendant, they noticed the items in the vehicle but did not seize any of the tools. The court concluded that the trial court properly denied the defendant’s motion to suppress. They reasoned that the arresting officer was permitted to run a license and registration check through the police database, even without suspicion of criminal activity. Moreover, the defendant’s failure to stop and then flee provided officers with probable cause to detain him.

New York Criminal Charges Based on Flawed Facial Recognition Software

January 27, 2021 | Tilem & Associates

Facial recognition is a widely-used technological device that uses cameras and artificial intelligence to identify facial features and track people. In some cases, facial recognition is a useful tool in identifying individuals, allowing them to enter buildings, computer systems, phones, and log in to accounts swiftly and safely. However, like many types of technology, facial recognition is not foolproof. The technology flaws can lead to misidentification and false New York criminal charges. It is essential that those facing criminal charges based on facial recognition technology consult with a New York attorney to discuss their rights and defenses.

The New York Times recently reported on another false arrest and incarceration based on an incorrect facial recognition match. The arrest arose when police accused a man of shoplifting candy and attempting to hit an officer with his car. Officers used facial recognition software, and identified the falsely accused man, even though he was over 30 miles away when the incident occurred. The man spent nearly two weeks in jail and spent approximately $5,000 in defense fees before the case was dismissed almost a year later. The man is suing the Woodbridge, NJ Police, prosecutor, and City, for violating his civil rights, based on his false arrest and imprisonment.

In the man’s case, police responded to a call about a person stealing items from the gift shop. When police approached the individual, he offered to pay for the items and provided officers with a fraudulent license, before running into his car and driving off. Police submitted the license photo to a state agency that runs the facial recognition software. The agency stated that they received a match to the falsely identified man. Although the man lived over a half an hour away, worked at a grocery store, and had limited similarities to the license photo-police arrested and charged him. This charge was particularly frightening for the man because of his history with the criminal justice system; if he were convicted, he would have received a long sentence. He recounted that he almost took the prosecutor’s plea deal out of fear. Fortunately, he was able to obtain proof that he was at a pharmacy when the incident occurred.