GUN CRIMES Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Controversial Case Before New York Court of Appeals Demonstrates Differing Perspectives on Cross-Racial Identification Instruction

June 24, 2024 | Peter Howard Tilem

In 2017, New York case law created a new precedent indicating that when identification is an issue in a criminal case, and when the identifying witness and defendant are seemingly of different races, the defendant is entitled to a charge on “cross-racial identification.”

This means that when a witness identifies a defendant as the person that committed a crime, and when the witness and defendant are of different races, the defendant has certain rights. The defendant can, for example, request expert testimony, specific questioning, or a jury instruction on what it means to identify a person of a different race. The relevant case law is based on the theory that it is easier to make a mistake when identifying a person of a different race.

Assault and Criminal Possession Case

In a recent case before a New York court, the defendant pled not guilty to assault and criminal possession of a weapon. The victim of the assault was the only person who saw the crime happen, and the entire case was built on the victim’s identification of the defendant as the one who assaulted him. Of note, the defendant and the victim were different races.

New York Court Issues Opinion Underscoring the Importance of “Voluntary” Confessions in Criminal Cases – GUN CONVICTION REVERSED

April 6, 2024 | Peter Howard Tilem

A Queens County Gun conviction was recently reversed by the Appellate Division, Second Department. In a recent opinion published by an appellate court in New York, the court emphasized that a defendant must be able to voluntarily waive his right to an attorney before speaking with an investigator about a case. In the case before the court, the defendant appealed the trial court’s denial of his motion to suppress, arguing that because he had recently been in a medically induced coma when a detective questioned him, he was unable to understand his Miranda rights and knowingly and voluntarily waive those rights. On appeal, the higher court agreed with the defendant, reminding officers of how important it is that a defendant can comprehend what is happening before he can be subject to interrogation.

The Defendant’s Medical Condition

According to the opinion, the defendant had been involved in a shooting and was shot in the elbow, the leg, and the lower back. An ambulance took him to the hospital, where he underwent three different surgeries. The hospital then put the defendant in a medically induced coma. When he was able to wake up, he remained in the intensive care unit. At approximately 6:00pm, the same day he underwent surgery, a detective came into the defendant’s hospital room to question the him in about the shooting.

The Defendant’s Miranda Rights

When the detective approached, the defendant asked if he could see a nurse because of his level of physical pain. The detective refused, saying he would call a nurse later, after the questioning was finished. At that point, the detective read the defendant his Miranda rights, indicating that he had the right to remain silent and the right to speak with an attorney. The defendant said he understood. The detective then asked the defendant about the shooting, and the defendant admitted to being guilty of criminal possession of a weapon.

New York Court Emphasizes Restrictive Conditions of Probation in February 2024 Opinion

March 17, 2024 | Tilem & Associates

Recently, a New York defendant appealed his convictions related to possession of a firearm, arguing that probation officers did not have the right to search through his personal belongings. The court’s opinion, which denied the defendant’s appeal, reflects the reality that for individuals on probation, there is less of an expectation of privacy. While this can be a difficult restriction to bear, it is important to keep probation conditions in mind to stay in compliance with the related legal restrictions and to stay away from harsh repercussions. Those on Probation are already convicted and are not entitled to a trial if they are accused of violating probation but rather are only entitled to a hearing before the judge that is supervising their probation.

Facts of the Case

In this case, the defendant was on probation for attempted robbery in the first degree. One of the conditions of his probation was that he was not allowed to possess a firearm. Local police officers notified the probation department that the defendant had been seen with a firearm on three different occasions. After that, the defendant’s probation officers promptly showed up at his house.

The defendant was not home, but his mother was home, and she let the officers search the defendant’s bedroom. They found a shotgun shell, a round of ammunition, and a firearm. The defendant was charged with the following offenses: criminal possession of a weapon in the second degree, criminal possession of a firearm, and unlawful possession of pistol ammunition.

Defendant in New York Drug Case Unsuccessfully Asks for Suppression of Incriminating Evidence

March 2, 2024 | Peter Howard Tilem

In a January 2024, New York Drug case before the Supreme Court of New York, Third Department, a defendant filed an appeal of the lower court’s denial of his motion to suppress. The defendant took issue with a police officer’s search of his person, arguing the officer did not have a legal basis to infringe upon his privacy during the traffic stop in question. The higher court reviewed relevant facts related to the defendant’s appeal and ultimately denied his request, affirming the lower court’s ruling in the process.

Convictions at Issue

The defendant was first charged with criminal possession of a weapon and criminal possession of a controlled substance in September 2019. After the State charged the defendant, he filed a motion to suppress the incriminating evidence that officers seized that led to the charges. Ultimately, the trial court denied the motion to suppress, and the defendant pled guilty. The court sentenced him to five years in prison. He promptly appealed.

Basis for Court’s Denial

In the defendant’s appeal, he challenged the denial of his motion to suppress. The higher court, however, reviewed the record and determined the defendant’s motion was, indeed, without merit. The defendant’s charges originated when an officer ran the defendant’s license plate and recognized the address as one related to a narcotics investigation that was ongoing. He then approached the defendant in the parking lot of a local gas station, asking to see his license and registration. The defendant’s license was invalid; there was a missing license plate light on the defendant’s car; and the officer recognized the defendant’s name as an individual known for facing frequent drug charges in the area.

New York Court Sides with Defendant in Suppression Case, Emphasizing Importance of Fourth Amendment Protections

February 11, 2024 | Tilem & Associates

We have often said that suppression can be the best defense. Recently, a New York defendant appealed a lower court’s decision to deny his motion to suppress physical evidence, and the higher court ruled in his favor. The defendant was originally indicted on one count of second-degree criminal possession of a weapon. He asked the lower court to suppress the gun found in his vehicle, and the trial court denied his motion. On appeal, however, the New York Court of Appeals, New York’s highest Court, in a rare 4-3 decision overturned the lower Court decisions and ultimately granted his appeal.

The Defendant’s Motion to Suppress

An officer first became suspicious of the defendant in this case when he saw the defendant and another individual pull into a parking lot, engage in a “loud conversation,” and walk from one person’s car to the other. The officer believed a drug-related transaction was occurring, especially, after he saw a third individual in the group, one that he knew had been arrested on drug charges in the past.

The officer approached the group, and the defendant began walking toward him. The officer frisked the defendant, found nothing, and then approached the car and saw a rolled dollar bill and white substance in the driver’s seat. He arrested the defendant, and upon a subsequent search, officers found additional narcotics and a handgun in the vehicle as well.

New York Defendant Successfully Appeals Gun Conviction, Highlighting Importance of Effective Counsel During Trial Proceedings

January 23, 2024 | Peter Howard Tilem

In a recent New York firearms case before the New York Court of Appeals, the defendant successfully asked for his conviction for criminal possession of a weapon to be overturned. The decision, issued at the end of 2023, illustrates the importance of choosing and retaining a thorough, knowledgeable and experienced criminal defense counsel, given that the court reversed the lower court’s order because the defendant received ineffective assistance of counsel during his trial proceedings. While this was ultimately a win, the defendant received 7 years in prison and probably served at least 4 years before ultimately having his conviction over turned because his attorney was not effective.

Facts of the Case

According to the opinion, this case began when officers on patrol pulled the defendant over for a standard traffic violation. When the officers asked for the defendant’s license and registration, the defendant was unable to provide either document, but instead pulled his hand out of his pocket and revealed a magazine clip. The officers asked the defendant to exit the vehicle, at which point they searched the car and found a bag with ammunition and a holster.

The defendant was charged with criminal possession of a weapon. He pled not guilty, and his case went to trial. A jury found the defendant guilty as charged.

New York Defendant Loses Appeal in Case Centering on Possible Issue with In-Court Identification

January 16, 2024 | Peter Howard Tilem

In a recent assault and criminal possession of a weapon case before New York’s highest Court, the New York Court of Appeals, the defendant took issue with the trial court’s decision to let a witness identify him as the perpetrator of a shooting for the first time while she was in court. In its opinion, the court discussed the implications of letting a witness make this kind of identification without significant notice to the defendant. Here, concluded the court, the defendant had sufficient notice of the possible identification, and his conviction would be affirmed.

Facts of the Case

According to the opinion, the defendant shot the victim in the leg at a party in 2017. A neighbor called 911 to make a report, and when calling, the neighbor described the shooter’s race, stature, and clothing. The police subsequently arrested the defendant and the case went to trial.

During trial, the victim took the stand and testified that the defendant was, indeed, the person that shot her. According to her testimony, there was enough light outside of the house to allow her to clearly see the defendant, and she was sure that the defendant and her shooter were the same person. The defendant objected to this testimony on the grounds that the witness had not participated in any identification procedures prior to the trial, and that her identification thus took him by surprise.

The jury later returned a guilty verdict, and the Appellate Division affirmed. The defendant again appealed.

New York Defendant Successfully Argues for Guilty Plea to be Vacated in Weapons Case, Highlighting Importance of Reasonable Suspicion in Police Stops

November 12, 2023 | Tilem & Associates

In a recent case before a New York court, the defendant appealed the lower court’s denial of his motion to suppress tangible evidence. The defendant originally pled guilty to criminal possession of a weapon in the second degree, but he argued on appeal that the officers arresting him did not actually have the legal right to stop him before arresting him. On appeal, the higher court agreed, reversing the lower court’s decision on the motion to suppress and vacating his guilty plea.

Facts of the Case

According to the opinion, police officers patrolling one evening received an anonymous 911 call that a Black male with an orange sweatshirt was in the area and had a gun. Officers began to look for the individual, and they eventually came across a Black male with an orange sweatshirt. The officers exited their car and ordered the individual to show his hands. The individual ran, taking his jacket off and throwing it on the ground as he sped away.
Officers eventually caught the suspect, and they found a handgun in the jacket he discarded. He was then arrested and charged with criminal possession of a weapon.

The Decision

The defendant filed a motion to suppress evidence of the gun, which the lower court denied. The defendant appealed, arguing that the officers did not have legal grounds to stop and arrest him. Officers must, argued the defendant, have “reasonable suspicion” that a suspect is participating in criminal activity in order to chase and legally stop that individual. Here, the officers did not know anything about the defendant and therefore had no reasonable suspicion that he had a gun.

New York Defendant in Weapons Case Unsuccessfully Appeals Denial of Motion to Suppress

November 6, 2023 | Tilem & Associates

In an October 2023 case before a New York court, the defendant appealed the lower of the lower court’s denial of his motion to suppress incriminating evidence. The defendant was originally charged with criminal possession of a weapon based on a 2015 run-in with police officers. After being criminally charged with a felony, the defendant asked the court to suppress the incriminating evidence, a gun, that officers found in his personal vehicle during a routine inventory search. The court denied the defendant’s motion, who then appealed the denial of his motion to suppress. The higher court, considering the defendant’s appeal, ultimately ruled that the officers’ search was constitutional. The court therefore affirmed the original conviction.

Facts of the Case

According to the opinion, officers were on patrol one evening when they noticed the defendant driving by in his truck. The officers saw the defendant commit multiple traffic violations, and they therefore conducted a routine traffic stop. The officers subsequently discovered a “gravity knife” in the defendant’s pocket, which was illegal for the defendant to possess at the time. The law has since changed. The officers brought the defendant in for processing. They then conducted an “inventory search” of the defendant’s truck, and they found a gun in the car’s trunk. At that point, facing criminal charges for possession of a weapon, the defendant filed a motion to suppress.

The Decision

The court denied the defendant’s motion to suppress, and he promptly filed an appeal. On appeal, the defendant argued that the police officers’ search protocol was unconstitutional. The officers found the firearm because, after they brought the defendant in for questioning, they conducted a standard inventory search of the vehicle. According to the defendant, the officers had too much leeway to conduct the inventory search without his consent – it was not fair that they were able to sift through his car’s contents while he was in custody.

New York Defendant Unsuccessfully Appeals Criminal Possession of a Weapon Conviction, Despite Argument Regarding Discriminatory Juror Striking

September 6, 2023 | Tilem & Associates

In a recent case between the State of New York and a defendant convicted of criminal possession of a weapon, an appellate court ruled that the defendant did not have grounds to appeal his guilty verdict. Originally, the defendant was charged with criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. His case went to trial, a jury found him guilty, and the defendant promptly appealed. After considering the defendant’s argument that the State unfairly struck a Black individual and a Hispanic individual from the jury, the court denied the defendant’s appeal.

Facts of the Case

According to the opinion, officers were on patrol one evening when they received word that they should be on the lookout for the defendant in this case, given that there was an active warrant for his arrest and he had possibly been involved in a recent homicide in the city. The officers eventually spotted the defendant and began following him in his car. They radioed to other troopers in the area that the defendant was on the loose in his silver Ford Taurus.

Another officer on patrol spotted the car. He turned on his emergency lights to stop the defendant, at which point he saw the defendant stop the car, get out of the car, pull out a pistol from his pockets, and drop the pistol on the ground. The defendant then began running on foot.