THEFT CRIMES Category Archives — Page 4 of 4 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

How New York Courts Define the Crime of Burglary

June 7, 2019 | Tilem & Associates

In New York, Burglary is a serious felony. The facts of the Burglary will determine whether there is a mandatory minimum state prison sentence associated with a conviction and how long that state prison sentence will be. In April of 2019, the United States Supreme Court heard oral arguments on an important case discussing the “intent” element of the crime of burglary. While the case arose in Michigan, the case raises an important issue that could come up in a New York burglary case.

Historically, burglary has been defined as an unlawful entry at night into a building owned by another, with the intent to commit a crime therein. Over the years, lawmakers have refined the definition of burglary. For example, nearly all states have eliminated the requirement that the alleged acts occur in the evening hours. Additionally, many states have added language into the burglary statute allowing the crime to be proven by showing that the defendant “unlawfully remained” on the property with the intent to commit a crime.

The exact nature in which the case arose is complex; however, the Court was asked to determine whether Michigan’s “home invasion” statute satisfied the elements of a “burglary” for the purposes of the Armed Career Criminals Act. Michigan defined a home invasion as “breaking and entering a dwelling and while entering or present in the dwelling, committing a misdemeanor.”

New York Court Reverses Defendant’s Conviction after Judge Offered Codefendant Deal Based on His Testimony

May 15, 2019 | Tilem & Associates

In May 2019, in a New York robbery case, a state appellate court issued a written opinion discussing an important issue that may arise in any case in which there is more than one person named as a defendant. Specifically, the case required the court to determine if the defendant was deprived of a fair trial when the court allowed a codefendant to testify against the defendant after the codefendant negotiated a deal directly with the trial judge. Ultimately, the court found in favor of the defendant, ordering a new trial.

According to the court’s opinion, both the defendant and codefendant were arrested and charged with first-degree robbery. While some of the crime was captured on video, the faces of the robbers were not visible. Before trial, the codefendant entered an open guilty plea to each charge. The court informed the codefendant that the range of his sentence would be between nine and 15 years, and that the codefendant’s specific sentence would depend on the “level of cooperation in the prosecution” against the defendant. The court explained that “one of the primary touchstones” of its determination would be whether the codefendant’s testimony at trial was consistent with his statements to police in which he identified the defendant.

At trial, the codefendant testified that he was one of the people who committed the robbery and the defendant was also involved. The codefendant identified the defendant as the other person who committed the robbery on the surveillance footage. The prosecution questioned the codefendant, eliciting testimony that there was no deal between the prosecution and the codefendant. The court later informed the jury that the court had entered into an agreement with the codefendant. The jury convicted the defendant, and the defendant appealed.

New York Appellate Court Holds Evidence Was Insufficient to Sustain Defendant’s Burglary Conviction

March 12, 2019 | Peter Howard Tilem

In order to convict someone of a crime in New York, the prosecution must establish each element of the offense. Under New York law, a burglary occurs when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein. Thus, in the case of a New York burglary charge, the prosecution must establish that the defendant 1.) knowingly entered or unlawfully remained 2.) in a building 3.) with the intent to commit a crime therein.

If the prosecution is unable to establish each of the elements beyond a reasonable doubt, then a defendant cannot be convicted of that offense. However, prosecutors typically charge multiple similar crimes, so if they are cannot convict a defendant of the lead charge they will still attempt to convict on a lesser charge. A recent state appellate decision illustrates this concept in the context of a burglary charge.

The Facts of the Case

According to the court’s opinion, the defendant allegedly assaulted a 14-year old girl and, as he was fleeing from the police, entered a person’s home without permission. While he was inside the house, the defendant allegedly stole several articles of clothing.

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.