New York Criminal Attorney Blog

Defendant in Murder Case Unsuccessfully Appeals Guilty Verdict on Sufficiency Grounds

January 13, 2023 | Tilem & Associates

In a case before the New York Appellate Division in late November, the defendant asked the court to reconsider his 2016 guilty conviction. Originally, the defendant was charged with both murder in the second degree and criminal possession of a weapon in the second degree. A jury found him guilty at trial, and he promptly appealed, arguing the evidence was insufficient to support his guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged after police found him aiming a gun in the direction of a large group of men. Apparently, the men in the group were all part of the same gang, and the defendant in this case was part of the rival gang. The defendant fired his gun three times, subsequently killing one of the men. After the incident, the defendant fled the scene, throwing his gun into the bushes nearby as he ran.

Police eventually found the defendant, and he was charged accordingly. At trial, the jury heard evidence that the defendant had told friends he needed to protect his family and go after members of the rival gang. He stated to these friends that violence was his only reasonable form of protection and that he was targeting these men in particular because of their rivalry.

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.

NEW YORK SUPREME COURT JUSTICE DEEMS NEW YORK’S RED FLAG LAWS ARE UNCONSTITUTIONAL

December 30, 2022 | Peter Howard Tilem

A New York State Supreme Court Justice ruled last week that New York’s Extreme Risk Protection Order laws, often called Red Flag laws are unconstitutional and declined to issue an Extreme Risk Protection Order (ERPO). As we have written in the past, extreme risk protections have become very popular in anti-gun states and are a way for government officials to take away the Second Amendment rights of individuals who have not committed any crime. Yet, New York’s Red Flag laws were expanded in July of 2022. Justice Thomas E. Moran, of the Rochester based Monroe County Supreme Court struck down these laws in a 10 page decision, in a case entitled G.W. v. C.N., 2022 NY Slip Op 22392 (Monroe County Sup. Ct. 2022).

This particular case highlights everything wrong with Red Flag laws. The Petitioner who filed for the Extreme Risk Protection Order was the estranged boy friend of the Respondent who was a licensed gun owner in New York State. He alleged that his ex-girlfriend was a danger to herself and others and obtained a Temporary Extreme Risk Protection Order. Justice Moran pointed out that the Petition cited a variety of statements that the Respondent allegedly made threatening to harm herself with a gun which the Petition falsely claimed were made within 6 months before the Petition was filed but in fact dated back to 2020 and 2021. The Court also pointed out that there was a Family Court case also going on in which The Petitioner had an Order of Protection against him which among other things barred him from the home that they had shared.

Turning to the Constitutionality of the Article 63-A, which lays out New York’s Red Flag laws and procedures, the Court cited the United States Supreme Court decisions in Heller, McDonald and most recently Bruen and applied the Bruen Standard that when the 2nd Amendment’s text covers a person’s conduct, a law which regulates that conduct is presumptively unconstitutional unless the State can demonstrate that the regulation is consistent with the country’s historical tradition of firearms regulations.

New York Appellate Division Finds Weight of the Evidence Sufficient in Recent Homicide Case

December 23, 2022 | Tilem & Associates

In a recent New York criminal case, the appellate court affirmed the trial court decision, establishing that the finding and verdict at trial by the jury was not against the weight of the evidence. The defendant was initially arrested and charged with manslaughter in the second degree and endangering the welfare of a child. He was later convicted by a jury verdict of criminally negligent homicide as a lesser included offense of manslaughter in the second degree and endangering the welfare of a child.

Facts of the Case

According to the opinion, the evidence presented at trial included testimony from the mother of the child as well as statements made by the defendant to law enforcement officers. The statements established that the defendant’s then five-month-old daughter was declared dead approximately 30 minutes after her arrival at Elmhurst Hospital after failed resuscitation efforts by the emergency medical technician and emergency room physician. Although the child had no obvious external injuries, an autopsy revealed she had sustained injuries consistent with abusive head trauma and violent shaking. The defendant was arrested and charged with manslaughter in the second degree and endangering the welfare of a child.

Testimony provided at the trial established that the child woke up crying at 2 a.m. on July 30, 2016, and the defendant tried to console her. After the child’s mother went to bed, the defendant got the child to stop crying and placed her in the crib in the couple’s bedroom. At 6:30 a.m., the defendant found the child in the crib, cold and unresponsive. The prosecution presented testimony from two experts that the child had died because the third, fourth, and fifth cervical nerves arising off of her spinal cord near her neck were severed, which resulted in paralysis of her diaphragm, causing her to stop breathing and die minutes later. Those same experts testified that the injuries were caused by violent, forceful shaking, and could not be explained as normal jostling or bouncing of an infant.

New York Appellate Division Affirms Lower Court Decision in Homicide Case, Rejecting Defendant’s Appeal

December 15, 2022 | Peter Howard Tilem

In a recent New York criminal case, the New York Appellate Division affirmed the trial court decision, finding that the court had properly denied the defendant’s omnibus motion to suppress statements. Further, the appellate court denied the defendant’s claims that the lower court acted with improvidence by allowing the State to recall an expert, that evidence introduced by the State improperly appealed to the jury’s sympathy, and that the sentence imposed was excessive. The defendant was convicted of murder in the second degree by jury verdict.

Facts of the Case

According to the opinion, the defendant was convicted by a jury in the County Court of Westchester County on October 3, 2019, for murder in the second degree. The defendant’s appeal brought for review the denial, after a hearing, of the part of the defendant’s omnibus motion, which was to suppress his statements to law enforcement officials. The defendant was convicted in part based on statements he made to the police while in custody, as well as medical evidence. Those statements to law enforcement officers came after he was arrested and advised of his Miranda rights.

The Decision

On appeal, the defendant made several claims, including filing an omnibus motion to suppress his statements to law enforcement officials, claiming that it was an improvident exercise of the County Court’s discretion to permit the prosecution to recall their expert witness to address an issue raised during cross-examination of a police officer, claiming that a 20-second “love you video” from the mother to the deceased child victim improperly appealed to the jury’s sympathy, and a claim that the sentence imposed was excessive.

New York Intoxication Defense – Defendant in Assault Case Successfully Argues Jury Should Have Considered Intoxication When Deciding Guilty Verdict

December 8, 2022 | Tilem & Associates

In a recent New York Criminal Assault case which was appealed to the New York Appellate Division, the defendant asked for his guilty conviction to be reversed. Originally, the defendant was found guilty of assault in the second degree after an altercation in a bar one evening. On appeal, he argued that the court should have given the jury the option of deciding that he did not have the necessary guilty intent because he was intoxicated, and his judgment was clouded by alcohol. Although, voluntary intoxication is generally not a defense in New York, Penal Law sec 15.25 makes clear that evidence of intoxication can be used to negate an element of a crime, such as intent. The court ultimately agreed with the defendant and reversed the judgment.

Facts of the Case

According to the opinion, the defendant in this case walked into a bar one evening holding a bottle of Heineken beer. He interacted with other patrons of the bar, and witnesses later described his behavior as “loud, obnoxious, and argumentative.” At one point, the bartender asked the defendant if he had a designated driver.

In an unclear string of events that followed, the defendant asked another individual to step outside. At this point, the defendant allegedly assaulted the victim, and he was later charged with assault in the second degree. At trial, the jury found the defendant guilty as charged.

New York Appellate Division Reverses Burglary Conviction After Illegal Automobile Search

December 1, 2022 | Peter Howard Tilem

The Fourth and Fourteenth Amendments to the U.S. The Constitution prohibits law enforcement officers and other government agents from conducting an illegal search or seizure of persons or property in furtherance of a criminal investigation or prosecution. New York’s state Constitution contains similar provisions. Generally, these Constitutional protections require law enforcement officers to obtain a warrant before performing a search of a person or their vehicle. The warrant requirement does contain exceptions, which allow police officers to perform a search when there is probable cause that evidence of a crime will be found, or for certain safety purposes. The Appellate Division recently reversed a defendant’s burglary conviction which was based upon the fruits of a warrantless search that the trial court had determined to be legally sufficient under an exception to the warrant requirement.

The defendant in the recently decided case was operating a vehicle when he was stopped for a traffic violation. The responding officers testified that they recognized the defendant and his vehicle from a “wanted poster” and an “I-card” that had been distributed to law enforcement after a string of burglaries were reported in the area. The defendant was taken into custody based on his reported description. Police then searched the vehicle and found a backpack which contained property that had been reported stolen in the alleged burglaries. Based on this evidence, the defendant was charged with burglary. Before trial, the defendant moved the court to suppress the physical evidence obtained in the traffic stop, arguing that the police did not have probable cause to search the vehicle based only on the description evidence they knew of at the time of the stop. The defendant’s motion was denied and he was convicted of the charges after a trial.

The defendant appealed the trial court’s denial of his suppression motion, and the appellate division ultimately reversed his conviction. The trial court’s reliance on the “automobile exception” to the search warrant requirement had not been affirmatively argued by the prosecutors before the conviction, and the trial judge’s application of such an exception to deny the defendant’s motion, while not expressly forbidden, was not supported by any evidence on the record when considering all of the circumstances. Because the prosecutors elicited no evidence in support of the trial judge’s reasoning for the denial of the motion, the decision could not stand. As a result of the appellate division ruling, the defendant may not face a conviction for the charges brought against him.

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.

Facing Drug Charges, New York Defendant Argues Warrants Were Insufficient to Support Officers’ Search of His Home

November 16, 2022 | Tilem & Associates

In a recent case before a New York court of appeals, the defendant appealed his conviction of criminal sale of a controlled substance in the first degree and criminal possession of a weapon in the second degree. On appeal, the defendant argued that the officers’ search warrants were invalid and did not meet the correct legal standard that would have allowed the officers to reasonably search the defendant’s apartment. Looking at the warrants, the court of appeals ultimately disagreed, sustaining the defendant’s guilty verdict.

Facts of the Case

According to the opinion, a confidential informant told undercover police officers that the defendant had illegal substances and weapons in his apartment. The defendant had no idea the police were suspicious of him, and he thus was unaware they had secured warrants from a judge to search his two apartments.

Soon, however, the officers executed their search warrants and came into the defendant’s apartment unannounced. They recovered various items, including one loaded pistol, heroin, fentanyl, and drug paraphernalia, immediately charging the defendant after having found these items.

THE CONCEALED CARRY IMPROVEMENT ACT WHERE WE STAND FOUR MONTHS LATER

November 9, 2022 | Peter Howard Tilem

Just about one week after the United States Supreme Court delivered its ground breaking decision in Bruen affirming the Constitutionally protected right to carry a gun in public and addressing the sanctity of the Second Amendment, Governor Hochul and the New York State Legislature convened an extraordinary legislative session and passed the “Concealed Carry Improvement Act. The purpose of the CCIA was to make the lawful carry of a firearm so difficult, so constrained and so limited that no one would choose to carry their firearm for fear of being charged with a felony. The thrust of the law was to create numerous sensitive and restricted locations where a licensed citizen could not carry firearms and to make the application process unduly burdensome.

The law was almost immediately after passage challenged in numerous Court proceedings. New York State rather than defending the law on the merits chose to defend the law mostly with the procedural argument that because the Plaintiffs challenging the law had not been arrested or suffered any harm they did not have standing to challenge the law. Now after several decisions, here is a partial list of what is still enforceable under the CCIA.

In the Western District of New York, on November 3, 2022, Judge Sinatra stayed the enforcement of the provisions of the CCIA which prohibited carrying a firearm in places of worship.