New York Criminal Attorney Blog

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.

The Importance of a Competent Trial Attorney to Preserve all Potential Appellate Issues

November 7, 2022 | Peter Howard Tilem

Criminal defendants in the State of New York may often feel like they are playing Russian roulette with all of the variables affecting their case which may be out of their control. The assignment of a certain prosecutor, judge, or jury to a case can have an outsized influence on the result of a case. When defendants are convicted upon illegal or improper evidence and tactics by the state, the right to an appeal can be the final chance a defendant has to vindicate themselves from a conviction. The New York Appellate Division recently addressed an appeal that was filed by a defendant who had been convicted of several violent crimes and challenged the police and prosecution conduct pertaining to his arrest and conviction.

The defendant in the recently decided appeal was convicted in early 2020 of manslaughter and several lesser crimes after a jury trial. The defendant appealed his conviction, arguing that the trial court made several errors in his prosecution. The defendant’s primary challenge was to the use of a police lineup for purposes of identification. Before his prosecution, the defendant was included in a lineup with several others. Under New York law, investigators are allowed to use a police lineup for identification purposes, but the participants must be sufficiently similar in appearance to the defendant so as to not orient the witness toward the defendant. The Appellate Division determined that the other participants in the lineup used in this case met that requirement, and the defendant’s appeal of this issue was rejected by the court.

The defendant also challenged a certain line of questioning pursued by the prosecutor when the defendant himself was testifying in his defense. The prosecutor asked the defendant to state on the record whether another witness was lying to the jury. The court determined that this question was not proper, however, the defendant’s trial attorney failed to object to the question at the time it was asked, and the court refused to consider the issue because it was not properly preserved for appellate review. In issues of grave error, an appellate court may address an unpreserved issue, but the bar is much higher to pass for such consideration. Because the defendant’s trial counsel failed to object to the questioning, the court refused to reverse the defendant’s conviction.

The Process of Applying for a Gun Permit in New York City

November 1, 2022 | Peter Howard Tilem

In the state of New York, it is necessary to have a permit in order to carry or possess a handgun. The process of applying for a gun permit can be daunting, but we’re here to help. Keep reading to learn more about the steps you need to take in order to obtain a gun permit in New York City.

1. Determine if you are eligible for a gun permit. In order to be eligible, you must be 21 years of age or older, have no or a minimal criminal record (you may not have a felony conviction), and be a resident of or be be employed within New York City. If you meet these criteria, you can move on to the next step.

2. Collect the necessary documentation. You will need to bring a completed application, two passport-style photos, and the appropriate fee to the NYC Licensing Division, along with other documentation to establish identity, residence and employment. You can find the application and fee schedule on the NYC Licensing Division website.

New York Court of Appeals Sides with Defendant and Suppresses Incriminating Statements

October 22, 2022 | Peter Howard Tilem

Earlier this month, an appellate court in New York ruled in favor of a defendant after he was found guilty of both criminal possession of a weapon and possession of controlled substances. On appeal, the defendant argued that the lower court was incorrect when it decided to admit incriminating statements he had made to a police officer before being given any Miranda warnings. Considering the context of the defendant’s statement, the appellate court reversed the lower court’s decision.

Facts of the Case

According to the opinion, the defendant was charged with several crimes in June 2021: criminal possession of a weapon, unlawful sale of dangerous substances, and criminal use of drug paraphernalia. Because the defendant had to receive medical treatment immediately following an incident with the weapon, he was taken to the hospital and put under emergency care.

A police officer was stationed outside the defendant’s hospital room, and the defendant proceeded to call the officer to his bed and say to him, “I’m beat up.” The officer asked the defendant exactly what happened, and the defendant explained the circumstances around how he illegally came into possession of a weapon. The officer then testified as to these statements before the court, using them as part of the State’s case against the defendant.