New York Criminal Attorney Blog

New York Court Denies Defendant’s Appeal in Drug and Firearm Case, Despite Argument Citing Newly Enacted Marijuana Law

April 26, 2022 | Peter Howard Tilem

In a recent case coming out of a New York court, the defendant appealed his guilty conviction for criminal possession of a weapon in the second degree. Officers searched for this weapon only because they had previously smelled marijuana in the defendant’s car, making them suspicious of additional drug or criminal activity. In his appeal, the defendant relied on a recently enacted law that legalizes possession of marijuana in certain amounts for individuals who are 21 or older in New York. The court acknowledged this new law but ultimately ruled that the law does not apply to convictions that occurred before the passage of the law in 2021. The Court found that the police officer had reasonable cause to believe that there was contraband located in the car, to wit marijuana. At the time of the search, possession of marijuana was still illegal in New York. Therefore, because the defendant was charged in 2018, he could not use the law to argue for his conviction to be overturned.

Facts of the Case

According to the opinion, two police officers were patrolling one evening in his car when they noticed the defendant pull away from the curb without signaling. The officers signaled the defendant to pull over and then conducted a traffic stop. Once the defendant rolled down his car window, the officers immediately smelled a strong odor of marijuana.

After the officers asked the defendant whether there was, in fact, marijuana in the car, the defendant answered in the affirmative and opened his center console. The officers found two bags of marijuana and $1,000 cash. Continuing to smell the marijuana, the officers searched other areas of the car and subsequently found a loaded firearm in the trunk.

New York Court Denies Defendant’s Appeal in DUI Case

April 20, 2022 | Peter Howard Tilem

In a recent opinion from a New York appellate court, the defendant unsuccessfully appealed his convictions of attempted assault in the second degree and operating a motor vehicle while intoxicated by alcohol. The defendant argued that the blood sample the State used as evidence against him was both based on an invalid search warrant and was inadmissible in court. Disagreeing with the defendant on both arguments, the court denied the appeal and affirmed the guilty verdict.

Facts of the Case

According to the opinion, the defendant had been charged with violating a traffic law in New York one evening in 2017. In connection with the accident that occurred as a result of the defendant’s violation, he was taken to the hospital and his blood was drawn for medical purposes. One month later, while investigating the original violation, the State applied for and was granted a search warrant and order of seizure for the defendant’s blood sample. After examining and testing the blood sample, officers discovered that the defendant had been intoxicated at the time of the traffic violation.

Based on this information, the defendant was charged, convicted, and sentenced to time in prison.

EVEN BEFORE NEW YORK “GHOST GUN” LAW TAKES EFFECT THE CRACKDOWN HAS BEGUN

April 14, 2022 | Peter Howard Tilem

As New York firearms attorneys we reported in our December 28, 2021 blog about the new law regulating 80 percent lower receivers in New York, the law allows for a six month grace period. However as has been reported in the news lately, the term “Ghost Gun” is the new boogie man for gun control supporting politicians and raids have been taking place before the new law even takes effect. Please read this article and this one.

The problem for many gun owners begins when they unlawfully finish what started out as an 80 percent lower in one of two ways. First, it is a serious felony under New York law to possess any handgun, even in one’s own home without a handgun license. Once you complete the 80 percent lower into a handgun a person who doesn’t have a pistol license possesses an unregistered and unlicensed firearm, referred to by many politicians as a “ghost gun”. The fact is that getting a handgun license in many New York counties, especially during the pandemic could take a year or more. In addition, fully manufactured guns were hard to come by. Some people took matters into their own hands and completed 80% lowers into functioning handguns.

Possession of a handgun without a license in your home or place of business is a class “E” felony punishable by up to 4 years in prison. Possession of a loaded unlicensed and unregistered handgun outside your home or place of business is a class “C: violent felony and carries a mandatory minimum sentence of 3.5 years in State prison with a maximum sentence of 15 years. Possession of 3 or more firearms makes it a “D” felony and possession of 5 or more firearms makes it a “C” felony.

New York Court Denies Defendant’s Appeal in Drug Case, Relying on Automobile Exception to the Warrant Requirement

April 9, 2022 | Peter Howard Tilem

In a recent opinion from a New York court in a New York drug case, the defendant’s appeal of his conviction for drug possession was denied. Originally, the defendant was arrested after officers found heroin in his vehicle, but he filed a motion to suppress the incriminating evidence. The lower court denied this motion, concluding that the officers conducted a proper search of the defendant’s vehicle. On appeal, the higher court agreed with the lower court’s denial of the motion to suppress. The defendant’s guilty conviction was thus affirmed.

Facts of the Case

According to the opinion, police officers worked on this case with a confidential informant, who provided samples of heroin that he had obtained from the defendant on previous occasions. On the day the defendant was charged for drug possession, the informant had arranged to purchase a large quantity of drugs from the defendant.

Because the officers had previously suspected the defendant of drug possession, they had arranged for a GPS to be put on his car to track his location. Thus on the day the informant was supposed to conduct the drug exchange, the officers were able to locate the defendant and his automobile. They searched the car and subsequently found a bag of heroin inside.

New York’s Highest Court Determines that Two Hour Rule For Breath Tests is not Applicable to Revocation Hearing

April 3, 2022 | Tilem & Associates

In a recent New York DWI case coming out of the New York Court of Appeals, New York’s highest Court, the defendant lost his appeal challenging the court’s previous decision to take away his license. Previously, the defendant had refused a chemical test when an officer pulled him over for a DWI. Because of this refusal, the New York State Department of Motor vehicles (NY DMV) revoked his license. The defendant argued on appeal that he had every right to refuse the officer’s request to test him because more than 2 hours had lapsed between the arrest and when he refused the test, but the court disagreed and affirmed the original decision.

Facts of the Case

According to the opinion, the defendant in this case was arrested for driving while intoxicated in 2016. About three hours after police officers arrested the defendant, the officers warned the defendant that there would be consequences if he decided not to consent to a chemical test. Despite this warning, the defendant refused the test.

In New York, drivers charged with a DWI are subject to something called the two-hour rule, which says that a driver who appears drunk must be tested either within two hours of the time of the arrest or the time of a positive breath screening test. Because of this law, the defendant’s refusal to submit to a test resulted in another hearing, during which the court had to decide whether or not to take away his license.

New York Court Agrees to Suppress Incriminating Evidence in Murder Case

March 26, 2022 | Tilem & Associates

In a recent murder case coming out of a New York court, the defendant was partially successful in his appeal. Originally, the defendant was convicted of several crimes, including murder in the second degree, kidnapping in the first degree, burglary in the first degree, and attempted robbery in the first degree. On appeal, the defendant made many arguments, one of which was that incriminating evidence coming from his clothing should have been suppressed at trial. The court agreed with the defendant, ruling that the court should have suppressed the DNA evidence coming from his clothing.

Facts of the Case

According to the opinion, one evening in 2014, three men with masks forced themselves into an apartment and began shooting at the apartment’s residents. One of the residents was killed, and the three suspects promptly fled the scene.

The same evening, the defendant in this case was admitted to the emergency room with a gunshot wound in his leg. When an officer came to question him about the wound, the defendant said he needed to rest and would answer more questions at a later time. The officer left the room, taking a bag of the defendant’s clothing without permission as he left.

New York Court Denies Defendant’s Appeal in Forgery Case

March 20, 2022 | Peter Howard Tilem

In a recent opinion from a New York court, the defendant’s appeal of his forgery conviction was denied. Originally, the defendant was convicted of criminal possession of a forged instrument due to his attempts at using a fake gift card to purchase items at a department store. He was also convicted of petit larceny, and he appealed both convictions. The higher court considered the defendant’s argument but ultimately affirmed the defendant’s original guilty verdict.

Facts of the Case

According to the opinion, the defendant in this case was a New York resident who went shopping at a Century 21 department store. While there, the defendant used a forged gift card to try and make purchases. Apparently, the gift card had been manufactured so that a third party would be billed for the transaction, allowing the defendant to buy items without having to pay any money. When the defendant was caught using the forged card, he told the department store’s security guards that he purchased the card from a stranger for $20, even though he had been attempting to purchase $70 worth of clothing at the time.

The Decision

On appeal, the defendant argued that incriminating evidence of his attempted theft should have been suppressed at trial. The defendant focused on the fact that the evidence used at trial came from the store’s security guards, who were subject to the same rules as state actors, such as police officers or government employees. The Constitution protects an individual from infringement of certain rights from the Government not from private individuals or companies. Therefore, one may only have evidence suppressed if it is illegally seized by government actors and not private actors. Because the store’s guards were considered state actors for the purposes of this case, said the defendant, they were supposed to carefully ensure that they were not intruding on the defendant’s constitutional rights. These rights include the right to privacy as well as the right to not be searched without probable cause.

New York Court Affirms Defendant’s Convictions in Assault Case

March 13, 2022 | Peter Howard Tilem

In a recent case from a New York court, the defendant’s appeal of his assault arrest and conviction was granted in part and denied in part. The defendant was found guilty of assaulting a person with severe physical disabilities, and he was sentenced to time in prison accordingly. On appeal, the defendant argued there was insufficient evidence to support this verdict. The court agreed that one of the defendant’s convictions should be reversed, but affirmed the defendant’s remaining three convictions.

Facts of the Case

According to the opinion, the defendant worked at a residential care facility that houses people with developmental disabilities. In 2014, the defendant and three other staff members were charged after they struck and hit a facility resident. The resident, who had severe disabilities, knocked over his meal and was punished by the defendant by being put in a “time-out” room. Immediately after the defendant and the three other staff members put the victim in time-out, the defendant put the victim in a chokehold, and the three others began punching and kicking the victim.

At trial, the defendant was convicted of endangering the welfare of a physically disabled person in the first degree, assault in the second degree, assault in the third degree, and official misconduct. He was sentenced to time in prison and a $5,000 fine.

Defendant’s Challenge to DWI and Assault Convictions is Rejected by Appellate Division

March 6, 2022 | Peter Howard Tilem

An arrest for driving while intoxicated (DWI) can be a serious charge with serious consequences in the event of a conviction. If an intoxicated driver also injures another person in an accident while driving under the influence, they may be charged with criminal assault as well as the DWI offense. Because of the serious implications that both DWI and violent crime charges can have on one’s record, it is important for people charged with such crimes to mount a strong legal defense from the start. The Appellate Division of the Supreme Court of New York recently addressed an appeal by a man who was convicted of DWI and assault charges after being involved in a head-on collision while allegedly intoxicated.

According to the facts discussed in the appellate opinion, the defendant was arrested after he was involved in a crash where he crossed over a double yellow line and struck another vehicle, seriously injuring the occupants. After consenting to a blood test, the defendant was found to have a blood alcohol content in excess of the legal limit, and he was charged with DWI and assault offenses. The defendant attempted to suppress the results of the blood test, arguing that there was no warrant or probable cause for the officer to draw his blood. The appellate court rejected the defendant’s arguments, finding that he had consented to the blood draw and no warrant was needed. The defendant also appealed his conviction on other grounds, which were not addressed by the court because his trial counsel did not make the appropriate objections to preserve those arguments for appellate review.

Trial judges who make legal errors that violate the rights of defendants can be reversed by appellate courts if the proper procedures are followed. One requirement for a ruling to be reversed on appeal is that the ruling was objected to at the lower level. When a criminal defense attorney fails to properly object to an erroneous trial court decision, their client may not be able to get the appropriate relief, even on appeal. Rather, it is essential that a trial attorney “preserve” an issue for appeal by making a timely objection during the trial. Because of this, it is essential for defendants to retain experienced and knowledgeable criminal defense counsel as early in the process as possible.

New York Court Denies Defendant’s Appeal in Recent Murder Case

February 28, 2022 | Peter Howard Tilem

In a recent case coming out of a New York court, the defendant’s appeal of his murder conviction was denied. In 2017, the defendant was convicted of murder in the second degree, assault in the second degree, aggravated criminal contempt, criminal contempt in the first degree, and assault in the third degree. Taking issue with his guilty verdict, the defendant appealed; however, the court rejected the defendant’s argument and affirmed his original convictions.

Facts of the Case

According to the opinion, the defendant and the victim were alone together in an apartment one evening. The pair were arguing at the time of the victim’s death, leading the jury to later infer that the defendant had some kind of motive to hurt the victim. After the death, a medical examiner conducted an autopsy on the victim’s body. That examiner discovered that the victim died from hemorrhages in her skull caused by blows to the head. She also had hemorrhages in her larynx, which would have been due to some kind of external compression. Additionally, the autopsy revealed that the victim had experienced fatal damage to her liver, which could have only come from blunt force trauma.

Reviewing this report from the medical examiner along with other evidence presented at trial, the jury found the defendant guilty of murdering the victim.