New York Criminal Attorney Blog

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.

Court Grants Motion to Suppress ID in Recent New York Burglary Case

February 22, 2022 | Peter Howard Tilem

Recently, a state appellate court issued an opinion in a New York burglary case discussing the defendant’s motion to suppress evidence of an identification made by a law enforcement officer. Ultimately, the court concluded that the procedures used by police to conduct the identification were “unduly suggestive,” agreeing with the defendant. Thus, the court reversed the lower court’s ruling, granted the defendant’s motion to suppress, and ordered a new trial. In the subsequent trial, the prosecution will not be permitted to use evidence of the complaining witness’s identification unless there is an independent source for the identification.

The Facts of the Case

According to the court’s written opinion, the defendant was arrested for residential burglary. During the investigation, without prompting from the police, the complaining witness found a Facebook picture of the defendant and told police that’s who had burglarized their home. Based on this information, police officers located an old arrest photo of the defendant and asked the complaining witness if it was the same person. The complaining witness made a positive identification.

The defendant filed a pre-trial motion to suppress the identification testimony, claiming it was unduly suggestive. The trial court disagreed, denying the defendant’s motion. The trial court denied the defendant’s motion on the basis that any suggestiveness in the identification procedure was not the result of any improper conduct of law enforcement. The defendant was convicted by a jury. He then appealed.

New York Court Denies Defendant’s Appeal in Sexual Assault Case

February 16, 2022 | Peter Howard Tilem

In a recent opinion from a New York court, the defendant in a child sexual assault case lost his appeal after he attempted to argue that the prosecution had behaved unfairly during his trial. The court disagreed, reviewing the prosecutor’s conduct and concluding that it was all acceptable. The defendant’s verdict was thus affirmed and he was sentenced to time in prison.

Facts of the Case

According to the opinion, the victim, a child born in 2009, told another student on the bus to school that the defendant (her mother’s partner) was engaging in sexual conduct with her. Authorities soon learned of this alleged sexual assault, and the defendant was charged with predatory sexual assault against a child as well as attempted rape in the first degree. The County Court dismissed the defendant’s rape charge, but the prosecution proceeded with a jury trial to rule on the predatory sexual assault charge.

As a result of the trial, the defendant was convicted and sentenced to 20 years to life in prison. He subsequently appealed the jury’s verdict.

Defendant’s Appeal Denied in New York Gun Case

February 10, 2022 | Tilem & Associates

In a recent New York gun case, the court in its decision denied the defendant’s appeal. Originally, the defendant was convicted of criminal possession of a weapon after he had an altercation with a woman on the side of the road. On appeal, he argued that there was not enough evidence to support the guilty verdict. The court sustained the verdict, disagreeing with the defendant’s main argument.

Facts of the Case

The incident leading to this case unfolded one evening in 2017 when the defendant was charged after he got into a fight with a woman on the street. According to the victim, she and a friend were walking one evening when they were almost hit by a red car that appeared to be recklessly driving. The defendant in this case emerged from the passenger seat, beginning the altercation between the defendant and the victim. The defendant punched the victim in the face, grabbed her purse, and ran to the car. At the same time, the victim saw the defendant grabbing what appeared to be a gun.

The defendant then yelled at the victim, “I’m a shooter” and ran away. Several hours later, police officers found the defendant and searched his home. During this search, officers found a loaded handgun hidden in a boot. Later, the defendant was indicted and charged with criminal possession of a weapon in the second degree, menacing in the second degree, and assault in the third degree.

New York Court Considers Defendant’s Right to a Speedy Trial, Remanding His Case to a Lower Court

February 4, 2022 | Peter Howard Tilem

Recently, a New York court considered a defendant’s appeal that too much time had elapsed between his DWI charges and the date of the trial that resulted in his guilty verdict which was a violation of his statutory and constitutional speedy trial rights. The defendant argued that his original guilty verdict should be overturned because his trial was unreasonably delayed. The court considered the defendant’s appeal and decided it did not have enough evidence to make an informed decision on the matter at hand. Thus, the higher court sent the case back to the lower court to consider the speedy trial issue which was never raised in the lower Court.

Facts of the Case

According to the opinion, the defendant was driving in March 2017 when he was pulled over by a police officer. The officer asked the defendant to step out of his car and perform a variety of field sobriety tests. The defendant performed poorly, and he was taken into custody. Tests revealed that the defendant’s blood alcohol content was .13%. He was charged with two misdemeanor counts of driving while intoxicated and one count of aggravated unlicensed operation of a motor vehicle in the first degree.