New York Criminal Attorney Blog

SUFFOLK COUNTY POLICE SEND OUT WAVES OF LETTER CONCERNING DLD OTHERS

June 23, 2021 | Peter Howard Tilem

As we wrote in our blog on March 12, 2021 Jerry from Jerry’s Firearms in Suffolk County was arrested. At that time there was speculation about the charges and whether Jerry was arrested for selling “other” weapons that the Suffolk County Police decided violated New York’s Safe Act or whether Jerry was arrested for record keeping violations. It now appears that the answer is both.

Franklin Armory Other

In late May 2021 the Suffolk County Police began sending unsigned letters to purchasers who bought the Delta Level Defense CT4-2A, other firearm that demanded that the purchaser call the Suffolk County police to schedule an “inspection” of the gun. Since May, at least one other round of letters has gone out. The letter indicates that those who comply will not be arrested and rumors have been circulating that the Suffolk county Police have threatened those who took the guns out of state or modified them with arrest for tampering with evidence. It has become clear that the Suffolk County police consider these firearms illegal and Jerry has been charged with a class “B” violent felony for selling 10 or more of these firearms. He faces up to 25 years in prison.

Court Grants Defendant’s Motion to Suppress After Officers Search Closed Container Incident to Lawful Arrest

June 21, 2021 | Peter Howard Tilem

The New York and federal constitutions provide fundamental rights to all citizens. Among the most important are those contained in the Fourth Amendment. The Fourth Amendment generally protects citizens from unreasonable searches and seizures. Historically, this meant that police officers needed to obtain a warrant before searching a person, their belongings, or a place in which the person had a reasonable expectation of privacy, such as a home. The Exclusionary Rule prohibits the introduction into evidence and the use in Court of evidence seized in violation of the Fourth Amendment.

However, over the years, courts realized that the warrant requirement was overly burdensome on law enforcement and created exceptions to the warrant requirement. For example, police officers who observed a crime occurring can arrest the person suspected of committing the crime and then conduct a limited search incident to that arrest. Of course, there are limits on the scope of a search incident to an arrest; one of which involves police officers searching a closed container after a lawful arrest.

A recent case illustrates how the plain view doctrine can play out. According to the court’s opinion, a defendant was arrested for criminal possession of a forged instrument. After arresting the defendant, the arresting officer pulled out a manila envelope from the defendant’s pocket. The envelope was closed, and the contents were not visible. However, the police officer opened the envelop enough to peek inside. Inside the envelope, the officer found additional incriminating evidence.

Court Upholds Warrantless Search in Recent New York Kidnapping Case

June 15, 2021 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York kidnapping case. In its opinion, the court addressed the defendant’s motion to suppress physical evidence obtained when the officers executed a warrantless search of his home. The defendant also sought suppression of post-arrest statements he made to detectives.

The Facts of the Case

According to the court’s opinion, police officers received a call indicating that the caller’s friend may have been kidnapped. Apparently, the defendant and several others allegedly kidnapped the complaining witness and called several of their friends, asking for a ransom. One friend recognized the caller’s voice as the defendant’s.

Court Issues Opinion in New York Gun Case Involving Parole Officers’ Search Based on Anonymous Tip

June 9, 2021 | Tilem & Associates

An individual charged and convicted upon a guilty plea of a New York weapons offense recently appealed his conviction based on a constitutional violation of his rights. The accused argues that the trial court erred in failing to suppress evidence that his parole officer recovered during searching the man’s home. He argued that the search was precipitated on an uncorroborated anonymous tip. Moreover, he contended that the officers did not establish the tip’s source of knowledge or reliability.

According to the record, the appellant’s parole officer explained that he received a call through the Department of Probation that the appellant may have a firearm. The parole officer then searched the appellant’s residence and discovered a firearm wrapped in plastic underneath clothes in a closet. The court refused to review the appellant’s contention on appeal, reasoning that the accused did not raise it before the court. However, a dissenting judge explained that, in his view, the warrantless search was unlawful because it rested solely on an anonymous tip from an unidentified person.

New York is one of the few states that retain the Aguilar-Spinelli test to determine the validity of a warrantless arrest stemming from an anonymous tip or confidential informant. Under this test, law enforcement must provide the magistrate signing the warrant with reasons to support the finding that the informant is reliable and of some of the circumstances that the informant relied upon. Further, after arraignment, law enforcement must establish facts that show the anonymous tipster is reliable and credible and establish the circumstances relied upon by the tipster. Despite this test, there is limited guidance on when a confidential informant or anonymous tipster should be deemed “reliable.” Lower courts rarely find anonymous tipsters reliable in the absence of predictive information.

New York Traffic Stops in “High Crime” Areas

June 3, 2021 | Peter Howard Tilem

As we reported in our blog on March 31, 2021, we won a five year battle to get a New York gun charge dismissed based upon an illegal search. State and federal law as well as the US Constitution provide that all citizens enjoy the right to be free from unreasonable searches and seizures. Historically, this meant that police officers needed to obtain a warrant before they conducted any type of search. However, the practicalities of life in the 20th century required the court to create specific exceptions to the warrant requirement. One of the most important exceptions to the general rule requiring a warrant pertains to New York traffic stops.

Over the years, courts have held that automobile stops present certain facts that make it impractical for law enforcement to obtain a warrant. For example, vehicles are mobile, may contain dangerous weapons, and occupants are obscured from police view. Thus, police officers do not need to get a warrant before searching a car in many cases. However, just because they don’t need a warrant doesn’t mean they can search a car for any reason.

Generally, police need to provide justification for any warrantless search. In the case of traffic stops, this requires the officer have probable cause to suspect that the driver or one of the vehicle’s occupants is involved in criminal conduct. Courts rely on several factors when assessing whether an officer had probable cause to search a car including, the occupants’ behavior, any immediately visible evidence of wrongdoing, and whether the traffic stop occurred in a “high crime” area.

Should I Take a Chemical Breath Test after a New York DWI Arrest

May 25, 2021 | Peter Howard Tilem

There are significant ramifications after one is charged or convicted of a New York DWI criminal offense. These cases can impact a person’s rights in many ways, including, fines, surcharges, loss of driving privileges, probation and jail and pose serious reputational, financial, and familial issues. Individuals who face these charges should consult with an attorney to discuss their rights and defenses.

New York Vehicle and Traffic Law (VTL), provides that individuals stopped by police for suspicion of driving while ability impaired by drugs (DWAI) or driving while intoxicated (DWI) will be asked to submit to a chemical test to determine the content of alcohol in their blood, breath or urine. These tests typically involve both a field breath test and a chemical breath test at a police station. The law allows motorists to refuse these tests, however, if they are arrested and refuse a properly requested chemical test their driver’s license will be immediately suspended and if after a hearing an Administrative law Judge finds that a properly requested breath test was refused, DMV will revoke the driver’s license for a minimum of 1 year. Drivers who have been stopped or accused of DWI often struggle to decide if they should comply with a test, and if so, which one.

New York state law breath analysis tools measure an individual’s blood alcohol content (BAC) and must be approved by the state’s Department of Health. The breathalyzer an officer uses must be on the approved list of devices, however, these devices like any other instrument may be prone to defects.

Court Discusses the Standard for Approaching a Person in a Parked Car in Recent New York DUI Case

May 18, 2021 | Peter Howard Tilem

Earlier this year, a state appellate court issued an opinion in a New York Drinking and Driving case discussing the standard courts use to determine whether a police officer’s actions were justified in stopping a parked car. Ultimately, the court concluded that the officer’s stop of the defendant was valid, affirming the defendant’s convictions.

The Facts of the Case

According to the court’s opinion, a police officer was on routine patrol around 1:45 in the morning when he saw a vehicle parked in a gas station parking lot. The officer thought it was odd, considering the gas station was closed and pulled up to investigate.

As the officer passed the vehicle, he saw the defendant slumped over the steering wheel. The officer exited his car to “make sure the driver was alright.” Initially, the officer banged on the window, but the defendant remained still. The officer then opened the unlocked car door and shook the defendant until he came to. At this point, the officer could smell alcohol on the defendant’s breath, leading to the defendant’s arrest.

How A Driving While Intoxicated Conviction Affects A Green Card Holder

May 12, 2021 | Peter Howard Tilem

As DWI lawyers, we have to be concerned about the numerous potential collateral consequences to a DWI arrest. The day non-U.S. citizens receive their Permanent Resident Card—more popularly known as a green card—is probably one they will never forget. Being green card holders will finally allow them to enjoy benefits they’ve never had before, including sponsoring immediate family members to stay in the U.S. with them and traveling more smoothly in and out of the country. However, green card holders can jeopardize their lawful permanent resident (LPR) status if they commit what’s referred to as “crimes of moral turpitude,” which can include Driving While Intoxicated or DWI.

For an American citizen, the consequences of a DWI conviction can be harsh enough. The potential for jail time, probation, heavy fines, driver’s license suspension or revocation, and ignition interlock installation are among the penalties that await DUI offenders. For a green card holder, the outcome of a DWI can be so much worse.

Possible Deportation

New York Court Finds Field Sobriety Tests Were Improperly Conducted, but Defendant’s Arrest Lawful

May 5, 2021 | Tilem & Associates

Earlier this year, a state appellate court issued a written opinion in a New York DWI case involving a defendant’s motion to suppress evidence that was obtained during what she claimed was an illegal arrest. Ultimately, the court found that the officer did not conduct the field sobriety tests correctly, but still had enough evidence to arrest the defendant for driving while intoxicated. Thus, the court reversed the lower court’s decision to grant the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, a police officer observed the defendant driving erratically. Among other things, the officer claimed to see the defendant driving 20 to 25 miles per hour in a 45 mile-per-hour zone. After a few moments, the officer turned on his dashcam, pulled over the defendant, and administered field sobriety tests. None of the defendant’s erratic driving was caught on the video footage.

The officer conducted field sobriety tests, determining that the defendant was intoxicated, and arrested her for DWI. The defendant then made an inculpatory statement and agreed to a breath test, which indicated she was intoxicated.

Court Suppresses Weapon Found During Inventory Search in Recent New York Gun Case

April 27, 2021 | Peter Howard Tilem

Earlier this year, a state appellate court issued an opinion in a New York gun case involving what the prosecution called a valid inventory search. However, the court rejected the prosecution’s characterization of the police officers’ search of the defendant’s vehicle as an inventory search, suppressing the evidence found in the defendant’s car.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by police for an unrelated violation. As the defendant pulled over, he parked his car on the corner. There was no indication that he illegally parked his car or that there was a limit on how long the defendant’s car was allowed to remain parked at the location.

However, the arresting officers decided to transport the defendant’s vehicle to the police station because they believed it was used in the commission of a crime. When the vehicle arrived at the police station, officers searched the car, finding a gun. The defendant was charged with criminal possession of a weapon in the second degree.