New York Criminal Attorney Blog

Arguing Misidentification in New York Cases Involving Violent Crimes

October 28, 2024 | Peter Howard Tilem

If you have been charged with a violent crime in New York, including assault, assault and battery, or a firearms charge, there may be grounds to argue that there is an issue of identity in the case against you. In a recent case in a New York court, the defendant argued that the guilty conviction against him was unreasonable because the assault victim had no way of accurately identifying him after the incident in question.

Case Before the Appellate Division

In the case before the New York Appellate Division, Third Department, the defendant argued that his assault-related case should have been dismissed by the trial court. According to the defendant, the victim did not actually see who punched him on the left side of his face, since he was busy looking at two other individuals involved in the altercation, who were wrestling on the ground. Therefore, said the defendant, the guilty conviction was not supported by legally sufficient evidence. He asked the higher court to vacate his conviction.

Analysis of Events Surrounding the Assault

The higher court disagreed with the defendant, concluding instead that the events surrounding the incident could have led a reasonable jury to believe he was guilty of the assault. For example, the assault victim saw the defendant standing directly over him after he was hurt. After that, the defendant and the victim had a verbal altercation, and the defendant head-butted the victim. Because of this chain of events, the victim could have sensibly identified the person that assaulted him. Therefore, defendant’s argument did not have merit – there was not reason for the trial court to have dismissed his case.

The Importance of Putting Forward Sufficient Evidence During Your Criminal Case

October 21, 2024 | Peter Howard Tilem

The United States Constitution provides that the defendant has no duty to present any evidence showing that they didn’t commit a crime because it’s the government burden to prove guilt; not the defendant’s burden to prove their innocence. However, when thinking through litigation strategy in any realm, it is important to put forth as much helpful evidence as possible as you build your case for a judge or jury. In preparing for a sentencing hearing it is important to have helpful, specific and mitigating evidence. In a recent criminal case before the New York Appellate Division, Third Department, the defendant lost on appeal, in part because her evidence and testimony were “vague and imprecise.” The opinion serves as a reminder to work relentlessly to meet your burden when trying to win your case or when trying to get your charges dropped altogether.

Facts of the Case

In the case before the Appellate Division, the defendant pled guilty to robbery in the first degree, and the court issued a protective order in favor of the victim in the case. Apparently, during the robbery in question, the defendant had physically harmed the victim, including by pouring toxic household cleaners on her body while she was pregnant. The court sentenced the defendant to nine years in prison.

The Defendant’s Appeal

On appeal, the defendant argued that she was a victim of domestic violence at the hands of a member of the same household at the time of the robbery. She argued that the domestic violence committed against her acted as a significant contributor to her own criminal behavior. The court should have considered this factor and sentenced her to less time in prison as a result.

New York Court Denies Defendant’s Request to Suppress Evidence of Drugs in Controlled Substance Case

October 15, 2024 | Peter Howard Tilem

In a recent drug case before the New York Appellate Division, Second Department, the defendant asked the court to reconsider the lower court’s denial of his motion to suppress the evidence that he was arrested in possession of. Originally, the defendant was convicted of criminal possession of marijuana and criminal possession of a controlled substance. When the defendant had initially asked the trial court to suppress evidence of drugs in his car that were recovered pursuant to a search warrant, the court had denied the motion without a hearing. Despite the defendant’s challenge of this decision, the higher court denied his appeal and affirmed his original convictions. The case serves as a reminder that, at times, officers have broad leeway to search private vehicles, which can lead to incriminating and frustrating results.

Facts of the Case

According to the opinion, officers searched the defendant’s car because the defendant’s brother pointed a firearm at several people after getting out of the car that the defendant was driving. Officers impounded the car, and they later obtained a warrant then searched the vehicle. At that point, the officers found ecstasy pills as well as marijuana inside the car. Facing criminal charges, the defendant filed a motion to suppress, and the court denied this motion without a hearing. The defendant’s case later went to trial, and a jury found him guilty as charged. The trial court then sentenced him to time in prison accordingly.

The Decision

On appeal, the defendant argued that the lower court should not have denied his motion. The higher court, however, disagreed. It was reasonable, said the court, for the officers to suspect that they might find evidence of criminal conduct in the vehicle. The vehicle was properly impounded as a result of the defendant’s brother’s pointing a gun at a group of people nearby. Continue reading

When Can a Police Officer Legally Frisk a Suspect in New York?

October 8, 2024 | Peter Howard Tilem

We have written extensively about the rights of citizens involved in street encounters with the police and the four tiers of intrusion based upon the level of suspicion that the police have. According to New York law, an officer may rightfully frisk a person when the officer has a “reasonable suspicion” that the person is armed and therefore that the officer is in danger. A recent drug case before a New York court put this law to the test, when a defendant appealed a lower court’s decision to deny his motion to suppress. The higher court, considering the defendant’s appeal, decided that the officer did not have grounds to suspect that the defendant was armed, siding with the defendant and reversing the lower court’s decision.

Basis for the Defendant’s Appeal

In New York, an officer with reasonable suspicion that a detainee is armed may, indeed, frisk the detainee. The officer must have knowledge of some circumstance that allows him to believe that his safety is threatened because the detainee is armed. These circumstances could include: the nature of the crime being investigated, the suspect’s behavior, and any bulges in the suspect’s clothing.

In the case on appeal, the defendant argued that when an officer stopped him for failing to use his turn signal, it was unreasonable for the officer to then pat him down several minutes into the traffic stop. During the frisk, the officer found PCP on the defendant’s person; the defendant was charged with (and later convicted of) criminal possession of a controlled substance.

Probable Cause in New York Drug Cases When an Officer Cannot Confidently Identify the Object “Changing Hands”

October 1, 2024 | Peter Howard Tilem

When a police officer suspects that he witnesses the exchange of drugs for sale, can he arrest a suspect even if he’s unable to confidently identify the object that changed hands? According to New York case law, the answer is yes. A recent case before the New York Appellate Division, First Department clarifies the analysis that answers this question, which in turn applies to suspects and defendants involved in cases revolving around the alleged sale of a controlled substance. The case marks an obstacle for defendants in these kinds of cases, but it is crucial for defendants to know where the law stands when involved in the alleged sale of a controlled substance.

Case Before the Appellate Division

According to the facts of the case, a police officer noticed a man standing outside of a hotel one evening, wandering around and “nervously looking around.” A few moments later, the officer saw the man start speaking with a woman that he knew had been arrested in the past for drug-related charges. At that point, he saw an object “change hands,” or go from one person to the other.

The officer arrested the defendant, and the defendant was charged and later convicted of criminal sale of a controlled substance in the third degree, as well as criminal possession of a controlled substance in the third degree. The defendant filed a motion to suppress, arguing the officer did not, in fact, have probable cause to arrest him in the first place. The trial court denied this motion, and the defendant appealed the trial court’s decision.

Using Psychological Tests as Evidence During Criminal Proceedings in New York

September 24, 2024 | Tilem & Associates

One set of tools that defendants can use throughout the course of their litigation is psychological testing and accompanying expert opinion. For some defendants, if a qualified expert can testify that the defendant is not at high risk of re-offending, the court will sentence the defendant more leniently. In one recent case before the Appellate Division, Third Department, the court decided that the defendant’s test results should have resulted in a downward departure of his sex offender registration (SORA) risk level. The case marks a win for the defendant, who asked the court to keep his psychological test results in mind when making a decision.

Originally, the defendant pled guilty to four counts of felonious sexual assault as well as misdemeanor charges related to the provision of alcohol to a minor. The trial court sentenced him to time in prison, and when he was released, the Board of Examiners of Sex Offenders classified him as a risk level two sex offender under the Sex Offender Registration Act. The defendant appealed, arguing he should have been classified as a level one offender, which would indicate to the public that he was not at high risk for reoffending.

The court agreed with the defendant that level one would have been more appropriate. The court’s reasoning rested on results of the defendant’s psychometric testing and of the testers’ expert opinions. Two professional evaluators tested the defendant, one a clinical social worker and the other a psychologist. According to both test results, the defendant was at a low risk of reoffending. The defendant had strong familial support, he was undergoing a difficult time when he originally offended, and he did not have a tendency to inappropriately act on feelings of anger.

First Degree v. Third Degree Assault in New York

September 16, 2024 | Peter Howard Tilem

When an individual is charged with assault, the proceedings can take many different forms. It can depend, in part, on what kind of assault the State alleges the defendant committed. In an opinion that recently came out of an appeals court in New York, the court discusses the difference between assault in the second degree and in the third degree, providing an apt reminder of the different elements and consequences of each crime.

Facts of the Case

In the recent case before the Appellate Division, First Department, the defendant was convicted of attempted assault in the first degree and assault in the second degree. The conviction was based on an incident in which the defendant punched and injured two individuals one night in Manhattan. At least one other person was involved in the attack, and that second person used a weapon, which the prosecution described as a “long, thin, dark-colored object” during trial.

Assault in the Second Degree

On appeal, the defendant argued that the court should have granted his request to instruct the jury that he could have been found guilty of assault in the third degree in instead of assault in the first degree. The difference between the two crimes is important. To be found guilty of assault in the first degree, a jury would have to find: that you had the intent to cause serious physical injury (and did cause injury); that you intended to cause injury and used a dangerous instrument (i.e., a weapon); that you assaulted an official; that you recklessly caused injury with a weapon; that you intentionally caused someone to become unconscious; or that you injured someone when committing a felony.

New York Court Answers Question Regarding Sex Offender Registry in Opinion

September 9, 2024 | Peter Howard Tilem

A New York court recently issued an interesting opinion dealing with the sex offender registry, and its opinion highlights a technical question that can have significant impacts on defendants convicted of sex crimes. The question before the court had to do with a specific defendant’s status on the sex offender registry. She argued that she should be listed on the registry as a nonviolent offender, while the State argued she should be listed on the registry as a violent offender. Ultimately, the court’s decision came out in favor of the defendant, and it decided to make her status “nonviolent” on the registry in New York.

The Defendant’s Conviction

In the case before the Appellate Division, Fourth Department, the defendant appealed an order from the lower court that designated her as a “sexually violent offender.” The defendant lived in North Carolina, and while living there, she was convicted of sexual activity under the theory of aiding and abetting. She registered as a sex offender and later moved to the state of New York. She was then required, under the law, to register as a sex offender in New York.

The Board of Examiners of Sex Offenders conducted a risk assessment of the defendant to determine her level of risk for purposes of the sex offender registry. The Board did not think that the defendant needed to be labeled “sexually violent,” but the State argued that she should be designated “violent” because of a specific law, which says when a person is convicted in another state, that person should then be labeled as a sexually violent offender in the new state where they reside.

Criminal Case in New York Demonstrates Importance of Diligent and Detail-Oriented Representation

September 2, 2024 | Peter Howard Tilem

A September 2024 Grand Larceny case in New York demonstrates how crucial it is to carefully review every agreement you sign related to your criminal offense. The case was based on the theft of a cell phone, and it originally resulted in a sentence of one year in prison. The defendant ultimately got his conviction reversed on appeal. The case serves as a reminder that if you are facing criminal charges in New York, you need a thorough and detail-oriented defense attorney in your corner to carefully represent your best interest.

Facts of the Case

The defendant in this case originally faced criminal charges when he snatched a cell phone from another person. The State charged him with fourth-degree grand larceny, petit larceny, and fifth-degree criminal possession of stolen property. Importantly, the complaint that brought the case to court did not state anything about the defendant using force at any point during the incident.

Superior Court Information

The defendant later waived his right to be prosecuted by indictment. Instead, he opted to be prosecuted by what is called a “superior court information,” meaning he chose to waive indictment by a grand jury. According to the superior court information, the defendant was charged with third-degree robbery and petit larceny.

When Will a Court Decide that Evidence of a Prior Crime is Admissible?

August 26, 2024 | Peter Howard Tilem

In New York, the prosecution in a criminal case is generally unable to present evidence of a defendant’s prior crimes or bad acts. There are, however, exceptions to this rule, and courts can admit otherwise inadmissible evidence using one of the exceptions laid out in the rules of evidence. As a general rule, evidence of a prior bad act may never be used to demonstrate that a person has a propensity for committing crimes.

The Exceptions

The five exceptions to the rule that evidence of a defendant’s prior crime is inadmissible are when the evidence helps establish a defendant’s (1) intent or purpose, (2) motive, (3) knowledge, (4) plan, or (5) identity. These five categories can all end up being fairly broad, and each trial court might interpret the exceptions a bit differently. This can, in turn, be challenging for defendants who are trying to keep evidence of prior bad acts out of the record to keep the jury from being prejudiced against them.

In a recent case before the Appellate Division, Second Department, the defendant challenged the trial court’s use of exception #1, intent or purpose. During the defendant’s trial for criminal contempt in the first degree and aggravated harassment in the second degree, the prosecution sought to present evidence of testimony about an incident that let to a protective order against the defendant. Allegedly, the defendant had violated that protective order, which brought him to court on the criminal contempt and aggravated harassment charges.