New York Criminal Attorney Blog

New York Court Denies Defendant’s Appeal in Case Revolving Around Aggravated Family Offense

February 23, 2024 | Peter Howard Tilem

In a recent case before the Appellate Division, Fourth Department in New York, the defendant took issue with the trial court’s denial of his motion for a mistrial. In his appeal, the defendant argued that the lower court made a prejudicial decision in denying his motion, and the decision should therefore be reconsidered. The higher court reviewed the defendant’s argument and ultimately disagreed; the court did, however, decide that the trial court unfairly sentenced the defendant, and it lowered the defendant’s overall sentence as a result.

Background of the Case

The defendant was convicted of four counts of aggravated family offense, meaning a jury found that he violated a no-contact order that was in place in favor of the mother of the defendant’s children. After the jury returned a guilty verdict, the defendant filed a motion for a mistrial, arguing that part of the admitted testimony was inappropriate and prejudicial.

During the proceedings, the individual that had obtained the no-contact order against the defendant (called the “complainant”) testified on the stand about how the defendant had strangled her in front of their children. The defendant objected on the grounds that this was improper testimony. The trial court judge agreed, and while the opinion did not describe why this testimony was improper, both the defendant and the trial court’s judge agreed that it was inadmissible. Having that the testimony was not helpful for the jury in deciding whether to find the defendant guilty, the judge instructed the jury to disregard the testimony from the complainant.
The basis of the defendant’s motion, then, was that the judge did not do enough to fix the problem that the jury heard this prejudicial testimony, and that the jury was therefore biased against him.

New York Criminal Case Emphasizes High Bar for Overly Prejudicial Evidence at Trial

February 16, 2024 | Tilem & Associates

In a recent case before the Appellate Division, Third Department in New York, the defendant appealed his convictions of aggravated family offense and criminal contempt in the second degree. The convictions were based on an incident during which the defendant violated a protective order in place against him and toward the victim in this case. The defendant pled not guilty, his case went to trial, and he appealed on the grounds that the trial court unreasonably let prejudicial evidence into the record during the proceedings. In its decision denying the appeal, the court highlighted the fact that even if the evidence was improper or prejudicial in some regard, it needed to rise to a higher level of prejudice to warrant the court’s granting the defendant’s appeal.

Underlying Facts and Trial Proceedings

This case arose when the defendant reached out to the victim in this case, despite there being a protective order in place prohibiting him from communicating with her by text, email, mail, or any other means. The defendant was criminally charged, and his case went to trial once he pled not guilty. During trial, the jury heard evidence both about the offense and about one of the defendant’s prior convictions. There was also evidence about the protection order itself, which the defendant violated when he was incarcerated by using a messaging service developed specifically for incarcerated individuals.

The jury found the defendant guilty, and he was sentenced to between 7 and 15 years in prison. He promptly appealed the decision.

New York Court Sides with Defendant in Suppression Case, Emphasizing Importance of Fourth Amendment Protections

February 11, 2024 | Tilem & Associates

We have often said that suppression can be the best defense. Recently, a New York defendant appealed a lower court’s decision to deny his motion to suppress physical evidence, and the higher court ruled in his favor. The defendant was originally indicted on one count of second-degree criminal possession of a weapon. He asked the lower court to suppress the gun found in his vehicle, and the trial court denied his motion. On appeal, however, the New York Court of Appeals, New York’s highest Court, in a rare 4-3 decision overturned the lower Court decisions and ultimately granted his appeal.

The Defendant’s Motion to Suppress

An officer first became suspicious of the defendant in this case when he saw the defendant and another individual pull into a parking lot, engage in a “loud conversation,” and walk from one person’s car to the other. The officer believed a drug-related transaction was occurring, especially, after he saw a third individual in the group, one that he knew had been arrested on drug charges in the past.

The officer approached the group, and the defendant began walking toward him. The officer frisked the defendant, found nothing, and then approached the car and saw a rolled dollar bill and white substance in the driver’s seat. He arrested the defendant, and upon a subsequent search, officers found additional narcotics and a handgun in the vehicle as well.

Recent Opinion from Chief Judge Highlights Inadequacies of New York Justice System

February 5, 2024 | Tilem & Associates

In a recent opinion from the New York State Court of Appeals, the chief judge delivered a concurrence that highlights some of the difficulties involved in litigating criminal cases. The opinion centers around an incident in which three pedestrians got into a verbal altercation, after which the defendant stole one of the individual’s phones. The defendant was later convicted of larceny and perjury, and he was sentenced to four to eight years in prison. The judge’s concurrence talks through some of his own frustrations with how the trial court failed to take certain factors into account when sentencing the defendant.

Background of the Case

The opinion describes the incident in question, during which a woman and her boyfriend were walking down the street and almost collided with a bicyclist. The three individuals began yelling at each other in what became a heated conversation. Ultimately, the bicyclist, later named as the defendant in this case, stole the woman’s phone and fled.
The woman called the police, and they were able to quickly find the defendant. He was charged with larceny, and he was called to testify before a grand jury. In connection with that testimony, the defendant was later charged with perjury.

The defendant was later convicted of fourth-degree larceny and two counts of first-degree perjury. The trial court sentenced him to time in prison, which added up to between four and eight years.

New York Court Grants Defendant’s Speedy Trial Motion to Dismiss in Opinion Highlighting Prosecution’s Unpreparedness for Trial

February 5, 2024 | Peter Howard Tilem

Recently, the New York Court of Appeals, New York’s highest court sided with a defendant who was originally charged with and convicted of harassment in the second degree. in a very important speedy trial case that keeps prosecutors honest about complying with New York discovery laws. After being found guilty, the defendant filed a speedy trial motion to dismiss, arguing that the prosecution incorrectly advised the court it was ready for trial before it had turned over all of the documents it was required to disclose as discovery. Ultimately, the court agreed with the defendant, granting his motion to dismiss.

Facts of the Case

According to the opinion, police officers first arrested the defendant in this case after he became physically aggressive toward his mom. The State charged him with harassment in the second degree, and the defendant pleaded not guilty. The court subsequently scheduled the case for trial several months down the line. Prior to trial, as is standard in New York courts, both the prosecution and the defense appeared for several hearings to report in on the progress of trial preparation.

Also, in the state of New York, the prosecution in a criminal case is always required to file something called a “certificate of compliance” with the court. This certificate advises the court that the prosecution has provided all of the necessary “discovery” to the defense, meaning all of the relevant documents that the defense has requested as part of the trial preparation.

Getting Your Guns Back After They Are Seized By The Police in New York

January 30, 2024 | Peter Howard Tilem

Police in New York are all too eager to seize your firearms and unfortunately recent changes in the law have made it easier for the police to seize your guns and harder for you to get them back, even when no charges have been filed. The Suffolk County Police for example were called to the scene of a domestic incident where no one was arrested, and quickly suspended the license of the gun owner in the home. The Suffolk County Police took the position that because charges could be filed for a period of one year the guns would not be returned for a period of one year; even though no one was arrested, no charges were filed and no orders of protections were issued. It took an Article 78 filed in the Suffolk Supreme Court to get the County to agree to return the guns. In another incident in another County an Order of Protection was filed against a husband by a wife as retaliation during an ongoing contested divorce. When the Sheriff’s Office served the Order of Protection they seized the husbands guns. Shortly thereafter, the case was dismissed and the Order of Protection vacated. However, the Sheriff refused to return the guns until the Court signed an Order for the return of the guns and the Judge (licensing officer) reinstated his license.

New York’s New Gun Confiscation Laws

Several relatively new laws that have been added or amended in the last few years assist the police in seizing guns even when no one has been arrested. Red flag laws or Extreme Risk Protection Orders (ERPO) as they are also known are just one way of the police seizing firearms from someone who has not committed a crime. We have already written about Extreme Risk Protection Orders in past blogs. However, Criminal Procedure Law §530.14 requires a licensing officer to suspend a firearms license when a Temporary Order of protection is issued regardless of anything else. In addition, after the Order of Protection is vacated, CPL §530.14 requires the licensee to: make a written application to the Court for the return of their weapons, and serve notice to the the county attorney, district attorney, the protected party under the order of protection, and every licensing officer who has issued a firearms license to the subject of the order.

New York Defendant Successfully Appeals Gun Conviction, Highlighting Importance of Effective Counsel During Trial Proceedings

January 23, 2024 | Peter Howard Tilem

In a recent New York firearms case before the New York Court of Appeals, the defendant successfully asked for his conviction for criminal possession of a weapon to be overturned. The decision, issued at the end of 2023, illustrates the importance of choosing and retaining a thorough, knowledgeable and experienced criminal defense counsel, given that the court reversed the lower court’s order because the defendant received ineffective assistance of counsel during his trial proceedings. While this was ultimately a win, the defendant received 7 years in prison and probably served at least 4 years before ultimately having his conviction over turned because his attorney was not effective.

Facts of the Case

According to the opinion, this case began when officers on patrol pulled the defendant over for a standard traffic violation. When the officers asked for the defendant’s license and registration, the defendant was unable to provide either document, but instead pulled his hand out of his pocket and revealed a magazine clip. The officers asked the defendant to exit the vehicle, at which point they searched the car and found a bag with ammunition and a holster.

The defendant was charged with criminal possession of a weapon. He pled not guilty, and his case went to trial. A jury found the defendant guilty as charged.

New York Defendant Loses Appeal in Case Centering on Possible Issue with In-Court Identification

January 16, 2024 | Peter Howard Tilem

In a recent assault and criminal possession of a weapon case before New York’s highest Court, the New York Court of Appeals, the defendant took issue with the trial court’s decision to let a witness identify him as the perpetrator of a shooting for the first time while she was in court. In its opinion, the court discussed the implications of letting a witness make this kind of identification without significant notice to the defendant. Here, concluded the court, the defendant had sufficient notice of the possible identification, and his conviction would be affirmed.

Facts of the Case

According to the opinion, the defendant shot the victim in the leg at a party in 2017. A neighbor called 911 to make a report, and when calling, the neighbor described the shooter’s race, stature, and clothing. The police subsequently arrested the defendant and the case went to trial.

During trial, the victim took the stand and testified that the defendant was, indeed, the person that shot her. According to her testimony, there was enough light outside of the house to allow her to clearly see the defendant, and she was sure that the defendant and her shooter were the same person. The defendant objected to this testimony on the grounds that the witness had not participated in any identification procedures prior to the trial, and that her identification thus took him by surprise.

The jury later returned a guilty verdict, and the Appellate Division affirmed. The defendant again appealed.

New York Court Reaches Pro-Defendant Decision in Narcotics-Detection Dog Case, Ruling that Sniffing Does Indeed Constitute a Search

January 9, 2024 | Tilem & Associates

In a recent drug case in New York, the Court of Appeals, New York’s highest Court held that using a narcotics-detection dog to sniff a criminal suspect’s body is defined as a “search.” Before this case, New York case law was unclear about whether this specific action constituted a search, which is relevant because any “search” by a government official automatically triggers individual protections under the U.S. Constitution’s Fourth Amendment. By ruling that the narcotics-detection dog’s sniffing is a search under the law, the court opened up more defendants and suspects to important protections under this Amendment.

Facts of the Case

According to the opinion, officers on patrol saw what they believed to be a drug transaction one evening in a parking lot. The officers followed one of the individuals in his car when he left the parking lot, later stopping him for a traffic violation. The officers then requested that the suspect consent to a search of his vehicle. When the suspect declined, the officers brought out their canine to sniff for drugs both around the vehicle and on the defendant’s person.

The dog involved in the search alerted on three different occasions during the interaction. The suspect began to run away, and the officers chased him, caught him, and eventually found a plastic bag with 76 glassine envelopes of heroin. The suspect was charged with criminal possession of drugs, and he then filed a motion to suppress the evidence of the drugs.

New York Court Sides with Defendant in Weapon Possession Case, Affirming that Prior Bad Acts are Generally Inadmissible at Trial

January 2, 2024 | Peter Howard Tilem

In a recent case before a New York appellate court, the defendant successfully appealed his conviction of criminal possession of a weapon. The defendant originally faced charges after an officer found a .45 caliber gun in his vehicle’s center console. His case went to trial, and a jury found him guilty. On appeal, however, the defendant successfully argued that the trial court unreasonably allowed the prosecution to introduce evidence of his past crimes during the proceedings. The higher court, agreeing with the defendant, vacated the trial court’s order. Generally, evidence of prior bad acts may not be used against a defendant with very limited exceptions.

Facts of the Case

According to the opinion, an officer pulled the defendant over one morning because of an illegal U-turn. The officer approached the defendant’s car and immediately smelled marijuana. He took the defendant and his passenger to the station, later finding a .45 caliber gun in the defendant’s console along with three handguns in the back.

The defendant’s case went to trial, and during the trial, the prosecution introduced evidence of two prior incidents on the defendant’s record – a 2006 uncharged crime and a 2007 misdemeanor for weapon possession. The jury ultimately returned a guilty verdict.