New York Criminal Attorney Blog

New Your Court of Appeals Discusses the Standard Required for an Officer to Make a Traffic Stop

October 1, 2020 | Peter Howard Tilem

A state appellate court issued an opinion in a New York gun possession case, last month, requiring the court to determine if the police officers were justified in stopping the defendant’s vehicle for a traffic violation. Ultimately, the court concluded that the officer lacked any basis to believe that a crime had occurred and there was no probable cause to stop the vehicle. Thus, the court held the defendant’s motion to suppress should have been granted and suppressed the firearm.

The Facts of the Case

According to the court’s opinion, a state trooper ran the tags on the defendant’s vehicle. The response was: “CONFIRM RECORD WITH ORIGINATOR ** THE FOLLOWING HAS BEEN REPORTED AS AN IMPOUNDED VEHICLE —IT SHOULD NOT BE TREATED AS A STOLEN VEHICLE HIT — NO FURTHER ACTION SHOULD BE TAKEN BASED SOLELY UPON THIS IMPOUNDED RESPONSE **”

The trooper pulled the defendant over and, as he approached the vehicle, noticed a smell of marijuana and a burnt marijuana joint in the car. The defendant told the trooper that the car had previously been reported stolen, which may explain the message. The trooper searched both the defendant and the car, recovering marijuana and a loaded firearm under the driver’s seat.

Can New York Defendants Get a Fair Jury Trial in a Criminal Case During the COVID-19 Pandemic?

September 25, 2020 | Tilem & Associates

The COVID-19 pandemic has had an extraordinary impact on the lives of all Americans. It seems as though almost every aspect of life has changed, seemingly overnight. As New York Criminal Defense Lawyers we are very concerned about the impact on the New York criminal justice system. In the wake of the pandemic, New York courts all but shut down, hearing only emergency matters. This took a serious toll on the effectiveness of the state’s criminal justice system. Indeed, jury trials have been delayed for months, and courts are getting overwhelmed as new cases continue to come in. Even since courts have started to reopen, concerns around the effective administration of justice remain—chief among these being the ability to get a fair jury trial during the COVID-19 pandemic.

While all New Yorkers are hopeful that the worst of the pandemic is in the rear-view mirror, New York is still struggling to return to a level of normalcy even as safety measures remain in place. These safety measures can substantially interfere with a defendant’s due process rights and their ability to obtain a fair trial.

The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to a speedy and public trial by an impartial jury and “to be confronted with the witnesses against him,” and “to have compulsory process for obtaining witnesses in his favor.” However, each of these rights may be seriously hampered by the restrictions in place during the COVID-19 pandemic.

New York Court Discusses Defendant’s Motion to Suppress Based on Misidentification by Law Enforcement

September 19, 2020 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York gun possession case discussing the defendant’s claim that officers searched him without possessing the necessary probable cause or reasonable suspicion. After reviewing the evidence and applying the relevant law, the appellate court agreed, finding that the defendant’s motion to suppress should have been granted. As a result, the indictment against the defendant was dismissed.

The Facts of the Case

According to the court’s opinion, police officers saw the defendant standing on the side of the road and mistook him for his brother, whom they knew had a warrant out for his arrest. As the officers approached the defendant, he fled on foot. Eventually, the officers caught up to the defendant and, upon searching him, found a loaded gun. Subsequently, the defendant made a statement admitting to possessing the gun.

In a pre-trial motion to suppress, the defendant argued that the officers lacked probable cause or reasonable suspicion to approach him. The defendant asked the officers about the existence of the warrants and whether the warrants were still valid. However, the defendant did not specifically ask to see the warrants and the prosecution did not produce them. The trial court denied the motion, and the defendant was later convicted.

New York Court Condones Stop of Defendant’s Vehicle Based on Tip from Confidential Informant

September 13, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued a written opinion in a New York drug possession case involving the defendant’s claim that a stop and search of her vehicle violated her constitutional rights. Ultimately, however, the court determined that the search was supported by reasonable suspicion, rejecting the defendant’s arguments that the officers conducting the search lacked reasonable suspicion.

The Facts of the Case

According to the court’s opinion, the defendant was on parole for an unrelated offense. Evidently, a confidential informant provided information to the defendant’s parole officer that the defendant was selling cocaine. The parole officer believed the informant to be reliable, because the informant had given the officer accurate information three other times.

Specifically, the informant told the officer that the defendant would be returning in a Nissan Altima with Connecticut license plates. The parole officer requested that local law enforcement stop the defendant’s vehicle. Based on the parole officer’s request, police stopped the defendant’s car (which matched the description given by the informant) and found cocaine inside the vehicle.

New York Court Rejects Defendant’s Motion to Suppress in Recent Gun Case

September 7, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued an opinion in a New York gun possession case, requiring the court to review the lower court’s decision denying the defendant’s motion to suppress. After reviewing the facts and applicable legal principles, the court agreed with the court below, affirming the denial of the defendant’s motion to suppress a firearm that he discarded while being chased by police officers.

The Facts of the Case

According to the court’s opinion, a confidential informant told his parole officer that “two individuals would be in a specified area in a silver or gray Pontiac and would have a firearm in the vehicle.” Police officers traveled to the location, where they saw a vehicle matching the description provided by the informant.

While the police officers were following the car, they claim that the driver failed to signal at least 100 feet before making a turn. The officers pulled over the vehicle. The defendant was in the passenger seat. The officers asked the defendant several questions, claiming that he was slow to answer and seemed nervous. The officers asked the defendant out of the vehicle and immediately held his hands behind his back.

What is An Ignition Interlock Device? (And why are they important in New York)

September 1, 2020 | Peter Howard Tilem

If you haven’t been arrested for DWI (driving while intoxicated) or are not familiar with DUI laws, you probably have no idea what an ignition interlock device is. This small tool is a requirement for drivers who violated drunk driving laws throughout the United States. In fact, each state has an interlock installation program.

Ignition interlock devices (IID) have been around for years. California was the first to use the device when it established a pilot program following the Farr-Davis Safety Act of 1986. Today, the IID is an essential tool for discouraging recidivism and minimizing the number of repeat offenders.

If you or someone you know has recently been convicted of drunk driving, here are some vital facts about ignition interlock devices.

New York Appellate Court Rejects Defendants Motion to Suppress Identification Made by the Complaining Witness

August 26, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued an opinion in a New York attempted murder case stemming from a shooting outside an apartment complex. The court’s opinion discussed, among other issues, the defendant’s motion to suppress the identification of the defendant made by the complaining witness. Ultimately, the court concluded that, although there may have been issues with the witnesses’ identification of the defendant, because the witness knew the defendant from before the incident, the defendant’s constitutional rights were not adversely impacted.

The Facts of the Case

According to the court’s opinion, a man was shot outside his apartment complex on September 18, 2011. While at the hospital, the man told detectives that the person who shot him was known as “Chulo.” On two separate occasions, the witness identified the defendant from a single-photo, presented to him by a detective. Two years later, after the defendant’s arrest, the complaining witness identified the defendant again, this time in a double-blind sequential lineup.

Initially, the defendant challenged the procedures used during the double-blind lineup as suggestive. However, the court denied the defendant’s motion. Afterward, the defendant expanded his challenge to include the two previous identifications where the witness was only shown a single photograph. The trial court denied the defendant’s request, relying on the prosecution’s assurance that the witness knew the defendant. In response, the defendant requested a Rodriguez hearing, which involves questioning the witness outside the presence of the jury regarding his familiarity with the defendant. The judge denied the defendant’s request for a Rodriguez hearing, and a jury convicted the defendant, who then appealed.

New York DWI Charges Can Lead to Hefty Sentences and Probation Violations

August 20, 2020 | Peter Howard Tilem

Those on probation in New York must watch their conduct carefully. In a recent case, the New York Supreme Court upheld a decision to re-sentence a man who was convicted of DWI while on probation for a previous conviction. This case serves as a cautionary tale to those on probation. If you are convicted of another crime, courts may re-sentence to a much harsher penalty.

The case involved a man who was convicted for driving under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree. His conviction resulted in a sentence of 28-84 months of imprisonment. At the time of his conviction, the defendant was on probation for a prior conviction. As a result, a judge revoked his probation and sentenced the defendant to an additional 16-60 months of confinement. The defendant appealed the sufficiency of the evidence in his DUI conviction and the decision to revoke and modify his probationary sentence.

With regard to both of the defendant’s claims, the court refused to review the defendant’s arguments because the defendant had not properly preserved them at trial. In a criminal case, arguments raised on appeal must be properly preserved at trial and through the post-trial process. If issues are not raised, they are waived and cannot be raised for the first time on appeal.

Court Finds Officer Did Not Have Authority to Ask Sleeping Driver Out of the Car in Recent New York DUI Case

August 14, 2020 | Peter Howard Tilem

Several years ago, I won a suppression hearing in a New York DWI where the police were called to the scene by a restaurant worker who saw the defendant stumble out of the restaurant into a nearby parked van and fall asleep. Arriving police woke up the driver and pulled him out of the car where he was questioned and made to do field sobriety tests. The case was ultimately dismissed when the Court suppressed the evidence. Earlier last month, a state appellate court issued an opinion in a New York drunk driving case discussing an officer’s ability to ask a driver out of the car. Ultimately, the court concluded that, although the defendant was asleep behind the wheel, the officer lacked the probable cause necessary to legally remove the defendant from the vehicle.

The Facts of the Case

According to the court’s opinion, a police officer was on routine patrol when he noticed the defendant behind the wheel of the car of a legally parked car, hunched over the steering wheel. The officer approached and knocked on the window for less than a minute before the defendant woke up. Once the defendant awoke, the officer asked the defendant to step out of the vehicle. After the defendant exited the vehicle, the officer noticed a cup full of an unknown liquid and a bottle of scotch in the back seat. The officer also noticed that the defendant seemed to be intoxicated.

The officer arrested the defendant for operating a motor vehicle while under the influence of alcohol and several related offenses. The defendant filed a pre-trial motion to suppress, arguing that the officer lacked probable cause to ask him out of the vehicle. The trial judge granted the defendant’s motion, and the prosecution appealed.

New York Court Denies Defendant’s Motion to Suppress Based on Lack of Standing

August 8, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun case, raising the issue of whether the defendant had standing to bring a motion to suppress the physical evidence in the case. Specifically, the defendant intended on suppressing a firearm that was found in a backpack. The lower court denied the defendant’s motion without specifying a basis. On appeal, the court determined it was unable to decide the case without having the benefit of the lower court’s reasoning. The appellate court remanded the case so the lower court could provide its reasoning.

The Facts

According to the court’s opinion, police officers found and searched a backpack that was in the back yard of a vacant house in Queens. Inside the backpack was a gun. The defendant’s godmother lived next door to the vacant house. At the time when the police found the backpack the defendant and seven other people were present in that home. Police officers arrested all seven people. Later, at the police station, the defendant admitted that the backpack and gun belonged to him.

The defendant filed a motion to suppress the gun, as well as his statement, from evidence. The defendant argued that the officers lacked a warrant or probable cause to search the backpack. In response, the prosecution argued that the defendant lacked standing to bring the motion. The court denied the defendant’s motion without providing any reasoning. On appeal, the court sent the case back down to the trial court so that court could clarify its holding.