New York Criminal Attorney Blog

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.

New York Court Condones Traffic Stop Conducted by Customs and Border Patrol Agent

August 2, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the defendant’s motion to suppress a weapon that police officers found in his car. The case presents a unique issue in that a federal marine interdiction officer – not a police officer – conducted the traffic stop. Ultimately, the court held that the stop was valid.

The Facts of the Case

According to the court’s opinion, a federal marine interdiction agent with the United States Customs and Border Protection was driving an unmarked car when he pulled onto the highway. As he did so, the agent noticed a pair of headlights approaching quickly in his rear-view mirror. As the lights got closer, the driver of that car slammed on his brakes to avoid hitting the agent’s vehicle. The agent noticed as the driver continued to drive erratically.

The agent called police on his personal cell phone to report the incident. At some point, the agent activated his blue-and-red emergency lights and stopped the car the defendant was driving. The agent waited with the defendant until the police arrived. Police searched the defendant’s car and found a gun.

NEW YORK TO STOP SUSPENDING LICENSES OVER UNPAID FINES

July 27, 2020 | Peter Howard Tilem

A bill which would end the New York State Department of Motor Vehicles (DMV) practice of suspending driver’s licenses for unpaid fines and driver responsibility assessments has past both the New York State Assembly and the New York State Senate and is currently awaiting the signature of Governor Cuomo. The new law, if signed could impact millions of New Yorker’s who are currently suspended for unpaid fines and fees such as Driver Responsibility Assessments. In the 26 months from January 2016 until April 2018 New York issued nearly 1.7 million suspensions for traffic debt. The suspensions create a cycle that is hard to get out of since, often, those with suspended licenses, cannot work to pay the debts.

Driving with a suspended license that is suspended based upon unpaid fines or driver responsibility assessments can constitute anywhere from a misdemeanor to a felony depending on a number of factors and can have serious consequences including mandatory probation and/or jail.

Similar laws that prohibit suspensions based upon traffic debt have already been passed in at least 9 states including large states such as Texas and California as part of a national trend to stop punishing poverty by eliminating cash bail and terminating suspensions based upon unpaid debts.

Court Reverses Defendant’s New York Murder Conviction, Holding Trial Court Failed to Follow Procedure When Replacing a Juror

July 22, 2020 | Tilem & Associates

Recently, a state appellate court issued a written opinion in a New York murder case involving the defendant’s challenge to the trial court’s substitution of a member of the jury. Specifically, the defendant claimed that the court failed to follow the proper procedure when determining the sitting juror’s unavailability.

The Facts of the Case

According to the court’s opinion, the defendant called 911 stating that he shot his brother. The defendant’s brother later died from his injuries, and the defendant was charged with murder and related charges.

The case proceeded to trial, and on the ninth day of trial, one of the jurors was absent. The juror explained that she had an important medical appointment for a family member. The court did not officially conduct a hearing into the juror’s absence and, without formally stating that the court was ordering the substitution, the court proceeded with an alternate juror. The court explained that it believed the juror mentioned the appointment during jury selection, however, that turned out not to be the case.

New York Criminal Trials in a Post-COVID World

July 16, 2020 | Tilem & Associates

The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.

New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial. It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.

One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.

Court Affirms Lower Court’s Decision to Deny Defendant’s Motion to Suppress in New York Burglary Case

July 9, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued a written opinion in a New York burglary case discussing whether the lower court properly denied the defendant’s motion to suppress evidence that police recovered from inside of his backpack. Ultimately, the court concluded that the officers had a legal basis to pursue the defendant and that exigent circumstances justified the officers’ search of the pack.

The Facts of the Case

According to the court’s written opinion, police officers received a call for a burglary in progress. Moments after police arrived on the scene, another call came in describing the perpetrator as a black male wearing a black hat, carrying a backpack and riding a bicycle. Two minutes later, police officers saw the defendant, who matched this description.

The defendant fled as police tried to stop him. Ultimately, the defendant fell off the bike and was detained. Moments later, the alleged victim came to the scene, shouting, “that’s him!” Police arrested the defendant and then noticed a backpack nearby. The officers opened the backpack, finding several of the alleged victim’s belongings inside.

New York Court Discusses Validity of Search Based on Defendant’s Admission to Possessing Synthetic Cannabinoids

July 3, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York drug case discussing the validity of the search that resulted in the discovery of narcotics. The case required the court to discuss the protections afforded by the Fourth Amendment to the United States Constitution and whether they necessitated suppression of the evidence seized by police.

Police must follow the requirements of the United States and New York constitutions when investigating crime and making arrests. If they fail to do so, or otherwise violate a defendant’s rights, any evidence they obtain cannot be used against the defendant at trial.

The Facts of the Case

According to the court’s opinion, the defendant was under investigation when he admitted to the police that he had synthetic cannabinoids in his home. Under New York law, the possession of synthetic cannabinoids was not illegal under criminal statutes, however, it was a violation of the State Sanitary Code. Relying on the defendant’s admission, police officers secured a search warrant to search the defendant’s home. Upon doing so, police recovered morphine tablets and brass knuckles, both of which are illegal to possess.

New York Court Holds Officer’s Observation of “Bulge” in Defendant’s Pockets Did Not Justify Search

June 28, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York burglary case involving the defendant’s motion to suppress the physical evidence that police recovered when they searched his pockets. Ultimately, the court concluded that the officer lacked probable cause to conduct the search, and the defendant’s motion was granted.

According to the court’s opinion, police received a call reporting a burglary in which a resident reported $5,500 was stolen. About an hour after the call, an officer came upon the defendant, who matched the description given to police, which was a person “in dark clothing.” The officer approached and asked the defendant for his identification. Initially, the defendant turned and walked away, but later approached the officer. According to the officer, the defendant put his hands into his pockets. The officer asked the defendant to remove his hands and place them on his head, and the defendant complied. The officer then noticed bulges in each of the defendant’s pockets. The officer patted the defendant down, and could not discern what the bulges were, although he could tell they were not weapons. The officer then reached into the defendant’s pockets and removed a large amount of cash. The defendant was arrested and charged with burglary.

The defendant filed a motion to suppress the cash, arguing that the police officer did not have probable cause to reach into his pockets. The lower court granted the defendant’s motion, and the prosecution appealed.