New York Criminal Attorney Blog

Defendant’s Conviction for Possession of Counterfeit Money Upheld by New York Appellate Court

February 7, 2020 | Tilem & Associates

Recently, a state appellate court issued a written opinion in a New York forged instrument case involving the possession of what turned out to be counterfeit money. The case provided the court with the opportunity to discuss the elements that must be established to convict a defendant for possession of counterfeit currency in New York.

According to the court’s opinion, a police officer observed the defendant in front of a haunted house attraction. The defendant had an unmarked brown paper bag in his hand, and was drinking something from a can or bottle contained in the bag. As the officer approached, the defendant ran. Believing the bag to hold a prohibited alcoholic beverage, the police officer gave chase. Upon catching the defendant, the officer found two bags of crack cocaine and currency in the defendant’s pockets.

The currency was divided into two pockets. In one pocket was a loose wad of bills totaling $148. In the other pocket was a wad of 17 bills bound together by a rubber band. After taking a closer look at the wad of 17 bills, the officer suspected that they were counterfeit, and the defendant later admitted that they were counterfeit.

Supreme Court Hears Case that May Affect People with Several New York Convictions

February 2, 2020 | Tilem & Associates

Under the Armed Career Criminals Act (ACCA), federal law provides for enhanced penalties for people convicted of a crime involving a firearm if they have previously been convicted of several “violent felonies.” New York has similar laws that enhance penalties for persistent violent felony offenders and discretionary persistent felony offenders. Recently, the U.S. Supreme Court agreed to hear a case in which the court will be required to explain what constitutes a “violent felony” under the ACCA. The case is important to New York criminal defendants because it will define what counts as a predicate offense under the ACCA, which could have significant repercussions for a person’s sentence.

The case involves a defendant who was convicted for possession of ammunition. At sentencing, the prosecution presented evidence that the defendant had previously been convicted of five offenses: a 1974 robbery, a 1982 robbery, a 1983 attempted burglary, a 1986 burglary, and a 1994 robbery. The prosecution argued that each of the previous offenses qualified as violent felonies under the ACCA, and it sought a mandatory sentence on the current case of at least 15 years. If the defendant did not have three qualifying offenses, the maximum sentence that he could receive would have been 10 years. However, the trial court agreed with the prosecution, sentencing the defendant to 15 years.

After the U.S. Supreme Court held that part of the ACCA was unconstitutional, the defendant filed a petition, claiming that several of his previous convictions no longer qualified as “violent felonies.” The prosecution agreed that the 1983 conviction for attempted burglary was no longer a qualifying offense, but it argued that the remaining convictions still qualified under the ACCA. The court disagreed, finding that only two of the defendant’s robbery convictions qualified, and it sentenced him to 88 months.

The Constitutional Right to a Jury Trial in New York Criminal Cases

January 27, 2020 | Peter Howard Tilem

The United States Constitution and the Bill of Rights provide many invaluable rights to citizens. Among the most important rights included in these documents is the right to a jury trial. The Sixth Amendment to the United States Constitution provides that defendants are entitled to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

In New York, people who are facing certain misdemeanor charges are entitled to a jury that consists of six jurors. In New York City, individuals charged with “B” misdemeanors which carry a maximum sentence of 90 days in jail. May not be entitled to a jury trial. Although that issue has become more complicated with the the New York Court of Appeals ruling that immigrants facing deportation would be entitled to a jury trial even for a “B” misdemeanor. Defendants facing felony charges are entitled to a jury of 12 people. In misdemeanor and felony trials, all jurors must be unanimous before a defendant can be found guilty or not guilty. In the event that the jurors cannot come to a unanimous decision, the court will eventually declare a mistrial, and the prosecution will have the ability to retry the case.

All New York criminal cases are either heard by a judge or by a jury. A trial can be heard by a judge only if the defendant waives their right to a jury trial. This type of trial is commonly known as a “waiver” or “bench” trial. The decision whether to have a judge or a jury hear a case is one that rests with the defendant himself, rather than with his attorney. Of course, defendants often consult with a criminal defense attorney when making the decision because an experienced defense attorney can often provide valuable input. There are several reasons why a defendant may choose to have a judge hear their case rather than a jury.

Are New York Police Officers Permitted to Assume That a Driver Is the Vehicle’s Registered Owner?

January 21, 2020 | Tilem & Associates

Police officers must have a justifiable reason when they decide to pull over a motorist and initiate a traffic stop. Typically, an officer must have either probable cause or a reasonable suspicion, depending on the surrounding circumstances. When the police pull over a driver without a sufficient reason, anything that an officer finds in a subsequent search of the vehicle is subject to a motion to suppress by a New York criminal lawyer.

Recently, the United States Supreme Court heard oral arguments in a case that touches on this very issue and can have a dramatic effect on the enforcement of Aggravated Unlicensed Operation in New York. Specifically, the question that the Court must answer in its upcoming opinion is whether it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle, absent any information to the contrary. This is critical, when a plate reader mounted on a police car shows that the registered owner of the car has a license that has been suspended or revoked.

The case arose when police officers ran the plates on the defendant’s vehicle. Upon doing so, the officers determined that the registered owner of the vehicle had a suspended license. Assuming that the person driving the car was the vehicle’s registered owner, the police officers pulled over the defendant. The officers confirmed that the defendant was also the registered owner of the vehicle, and they issued him a ticket.

New York Court Affirms Doctor’s Manslaughter Conviction after Patient’s Overdose

January 15, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York manslaughter case discussing whether the evidence presented by the prosecution was legally sufficient to sustain the defendant’s conviction for manslaughter. Ultimately, the court concluded that the jury’s decision to convict the defendant, given the evidence, was proper. Thus, the court affirmed the conviction.

According to the court’s opinion, the defendant was a board-certified doctor in anesthesiology and pain management. The defendant operated a practice in Queens, which the prosecution characterized as a “pill mill” in which the defendant would see patients complaining of pain and prescribe medication without verifying the source of the pain or ordering any diagnostic tests. The defendant only accepted cash and charged extra for higher doses of opioid medication.

Two of the defendant’s patients died while overseas, from a combination of oxycodone and alprazolam. Both men filled prescriptions, written by the defendant, for these medications shortly before their death. Pills containing both medications were found on the men’s bodies after their death.

Can You Bring Your Lawfully Possessed Pistol on Vacation to Puerto Rico – Apparently Not Yet But Hopefully Soon

January 9, 2020 | Peter Howard Tilem

As a New York Second Amendment lawyer I get asked all kinds of questions everyday about where and when people

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may carry their lawfully possessed firearm. Most of these questions pertain to New York and Federal Law. However, this week I was contacted with an interesting question. Can a New Yorker who has a license to possess a firearm take his lawfully owned handgun on vacation with him in Puerto Rico. After doing the research I learned that surprisingly, the answer was, hopefully, yes, soon.

New York Court Reverses Robbery Conviction Based on Illegal Arrest and Tainted Identification

January 5, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving the defendant’s motion to suppress an identification made by the complaining witness, as well as statements made by the defendant after his arrest. Ultimately, the court held that because the prosecution failed to establish that the defendant’s arrest on an unrelated matter was supported by probable cause, the subsequent identification and statements were “fruit of the poisonous tree,” and must be suppressed.

According to the court’s opinion, a man was robbed in Queens. A day or two after the robbery, the assigned police officer provided the complaining witness with a photo lineup, where he identified the defendant. The officer filled out an identification card, which essentially put other police officers on notice that the defendant should be arrested. Several days later, the assigned officer was informed that the defendant was in custody based on an unrelated matter. The officer brought the complaining witness to the station, where he identified the defendant. The defendant then gave a statement to the police.

The defendant filed a motion to suppress the witness’s identification, as well as the statement he made following his arrest. The trial court denied the motion, finding that the “fellow officer rule” justified that defendant’s arrest. Under the fellow officer rule, if an arresting officer lacks probable cause to arrest, the arrest may still be valid if the arresting officer makes the arrest based on communication with a fellow officer who had information justifying the arrest. The defendant was convicted of robbery and appealed the denial of his motion to suppress.

New York Court Affirms Defendant’s Larceny Conviction

December 30, 2019 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York theft case, affirming a defendant’s conviction for grand larceny in the third degree which is a class “D” felony under New York law and is punishable by up to 7 years in prison. The case presents a good illustration of the type of evidence necessary to sustain a New York larceny conviction.

According to the court’s opinion, the defendant opened a bank account in his name. To do so, he provided two forms of identification, as well as all his personal information. The next day a person known to the defendant then deposited in the defendant’s account the amount of $11,340. To facilitate the deposit, the defendant provided the other person with his debit card and its PIN. The subsequent day, the defendant made a series of withdrawals through several branches and locations, totaling $11,000. Each of these withdrawals was below the monetary limit that would require further investigation by the bank. The defendant could be seen on video making two of the withdrawals. The $11,340 check ultimately turned out to be fraudulent.

The defendant was charged with grand larceny in the third degree, based on the “three-day scheme by which he arranged the deposit of a forged check—into an account apparently created for the sole purpose of housing the stolen funds—and then immediately withdrew the proceeds.”

New York Court Approves of Police Officers Inventory Search

December 24, 2019 | Peter Howard Tilem

In October 2019 we published an article about inventory searches and how the Court are reviewing such searches more carefully. However, earlier this month, a state appellate court issued a written opinion in a New York credit card fraud case involving a search of the defendant’s belongings that occurred after he was arrested for an unrelated crime. The case is useful in that it illustrates the concept of an inventory search, which frequently is cited as a valid basis for searches that may otherwise be unsupported by probable cause.

The U.S. and New York constitutions provide citizens with certain rights. Among those rights are those contained in the Fourth Amendment, which states that citizens are to be free from unreasonable searches and seizures. Over time, courts have fleshed out the protections of the Fourth Amendment to mean that a police officer cannot conduct a search without a warrant.

Of course, over the years, courts have allowed several exceptions to the warrant requirement. Depending on the situation, there may be a lower burden that police officers must meet or, in some cases, police officers may not need any additional facts to support a search. For example, police do not need a warrant (or even probable cause) to seize an item that is in plain view. The concept behind the plain-view doctrine is that an officer is not conducting a “search” under the terms of the Fourth Amendment if he recovers something that readily observable and in plain view. Another example is the warrant exception involving vehicles. Courts have held that vehicles pose a unique concern for officers in that they are mobile, limiting officers’ ability to go retrieve a warrant. Thus, there is a relaxed standard for searching an automobile.

Critical Update on Non-NFA Other Firearms Such As The Shockwave and Franklin Armory Reformation

December 19, 2019 | Peter Howard Tilem

In October 2019 we published a Blog which posed the question, “Is the NFA dead? In the article we discussed several types of short barreled weapons which had been reviewed by the ATF and other law enforcement agencies and had been found to not be covered by the National Firearms Act. In September 2017 we reported in an article about the Mossberg Shockwave and related firearms that such weapons were legal to purchase and own in New York despite the fourteen inch barrel. However, in our article in October 2019, we discussed the Franklin Armory Reformation line of firearms which at that time were considered to be legal to own and purchase based upon an ATF determination that the firearms were not considered short barreled rifles or shotguns under the National Firearms Act. However, today, the ATF issued new guidance.

In an “Open Letter” dated December 19, 2019, the Acting Assistant Director of the BATFE for Enforcement, Programs and Services, the ATF determined that Reformation firearms with barrels less than 18 inches are “Short-Barreled Shotguns” under the Gun Control Act, not the National Firearms Act. It therefore appears that it is difficult to transport or transfer any Reformation firearm with a barrel length less than 18 inches. According to the BATFE letter, this is the first firearm ever produced that the BATFE has classified as a Gun Control Act Short Barreled Shotgun. This is notwithstanding the fact that the Reformation does not accept or shoot shotgun shells.

To refresh everyone’s recollection, the Franklin Armory Reformation line includes firearms with a full stock and short barrels but unlike traditional rifles have the lands and grooves cut straight, front to back. A traditional rifle has the lands and grooves cut in a twisted pattern to impart a spin on the bullet as it travels through and leaves the barrel. Since the Reformation does not have “rifling” it could not be considered a rifle and therefore was not subject to the provisions of the NFA that pertain to rifles. In addition, because the barrel of the Reformation is not smooth and since it does not accept shotgun shells, it similarly cannot be considered a shotgun and therefore the provisions of the NFA pertaining to short-barreled shotguns also do not apply.