New York Criminal Attorney Blog

Supreme Court Issues Opinion Impacting New York Defendants with Prior Drug Convictions

May 13, 2020 | Peter Howard Tilem

As we reported in February, the Supreme Court heard argument on a drug case that will likely have significant consequences for many facing New York gun charges. Now, the United States Supreme Court issued a written opinion in the case. Specifically, the case required the Court to interpret the provision of the Armed Career Criminals Act (ACCA) imposing mandatory sentences for those who are convicted of a gun offense after having previously been convicted of at least three drug offenses.

The ACCA seeks to impose escalating punishments for the possession of a firearm, based on a defendant’s prior record. For example, if a defendant is convicted of a gun offense, and has three prior “serious drug offenses,” the defendant is subject to a mandatory minimum sentence of at least 15 years. Of course, not every state’s laws are written the same way, and this requires federal courts to determine whether a drug conviction should be considered a “serious drug offense” under the ACCA.

The Facts of the Case

According to the Court’s opinion, the defendant pleaded guilty to a firearm offense and, based on the defendant’s six prior cocaine-related convictions, he received a sentence of 15 years’ incarceration. On appeal, the defendant challenged the lower court’s finding that the six offenses qualified as “serious drug offenses” under the ACCA.

Court Discusses New York Automobile Exception to the Search Warrant Requirement

May 7, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the automobile exception to the search warrant requirement. Generally, law enforcement must obtain a search warrant that is supported by probable cause before they can conduct a search. However, over the years, courts have crafted a variety of exceptions to the warrant requirement. One of the most often cited exceptions is the automobile exception.

The automobile exception came about based on the understanding that vehicles are mobile. Thus, if police officers were required to obtain a warrant to search a car, there would be a risk that the officers would not be able to locate the car again, or that any evidence inside the car could be hidden or destroyed. Thus, if an officer has probable cause to believe that there may be evidence or contraband inside a vehicle, the officer can search the vehicle without a warrant.

According to the court’s opinion, police officers witnessed the defendant give a carton of cigarettes to another man in exchange for money. The officers approached the defendant, who was standing near the open door of a van. As the officers got closer to the van, they could see that it was full of duffle bags and that one of the bags contained additional cartons of cigarettes. One of the officers then opened one of the packs in the carton that the defendant had just exchanged, noticing that there was no New York tax stamp. Officers arrested the defendant. Before driving the defendant’s car back to the station, one of the officers conducted a “quick check” of the vehicle, finding a firearm under the passenger seat.

New York State Troopers Asked To Resume Normal Traffic Enforcement

May 1, 2020 | Peter Howard Tilem

New York Traffic lawyers have experienced first hand the empty roads and the opportunity to speed and we have seen a decrease in the number of calls from ticketed drivers. Sadly, it appears that the proverbial party is over. During the month of April, the number of traffic tickets issued has dropped from over 85,000 in April 2019 to just over 10,000 during April 2020. Now, the New York State Police has asked that troopers return to normal traffic enforcement duties. In a memo to State Troopers, from their Superiors, Troopers were told that the pause was necessary but that now due to increased awareness about the transmission of the COVID-19 Virus and the issuance of PPE (Personal Protective Equipment) to Troopers, the time has come to return to normal enforcement.

While the memo refers to an increase in aggressive drivers during the pandemic, New York traffic attorneys know how much revenue is raised by the issuance of traffic tickets and how much the State is surely losing in traffic ticket revenue during the pandemic. The pause in enforcement was scheduled to end today May 1, 2020.

With approximately 90 New York State Troopers testing positive for the Covid-19 virus it may be hard to convince Troopers who may be reluctant to interact with the public if avoidable. Although, apparently both the State Police and the Union have been distributing Personal Protective Equipment to Troopers, the level of enforcement will probably partly depend on the continued availability of PPE. In addition Governor Cuomo has already announced that first responder and particularly State Troopers will receive priority for Covid-19 antibody testing. Obviously, having ample testing available to law enforcement officers such as New York State Troopers may give them more comfort in performing their jobs.

New York Self Defense Law – I Used my Lawfully Possessed Weapon What Do I Do Now?

May 1, 2020 | Peter Howard Tilem

New York Self-Defense laws give a person broad authority to use physical force and even deadly physical force to defend themselves and to defend others from attack. Article 35 of the New York Penal Law creates a defense to even the most serious criminal charges such as murder, attempted murder, assault and attempted assault. The question is what do you do in the aftermath of a self defense shooting? Who do you call? What do you do? What do you say? Do I need an attorney? How do I find the right attorney? Will I be arrested? Will I be charged with a crime? Could I be charged with murder? Assault? Attempted Murder? Reckless Endangerment?

The immediate aftermath of a New York self-defense incident are critical. Some of the considerations are tactical and not legal such as what do I do with my weapon before the police arrive? There are some excellent articles that you should read by the USSCA and the NRA about those issues. It is important that your weapon be safeguarded and not hidden so that when the police arrive you do not appear to be a threat. Remember, you are shaken up, in shock and not reasoning or thinking clearly. If possible, someone else should call 911, which will be the first statement about the incident to law enforcement and will be recorded. That recording may very well end up being played in Court either during proceedings brought against you or your attacker. Make sure that medical help is requested either for you or your attacker or both. If anyone asks are you ok the true answer to that question is that you don’t know. Adrenalin will be pumping you may be physically injured or in shock.

It is important that you not touch or tamper with the crime scene and probably is better in most circumstances to stand away and not attempt to render aid to your attacker. When the police arrive it is important that you not present as a threat. Make sure that you are not displaying a weapon, even if its holstered. As criminal defense attorneys we always recommend not speaking to the police but in the unique situation of a self defense shooting we recommend a small modification of that general rule. Have a short, one or two sentence, statement ready for the police just to start their investigation on the right track and then invoke your right to counsel.

Navigating New York Criminal Courts in a Covid-19 World

April 25, 2020 | Peter Howard Tilem

There is no doubt that the Corona Virus Pandemic has disrupted every aspect of New York life. This is especially true for New York lawyers practicing in New York Criminal Courts. With New York Courts closed except for essential matters, New York criminal lawyers and their clients find themselves having to navigate a whole new landscape that is having a major impact on criminal clients.

Consider just a few facts: New York Criminal Cases are often being adjourned into June or even July from March or April. What about the constitutional and statutory rights to a speedy trial? Under New York CPL 30.30 (1)(b), A prosecutor must be ready for trial within 90 days of the commencement of a criminal case where a client is charged with an “A” misdemeanor. Which means that many clients should be getting their cases dismissed when the Courts reopen. However, CPL 30.30 (4)(g), excludes from the 90 calculation periods of delay caused by “exceptional circumstances”. While I know of no Court that has ruled on this issue yet, I do not think it will be too long before Courts rule that all of the time occasioned by the Covid-19 pandemic will be excluded under that section. This may raise many issues for clients.

What about the DWI client that was arraigned on a DWI in February and had their license suspended pending prosecution under New York law. We got her a hardship license so that she could drive to and from work but the client lost her job and so is not permitted to drive and her case has already been adjourned until June at the earliest. Four months after the arraignment.

New York Appellate Court Reversed Trial Courts Denial of Defendant’s Motion to Suppress

April 13, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York drug possession case discussing the defendant’s motion to suppress. Specifically, the defendant appealed the lower court’s denial of his motion to suppress arguing that the arresting officer’s pat-frisk of the defendant was illegal. Without answering the ultimate question, the appellate court concluded that the trial court failed to engage in the proper inquiry, and sent the case back to the trial court for further analysis.

According to the court’s opinion, a police officer watched as the defendant visited a known drug house. As the defendant left, the officer followed the defendant’s vehicle to “try to get a reason to stop it.” The officer witnessed the defendant make two traffic violations, and pulled him over. As the police officer approached the defendant’s car, he saw the defendant moving around and reaching behind the driver’s seat. The officer removed the defendant, patted him down, and felt what he believed to be narcotics in the defendant’s pants. The officer asked the defendant what he had on him, and the defendant admitted to having seven grams of crack.

The defendant was charged with possession of a controlled substance. In a pre-trial motion, the defendant argued that both the crack and his statement to police should be suppressed. However, the trial court found that the officer “had a founded suspicion of criminal activity before the frisk was conducted, thus authorizing the arresting officer to ask the defendant whether he had anything on him.” The trial court denied the defendant’s motion.

The 12 Most Ridiculous Gun Laws

April 7, 2020 | Peter Howard Tilem

As Second Amendment lawyers in New York you would imagine that we are familiar with idiotic “gun control” laws. Which is why an article in this month’s Ballistic Magazine about the twelve most idiotic gun laws caught my eye. To be sure New York, along with neighboring New Jersey are well represented on this list. So lets go through them

New Jersey’s ban on hollow points. Yes, believe it or not New Jersey wants everyone running around with full metal jackets. Hollow points are illegal every place except at the place of purchase, your home, the range or hunting. Although the law is so poorly written that expanding bullets like Federal Guard Dog and bullets with the tip filled with polymer like Critical Defense/Duty are legal.
Back to New Jersey, New Jersey also treats BB guns and Antique Black Powder weapons as modern firearms. You need the New Jersey State Firearms ID Card just to buy them.

New York Court Suppresses Defendant’s Statement Made to Out-of-State Law Enforcement Officers

April 2, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York criminal case involving a question as to whether statements that the defendant made to Pennsylvania state troopers could be used against him in his New York arson case. Ultimately, the court concluded that the Pennsylvania State Troopers questioned the defendant in violation of his right to counsel. Thus, the court held that the statements should have been suppressed.

According to the court’s opinion, the defendant was under investigation for several arsons in New York. After detectives interviewed the defendant about one of the fires, the defendant fled to Pennsylvania. A short time later, Pennsylvania State Troopers arrested the defendant for an alleged arson offense that allegedly occurred in Pennsylvania. The defendant requested that the court appoint counsel.

Upon hearing about the defendant’s arrest, New York police traveled to Pennsylvania to interview the defendant. While New York police did not actually interview the defendant, they observed as Pennsylvania State Troopers asked the defendant questions about the New York arsons without the presence of defense counsel. The defendant made several statements regarding the New York arsons.

Unduly Suggestive Identifications in New York Criminal Cases

March 25, 2020 | Tilem & Associates

In any New York criminal case, there may be a number of potential defenses. One of the most common defenses in crimes involving people who do not know each other is misidentification. When a defendant argues misidentification, they are claiming that another person was the one who committed the offense, and that they were incorrectly identified as the perpetrator.

Recent studies over the past decade have called into question the reliability of identifications. This is especially the case in cross-racial identifications, where the person making the identification is of a different race than the person they are identifying. Understanding the risks of misidentification, courts require that police officers follow certain rules when conducting an identification procedure.

For example, in a recent state appellate opinion, the court reversed the defendant’s conviction for robbery on the basis that the victim’s identification of the defendant was unduly suggestive. Police arrested the defendant after receiving a report from a person who claimed that a man in dreadlocks robbed him. After the arrest, the defendant was placed in a line-up with other individuals, and the victim was asked to identify whether the person who robbed him was in the line-up and, if so, to identify him. All men in the line-up wore hats; however, the defendant was the only person in the line-up with dreadlocks and his dreadlocks were visible.

New York Court Affirms Defendant’s Conviction for Constructively Possessing a Firearm

March 19, 2020 | Tilem & Associates

As New York’s premier second amendment lawyers we closely monitor cases that may affect the ability of our client’s to lawfully be in possession of firearms and cases that affect our ability to fight gun charges. Late last year, a state appellate court issued a written opinion in a New York gun possession case discussing the concept of constructive possession. Constructive possession is a legal fiction by which a person can be found to have “possessed” an item without there being any direct evidence that the item was in the defendant’s immediate control. The concept of constructive possession often relies on circumstantial evidence suggesting that the defendant possessed an item. This opinion is a good example of how the concept of constructive possession works in practice.

According to the court’s opinion, law enforcement pulled over the defendant for a traffic stop. During the stop, the defendant fled the scene, speeding off around a corner that led down a dead-end street. The sheriff’s deputy knew that the defendant had gone down a dead-end road that had a fence on one side and a wooded area on the other. The deputy waited for the defendant to reemerge.

About a minute later, the defendant’s car reemerged but got stuck in a ditch. The defendant was arrested and the deputy searched the area around the one-way street, finding a gun in the wooded area and a hat alongside the road. The gun was about 12-16 feet from the road. DNA samples from both the gun and the hat matched the defendant’s DNA. A jury convicted the defendant, who appealed his conviction. Specifically, the defendant argued that the evidence was insufficient to prove that he possessed the weapon.