New York Criminal Attorney Blog

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.

The Pretrial Discovery Process in New York Criminal Trials

December 15, 2019 | Peter Howard Tilem

When someone is arrested for a New York crime, the prosecution is subject to certain rules. Most of the rules that are imposed on prosecutors are designed to ensure that the defendant is provided a fair trial. After all, the prosecution’s primary responsibility is to see that justice is done, not necessarily to win their case.

This tension between the pursuit of justice and obtaining a conviction has led to some tragic outcomes involving innocent men and women spending their lives in prison based on the crimes that someone else committed. Hence the reason for special rules that govern criminal cases. One of the most essential rules involves pretrial discovery.

Pretrial discovery refers to the process in which the parties provide the opposing sides certain information in their possession. The idea is to prevent the sort of trial by ambush that is commonly seen on television. When it comes to pretrial discovery in a New York criminal case, prosecutors must provide any material evidence that may be favorable to the defense, in either the guilt or punishment phase of a trial.

Fighting a New York DWI Arrest Based on Breath Testing

December 9, 2019 | Peter Howard Tilem

New York DWI Attorneys know that it is one of the worst nightmares for many motorists; the image of those red and blue lights approaching from behind as you are on your way home from dinner or a party. It doesn’t matter if you have had only one drink, or if it has been hours since your last; being pulled over for a New York DWI while having even the slightest bit of alcohol in your system is a terrifying experience.

Part of the reason why drivers fear being pulled over is the uncertainty. Most people do not get behind the wheel when they know they have had too much to drink. Indeed, the majority of DWI arrests are for drivers who thought they were below the legal limit, but that ended up not to be the case. However, what many people do not realize is that there is a lot of subjectivity that goes into a New York DWI arrest.

First is the issue of whether a police officer has the legal ability to stop a car and administer a breath test. Police officers need to have a justifiable reason to pull a vehicle over. Once a car pulls over, a motorist can only be asked to take a breath test if police have reasonable suspicion to believe that they were driving under the influence. If the police ask for a breath test and a driver refuses, then they are subject to administrative penalties, including a minimum one-year license revocation for the first time and a minimum eighteen-month revocation for subsequent refusals. In addition, a police officer may ask a motorist to take a portable breath test on the side of the road. While the results of such a test would not be admissible at a DWI trial, the results may lead a police officer to request a chemical test at the station and refusal to take the portable test is a traffic infraction punishable by 2 points on your license.

Court Rejects Defendant’s Motion to Suppress Eyewitness’s Identification

December 5, 2019 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York robbery case requiring the court to determine if the defendant’s motion to suppress the eyewitness’s identification should be suppressed. Ultimately, the court concluded that the witness’s identification was not suppressible, and affirmed the defendant’s conviction for robbery.

Identifications, like other forms of evidence, must be suppressed if they are unduly suggestive. When making this determination, New York courts employ a burden-shifting analysis. First, the prosecution has the burden to show that the police officers’ identification procedure was reasonable and was not unduly suggestive. If the prosecution meets that burden, then it is up to the defense to show that the identification procedure was improper.

According to the court’s opinion, a pizza delivery person was robbed in September, 2011. The following day, the delivery person identified the defendant as the person who robbed him. Police officers did not preserve the photo array. Thirteen months later, the defendant was arrested and identified by the delivery person in an in-person lineup. The defendant was charged with robbery.

U.S. Supreme Court Hears Case Involving Constitutionality of New York Gun Permit Laws

December 3, 2019 | Tilem & Associates

In what is likely to be a blockbuster case the U.S. Supreme Court recently, heard arguments in a case involving New York gun laws. While the parties in this case were not criminally charged for possession of a gun, they prospectively challenged the New York City law banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits. The case is important to New York gun crime law because the U.S. Supreme Court may determine that this specific gun law is unconstitutional. The case may also define the extent of the rights guaranteed under the Second Amendment and the Firearms Owners Protection Act nationwide.

New York City has two types of gun licenses. The first is known as a concealed carry permit, which allows a permit holder to carry a concealed firearm on their person. The second type of license is an “on-premises” license, which allows a permit holder to “have and possess in his dwelling” a pistol or revolver. An on-premises license is specific to a particular residence, and permit holders cannot freely transport a gun. Instead, a limited number of situations are allowed by statute.

One exception allows the permit holder to transport a handgun directly to and from an authorized range or shooting club if it is unloaded and in a locked container. The ammunition must be carried separately. All approved ranges and shooting clubs are located in New York City. Thus, a permit holder cannot transport a gun to a range outside New York City.

New York Court Grants Motion to Suppress after Determining Police Lacked Probable Cause to Search Defendant’s Car

November 27, 2019 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York firearms case discussing whether the police officer’s search of the defendant’s car was constitutionally sound. Ultimately, the court concluded that because the officers lacked probable cause to search the vehicle, anything they recovered as a result of the impermissible search must be suppressed.

According to the court’s written opinion, police responded to a call from the complaining witness that the defendant was threatening him. When police arrived, the defendant was in his parked car, which was out in front of the complaining witness’s home. The complaining witness told police that the defendant had threatened to kill him, and that he believed the threat was a real one because he’d seen the defendant with a gun on a previous occasion. The defendant admitted to the police that he told the complaining witness he would kill him if he came onto his property. The defendant also admitted to having a rifle back at home and being licensed to carry a firearm in Virginia, but not New York.

The officers searched the defendant, finding nothing. The officers then searched the defendant’s car and found a gun near the driver’s seat. The defendant argued that the weapon must be suppressed because the police lacked justification for the search of his truck. The trial court agreed, and the prosecution appealed.

New York Court Holds Police Did Not Have Probable Cause to Pursue Suspect

November 22, 2019 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York gun crime case discussing the defendant’s motion to suppress a firearm that was recovered near where he was arrested. The case allowed the court to discuss whether the police officers’ conduct in stopping the defendant was permissible under state and federal law. Ultimately, the court concluded that the officers attempted to stop the defendant without probable cause, and thus the defendant’s motion was properly granted.

According to the court’s opinion, police received a call reporting a gunshot at a specific intersection. After arriving, police found an unidentified witness about a block away, who reported that he heard the gunshot and had noticed two men walking near the area where the shot originated from. The witness described the men and what they were wearing, but did not indicate that either man had a gun – only that he had seen them at the intersection.

Police continued to the intersection and located the defendant and another man who matched the description given by the witness. Officers asked the defendant to stop. At this point, the defendant’s hands were in his pockets. The defendant turned and ran. The other officer apprehended the defendant a short time later, and recovered a gun nearby after hearing a metal object hit the ground immediately before arresting the defendant.

A Primer on the New York Rules of Evidence

November 15, 2019 | Tilem & Associates

A successful criminal defense lawyer must know the Rules of Evidence in New York. As a general rule, the trial judge is the gatekeeper when it comes to what evidence a jury is able to consider. However, judges are bound by certain rules of evidence which are written by lawmakers. The Guide to New York Evidence closely mirrors the Federal Rules of Evidence, but there are a few differences.

The most basic rule of evidence is that only relevant evidence is admissible. Relevant evidence is defined a, “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence.” However, not all relevant evidence is admissible in a New York criminal trial.

Under rule 4.01(2) all relevant evidence is admissible unless it is precluded by the state or federal constitution, by statute, or by the common law. In New York, there are several rules that can help defendants, as well as few that can hurt them. For example, under Rule 4.27, evidence that a defendant has previously been convicted of a crime is only admissible when it is an element of an offense or, “otherwise essential to the establishment of a legally sufficient case.” If the prosecution cannot establish one of these two situations exist, then a defendant’s prior convictions are inadmissible.