New York Criminal Attorney Blog

New York Gets New Gravity Knife Law

June 3, 2019 | Peter Howard Tilem

New York has one of the most draconian and burdensome knife laws in the Country and as we have reported over almost a decade in this blog many innocent people have been caught up in New York’s knife law maze. Last week, however, after several prior attempts at changing the law, Governor Cuomo finally signed a law that will change New York’s knife laws.

The Problem

As we wrote as early as 2010, the Manhattan District Attorney’s Office made a deal with several retailers in Manhattan, including Home Depot and other major retailers for them to pay a financial penalty and stop selling gravity knives in New York. The problem was that these knives were being sold by companies who paid only a relatively small financial penalty while citizens, many african-american and latino youths were being arrested and given criminal records for buying these knives which were readily available. In 2016, we wrote another blog about this problem after the Village Voice wrote an extensive article about it. According to the Village Voice article, there had been as many as 60,000 arrests for gravity knives in the preceding 10 years which put gravity knives in the top 10 most prosecuted cases. Village Voice analysis also seemed to indicate that a disproportionate number of African-Americans and Latinos were prosecuted for gravity knives.

U.S. Supreme Court Hears Case that May Have a Major Impact on New York DUI Cases

May 20, 2019 | Tilem & Associates

Under New York DWI law, merely by driving a car a motorist is presumed to have agreed to take a chemical test when requested by a police officer who suspects that the driver is under the influence of drugs or alcohol. This law, called an implied consent statute, is in effect in many states.

Recently, the United States Supreme Court heard the case Mitchell v. Wisconsin that raises a previously undecided issue regarding implied consent laws. Specifically, the case required the Court to determine whether “a statute that authorizes a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement?”

The case arose when the defendant was arrested on suspicion of driving while intoxicated. Evidently, on the way to the police station, the defendant became lethargic, and the arresting officers took the defendant to the hospital. One of the officers accompanying the defendant read him a form explaining the state’s implied consent law; however, the defendant was so incapacitated that he was unable to indicate to the officers that he understood the warnings. The defendant did not either specifically consent or refuse. However, at the hospital, police officers requested that hospital workers take the defendant’s blood. It was later determined that the defendant’s blood-alcohol content was .222, which was well over the legal limit of .08.

New York Court Reverses Defendant’s Conviction after Judge Offered Codefendant Deal Based on His Testimony

May 15, 2019 | Tilem & Associates

In May 2019, in a New York robbery case, a state appellate court issued a written opinion discussing an important issue that may arise in any case in which there is more than one person named as a defendant. Specifically, the case required the court to determine if the defendant was deprived of a fair trial when the court allowed a codefendant to testify against the defendant after the codefendant negotiated a deal directly with the trial judge. Ultimately, the court found in favor of the defendant, ordering a new trial.

According to the court’s opinion, both the defendant and codefendant were arrested and charged with first-degree robbery. While some of the crime was captured on video, the faces of the robbers were not visible. Before trial, the codefendant entered an open guilty plea to each charge. The court informed the codefendant that the range of his sentence would be between nine and 15 years, and that the codefendant’s specific sentence would depend on the “level of cooperation in the prosecution” against the defendant. The court explained that “one of the primary touchstones” of its determination would be whether the codefendant’s testimony at trial was consistent with his statements to police in which he identified the defendant.

At trial, the codefendant testified that he was one of the people who committed the robbery and the defendant was also involved. The codefendant identified the defendant as the other person who committed the robbery on the surveillance footage. The prosecution questioned the codefendant, eliciting testimony that there was no deal between the prosecution and the codefendant. The court later informed the jury that the court had entered into an agreement with the codefendant. The jury convicted the defendant, and the defendant appealed.

How New York Courts Determine the Legality of a Defendant’s Arrest

May 7, 2019 | Tilem & Associates

Recently, in a New York gun possession case, a state appellate court issued a written opinion discussing whether the police officers’ approach of the defendant, as well as their subsequent investigation, was supported by reasonable suspicion and probable cause. Ultimately, the court determined that the officers’ initial approach was justified under the “common-law right to inquire,” and that the officers’ observations of the defendant as they approached gave rise to probable cause. Thus, the court affirmed the denial of the defendant’s motion to suppress.

According to the court’s opinion, two police officers were on routine patrol. There had been numerous reports of shootings in the area. While on patrol, the officers received a tip that a black male with a bushy beard and dreadlocks had a gun and was inside a particular residence. The officers later observed the defendant, who matched the physical description given by the tipster, leaving the residence. As the officers approached the defendant, he placed his hand on his waist and fled. As the officers were chasing the defendant, they witnessed him discard a gun.

The defendant filed a motion to suppress the gun, arguing that the officers lacked reasonable suspicion to approach him. It was this illegal approach, the defendant argued, that led to him grabbing his waist and fleeing.

New York Court Reverses Defendant’s Conviction Based on Illegal Arrest

April 29, 2019 | Peter Howard Tilem

In either a New York drug-possession case or a New York Gun Possession case seeking suppression of the contraband can often be a defendant’s best defense. Earlier this month, a state appellate court issued an opinion in which the court reversed the defendant’s drug conviction, finding that the police did not have probable cause to arrest him. The case illustrates how police officers attempt to justify stopping a person based on nothing more than their subjective belief that the person is engaged in suspicious activity.

According to the court’s opinion, two police officers were on a routine patrol when they saw the defendant running on the sidewalk. The defendant then suddenly ran across the street, requiring several cars to slow down. The police officers decided to stop the defendant and issue a summons for disorderly conduct. As the police were approaching the defendant, they noticed he was clutching something in his pocket. Believing that the defendant had a weapon, the officers drew their weapons and ordered the defendant to place his hands in the air. The defendant complied and was frisked. The police found a knife and five small packets of cocaine.

The defendant filed a motion to suppress the drugs that were recovered as a result of the search, arguing that the police officers had no reason to stop him and issue a summons for disorderly conduct.

Court Finds Officers Did Not Have Reasonable Suspicion to Stop Vehicle Based on Anonymous 911 Call

April 15, 2019 | Tilem & Associates

Often in a New York murder case the court may need to determine if the police officers’ recovery of the alleged murder weapon violated the defendant’s constitutional rights. Earlier this month, a state appellate court issued an opinion in a New York murder case requiring the court to determine that issue. Ultimately, the court concluded that the officers did not have the level of suspicion necessary to stop the car in which the defendant was a passenger. Thus, the court determined that the stop violated the defendant’s rights and suppressed the gun recovered as a result of that stop.

According to the court’s opinion, on October 2, 2011, someone entered a residence, shooting and killing one of the occupants. Two days later, an anonymous person called into 911, reporting that there were several males “suspiciously” going in and out of a U-Haul trailer. The males were described as black and Hispanic. The caller stated that three of the males were wearing a black sweatshirt, a brown hoodie, and a red hoodie.

Police officers arrived at the scene, but did not find a U-Haul truck on location. However, while the officers were still in the area, they saw a U-Haul truck drive by. A black male in a brown hoodie was driving the truck. Police stopped and searched the truck, recovering a gun that was later tied to the murder. The defendant, who was a passenger in the truck, gave a statement indicating that he shot the victim after the victim reached for his gun. The defendant filed a motion to suppress the gun, which was denied by the trial court. The defendant was ultimately found guilty of second-degree murder, and appealed.

New York Court Discusses the Use of Confidential Informants

April 9, 2019 | Tilem & Associates

Prosecutors and Police officers routinely use confidential informants to gather information and perform controlled buys in narcotics cases, firearms cases or cases involving other contraband. Often, police will use what a confidential informant tells them to establish probable cause when they seek to obtain a search warrant. Thus, confidential informants can play a significant role in many New York drug cases.

However, police and prosecutors generally refuse to a provide the defense with the identity of the confidential informant because once an informant’s identification is known, they can no longer be used by police and may face retaliation. At the same time, if a defendant cannot question police about the existence of the informant, there is the concern that the informant may not exist and that police fabricated the informant to get around the warrant requirement.

To alleviate these concerns, courts require that the prosecution present the confidential informant in an ex parte hearing (outside the presence of the defendant). Recently, a New York appellate court issued an opinion in a case discussing the proper procedure a court should follow when presented with a case in which the prosecution is relying on a confidential informant’s testimony to develop probable cause.

New York Court Holds Show-Up Identification Procedure Was Unduly Suggestive

April 3, 2019 | Peter Howard Tilem

Recently, a state court issued an opinion in a New York gun case discussing the importance that police follow protocol when conducting identification procedures after the commission of a crime. The case illustrates the concept that an improperly performed identification procedure can be unduly suggestive, making any identification that was made by the crime victim inadmissible.

After police receive a report of a crime and locate a suspect, there are a number of different ways in which detectives can administer an identification procedure. Below is a list of a few common identification procedures:

Line-Up: In a line-up, the suspect (also called the “prime”) is lined up among several fillers, and the witness, who is often behind two-way glass, is asked if they recognize the person who committed the offense.

Appellate Court Overturns Lower Court’s Denial of Motion to Suppress in Recent New York Gun Possession Case

March 28, 2019 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York gun possession case, holding that the lower court improperly denied the defendant’s motion on the basis that he did not have standing to suppress the gun. The case also presented the issue of whether the lower court properly prevented the defendant from asking the arresting officer about a previous civil case that had settled.

What Is Standing?

Standing refers to a party’s ability to bring a claim or file a motion. In the context of New York search and seizure law, the prosecution will often argue that a defendant does not have standing to argue for suppression of an item because the item was discovered without infringing on the defendant’s constitutional rights.

A typical example of where a defendant may not have standing is when an object is in plain view. If an object is in plain view, a defendant does not have standing to argue that the motion should be suppressed because the defendant does not have a privacy interest in something that is readily visible by the public.

New York Based Federal Court Strikes Down New York’s Ban on Stun Guns and Tasers

March 22, 2019 | Tilem & Associates

As Second Amendment attorney Peter H. Tilem reported in a blog on April 24, 2016, New York and New Jersey’s outright ban on stun guns and tasers were unconstitutional. Now today, a Federal District Judge in upstate New York confirmed that opinion and enjoined the New York State Police from enforcing New York Penal Law sec 265.01 (1) as it applies to “Electronic Dart Guns” and “Electronic Stun Guns.” The case entitled Avitabile v. Beach was decided earlier today by US District Judge David N. Hurd of the United States District Court for the Northern District in New York. While the case is not necessarily binding in New York City, the case applies the U.S. Supreme Court ruling in Caetano v. Massachusetts, which struck down the Massachusetts state ban on stun guns.

The issue actually began with the famous Second Amendment Case of Heller which was decided in 2008. In knocking out a ban on handguns in Washington DC, the US Supreme Court in Heller ruled that the Second Amendment applied to “bearable” arms. The Caetano decision, in knocking down a stun gun conviction in Massachusetts, made it very clear that a stun gun was a bearable arm as that term was used in Heller.

Besides being illegal, bans on stun guns and tasers are inherently illogical. All states permit the possession of handguns to a degree. Even New Jersey and New York City which effectively ban the possession of handguns outside the home, permit handgun possession in the home, with the appropriate license (in New York). However, prior to today’s ruling, New York and New Jersey have a complete and total ban on the civilian possession of stun guns and tasers which are non-lethal. This complete and total ban includes both possession inside the home and outside the home and does not even permit possession with a license.