New York Criminal Attorney Blog

New York Court Determines Officer Lacked Reasonable Suspicion to Stop Motorist, Suppressing Breath-Alcohol Test Results

November 27, 2018 | Tilem & Associates

Recently, a New York court issued a written opinion in a New York DWI case granting the defendant’s motion to suppress the results of the field sobriety tests administered by the arresting officer. The court also granted the defendant’s motion to suppress the results of the chemical testing that was performed on the defendant’s breath.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by a police officer after the officer believed he had witnessed a traffic violation. Evidently, the officer was about 300 feet behind the defendant’s vehicle with another car between them when the officer saw the defendant’s car swerve within its lane. The officer testified that the swerving lasted for a few seconds. At one point, the defendant’s car briefly crossed the fog line and then returned to its lane.

The officer explained that after he pulled the defendant’s vehicle over, he noticed that the defendant smelled of alcohol. A field sobriety test was administered, and the defendant was arrested and taken to the station for a breath-alcohol test. The defendant was later charged with two counts of DUI and filed a motion to suppress the field sobriety and chemical test results.

New York Court Denies Defendant’s Motion to Suppress a Gun Found in the Trunk of the Car He Was Driving

November 22, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun possession case discussing two important concepts that frequently come up in any case involving a possessory offense, including New York drug crimes. Ultimately, the court concluded that the police officers acted appropriately and it denied the defendant’s motion to suppress a gun that was found in the trunk of his car.

The Facts of the Case

The defendant was arrested and charged with criminal possession of a firearm after police officers discovered a handgun in the trunk of a car the defendant was driving. According to the court’s written opinion, the police officers claimed that they initially approached the vehicle to request information from another man whose entire upper body was inside the trunk. As the officers approached the car, they noticed a gun in the trunk in plain view. The officers seized the weapon and arrested the defendant.

The defendant filed a motion to suppress the gun, arguing that the police were not justified in their approach of the vehicle and anything stemming from that illegal approach should be suppressed. The trial court denied the defendant’s motion to suppress and the defendant appealed.

New York Court Finds Police Had No Probable Cause to Arrest Defendant after Finding Ammo Magazines in His Pocket

November 16, 2018 | Tilem & Associates

As we have discussed many times, experienced criminal defense lawyers know, that seeking suppression of evidence can often be the best defense to a crime charging possession (of drugs, guns or other illegal items). Recently, a state appellate court issued a written opinion in a New York gun possession case. The case required the court to determine if the trial court properly granted the defendant’s motion to suppress. Ultimately, the court concluded that the police officers lacked probable cause to arrest the defendant, and affirmed the lower court’s decision to grant the defendant’s motion to suppress. In this case, both the trial Court and the Appellate Court concluded that the police lacked probable cause to arrest someone who was found to be in possession of a handgun magazine. It is important to note however that had this case been decided in New York City, where the administrative code of the City of New York makes it a crime to possess handgun magazines, the results may have been different.

The Facts of the Case

According to the court’s opinion, police received a call reporting a dispute at a local bar that possibly involved a gun. Upon arrival, police spoke to the bartender who told them that the defendant was the one suspected of having a gun. Police patted the defendant down, discovering that he had two ammunition clips in his pockets.

Police then arrested the defendant. A post-arrest search revealed no weapons, but the defendant’s car – which was parked across the street – was towed and impounded. The defendant was read his Miranda rights and consented to a search of the vehicle. While searching the trunk of the car, police recovered a stolen .45 caliber handgun.

The Admissibility of Character Evidence in New York Criminal Trials

November 10, 2018 | Tilem & Associates

Character evidence is one of the most misunderstood types of evidence available. It is also evidence that can backfire on the party calling the witness. As a rule, all relevant evidence is admissible in New York criminal trials. Relevant evidence is defined as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding” more or less likely. However, the general rule that all relevant evidence is admissible is subject to many exceptions.

One type of evidence that may intuitively seem like it would be admissible in a criminal trial, but is generally excluded from evidence, is evidence of a defendant’s prior bad acts. This includes both charged and uncharged crimes. Under the New York evidentiary rules, prior bad acts are “not admissible to prove that the person acted in conformity therewith on a particular occasion or had a propensity to engage in a wrongful act or acts. Essentially, this means that the government cannot use evidence of past crimes or wrongs to prove that a defendant was more likely to have committed the charged crimes there may however be other reasons why such prior crimes are admissible. This is why, absent a few exceptions, a defendant’s criminal history is not admissible if the defendant does not testify at the trial.

Evidence of a defendant’s prior bad acts, however, can be admissible in some situations where the government is introducing the evidence for a permissible purpose; for example to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident. A recent case illustrates how New York courts handle this issue.

New York Search and Seizure: The Four Levels of Police Intrusion

October 6, 2018 | Tilem & Associates

Earlier this month, a state court issued a written opinion in a New York gun case discussing whether a police officer’s actions in approaching, questioning, and searching the defendant were justified under the circumstances. Ultimately, the court concluded that the officer’s actions were unsupported by the requisite level of suspicion, and granted the defendant’s motion to suppress. In so doing, the court discussed the four types of police/citizen interactions.

The Facts of the Case

According to the court’s opinion, the defendant was walking down the street at around 2 a.m. The police approached from behind in an unmarked car. The police were not responding to an emergency call and had not received any information that a crime had been committed. As police approached the defendant from behind, they noticed he had a bulge in his pocket. However, they could not see the shape of the bulge and did not know what it was.

Police pulled up next to the defendant, stating “police, can you stop for a second?” The defendant put his cell phone up to his ear and began to walk away at a hurried pace, although he was not running. At this point, a police officer exited the vehicle and approached the defendant, again telling the defendant to stop. As the officer got closer, he could see the defendant was holding a handgun in his right hand. The officer rushed the defendant, seized the gun, and the arrested the defendant.

New York Court Affirms Assault Conviction, Rejecting Defendant’s Weight-of-the-Evidence Claim

September 30, 2018 | Peter Howard Tilem

Recently, a state appellate court issued a written opinion in a New York assault case requiring the court discuss an issue that is important to understand for all who are facing New York criminal charges. The case presented the court with determining whether the defendant’s conviction was supported by the weight of the evidence presented at trial. Ultimately, the court concluded that the evidence did support the jury’s verdict, and affirmed the defendant’s convictions.

The Facts of the Case

The defendant was arrested and charged with two counts of assault in the second degree and one count of tampering with evidence. The case proceeded to trial in front of a jury, where it was established that the defendant got into a fight with two other men. During the fight, the defendant produced a knife because he wanted to scare the other men. He specifically stated that he did not intend to injure them.

The defendant also testified that during the fight, he swung the knife at the two men when they were very close to him. He could not remember if he used a slashing or stabbing motion, and a medical witness testified that the victims had injuries that were consistent with either slashing or stabbing.

Court Discusses What Discovery Is Mandatory in New York DWI/DUI Cases

September 24, 2018 | Tilem & Associates

New York DWI lawyers must understand the science as well as the law. Under long-standing U.S. Supreme Court case law, the prosecution must disclose all evidence that is material to guilt or innocence to the defense. This means that in a New York DWI/DUI case, the prosecution has an obligation to hand over not just the evidence that it plans to use to establish that the defendant is guilty beyond a reasonable doubt, but also evidence that would tend to show that the defendant did not commit the crimes charged.

In a recent New York DUI case, the court considered the extent of the discovery that must be provided to a defendant facing charges of operating a motor vehicle while intoxicated.

The Facts of the Case

The defendant was pulled over while traveling 81 miles per hour in a 50-mile-per-hour zone. Upon pulling the defendant over, the officer claimed the defendant had glassy eyes, slurred speech, and an odor of alcohol on his breath. When asked, the defendant told the officer that he had consumed a single drink.

Possessory Offenses Under New York Criminal Law

September 17, 2018 | Tilem & Associates

New York criminal law does not, generally speaking, attach criminal liability to actions that are not accompanied by the requisite level of “guilty knowledge,” or mens rea. Thus, most New York crimes are broken down into at least two elements, the “act” element, and the “knowledge” or “intent” element. Even when a New York criminal statute does not specify that a certain level of knowledge or intent is required, courts will read in such a requirement. Possessory offenses are an excellent example of how this principle is applied by the courts.

A possessory offense is one in which the “act” element of the crime is fulfilled merely by possessing a prohibited object. New York drug and gun crimes are common examples of possessory crimes. For example, under New York Consolidated Laws Article 265, “a person is guilty of criminal possession of a firearm when he or she … possesses any firearm.”

At first glance, the wording of the statute would seem to indicate that anyone who has a weapon in their possession, regardless of whether they know they possess it, is guilty of the offense. However, criminal law disfavors this type of strict liability. Thus, courts generally require that a defendant knowingly possess a firearm before imposing criminal liability. It is important to note that the term “knowingly” goes to the object itself, and not the prohibited nature of the object. For example, a defendant who knowingly possesses a weapon but does not know that it is illegal to possess the weapon will be found to have “possessed” the illegal weapon.

Court Upholds Police Officer’s Search of Discarded Backpack in Recent New York Gun Possession Case

September 10, 2018 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York criminal law case discussing whether a police officer’s search of the defendant’s backpack was lawful. The Court examined whether the defendant abandoned property as a result of lawful or unlawful police conduct. Ultimately, the court concluded that the police officer was justified in his actions leading up to the point where the defendant discarded the bag. Thus, the court denied the defendant’s motion to suppress the gun.

The Facts of the Case

Police received an anonymous radio call that there was a man with a handgun riding the B9 bus towards Canarsie. Police waited at a bus stop, and when the defendant exited the bus, a police officer approached the defendant and asked him if he would mind talking to the officer for a moment.

At this point, the police officer claimed that the defendant became nervous and put his right hand into his pocket. When the police officer asked the defendant to remove his hand, the defendant refused. The police officer then drew his weapon and forcibly tried to remove the defendant’s hand from his pocket. The defendant fled and the police officer pursued him. Shortly thereafter, the defendant discarded the bag, the police officer searched the bag, and the police officer recovered the firearm.

New York Court Determines Warrantless Search of Motorhome Was Illegal

September 3, 2018 | Tilem & Associates

A state court recently issued an opinion in a New York gun possession case requiring the court to determine if a gun found in the defendant’s motor home was the product of an illegal search. Ultimately, the court concluded that the defendant’s motorhome was afforded the same protection as any other residence, and that the warrantless search was not justified.

The Facts of the Case

Police received a call that someone was stealing electricity by connecting their motorhome up to a telephone wire. Police responded to the scene to see the defendant’s motorhome connected to a nearby telephone pole by a wire coming out of the top of the motorhome.

According to police, an officer knocked on the door of the motorhome. When the defendant answered, police asked him about the wire, and the defendant admitted it was not legal. Police then put the defendant in handcuffs and walked him toward the police car. On the way to the car, police claimed that the defendant said “there is a gun in there.” Another officer then went into the motorhome, located the gun, and confiscated it.