New York Criminal Attorney Blog

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.

SCOTUS Releases Opinion Impacting the Government’s Ability to Seize a New York Defendant’s Property

March 17, 2019 | Peter Howard Tilem

Recently, the United States Supreme Court issued a written opinion in an interesting case discussing the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, the case involved the Excessive Fines Clause of the Eighth Amendment and required the Court to determine if the rights contained in the Clause applied to both federal and state proceedings. Ultimately, the Court concluded that when the Fourteenth Amendment was passed, it incorporated the rights contained in the Excessive Fines Clause (as it did with most other rights included in the Bill of Rights).

The Facts of the Case

According to the Court’s opinion, the defendant was arrested on drug and theft charges while he was driving a Land Rover SUV that he had just purchased with the proceeds from an insurance policy after the death of his father. The defendant paid $42,000 for the SUV.

The defendant pled guilty to both charges. While the maximum allowable punishment would have resulted in a jail sentence and a $10,000 fine, the defendant was placed on house arrest and fined approximately $1,000. After the case was over, the government claimed that the SUV was involved in the transport of drugs, and sought civil forfeiture of the vehicle.

New York Appellate Court Holds Evidence Was Insufficient to Sustain Defendant’s Burglary Conviction

March 12, 2019 | Peter Howard Tilem

In order to convict someone of a crime in New York, the prosecution must establish each element of the offense. Under New York law, a burglary occurs when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein. Thus, in the case of a New York burglary charge, the prosecution must establish that the defendant 1.) knowingly entered or unlawfully remained 2.) in a building 3.) with the intent to commit a crime therein.

If the prosecution is unable to establish each of the elements beyond a reasonable doubt, then a defendant cannot be convicted of that offense. However, prosecutors typically charge multiple similar crimes, so if they are cannot convict a defendant of the lead charge they will still attempt to convict on a lesser charge. A recent state appellate decision illustrates this concept in the context of a burglary charge.

The Facts of the Case

According to the court’s opinion, the defendant allegedly assaulted a 14-year old girl and, as he was fleeing from the police, entered a person’s home without permission. While he was inside the house, the defendant allegedly stole several articles of clothing.

Court Holds that New York Recidivist Statutes Look to Original Sentencing Date, Rather than a Subsequent Resentencing Date

March 6, 2019 | Peter Howard Tilem

When courts determine a defendant’s sentence, one of the factors they consider is the defendant’s prior record. Typically, the more convictions a defendant has on their record, the harsher the penalty they can expect to receive.

New York lawmakers have prescribed an escalating punishment scheme for “second felony offenders.” Under New York Consolidated Laws § 70.06, a second felony offender is someone who has recently been convicted of a qualifying offense and has a qualifying predicate offense. The punishments for second felony offenders are mandatory, meaning a judge cannot exercise her discretion to impose a more lenient sentence, and are significantly increased over those for first-time felony offenders. A proficient New York criminal appeals attorney can break everything down further regarding the details of your specific case once you reach out to them.

When it comes to determining whether a previous conviction is a qualifying predicate offense, courts look both to the date of the sentence as well as the type of crime. In a recent case, a New York appellate court clarified that it the original date of sentencing that courts should look to when determining if someone qualifies as a second felony offender.

New York Court Discusses Jail’s Release of Inmate’s Phone Calls to Prosecutors

February 28, 2019 | Peter Howard Tilem

When someone is arrested and charged with a serious New York crime, they are often subjected to pretrial incarceration. This may be because they are unable to afford bail on their new case, the Court held them without bail, or because they were on probation or parole at the time they were arrested for the new allegations. In any event, after being arrested and subsequently incarcerated, it is common for defendants to make several phone calls to friends, loved ones, and employers. These phone calls are recorded, and anyone charged with a New York crime should not discuss their case over the phone with anyone except their attorney. These recorded phone calls have been increasingly used by prosecutors in New York as evidence in the criminal case.

A recent case issued by a New York appellate court held that a correctional facility does not violate a defendant’s Fourth Amendment rights when it discloses the contents of an inmate’s phone conversations to the prosecution.

The Facts of the Case

According to the court’s opinion, the defendant was facing charges of burglary and robbery, and was held at Rikers Island for eight months until his family was able to post bail. During his pretrial incarceration, the defendant made approximately 1,100 phone calls. At trial, the prosecution attempted to admit excerpts from four of those calls, containing incriminating statements. The defendant filed a motion to preclude the conversations from being admitted into evidence, arguing that their admission would violate his Fourth Amendment rights.

New York Court Affirms Defendant’s Conviction for Possession of Firearm under Constructive Possession Theory

February 22, 2019 | Peter Howard Tilem

Earlier this month, a court issued a written opinion in a New York gun possession case discussing the concept of constructive possession. Ultimately, the court concluded that the prosecution’s evidence was sufficient to establish that the defendant exercised “dominion and control” over the weapon. Thus, the court affirmed the defendant’s conviction.

The Concept of Constructive Possession

Under New York criminal law it is illegal to possess certain items, such as some types of guns or drugs. To establish criminal liability for a possessory offense, the prosecution must be able to present evidence showing that the defendant was in possession of the item. In this context, possession can be actual or constructive.

Actual possession is established when an object is found on the defendant. Constructive possession, on the other hand, refers to when an object is not in the defendant’s actual possession, but it can be said that the defendant “exercised dominion or control” over the object. For example, it is under a constructive possession theory that someone can be charged for a gun found in the trunk of a car.