New York Criminal Attorney Blog

New York Appellate Court Finds Trial Judge Should Have Had Hearing on Defendant’s Motion to Vacate Judgment Based on Uncontested Witness Affidavit

June 7, 2018 | Peter Howard Tilem

Post-Judgment motions such as CPL 440.10 motions can be very important to a person already convicted in criminal cases. Very often an appeal cannot address a problem that occurred at the trial such as a lying witness or ineffective assistance of counsel. In such cases, a post-judgment motion may be the only solution.

Earlier this month, a state appellate court issued a written opinion in a New York arson case discussing the defendant’s motion to vacate the judgment, which was denied by the trial court. The appellate court ultimately held that, given the uncontested evidence presented by the defendant in the motion, the lower court should have granted a hearing to determine if the defendant’s motion should have been granted.

The Facts of the Case

The defendant was charged with first- and second-degree arson. Part of the state’s evidence against the defendant was the testimony of a witness who claimed that the defendant confessed to starting a house fire. After a trial, the defendant was convicted on both counts.

The defendant filed a motion to vacate the judgment and submitted an affidavit from the prosecution witness. The affidavit stated that the witness was told by a police investigator that if she testified on behalf of the defendant, the officer would take her daughter away from her. The witness explained that this was concerning to her. The state offered no contradictory evidence, but the trial court denied the defendant’s motion to vacate summarily, without conducting a hearing on the matter.

New York Court Affirms Denial of Defendant’s Motion to Suppress Firearm

June 1, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun crime case discussing whether the arresting officer’s conduct violated the defendant’s constitutional right to be free from unreasonable searches and seizures. Ultimately, the court concluded that the officer possessed a reasonable belief that the defendant was armed or had recently committed a crime, and thus it held that the search of the defendant was permissible.

Police Interaction with Citizens

Under New York law, there are four levels of interactions between a police officer and a citizen. The more evidence a police officer has to believe that they are in danger or that the suspect has committed a crime, the more authority the officer has to stop, detain, frisk, and search the individual.

The Facts of the Case

The plaintiff was riding in a vehicle as the front-seat passenger, when the car was pulled over by police for a traffic violation. As one of the police officers approached the vehicle, he noticed that the defendant made a sudden move with his hand from his right shoulder to his lap area.

New York Court Excludes Breath-Test Results from DUI Trial Based on Police Officer’s Incorrect Warning

May 22, 2018 | Tilem & Associates

New York DWI lawyers have been following a landmark ruling issued earlier this month, when a state appellate court issued a written opinion in a New York DUI case which determined whether the lower courts properly excluded the results of a breath test indicating that the defendant’s blood-alcohol content was above the legal limit. The court ultimately determined that the warnings provided to the defendant were not correct, and thus the court could not say that he voluntarily consented to the test. This was a critical decision from New York’s highest Court, the Court of Appeals, which interpreted the extent of New York’s “two hour rule” for chemical tests in DWI cases.

The Facts of the Case

The defendant was pulled over and arrested on various charges, including driving under the influence of alcohol. About two hours after his arrest, a police officer asked the defendant if he would consent to a breath test. The defendant refused the test, and the officer read the defendant refusal warnings.

The refusal warnings provided by the officer stated that the defendant’s license would be suspended or revoked, regardless of whether he was ultimately convicted of driving under the influence. The police officer also explained to the defendant that the fact that he refused the breath test could be used against him at trial. The defendant then agreed to take the test, which indicated that his blood-alcohol level was above the legal limit.

The Warrant Requirement in New York Search and Seizure Cases

May 9, 2018 | Tilem & Associates

Lawyers experienced with drug cases often seek to suppress the drugs recovered by the police based upon a violation of the client’s right to not be subjected to unreasonable searches. As a general matter, the Fourth Amendment to the United States Constitution, as well as Article I section 12 of the New York State Constitution, prohibit unreasonable searches and seizures. As a general matter, this means that police must obtain a search warrant prior to conducting a search of a person or their belongings. Even when a search warrant is obtained, however, the police must be able to show that there was probable cause of discovering some kind of criminal activity.

Given this background, someone who is arrested after a search that was based on a warrant still has the ability to challenge the search. Generally, these challenges claim that the warrant was issued on insufficient facts or that the search exceeded the scope of the warrant.

A recent New York drug possession case illustrates the type of analysis courts use when reviewing a search warrant.

New York Court Upholds Defendant’s Conviction for Aggravated Assault Against an Officer Based on an Unintentional, Minor Injury

May 2, 2018 | Peter Howard Tilem

When it comes to New York assault cases, there are several different subsections under the general statute outlining what constitutes criminal conduct. One form of aggravated assault is when someone “with intent to prevent a police officer from performing a lawful duty, he [or she] causes physical injury to such police officer.”

This type of aggravated assault does not require any intent to cause harm to the police officer. Under the law, the prosecution need only establish that the defendant was acting to prevent an officer from performing a lawful duty and that the officer was harmed. A 2017 decision issued by a New York appellate court illustrates just how broadly courts will interpret this language when determining if a conviction was appropriate.

The Facts of the Case

The defendant was suspected of theft from a Home Depot store. Police began to follow the defendant as he left the store and soon afterward engaged in a high-speed chase. Eventually, the defendant’s vehicle stopped, and the defendant exited the car and then began to flee.

A New York Prosecutor’s Duty to Provide Evidence to the Defense

April 28, 2018 | Peter Howard Tilem

In New York criminal cases, the prosecution is under a duty to provide certain evidence to the defendant and his attorney, irrespective of whether the prosecutor intends to use the evidence against the defendant. Importantly, the duty attaches to any evidence that may establish innocence or otherwise be favorable to the Defendant. This concept, first discussed by the United States Supreme Court in the landmark case Brady v. Maryland, has since been expanded to cover any evidence that is in the hands of not just of the prosecution but also of the police. The material is commonly referred to by Criminal Lawyers as “Brady Material”.

A recent case illustrates just how seriously courts take the prosecution’s duty to disclose evidence to the defense. Indeed, the court noted that, although the defendant’s argument was not necessarily raised at the appropriate time, the issue was so important that the court ruled on the issue anyway.

The Facts of the Case

The defendant was charged with several crimes related to the assault of a minor. Prior to his arrest, and before the police knew where the defendant was, they “pinged” a cell phone that had been used by the minor earlier in the day (by “pinging” a phone, police are able to get a general idea of where the phone is). The police were able to locate the defendant through the cell phone.

New York Court Precludes Evidence of Defendant’s Psychiatric Evaluation Based on Failure to Provide Adequate Notice

April 23, 2018 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving a defendant who confessed to robbing a car at gunpoint. The case required the court to determine if the trial court properly excluded evidence suggesting that the defendant was “bipolar, with psychotic features.” Ultimately, the court concluded that the evidence was properly excluded because under New York Code Article 250, notice of intent to provide psychiatric evidence must be given in advance.

The Facts of the Case

The defendant was pulled over by police, and as a result of a search, the police discovered a loaded gun. After police seized the gun, the defendant blurted out that it was a good thing that the police officer quickly drew his gun because otherwise the defendant would have shot him. Police arrested the defendant and took him to a hospital to have him evaluated by a psychiatrist. The defendant was read his Miranda warnings and then admitted to taking the car at gunpoint.

After evaluating the defendant, the psychiatrist determined that the defendant was “bipolar, with psychotic features.” The defense hoped to use that diagnosis to explain why the defendant was not able to knowingly waive his Miranda rights and make the statement to police admitting to the robbery.

New York Self Defense Establishing the Defense of Justification in New York Criminal Cases

April 17, 2018 | Tilem & Associates

When it comes to New York assault cases, or homicides there are a number of defenses that someone charged with the offense can assert. An affirmative defense is a defense which the person accused of a crime has the burden of proving by a preponderance of the evidence. A defense, on the other hand must be disproved by the prosecution, beyond a reasonable doubt. One of the most common defenses in New York aggravated assault cases is that of self-defense or as its called in New York Justification. Justification is a defense that must be disproved by the prosecution.

In New York, NY Penal Law 35.15 governs self-defense claims. The statute also includes a defense for those acting in the defense of others. Specifically, that statute requires that the actor possess an honest and reasonable belief that they are facing unlawful physical force, or an imminent threat of unlawful physical force.

The statute thus creates two essential elements of a New York self-defense claim. First, the actor was subject to unlawful force, or the actor honestly had a fear that they were about to face unlawful force. However, even if the actor believes this to be the case, the statute also requires that their belief be a “reasonable” one. This introduces an objective element into the claim, essentially asking the judge or jury to determine whether the defendant’s fears were reasonable under the circumstances.

Limits on a Police Officer’s Ability to Stop and Frisk Citizens in New York

April 12, 2018 | Tilem & Associates

Over the last few years, there has been a backlash against the New York stop-and-frisk program, based on the fact that racial minorities were being stopped in far greater numbers than non-minority populations. And while by most accounts, the total number of people stopped and frisked has decreased, the basic principle that allows a police officer to stop and frisk a citizen still remains intact and these principles are important for experienced criminal defense attorneys who handle both gun crimes and drug crimes to be familiar with.

Under New York criminal law, there are four types of interactions with police. First, police may briefly stop someone to request information if they have any “objective and credible” reason. This does not necessarily have to be related to criminal activity. Second, if police believe that someone has, or is about to, commit a crime, they can briefly stop that person. Third, if police believe that the person poses a danger, they can search that person. Finally, if police have probable cause to believe that person committed a crime, they can arrest them.

In the moment, police have a difficult time neatly fitting each situation they confront into one of these four categories. As a result, police generally err on the side of restricting a person’s rights and will frequently exercise more force than is necessary. When this is the case, any evidence seized as a result of an officer’s violation of a person’s rights may be suppressed by the court.

The Importance of a Dedicated Defense Attorney at Probation Violation Hearings in New York

April 7, 2018 | Tilem & Associates

When someone is placed on probation in lieu of jail time, it is generally seen as a win. However, often a sentence of probation is not the end of the story. Indeed, probationary sentences can be strictly enforced, and if someone fails to live up to each and every condition of the sentence, they risk being found in violation and face the possibility of jail or prison.

When someone violates a New York probation sentence, the judge who ordered the original sentence can re-sentence that person to up to the statutory maximum. Thus, what starts off as a short sentence of probation can turn into what seems like a lifetime of being wrapped up in the system. Thus, the importance of a New York criminal defense attorney in a probation hearing cannot be overstated.

Of course, when a person on probation picks up a new criminal case, that case is a potential direct violation of their probation sentence. This is because the terms of probation forbid picking up a new case. Normally, the person will not be found in violation until they have been found guilty of the new offense. If they are found not guilty, in theory, their sentence of probation should continue. If they are found guilty, the new conviction will be a direct violation, and the judge overseeing the probationary sentence will be able to re-sentence that person.