New York Criminal Attorney Blog

New York Court Discusses the Crime of Conspiracy, Reversing Defendant’s Conviction

February 18, 2018 | Tilem & Associates

New York criminal lawyers understand that a conspiracy to commit a crime requires that the defendant agree with one or more other person to commit the crime. Earlier this month, New York’s highest court issued a written opinion in a New York criminal case involving allegations that the defendant was guilty of committing conspiracy in the second degree. The case required the court to review the defendant’s actions leading up to the crime and determine if they constituted a conspiracy and tested the minimum limits of acceptable proof to establish a New York conspiracy. Finding that the defendant’s mere presence at the scene of gang meet-ups was insufficient to establish a conspiracy to commit a crime, the court reversed the defendant’s conviction.

Conspiracy in New York Courts

In New York, when more than one person work together to commit a crime, they can each be held individually liable for the ultimate result. Thus, even if someone has only a minor role in the planning or execution of a crime, that defendant can be punished as though he committed the crime on his own.

New York Appellate Court Reverses Conviction Based on Improper Use of Peremptory Strikes During Jury Selection

February 7, 2018 | Tilem & Associates

As we have been discussing in previous blogs, there are many different issues that can arise in the jury selection process. The main objective is to ensure that the jurors who are selected for the trial will act without bias and that they will be able to apply the law in an objective manner. As seasoned New York criminal defense lawyers, the attorneys at Tilem & Associates have handled many trials and jury selections. We know how important it is to understand the rules of jury selection and how critical it is to ensure that you receive an appropriate and unbiased panel of jurors.

Recently, a New York appellate court considered the role that a juror’s skin color may play in the jury selection process. The court was asked to determine whether a juror’s skin color is a sufficient basis for challenging a prosecutor’s use of a peremptory strike to remove that juror. A peremptory strike describes the right of either party to challenge the selection of a juror without having to provide a reason for wanting to excuse that prospective juror. During the jury selection process, each side has a certain number of peremptory strikes that they are allowed to use. The parties are allowed to assert an unlimited number of challenges to jurors when the parties provide just cause for wanting to excuse that juror.

The United States Supreme Court has held, however, that peremptory strikes cannot be used to dismiss a juror based on his or her skin color or gender. If a party believes that the other side is using peremptory strikes to dismiss jurors based on skin color or gender, the party can challenge the other side’s peremptory strike, particularly when the challenging party believes that the other party is engaging in discrimination. The challenging party has the burden of making a prima facie showing that the other party used peremptory challenges to exclude jurors based on skin color.

New York Appellate Court Upholds Conviction in Coercion Case Based on Defendant’s Failure to Make a Timely Objection

January 31, 2018 | Tilem & Associates

One of the most critical phases of a trial is providing instructions to the jury before deliberation. There are form jury instructions that the judge can use, but the parties are also allowed to offer suggested jury instructions. The type of instructions that the jury receives can have a serious impact on the ultimate verdict that they return. Additionally, if you believe an error was made during jury instructions, it is critical that you object to it on the record so that you can later appeal the matter. At Tilem & Associates, our team of New York criminal defense lawyers has guided numerous clients through the jury instruction phase.

A recent New York appellate opinion discusses alleged errors in jury instructions. The defendant was charged with a number of crimes, including coercion involving his ex-girlfriend. The defendant was accused of making physical threats against the former girlfriend and threatening to ruin a business that she operated after the girlfriend asked the defendant to move out of her apartment. The defendant allegedly made these threats in an attempt to stay at the apartment. The defendant was on parole at the time he made these threats, so the girlfriend reported the threatening conduct to his parole officer. The parole officer then had the defendant arrested. Evidence at trial suggested that the defendant continued to make threats against his ex-girlfriend while he was in prison.

During trial, the defendant asked the judge to instruct the jury on coercion in the second degree as a lesser-included offense of coercion in the first degree. In making this request, the defendant asserted that his conduct did not rise to the level of heinousness contemplated by coercion in the first degree. The trial court denied his request. At the close of trial, the jury returned a verdict convicting the defendant of coercion in the first degree on two counts. The defendant appealed.

New York Appellate Court Upholds Lower Court Denial of Motion to Dismiss Juror Based on Allegations of Impartiality and Bias

January 24, 2018 | Tilem & Associates

As we discussed in our previous blog, if you are involved in a criminal trial, one of the most crucial steps is selecting the jurors. There are many rules that apply to this part of the legal process, and it is crucial to make sure you protect your right to a fair and unbiased jury. As seasoned New York criminal defense lawyers, the trial attorneys at Tilem & Associates have guided many individuals through the jury selection process and their case in general.

A recent New York appellate opinion discusses a case involving a jury dismissal issue. The defendant was facing criminal charges in connection with the death of a five-year-old. During the jury selection phase, defense counsel questioned one of the prospective jurors regarding whether or not he or she had issues with the fact that the case involved the death of a toddler. The juror indicated that he could not be impartial because of the victim. Another juror indicated that he also felt he could not be impartial. The defense counsel asked the jurors whether they agreed that the burden to prove guilt beyond a reasonable doubt was on the prosecution. The jurors all agreed, including the two jurors who indicated that they did not believe they could remain impartial. The defense counsel then asked whether the jurors would have trouble finding the defendant not guilty if the prosecution failed to meet its burden of proof. One of the jurors who showed initial hesitation expressed doubt about this question.

The trial court then asked the doubtful jurors a series of questions to determine their ability to be unbiased and to apply the law fairly. Based on this examination, the court dismissed one of the jurors. Defense counsel asked the court to dismiss the other doubtful juror, but the court denied this motion. Defense counsel then used one of their peremptory challenges to dismiss the juror. The case proceeded, and the defendant eventually appealed the judgment.

New York Appellate Court Reverses Murder Conviction Based on Lower Court’s Refusal to Allow Questioning of Prospective Jurors

January 17, 2018 | Tilem & Associates

As experienced New York criminal defense lawyers, we often receive questions about the jury selection process and the rules that apply to ensure that a fair and unbiased jury is selected. Jury selection, the process of choosing fair and impartial jurors can be one of the most critical stages of a jury trial. During the selection process, lawyers are permitted to ask the jurors questions and can select certain jurors to be removed, either based on their answers or based on a certain number of challenges they can use without having to explain their reasoning. A recent appellate opinion discusses the rules that apply to questioning jurors.

The defendant in the action was charged with murder. The defendant provided a written and verbal statement to law enforcement officials regarding the shooting and the events that led up to it. He said that the victim approached him to discuss a missing cell phone and that the victim later approached the defendant again and threatened him with an ice pick. The defendant said he then shot at the defendant as the defendant fled. The prosecution identified two witnesses to these events.

Before the jury selection phase of the trial, the defendant’s lawyer asked if the court could instruct the prospective jurors about the rules that apply to the use of the defendant’s statement. The lawyer wanted to make sure that he could weed out any jurors who would be unable to accept the rules that apply to involuntary statements and who would automatically assign weight to any statement regardless of how it was procured. The prosecution indicated that it had not decided whether it intended to admit the defendant’s statement into evidence. The court ultimately declined the defense lawyer’s request, finding that the jury selection phase was not the appropriate time to address this issue.

New York Appellate Court Reverses Second-Time Violent Offender Classification Based on Improper Sentencing

January 5, 2018 | Peter Howard Tilem

New York Criminal Lawyers know that Sentencing is one of the most critical aspects of any criminal prosecution. During this phase, the court will consider many different factors and determine the appropriate sentence for the defendant. There are many types of sentences from which a judge can choose, but in some cases, the judge is required to impose certain mandatory minimum sentences. As a recent appellate opinion shows, having a seasoned New York criminal defense lawyer by your side during sentencing can make all of the difference.

The facts of the case are as follows. The defendant was convicted of two counts of violent robbery in November 2010. In 1994, however, the defendant had been convicted of a class B violent felony assault in the first degree. Initially, the defendant was sentenced to probation regarding the 1994 conviction. Following a probation violation, however, he was resentenced to a prison term.

During sentencing regarding the 2010 charge, an issue arose regarding whether his 1994 conviction constituted a predicate violent felony offense for the purpose of sentencing him as a second-time violent felony offender regarding the 2010 convictions. More specifically, the court was asked to decide whether the date of the first sentence imposed for the 1994 crime in lieu of the date of the resentencing imposed for the 1994 crime should be used to determine whether the prior conviction fell within the 10-year look-back period specified in New York’s violent felony offender statute.

LOCAL FIRM SCORES MAJOR VICTORY IN WESTCHESTER TOWN’S ATTACK ON MASSAGE ESTABLISHMENTS

December 29, 2017 | Peter Howard Tilem

White Plains law firm Tilem & Associates won a major Court victory yesterday when a Supreme Court Justice granted the firm’s application and issued a Temporary Restraining Order (TRO) against the Town of Greenburgh’s enforcement of its local law regulating massage establishments. In 2015 the Town of Greenburgh, New York in Westchester County passed an ordinance which required massage establishments to obtain special permits from the Town in order to operate within the unincorporated part of the Town. During consideration of the ordinance by the Town Board, the proposed legislation was not without controversy. In fact the Town Board received a letter from the New York State Department of Education letting the Board know that licensed massage therapists were wholly regulated by the State of New York and were licensed by the State Department of Education and that the regulation by the State preempted any such regulation by the Town and unfairly burdened professionals licensed by the State.

Notably, the Greenburgh ordinance regulates licensed massage therapists not unlicensed massage therapists and requires those that are already licensed to obtain a Greenburgh License. Also notably, the Greenburgh ordinance defines Massage, a term already defined in sec 7801 of the New York State Education Law.

Based upon the clear preemption of these regulations by New York State Law, the American Massage Therapy Association brought a lawsuit to invalidate the Greenburgh Law in 2016. However, after a significant amount of litigation that lawsuit was dismissed on a technicality. On September 29, 2016, Acting Supreme Court Justice Helen Blackwood ruled that “what appears to be a meritorious claim fails due to petitioners’ lack of standing.” Standing is a legal principle that requires a litigant to demonstrate some injury before they can bring a lawsuit. Since neither the American Massage Therapy Association nor an individual petitioner had been directly affected or harmed by the new law Judge Blackwood ruled that they could not maintain the original action.

New York Appellate Court Reverses Decision in Case Involving Procedural Errors on Appeal

December 28, 2017 | Peter Howard Tilem

As experienced New York criminal defense lawyers, we have seen many cases involving procedural errors. If you believe that your case involved a serious error or mistake that resulted in an improper conviction or determination, you can appeal the decision. To file a proper appeal, however, there are certain steps that you must take to preserve your rights and to ensure that your appeal will be heard. A recent New York appellate opinion discusses some of the requirements involved in making an appeal.

The background of the case involves a temporary protection order issued against the defendant in 2012. The defendant was arraigned on charges involving trespass and disorderly conduct involving a protest that she attended. The temporary order of protection was issued as a condition of bail and instructed the defendant to stay away from a certain military individual who sought the order. Four months later, the defendant was arrested again involving another protest on the ground of violating the temporary order of protection.

At trial, the defendant was convicted of criminal contempt in the second degree and acquitted of the disorderly conduct charge against her. The proceeding was conducted at a court where a stenographer is not present and where no court transcript is maintained. The trial court pronounced its sentence for the defendant’s conviction, and she appealed the same day. The defendant’s appeal documents did not include an affidavit of errors.

New York Appellate Court Upholds 25-Year Sentence, Rejects Ineffective Assistance of Counsel Claim

December 24, 2017 | Tilem & Associates

There are a wide variety of issues that can be raised on appeal following a criminal charge and criminal sentencing. One of the issues that can be raised is ineffective assistance of counsel. In this type of appeal, which generally is raised not by an appeal but by a motion to vacate a conviction under CPL 440.10, the defendant is arguing that his or her attorney failed to render competent legal counsel and that this failure had a dispositive outcome in his or her case. As seasoned New York criminal lawyers, we understand how critical it is to provide clients with responsive, dedicated, and knowledgeable legal counsel.

A recent appellate opinion discusses when a conviction can be overturned for ineffective assistance of counsel. The defendant was accused of sexual abuse of a minor. At trial, the victim testified regarding the alleged abuse, stating that the abuse occurred for many years and that she had informed a number of individuals, including two officers, regarding the incidences. Following the victim’s testimony, the defendant’s counsel did not seek a limiting instruction from the court requesting that the minor’s statements regarding previous disclosures should not be considered in determining whether or not her testimony was true.

The prosecution called each of the individuals whom the victim had allegedly informed of the abuse. Defense counsel objected at each point at which the prosecution attempted to elicit an answer regarding what the victim disclosed to each witness. The prosecution then called a child sex abuse expert witness to testify regarding her examination of the victim. The expert witness testified that the victim had informed her of the abuse, and defense counsel objected. The doctor also testified that there were no physical signs of sexual abuse, but this conclusion did not foreclose the possibility that abuse occurred. In closing arguments, the prosecution stated that the victim should be believed based on her prior consistent statements and the testimony from each witness regarding the victim’s communications regarding the abuse. Ultimately, the defendant was sentenced to 25 years in prison. The Appellate Division affirmed the ruling, and the defendant appealed.

New York Appellate Court Reverses Sentence Based on Violation of Defendant’s Right to Be Present at Sentencing Hearing

December 16, 2017 | Peter Howard Tilem

New York has enacted certain laws that are designed to protect a defendant’s rights during criminal prosecutions and sentencing. As seasoned New York criminal defense lawyers, we are well versed in these procedural rules and understand how important it is to ensure that our clients receive the fair and equitable treatment that they deserve. One of these rules requires that a defendant be present at the time a sentence against him or her is pronounced. A recent New York appellate opinion discusses whether this rule applies to the re-imposition of an original sentence.

The background of the case is as follows. The defendant entered a guilty plea to a manslaughter charge and attempted murder charge in 2001. As a result, he was sentenced to 25 years in prison for each count, to be served concurrently. At the sentencing hearing, the judge did not mention post-release supervision. It was also omitted from the sentence and commitment order.

In 1998, New York legislators voted to require a mandatory period of post-release supervision for any determinate state prison sentence. Failing to notify the defendant of this term during the plea provided a basis for a defendant to move to vacate a plea. Subsequently, New York courts concluded that any defendant who enters a guilty plea must be informed of the consequences, including the imposition of post-release supervision. The New York Legislature voted to enact an exception to this requirement. Under the law, the notification requirement only applied to determinate sentences imposed between September 1, 1998, and June 30, 2008. Furthermore, the notification must only be provided if a statutorily required PRS term was not pronounced verbally during a sentencing hearing. Stated differently, the law allows the court to re-impose an original determinative sentence without a term of post-release supervision.