New York Criminal Attorney Blog

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.

New York Appellate Court Upholds Murder Conviction, Rejects Defendant’s Challenge to Voluntariness of Confession

December 14, 2017 | Tilem & Associates

New York Criminal Defense Lawyers need to be aware of the countless procedural rules that are absolutely essential to follow in order to ensure that you protect your rights at every step of a criminal investigation or prosecution in addition to the substantive law. At Tilem & Associates, our diligent team of New York homicide defense lawyers has substantial experience and knowledge when it comes to these procedural rules and navigating the courtroom. A recent New York appellate opinion illustrates there are countless rules that apply to how law enforcement can secure a confession from a witness.

In the case, the defendant was convicted of murder, attempted robbery, and burglary. The defendant was not originally a suspect in the matter, but throughout their investigation, the detectives identified inconsistent information in statements that the defendant provided to the police. The police brought the defendant in for questioning, which lasted for several hours during the course of three days. The defendant implicated two other individuals in the crimes and ultimately confessed to murdering two victims, ages 21 and 18 respectively, who were siblings and who lived together in an apartment in Queens.

The events giving rise to the murders involved one of the victims phoning the defendant, who was her ex-boyfriend, and asking for help. The authorities were eventually called to the apartment, where the defendant was waiting. The detectives collected a broad spectrum of evidence from the scene of the crime and conducted multiple interviews of persons related to the incident who potentially had information. The defendant was one of the people who were initially interviewed, even though he was not listed as a suspect at first. By the end of the investigation, he was charged with six counts of murder, among other things.

New York Appellate Court Upholds Lower Court’s Decision to Relieve Defendant’s Attorney Based on Conflict of Interest Issues

December 9, 2017 | Tilem & Associates

Ensuring that you have the right attorney handling your claim and representing your interests is critically important. At Tilem & Associates, our seasoned team of New York gun crime lawyers has handled countless matters involving criminal investigations and prosecutions. This means we not only feel confident in the courtroom but also understand the many different procedural and substantive aspects of your matter. As a recent New York appellate opinion demonstrates, it is essential to ensure that you have addressed all potential procedural issues as soon as possible.

The background of the case is as follows. The defendant brandished a firearm in front of a friend that was secured in his waistband and threatened to use it on another individual. He then went to a park, where he was seen near a specific individual. The police arrived, and the defendant and the individual fled in separate directions. Multiple witnesses testified to seeing defendant throw the gun, which was later located by the police. The police also found drugs, which the other individual admitted to owning. The defendant was charged with criminal possession of a weapon and resisting arrest. The other individual was charged with drug possession.

A public defender was assigned to the defendant’s claim. Roughly eight months later, the prosecution provided evidence showing that another public defender represented the other individual on his criminal charges stemming from this same set of facts. The attorney for the defendant stated that he intended to use the other individual as a potential witness for the defense before he learned about the potential conflict of interest. The defendant indicated that he wanted the public defender to continue representing him even though the attorney indicated that it may not be ethical for him to do so because another attorney in his office represented the other individual.

NEW YORK DWI LAWYERS BEATS ANOTHER REFUSAL HEARING – CLIENT AVOIDS LIFETIME REVOCATION

December 4, 2017 | Peter Howard Tilem

Refusing to take a chemical test in New York can come with very serious consequences. For example, a motorist who refuses a properly requested breath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case. If a person has prior alcohol related incidents, the period of revocation can be much longer, even life. Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process. In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked. In New York the criminal case, the DWI, and the refusal follow two different tracks. The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV. In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal. He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.