New York Criminal Attorney Blog

SUIT FILED AGAINST NEW YORK DMV FOR LIFETIME BAN ON CERTAIN DRIVERS WHO POSSESS CERTIFICATES OF GOOD CONDUCT

August 24, 2017 | Tilem & Associates

New York law firm Tilem & Associates has filed an Article 78 lawsuit against the New York State DMV based upon the DMV policy of instituting a lifetime revocation against certain drivers who have multiple alcohol related driving incidents. Although the policy was previously upheld in Court the revocation policy as it pertains to drivers who have had a Certificate of Good Conduct or a Certificate of Relief from Civil Disabilities issued to them is illegal and violated several provisions of New York State Law according to the lawsuit.

In 2012 the New York State Department of Motor Vehicles changed its regulations to institute a lifetime ban on what DMV termed “persistently dangerous drivers.” The term persistently dangerous driver applies to drivers who have three alcohol (or drug) related driving offenses and another serious driving offense in a 25 year period. The new regulations have been challenged in Court and have been repeatedly upheld by Courts throughout New York State. However, the new Court challenge relates to an individual with 4 alcohol related driving offenses including two felony DWI cases and a state prison sentence of 2-6 years in prison but who had a Certificate of Good Conduct issued to him by the New York State Department of Corrections and Community Supervision. Specifically, the Certificate of Good Conduct “provides relief from forfeitures, disabilities or bars to employment and licensing automatically imposed by New York State law as a result of his conviction.”

Certificates of Good Conduct and Certificates of Relief from Civil Disabilities are defined under the New York State Correction Law §703-a and §703 respectively and after a thorough investigation permit the Court or Parole Board to create a presumption of rehabilitation. Moreover, New York State Correction Law §752 specifically prohibits the denial of a license based upon a previous conviction or based upon lack of good moral conduct if either a Certificate of Good Conduct or Certificate of Relief from Civil Disabilities is issued. New York State Correction Law §752 does set out two exceptions to that general rule.

STOSSEL DOCUMENTARY SHINES LIGHT ON NEW YORK GUN LAW ABYSS

August 23, 2017 | Tilem & Associates

A documentary produced by John Stossel about the experiences of two clients of Tilem & Associates who flew through New York airports, one with a gun and one with a firearm magazine clearly demonstrates the absurdity of New York gun laws and the real need for National Concealed Carry Reciprocity. The video can be viewed here.

The video tells the story of Tricia Jordan who was with her daughter when she was attempting to fly out of Laguardia airport with a gun and was arrested for the class “C” violent felony of Criminal Possession of a Weapon in the Second Degree and of Avi Wolf who had a magazine with no firearm and no bullets but was arrested for the class “D” violent felony of Criminal Possession of a Weapon in the Third Degree (yes, I know, he didn’t possess a weapon) because the magazine, even though it was empty, was capable of holding more than 10 rounds of ammunition.

Both, after hiring Tilem & Associates, pled guilty to a non-criminal disorderly conduct charge and paid a fine of $250. Both had their records sealed. However, the video shows what these law abiding citizens went through including spending a day in jail and having to hire a lawyer to defend them against these very serious charges. The video also shows how misleading the TSA website and the airline website can be for travelers to New York who lawfully fly with their guns.

New York Court of Appeal Upholds Murder Conviction Despite Lower Court’s Jury Instruction Error

August 21, 2017 | Tilem & Associates

One of the most common issues to arise in a criminal case is whether a certain piece of evidence can be used during a trial. Although there are protocols regarding how the prosecution must maintain evidence and preserve the chain of custody, sometimes evidence is mishandled or lost. This creates a whole host of legal issues regarding the impact of the evidence and whether it can be used or referenced during a trial. As a recent appellate case demonstrates, consulting with a knowledgeable New York criminal defense lawyer can help you understand your legal rights and how evidence may affect your case.

The defendant in the case at hand was charged with intentional murder in the second degree, two counts of criminal possession of a weapon in the second degree, and other things. The shooting allegedly took place outside a nightclub in Queens. Shortly after the incident, a police officer obtained a copy of video surveillance footage of the scene that the nightclub possessed, but the footage was subsequently lost before the trial took place. The defendant was identified as a suspect, and the bouncer of the club identified him in a lineup, but he later testified at trial that he could not be certain whether the defendant was the shooter because he observed the shooter from across the street.

Before trial, the defendant requested disclosure of the nightclub’s surveillance footage, and the prosecution requested a copy as well. The police department responded that the officer misplaced the footage, however, and that it could not be found. The nightclub has ceased operating in the interim and did not have any additional copies of the footage. A number of witnesses and the officer testified about the footage and what they saw, with the bouncer indicating that the footage captured the victim.

New York Court of Appeal Reverses Manslaughter Conviction Based on Improper Jury Instructions

August 15, 2017 | Tilem & Associates

One of the most common questions that we receive as New York criminal defense attorneys is, “How are jury members selected?” The law surrounding jury selection is very complex, as the following recent appellate opinion demonstrates. The central issue in this appeal was whether the lower court committed a reversible error when it did not allow defense counsel to question prospective jurors regarding their opinions about involuntary confessions. The defendant was charged with a number of crimes, including murder. The defendant provided verbal and written statements to the police indicating that he was involved with the shooting. The victim approached the defendant about a missing cell phone, and sometime after that, the defendant came back and threatened him with an ice pick, at which time the defendant pulled out a gun and shot at the victim while he fled. There were two eyewitnesses to the crime in addition to the defendant’s statements.

Before jury selection, the defendant asked if he could question jurors regarding their ability to understand legal rules applicable to involuntary statements. In response, the prosecution indicated that they had not decided whether they were going to offer the defendant’s statements during trial as evidence. As a result, the court denied the defendant’s request to question jurors on this subject. The court reasoned that if the prosecution did not use the statements, and the jury was questioned about their views on involuntary confessions, the jury might then engage in speculation regarding whether such statements existed. The court also concluded that the jurors would be able to understand that involuntary confessions were inadmissible for any purpose.

During trial, the prosecution admitted the defendant’s statements, and the jury ultimately concluded that the defendant was not guilty of murder in the second degree. Instead, they convicted him of manslaughter in the first degree. The defendant appealed, stating that the trial court erred when it failed to allow the defendant to question jurors about involuntary confessions. The Appellate Division affirmed the lower court’s ruling, and the defendant appealed to the New York Court of Appeal.

New York Court of Appeal Upholds Coercion Conviction, Dismisses Appeal Based on Improper Jury Instruction

August 12, 2017 | Tilem & Associates

Understanding the roles that the court and the jury play in a criminal proceeding can be difficult. As seasoned New York criminal defense attorneys, we believe it is critical that our clients know the rules of law that may affect their trial. The following appellate opinion explains why it is critical to understand these rules and to have an attorney who is prepared to help you fight for the fair and impartial trial that you deserve.

In the case, the defendant was charged with two counts of coercion in the first degree for making physical threats against his former girlfriend and for threatening to ruin her business operation. The girlfriend had asked the defendant to move out of her apartment, and the defendant allegedly engaged in the threats to stay as a resident. The girlfriend reported the defendant’s threatening behavior to his parole officer, who arranged for the defendant’s arrest and incarceration. The defendant allegedly continued to engage in threatening behavior against the girlfriend from jail.

During trial, the defendant asked the court to instruct the jury regarding coercion in the second degree as a lesser-included offense of coercion in the first degree, arguing that the evidence could be construed as lacking indications that he engaged in the heinous conduct that usually characterizes the greater offense of coercion in the first degree. The lower court denied the request, finding that the charge of the lesser-included offense was not applicable, based on the record. The jury convicted the defendant of both counts of coercion in the first degree. The defendant appealed, and the Appellate Division concluded that the lower court did not err in failing to include the lesser coercion charge.

New York Court of Appeal Upholds Burglary Conviction, Rejects Challenge to Use of Annotated Exhibits During Final Argument

August 8, 2017 | Tilem & Associates

Technology has made our lives easier in many ways, but it has also raised novel issues regarding how technology can be used during a trial. As seasoned New York criminal defense attorneys, we are prepared to handle these new and developing issues and to ensure that they do not affect your right to a fair trial. As the following case demonstrates, having a prepared and informed lawyer at your side can make all of the difference.

In a recent appellate opinion, the Court of Appeal considered whether a prosecutor’s use of a PowerPoint presentation that contained annotated images of evidence and trial exhibits was permissible or whether it constituted a reversible error for the court to allow the prosecutor to use the presentation. The defendant was implicated in an attack in which several men broke into the victim’s apartment. The victim knew the defendant as fellow residents of the same neighborhood. According to the victim, the defendant shot him, cut him, and dumped bleach onto his head.

During trial, the prosecution submitted video evidence of the street and sidewalk where the victim lived that were obtained from the apartment building’s surveillance system. The victim testified that he was on the phone with his brother when the men broke in, and the brother testified at trial. During his testimony, the prosecution showed still photographs from the surveillance video. The brother offered additional testimony indicating that he was in the vicinity shortly before the attack and that he believed he saw the defendant as part of the group of men.

Before the jury began deliberations, the court instructed them that they were the sole finders of fact and that things the lawyers stated during final summations were not evidence. The prosecution used a PowerPoint display during summation that contained annotated images of trial exhibits, featuring circles, text, and arrows. The photographs had also been superimposed with phrases like “victim’s brother sees defendant.”

New York Appellate Court Reverses Murder Conviction Based on Failure to Excuse Unqualified Juror

July 26, 2017 | Tilem & Associates

A New York appellate court recently considered in an opinion whether a trial court committed a reversible error when it failed to discharge a sworn juror who, after four days of deliberations, indicated multiple times that she was unable to “separate [her] emotions from the case.” The juror also stated that she lacked the ability to decide both factual and legal issues in the matter.

The defendant was indicted for a murder in which the victim was stabbed 38 times. After the jury was excused for deliberations, the court clerk received a phone call from the juror in question, in which the juror asked what she needed to do to be excused from the trial. Next, the judge performed a substantive inquiry with the juror in the presence of the attorneys and the defendant, in which the juror repeatedly stated that she felt unable to separate her emotions from the case and that she was not fit to make certain factual and legal decisions. The exchange was lengthy and included in the court record. The defendant moved for a mistrial because the alternative jurors had already been dismissed. The judge then asked the defendant to reconsider the prosecution’s plea offer of manslaughter, finding that the juror had reached the conclusion that the defendant was guilty but was unable to carry out her duty as a juror to vote in favor of entering a guilty plea against him.

New York Appellate Court Overturns 20-Year Sentence Based on Procedural Errors

July 19, 2017 | Tilem & Associates

A New York appellate court recently published an opinion discussing the application of youthful offender status. The facts of the case are as follows. The juvenile was 18 years old when he was involved in an incident in which he stabbed a woman repeatedly and cut a bystander. The juvenile was indicted on charges of second-degree attempted murder, first-degree assault, and second-degree assault. He then pled guilty in exchange for a promise that his prison sentence would be capped at 20 years in addition to post-release supervision. In the defense counsel’s sentencing memorandum, counsel requested that the court treat the defendant as a youthful offender. The counselor also asked that any statements provided by the victims or their family members be disclosed with the pre-sentencing investigation report.

During the hearing on sentencing, defense counsel objected that he did not receive any victim impact letters with the report. The court denied counsel’s request to receive the statements. Oral impact statements were presented from the victim, the victim’s parents, and an intervening bystander injured during the incident. After the statements, the court remarked on the horrific nature of the crime and the life-long impact that the incident had on the victims and their families. The court made no mention of youthful offender status and imposed an aggregate sentence of 20 years’ prison time and five years’ supervision following release.

The defendant appealed, and the Appellate Division reversed the decision, remitting the matter to the sentencing court to make a determination based on the record regarding whether the defendant should receive youthful offender status. The Appellate Division had determined that the lower court reviewed witness statements that were not released to the defendant or included in the record, so the reviewing court asked for a list of the statements that were reviewed and a statement of reasons regarding why the statements were not released. According to the sentencing court, the Probation Department provided certain documents to the court based on a promise of confidentiality, leading the court to prevent their disclosure.

New York Appellate Court Overturns Robbery Conviction Based on the Prosecution’s Improper Use of a Social Media Photograph

July 12, 2017 | Tilem & Associates

In a recent appellate opinion, a New York court was asked to decide whether the prosecution had provided an adequate foundation during trial to authenticate a photograph that purportedly depicted the defendant brandishing a gun and money, which was obtained from a social media profile on the internet that allegedly belonged to the defendant. The background of the case is as follows. The defendant was convicted of two counts of robbery during a jury trial. A witness testified at trial regarding events surrounding the robbery. The witness stated that the incident occurred while he was making milk deliveries and that at one point he observed an individual holding a gun roughly one foot away from the victim’s chest. The victim and the individual brandishing the gun exchanged words, the victim threw a handful of cash from his pocket onto the ground, and the individual and his accomplice fled after collecting the money.

After the witness concluded this testimony, the prosecution informed the court that it intended to introduce a photograph located “on the internet” that purportedly showed the defendant holding a handgun. The prosecution indicated that the victim could identify the firearm in the internet photo because the same weapon was used during the robbery and that a detective could identify the defendant as the person who committed the robbery.

The defendant objected, stating that the prosecution failed to create an adequate foundation to authenticate the photograph as an accurate and fair depiction of the defendant holding the gun, or to show that the photograph had not been modified. The prosecution rebutted this assertion by stating that the foundation would be provided through proof that the picture was obtained from a public web page that included an internet profile name with the defendant’s surname and additional photographs depicting the defendant. The lower court ruled that the prosecution had provided an appropriate foundation and that the photograph could be admitted. The matter proceeded, and the defendant was ultimately found guilty on two counts of robbery.

New York Appellate Court Denies Appeal Based on Ineffective Assistance of Counsel in Child Sexual Abuse Case

July 5, 2017 | Tilem & Associates

A recent New York appellate opinion discussed a case in which a defendant asserted that his rights were compromised because he received ineffective assistance of counsel. The defendant was charged with sexual conduct involving a child in the second and first degrees. The victim, a relative of the defendant’s extended family, informed a school counselor that she had been molested by the defendant between the ages of five and 10 years old on several occasions. The defendant acknowledged that the defense asserted at trial was that this disclosure was a recent fabrication. He also argued, however, that the defense was not assumed until final summations and that the defense was inexplicable in light of statements that the victim provided regarding the abuse to three of her friends roughly four years before the criminal proceeding.

According to the trial court record, however, this defense was asserted very early in the trial proceedings, including at the voir dire or jury selection phase, and it proceeded throughout the trial. The record also showed that defense counsel provided a foundation for this defense in his opening statement, indicating that the victim waited seven years to alert the authorities and that the victim’s decision to wait to disclose the event to authorities four years after she informed her friends indicated that she was not credible.