New York Criminal Attorney Blog

STATE POLICE SERGEANT ARRESTED FOR RECORDS TAMPERING RELATED TO BREATHALYZER MACHINES – 20,000 DWI CASES COULD BE JEOPARDIZED

November 21, 2017 | Peter Howard Tilem

Experienced DWI attorneys understand the potential errors associated with breath test machines even when calibrated and functioning properly. However, recently a New Jersey State Police Sergeant assigned as a coordinator in the Alcohol Drug Testing unit has been arrested for skipping a step in the recalibration of breath test machines and falsifying records to certify that he performed the required check. Specifically, the Sergeant is alleged to have skipped the temperature check while re-calibrating the machines and then falsely certifying that he performed the check. The Sergeant was responsible for calibrating breathalyzers in Middlesex, Ocean, Monmouth, Union and Somerset counties over a period of seven years and State officials have identified well over 20,000 DWI cases that could be affected by this arrest. This arrest comes on the heels of a Police lab technician having been accused of faking a test in a Marijuana case last December. That disclosure put into question almost 15,ooo cases.

The issue with breath tests is even more acute than drug cases because generally the police do keep the drugs that were tested for a period of time even after a conviction and so those drugs are available to be retested. However, when you give a breath sample, no part of the sample is maintained for retesting and therefore the momentary reading from the breath machine plays a crucial part in the case. In addition, in most drug cases the issue is the presence or absence of a controlled substance and the total weight of the substance. The concentration of the controlled substance in the sample does not matter. In DWI cases, however, small differences in the percentage of alcohol detected in a breath sample can have a huge impact on the outcome of a case and can in fact impact whether charges are brought or not.

The issue of calibration goes to the heart of the accuracy of these devices and goes to the heart of the accuracy of what is often the key evidence in DWI cases. For example, body temperature can affect the breath reading and as experienced DWI lawyers understand a person with a fever can have an artificially high read on a breath test. Therefore, of course, the temperature of the simulation solution during a re-calibration can be critical. The problem is compounded by the substantial weight given to the results of these machines by prosecutors, courts and even jurors and at the same time manufacturers of breath machines attempt to keep the inner workings of these machines a secret, treating the inner workings of the machine as a trade secret.

New York Appellate Court Reverses Gun Charge Based on Improper Admission of Unlawfully Seized Evidence

November 20, 2017 | Tilem & Associates

In many situations, it is best to seek guidance from an experienced New York criminal lawyer as early in the process as possible. The authorities do not always have your best interests in mind, whereas a criminal defense lawyer can advise you of your rights at each step of the process. As we have discussed in prior blogs about cases such as DWI or crimes involving possession of guns marijuana or drugs seeking suppression of the evidence, may be a defendant’s best defense. A well-established constitutional rule states that evidence obtained from unlawful searches and seizures cannot be used against the accused. As a recent criminal case demonstrates, whether you can successfully assert this defense can have a huge impact on your involvement in a criminal investigation. Continue reading

New York Appellate Court Orders New Trial in Case Involving Improper Admission of Hearsay Evidence Involving DNA Testing

November 12, 2017 | Tilem & Associates

Knowing which evidence can be used against you in a New York criminal trial or prosecution is critically important to ensuring that you receive fair treatment. At Tilem & Associates, our seasoned New York criminal defense lawyers have counseled numerous residents on their rights and assisted them with ensuring that the prosecution plays by the rules. A recent appellate opinion demonstrates the complexity that can often arise with evidentiary issues, especially when it comes to DNA evidence.

In the case, the appellate court was asked to consider whether a defendant’s constitutional right to confront persons who offer testimony against him was violated by the admission of DNA evidence by a witness who did not supervise or generate the DNA evidence. The defendant was charged with a number of offenses stemming from three burglaries. The first burglary involved a dry cleaning store and a number of other stores that were connected through a common basement. The defendant was seen on surveillance footage in the stores, and the police took swabs of streaks of blood that they identified on the rear door of the building. The swabs were sent to the Office of the Chief Medical Examiner (OCME) for DNA analysis.

The second incident involved a home furnishings store. The police located a receipt covered in blood near a check-out stand, which they also sent to OCME for DNA analysis. Eventually, the DNA evidence from the two burglaries was matched with the defendant’s DNA profile that was stored in the database. During trial, the prosecution called one witness from OCME to testify about the DNA evidence. The witness testified about the DNA evidence based on his review or reports that other lab technicians had prepared and about other test results that he did not run himself. The defendant objected at several points throughout the testimony, stating that the prosecution was actually eliciting evidence from witnesses who were not going to testify at trial, i.e., the technicians who performed the other tests and DNA analyses. Ultimately, the trial court allowed the witness to testify in a conclusory and general fashion regarding the evidence without personal knowledge of the tests and analyses, including the DNA profile generated from the swabbing of the defendant.

New York Appellate Court Reverses Decision Upon Finding of Judicial Bias and Impropriety

October 31, 2017 | Tilem & Associates

One of the most confusing aspects of a New York criminal case for defendants and suspects to navigate is the procedural rules that apply. There are countless procedural rules that apply in criminal cases, which are primarily designed to ensure a fair proceeding and to provide the parties with fair notice about certain decisions, hearings, and events related to the claim. As New York DWI lawyers, we pride ourselves on staying current with procedural changes and ensuring that our clients’ rights are protected at each step of the legal process. Failing to make objections to procedural errors or to hold the prosecution accountable can have dire consequences for a defendant’s rights.In a recent appellate opinion, the defendant was charged with driving while impaired. In response to the charges, the defendant filed a motion to dismiss after his arraignment. The judge presiding over the motion denied the defendant’s request, and the matter proceeded to a bench trial. A bench trial is a trial that is conducted before a judge without a jury. The same judge who presided over the initial motion presided over the bench trial. Ultimately, the judge found the defendant guilty and issued a sentence against him in response to the conviction.

The defendant appealed the conviction. The matter was heard by the same judge who presided over the pretrial motion and the bench trial. Between the time of the conviction and the defendant’s appeal, the judge was elected to the appellate court. The judge reviewed the defendant’s appeal and upheld the conviction. The defendant appealed again, arguing that the judge should have recused himself from the appeal and that the judge’s failure to do so resulted in a reversible error.

New York Appellate Court Upholds Admission of Recorded Jailhouse Phone Call Between Defendant and Girlfriend

October 26, 2017 | Tilem & Associates

Understanding which types of evidence can be used against you during a New York criminal investigation or New York criminal trial is extremely important. Having a seasoned and vigilant New York assault defense lawyer at your side throughout the entire process can mean the difference between knowing when to object to a proffered piece of evidence or unknowingly letting it slip by and be used against you.

In a recent New York appellate opinion, the defendant challenged his conviction based on the trial court’s decision to allow evidence of a phone call between the defendant and his former romantic partner at trial to be used as admission evidence. The defendant was charged with multiple counts of trespass, criminal mischief, and assault involving his ex-girlfriend. Through evidence offered at trial, it was clear that the defendant and his former girlfriend had a rocky relationship. The prosecution provided evidence regarding a series of events. In one instance, the defendant allegedly broke the ex-girlfriend’s cable box and struck her face. In another, he allegedly pushed her down and struck her chest, resulting in two broken ribs. The third incident involved the defendant’s unauthorized entry into the ex-girlfriend’s apartment, where he remained until police officers arrested him.

The prosecution did not rely on the victim’s testimony, conceding that she suffered from drug and alcohol abuse as well as mental health issues, a history of violence toward romantic partners, and a lengthy criminal record. During trial, the prosecution requested permission to play a tape recording of a telephone conversation between the defendant and the ex-girlfriend that was made while the defendant was incarcerated. The prosecution offered the tape as an adoptive admission by silence of the defendant’s guilt. The ex-girlfriend continually accused the defendant of causing her to suffer broken ribs, and the defendant did not deny the accusations. The trial court did not deny use of the tape recording but instead provided the jury with an instruction regarding the tape, encouraging them to consider carefully whether the defendant’s silence in response to the ex-girlfriend’s statements regarding the broken ribs constituted an admission of guilt.

New York Appellate Court Upholds Consecutive Sentencing in Burglary and Murder Conviction

October 18, 2017 | Tilem & Associates

Sentencing is one of the most challenging aspects of any trial, and perhaps the most critical part of the legal process when it comes to how significantly the matter will affect the defendant’s future. At Tilem & Associates, our seasoned New York criminal defense lawyers assist defendants with ensuring that they receive no greater a sentence than they deserve. As a recent appellate opinion demonstrates, having a knowledgeable attorney in your corner can make all of the difference.

In the appeal, the defendant asked the court to review whether there was a sufficient legal basis for imposing consecutive sentences. The defendant was charged with a number of crimes, including burglary in the first degree and murder in the second degree. The defendant was accused of breaking into his ex-girlfriend’s home and stabbing her with a kitchen knife. Although the defendant admitted to causing the victim’s death, he asserted a defense indicating that he was under an extreme emotional disturbance.

Ultimately, the defendant was convicted of two counts of burglary and intentional murder. During sentencing, the prosecution contended that consecutive sentences were appropriate, due to the evidence presented regarding the brutal nature of the murder, which involved the defendant dragging the victim down a flight of stairs and stabbing her at least 38 times. Specifically, the prosecution noted that the defendant caused injuries to the victim on two separate occasions: when he dragged her out of bed upstairs, and when he inflicted fatal wounds on her downstairs with the knife. In response, the defendant argued that consecutive sentences were inappropriate because the crimes constituted one continuing sequence of events that the defendant had formulated prior to breaking into the victim’s home.

New York Appellate Court Upholds Sentence in Sexual Assault Case, Noting that the Defendant Failed to Preserve Key Objections

October 18, 2017 | Tilem & Associates

One of the most nerve-wracking and stressful phases of any trial is the sentencing phase. During this portion of the trial, a sentencing judge will consider a wide variety of factors in determining whether the defendant must face incarceration or other penalties. There are many rules that apply to sentencing that are designed to protect defendants from unfair sentences, or from facing penalties that exceed the scope of the alleged misconduct. As experienced New York City gun crime lawyers, the legal professionals at Tilem & Associates have the skills and knowledge it takes to navigate a sentencing hearing successfully and appropriately.

A recent appellate opinion highlights how important it is to understand the scope of your rights and available objections during a sentencing hearing. During the summer of 2011, a police officer was accused of raping, sodomizing, and sexually assaulting a schoolteacher in a courtyard area while off duty. The defendant used his police-issued firearm to threaten the victim, and evidence indicated that the weapon was loaded at the time the assault occurred. The defendant was charged with three counts of predatory sexual assault and three counts of a criminal sexual act in the first degree, and he was convicted of all of the charges. During sentencing, the defendant received a 25-year prison term with an additional 20 years of supervision after release for each of the counts of criminal sexual conduct and for each related count of predatory sexual assault. The sentence was to run consecutively, for a total of 75 years to life, with the sentence imposed for each criminal act running concurrently to the related conviction for predatory sexual assault.

The defendant appealed the consecutive sentencing, and the reviewing court upheld it, finding that the sentencing judge had a proper legal basis for imposing the consecutive sentences. It reasoned that while the convictions for predatory sexual assault involved similar criminal acts rendering concurrent sentences appropriate, the convictions for criminal sexual acts involved three distinct events, thereby justifying the consecutive sentencing.

Appellate Court Reverses Manslaughter Charge Based on Improper Jury Instructions

October 14, 2017 | Tilem & Associates

One of the most critical aspects of a criminal trial is providing instructions to the jury before they begin their deliberations. Before the jury is instructed, the prosecution and defense can consult with the judge about the instructions that they believe should be provided. Whether the jury is instructed about a particular defense or presumption can have serious implications for your trial. As seasoned New York City criminal defense lawyers, we routinely assist defendants with ensuring that the jury receives the appropriate and lawful set of instructions.

A recent case demonstrates the importance of jury instructions. The facts of the case as follows. The defendant was charged with second-degree murder and other charges including assault and possession of a weapon involving the fatal shooting of one victim and the shooting of a second victim. The surviving victim was the primary witness during the defendant’s trial. Evidence at trial indicated that the parties knew one another and that the two victims were friends of the defendant’s mother’s tenant. The defendant, along with his mother, had grown frustrated about the men lingering around the apartment and had repeatedly contacted police authorities to have them removed. On the night the shooting occurred, the police refused to arrest the two victims, stating that they were not engaging in criminal activity out front of the apartment. The defendant made a statement to the police indicating that he may engage in violence toward the victims using a gun.

The next day, the defendant left his home with a gun concealed in his jacket. The defendant confronted the two men, who were standing outside of a nearby bodega. The men eventually engaged in an argument and one of the victims picked up a mop from inside the bodega. The evidence presented at trial suggested that the victim with the mop raised it toward the defendant, at which point the defendant revealed his firearm and shot at both victims, wounding one and killing the other. According to the record and the victim’s testimony, however, it was somewhat unclear whether the mop was raised at the same moment the defendant brandished the gun, or whether the mop was raised prior to the gunshot.

VACATING A CONVICTION AFTER TRIAL PURSUANT TO CPL 440.10 – A COURT MAY VACATE A CONVICTION IF THE KEY WITNESS AGAINST THE DEFENDANT LIED AT TRIAL ABOUT PRIOR CRIMINAL ACTIVITY AND OTHER BAD ACTS

October 12, 2017 | Peter Howard Tilem

In New York one may file a motion to vacate a conviction even after an appeal was denied. A person convicted of a criminal offense after a trial who has exhausted his appeals may still file what is commonly referred to as a “440” motion back in the original court where he was convicted. Many times “440” motions are based upon newly discovered evidence.

Briefly, under CPL 440.10(1)(g), a court may vacate a conviction where new evidence has been discovered after trial, which could not have been produced by the defendant at the trial and such evidence creates a probability of an outcome more favorable to the defendant. Furthermore, the defendant must file his motion with due diligence after discovery of the new evidence.

Generally, however, such “new evidence” cannot be mere impeachment evidence. In other words, such newly discovered evidence cannot simply be evidence that could have impeached the credibility of a prosecution witness. However, this is not an absolute rule. A court can vacate a conviction where the “key” prosecution witness lies at trial about prior criminal activity or other bad acts committed by him prior to him testifying. In cases where courts have vacated convictions on such grounds, the witness who lied was the key or primary witness against the defendant and the case hinged on that witness’ credibility.

New York’s New Sealing Law Opens Up New Possibilities For Those With Old Criminal Convictions

October 10, 2017 | Peter Howard Tilem

New York’s new sealing law which authorizes the sealing of up to one felony conviction and two total convictions went into effect in New York last week and is already creating new possibilities for those with old criminal convictions. Up until recently a New York expungement law would be considered to be almost impossible. After all as experienced criminal defense lawyers there is rarely a week that goes by without a call from someone asking about “expunging” criminal convictions and we as attorneys were frustrated with what used to be the answer; that there was no way of sealing old criminal convictions in New York.

Like all the uncertainty surrounding all new laws no one really knows how impactful CPL 160.59 will be. One factor will be whether prosecutors routinely oppose applications to seal under CPL 160.59 or not. The other will be what types of hearings are used by the Court and lastly how generous will the Courts be in sealing old convictions.

Another question pertains to the use of prior alcohol related driving convictions to deny people driver’s licenses. The New York Department of Motor Vehicles (DMV) is currently applying a twenty-five year look back and denying those with three or more alcohol related driving convictions reinstatement of their driver’s licenses. These revocations are essentially turning into lifetime revocations. As we reported last month, our firm has already filed a lawsuit against DMV because we believe that prior DWI convictions cannot be used to deny people licenses if the Court (or the Department of Corrections) has issued a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.