New York Criminal Attorney Blog

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.

New York’s Highest Court Rules Analysis of License Plate in DMV Database Without Reasonable Suspicion Does Not Constitute an Unlawful Search

June 21, 2017 | Tilem & Associates

In a recent New York court opinion, the court analyzed whether a police officer can enter a license plate into a government database to check for any suspensions, outstanding violations, and the registration of the vehicle without first developing any suspicion that the vehicle was engaged in criminal activity. More specifically, the court ruled that this review of the license plate information does not constitute a search. Given the fact that many modern police cars are equipped with license plate readers and fixed license plate readers are becoming more commonplace, the issue is of paramount importance.

The facts of the case that gave rise to this opinion are as follows. In 2014, a police officer saw a vehicle drive past him. The vehicle was operated by the defendant. During the eventual trial on the matter, the officer stated that he did not see the vehicle engaging in any traffic violations or otherwise erratic behaviors. The police officer entered the vehicle’s license plate into his computer system, which was linked to the Department of Motor Vehicles. The analysis indicated that the registration for the vehicle was suspended due to outstanding parking tickets. The officer then initiated a stop of the vehicle. During that stop, the officer conducted a database search of the defendant’s driver’s license and discovered that his license was also suspended. Ultimately, the officer initiated an arrest of the defendant for driving while intoxicated as well as for operating a vehicle with a suspended license and registration.

New York Court of Appeals Rules Evidence of Prior Convictions is Admissible in Drug Crime Case When the Defendant Asserts an Agency Defense

June 20, 2017 | Tilem & Associates

The highest state court in New York recently issued an opinion discussing whether the prosecution can offer evidence of a defendant’s prior drug sale conviction in their direct case in instances in which the defendant is asserting an agency-based defense that is supported entirely by parts of the prosecution’s case-in-chief.

The facts of the case are as follows. In 2010, a number of undercover police personnel were engaged in a so-called buy-and-bust operation in Manhattan. The officers observed the defendant, along with another person, walking for roughly 40 minutes. Shortly thereafter, one of the officers reported seeing the other individual provide the defendant with money, after which the defendant walked across the street and into a residential apartment complex. A few minutes later, the defendant returned to his companion outside the building and provided him with certain items. Later, these items were identified as envelopes of heroin.

The police initiated a stop of the defendant and his companion. The officers discovered a sum of money in the defendant’s pocket and the narcotics in his companion’s pocket.

New York Court of Appeals Upholds Denial of Motion to Suppress Gun Evidence in Parole Violation Arrest Case

June 13, 2017 | Tilem & Associates

In a recent opinion from New York’s highest state court, the defendant was convicted of possessing a weapon in the second and third degrees as well as the unlawful possession of marijuana. Before the jury trial, the defendant filed a motion to suppress evidence of a firearm located in his vehicle. During the hearing on the motion, a detective testified about the circumstances surrounding the arrest of the defendant and the subsequent search that revealed the firearm. The detective stated that he and his partner received a warrant for the defendant’s arrest based on a number of parole violations. The detectives made several attempts to locate the defendant’s whereabouts, including an occasion on which they made contact with the defendant’s ex-girlfriend.

Later that day, the ex-girlfriend called the detectives to inform them that the defendant could be found in a specific location in his vehicle. The detectives arrived at the stated location, however, and the defendant was not there. Shortly thereafter, the ex-girlfriend called again in a panic, stating that the defendant had her son in his vehicle and that the defendant told her he had a firearm in the vehicle. The detectives returned to the previous location and confirmed the defendant’s parked and vacant vehicle, using the DMV records database and information that the ex-girlfriend provided. The detectives entered the defendant’s nearby apartment, where he was located with the ex-girlfriend’s son. After the defendant was arrested, the detectives searched the vehicle and located the firearm that the ex-girlfriend mentioned in a bag on the backseat of the vehicle.

The lower court denied the motion to suppress, stating that the parolee status and the tip from the ex-girlfriend regarding the gun provided sufficient support for the search. The appellate division affirmed, and the defendant again appealed to the New York Court of Appeals, the highest court in the state. The defendant argued that the search was unlawful pursuant to a prior case because the search was conducted purely as a result of the defendant’s status as a parolee and that such a search can only be performed by the defendant’s parole agent, rather than detectives.

New York Appellate Court Upholds Conviction of Defendant in Assault Case Over Confrontation Clause Objection

June 13, 2017 | Tilem & Associates

In a recent New York appellate decision, the defendant challenged a conviction of first-degree assault, claiming that he was deprived of a fair trial because he was not afforded his constitutional right of confrontation. The defendant was tried before a jury regarding an incident involving an assault on his estranged wife’s romantic partner. The victim testified that while he was hailing a cab in New York with the defendant’s estranged wife and child, he was stabbed from behind several times. During the incident, the victim identified the attacker as the defendant.

The prosecution was unable to locate the wife to provide testimony regarding the incident. Instead, it informed the court that while the wife identified the defendant as the attacker when talking to the police, she informed the prosecutor preceding the trial that she did not want to testify and that she did not recall seeing the defendant during the attack. The prosecution wished to have a detective testify regarding the wife’s statements following the incident, but the defendant objected, claiming that this would be extremely prejudicial to the defendant’s case because he would not have an opportunity to cross-examine the wife about the statements she made to the police. In response, the trial court rejected the prosecution’s request to have the law enforcement official testify. The court also noted that the wife’s absence would be prejudicial because the jury would infer that her testimony would likely be harmful to the defendant’s case. To address these potential outcomes, the court instructed the jury that the wife was “unavailable and, therefore, could not be called as a witness.”

Following testimony from the victim, the prosecution called a detective as a witness, who indicated that he interviewed the wife immediately following the incident and that she identified the defendant as the perpetrator. The defendant objected to this commentary, stating that it made an improper implication to the jury regarding what the wife would or would not testify if she were present. The defendant also moved for a mistrial, but the court rejected this request and instead instructed the jury to not draw any inferences from the testimony.

New York Firearms Attorney Peter Tilem Named to USCCA Critical Response Team – NY Self-Defense Law

May 23, 2017 | Tilem & Associates

New York Firearms Attorney Peter Tilem has been named to the Critical Response Team of the United States Concealed Carry Association. The USCCA Critical Response Team is an exclusive community of qualified attorneys that are committed to defending the rights of responsible gun owners in New York State and throughout the Country. USCCA is an organization that promotes firearms education, training and insurance to law abiding gun owners. The insurance covers members who are involved in a self-defense shooting and provides benefits for both legal defense and coverage in the event of a civil suit. The USCCA provides a list of pre-screened attorneys to its members. Mr. Tilem, who has been on the list of pre-screened attorneys for a number of years was recently named to the critical response team to provide 24 hour assistance to members in the event of a self defense incident.

Mr. Tilem joins the USCCA Critical Response Team with extensive experience handling assault cases where the defense of “justification” or “self-defense” has been used. As a former senior prosecutor in the New York County District Attorney’s Office, Mr. Tilem was often called upon to investigate shootings and stabbings involving self-defense claims and has continued during his 25 year career defending those accused of assault but many of whom were acting in self-defense.

Mr. Tilem is well aware of New York’s expansive defense of justification which goes way beyond using physical force including deadly physical force to defend ones self and others against violent attack. Article 35 of the New York State Penal law includes a variety of situations where an individual may use physical force and even deadly physical force to: defend premises and to terminate and prevent or prevent a burglary, (See Penal Law sec. 35.20); use physical force to prevent a larceny and/or criminal mischief, (See Penal Law 35.25); use physical force including deadly physical force by a civilian to effect the arrest of a person who has committed certain violent offenses, (Penal Law 35.30).

New York Gun Laws – High Capacity Magazines – Serious or Not?

May 1, 2017 | Tilem & Associates

As New York Gun Lawyers we are aware that New York has a ban on possessing firearms magazines that are capable of containing more than 10 rounds. However, not everyone is as aware of the gun laws as they should be and this week two different cases in two opposite ends of New York State demonstrated how serious these cases are and how the right representation can make all of this difference in the world.

As was widely reported in the paper last week (see another article here) a former Army veteran who spent more than 9 years in the army was convicted of three felonies in Niagra County in far western New York, after he was found to be in possession of three magazines for a Glock 9mm handgun. Each of the magazines was capable of holding more than 10 rounds of ammunition. The Army veteran did not possess any firearm, only the magazines. He is awaiting sentencing in two months according to the reports and faces up to 21 years in prison.

Meanwhile, in far Northern New York, on the same day that the veteran was convicted a man was being arrested and charged for bringing two handguns that were illegal in New York along with two high capacity ammunition feeding devices across the Canadian border in New York. This man possessed both the firearms and the high capacity magazines, also for a Glock pistol (albeit for a different model). Within a period of a week, the individual in Northern New York had the gun charges dismissed and had the high capacity magazine charges reduced to two counts of disorderly conduct. He paid fines totaling $500 a state mandated surcharge of $125 and the record of the arrest and conviction were sealed.

TILEM & ASSOCIATES GETS ANOTHER DWI DISMISSED DUE TO AN ILLEGAL STOP – THIS TIME IN ROCKLAND COUNTY

January 18, 2017 | Peter Howard Tilem

As very experienced New York DWI Attorneys we are often asked to assist other attorneys on complex DWI cases. Recently, that request paid off for the attorney and his client after all charges related to a Rockland County DWI were dismissed. In November Tilem & Associates was hired to take the lead in a suppression hearing for a client who was facing DWI charges and who was not being offered any plea bargain. We had sought the suppression of statements and breath that we asserted were taken illegally from our client after he was illegally taken out of his car.

At the suppression hearing, one police officer testified. The officer claimed that in response to a 911 call the officer responded to a location and saw our client in a vehicle that matched the description given to the 911 operator. On cross-examination, by me, the officer admitted that at the time the officer approached the vehicle and removed the driver from the vehicle that there was no reason to believe that the motorist had committed any offense other than a parking violation for parking on the line in a parking lot. The officer claimed that the motorist was asleep in the vehicle and tried to justify further action as a “welfare check” to ensure that the motorist was ok. However after responding that he was ok, I attacked the officers continued investigation, including: removing the motorist from the vehicle, bringing the motorist to the back of the vehicle, questioned the motorist, conducted standardized field sobriety tests and detained the motorists while other witnesses were questioned. The Judge ruled that all of those actions exceeded the authority that the officer had at the the time of incident.

As we have discussed extensively in the past, in a case called People v. Debour, New York’s highest Court recognized four different levels of intrusion that police officers may have based on the police officers level of suspicion. The lowest level, level one, the right to inquire, gives the police officer very limited authority to make inquiries about a person. Such inquiries may not be pointed or accusatory in nature. In the case in Rockland County, the Judge correctly ruled that the police officers authority capped at Debour level one there by only giving the officer the very limited right to inquire. Therefore, all of the statements and other evidence derived after that illegal conduct were suppressed, leaving no evidence and therefore no provable case.