New York Criminal Attorney Blog

FLIGHT FROM POLICE ALONE IS INSUFFICIENT TO JUSTIFY FURTHER POLICE INTRUSION [People v. Pirillo (3rd Dept November 24, 2010)]

December 30, 2010 | Tilem & Associates

As we have discussed often in this blog, suppression of evidence can often be the best avenue of an attack for an experienced criminal attorney. New York Courts have consistently held that one’s flight from the police, absent additional conduct creating a reasonable suspicion that a crime has been, is being, or is about to be committed is insufficient to justify further police pursuit. In other words, one’s flight from police alone, is insufficient to justify further police intrusion.

In People v. Prillo, the New York Appellate Division, Third Department upheld this long-standing legal principle reversing the Broome County Court’s denial of a defendant’s motion to suppress physical evidence. In Priollo, the police received a report of a suspicious person. The first officer to arrive saw a man fitting the description running out of a driveway towards her police car. At that time she had no reason to believe defendant had committed any crimes. She ordered defendant to stop. Defendant ignored her order, turned and started running away from the officer. The officer followed the running defendant in her patrol car. While he was running, defendant pulled jewelry and coins out of his pants and threw them on the lawn of a house he was passing. The property was recovered.

The defendant moved to suppress the property arguing that he tossed the items as a result of unlawful police conduct. The Broome County Court denied the motion. The Third Department reversed writing that while the officer could lawfully request information from the defendant about his presence in the area, the law did not require the defendant to answer the inquiry or stop running. The Court further wrote that flight from police, alone, was insufficient to justify further police intrusion such as a pursuit.

CRIMINAL POSSESSION OF MARIHUANA IN THE FOURTH DEGREE [NY PENAL LAW 221.15]

December 24, 2010 | Tilem & Associates

In New York, one is guilty of criminal possession of marihuana in the fourth degree when they knowingly and unlawfully possess one or more preparations, mixtures, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate (total) weight of more than two ounces. [PL 221.15]

As with Criminal Possession of Marihuana in the Fourth Degree, Criminal Possession of Marihuana in the Fifth Degree is an “aggregate” weight offense meaning that the weight of fillers and other non-drug substances is counted in the weight calculation. In other words, one is guilty of Criminal Possession of Marihuana in the Fourth Degree if they knowingly and unlawfully possess 56 grams of tea leaves mixed with one gram of marihuana. Moisture that adds to the overall aggregate weight is also counted.

As of November 15, 2010, Criminal Possession of Marihuana in the Fourth Degree is an A misdemeanor punishable as follows:

CRIMINAL POSSESSION OF MARIHUANA IN THE FIFTH DEGREE – NEW YORK PENAL LAW 220.10

December 19, 2010 | Tilem & Associates

In New York, it is illegal to possess marijuana (spelled marihuana in the New York State Penal Law) in a public place while it is either, burning or open to public view. The charge is Criminal Possession of Marihuana in the Fifth Degree – a Class B misdemeanor. [NY Penal Law 220.10(1)]. Under this particular subdivision, the quantity of marihuana is irrelevant. Therefore, smoking a joint in a public place is enough to elevate what would otherwise be the non-criminal offense of Unlawful Possession of Marihuana [NY Penal Law 221.05] to the criminal offense of Criminal Possession of Marihuana in the Fifth Degree.
One can also be guilty of Criminal Possession of Marihuana in the Fifth Degree if they possess more than twenty-five grams of marihuana. [PL 221.10(2)]. One need not possess twenty-five pure grams of marihuana to violate PL 221.10(2). Criminal Possession of Marihuana in the Fifth Degree under subdivision two of PL 221.10 is an “aggregate weight” offense meaning the prosecution need not prove that one possessed twenty-five pure grams of marihuana. The weight of all compounds and substances mixed with the marihuana is included in the weight determination. See People v. Nelson, 144 A.D.2d 714 (3rd Dept. 1988)(noting that a 1979 amendment to New York’s marihuana possession statutes adopted an aggregate weight standard). Theoretically, one could possess one gram of marihuana mixed with twenty-five grams of oregano and be convicted of CPM in the Fifth Degree [PL 221.10(2)].
For more information about this or any other criminal matter, feel free to contact Tilem & Campbell toll free at 1-877-377-8666.

NEW YORK – UNLAWFUL POSSESSION OF MARIHUANA

December 15, 2010 | Tilem & Associates

Having an experienced New York drug attorney is essential to getting the best possible outcome for your drug charge. Experienced criminal defense lawyers that know how to fight drug cases know that there are substantial differences in the way Marijuana cases are treated (spelled Marihuana in the the New York State Penal Law) and the way other drugs are treated. New York State treats marihuana offenses differently that most other drug offenses. Most importantly, marihuana is not a controlled substance under New York law. Therefore, offenses involving marihuana are not subject to New York’s harsh controlled substance laws. In fact, marihuana offenses in New York are codified in their own separate Article in the New York State Penal Law (Article 221) while Controlled Substance offenses are codified in Article 220 of the New York Penal Law.

This does not mean that possession of large quantities, or distribution of marihuana are not serious offenses in New York – they are. However, simple possession of 25 grams or less of marihuana in New York is generally not a criminal offense. [PL 221.05 & 221.10]. That means you or your teenage child can be caught with almost an ounce of marihuana (with an ounce being 28 grams) and most likely will only be charged with the non-criminal violation of Unlawful Possession of Marijuana (UPM). [PL 221.05]. Unlawful Possession of Marijuana is a non-criminal violation punishable as follows:

Generally: A fine of not more than $100.00

UNLAWFUL POSSESSION OF MARIHUANA IN NEW YORK (UPM): MULTIPLE OFFENSES – NEW YORK PENAL LAW SEC. 221.05

November 20, 2010 | Tilem & Associates

Possession of 25 grams or less of marihuana in New York is generally not a criminal offense. [PL 221.05]. Therefore, simple possession of an unlit “joint” or a “nickel or dime” bag in New York is generally only charged as the violation – Unlawful Possession of Marihuana. One can be charged criminally with Criminal Possession of Marihuana in the Fifth Degree – a Class B Misdemeanor if the marihuana is in a public place and burning or open to public view. [PL 221.10].

Furthermore, prior convictions for UPM do no elevate a new UPM charge to a criminal offense. There are some offenses found in the Penal Law or the Vehicle and Traffic Law which are elevated to a more serious charge if one has a prior conviction for the same offense. For example, if one is arrested for DWI they are generally charged with DWI as an unclassified misdemeanor. However, if they have a prior DWI conviction within the ten years prior to their arrest on the current DWI, the current DWI can be elevated to a Class E felony.

That’s not the case with Unlawful Possession of Marihuana [PL 221.05]. Nothing elevates UPM to a criminal offense. Even if you have 50 prior convictions for UPM, if you are caught with 25 grams or less of marijuana, you still are only facing the non-criminal violation of Unlawful Possession of Marihuana. Prior controlled substance convictions may result in a higher fine but will not operate to elevate the UPM to a criminal offense. I will discuss when a prior controlled substance conviction may result in a higher fine on a current UPM in a future blog.

DRIVING WHILE ABILITY IMPAIRED BY ALCOHOL

November 10, 2010 | Tilem & Associates

In New York, no person shall operate a motor vehicle while their ability to operate such motor vehicle is impaired by the consumption of alcohol. [VTL 1192(1)]. Unlike Driving While Intoxicated [VTL 1192(2), (3)], Driving While Ability Impaired (DWAI) in New York is not a criminal offense but instead is a non-criminal traffic infraction. (Please see our May 27, 2009 blog on the difference between DWAI and DWI in New York.) However, Driving While Ability Impaired can be charged as a misdemeanor if the defendant has two or more convictions for Driving While Ability Impaired, Driving While Intoxicated, Aggravated Driving While Intoxicated, Driving While Ability Impaired by Drugs or Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs within the previous ten years.

One who is “impaired” by alcohol is less “impaired” than one who is intoxicated. Said another way, intoxication is a greater degree of impairment. All the prosecution need prove to convict a defendant of Driving While Ability Impaired is that the defendant’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities the defendant is expected to possess in order to operate a vehicle as a reasonable and prudent driver. [See CJI2d (1192(1)].

What makes it difficult for a defendant to defend against a Driving While Intoxicated charge is the “impaired, to any extent”, language found in the jury instruction. For one to be found guilty of Driving While Intoxicated (which is a criminal offense), their ability to operate a motor vehicle must be impaired to a “substantial” extent. However, with Driving While Ability Impaired, one is guilty if their ability to operate the vehicle is impaired to “any” extent. So while it’s generally not a criminal charge, it doesn’t take much proof for the prosecution to prove that one was Driving While Ability Impaired [VTL 1192(1)] because of the low threshold “any” extent proof requirement. Therefore, even the slightest of impairment can result in a conviction for Driving While Ability Impaired.

TRIAL COURT NEED NOT TO INFORM DEFENDANT THAT HE FACED MANDATORY SEX OFFENDER REGISTRATION AS A RESULT OF HIS GUILTY PLEA

November 6, 2010 | Tilem & Associates

As experienced criminal defense lawyers we are all too familiar with New York’s onerous Sex Offender Registration Act (SORA). SORA requires the registration of individuals convicted in New York State of certain sex offenses and demonstrates what could happen when inexperienced defense attorneys fail to inform their clients of all of the consequences of a plea. . In People v. Gravino, the defendant was charged with rape in the second degree; endangering the welfare of a child; and unlawfully dealing with a child in the first degree for providing alcohol to underage children and having sex with a 14-year-old boy. The rape charge was a registerable offense under SORA.

The defendant ultimately agreed to plead guilty to one count of third-degree rape in exchange for a sentence of 1 1/2 to 3 years in prison. During her plea discussions with the court and at the time of her plea allocution, defendant was never informed by the court that she would be required to register as a sex offender as a result of being convicted of third degree rape. At sentencing, defendant moved to withdraw her plea claiming a conflict of interest with her current counsel and that she experienced “nothing but misrepresentation”. The court denied her application and proceeded with the sentencing; imposed the agreed sentence and found defendant to be a sex offender.

Defendant appealed to the Fourth Department of the Appellate Division arguing, among other things, that her plea was not voluntary because the court did not make her aware of the sex offender registration requirements under SORA. The First Department disagreed, holding that the “lack of awareness prior to sentencing” of the SORA sex offender registration requirements did not detract from the voluntariness of defendant’s guilty plea.

NEW YORK CRIMINAL LAWYERS PETER TILEM & Peter Tilem ON THE RADIO TONIGHT DISCUSSING PROSTITUTION

November 3, 2010 | Tilem & Associates

New York Criminal defense lawyers Peter Tilem & Peter Tilem continue their radio show entitled “Law Talk” tonight at 8 pm on the Centanni Broadcasting Network. Tonight’s topic is “Everything You Wanted To Know About the Prostitution Business (but were afraid to ask)” The show should be very interesting and informative and follow the general format of past shows except that Law Talk is scheduled to have its first guest ever joining lawyers Peter Tilem and Peter Tilem on the air tonight.

Please tune in tonight live at 8pm or listen on demand by clicking here Listen Live.

As always, if there is a topic you want to here discussed on the air or you want a question answered live, e-mail the question to info@tilemandcampbell.com.

NEW YORK’S IGNITION INTERLOCK DEVICE PROGRAM IS ONLY APPLICABLE TO DRIVING WHILE INTOXICATED BY ALCOHOL CRIMES

October 27, 2010 | Tilem & Associates

Under New York’s tough new Ignition Interlock Device Program, those convicted of Driving While Intoxicated per se under VTL 1192(2); Common Law Driving While Intoxicated under VTL 1192(3); Aggravated Driving While Intoxicated under VTL 1192(2-a) or any crime found in the Vehicle and Traffic Law or the Penal Law of which an alcohol-related violation of any provision of VTL 1192 (New York’s DWI laws) is an essential element will be required to install an IID in any vehicle they own or operate for at least six months.

However, the law does not apply to those convicted of Driving While Ability Impaired (Alcohol) [VTL 1192(1)]; Driving While Ability Impaired by Drugs [VTL 1192(4)]; Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol And Any Drug or Drugs [VTL 1194(4-a)]; Commercial Motor Vehicles: per se – level I (.04-.06 while operating a commercial vehicle) [VTL 1192(5)]; and Commercial Motor Vehicles; per se – level II (more than .06 but less than .08 while operating a commercial vehicle) [VTL 1192(6)].

Perhaps an argument could be made that the IID law applies to Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol And Any Drug or Drugs [VTL 1194(4-a)] because under the second provision of this statute one’s ability to drive must be impaired by the combined influence of alcohol and any drug or drugs. Therefore, impaired by alcohol is an essential element of the second provision of VTL 1194(4-a).

WHO MUST INSTALL AN IGNITION INTERLOCK DEVICE UNDER NEW YORK’S IGNITION INTERLOCK DEVICE PROGRAM?

October 25, 2010 | Tilem & Associates

New York DWI lawyers are now forced to counsel their clients on the new penalties attached to DWI convictions in New York. On November 18, 2009, New York enacted the Ignition Interlock Device Program. Pursuant to this law, effective August 15, 2010, one who was arrested in New York on or after November 18, 2009 and convicted on or after August 15, 2010 for (1) Driving While Intoxicated per se (VTL 1192(2); (2) Common Law Driving While Intoxicated (VTL 1192(3)); (3) Aggravated Driving While Intoxicated (1192(2-a)); or (4) any crime found in the Vehicle and Traffic Law or the Penal Law of which an alcohol-related violation of any provision of VTL 1192 (New York’s DWI laws) is an essential element will be required to have installed an ignition interlock device in any vehicle he or she owns or operates for a period of at least six months.

This ignition interlock device must be installed even if the court imposes a conditional discharge. (See VTL 1193(1)(b)(ii); VTL 1193(1)(c)(iii); VTL 1198; and PL 65.10(2)(k-1)). To clarify: the IID law does not apply to those arrested before November 18, 2009 even if they are sentenced after August 15, 2010.

This can prove to be quite an onerous condition. For example, a married father with two children of driving age might very well own or operate four cars. If he were to be convicted of an offense that mandates the installation of an IID, he would have to install an IID in all four cars at his own cost. Initial installation and monitoring costs will be discussed in a future blog but generally, initial installation will cost from $80.00 to $225.00 for each car and monthly monitoring will cost as much as $90.00 per month per car. In this example therefore, the defendant could spend as much as $900.00 for installation in the four cars and $360.00 per month for monitoring of the four units for a minimum of six months. The costs can run into the thousands.