New York Criminal Attorney Blog

IN NEW YORK, THE PROSECUTION IS REQUIRED TO MAKE AN “ADEQUATE” OPENING STATEMENT WHICH DELINEATES THE PARTICULAR OFFENSES CHARGED AND HOW THEY WILL BE PROVEN. IF THE PROSECUTION FAILS TO MAKE AN “ADEQUATE” OPENING STATEMENT – THEY GET A “DO O

March 27, 2011 | Tilem & Associates

At Tilem & Campbell our lawyers have the trial experience to take cases to trial when plea bargaining proves to be non-productive. Criminal defense lawyers need not make an opening statement at trial. However, in a New York State criminal trial, the prosecution “must deliver an opening address to the jury.” [CPL 260.30(3)]. Although the relevant statute, CPL 260.30(3), does not set forth the required content of the prosecution’s opening statement, “at a minimum the prosecutor generally should set forth the nature of the charge against the accused and state briefly the facts he expects to prove, along with the evidence he plans to introduce in support of the same.” People v. Kurtz, 51 N.Y.2d 380, 384 (1980).

If the prosecutor’s opening statement is deficient, defense counsel should move to dismiss the case at the conclusion of the prosecution’s opening pointing out the deficiencies in their opening statement. The trial court is obligated to rule on this motion when defense counsel makes it and cannot reserve decision. Why? Because the prosecutor must be given the opportunity to correct any deficiency in their opening – thus avoiding dismissal. Id at 384.

The Kurtz case exemplifies the general rule that courts will rule in a manner that favors the prosecution to the detriment of the defendant. In other words, it is the defense attorney who must (1) recognize that the prosecutor’s opening is deficient; (2) bring this deficiency to the court’s attention; and (3) tell the court (and therefore the prosecutor) why the opening was deficient. Then, after the prosecutor has been taught by the defense attorney how to properly give an opening, the prosecutor gets a “do over” – he gets to present another opening this time making the necessary adjustments all thanks to the defense attorney.

ONLY THE PROSECUTOR CAN PLEA BARGAIN TRAFFIC VIOLATIONS. JUDGES THAT TRY TO INFLUENCE OTHER JUDGES ON TRAFFIC TICKETS OR REDUCE TRAFFIC TICKETS WITHOUT THE CONSENT OF THE PROSECUTOR CAN BE REMOVED FROM THEIR POSITION AS A JUDGE. [Matter of Reedy, 64 N.Y

March 23, 2011 | Tilem & Associates

In New York, unless your traffic ticket is returnable to the Traffic Violations Bureau, you will most likely be offered a chance for you or your traffic court attorney to conference your ticket with the prosecutor. At this conference the prosecutor usually offers to reduce the charge to something with less points in return for you agreeing to waive your right to trial. Most times the prosecutor on a traffic ticket is the officer who issued the ticket or another officer from the same police agency. However, the New York State Police have an internal policy forbidding state troopers from plea bargaining tickets they issue. Therefore, many towns, villages and cities have hired “special” prosecutors to prosecute tickets issued by state troopers. These “special” prosecutors are not bound by the New York State Police “no plea” policy.

One individual who is absolutely not allowed to unilaterally reduce a traffic infraction or enter into plea negotiations with the defendant is the judge. A judge is not allowed to plea bargain even if you are charged with a criminal offense. In Matter of Reedy, the son of Justice James H. Reedy received a speeding ticket returnable to J. Reedy’s court. Following correct protocol, J. Reedy recused himself from the case and asked a judge in a neighboring jurisdiction to accept the transfer of the case. At that point J. Reedy should have taken no further action. He should have taken the steps necessary to transfer his son’s speeding ticket case to a neighboring jurisdiction and let that jurisdiction proceed as they would with any other speeding ticket.

However, J. Reedy contacted the other judge, told him that his son was represented by an attorney and that an Assistant District Attorney had offered to reduce the speeding charge to VTL 1202(a)(1) which is a no point parking type violation. The other judge agreed to the plea bargain offer and indicated the fine would be $25.00.

FINGERPRINTING OF A DEFENDANT WHOSE COURT ATTENDANCE HAS BEEN SECURED BY THE ISSUANCE AND SERVICE OF A SUMMONS BASED UPON AN INFORMATION OR MISDEMEANOR COMPLAINT FILED BY A COMPLAINANT WHO IS NOT A POLICE OFFICER IS DISCRETIONARY. [CPL 130.60]

March 20, 2011 | Tilem & Associates

As explained in a prior blog, New York State law requires, with some limited exceptions, that an individual be fingerprinted when he is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction; or (4) loitering for the purpose of engaging in prostitution under Penal Law 240.37(2). [See CPL 160.10(1)].

However, upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, the court may, if it finds reasonable cause to believe the defendant committed one of the “printable” offenses listed above, order that the defendant be fingerprinted. [CPL 130.60(2)].

Therefore, where a defendant appears in court pursuant to a properly served summons and that summons is based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, defense counsel should object to the printing of the defendant absent a finding by the court of reasonable cause to believe the defendant committed one of the printable offenses listed above. Furthermore, defense counsel should further object to defendant’s printing arguing to the court that, under the statute [CPL 130.60(2)], even if the court finds reasonable cause, it “may” but need not order that the defendant be printed. The clear wording of the statute makes the fingerprinting of the defendant discretionary even where the court finds reasonable cause to believe the defendant committed a printable offense.

TILEM & CAMPBELL PARTNER QUOTED IN TODAY’S NEW YORK TIMES

March 16, 2011 | Tilem & Associates

Tilem & Campbell senior partner Peter H. Tilem was quoted in today’s New York Times in the article about the Federal Investigation into the tragic bus crash that killed 15 people over the weekend. There has been much speculation about whether or not the driver will be charged with a crime in connection to the deadly accident and the Times sought advice from two former prosecutors who have been involved in these types of cases.

The issue will boil down to whether the bus driver’s conduct leading up to the fatal crash rose to the level of criminal negligence or recklessness according to Mr. Tilem who reportedly told the Times that just falling asleep at the wheel without more usually wouldn’t rise to the level of either criminal negligence or recklessness. Mr. Tilem also told the times that it is usually a combination of factors such as weaving, speeding and driving after a long period without rest that could combine to make it possible for prosecutors to charge the driver.

To rise to the level of Recklessness, a person must be aware of and consciously disregard an unjustifiable and substantial risk. To rise to the level of Criminal Negligence a person must fail to perceive an unjustifiable and substantial risk. In both cases the risk must be so grave that the failure to perceive it or the conscious disregard of the risk constitutes a gross deviation from the standard of care that a reasonably prudent person would observe in a given circumstance.

FEDERAL JUDGE FINDS NASSAU COUNTY VIOLATED DUE PROCESS RIGHT WHEN SEIZING MAN’S RIFLES AND SHOTGUNS

March 13, 2011 | Jasmine Hernandez

A federal judge ruled that Nassau County violated a gun owners due process rights when the Nassau county police seized his handgun, rifles and shotguns after a complaint from Congresswoman Carolyn Maloney’s office that the man had harassed them. The next day police showed up at his home and seized 15 registered handguns and nine “long-guns” even though he was never charged with any offense. Nassau County does not require a license for rifles and shotguns and therefore was entitled to a hearing after the seizure. This marks the second recent victory for Nassau County gun owners as reported in a previous blog.

Judge Spatt, a federal judge in the Eastern District of New York pointed out the absurdity of the seizure when he indicated that since no license was required, the gun owner could purchase replacement guns without a license. The judge gave an important right to New York citizens by requiring a prompt post-deprivation hearing upon the seizure of rifles and shotguns.

Additionally, since the Nassau County Police apparently failed to obtain a search warrant before seizing the guns, Judge Spratt gave the gun owner leave to amend his complaint against Nassau County to include violations of his fourth amendment rights. The 4th amendment to the constitution guarantees the right to be free from unreasonable searches and seizure.

NEW TRIAL ORDERED IN MURDER/RAPE FROM 1994

March 9, 2011 | Jasmine Hernandez

The New York State Appellate Court sitting in Brooklyn ordered a new trial for Anthony DiPippo who was convicted of rape and murder back in 1997. It was since discovered that Mr. DiPippo’s attorney in 1997 had a conflict of interest which denied Mr. DiPippo effective assistance of counsel. Attorneys for Mr. DiPippo brought a motion to vacate his conviction before County Court Judge Robert Neary who denied the motion but the Appellate Division, Second Department overturned Judge Neary’s decision after learning about the conflict. This marks the second time Judge Neary has been reversed by the Appellate Division in decisions published in the New York Law Journal in the last six months. Please see our previous blog for details on the prior reversal.

Mr. DiPippo was represented at trial by an attorney named Robert Leader who had previously represented Howard Gombert in an unrelated rape. During Mr. DePippo’s trial it became clear that Mr. Gombert was also a suspect in this murder and rape but Mr. Leader failed to disclose his obvious conflict of interest. Despite his assertions that he attempted to introduce photographs of Mr. Gombert’s car at the trial of Mr. DiPippo, the Appellate Division noted that the trial transcript didn’t contain any reference to the admission of the photos.

The right to counsel, that is the right to an attorney which guaranteed in the Sixth Amendment to the United States Constitution not only requires that a defendant in a criminal trial have an attorney but it further requires that the defendant has an EFFECTIVE attorney. If you or a loved one believes that you have been denied effective legal representation, please contact our office.

TILEM & CAMPBELL PARTNER Peter Tilem WINS ANOTHER DWI TRIAL

March 6, 2011 | Jasmine Hernandez

Westchester, New York law firm Tilem & Campbell won another DWI trial last week for a man accused of drunk driving back in January 2007. The not guilty verdict came following a two day trial in which police testified that the driver was found asleep in his vehicle, with the engine running while intoxicated. Tilem & Campbell managing partner Peter Tilem tried the case and focused the defense on the failure to prove operation of the vehicle which is a requirement of any conviction for DWI under VTL 1192 (2) or 1192 (3).

The victory marks Mr. Campbell’s seventh not-guilty verdict in a DWI case against just one loss in the last eighteen months. Mr. Campbell has trained extensively in field sobriety testing and DUI detection and has used his training and experience to win DWI cases.

The trial was conducted in the Justice Court of Greenburgh in Greenburgh, New York. The defendant in the case had been facing serious consequences if convicted including revocation of his driving privileges, up to a year in jail, surcharges, fines and insurance consequences, as well as the expensive, New York Driver Responsibility Assessment.

PETER TILEM NAMED ON THE LIST OF TOP TEN CRIMINAL LAWYERS IN NEW YORK

March 1, 2011 | Tilem & Associates

Peter H. Tilem, senior partner in the law firm of Tilem & Campbell was named on the list of top ten criminal attorneys in a magazine article that circulated earlier this morning. The list, which was published in arrive magazine and was compiled by the lawyer rating website AVVO.COM listed the top 10 New York lawyers in five different categories, Mr. Tilem was listed in the Criminal Defense category. A short biography follows the list.

Mr. Tilem, who was a prosecutor in the Manhattan District attorney’s Office has won great notoriety for his success in getting the best possible outcomes for his client. Both as a prosecutor and as a criminal defense lawyer Mr. Tilem has a reputation for integrity, knowledge and tenacity in fighting cases whether it be a white collar crime, homicide, gun case or speeding ticket.

For more information you can contact Tilem & Campbell.

IN A STUNNING ASSAULT ON FIRST AMENDMENT RIGHTS – JURY NULLIFICATION PROPONENT WAS INDICTED IN NEW YORK

February 27, 2011 | Jasmine Hernandez

In what appears to be a stunning assault on first amendment rights, a proponent of a concept called “jury nullification” has been indicted in New York for charges relating to jury tampering. Jury nullification, a term familiar to most experienced criminal lawyers refers to a controversial legal principle in which juries acquit defendants, accused of crimes based upon their own conscience and without regard to the judge’s explanation of the law. Since an acquittal by a jury is final and not subject to appeal, courts may not examine the reason for an acquittal. Therefore, all juries have an inherent right to nullify a charge. The controversy surrounds telling juries about this right.

Courts and prosecutors are inherently antagonistic to jury nullification so jurors are generally never told that they have the right to nullification and in fact are generally told that they must follow the law as instructed by the judge and must convict the defendant if the evidence establishes guilt beyond a reasonable doubt.

Julian P. Heicklen, a retired Penn State University professor apparently raised the ire of prosecutors in the United States Attorney’s Office for the Southern District of New York because he handed out fliers to potential jurors outside the Pearl Street, Federal Courthouse and other area courthouses notifying jurors of their inherent right to nullify verdicts. Although he handed out fliers to jurors, he never targeted any specific jury or attempted to influence the outcome of any specific case. In fact, according to a New York Times article Mr. Heicklen identifies himself as a law an order man.

A RECENT COURT DECISION COULD HAVE A MAJOR IMPACT ON GUN AND WEAPON CHARGES IN NEW YORK CITY

February 23, 2011 | Jasmine Hernandez

A recent Appellate Court decision overturning a Nassau County gun law could have far reaching implications for New York City gun charges and New York City weapons offenses. As previously discussed in a prior blog, New York City bans many items which are legal in other parts of New York state. In Chwick v. Mulvey, gun owners successfully challenged a Nassau County local law that prohibited possession of firearms that were “deceptively” colored such as pink, gold or brown.

In finding that the Nassau County Law was preempted by New York State law which already has a comprehensive statutory and licensing scheme, the Appellate Division of the Supreme Court, Second Department ruled that Nassau County could not regulate in this area in direct contradiction to new York State law which says that licenses for firearms shall be valid throughout the State (except New York City). The ruling of this Court has binding in effect in the New York City Counties of Kings and Queens.

What is left unanswered by the Court is whether New York City has the right to ban “weapons” such as handcuffs, imitation pistols, and rifles and shotguns (for which New York City has its own licensing scheme) in the face of comprehensive state legislation that for example lists all of the illegal weapons in New York State. Penal Law sec. 265.01 (1) lists more than fifteen specific weapons such as gravity knives, kung fu stars and switchblades and then in subsection 2 lists additional weapons which are illegal if one has intent to use them unlawfully against another.