New York Criminal Attorney Blog

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.

DRIVER CHARGED WITH SPEEDING IN NEW YORK CITY NOT ENTITLED TO DISCOVERY OF DOCUMENTS PERTAINING TO THE OPERATING PROCEDURES AND TESTING OF THE RADAR UNIT USED TO MEASURE DRIVER’S SPEED

February 22, 2011 | Tilem & Associates

If you are issued a speeding ticket in New York City, your case is not handled in a criminal court (as it would be if were issued a speeding ticket in Westchester County). Instead, your case will be heard by the Traffic Violations Bureau of the Department of Motor Vehicles (TVB). Cases heard by TVB are not criminal but instead are considered administrative proceedings. An experienced traffic court attorney can explain the difference between a speeding ticket issued in New York City and one issued in a city such as Yonkers or White Plains in Westchester County.

Often, people we represent who are charged with speeding in New York City ask if we can obtain information about the particular radar or laser unit the police used to measure their speed. For examples, the operating procedures and testing history.

The answer is generally no. The CPLR, including its discovery provisions, is not applicable in cases heard by the Traffic Violations Bureau. 15 NYCRR § 123.1. In Miller v. Schwartz, 72 N.Y.2d 869 (1988) the New York Court of Appeals upheld the constitutional validity of this rule and held that there is no constitutional right to discovery in administrative proceedings. (Note: The TVB is not a criminal court; it is an administrative tribunal).

NEW YORK CELL PHONE LAW JUST GOT TOUGHER

February 18, 2011 | Tilem & Associates

A new rule that went into effect this past Wednesday, elevated the penalties for Talking on a cell phone while driving VTL 1225 c(2). The new law raises the maximum fine to $150 but also imposes 2 points on a motorist’s driving record. The points can result in higher insurance premiums, financial penalties from the Department of Motor Vehicles or suspension or revocation of your driver’s license. New York traffic ticket attorneys are prepared to fight these new tickets.

New York’s ban on talking on mobile phones while driving prohibits talking on phones without an attached hands free device. New York was the first state to impose such a ban which has been controversial since studies have shown that these laws fail to reduce accidents. The law as initially enacted carried a maximum $100 fine and no points.

This new law will encourage motorists to fight New York cell phone tickets since traffic court attorneys are often able to get 2 point violations reduced to no points or get them dismissed altogether. Under the old law, it rarely paid to fight a cell phone ticket.

NEW YORK STATE OFFICE OF CHILDREN AND FAMILIES SETTLES FEDERAL LAWSUIT AFTER SIX YEARS

February 16, 2011 | Jasmine Hernandez

At Tilem & Campbell, our lawyers are used to taking on Child Protective Services and the maddening delays and confusion associated with the State Child Abuse Registry. A federal lawsuit filed in 2004 and just settled, challenged the Office of Children and Families for delaying fair hearings usually over a year while people on the registry either lost or could not get jobs. Others were simply denied hearings altogether because New York State arbitrarily decided that the people who requested the hearings sometimes waived them. In a settlement approved by Federal District Judge Shira A. Sheindlin last week, The New York State Office of Children and Families has agreed to complete hearings within 4 months for everyone whose job is affected by the finding and 8 moths for everyone else.

In a sign that the Office of Children and Families is attempting to reduce some of the backlog, this firm has already received at least one call from the State indicating that they will not be going forward on a hearing against one our clients and therefore agreed to an amendment of the finding of Inadequate Guardianship.

In our experience, the State rarely wins these hearings if they are challenged and the tactics of delay and confusion are nothing more than an attempt to deny people their right to a hearing. This settlement should be welcome news for anyone who finds themselves entangled in the Child Abuse system in New York.

Tilem & Campbell Scores Huge Win In Queens Supreme Court, Acquittal on All Charges in Attempted Rape Case

February 14, 2011 | Tilem & Associates

Tilem & Campbell senior partner, Peter H. Tilem won a huge Court victory after his client was found not-guilty of all charges in connection with an Attempted Rape in the First Degree case stemming from a 2008 incident in Queens. The client had been facing up to 15 years in prison if convicted of Attempted Rape and up to one year in jail if convicted of Endangering the Welfare of a Child. The victim was less than 10 years old at the time of the alleged incident. The incident was not reported to the police until January of 2009.

An investigation by Tilem & Campbell during the pendency of the case revealed numerous inconsistencies in the statements made by the alleged victim to police officers, prosecutors and doctors. A Queens County Assistant District Attorney became an important defense witness in the case.

Mr. Tilem represented the client at trial, but Managing Partner Peter Tilem handled all pre-trial litigation, and Associate Jean Melino successfully handled motion practice which directly resulted in the preclusion of key prosecution evidence.

A DEFENDANT NEED NOT WAIT TO BE ARRAIGNED ON A TRAFFIC TICKET BEFORE HE CAN RIGHTFULLY REQUEST A SUPPORTING DEPOSITION. HE MAY REQUEST A SUPPORTING DEPOSITION WHEN “CHARGED.” [People v. Tyler, 1 NY3d 493]

February 1, 2011 | Tilem & Associates

At Tilem & Campbell we handle traffic tickets throughout New York State. Knowing the rules helps us obtain the best results for our clients. In New York, when a defendant is charged in a criminal court with a traffic infraction such as speeding, he is entitled to a supporting deposition upon a timely demand. CPL 100.25(2). (Of course these rules do not apply to New York City Traffic Tickets which are not handled in a “criminal court”.) However, when can a defendant request a supporting deposition? Can the defendant request the supporting deposition prior to the return date on the ticket? Can the defendant request the supporting deposition prior to actually being arraigned on the traffic ticket? In other words, can the defendant request the supporting deposition before he even enters his not guilty plea? As explained below, the answer is yes; a defendant may request the supporting deposition prior to the return date on his ticket and prior to his arraignment on the ticket.

Criminal Procedure Law sec. 100.25(2) formerly “expressly provided that a defendant is only entitled to a supporting deposition after he has been arraigned upon a simplified information (a traffic ticket). see People v Perry, 87 N.Y.2d 353, 355 (1996)

In Perry, the defendant was charged Failing to Yield The Right of Way to an Emergency Vehicle in violation of VTL 1144 – a traffic infraction. Thereafter, defendant’s attorney sent an “appearance letter” to the local court indicating that defendant was pleading not guilty and requesting a supporting deposition. The supporting was not served on defendant and his subsequent motion to dismiss was granted.

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]

January 16, 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.

WILL THE POLICE TAKE YOUR FINGERPRINTS IF YOU ARE ARRESTED?

January 11, 2011 | Tilem & Associates

New York State law requires, with some limited exceptions, that the police take one’s fingerprints when one 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 (For example, a first time DWI is a misdemeanor found in the Vehicle and Traffic Law – not the Penal Law – and therefore one arrested for a DWI is not subject to mandatory fingerprinting.

However, a DWI can be charged as a felony if the individual has a prior DWI conviction within the previous ten years. In such a situation, the individual would be subject to mandatory fingerprinting); or (4) Loitering for the purpose of engaging in prostitution under Penal Law 240.37(2)(which is a violation unless the individual has a prior conviction for violating Penal Law 240.37(2), Penal Law 230.00 (Prostitution) or Penal Law 230.05 (Patronizing a Prostitute in the Second Degree) in which case a violation of Penal Law 240.37(2) is a B misdemeanor.) [See CPL 160.10(1)].

Furthermore, the police may fingerprint an individual they arrest for any offense if the police (1) are unable to ascertain the individual’s identity; (2) reasonably suspect the identification given by the individual is not accurate; or (3) reasonably suspect that the individual is wanted by law enforcement for the commission of another offense. [See CPL 160.10(2)].