New York Criminal Attorney Blog

Tilem & Campbell Cited in the New York Law Journal Regarding Change to New York Court Rules

January 22, 2010 | Tilem & Associates

Back in August 19, 2009, New York law firm Tilem & Campbell, PC filed a lawsuit against two Bronx Supreme Court Clerks who routinely violated the law by rejecting papers that were submitted for filing without legal reason. As reported in the today’s New York Law Journal, the case was settled earlier this week after New York’s Chief Administrative Judge, the Honorable Ann T. Pfau, promulgated a new Court rule which set forth only four circumstances in which clerks may reject papers for filing. The new rule and the settlement were laid out in a blog on this site earlier this week.

Law partners Peter Tilem and Peter Tilem were both quoted in today’s New York Law Journal article. The law suit was previously reported in the Law Journal when it was originally filed. The first article appeared in the August 25, 2009 edition of the Journal.

For more information about the case or the new rule contact Tilem & Campbell.

New York Law Firm Settles Case Against Bronx Court Clerks

January 19, 2010 | Jasmine Hernandez

New York Law firm Tilem & Campbell settled its lawsuit against the Bronx Civil clerks office, today, after New York’s Chief Administrative Judge amended the Court rules to comply with CPLR 2102(c). Civil Practice Law and Rules sect 2102(c) requires Court Clerks to accept legal papers submitted for filing unless a statute specifically prohibits the clerks from accepting the papers. The law became effective January 1, 2008 in response to the epidemic of Court Clerks rejecting papers for filing for the most mindless reasons. The practice was so widespread that Court Clerks prepared check-the-box forms to explain why your papers were rejected.

In response to the lawsuit brought under Article 78 of the CPLR entitled Tilem & Campbell, PC v. Tracy Pardo, Chief Clerk, Civil Division, et al. The Court rules, were amended to add Sect 202.5 (d)(1). Sect 202.5 (d) (1) now spells out only four circumstances in which clerks may reject papers submitted for filing. The four permissible reasons are:

i. The paper does not have an index number;

IGNITION INTERLOCK BECOMES MANDATORY UPON CONVICTION FOR DWI IN NEW YORK

January 18, 2010 | Jasmine Hernandez

Effective Dec 18, 2009, New York became the latest state to require the installation of an ignition interlock device for anyone convicted of a misdemeanor DWI in New York. The requirement applies to convictions in New York for Driving While Intoxicated or Driving While Impaired by Drugs and Alcohol. The legislation was first reported https://www.newyorkcriminalattorneyblog.com/2009/05/new_york_may_soon_require_igni_1.html last May and is now effective.

The motorist will bear the cost of the installation and rental of the interlock device. Rental can cost about $50per month. Installation can run up to $200 or more depending on the model of the interlock unit and the type or car you drive. Besides the cost, motorists must keep in mind the embarrassment factor. The motorist will not only be required to blow into the device to start the car but also at random times while driving. The unit will be obvious to anyone in the car.

Anyone charged with a DWI or a related offense in New York should speak to an experienced criminal lawyer who specifically handles Driving While Intoxicated cases. The consequences of a DWI conviction in New York have become increasingly harsh with the possibility of jail, huge fines and surcharges, insurance consequences, the possibility of probation, loss of driving privileges and now the requirement of the ignition interlock system.

RAMAPO TOWN COURT IN THE SPOTLIGHT

January 16, 2010 | Jasmine Hernandez

The Town of Ramapo located in Rockland County New York is Rockland County’s largest geographically and most populous town. The Town covers more than 61 square miles and contains 12 villages most with Village Courts of their own. With a very diverse population, the Town Court in Ramapo is both busy and efficient. With major roads traversing through the town and low density of serious crimes, it would be fair to say that speeding violations are the bread and butter of the Ramapo Court, followed by other traffic violations such as tailgating, turn signal violations and stop signs.

Traffic misdemeanors (and felonies) such as DWI and Aggravated Unlicensed Operation (AUO) top the criminal calendar. Many of the traffic violations and traffic misdemeanors take place along such major roads as I-287, I-87, Rt 59 and the Palisades Parkway.

The Town had three Justices. Judges Arnold Etelson, Rhoda Schoenberger and Samuel Coleman. Judge Coleman recently retired, leaving the Town one judge short and the Court extremely busy. Expect crowded calendars and long lines on Court days. Experienced attorneys can often get you out quickly but without an attorney, expect to wait.

TILEM & CAMPBELL WINS ANOTHER DWI TRIAL

January 12, 2010 | Jasmine Hernandez

Westchester DWI defense firm, Tilem & Campbell won another DWI trial last week when Mount Pleasant Judge Nicholas Masselli issued a decision finding that the client who was pulled over on the side of the highway was not “operating” the vehicle and therefore could not be convicted of Driving While Intoxicated. Judge Masselli also dismissed another charge of Parking on the Pavement and issued an order sealing the record.

The case arose after the client was found sleeping behind the wheel of a running vehicle that was sitting on the side of the road by a New York State Trooper. The Trooper testified that he smelled the strong odor of an alcoholic beverage on the driver’s breath and that the driver failed a horizontal gaze nystagmus test that was performed on the side of the road. The Trooper testified that the driver failed other field sobriety tests and refused a breath test that he was offered at the police station.

Managing partner Peter Tilem tried the case on behalf of the firm and this victory makes three DWI wins in a row for Mr. Campbell. The defense focused on the troopers errors in administering and scoring the field sobriety tests and the lack of the intent to operate the vehicle.

NEW YORK SEARCH AND SEIZURE LAW – STREET ENCOUNTERS WITH THE POLICE IN NEW YORK – The Four Levels of Intrusion

January 10, 2010 | Tilem & Associates

As discussed in the previous blog New York police are limited in the way they interact with civilians that they encounter on the street. If the police overstep their authority an experienced criminal defense attorney can use the police conduct to get evidence in a case suppressed.

Below are the four levels of intrusion as set forth by the New York Court of Appeals in Debour. Keep in mind that each case is an individual and may be affected by the minute details of the case.

Level 1 “Request for Information”: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not necessarily indicative of criminality. This is not equivalent to a stop. These encounters should be brief and not be harassing or intimidating. For example, approaching possible witnesses to a crime and checking to see if everyone involved in an accident is alright.

NEW YORK SEARCH AND SEIZURE LAW – STREET ENCOUNTERS WITH THE POLICE IN NEW YORK

January 7, 2010 | Tilem & Associates

In New York, a large body of law has developed around police interaction with civilians that they encounter on the street. When may a police officer approach you for information, question you about criminal activity, detain you and finally, arrest you? Experienced New York criminal defense lawyers must be well versed in this area of law. If the police overstep their authority and thereby obtain evidence, skilled criminal attorneys can challenge that evidence in Court at a suppression hearing and have the evidence suppressed. Suppression of evidence can lead to the dismissal or reduction of charges, favorable jury verdicts and favorable plea bargains. Here at Tilem & Campbell, we have used suppression to obtain dismissals of some tough cases.

Suppression, can be especially valuable in fighting drug cases or gun cases since without the contraband as evidence, the case is almost always dismissed. But suppression can also be useful to prevent the admission at trial of statements, identifications, physical evidence of criminal activity or electronic surveillance.

No two cases are alike and each case and each set of facts must be analyzed by analogizing from previously decided cases with similar facts. In a well written and thorough decision, the New York Court of Appeals developed four “Levels” of police intrusions with each Level being based upon the intensity of the intrusion upon the civilian’s life. See People v. De Bour, 40 N.Y.2d 210 (1976). These four level have become the guiding principle for police encounters with civilians on the streets of New York. So much so that New York Courts have cited to Debour well over 1600 times in judicial opinions that have been published in New York. That means that in the more than 33years since Debour was decided, New York Courts cited to it on average about 50 times per year in published opinions.

NEW YORK TRAFFIC VIOLATIONS: CAN AN OFFICER ISSUE A TICKET FOR A TRAFFIC VIOLATION HE OF SHE DID NOT WITNESS? – PART 2

January 5, 2010 | Tilem & Associates

I previously discussed the New York Court of Appeals decision in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968) which held that an officer can issue a traffic ticket for a non criminal offense he or she did not witness. But the discussion does not end there. Unfortunately, many police officers, prosecutors and judges believe that Boback allows officers to issue tickets for non-criminal traffic offenses the officer did not personally witness that are as jurisdictionally sound as a ticket issued by an officer who actually witnessed the offense. This is simply not the holding of Boback.

The Boback decision noted that where an officer issues a ticket for a non-criminal traffic infraction that the officer did not witness, the ticket itself is insufficient to procure the defendant’s appearance before the court. The Boback decision noted that should the defendant/motorist choose to ignore the summons and not appear on the return date of the summons, the court must take testimony or have before it affidavits which would establish probable cause before issuing an arrest warrant. One could argue therefore, that if they were issued a ticket for a traffic infraction not witnessed by the officer, they need not appear in court and that court may not suspend their license or take any other action against them until that court is presented with testimony or affidavits establishing probable cause.

For example, in People v. Genovese, 156 Misc.2d 569, 593 N.Y.S.2d 925 (Jus. Ct. Town of Mendon 1992), the Court held that it was improper for an officer to arrive at the scene of an accident he or she did not witness, decide who was at fault and issue a summons charging a non-criminal traffic violation. The Court held that an action charging a non-criminal traffic infraction could not be commenced by the filing of a simplified traffic information where the officer did not witness the offense.

NEW YORK TRAFFIC VIOLATIONS: CAN AN OFFICER ISSUE A TICKET FOR A TRAFFIC VIOLATION HE OF SHE DID NOT WITNESS?

January 2, 2010 | Tilem & Associates

Generally, an officer may arrest a person when that officer has reasonable cause to believe that person committed a crime, whether in the officer’s presence or not. However, for an officer to arrest a person for a non-criminal offense, the offense must be committed in the officer’s presence. There are a limited number of exceptions to this law. (See CPL § 140.10).

This issue frequently arises when an officer arrives on the scene of an accident; interviews witnesses and determines that, for example, a motorist was speeding, traveling to closely, or changed lanes unsafely and issues a ticket accordingly. However, since speeding, traveling to closely or changing lanes unsafely are all non-criminal offenses (they are traffic infractions), can the officer issue a ticket even though the offenses were not committed in his presence?

I must say, I was surprised to learn that the answer is yes. First, the law says that an officer may not arrest for a non-criminal offense not committed in his presence. It says nothing about the issuance of a ticket. (See CPL § 140.10). Second, in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968), the Court of Appeals held that a traffic ticket may be based upon “information and belief”. That means that an officer need not have personal knowledge of the traffic infraction – he or she need not actually witness the traffic infraction.

NEW YORK DRIVING WHILE INTOXICATED: OFFICER DOES NOT HAVE TO READ MOTORIST MIRANDA WARNINGS PRIOR TO THE ADMINISTRATION OF ALPHABET RECITATION TEST OR THE FINGER COUNTING TEST

December 29, 2009 | Tilem & Associates

Previously I discussed New York Court of Appeal’s cases which held that the police do not have to read a DWI suspect his or her rights before requesting that they perform Field Sobriety Tests because such tests are not testimonial or communicative. People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987); People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
But where the officer requests the suspect to recite the alphabet or perform a finger count test, those responses are verbal and therefore, at the very least communicative. However, the Third Department has held that an officer need not read a suspect his or her Miranda Warnings prior to requesting that the suspect recite the alphabet or perform the finger count test because such tests are not communicative or testimonial in that they don’t reveal the person’s subjective knowledge or thought processes. People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 (3rd Dept. 1998). The Court of Appeals has reached the same conclusion regarding the alphabet and finger count tests. People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999)(these tests are not testimonial or communicative in that they do not require a person to reveal knowledge of facts relating to the offense).
For information regarding Driving While Intoxicated in New York or to schedule a free consultation, please call Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.COM.