New York Criminal Attorney Blog

NEW YORK SENATE GOVERNOR AND ASSEMBLY REACH DEAL ON REPEALING ROCKEFELLER DRUG LAWS

March 28, 2009 | Jasmine Hernandez

New York criminal defense lawyers, especially those that handle New York State drug cases, are monitoring an agreement just announced between the New York Senate, Assembly and Governor to repeal the Rockefeller Drug Laws. Details are not fully available but the legislation is expected to substantially reduce and in some cases eliminate mandatory minimums for New York Drug cases, give judges options of treatment instead of sentences of incarceration and give judges the ability to dismiss all charges and seal the arrest records of offenders who complete drug treatment.

While the bill, once passed is likely to have far reaching effects on New York drug cases, the legislation will not have any effect on the draconian, federal mandatory minimums that Tilem & Campbell is currently challenging in Federal Court. The bill will likely provide some relief to the many people serving lengthy state sentences under the old law.

The laws have not been passed yet but with agreement by all the major players, the bills should be passed quickly and will likely take effect soon. Tilem & Campbell will continue to monitor this important legislation and pass on updates as the become available. If you have any questions contact us at 888-ANY-CRIME or visit us on the web at 888anycrime.com

New York Prostitution Enforcement Down

March 27, 2009 | Jasmine Hernandez

New York Prostitution lawyers are watching a development reported in today’s New York Post which reflects a steep decrease in enforcement of prostitution and other vice offenses by the NYPD. The Post is reporting that the NYPD shut down its enforcement of Prostitution on craigslist as long as 3 years ago. The Post is also reporting that other vice operations have been shut down or slowed down because of increased oversight.

Craigslist has a large number of ads catering to adult entertainment. Many of the craigslist ads are for escorts. Escorts are women (or men) who agree to spend time with a person for a fee. While this practice is legal if sex is exchanged it can violate state or federal prostitution laws.

Criminal lawyers Peter Tilem and Peter Tilem operate a website escortattorney.com which caters to the escort industry and represents, customers, escorts and escort agencies. Tilem & Campbell will continue to monitor these developments as they have a substantial impact on many Tilem & Campbell client’s

NEW YORK GUN LAWS – WHEN YOUR UNLOADED GUN IS REALLY LOADED

March 23, 2009 | Tilem & Associates

Tilem & Campbell is fortunate to have former Firearms Trafficking prosecutor Peter H. Tilem as its Senior Partner able to advise clients on all aspects of New York gun possession. Under New York law, the severity of a Criminal Possession of a Weapon charge dealing with a firearm can hinge on whether the firearm was loaded or not. For example, one may be charged with Criminal Possession of a Weapon (CPW) in the Fourth Degree for simply possessing a firearm [See PL 265.01(1)]. Criminal Possession of a Weapon in the Fourth Degree does not require that the firearm be loaded. Therefore, one is guilty of CPW 4th if they simply possess an unloaded firearm without proper licensing. Criminal Possession of a Weapon in the 4th degree is an “A” misdemeanor that carries up to one year in jail.

However, if one possess a loaded firearm outside their home or business, the charge is CPW 2nd, a “C” felony which carries a mandatory minimum 3 ½ year to a maximum 15 years in state prison. [See PL 265.03(3); PL 70.02(3)(b)]. Therefore, if you possess an operable firearm outside your home or place of business, the difference between facing an “A” misdemeanor (CPW 4th) which carries up to one year in jail with no mandatory minimum (which means probation is possible) and the “C” felony (CPW 2nd) which carries a mandatory minimum of 3 ½ years in state prison has everything to do with whether the firearm was loaded.

Here’s the problem. Your unloaded gun might be considered loaded under New York law. Under the Penal Law, a “Loaded firearm” is defined as any firearm actually loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses ammunition for that firearm. [See PL 265.00(15) for the exact definition of “loaded firearm”]. Therefore, the term loaded firearm means not only a truly loaded firearm but also the contemporaneous possession of an unloaded firearm and ammunition for that firearm. Accordingly, under the law of New York State, an unloaded firearm may actually be considered a loaded firearm.

While New York Drug Laws and Many Other State’s Laws Consider Crack Cocaine and Powder Cocaine the Same Drug, Federal Drug Laws Do Not.

March 15, 2009 | Jasmine Hernandez

Currently, Tilem & Campbell has one appeal pending before the United States Court of Appeals for the Second Circuit challenging the constitutionality of the previously discussed 100:1 powder cocaine v. crack cocaine sentencing discrepancy. Tilem & Campbell has another Federal Narcotics case for which it is preparing the appeal now. Among other arguments, we have presented an Equal Protection argument centered on the unequal sentences imposed on crack offenders as compared to powder cocaine offenders.

Every day that a crack offender spends in prison beyond that which a powder cocaine offender would spend for the same quantity of drug is an unconstitutional deprivation of liberty; a fundamental right. Such sentencing discrepancies cannot survive a rational basis analysis let alone a strict scrutiny analysis.

The above-discussed “100-to-1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs.” Kimbrough v. U.S. 128 S.Ct. 558 (2007). As a result of this disparity, “a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.” Id.

NEW YORK’S ROCKEFELLER DRUG LAWS MAY SOON END

March 9, 2009 | Jasmine Hernandez

New York criminal defense firm Tilem & Campbell is pleased to report that after years of fierce opposition to New York’s draconian “Rockefeller” drug laws, and after some amendments, passed in 2004, did away with some of the harshest sentences, it now appears that much of the remnants of the Rockefeller Drug laws are going to be repealed. Last week by a more that 2-1 margin, the New York State Assembly passed a bill which would repeal additional provisions of the Rockefeller Drug Laws and which would give Judge’s greater discretion in sentencing drug-offenders to non-jail, treatment programs. These provisions can have a substantial effect on New York Drug cases.

Governor Patterson has already signaled his approval of amending the Rockefeller Drug Laws and with democrats in control of the New York State Senate, it seems that some significant change in New York State Drug laws is all but certain.

As an experienced criminal defense lawyer I have handled numerous drug cases. In addition, as a former prosecutor I have handled hundreds if not thousands of drug cases. In my vast experience, rarely do I see major traffickers getting arrested and often see low level dealers or users get sentenced to many years in prison. What I find surprising is that often then prosecutor, and judge agree that the sentence is to severe but under the law, often the judges and prosecutors are powerless to reduce the sentence.

Crack Cocaine Mandatory Minimums: Congress, President Elect Obama, Vice President Elect Biden, Incoming Secretary of State Clinton, the Chairman of the House Judiciary Committee Rep. John Conyers, Jr Have Either Sponsored or Cosponsored Bills Abolishing

March 4, 2009 | Tilem & Associates

As experienced New York and Federal criminal defense lawyers, we keep track of changes and proposed changes in the law that may effect our clients. When appropriate, and as part of the effort of our effort, though this blog to educate the public, our clients and our friends, we post proposed changes in the law here, in our blog.

Congress is taking notice to the injustice associated with the previously discussed 100:1 ratio crack cocaine vs powder cocaine sentencing disparity. At least 6 Bills in 2007 and 1 in 2008 were proposed by both Democrats and Republicans that would in some way reduce or eliminate the 100:1 cocaine/cocaine base ratio. These proposed Bills include:

H.R. 5035, the Fairness in Cocaine Sentencing Act of 2008: Eliminates mandatory minimums for cocaine offenses. On January 17, Rep. Robert “Bobby” C. Scott (D-Va.), who is Chairman of the House Committed on the Judiciary Subcommittee on Crime, Terrorism and Homeland Security and also serves on the House Subcommittee on the Constitution, Civil Rights and Civil Liberties, introduced H.R. 5035, The Fairness in Cocaine Sentencing Act of 2008. The bill would, among other things, eliminate the distinction between powder cocaine and cocaine base (crack) and eliminate all mandatory cocaine sentences. This bill is the first bill introduced in the House in the 110th Congress that would eliminate mandatory minimums for crack and powder cocaine sentences.

SENTENCING: A JUDGE MAY NOT ENHANCE A SENTENCE BASED UPON FACTS NOT ADMITTED BY THE DEFENDANT NOR FOUND BY A JURY BEYOND A REASONABLE DOUBT.

March 1, 2009 | Tilem & Associates

The case of Blakely v. Washington decided in 2004, significantly changed New York and Federal sentencing and substantially altered the way experienced criminal defense lawyers handled their most serious cases. It also led to the change in the once mandatory federal sentencing guidelines to a system that is now now merely advisory.

In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, Ralph Blakely pleaded guilty in a Washington State Superior Court to kidnapping his estranged wife. The statutory maximum for the offense Blakely pleaded guilty to was 53 months. The sentencing judge, however, sentenced Blakely to 90 months – more than three years above the 53 month maximum – finding that Blakely acted with deliberate cruelty. Note, Blakely never admitted to acting with deliberate cruelty nor did a jury find that he did so beyond a reasonable doubt.

Blakely appealed to the Washington Court of Appeals which rejected his argument that Washington’s sentencing procedure which allowed sentence enhancements above the statutory maximum based upon judicial determinations deprived him of his federal constitutional right to have all facts legally essential to his sentence determined by a jury beyond a reasonable doubt. The Washington Supreme Court denied discretionary review. The United Supreme Court granted certiorari (agreed to hear the case) and ultimately found the Washington State sentencing procedure unconstitutional.

New York Criminal Defense Law Firm Tilem & Campbell Announces the Launch of a New Media Page

February 26, 2009 | Tilem & Associates

In our continuing effort to educate the public about important criminal issues and to keep our clients, friends and the public better informed about the cases Tilem & Campbell is involved with, we are pleased to announce the launch of our new “Media Page“. The page can be accessed by either one of two methods from our Home Page; either by clicking on any of the video icons along the left hand side of the home page or by pulling down the the “About Us” drop down menu along the top of the Home Page and clicking “Media”.

This page will be updated frequently and will contain all television appearances by any of the lawyers at Tilem & Campbell and perhaps in the future print media as well.

If you have any questions or comments, or would like to schedule a free consultation on any criminal law issue, please contact us by E-Mail or telephone at 877-377-8666.

NEW YORK SPEEDING TICKET – CAN ONE EXCEED THE SPEED LIMIT TO AVOID A COLLISION?

February 23, 2009 | Tilem & Associates

Experienced New York traffic ticket lawyers know that generally, there are two possible defenses when one is charged with speeding in New York: (1) “I wasn’t speeding”; or (2) “I was speeding but I have an excuse”. (Keep in mind however, there is a third strategy which is not a defense and that is, “I was speeding but the officer can’t prove it”. The “they can’t prove it” strategy will be the subject of future blogs).

With regard to excuses, motorists issued speeding tickets come up with any number of excuses to justify why they were exceeding the speed limit. Generally, unless you have a verifiable pregnant woman in the car or an assailant with a gun to your head, you have no legal excuse. However, at least one court has held that exceeding the speed limit to avoid a suddenly slowing vehicle constitutes a sufficient “emergency” to absolve the motorist of a speeding charge.

In People v. Cataldo, 65 Misc.2d 286, 316 N.Y.S.2d 873, a 1970 case out of the Suffolk County First District Court, J. Colaneri found a motorist not guilty of speeding where the evidence showed that the motorist accelerated to avoid a vehicle that was “rapidly slowing down”. In so ruling, J. Colaneri relied upon the “emergency” justification defense found in Penal Law sec. 35.05(2) which states, in sum and substance, that criminal conduct in not criminal when it is necessary to avoid a public or private injury which is about to occur through no fault of the actor (i.e. the defendant did not cause the emergency situation). In Cataldo, J. Coleneri found that the defendant/motorist was justified in speeding to avoid colliding with the “rapidly slowing” vehicle.

The Crack Cocaine v. Powder Cocaine Sentencing Disparity – Powder Cocaine and Cocaine Base (“Crack”) are the Same Drug

February 20, 2009 | Tilem & Associates

As I have been discussing in previous blogs, the rationale behind the 100:1 powder cocaine to crack cocaine sentencing disparity has been proven to be unfounded and false. Yet another argument the New York criminal defense firm Tilem & Campbell is raising in one of our appellate challenges to the constitutionality of the sentencing disparity between crack cocaine and powder cocaine is that crack cocaine and powder cocaine are the same drug.

As observed by the United States Supreme Court, crack and powder cocaine are two forms of the same drug and they share the same active ingredient – cocaine hydrochloride. Kimbrough v. U.S. 128 S.Ct. 558, 566 (2007). Furthermore, numerous studies have shown that the physiological and psychotropic effects of crack and powder cocaine are the same, and the drugs are now widely acknowledged as pharmacologically identical.

For example, a 1996 study published in the Journal of the American Medical Association found analogous effects on the body for both crack and powder cocaine.