New York Criminal Attorney Blog

Sean Bell Verdict and the New York Defense of Justification – New York Criminal Attorney’s Not Surprised

April 25, 2008 | Jasmine Hernandez

The verdict in the Queens, New York shooting of Sean Bell by New York City Police leaves many questions unanswered. The verdict, however, is not surprising to experienced New York Criminal Defense Lawyers in light of New York’s defense of justification and a history of high profile cases in which the defense has been used successfully.

The defense of justification or “self defense” as it is more commonly known has played a role in the acquittals of Bernard Goetz in Manhattan, the police officers acquitted of shooting Amadou Diallou in the Bronx and the acquittal of Police Officer Frank Livoti implicated in the death of Anthony Baez. In both the Baez and Sean Bell cases it was a Judge deciding the case without a jury that acquitted the defendants in those cases. In the Goetz and Diallou trial it was a jury that acquitted the defendants.

The defense of justification or the right to self-defense is one of the oldest defenses originally recognized at common-law. It has been codified in New York Law since at least the year 1881. Today, self defense is codified in Penal Law §35.15. Under the right of a self-defense a person may use force against another person to protect himself or a third person. The force used may even rise to the level of deadly physical force under certain circumstances. All of the elements of the defense are beyond the scope of this article but force may also be used for example to prevent a crime or apprehend someone who has committed a crime.

CHANGES IN FEDERAL CRACK SENTENCING

April 20, 2008 | Jasmine Hernandez

The issue of crack cocaine sentences in federal cases is one that has bothered experienced federal criminal defense attorneys, especially in New York, for some time. Unlike the New York State Court System, where crack is treated the same as cocaine*, in the federal criminal system, individuals charged with crack face the same amount of time as a person who possesses or sells 100 times the amount of cocaine. That is to say, that the sentence for 5 grams of crack (about the amount of tow sugar cubes) and 500 grams of cocaine (half of a kilo) will be approximately the same, all other factors being equal.

This disparity has led to claims of discrimination. In 2006, 82 percent of federal defendants who were sentenced for selling crack were African-American. Even the United States Sentencing Commission seems to agree having reduced crack cases by 2 points on the federal sentencing guidelines and made the reduction retroactive.

In addition, the United States Supreme Court seems to be stepping into the mix. In Kimbrough, a case decided recently in the Supreme Court, the High Court decided that a federal judge may consider the crack-cocaine discrepancy in sentencing someone below the range set by the federal sentencing guidelines.

NEW YORK PHYSICAL INJURY – ASSAULT

April 16, 2008 | Tilem & Associates

If you are charged in New York State with any crime wherein “physical injury” is an element of the crime charged (for example, Assault in the Third Degree), you need a Criminal Defense Attorney well-versed in not only the statutory definition of “physical injury” but how the courts have interpreted the definition and applied that definition in other cases such as one of the attorneys at the Westchester Firm of Tilem & Campbell. Many times a good plea-bargain offer results from your attorney pointing out difficulties in the prosecutions case. For example, showing the prosecutor prior cases where similar allegations and injuries were found not to constitute a physical injury might result in the prosecutor offering the violation of disorderly conduct. If plea negotiations fail, an experienced criminal defense attorney usually will attack, among other things, the “physical injury” element of the crime at trial. But obviously, he or she must be well versed in the cases dealing with physical injury findings.

Physical injury: (PL § 10.00(9)). Physical Injury is defined as the impairment of one’s physical condition or substantial pain. For the exact definition, see NY Penal Law § 10.00(9). The definition of “physical injury” and whether one has in fact suffered a “physical injury” is of utmost importance where one is charged with Assault in the Third Degree (PL § 120.00); a Class “A” Misdemeanor. Virtually all Third Degree Assault charges hinge on whether the defendant intentionally, recklessly or with criminal negligence caused a physical injury. The state of mind element (intentional, recklessly or with criminal negligence) and the physical injury element are what we as defense attorneys look to attack.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another, he in fact causes a physical injury to another or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person with a deadly weapon or a dangerous instrument.

(For the exact wording of the Assault in the Third Degree Statute see PL § 120.00)

Recall, a physical injury can be established by impairment of one’s physical condition and/or by the suffering of substantial pain. However, because a serious criminal conviction can result from a physical injury, the Court of Appeals (the highest Court in New York) has been strict in requiring proof of an “objective level” of physical injury to hopefully ensure that one is not convicted of a crime where the injury was merely inconsequential. For example, in Matter of Philip A., 1980, 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980), the Court of Appeals held that two punches to the face causing red marks, crying, and an unspecified degree of pain was insufficient proof of a physical injury. Two years later, in People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982) the Court of Appeal reaffirmed the need for a true “physical injury” holding that a one centimeter cut above the victim’s lip, without more, was insufficient proof of a physical injury.

GIVE NEW YORK JUDGES A RAISE

April 13, 2008 | Tilem & Associates

New York State Chief Judge Judith Kaye filed suit against the New York Governor and Legislators seeking pay raises for New York State Judges. It is absolutely preposterous that it has come to this considering that Judges have not received any pay raise, not even to adjust for cost of living, in more than nine years. New York Judges’ salaries are ranked 49th in the Country among State Judges. In addition, the New York State Judges make about $30,000 less that Federal Judges who are also underpaid.

The potential for harm to the judiciary was noted recently by United States Supreme Court Justices Anthony Kennedy and Clarence Thomas in a hearing last month before Congress. Justice Thomas pointed out that Federal judges make about what first year associates make at the largest law firms. Judge Kay in her lawsuit points out that many professors working for the State and City system make more than a New York Supreme Court Justice as do the District Attorneys in New York City.

As a New York trial attorney I am in Court virtually every day. I see the most serious of cases being litigated before Judges throughout the area. The litigants in those cases deserve that there cases be heard by the best and the brightest judges who can give their fullest attention to each case.

NEW YORK CRIMINAL DEFENSE FIRM TILEM & CAMPBELL IN TODAY’S JOURNAL NEWS

April 11, 2008 | Tilem & Associates

Peter H. Tilem, Senior Partner at Westchester Criminal Defense Firm Tilem & Campbell is quoted briefly in today’s Journal News. Mr. Tilem was in Federal Court in White Plains, yesterday, with his client Ramon Vargas who, according to the article, entered a plea of guilty in a case involving Federal credit card fraud and forgery charges.

According to the article Mr. Vargas, who faced up to fifteen years in prison on the charge, faces less than half that time or 87 months as a maximum under the sentencing guidelines. Sentencing in the case will most likely be scheduled for July.

Peter H. Tilem, a former Manhattan Prosecutor, with his law partner Peter Tilem, maintains an active New York Criminal Defense law firm in based in White Plains New York. The firm handles State and Federal Criminal Matters throughout lower New York State.

NEW YORK PROSTITUTION AND MASSAGE – DON’T MASSAGE WITHOUT A LICENSE

April 10, 2008 | Tilem & Associates

At the New York Criminal Defense firm of Tilem & Campbell we are seeing increased arrests for prostitution and prostitution related offenses. In addition, we are getting contacted by many women in the escort industry throughout the New York City Metropolitan area by way of our website escortattorney.com who are concerned in the wake of the Elliot Spitzer scandal. One of the topics that we have been addressing with our clients is the issue of massage and massage related terms especially on websites. Many escorts, in an attempt to cover up the true nature of services being provided advertise relating to “intimate massages.” What we are seeing is that women in the escort industry are not aware that practicing the profession of massage without a license or advertising that a person is a masseuse constitutes a felony under the New York Education Law.

Under current New York State law, Prostitution in New York is a class “B” misdemeanor punishable by up to 90 days in jail. Under New York Education Law §7801 and §7802 Practice of Massage without a license constitutes the unlawful practice of a profession is a class “E” felony punishable by up to 4 years in prison.

Terminology on a website advertising escort or massage services can be critical since merely using certain terms like “massage therapist”, “masseuse” or “massage” and other terms could subject a person the criminal liability. In the wake of the hysteria in the sex industry caused by the Elliot Spitzer scandal, the lawyers here at Tilem & Campbell have been reviewing and modifying websites for our clients to ensure that they are not inadvertently advertising illegal services or holding themselves out as unlicensed professionals. We are in the process of educating our clients so that they can be in compliance with the law. In addition, Peter Tilem & Peter Tilem have been drafting certain disclaimers to be added to websites so that it is clear that the website is not advertising illegal service.

TILEM & CAMPBELL LAUNCHES INVESTIGATION INTO CAYUGA HEIGHTS VILLAGE COURT

April 7, 2008 | Tilem & Associates

White Plains based law firm Tilem & Campbell has launched its own investigation into some of the practices of the Cayuga Heights Village Court and Judge Glenn G. Galbreath. Tilem & Campbell, the Westchester County based firm that represents drivers throughout New York State and is the owner of domain name TRAFFICTICKETEXPRESS.COM, launched the investigation after a letter from the Cayuga Heights Court seemed to indicate that Judge Galbreath may be implementing an illegal plea policy with regard to speeding tickets. During a preliminary investigation, the firm received complaints from several lawyers about the Court and Judge Galbreath prompting the wider probe.
Peter H. Tilem, Senior Partner at the firm, has requested transcripts of numerous Court proceedings and has requested access to all traffic ticket cases adjudicated in the Court over the last year. As a former New York County Prosecutor, Mr. Tilem has extensive experience in conducting investigations. A similar investigation launched by the firm last year into practices at the North Hills Village Court led to the firm filing an action against Judge Sigmund Semon in the Supreme Court of Nassau County.

NEW YORK CRIMINAL LAW DEFINITIONS “POSSESS”

April 5, 2008 | Tilem & Associates

New York Criminal cases often hinge on the legal definition of common terms. Experienced criminal attorneys know that often the legal definition of something is very different than its common definition. The term “possess” has significant legal implications in, among other areas, drug and weapons cases. Attorneys must be aware of the court rulings interpreting the term and how it applies to weapons and drugs. If you are charged with a crime that has possession as one of its elements, the lawyers at Westchester County based Tilem & Campbell would be happy to offer you a free consultation regarding your case.

Possess: (PL § 10.00(8)). To “possess” is to have physical possession or to otherwise exercise dominion or control over tangible property. The exact definition of “possess” for purposes of the Penal Law and the Criminal Procedure Law is found in PL § 10.00(8)

Actual physical possession is fairly easy to identify; did the person possess the tangible property? However, to exercise dominion or control over tangible property is a somewhat abstract concept. Dominion or control has been defined as “constructive possession”. In order to support an allegation that a defendant was in constructive possession of tangible property, the People (prosecutor) must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized. People v. Manini, 79 N.Y.2d 561, 594 N.E.2d 563, 584 N.Y.S.2d 282 (N.Y.,1992)

MANHATTAN COURTHOUSES IN THE SPOTLIGHT

April 2, 2008 | Jasmine Hernandez

The New York County Courthouses located in downtown Manhattan serve what is perhaps the largest and most diverse population in the world. Courthouses, plural, because the Manhattan Courthouses sprawl across lower Manhattan and have additional Courthouses in Midtown and in Harlem. By my count there are 10 distinct buildings that house the Supreme Court of the State of New York both Civil and Criminal Terms (the Criminal Term is where the most serious indicted criminal cases are handled), the Family Court, the New York City Criminal Court (which handles misdemeanors, violations and unindicted felonies), Surrogate Court, Civil Court of the City of New York which includes Housing Court and Small Claims Court.

As a former New York County Assistant District Attorney, I spent more time in the lower Manhattan, where most Courts are located, than I care to admit. I especially remember the nights, weekends and of course the long days and the numerous restaurants surrounding the Courthouses in the Chinatown, Little Italy, and Tribeca areas of Manhattan. It is not a stretch to say that I have handled over a thousand criminal cases in New York County both as a prosecutor and a criminal defense attorney including cases ranging from homicide to DWI, from Robbery to Drugs and from Assault to simple criminal summons such as Theft of Services or violations. I often affectionately refer to the Manhattan Courts as “my home away from home.”

In addition, the Special Narcotics Prosecutor is located in 80 Centre Street, where my old office was located. The Special Narcotics Prosecutor’s Office and the Special Narcotics Courts located in Manhattan, gives local prosecutors who generally only have borough wide jurisdiction the power to investigate and prosecute Narcotics and related offenses committed anywhere in New York City. As a result, Narcotics (or Drug) cases are often prosecuted in Manhattan even if they are committed in another borough such as the Bronx or Brooklyn.

NEW YORK CRIMINAL LAW DEFINITIONS “CRIMES” AND “PERSONS”

March 31, 2008 | Jasmine Hernandez

New York Criminal Defense Attorneys Tilem & Campbell know that criminal convictions in New York State can have far reaching consequences. As discussed in previous blogs on the subject knowing the legal terminology can have a significant impact on the outcome of a case. In addition, experienced attorneys know that individual localities and specific Courts may have their own specific definitions. At the New York Criminal Defense Firm of Tilem & Campbell we have the experience to know the practices of the Courts throughout New York State. Our attorneys also have the experience to know the significance of a criminal conviction.

New York Crime: (NY PL § 10.00(6)) A crime is a misdemeanor or a felony. When attempting to obtain a favorable plea bargain, an experienced and skilled attorney will fight hard for what is referred to as a “non-criminal disposition” (Please see our past blogs on the subject of ACDs, Violations and Plea Bargaining.) In other words, the defendant would agree to plead guilty; but not to a felony or a misdemeanor. Thus, the defendant would not be saddled with a criminal record and would therefore avoid the stigma and obstacles associated with a criminal record such as difficulty in finding gainful employment, credit difficulties, increased life insurance premiums, denial of certain licenses such as firearms and liquor, etc.

DEFINITION OF PERSON UNDER THE NEW YORK STATE PENAL LAW