New York Criminal Attorney Blog

Brooklyn Felony Gun Case – Tilem & Campbell Scores Big Victory

June 12, 2008 | Tilem & Associates

New York Criminal Attorney’s Tilem & Campbell scored a major victory in Brooklyn Supreme Court yesterday when prosecutors agreed to dismiss all charges in a Kings County felony gun possession case. Peter Tilem, Senior Partner at Tilem & Campbell and former prosecutor in the Firearms Trafficking Unit at the Manhattan District Attorney’s Office handled the case for the client.

The case started back in August 2006 with a felony gun possession arrest in Brooklyn’s 75th Precinct. Police from the 75th Precinct’s elite Anti-Crime Unit claim to have stopped the vehicle the suspect was driving for not wearing a seatbelt directly in front of his apartment building. They further claim that his license was suspended and that he didn’t have identification on him. The police claim the suspect’s wife offered to go up to her apartment to get his identification and that when she didn’t come back down they went upstairs to find out what happened.

Police further claim that when they arrive on the suspect’s floor they smelled the odor of Marijuana (spelled marihuana in the New York State Penal Law) and that when the suspect’s wife opened the door they observed marihuana in plain view. The suspect’s wife then consented to a search of the entire apartment. Police claim to have found a pistol in the apartment.

NEW YORK STATE INMATE’S SUPERINTENDENT HEARINGS MUST BE RECORDED

June 4, 2008 | Tilem & Associates

A New York State Prison inmate retains some basic due process rights despite being imprisoned. An inmate charged with a serious violation faces substantial punishment and should seek the advise of an experienced New York lawyer. When serious violations are alleged against the inmate, a Superintendent’s Hearing will be held. If the inmate is found guilty at the hearing, he must first file an administrative appeal. If his administrative appeal is denied, he can then file an Article 78 petition. An experienced New York attorney should be retained to represent the inmate on his or her Article 78 petition. One due process violation that should result in the reversal and even expungement of a guilty finding is the failure of the prison officials to tape record the hearing. All Superintendents’ Hearings must be “electronically recorded”. 7 NYCRR 254.6(a)(2).

The absence of the tape of the evidence relied upon by a hearing officer in a disciplinary hearing is a violation of the prisoner’s fundamental due process rights. Scott v. Coughlin, 161 Misc.2d 777, 615 N.Y.S.2d 828 (Dutchess Cnty 1994).

The Scott case involved a Tier III Superintendent’s Hearing where Michael Scott was found guilty of assault and was sentenced to 365 days in the Special Housing Unit and six months loss of good time. Scott’s administrative appeals were denied.

NEW YORK’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE (CLAYTON MOTIONS)

May 29, 2008 | Jasmine Hernandez

Experienced New York Criminal Attorney’s who are familiar with the New York Criminal Procedure Law are familiar with CPL § 210.40 which authorizes Judges to dismiss cases in the “Interest of Justice” and the 10 factors that Judges need consider when deciding whether to grant such a motion. The Motion to Dismiss in the Interest of Justice is also known to many New York lawyers as a “Clayton” motion after the 1973 case that originally discussed the parameters of this type of motion. At Tilem & Campbell, our criminal lawyers have successfully used Clayton Motions to resolve difficult cases and protect the interests of our clients.

Our experienced criminal attorney’s have also used the factor delineated in CPL §210.40 to resolve serious criminal cases by addressing the factors in letters to prosecutors. By using the Clayton factors to show a prosecutor that a Judge might dismiss the case, we are sometimes able to convince a prosecutor to offer an ACD or a Violation when they had previously refused to do so. This strategy has been used by lawyers at this firm to resolve cases such as Assault, Insurance Fraud and Gun Possession.

Recently Judge Rory Bellantoni, of the Westchester County Court in White Plains, after an analysis of all of the factors delineated in CPL §210.40 dismissed a felony Sexual Abuse case in the interest of justice. In that case, prosecutors were offering an ACD or a dismissal of the charges and then suddenly withdrew the offer. A number of other factors also supported the dismissal. The case demonstrates that even very serious felony cases can be dismissed under Clayton and not only less serious misdemeanors.

QUEENS COURT LIMITS APPLICABILITY OF NEW YOK CITY KNIFE LAW

May 22, 2008 | Jasmine Hernandez

New York City Administrative Code 10-133(b) (Unlawful Possession of Knives or Instruments), makes it illegal to possess a knife with a blade of four inches or more in any public place in New York City. Criminal Lawyers and Judges have struggled with this section for years because the reach of the statute is so broad and because of how easy it is to violate this statute.

Firstly, there is no specific “mens rea” or mental culpability required for this offense. Most criminal statutes require a person to act intentionally, knowingly or recklessly. This statute does not even require that the person knowingly possess the knife. Most weapons offenses require that the possession be knowing possession. In addition, as all of us know, knives have many legitimate uses and even the average kitchen knife has a blade length over four inches. To demonstrate the reach of this statute, over twenty years ago a Queens Criminal Court Judge ruled that the statute could be applied to a Sikh priest who had the knife as part of a genuine religious observance.

Last month another Queens Criminal Court Judge ruled that possessing a knife over four inches in a car is not a violation of this New York City Administrative Code section since a person’s car, even though on a public street, is not a “public place.” In the recent Queens case, the knife was seen in the center console of a vehicle that was stopped by the police for a routine traffic infraction. The Court ruled that the center console of a person’s vehicle is not a public place and dismissed the New York City Administrative Code violation.

NEW YORK DRIVING WITH A SUSPENDED OR REVOKED LICENSE – New York VTL 511

May 16, 2008 | Jasmine Hernandez

Aggravated Unlicensed Operation of a Motor Vehicle in New York, also known as driving with a suspended (or revoked) license is a serious crime defined in the Vehicle and Traffic Law of New York State. Driving with a suspended license can be either a misdemeanor or a felony depending on the circumstances of the individual case. Most often the motorist’s license is suspended for failure to answer one or more summonses but a person’s New York State License can be suspended or revoked because of a DWI, DWAI, an insurance lapse, three speeding convictions in an eighteen month period or accruing more than 11 points on a person’s license to name a few.

If your license is suspended don’t drive. In many cases an attorney experienced in traffic matters can “clear” the license inexpensively and quickly. If you are stopped while driving with a suspended or revoked license in Manhattan, Queens, Brooklyn, Bronx or Staten Island you will most likely be arrested and spend twenty-fours in jail waiting to see a judge (arraignment). In Westchester and other suburbs you will probably receive a summons but so not let the summons fool you. The summons may charge you with a felony or misdemeanor for which a jail sentence is required.

The best course of action is to “clear” your license. That means obtaining a driver’s abstract from DMV (we can obtain driver’s abstracts) and resolving each of the issues on your driver’s license. The ultimate goal is to restore your driving privileges with the Department of Motor Vehicles. Judges and prosecutors are reluctant to plea bargain cases where the defendant has not restored his or her driving privileges. Judges and prosecutors are concerned that if you don’t restore your driving privileges you will be back with another VTL 511 charge.

New York Drivers; Don’t Flee From the Police

May 12, 2008 | Jasmine Hernandez

A relatively new set of laws in New York creates a new category of crimes based upon fleeing from the police in a car. Only in effect since November of 2006, Penal sections 270.25, 270.30 and 270.35 criminalize fleeing from the police if you are in a vehicle and you either exceed the speed limit by 25 miles per hour or drive recklessly. Section 270.30 applies if the chase results in “serious physical injury” and section 270.35 applies if the chase results in the death of someone.

Prior to the effective date of these statutes, a person fleeing from the police was only guilty of failure to obey a police officer which is a traffic infraction under New York Law. Under these new sections, fleeing from the police is a crime. Under Penal Law §270.25 a person can be found guilty of a class “A” Misdemeanor and face up to one year in jail. Under Penal Law §270.30 a person can be found guilty of a class “E” Felony and face up to four years in prison and under Penal Law §270.35 a person can be found guilty of a class “D” Felony and face up to seven years in prison.

These cases are serious and anyone charged with any of these crimes should contact an experienced New York criminal defense attorney who handles driving related matters.

NEW ROCHELLE CITY COURT

May 5, 2008 | Tilem & Associates

The New Rochelle City Court is located in Westchester County at 475 North Avenue, New Rochelle, New York. New Rochelle is the second largest city in Westchester County. It is a City Court and handles, among other things, traffic infractions, misdemeanors, landlord/tenant and small claims cases. It has a fairly busy traffic violation calendar as both Interstate 95 and the Hutchinson River Parkway pass through New Rochelle. Therefore, this Court presides over many speeding ticket and traffic violation cases. It also handles misdemeanors including those related to driving such as DWI, Reckless Driving and Aggravated Unlicensed Operator.

The Court is located only several blocks from Iona College and therefore, as can be expected, it hears many cases related to underage drinking, unlawful dealing with a minor, endangering the welfare of a child, possession of alcohol by a minor, drug possession including marijuana possession and assault.

While the New Rochelle City Court does not have the jurisdiction to hear felony cases post-indictment, it will be the first court you are brought before if you are arrested for a felony in New Rochelle. It is this court that will most likely handle your arraignment for a felony committed within the City of New Rochelle and set bail, release you on your on recognizance or remand you without bail. However, if you ultimately are indicted on the felony, your case will be transferred to the Westchester County Court. If the original felony charge is reduced to a misdemeanor, the case will stay in New Rochelle.

New York Criminal Law Definitions – Serious Physical Injury

April 29, 2008 | Tilem & Associates

The New York Penal Law defines several different crimes such as Assault, Robbery and Burglary that have serious physical injury as an element. The definition of serious physical injury is complex and if a person finds themselves charged with a crime in which serious physical injury is an element they should consult an experienced New York criminal defense attorney as quickly as possible.

As the name implies, serious physical injury involves injury which is far more involved than physical injury which is defined in our April 16, 2008 blog. In a nutshell, Serious Physical Injury is a physical injury which:

• Creates a substantial risk of death;

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.