New York Criminal Attorney Blog

Defendant in Rape Case Successfully Asks for Lower Risk Level on New York Sex Registry

May 30, 2023 | Peter Howard Tilem

In an April 2023 case before an appellate court in New York, the defendant, a convicted sex offender, appealed a lower court’s decision to designate him as a level three sex offender under the sex offender registration act (SORA). After the defendant was charged with and convicted of rape, the State asked for the defendant to be registered as a sex offender in the state of New York. When the defendant thought that the lower court unfairly assessed his risk level to the community, he appealed, and the higher court ultimately agreed with his argument, granting his appeal.

Facts of the Case

According to the opinion, the defendant was originally charged after he raped a woman and threatened violence against her. Apparently, he told the woman that if she did not have sex with him, he would use a machete against her. He claimed that he kept a machete under his bed, although there was no evidence on the record that the defendant actually owned a machete or had one available to him.

The defendant was convicted of rape in the third degree. The State then asked the court to register him according to the Sex Offender Registration Act. This process means that the court must determine the defendant’s risk level to the community, which involves assigning him a numerical value that indicates how dangerous he might be in the future.

Appellate Court Sides with Defendant in New York Firearm Possession Case

May 20, 2023 | Tilem & Associates

Last month, an appellate court in New York ruled in favor of the defendant in a New York gun case involving the suppression of physical evidence. Originally, a police officer pulled the defendant over when he was driving, and the officer found a firearm on the defendant’s person. The lower court granted the defendant’s motion to suppress the incriminating evidence found during the traffic stop, and the State of New York appealed. Ultimately, the higher court denied the State’s appeal, siding with the defendant instead.

The Facts of the Case

According to the opinion, an officer was on patrol one evening when he saw the defendant driving nearby. He supposedly perceived the defendant to be going too fast and cross a double yellow line, so he activated his lights and pulled the defendant over. As the officer got out of his car and approached the defendant in his vehicle, he saw an empty firearm holder, marijuana, and a plastic bag with a powdery substance inside the car. The officer told the defendant to step outside and immediately found a firearm on the defendant’s person.

The defendant was charged with criminal possession of a firearm. He filed a motion asking the trial court to suppress the evidence of the firearm, arguing the officer did not actually have a legal reason to pull him over. The lower court granted the defendant’s motion, and the State appealed.

New York Criminal Possession of a Weapon Conviction Reversed After People Fail to Prove Stick Was a Dangerous Instrument

May 13, 2023 | Tilem & Associates

In a recent assault case before an appellate court in New York, the defendant successfully overturned several convictions related to a Child Abuse case. Although, the top charge of Assault in the First Degree stood, the case outlines some limits on criminal possession of a dangerous instrument. Originally, the defendant was convicted of several crimes, including assault in the first degree, assault in the second degree, reckless assault of a child, criminal possession of a weapon, and endangering the welfare of a child. On appeal, she asked that the court reconsider these convictions. Ultimately, the court agreed that at least two of the convictions should be vacated, granting the defendant’s request in part.

The Facts of the Case

According to the opinion, the defendant was charged with a myriad of crimes based on injuries found on her two-year-old son. The State presented evidence that the child was violently shaken, bruised, and bitten on different occasions. He also sustained several brain injuries because of the shaking, and the State included medical reports as part of the evidence against the defendant.

At trial, the defendant admitted that she occasionally hit the child, pinched his skin, and bit him and punished him with a “bamboo stick”. She was later found guilty and was sentenced to time in prison as a result.

Defendant Seeks Reversal of Felony Aggravated Unlicensed Operation Conviction

May 5, 2023 | Peter Howard Tilem

Driving with a suspended license can be an extremely serious offense in New York with Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree being a Felony in New York. A recent decision decided toward the end of April, in the Appellate Division, Third Department, demonstrates why these cases must be treated very seriously and handled by experienced criminal defense lawyers. Originally, the defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree. The defendant’s attorney filed a pre-trial motion to suppress certain incriminating evidence, which the lower court summarily denied without a hearing because the motion was not supported by sworn allegations of fact. When the defendant appealed this denial, the higher court considered the evidence but ultimately decided the trial court’s ruling should stand.

Facts of the Case

According to the opinion, the defendant was driving one night when he made two turns without using a turn signal. A patrolling officer pulled him over for a routine traffic stop, at which point the officer learned that the defendant was operating the motor vehicle without a license.

The defendant’s attorney promptly filed a motion to suppress evidence of the conversation between his client and the officer during the traffic stop. The court denied that motion and the defendant pleaded guilty to the crime, and received a sentence of 1 to 3 years in prison.

Defendant in New York Assault Case Successfully Overturns Part of Guilty Verdict

April 28, 2023 | Peter Howard Tilem

Recently, a New York appeals court published an opinion reversing a defendant’s conviction of assault in the third degree. Originally, the defendant was found guilty of three crimes, and on appeal, he argued that there was not enough evidence to prove he was guilty of one of the crimes. Breaking the crime into its elements, the court ultimately reversed part of the guilty verdict, delivering a favorable result for the defendant. Thus, while the defendant’s conviction stands in part, the Court reversed his conviction for assault in the third degree.

Facts of the Case

According to the opinion, the defendant was charged with three crimes: burglary in the second degree, assault in the third degree, and criminal obstruction of breathing or blood circulation. The charges were based on a singular incident, and the defendant’s case eventually went to trial. At trial in February 2019, the jury found the defendant guilty of all three crimes, and the defendant was sentenced accordingly. He promptly appealed, asking the higher court to overturn the verdict.

The Decision

On appeal, the defendant argued that one of the crimes, assault in the third degree, did not have enough evidentiary support to result in a guilty conviction. To be found guilty of assault, the prosecution must show that some kind of physical injury resulted from the incident in question. Prosecutors might bring in photos, video, audio, testimony from witnesses, medical records, expert medical testimony or testimony from the victim to support this element of the crime.

Defendant in New York Assault Case Unsuccessfully Argues Evidence of Victim’s Criminal History Should Have Been Admitted During Trial

April 18, 2023 | Peter Howard Tilem

Last month, the defendant in a New York assault case challenged the constitutionality of a rule that worked against him in his 2018 jury trial. This case is a very important case about the limits of evidence of prior bad acts of the victim in self-defense cases. Originally, the defendant was charged with assault in the second degree after an altercation between him and another individual. His case went to trial, the defendant was found guilty, and he promptly appealed. The Appellate Division affirmed the verdict, and the defendant challenged the order of the Appellate Division, hoping again to get his conviction reversed. Ultimately, the Court of Appeals, New York’s highest Court, reviewing the defendant’s second appeal disagreed with him and sustained the guilty verdict.

Facts of the Case

According to the opinion, the defendant stabbed another individual with a penknife after the two strangers began arguing. Officers quickly arrived at the scene, and the defendant was charged with assault. When the case went to trial, the defendant argued that he was acting in self-defense. As evidence that he was not the first aggressor, the defendant tried to introduce evidence of the victim’s past criminal history which included a history of attacking strangers.

The victim’s prior criminal acts were referred to as “youthful offender adjudications,” meaning the acts happened when the victim was between the age of 16 and 19 years old. Under New York law, some of these criminal acts can be sealed so that no one can later access the records. The sealing takes place largely because the State recognizes that youth deserve the chance to start adulthood with a clean slate after their brains have fully developed.

Because these acts were sealed under the law, the trial court allowed the defendant to use them as evidence in his case for only the limited purpose of determining the victim’s credibility but not for determining whether the victim was in fact the initial aggressor. The jury ultimately found the defendant guilty, and the defendant’s series of appeals began.

New York Appeals Court Sides with Defendant in Firearm Case

April 12, 2023 | Tilem & Associates

In a recent case before a New York appellate court, the defendant asked the court to reconsider his conviction for criminal possession of a weapon in the second degree. In his appeal, the defendant argued that the lower court should have suppressed evidence obtained by the police officers that caught him driving with a firearm. Because the lower court failed to suppress the evidence, argued the defendant, it was the higher court’s responsibility to reverse the judgment and remand the case for further proceedings without the incriminating evidence as part of the record. Ultimately, looking at the evidence in the case, the court of appeals agreed with the defendant and reversed the judgment.

Facts of the Case

According to the opinion, the defendant was driving when two police officers pulled him over for speeding. Once they initiated the traffic stop, the officers questioned the defendant and ultimately found a firearm in his vehicle. The defendant was charged, and he filed a motion to suppress the firearm found in his vehicle. The lower court, however, denied this motion, and the defendant was convicted of criminal possession of a weapon in the second degree.

The Decision

On appeal, the defendant’s main argument was that the officers did not actually have a legal reason to pull him over in the first place, thus making their traffic stop illegal, and any evidence they found as a result of the stop should have been inadmissible. During the hearing on the defendant’s motion to suppress, both officers testified that they pulled the defendant over because they suspected he was speeding. However, neither of the officers had used radar to actually measure the defendant’s speed before they pulled him over. Instead, the officers testified that they estimated the defendant was traveling around 40 miles per hour in a 30-mile-per-hour zone.

New York Defendant Appeals Denial of Motion to Suppress in Case Involving Fraudulent Credit Cards

April 6, 2023 | Peter Howard Tilem

In a March 2023 case before a New York appellate court, the defendant asked the court to find that he was arrested unlawfully by two officers during a traffic stop and that therefore the evidence should be suppressed. The defendant had been charged with criminal possession of a forged instrument, which in this case meant the officers thought he had forged credit cards that he intended to use for fraudulent purposes. On appeal, the defendant argued that the lower court improperly found that there was probable cause to arrest him. The higher court, however, agreed with the lower court’s decision and denied the defendant’s appeal.

Facts of the Case

According to the decision, officers were on patrol one evening when they noticed the two defendants driving by in a Nissan Maxima. Apparently, the officers saw the defendants’ car switch lanes without signaling, so they put on their lights and conducted a traffic stop. After a few minutes of questioning, the officers realized that the car was actually a rental car, but upon calling the rental company, the officers learned that the car was not rented under either of the defendants’ names.

Looking into a window of the car, one of the officers noticed several dozen credit cards in an open plastic bag. Based on the officer’s training, he suspected this kind of packaging indicated that the credit cards were stolen. The officers then arrested the defendants and criminally charged them.

Defendant in New York Criminal Case Successfully Gets Incriminating Statements Suppressed

March 29, 2023 | Tilem & Associates

In a recent case involving leaving the scene of an accident or incident before a New York appellate court, the defendant successfully argued that his motion to suppress was improperly denied by the lower court. The defendant was criminally charged and convicted after an incident in which he left the scene of an automobile accident without reporting. On appeal, however, the defendant argued that the police officer questioning him neglected to give him the proper Miranda warnings before soliciting information. Agreeing with the defendant, the appellate court ended up suppressing several of the defendant’s incriminating statements.

Facts of the Case

According to the opinion, state troopers were patrolling one evening when they pulled the defendant and his acquaintance over to the side of the road. Apparently, the troopers had been informed to be on the lookout for a car that looked similar to the defendant’s, whose driver was on the run after colliding with a motorcycle nearby.

The troopers brought the defendant out of his car, told him to place his hands on top of the vehicle, and began to question him about where he had been earlier that evening. At that point, the defendant admitted that he had been driving the car for several hours, including at the time the motorcycle accident happened. Quickly, the defendant backtracked and said that he had actually been on the train earlier that night. When the officer asked which train the defendant had taken, however, the defendant could not think of anything to say.

Young Defendant in New York Successfully Overturns Unfavorable Trial Court Decision

March 22, 2023 | Peter Howard Tilem

Last month, a New York appellate court decided a case that overturned a young defendant’s murder conviction after trial and suppressed statements that were made to his father and recorded by the police in the police station. Originally, the defendant had been found guilty of several violent crimes, including murder in the second degree. After the trial court denied the defendant’s motion to suppress incriminating statements, the defendant appealed; on appeal, the higher court unanimously agreed that the trial court’s decision should be reversed.

Facts of the Case

According to the opinion, the defendant was 15 years old when he was charged with murder, criminal possession of a weapon, and attempted robbery. Officers brought the defendant to the station upon his arrest, at which point they complied with their legal obligation to call one of the defendant’s parents or guardians. The defendant’s father immediately came to the station and informed the officers that they wanted to speak with an attorney before submitting to an interview.

At that point, the officers left the interview room, leaving the defendant and his father alone with a video camera recording the conversation. The defendant’s face collapsed into his hands, and he began speaking in a distressed tone to his father. His father warned him to stop talking and reminded his son about the video. However, the defendant continued and attempted to make his conversation inaudible by covering his mouth and speaking in hushed tones. Later the defendant discovered that their conversation had been recorded and that the State wanted to use the recording as evidence at trial. Indeed much of the video was inaudible but what was audible was played for the jury.