New York Criminal Attorney Blog

Recent Opinion from Chief Judge Highlights Inadequacies of New York Justice System

February 5, 2024 | Tilem & Associates

In a recent opinion from the New York State Court of Appeals, the chief judge delivered a concurrence that highlights some of the difficulties involved in litigating criminal cases. The opinion centers around an incident in which three pedestrians got into a verbal altercation, after which the defendant stole one of the individual’s phones. The defendant was later convicted of larceny and perjury, and he was sentenced to four to eight years in prison. The judge’s concurrence talks through some of his own frustrations with how the trial court failed to take certain factors into account when sentencing the defendant.

Background of the Case

The opinion describes the incident in question, during which a woman and her boyfriend were walking down the street and almost collided with a bicyclist. The three individuals began yelling at each other in what became a heated conversation. Ultimately, the bicyclist, later named as the defendant in this case, stole the woman’s phone and fled.
The woman called the police, and they were able to quickly find the defendant. He was charged with larceny, and he was called to testify before a grand jury. In connection with that testimony, the defendant was later charged with perjury.

The defendant was later convicted of fourth-degree larceny and two counts of first-degree perjury. The trial court sentenced him to time in prison, which added up to between four and eight years.

New York Court Grants Defendant’s Speedy Trial Motion to Dismiss in Opinion Highlighting Prosecution’s Unpreparedness for Trial

February 5, 2024 | Peter Howard Tilem

Recently, the New York Court of Appeals, New York’s highest court sided with a defendant who was originally charged with and convicted of harassment in the second degree. in a very important speedy trial case that keeps prosecutors honest about complying with New York discovery laws. After being found guilty, the defendant filed a speedy trial motion to dismiss, arguing that the prosecution incorrectly advised the court it was ready for trial before it had turned over all of the documents it was required to disclose as discovery. Ultimately, the court agreed with the defendant, granting his motion to dismiss.

Facts of the Case

According to the opinion, police officers first arrested the defendant in this case after he became physically aggressive toward his mom. The State charged him with harassment in the second degree, and the defendant pleaded not guilty. The court subsequently scheduled the case for trial several months down the line. Prior to trial, as is standard in New York courts, both the prosecution and the defense appeared for several hearings to report in on the progress of trial preparation.

Also, in the state of New York, the prosecution in a criminal case is always required to file something called a “certificate of compliance” with the court. This certificate advises the court that the prosecution has provided all of the necessary “discovery” to the defense, meaning all of the relevant documents that the defense has requested as part of the trial preparation.

Getting Your Guns Back After They Are Seized By The Police in New York

January 30, 2024 | Peter Howard Tilem

Police in New York are all too eager to seize your firearms and unfortunately recent changes in the law have made it easier for the police to seize your guns and harder for you to get them back, even when no charges have been filed. The Suffolk County Police for example were called to the scene of a domestic incident where no one was arrested, and quickly suspended the license of the gun owner in the home. The Suffolk County Police took the position that because charges could be filed for a period of one year the guns would not be returned for a period of one year; even though no one was arrested, no charges were filed and no orders of protections were issued. It took an Article 78 filed in the Suffolk Supreme Court to get the County to agree to return the guns. In another incident in another County an Order of Protection was filed against a husband by a wife as retaliation during an ongoing contested divorce. When the Sheriff’s Office served the Order of Protection they seized the husbands guns. Shortly thereafter, the case was dismissed and the Order of Protection vacated. However, the Sheriff refused to return the guns until the Court signed an Order for the return of the guns and the Judge (licensing officer) reinstated his license.

New York’s New Gun Confiscation Laws

Several relatively new laws that have been added or amended in the last few years assist the police in seizing guns even when no one has been arrested. Red flag laws or Extreme Risk Protection Orders (ERPO) as they are also known are just one way of the police seizing firearms from someone who has not committed a crime. We have already written about Extreme Risk Protection Orders in past blogs. However, Criminal Procedure Law §530.14 requires a licensing officer to suspend a firearms license when a Temporary Order of protection is issued regardless of anything else. In addition, after the Order of Protection is vacated, CPL §530.14 requires the licensee to: make a written application to the Court for the return of their weapons, and serve notice to the the county attorney, district attorney, the protected party under the order of protection, and every licensing officer who has issued a firearms license to the subject of the order.

New York Defendant Successfully Appeals Gun Conviction, Highlighting Importance of Effective Counsel During Trial Proceedings

January 23, 2024 | Peter Howard Tilem

In a recent New York firearms case before the New York Court of Appeals, the defendant successfully asked for his conviction for criminal possession of a weapon to be overturned. The decision, issued at the end of 2023, illustrates the importance of choosing and retaining a thorough, knowledgeable and experienced criminal defense counsel, given that the court reversed the lower court’s order because the defendant received ineffective assistance of counsel during his trial proceedings. While this was ultimately a win, the defendant received 7 years in prison and probably served at least 4 years before ultimately having his conviction over turned because his attorney was not effective.

Facts of the Case

According to the opinion, this case began when officers on patrol pulled the defendant over for a standard traffic violation. When the officers asked for the defendant’s license and registration, the defendant was unable to provide either document, but instead pulled his hand out of his pocket and revealed a magazine clip. The officers asked the defendant to exit the vehicle, at which point they searched the car and found a bag with ammunition and a holster.

The defendant was charged with criminal possession of a weapon. He pled not guilty, and his case went to trial. A jury found the defendant guilty as charged.

New York Defendant Loses Appeal in Case Centering on Possible Issue with In-Court Identification

January 16, 2024 | Peter Howard Tilem

In a recent assault and criminal possession of a weapon case before New York’s highest Court, the New York Court of Appeals, the defendant took issue with the trial court’s decision to let a witness identify him as the perpetrator of a shooting for the first time while she was in court. In its opinion, the court discussed the implications of letting a witness make this kind of identification without significant notice to the defendant. Here, concluded the court, the defendant had sufficient notice of the possible identification, and his conviction would be affirmed.

Facts of the Case

According to the opinion, the defendant shot the victim in the leg at a party in 2017. A neighbor called 911 to make a report, and when calling, the neighbor described the shooter’s race, stature, and clothing. The police subsequently arrested the defendant and the case went to trial.

During trial, the victim took the stand and testified that the defendant was, indeed, the person that shot her. According to her testimony, there was enough light outside of the house to allow her to clearly see the defendant, and she was sure that the defendant and her shooter were the same person. The defendant objected to this testimony on the grounds that the witness had not participated in any identification procedures prior to the trial, and that her identification thus took him by surprise.

The jury later returned a guilty verdict, and the Appellate Division affirmed. The defendant again appealed.

New York Court Reaches Pro-Defendant Decision in Narcotics-Detection Dog Case, Ruling that Sniffing Does Indeed Constitute a Search

January 9, 2024 | Tilem & Associates

In a recent drug case in New York, the Court of Appeals, New York’s highest Court held that using a narcotics-detection dog to sniff a criminal suspect’s body is defined as a “search.” Before this case, New York case law was unclear about whether this specific action constituted a search, which is relevant because any “search” by a government official automatically triggers individual protections under the U.S. Constitution’s Fourth Amendment. By ruling that the narcotics-detection dog’s sniffing is a search under the law, the court opened up more defendants and suspects to important protections under this Amendment.

Facts of the Case

According to the opinion, officers on patrol saw what they believed to be a drug transaction one evening in a parking lot. The officers followed one of the individuals in his car when he left the parking lot, later stopping him for a traffic violation. The officers then requested that the suspect consent to a search of his vehicle. When the suspect declined, the officers brought out their canine to sniff for drugs both around the vehicle and on the defendant’s person.

The dog involved in the search alerted on three different occasions during the interaction. The suspect began to run away, and the officers chased him, caught him, and eventually found a plastic bag with 76 glassine envelopes of heroin. The suspect was charged with criminal possession of drugs, and he then filed a motion to suppress the evidence of the drugs.

New York Court Sides with Defendant in Weapon Possession Case, Affirming that Prior Bad Acts are Generally Inadmissible at Trial

January 2, 2024 | Peter Howard Tilem

In a recent case before a New York appellate court, the defendant successfully appealed his conviction of criminal possession of a weapon. The defendant originally faced charges after an officer found a .45 caliber gun in his vehicle’s center console. His case went to trial, and a jury found him guilty. On appeal, however, the defendant successfully argued that the trial court unreasonably allowed the prosecution to introduce evidence of his past crimes during the proceedings. The higher court, agreeing with the defendant, vacated the trial court’s order. Generally, evidence of prior bad acts may not be used against a defendant with very limited exceptions.

Facts of the Case

According to the opinion, an officer pulled the defendant over one morning because of an illegal U-turn. The officer approached the defendant’s car and immediately smelled marijuana. He took the defendant and his passenger to the station, later finding a .45 caliber gun in the defendant’s console along with three handguns in the back.

The defendant’s case went to trial, and during the trial, the prosecution introduced evidence of two prior incidents on the defendant’s record – a 2006 uncharged crime and a 2007 misdemeanor for weapon possession. The jury ultimately returned a guilty verdict.

New York Criminal Case Highlights Danger of Providing Inconsistent Statements to Police Officers

December 24, 2023 | Peter Howard Tilem

In a recent criminal case before the New York Court of Appeals, New York’s highest Court, the defendant appealed a conviction that he argued was based on an officer’s unlawful search of his vehicle. In the opinion, the court highlighted the defendant’s inconsistent statements to the police officer that searched his car, which ultimately gave the officer reasonable grounds to search the vehicle. Given these inconsistent statements, decided the court, the defendant’s appeal would ultimately be denied.

Facts of the Case

According to the opinion, an officer on patrol pulled the defendant over one evening through a routine traffic stop. The officer approached the defendant and began speaking with him through the open driver’s side window. At first glance, the officer noticed that the defendant was sitting in a twisted position, and it appeared as if he was trying to hide one side of his body from the officer.

The officer asked a couple of questions, at one point inquiring as to where the defendant was heading. When the defendant then gave inconsistent answers about where he was driving, the officer asked if he could search the defendant’s car. While the opinion did not specify what the officer found in the vehicle, it was certainly enough for the State to criminally charge the defendant. He filed a motion to suppress the incriminating evidence, which the lower court denied.

New York Court Denies Defendant’s Appeal in Murder Case, Ruling that Lineup was Not Overly Suggestive

December 16, 2023 | Tilem & Associates

In a November 2023 case before an appellate court in New York, the defendant appealed his convictions of murder in the second degree and criminal possession of a weapon in the second degree. On appeal, the defendant argued that the trial court made a mistake in refusing to suppress identification evidence that led to his conviction. The higher court considered the defendant’s argument, reviewed relevant case law, and ultimately affirmed the defendant’s original convictions.

Facts of the Case

The defendant was originally charged after he fatally shot a 21-year-old man outside of a billiards hall. According to the appellate opinion, witnesses saw the defendant run up to the victim outside of the billiards hall at approximately 1:00 in the morning, shoot twice, and immediately run away. Emergency responders took the victim to the hospital, but he ultimately died of his injuries.

As part of their investigation, police officers brought witnesses into the station for an identification lineup. The witnesses consistently picked out the defendant, and the State charged him with murder in the second degree and criminal possession of a weapon in the second degree. He pled not guilty, and the case went to trial. The jury found the defendant guilty as charged, and the lower court sentenced him to 25 years to life in prison.

New York Defendant Challenges Denial of Motion to Suppress in Recent Drug Case

December 9, 2023 | Tilem & Associates

In a recent New York Gun case before the Appellate Division, Second Department in New York, the defendant unsuccessfully asked for the court to reverse a trial court’s denial of his motion to suppress. The defendant originally faced charges for criminal possession of a weapon, unlawful possession of marijuana, and violations of two vehicle and traffic laws. He pled not guilty, and his case went to trial. After the jury found the defendant guilty as charged, he appealed the lower court’s decision not to suppress the marijuana that the police officers had found in his vehicle. Ultimately, the higher court agreed with the denial, affirming the lower court’s verdict.

Facts of the Case

According to the opinion, the defendant in this case was driving one evening when he threw a cigarette out the window of his car. A patrol car behind him immediately began following him, eventually pulling him over for a traffic stop.

A police officer approached the defendant and smelled marijuana on his person. He also noticed that there was a clear bag of marijuana in the front passenger seat. He asked the defendant to exit the vehicle; while the defendant exited, the officer searched the trunk of the car and found two unloaded firearms in a shoe box.