New York Criminal Attorney Blog

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.

The bottom line is if you see the police behind you, pull over immediately. The life you save maybe yours.

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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 ROCHELLE CITY COURT

Ph: (914) 654-2207
Fx: (914) 654-0344

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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;
• Causes death;
• Causes a serious and protracted disfigurement;
• Causes a protracted impairment of health; or
• Causes a protracted loss or impairment of the function of any bodily organ.

(For the exact wording of Serious Physical Injury see NY Penal Law § 10.00(10))

The difference between causing a “physical injury” and a “serious physical injury” is the former typically results in a misdemeanor charge while the latter will result in a felony charge. If charged with a crime involving injury, you’re criminal defense attorney must be well versed in the statutory definitions of “physical injury” and “serious physical injury” as well as the cases interpreting these definitions. You’re attorney might consider attacking the sufficiency of the accusatory instrument (the written accusation against you such as an indictment or information) because the injury alleged, while serious on its face, in reality does not fit the statutory definition of “serious physical injury”. For an example, see People v. Jerreld below. Serious physical injury is an element of several criminal offenses including but not limited to, Assault in the Second Degree.

ILLUSTRATIVE CASES CONCERNING SERIOUS PHYSICAL INJURY

People v. Coy, 45 A.D.3d 1050, 845 N.Y.S.2d 854 (3rd Dept. 2007), serious physical injury was found and an Assault in the Second Degree conviction upheld where the victim suffered bruised ribs, a broken clavicle and four broken bones in her face which required the surgical implantation of support plates, extensive bruising as well as lacerations which required stitches. Furthermore, she remained in intensive care for several four days and the numbness her face, the indentations in her head and her need for pain medication were likely to be permanent conditions.

People v. Betters, 41 A.D.3d 1040, 838 N.Y.S.2d 254 (3rd Dept. 2007) serious physical injury was found where the victim suffered a knife wound requiring nine stitches.

People v. Jerreld, 852 N.Y.S.2d 833 (N.Y.Co.Ct., 2008). In a somewhat puzzling decision, even by defense attorney standards, J. Dennis K. McDermott of the Madison County Court held that that it was not a “serious physical injury” where a two-year-old victim, who had been thrown by the defendant, suffered a fractured leg that required the two year old victim to be placed in a body cast for six to eight weeks.

Charges involving serious physical injury are generally classified as violent felonies many of which carry mandatory state prison sentences. These cases can be tough to prove (see our blog dated April 25, 2008 on self-defense) however, and it is important to get an aggressive and experienced attorney involved as early in the case as possible.

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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.

The defense of justification is a common defense raised by experienced New York Criminal Defense Lawyers in many homicide and assault cases. It is a powerful defense for many reasons but in no small part because once raised, the prosecution has the burden of disproving the defense beyond a reasonable doubt. What that means is that the prosecution has to prove beyond a reasonable doubt that a defendant was not acting in self-defense. This is often very hard to prove. It is even more difficult to prove given that an element of self-defense is the defendant’s belief at the time of the self defense. The defendant’s belief is very difficult to know it is even harder to prove in many cases.

Given the complexity of the issues involved, it is not surprising that successful New York defense attorneys such as the lawyers at Tilem & Campbell have used the defense with great success. It is also no surprise that that the police officers involved in the Sean Bell case were found not guilty.

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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.

The problem with both the decision from the Supreme Court and the decision from the US Sentencing Commission is that both decisions only affect crack sentences under the federal sentencing guidelines. The sentencing guidelines only play a role in about 30% of crack cases in federal court. The overwhelming majority of cases, 70%, are covered by mandatory minimums. Possession of fifty grams of crack, for instance, requires a judge to sentence the defendant to a mandatory minimum of 10 years in prison. These cases are affected neither by the US Supreme Court decision in Kimbrough or the reduction imposed by the US Sentencing Commission. The mandatory minimums can only be changed by Congress.

It seems that the tide is changing and so hopefully Congress will be forced to act. The Kimbrough case seems to indicate that even the US Supreme Court recognizes that there is a problem. Here at Tilem & Campbell, we are preparing a motion to ask judges to set aside the mandatory minimums in federal crack cases, arguing that the mandatory minimums are unconstitutional. Now maybe the time to get these draconian drug laws changed.

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*. In fact, in New York State there is no separate crime for possessing or selling crack. Possession or sale of crack is a crime only by virtue of the fact that crack contains cocaine.

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Posted In: NARCOTICS

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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.

Continue reading "NEW YORK PHYSICAL INJURY - ASSAULT" »

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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.

If New York doesn't fix the imbalance caused by going 10 years without judicial raises, the good judges on the New York bench will leave and be replaced by the few lawyers who cannot get a better paying job or the few lawyers who are independently wealthy and just don't care. Neither type of Judge is the kind that New Yorker's deserve.

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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 John Campbell, 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.

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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 & John Campbell have been drafting certain disclaimers to be added to websites so that it is clear that the website is not advertising illegal service.

Many women do not know that in the event they are arrested, the police will often preserve the website or electronic advertisement which in some cases is used as incriminating evidence against the accused. By paying attention to the information that is being disseminated women can make criminal prosecution less likely and make any prosecution harder to prove.

When in doubt contact a lawyer experienced in this particular area of criminal law to review the material before it is posted on the internet. An ounce of prevention can go a long way.

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Posted In: PROSTITUTION

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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.

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Posted In: IN THE NEWS , TRAFFIC

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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)

For example, in People v. Torres, 68 N.Y.2d 677, 505 N.Y.S.2d 595, 496 N.E.2d 684 (1986), the New York Court of Appeals, held that the Evidence was sufficient to prove that the Angel Torres was in possession of a controlled substance found in his apartment, despite the fact that he was not in his apartment at time the controlled substance was found and even though others also used the apartment. In other words, Mr. Torres clearly did not physically possess the controlled substance at the time it was found by the police, however, the Court found that Mr. Torres was in constructive possession of the controlled substance because, among things, he was a named tenant on the lease; he had keys to the apartment; and when he arrived at a hotel in Puerto Rico he gave the searched New York apartment address as his home address.

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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.

With a population of more than 1.5 million people and a population density of 66,940 people per square mile, the Manhattan Courts serve a lot of residents. In addition, over 43 million visitors come to New York City every year with the lion share coming to Manhattan and numerous suburban residents commute into Manhattan daily causing the weekday population to swell. This means that in Manhattan Criminal Court, defendants, victims and witnesses literally come from around New York State, the Country and the world. In addition, because Manhattan and more particularly the Wall Street area is the financial hub of the world, international banking cases, are handled alongside of garden variety street crime such as robbery or burglary. In fact, the cases being handled in New York County are as diverse as the neighborhoods that make-up Manhattan. Greenwich Village, Harlem, Upper East Side, West Side, Hell’s Kitchen, Washington Heights, Wall Street and Soho, to name a few, are so different that it is sometimes difficult to believe that they constitute one borough in one city.

More than 100,000 arrests take place every year in New York County or Manhattan as it is more commonly known. As a result, almost 275 new cases come into the Manhattan Criminal Court everyday of the year. As a result, long lines at entrances and at elevators are the norm in many Manhattan Courthouses especially during peak morning times between 9 and 10 am and all of the Courthouses are well utilized. Court Calendars of over 100 cases per day are not unusual in certain Criminal Court Parts and the Courts can have full days sometimes working well beyond the normal 5 pm close.

If you find yourself involved in a case involving a Manhattan Court, consult an experienced New York Criminal Defense Attorney such as an attorney from Tilem & Campbell.

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