New York Criminal Attorney Blog

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.

No two cases are alike and some cases even though serious on their face warrant further analysis. The 10 factors listed in CPL §210.40 are generally a great place to start in evaluating the value of a criminal charge. The bottom line is get an experienced criminal defense attorney involved early in the case to get the maximum benefit and to have the most options.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (2)

Posted In: CRIMINAL PROCEDURE

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New York City Administrative Code 10-133(b) (Unlawful Possession of Knives or Instruments), makes it illegal to possess a knife with a blade over four inches 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.

Unlawful Possession of a Knife is a violation, not a crime under the New York City Administrative Code. Although only a violation, a person accused of violating this section faces up to 15 days in jail and a fine of up to $300.
If you, a family member or friend receive a summons or are arrested for violating the New York City Administrative Code, take the matter seriously and contact an experienced New York Criminal Attorney.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: IN THE NEWS , WEAPONS OFFENSES

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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.

A note about out-of-state driver’s or individuals without a New York State License, you can still be charged under this section. VTL §511 makes it a crime to operate a vehicle if your privileges to operate a vehicle have been suspended or revoked. That means that even if you have never had a New York State Driver’s License if you fail to answer a New York summons or cause DMV to suspend your privileges for some other reason (like a New York DWI) your New York State driving privileges can still be suspended or revoked and if caught driving in New York you are subject to arrest.

The bottom line is, don’t ignore summonses, DMV notices or insurance issues. If you believe your license is suspended do not drive. Check with DMV or a New York lawyer who can check the status of your license or driving privileges. If you are charged with Driving with a Suspended or Revoked License get an attorney involved as early as possible so that you can get your privileges restored and get the best possible outcome.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: TRAFFIC

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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.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: TRAFFIC

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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

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: SPOTLIGHT ON COURTHOUSES

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