New York Criminal Attorney Blog

In a landmark decision that was closely watched by New York criminal lawyers and attorneys throughout the Country, The United States Supreme Court struck down Washington DC's ban on handguns. As discussed in our earlier March 19, 2008 blog, the decision is monumental because it marks the first time the Court has recognized that the right to "keep and bear arms" applies to individual citizens and not only State Militias. The fact that the Supreme Court now recognizes an individual right raises many questions about the legality of the gun laws throughout New York and the North East.

To me, as an attorney who was a member of the firearms trafficking unit of the District Attorney's office in Manhattan and has handled numerous gun cases throughout my career, this decision raises more questions than answers. For example, while the Court has prohibited a total ban on guns, to what extent will Courts allow "Reasonable Restrictions" on the ownership of handguns? Will the Courts permit onerous licensing and registration laws to continue? To what extent does this effect individuals facing the mandatory minimum three and one half year sentence for those charged with possession of a loaded firearm in New York?

At Tilem & Campbell we are continuing to analyze the decision with an eye toward helping our clients navigate the maze of New York gun laws. A further blog on this topic in the coming weeks will further discuss the ramifications of the decision.

New York State traffic ticket fines can be expensive. Some small towns actually use traffic summons fines as a revenue source to help lower the taxes of the local residents. New York State Speeding fines can be among the most expensive traffic violations with fines for one mile per hour over the speed limit costing as much as $150 for a first offense. In addition, each traffic violation in New York State carries a mandatory New York State surcharge of either $50 or $55 depending on the Court. Even for a first conviction speeding 31 or more miles over the limit carries a fine of up to $600 for the first offense and for a third offense in eighteen months (which carries a mandatory revocation of the motorist’s driver’s license) the fine and surcharge can exceed $1000.

Aside from speeding fines, other traffic violations such as passing a red light and reckless driving can be very expensive and it is not uncommon for a single traffic ticket to cost more than $200 for the fine and surcharge.

In addition to the exorbitant fines levied in New York Courts for traffic summonses, New York has a point system that insurance companies and the New York State Department of Motor Vehicles (DMV) use to assess additional fees and surcharges. See point chart at trafficticketexpress.com.

The bottom line is that New York Traffic Violations can get very expensive. If you have received a traffic ticket, don’t simply pay it without knowing your rights and the potential consequences. Get the facts at trafficticketexpress.com or contact 1-877 DR SUMMONS.

Local criminal defense attorneys have been noticing an increase in mortgage fraud cases in the New York City and Westchester County areas including White Plains. Over the last several months more than 400 people nationwide have been arrested by federal authorities in a crackdown on mortgage fraud. Those arrested include two former Bear Stearns executive. The Justice Department has been tenaciously pursuing “Operation Malicious Mortgage” in an effort to curb an ever increasing mortgage fraud problem that threatens the housing market as well as the economy. Mortgage Fraud is defined as a material misstatement, misrepresentation, or omission relied upon by an underwriter or lender to fund, purchase, or insure a loan.

Mortgage fraud (and related offenses such as falsifying business records) is one of the fastest growing white collar crimes in the country. There are several methods by which mortgage fraud is committed. The most common methods include inflating the borrowers’ income and inflating the assessed value of the property. Many times, a borrower will apply for a “no income check” loan and then illegally claim an inflated income on the loan application. In other instances, the borrower will work with unscrupulous appraisers who illegally overvalue the property so that the borrower can obtain a larger loan. This type of mortgage fraud is referred to as “Fraud for Property” as opposed to “Fraud for Profit”.

A Fraud for Property case typically involves one applicant who makes a material misrepresentation on his or her loan application in an effort to secure the loan. For example, the would be homeowner inflates his or her income, doesn’t list all of his or her debts, overstates his or her employment history or outright lies about being employed and/or lies about the source of the down payment. Typically, Fraud for Property cases involve borrowers who don’t intend to defraud the lender and truly believe they can repay the loan. However, this type of fraud makes up about 20 percent of all mortgage fraud cases. The problems arise when the borrower can’t make the payment.

Of course, the banks are happy to make these loans as long as they are paid back. When a borrower defaults, however, it is the bank that many times urges the authorities to pursue criminal charges. The banks, however, must bear some responsibility here. Why make a no-come check loan? To charge higher interest; that’s why. And certainly the loan officers must often know, or even encourage, borrowers to fib a little. In fact, don’t most borrowers just sign where they are told? How many borrowers really read the documents? Many borrowers are often coached by the loan officers and real estate brokers. Therefore, the lenders enable Fraud for Property cases by not carefully vetting the potential lender, by making no-income check loans and by looking the other way as their loan officers coach the borrowers on how to fill out the application. Then the bank collects on high interest loans but, once the borrower defaults, they want him or her prosecuted.

Future blogs will discuss “Fraud for Profit” as well as charges related to mortgage fraud such as falsifying business records, identity theft, larceny and criminal impersonation. If you have been charged with mortgage fraud or any other related offense in New York City, Manhattan, Bronx, Brooklyn, Queens, White Plains, Pelham, Pelham Manor, New Rochelle, Larchmont Westchester County or anywhere in the New York downstate area, contact Tilem & Campbell, PC for a free consultation.

If you have been convicted of an offense in New York or elsewhere that triggers New York State’s sex offender registration laws, your criminal defense attorney must be familiar with the New York Sex Offender Registration Act (hereinafter "SORA"). Registration as a sex offender in New York is governed by Article 6-C of the New York Correction Law. Article 6-C is referred to and cited as the Sex Offender Registration Act. NY Corr. Law 168. The New York State Legislature's passage of SORA brought New York into compliance with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (hereinafter the Wetterling Act) (42 U.S.C.A. ' 14071). Any state that failed to comply with the Wetterling Act would lose ten percent of its Omnibus Crime Control and Safe Streets Act funding. 42 U.S.C.A. 14071(g)(1)(A).

Under the Wetterling Act, the United States Attorney General shall establish guidelines for State programs that require a person who is convicted of a criminal offense against a minor or of a sexually violent offense or who is considered a sexually violent predator to register a current address with the local chief law enforcement officer.. 42 U.S.C.A. ' 14071(a)(1). One required to report in one state must inform that state when they move to another state and must also inform their new state of residence that they were required to report in their old state. The state they are leaving must also have procedures in place to inform the state the offender is moving to that the offender was required to register in their state. 42 U.S.C.A. ' 14071(b)(5).

The Wetterling Act also set forth guidelines establishing the length of time an offender must register for. The length of registration is either 10 years or life depending on the offense. The registration period commences on the date the offender is either released from incarceration, placed on parole or placed in supervised release. 42 U.S.C.A. ' 14071(b)(6).

The list of registerable offenses under SORA is quite lengthy and will be discussed in a future blog. Suffice it to say that New York can and does make mistakes about who must register. In addition, your level as determined by the Court, can greatly impact your life. If you are charged with any sex offense in New York or are moving to New York and are currently registered in the state where you currently live, consult an experienced New York Criminal Lawyer familiar with New York’s Sex Offender Registration Act.

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.

Mr. Tilem relentlessly fought the case by attacking the credibility of the police and the warrantless search of the apartment. In the end after suppression hearings were completed Mr. Tilem discovered that the police officers were interviewed by the New York City Civilian Complaint Review Board and that the interviews were tape recorded. Those tapes had not been turned over to Mr. Tilem who obtained copies and convinced the Court to allow him to reopen the hearing and cross-examine the police officer with his prior taped interviews.

When the case was finally ready to go to trial yesterday, the King’s County District Attorney’s Office moved to dismiss the case because they felt they could no longer prove the case. According to Mr. Tilem’s review of the case, there were just too many inconsistencies revealed during the cross-examination of the Police Officer at the suppression hearing.

The client, who originally was offered a plea bargain of 1-3 years in State Prison when he was represented by a Court appointed lawyer was ecstatic walking out of Court yesterday. Yesterday the Judge dismissed all charges including the charge of Driving with a Suspended License and sealed the record of arrest. The client was needless to say ecstatic walking out of Court and ending his nearly two year nightmare with the New York Criminal Justice system.

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.

Scott then filed an Article 78. While preparing Scott’s Article 78 papers, his attorney learned that several portions of the tape of the hearing were blank. One witnesses’ testimony was cutoff after only two minutes and another inmate’s testimony was not recorded at all. Because of the problem with the tape, prison officials conceded that reversal was required.
The issue in Scott then became whether the guilty findings should be reversed and the case remanded for a new hearing or whether the guilty findings should be reversed and expunged without a remand for a new hearing. The Scott Court agreed with the Petitioner and ordered that (1) the guilty findings be reversed and annulled; (2) all references regarding the proceeding expunged from Petitioner’s departmental and institutional files; and (3) all lost good behavior allowances be restored.

The Court then opined that the failure to record the hearing “violate[d] one of petitioner’s fundamental due process rights and not merely a procedural right.”

If you are an inmate who was found guilty at a prison disciplinary hearing, the very first thing you should do is immediately obtain a copy of the tape of the hearing. If it is blank or if you cannot understand what is being said (inaudible), you should raise this in your administrative appeal. Get a New York lawyer or New York law firm involved in the case as early as possible.