New York Criminal Attorney Blog

At Tilem & Campbell, we often consult with and are retained by those facing or serving 5, 10 or 20 year federal statutory mandatory minimum sentences for cocaine base (crack) offenses. Many individuals mistakenly believe that the United States Supreme Court’s 2007 decision in Kimbrough v United States, 128 S. Ct. 558 struck down the statutory mandatory minimums for crack offenses. The decision did no such thing and has been widely misinterpreted as having struck down the federal statutory mandatory minimums for crack offenses as well as the 100:1 powder cocaine to crack cocaine ratio. In fact the Kimbrough case concerned a Booker issue – not a statutory mandatory minimum challenge. The Kimbrough decision held that the 100:1 ratio found in the United States Sentencing Guidelines is merely advisory; as are all of the Guidelines after Booker.

The Kimbrough decision held that a sentencing court may consider the 100:1 crack/powder cocaine disparity found in the Guidelines when determining a sentence. In Kimbrough, the defendant’s Guideline range was well above the statutory mandatory minimum. What the District Court did was consider the 100:1 ratio and its effect on the sentencing range. Based upon that consideration, the District Court, decided that the ratio resulted in an overly excessive sentencing range and sentenced the defendant to a sentence below the advisory sentence as calculated under the Guidelines – but above the 10 year statutory mandatory minimum.

However, the reasoning and discussion in Kimbrough established that the United States Supreme Court has now acknowledged that the fears that one time supported the 100:1 crack/powder sentencing disparity have proved unfounded and that crack cocaine and powder cocaine are the same drug and bring about the same physiological effects of the user. The decision also cited numerous Commission reports critical of the ratio and urging its abolishment.

For more information about the federal mandatory minimum sentences for cocaine offenses as well as Tilem & Campbell’s appellate challenges to such federal sentences, call 1-888-ANY-CRIME or visit www.888AnyCrime.com

Recently, Tilem & Campbell filed an appeal challenging the constitutionality of the federal statutory mandatory minimum sentences applicable to crack cocaine offenses and the 100:1 powder cocaine vs. crack cocaine ratio. The issues raised in the appeal will be discussed in future blogs as will the United States Supreme Court’s recent decision in Kimbrough v United States, 128 S. Ct. 558 (2007).

However, one must have a basic understanding of the federal statutory mandatory minimum sentencing statutes and how they apply to both powder cocaine and crack cocaine to understand the arguments against them as well as the Kimbrough decision. Germane to this discussion is an understanding of the often discussed 100:1 powder cocaine/crack cocaine ratio. It is this ratio that has resulted in crack offenders spending decades in prison while powder cocaine offenders convicted of offenses involving the same weight often spend less than two years in prison.

Basically, for sentencing purposes in the federal system, the relevant statute (21 U.S.C 841) treats one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, possession of just 5 grams of crack cocaine (about a thimble full) triggers a five year mandatory minimum sentence. However, it would take 500 grams of powder cocaine (1/2 kilo) to trigger the same mandatory minimum. (See 21 USC 841). Therefore, one who possesses what is clearly a personal use amount of crack cocaine (5 grams) faces the same sentence as a major dealer of powder cocaine.

Indeed, 500 grams of powder cocaine becomes 1000 grams (or more) after being “cut” for resale. One thousand grams of powder cocaine equals approximately 36 ounces of powder cocaine. Therefore, the hapless crack junkie caught with what is clearly a personal use amount of crack cocaine (5 grams) must be sentenced to the same mandatory 5 year minimum that a major powder cocaine supplier would face for an offense involving 100 times the quantity.

The lunacy of the mandatory minimum crack sentences is even more apparent when dealing with just 50 grams of crack cocaine; just under 2 ounces. Offenses involving fifty grams of crack cocaine trigger a mandatory minimum 10 year sentence. However, under the 100:1 ratio, it would take 5000 thousand grams of powder cocaine (5 kilos) to trigger the same 10 year mandatory minimum. (See 21 USC. § 841(b)(1)(A)(II) (triggering 10 year mandatory minimum for offenses involving 5 kilograms (5000 grams) of powder cocaine). Recall, 50 grams of crack is just under 2 ounces (56 grams would be 2 ounces). However, 5000 grams of powder cocaine is approximately 179 ounces. If cut for resale, that 5000 grams of powder cocaine could easily become 10,000 grams; or about 360 ounces. That is major supplier weight.

Because crack cocaine is more prevalent in minority communities, especially African-American communities, African-Americans and other minorities are facing decades in prison while their white counterparts who deal in powder cocaine (which is the same drug) often times face 2 years or less. This racial disparity in sentencing for offenses involving what is the same drug has been, and will continue to be, the basis of equal protection challenges to the ratio. This will be discussed in future blogs.

The above is just a brief summary of a very complex issue. I will be discussing this issue in great detail in coming blogs including a detailed discussion about Tilem & Campbell’s federal appellate challenges to the crack cocaine mandatory minimums. For further information regarding sentencing issues or other criminal matters, contact Tilem and Campbell at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

Tilem & Campbell would like to wish our friends, clients, colleagues and loyal readers of this blog a very happy, healthy and successful holiday season and 2009. During this time of year it is important to remind everyone to be careful on the roads. As we celebrate with our families, friends and colleagues, certain things bear repeating:

Do not drink and drive. As discussed in our March 3, 2008 blog, even small amounts of alcohol can result in an arrest and charge for DWI or DWAI.

Refusing to take a breath test can result in the revocation of your driver's license for one year whether or not you are convicted of DWI or DWAI. See our March 17, 2008 blog on refusal to submit to a chemical test in New York.

If you refuse to submit to a chemical test in New York, that fact may be used against you as evidence in your criminal case for DWI or DWAI. See the above March 17 blog.

Do not ignore traffic tickets or traffic fines. Doing so can result in your being charged with Driving with a suspended (or revoked) driver's license in New York (Aggravated Unlicensed Operation) which is crime in New York State. Please see our May 16, 2008 Blog on Driving with a suspended or revoked license.

If you are issued traffic summons or traffic tickets in New York keep in mind that a conviction for most moving violations carry points on your license in addition to the fines. If you receive six points on your license you will be assessed a driver's assessment fee from the New York State Department of Motor Vehicles. This fee will be $100 for six points for three years plus $25 per year for each point over six. In addition, if you receive eleven points your license will be suspended and three speeding convictions in 18 months can result in your license suspension. Do not simply pay tickets indiscriminately. Contact an experienced traffic court attorney. An experienced attorney can often negotiate a substantial reduction of points and/or challenge the tickets.

Do not mix prescription pills (or illicit drugs) and driving. See our November 9, 2008 blog.

With a little commons sense lets all have a safe and healthy holiday season.

On the front page of today's New York Times, the Times is reporting a sharp increase in shoplifting and shoplifting arrests across the Country. Citing several factors including the weak economy the Times is reporting that shoplifting arrests are up ten to twenty percent over last year.

At the New York criminal defense firm, Tilem & Campbell we have also seen the increase in New York shoplifting cases through telephone inquiries to the firm, cases on which the firm has been retained, and cases we see in Court. Here in White Plains, New York, home to several shopping malls, the increase is clearly visible in the cases that the White Plains Court is handling.

It is important to remember that shoplifting in New York can result in several criminal charges including Petite Larceny and Criminal Possession of Stolen Property in the Fifth Degree both class "A" misdemeanors punishable by up to one year in jail. If the property stolen retails for more than $1000 the charges can be Grand Larceny and Criminal Possession of Stolen Property In the Fourth Degree, both felonies punishable by up to four years in prison.

In addition, here at Tilem & Campbell, we have heard reports of abusive store security guards lying to people detained for shoplifting and holding them for long periods of time before the Police are called. The store security guards are generally not police officers and therefore are not bound by the same rules a police officers.

New York shoplifting cases are extremely serious and can lead to severe consequences including a permanent criminal record. Here are a few tips based upon my extensive experience in handling shoplifting cases. While shopping:
1. Do not put any items inside any pocket, bag or clothing, if you cannot carry everything get a basket or cart.
2. Do not leave the store with items even if it to use the cell phone or get better reception and you intend to pay for the items.
3. When going from one store to another with purchased items, make sure you save the receipt.
4. If stopped by store security, do not make any admissions, do not apologize. Be cooperative but insist that you be able to speak toa a parent, guardian or lawyer.

If you are arrested for a New York shoplifting case, a New York Petit Larceny case or a New York Grand larceny case treat the matter with the seriousness that it requires. Contact us or any experienced criminal defense lawyer who handles these types of cases.

As discussed in the previous blog, under certain circumstances, all occupants of a vehicle can be presumed to possess drugs, guns or other weapons found within the vehicle. We also discussed the effect of the presumption on the New York criminal case and went into some detail about the presumption as it applies to New york gun cases and New York Weapon cases.

Now we discuss the vehicle presumption as it applies to New York controlled substance cases. With certain drug possession offenses carrying a mandatory minimum of eight years, the stakes are very high when traveling in a vehicle with someone who may possess illegal drugs. Similar to the gun presumption, New York’s drug presumption applies to all vehicles except public buses (it applies in stolen vehicles unlike the gun presumption). According to a strict reading of the statute, the drug presumption applies to all persons in the vehicle at the time the drugs are found. Since generally the police take all of the occupants out of the vehicle, I would argue that in such a case the presumption does not apply.

Like the gun presumption, the drug presumption does not apply in three circumstances. The presumption does not apply to a cab driver or livery cab driver. It does not apply if a person in the vehicle is authorized to possess the controlled substance (has a prescription for the drug) and the drug is in the same packaging as when he received it. The presumption also does not apply when the drugs are found on the person of one of the occupants.

It is also important to remember that since the presumption only applies to controlled substances and marihuana (or marijuana) is not a controlled substance under New York Law, the presumption does not apply to marihuana.

If you are charged with any New York narcotics offenses contact one of the experienced criminal defense lawyers at Tilem & Campbell.

New York Criminal Law establishes a presumption that all people in a vehicle are presumed to possess either drugs or guns that are found within the vehicle. What that means is that in New York each and every person inside a car will generally be charged with gun possession or drug possession for contraband that is found anywhere in that car, regardless of where the drugs or guns are found. (With certain exceptions, some of which are discussed below.)

NEW YORK GUN POSSESSION PRESUMPTION

In the case of gun, with possession of a loaded gun in New York carrying a mandatory minimum of three and one half years in prison, you are taking a tremendous chance driving with someone who may have an illegal gun. The New York gun presumption applies to all vehicles except stolen vehicles and public buses and applies not only to firearms but other weapons. The presumption has three major exceptions. The presumption does not apply if the weapon is recovered on the person of one of the occupants of the vehicle. It does not apply to the driver of a cab or livery cab and the presumption does not apply if one of the occupants has a license to carry the weapon concealed.

The presumption, however, does apply if one of the occupants has the firearm or other weapon on his person and discards it on the floor of the vehicle as the police are pulling over the vehicle. This situation can arise quickly and put everyone in the vehicle at risk under the presumption.

To learn about New York's vehicle presumption as it applies to New York drug cases click here.

EFFECT OF THE PRESUMPTION

It is important to remember that both the drug and gun (or weapon) presumptions under New York law are rebuttable presumptions. That means that although there is a presumption that all occupants of the vehicle are presumed to possess the contraband, evidence can be introduced to show that in fact one or more of the occupants did not possess the contraband. In other words, the presumption does not relieve the prosecutor of his or her burden to prove every element of the crime beyond a reasonable doubt. It also gives the person charged under the presumption automatic standing to challenge the constitutionality of the police conduct. That means that it gives a person charged under a presumption the right to seek suppression of evidence that they might not otherwise to be able to challenge.

So if you or a loved one are charged with a New York weapon offense or a New York gun offense under New York’s gun presumption or a New York Controlled Substance offense under New York’s controlled substance presumption, contact an experienced New York criminal defense lawyer who has experience in these types of cases. Contact Tilem & Campbell for any questions about New York criminal matters.

Imagine you are laying in intensive care in a New York City hospital awaiting a life-saving heart transplant. Without the transplant, you will die. Now imagine a donor heart becomes available; it is flown in by helicopter as the members of your transplant team are notified to head to the hospital. The problem is, the surgeons and other specialists are not permitted to utilize red emergency lights or disobey certain traffic laws to speed their trip to the hospital even though your life hangs in the balance.
One would think that if an officer pulled over a surgeon for speeding on his or her way to a hospital for a medical emergency that the officer would escort the doctor to the hospital. Indeed, officers are taught that preserving life is always their first priority. Unfortunately, I have heard far too many complaints from doctors pulled over for speeding on their way to an emergency who, instead of receiving an escort from the officer, were delayed while the officer wrote a speeding ticket. Something is very wrong with a system that rightfully allows the Emergency Medical Technicians (paramedics) who drive the ambulance the dying patient is in to disregard certain traffic laws and regulations (VTL 1104) but does not extend the same privileges to the doctor who will perform those life saving procedures. Indeed, even sanitation patrol vehicles may disregard certain traffic laws and utilize emergency lighting and sirens. In other words, glorified garbage men have more priority than doctors in route to save a life. (See VTL 101 & 1104).
However, there might be legal way to classify a doctor’s vehicle as an authorized emergency vehicle thus allowing him or her to disregard certain traffic rules and regulation and to also utilize red emergency lighting. In People v. Levy, 188 Misc.2d 103, 727 N.Y.S.2d 248 (2001), the Appellate Term for the Second Department held that a volunteer ambulance service member’s vehicle qualified as “emergency ambulance service vehicle” as defined in VTL 101 because the defendant produced uncontroverted proof that the vehicle was affiliated with a volunteer ambulance service. Specifically, the defendant produced a dashboard placard showing that his vehicle was affiliated with a local private ambulance service.
Therefore, one way for doctors to legally equip their vehicle with emergency lighting and disregard certain traffic regulations in the event of an emergency is to associate their vehicle with the ambulance service operated out of their hospital or a private ambulance service operated in the area of their hospital or other medical location. One should not do this however, without first consulting with an experienced traffic court attorney that can review the law in more detail with them.
If you have received a ticket for any traffic violation/crime, such as speeding, contact Tilem & Campbell toll-free at 1-877-DR-SUMMONS (1-877-377-8666) or visit us at www.DrSummons.com.

In previous blogs I discussed the reduced speed limits in work zones as well as the definition of a work area. As discussed, many White Plains speeding tickets are issued in the work zone along I-287. Much of the highway work is done by members of The Laborers' International Union of North America (LIUNA) of which I am a member in good standing. Prior to becoming a criminal attorney I worked through Local 731 of LIUNA and to this day I still pay my monthly dues and carry my “card”.

As we approach and pass through construction zones, all of us have seen flagpersons either redirecting the flow of traffic or advising oncoming traffic of hazards and the need to slowdown. Basically, a flagperson is one employed by the state, municipalities, local authorities, public authorities including public utility companies or individuals working for companies under contract with such state agencies who have been assigned to direct and control traffic on public highways in connection with any construction or maintenance work. A flagperson is also one employed to direct traffic at railroad crossings and who has been authorized to direct traffic in connection with escort vehicles operating on a public highway (See VTL § 115-b for the exact definition of “flagperson”).

I have worked as a flagperson and I can state from experience that it is one of the more dangerous jobs. The flagperson is generally in the line of traffic and most drivers don’t’ realize that a flagperson has the same authority as a police officers in terms of directing traffic. (See VTL § 1102). Lately, however, most municipalities now station police officers at construction zones on local streets to help slow down the traffic flow. Nevertheless, a motorist must comply with a lawful direction or order of a flagperson whether a police officer is present or not. (VTL § 1102).

If you have any questions about any traffic related matter including White Plains speeding tickets, feel free to call 1-877-DR-SUMMONS (1-877-377-8666) or visit www.DrSummons.com or www.WhitePlainsSpeedingTicket.com.

If you are charged with a New York gun or New York firearm offense it is imperative that your criminal defense attorney be completely familiar with the legal definitions of relevant terms. These definitions are found in New York Penal Law § 265.00. In this blog I will summarize several legal definitions applicable to Articles 265 and 400 of the New York State Penal Law. For more information visit our website.

FIREARM SILENCER – PENAL LAW § 265.00(2)

Generally, a firearm silencer is anything that silences, lessens or muffles the sound of the firing of a revolver, gun, pistol or other firearm (for the exact definition of “firearm silencer” see NY Penal Law § 265.00(2).

FIREARM – PENAL LAW § 265.00(3)

Several guns fall under the New York State definition of “firearm”. A revolver or pistol, as well as a shotgun having one or more barrels less than 18 inches in length are all considered firearms for purposes of Articles 265 and 400 of the Penal Law. A rifle having one or more barrels less than 16 inches in length is also considered a firearm. Furthermore, any shotgun or rifle altered, modified or otherwise having a length less than 26 inches is considered a firearm as is an assault weapon. (For the exact definition of firearms see Penal Law § 265.00(3)). With regard to rifles and shotguns, the length of the barrel of a rifle or shotgun is the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the rifle or shotgun is cocked. With regard to an altered or modified shotgun or rifle, the overall length of such a firearm is the distance between the extreme ends of the weapon. (See Penal Law § 265.00(3)). Finally, an antique firearm in not included in the definition of a firearm.

Several of the terms used in the definition of firearm are themselves individually defined in Penal Law § 265.00. For example, “Rifle”, “Shotgun”, “Antique firearm”, and “Assault weapon” are separately defined and therefore a review and understanding of these terms is imperative to a full understanding of the term “firearm”. In future blogs I will discuss these term in more detail.

If you or a loved one has been charged with any firearm or weapons offense, put the experience of a former firearms trafficking prosecutor to work for you. Feel free to call 1-888-ANY-CRIME for a free telephone consultation or visit www.HandGunAttorney.com or www.888AnyCrime.com

In the introduction of my series of blogs pertaining to firearms, gun possession and other weapons charges, I discussed the need for experienced and competent legal representation. I also explained that Tilem & Campbell’s Senior Partner Peter Tilem was formerly an Assistant District Attorney in Manhattan and worked extensively in the Gun Trafficking Unit.

In this blog I will discuss the legal definition of a “machine gun”. Offenses pertaining to firearms and other dangerous weapons are found in Article 265 of the New York State Penal Law. Section 265.00 of the Penal Law (which is the first section of Article 265) contains the definitions for terms used in Article 265 as well as Article 400 of the Penal Law.

MACHINE GUN – NY PL § 265.00(1)
For purposes of Article 265 and 400 of the Penal Law, a machine gun means any weapon irregardless of its description, size or name, whether loaded or unloaded from which bullets or shots may be continuously and rapidly fired with one continuous pull of the trigger. This definition includes a sub-machine gun. (For the exact definition of a machine gun see NY PL § 265.00(1))

Recently in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the United States Supreme Court found unconstitutional on Second Amendment grounds a District of Columbia’s ban on one’s possession of a firearm in one’s home. However, the Supreme Court indicated that the Second Amendment does not protect firearms not typically possessed by lawful individuals for lawful purposes. Accordingly, the Heller, decision noted that machine guns, M-16s and short-barrel shotguns were not protected by the Second Amendment.

However, unlike the definition of a “firearm” (discussed in a future blog) an interesting point about the definition of a machine gun is that it must be operable. Indeed, to paraphrase the definition, a machine gun must be a weapon from which a shot or number of bullets may be rapidly or automatically discharged. (NY PL § 265.00(1)).

In future blogs pertaining to machine guns, I will be discussing some of the charges one might face for possession of an operable machine gun (Penal Law § 265.01(2)) as well as possession of an operable machine gun with intent to use it unlawfully against another person. (Penal Law § 265.03(1)(a)).

As always, if you have been arrested or think you might be wanted for any type of firearm, gun, or other weapons charge, contact Tilem & Cambpell toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com or www.HandGunAttorney.com.