New York Criminal Attorney Blog

In our continuing effort to educate the public about important criminal issues and to keep our clients, friends and the public better informed about the cases Tilem & Campbell is involved with, we are pleased to announce the launch of our new "Media Page". The page can be accessed by either one of two methods from our Home Page; either by clicking on any of the video icons along the left hand side of the home page or by pulling down the the "About Us" drop down menu along the top of the Home Page and clicking "Media".

This page will be updated frequently and will contain all television appearances by any of the lawyers at Tilem & Campbell and perhaps in the future print media as well.

If you have any questions or comments, or would like to schedule a free consultation on any criminal law issue, please contact us by E-Mail or telephone at 877-377-8666.

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Posted In: IN THE NEWS

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Experienced New York traffic ticket lawyers know that generally, there are two possible defenses when one is charged with speeding in New York: (1) “I wasn’t speeding”; or (2) “I was speeding but I have an excuse”. (Keep in mind however, there is a third strategy which is not a defense and that is, “I was speeding but the officer can’t prove it”. The “they can’t prove it” strategy will be the subject of future blogs).

With regard to excuses, motorists issued speeding tickets come up with any number of excuses to justify why they were exceeding the speed limit. Generally, unless you have a verifiable pregnant woman in the car or an assailant with a gun to your head, you have no legal excuse. However, at least one court has held that exceeding the speed limit to avoid a suddenly slowing vehicle constitutes a sufficient “emergency” to absolve the motorist of a speeding charge.

In People v. Cataldo, 65 Misc.2d 286, 316 N.Y.S.2d 873, a 1970 case out of the Suffolk County First District Court, J. Colaneri found a motorist not guilty of speeding where the evidence showed that the motorist accelerated to avoid a vehicle that was “rapidly slowing down”. In so ruling, J. Colaneri relied upon the “emergency” justification defense found in Penal Law sec. 35.05(2) which states, in sum and substance, that criminal conduct in not criminal when it is necessary to avoid a public or private injury which is about to occur through no fault of the actor (i.e. the defendant did not cause the emergency situation). In Cataldo, J. Coleneri found that the defendant/motorist was justified in speeding to avoid colliding with the “rapidly slowing” vehicle.

As a defense attorney I love to see defendants win their cases. I love to see judges apply the law as it is written and follow the rules of evidence instead of simply operating as an extension of the prosecution. But even I have some doubts as to the reasoning behind the Cataldo decision. Clearly if the defendant needed to accelerate to avoid a “rapidly slowing” vehicle, the defendant was following too closely and further, was traveling at an imprudent speed. Therefore, the defendant in Cataldo was not entitled to the protections of the emergency defense because he created the emergency situation by tailgating and speeding.

If you have been charged with any traffic violation or traffic misdemeanor, contact Tilem & Campbell toll free at 1-877-DR-SUMMONS or visit us at www.DrSummons.com.

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Posted In: TRAFFIC

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As I have been discussing in previous blogs, the rationale behind the 100:1 powder cocaine to crack cocaine sentencing disparity has been proven to be unfounded and false. Yet another argument the New York criminal defense firm Tilem & Campbell is raising in one of our appellate challenges to the constitutionality of the sentencing disparity between crack cocaine and powder cocaine is that crack cocaine and powder cocaine are the same drug.

As observed by the United States Supreme Court, crack and powder cocaine are two forms of the same drug and they share the same active ingredient - cocaine hydrochloride. Kimbrough v. U.S. 128 S.Ct. 558, 566 (2007). Furthermore, numerous studies have shown that the physiological and psychotropic effects of crack and powder cocaine are the same, and the drugs are now widely acknowledged as pharmacologically identical.

For example, a 1996 study published in the Journal of the American Medical Association found analogous effects on the body for both crack and powder cocaine.

Similarly, Charles Schuster, former Director of the National Institute on Drug Abuse and Professor of Psychiatry and Behavioral Sciences, found that once cocaine is absorbed into the bloodstream and reaches the brain its effects on brain chemistry are identical regardless of whether it is crack or powder.

In fact, crack cocaine is made by taking cocaine powder and cooking it with baking soda and water until it forms a hard substance. This hard substance can then be broken into pieces (rocks) and sold in small quantities.

Whether it remains powder cocaine or is “baked” into crack cocaine, the fact remains that they are the same drug and produce the same effects on the body. There can be therefore, no rationale basis to punish crack cocaine offenses more severely than powder cocaine offenses.

If you would like a free consultation regarding any New York or federal drug offense or sentencing issue, feel free to contact Tilem & Campbell toll free at 1-888-ANY-CRIME or visit us on the web at 888ANYCRIME.COM.

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Posted In: CRIMINAL APPEALS , CRIMINAL PROCEDURE , NARCOTICS

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As I have previously discussed, Congress justified Draconian mandatory minimum sentences for federal crack cocaine offenses upon their mistaken belief that, among other things, crack cocaine was more dangerous than powder cocaine because it was believed to be more addictive and create more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular with teenagers; and that its low cost made it more accessible and popular.

These concerns and beliefs have proven false. As observed by Congressman Alcee Hastings (D Fl): “Rather than waging war on drugs, [the mandatory minimums for crack offenses] waged war on America's poor and minorities.” Rep. Hastings also noted that the crack mandatory minimums were “rooted in propaganda rather than empirical data.” (See Congressman Alcee Hastings’ website )

The reality is, the mandatory minimums are not being imposed on the “major” and “serious” suppliers of crack cocaine but instead the majority of crack cocaine defendants are small-scale, street-level dealers. The 100:1 ratio disproportionately impacts far more low-level traffickers than it does the intended targets of the ratio. As observed by the Supreme Court, “the 100-to-1 ratio can lead to the anomalous result that retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

Indeed, both the Sentencing Commission and the United States Supreme Court have acknowledged that real world experiences have shown us that the reasoning and assumptions that led to the creation of the 100:1 ratio have proven false.

Tilem & Campbell has presented the above arguments in an appeal currently pending before the Second Circuit Court of Appeals challenging the constitutionality of the crack v. powder cocaine disparity. We are arguing, among other things, that there is absolutely no rational basis to incarcerate those convicted of crack cocaine offenses (who are overwhelmingly African-American) significantly longer than those convicted of powder cocaine offenses (who are overwhelmingly Caucasian) involving similar weight.

If you or a loved one needs legal representation for an upcoming sentencing hearing, sentence appeal, or needs legal advise any any federal or New York criminal case contact one of the experienced criminal attorneys at Tilem & Campbell toll free at 1-888-ANY-CRIME or visit us on the web at www.888ANYCIME.com.

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Posted In: CRIMINAL APPEALS , CRIMINAL PROCEDURE , NARCOTICS

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New York criminal defense firm Tilem & Campbell is vigorously challenging the constitutionality of the mandatory minimum sentences for federal crack cocaine offenses set forth in the Anti-Drug Abuse Act of 1986 (ADAA). We currently have one appeal on this issue pending before the Second Circuit Court of Appeals and will be filing another appeal shortly.

The ADAA established a two-tier system of sentencing with 5 and 10 year mandatory minimum sentences for certain manufacturing and distribution offenses. Congress passed the 10 year mandatory minimum to combat “major drug dealers” while the 5 year mandatory minimum was for the “serious traffickers”. In reality, however, the mandatory minimums are weight driven. It is the weight of the drugs involved that controls with no regard for whether the defendant is a “major dealer” or “serious trafficker”.

The ADAA also established a 100-to-1 disparity between the distribution of powder cocaine and crack cocaine (21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B)). For example, distributing just 5 grams of crack cocaine (about a thimble full) carries a mandatory minimum five-year federal prison sentence. However, one must distribute 500 grams of powder cocaine to trigger that same five-year federal prison sentence. (21 U.S.C. § 841).

The absurdity of this disparity is even more apparent when discussing the 10 year mandatory minimum found in 21 U.S.C. § 841(b)(1)(A), (B). Distributing just 50 grams of crack cocaine (less that 2 ounces) triggers a 10 year mandatory minimum. However, it would take 5000 grams of powder cocaine or "5 kilos" to trigger the same 10 year mandatory minimum. That’s a staggering disparity which is not supported by facts, reasons or reality.

The staggering disparity between crack and powder cocaine sentencing can be better appreciated when the two sentences are compared side by side:

Federal Mandatory Minimum Drug Sentences for First Time Cocaine Offenders:

DRUG FIVE YEARS NO PAROLE 10 YEARS NO PAROLE
Crack Cocaine 5 grams (approx a sugar packet) 50 grams
Powder Cocaine 500 grams 5 kilos (5000 grams)

These mandatory minimums for crack offenses were passed because Congress mistakenly believed that crack was more dangerous than powder cocaine because it was thought to be more addictive and involve more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular amongst teenagers; and that its low cost made it more accessible. See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

As I will discuss in my next blog, these concerns and assumptions proved to be unfounded and not supported by the facts. In fact, 23 years of real world experience has shown us that there is absolutely no rational basis for sentencing crack offenses any differently than powder cocaine offenses.

If you are awaiting sentencing, want to appeal a sentence or have any other questions about an appeal issue, feel free to contact one of the experience federal criminal defense attorneys at Tilem & Campbell toll free at 1-888-ANY-CRIME for a free consultation or visit us on the web at 888ANYCRIME.COM

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Posted In: CRIMINAL APPEALS , CRIMINAL PROCEDURE , NARCOTICS

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Just 16 years after the passage of The Comprehensive Drug Abuse Prevention and Control Act of 1970 which all but eliminated harsh mandatory minimums for federal drug offenses, Congress reversed course and passed The Anti-Drug Abuse Act of 1986 (ADAA). The ADAA was passed by Congress during the media frenzy that followed the cocaine induced death of University of Maryland basketball star Len Bias. The ADAA established harsh mandatory minimum sentences for federal drug offenses involving “crack” cocaine (referred to as “cocaine base” in the federal statutes).

Congressional members used Bias’ high-profile death as a political opportunity to portray a “tough on crime” stance. However, Congress utterly failed to undertake any discussion or debate about the failings of the mandatory minimums found in the The Boggs Act of 1951and the Narcotics Control Act of 1956 (which I have discussed in previous blogs).
In fact, Sen. Specter noted that Congress “may be acting with undue haste” and Sen. Mathias stated that none of the members of the Senate “had an adequate opportunity to study this enormous package” and that the ADAA “did not emerge from the crucible of the committee process, tempered by the heat of debate.”

As I have discussed in prior blogs, the ADAA established Draconian mandatory minimums for relatively small quantities of crack cocaine while mandating much shorter sentences for an equal amount of powder cocaine. However, 23 years of experience has shown us that the fears that Congress used to justify these obscene mandatory sentences for crack offenses have simply not materialized.

Tilem & Campbell is currently challenging the constitutionality of the powder cocaine v. crack cocaine sentencing disparity in the Second Circuit Court of Appeals. We also anticipate filing another appeal shortly (also in the Second Circuit) arguing that the powder v. crack sentencing disparity violates African-Americans’ equal protection rights. Should you have a sentencing issue or appeal you would like to discuss with our attorneys, call 1-888-ANY-CRIME toll free or visit us on the web at 888anycrime.com

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Posted In: CRIMINAL APPEALS , CRIMINAL PROCEDURE , NARCOTICS

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“Switchblade Knife” is defined in New York as any knife that has a blade which opens automatically by hand pressure applied to a button, spring or other device within the knife’s handle. (For the exact definition of “Switchblade Knife” see NY Penal Law § 265.00(4)).

It is an “A” Misdemeanor to possess a switchblade knife (Penal Law § 265.01(1) – Criminal Possession of a Weapon in the Fourth Degree). However, it is not a crime to possess a switchblade knife if it is for use while fishing, hunting or trapping and you have a valid license to fish, hunt or trap issued pursuant to section 11-0713 of the New York Environmental Conservation Law (See Penal Law § 265.20(a)(6).

Although not stated in the statute, in order to be convicted in New York of illegally possessing a switchblade knife, you must “knowingly” possess the knife (See Model Jury Charge for Criminal Possession of a Weapon in the Fourth Degree (CJI 2d N.Y. Penal Law § 265.01(1); People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637).

For example, in People v. Wood, 869 N.Y.S.2d 401 (1st Dept. 2008), defendant’s conviction was overturned where the trial judge refused to instruct the jury that the prosecution had to prove that defendant knew the item he possessed was in fact a switchblade knife.

If you or a loved one have been charged with any New York weapons offense including illegal possession of switchblade knife, illegal possession of a pistol or possession of any other weapon, contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit us on the web at www.tilemandcampbell.com or www.888AnyCrime.com.

Posted by John Campbell | Permalink | Email This Post | Comments (1)

Posted In: CRIMINAL PROCEDURE , WEAPONS OFFENSES

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The City of Yonkers, New York is the largest, and perhaps most diverse city in all of Westchester County. Located at 100 South Broadway, the Yonkers City Court is a bustling Court that reflects the dynamic of the City of Yonkers. As an attorney based in White Plains, the Yonkers City Court is one of the Courts that has become a home away from home. The Court handles everything from the most serious unindicted criminal felonies (indicted felonies are transferred to the Westchester County Courthouse) to less serious misdemeanor criminal cases and a very busy traffic calendar to landlord-tenant cases and civil cases involving disputes of $15,000.

With a population of about 200,000 people, Yonkers is the fourth largest city in all of New York State. Located just north of the Bronx it is the literal gateway to New York City with major highways such as the New York State Thruway (I-87), the Sprain brook Expressway, the Cross County Parkway, The saw Mill River Parkway and Bronx River Parkway, all running through Yonkers. Needless to say Yonkers speeding tickets are the bread and butter of any traffic ticket lawyer in Westchester County and all types of traffic infractions and traffic misdemeanors pour through the Yonkers Courthouse.

With the Cross County Mall, Yonkers Raceway which now has a casino called Empire City, shopping areas throughout downtown and Central Avenue, numerous residential neighborhoods and industrial centers other crimes abound including shoplifting, drugs, grand larceny, guns, robbery, assault and domestic violence. Despite the volume, however, the Court runs well, moves fast and in many ways is a model of efficiency.

The Yonkers Court is located at 100 South Broadway. Parking can be tight so leave some extra time. The Court can be reached at: Phone: (914) 377-6326 and Fax: (914) 377-6395.

If you or a loved one has any business in the Yonkers City Court or in any other Court in Westchester County, please contact the law office of Tilem & Campbell, PC.

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Posted In: SPOTLIGHT ON COURTHOUSES

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A New York driver must drive at a "reasonable and prudent speed" and reduce his or her speed below the posted speed limit when necessary to do so. Notwithstanding the posted speed limit, you still must drive at a speed that is reasonable and prudent (VTL 1180(a)). Therefore, even if the posted speed limit is 65 mph, you must nevertheless reduce your speed if say for example, it is raining or foggy. Furthermore, you must also reduce your speed at a railroad crossing, when approaching and crossing an intersection, when you go over the crest of a hill, on winding roads, when a special hazard exists with respect to pedestrians or if weather or highway conditions require a reduced speed (See VTL 1180(c)). These statutes have been held constitutional. See People v. Lewis, 13 N.Y.2d 180, 245 N.Y.S.2d 1, 194 N.E.2d 831 (1963); People v. Nappi, 18 N.Y.2d 136, 272 N.Y.S.2d 347 (1966).

If you have been issued a speeding ticket anywhere in New York State including White Plains, New Rochelle, Harrison, Yonkers, Greenburgh or any other jurisdiction in New York State call Tilem and Campbell at 1-877-DR-SUMMONS (1-877-377-8666) or visit www.DrSummons.com, www.TrafficTicketExpress.com, www.WhitePlainsSpeedingTicket.com, or www.HarrisonSpeedingTicket.com.

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Posted In: TRAFFIC

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