New York Criminal Attorney Blog

In March 2010, Tilem & Campbell senior partner Peter H. Tilem took a passing a steady red light summons to trial in Ardsley Village Court here in Westchester County. The offense was videotaped by the video camera behind the patrol car's rear view mirror. Yesterday, Ardsley Village Justice Walter Schwartz issued a written decision finding the motorist not guilty and dismissing the ticket.

The issue raised at trial by Mr. Tilem is under what circumstances a police officer may issue a ticket for passing a red light when the police officer does not view the same traffic light as the motorist but rather views that the light is green in the perpendicular direction. May the police officer infer that the light facing the motorist is red? It turns out that the answer is no, the Officer may not reach that inference and rather would be required to examine the light to make sure it was working properly.

In the Ardsley case tried last month, the police officer never inspected the light but rather testified in very conclusory terms that the light was "working properly." In addition, the police officer attempted to bolster his case by claiming that he saw the shadow of the red light from his angle, but that testimony was called into question when he admitted, during cross-examination by Mr. Tilem, that the weather was clear, that it was mid-day and that the cylinders over the lights were designed to prevent motorists from seeing the light from the side and becoming confused.

Justice Schwartz's decision in the case was consistent with a whole line of decisions on this topic from Courts dating back to as early as 1960.

Red light tickets carry a fine of up to $450 plus an $85 surcharge and 3 points on your license. They should be taken seriously since many insurance companies take them seriously. If you, or anyone you know has been issued a summons for any moving violation, take it seriously. Contact one of the lawyers at Tilem & Campbell or visit us on the web at drsummons.com.

Many times police will encounter a vehicle with someone sleeping in the driver’s seat. This often leads to arrests for DWI related charges. The issue in such a situation is whether the police may approach that vehicle, awaken the driver and thereafter ask the driver to exit the vehicle. As with virtually all issues associated with stops, seizures and searches, there is no set answer. This issue is decided on a case-by-case basis taking several factors and variable into account.

In People v. May, 81 A.D.2d 805 the police encountered a parked vehicle in New York City with the driver slumped over the steering wheel. The keys were in the ignition but the car was not running. One of the officers knocked on the window and awakened the defendant. The defendant’s reactions were slow and his speech was slurred. The officer asked defendant to exit the vehicle and while defendant was doing so, a gun fell to the ground. The trial court held that the police were allowed to approach the vehicle and check on the occupant/defendant but that the police were not justified in asking defendant to exit the vehicle because they had no basis to suspect he was involved in criminal activity or was violating the Vehicle and Traffic Law.

The Appellate Division reversed finding that the officers’ conduct was not the product of mere whim, caprice or idle curiosity, but was instead based on specific and articulable facts such as the fact that defendant was slumped at the wheel with the key in the ignition and, when he was aroused, his speech was slurred and his movements were slow. Considering the original approach of the vehicle was legal, in these circumstances, the police could properly ask defendant to step out of the car and display his license and registration.

For more information about this and other New York criminal law issues, or if you are currently charged with any offense such as Drug Charge or New York Gun Offense, call us toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In New York, a stop of a vehicle on a public roadway is a seizure and must be based upon reasonable suspicion of criminal activity or a violation of the Vehicle and Traffic Law. People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67 (1975). Many times, a vehicle stop is made because the vehicle or its occupants match the description of a suspect wanted in connection with an offense. But what if the only identifying feature known about the suspect is his or her race? Is it enough to stop an individual simply because his or her race matches that of a wanted suspect?

The answer is no. Many times race does play a role in the determination of reasonable suspicion, since witnesses and victims will often describe suspects by their skin color. (see, generally, Johnson, Race and the Decision to Detain a Suspect, 93 Yale LJ 214). A suspect’s race is “a characteristic which may properly be used as one element of identification”. Franklin v State, 374 So 2d 1151, 1154 (Fla). Indeed, race is “an identifying factor which . . .assists the police in narrowing the scope of their identification procedure.” United States v Collins, 532 F2d 79.

A person’s race, however, cannot serve as the sole basis for reasonable suspicion. The New York Court of Appeals has held that ethnic identity alone is an insufficient basis upon which to premise reasonable suspicion. People v George T., 39 N.Y.2d 1028 (1976). Therefore, it is improper for the police to stop someone simply because they are the same race as the suspect even where an individual of one race is seen is a neighborhood inhabited primarily by members of another race. People v. George T. supra.

If you have been charged with any offense in New York and feel the reason the police stopped you was because of your race, evidence seized as a result of that stop may be suppressed. In other words, it may not be allowed to be used against you at trial. For more information, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

The number one concern of parents/guardians who find out they are the subject of a child protective services (CPS) abuse and/or maltreatment (neglect) investigation is whether CPS can remove their children from their home. To summarize, as I wrote in my previous blog, your child can be taken without a court order by CPS when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s health or life and there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417).

However, what many people don’t realize is that hospitals and other similar institutions can hold your child under certain circumstances. New York Soc.Serv. Law § 417(2) authorizes hospitals and other institutions to hold your child for twenty-four hours if “the facts so warrant.” The “imminent danger” necessary for CPS to remove your child is not necessary for a hospital to hold your child for twenty-four hours.

The authority for a hospital to hold a child for twenty-four hours is much broader than the authority granted CPS to remove a child from his or her parents/guardian since “imminent danger” need not exist. This “twenty-four-hour hold” period gives hospitals time to contact CPS and hold the child until a CPS investigator can arrive. It prevents a parent/guardian from simply leaving with the child where it is apparent to that parent that hospital medical staff has concerns about abuse and/or maltreatment (neglect). A hospital might hold a child when the child is brought in with suspicious injuries indicative of abuse or excessive corporal punishment.

And while this authority granted to hospitals and other similar institutions is referred to a as a “twenty-four hour hold”, in reality, the child can be held until the next regular weekday session of the appropriate Family Court. Therefore, if a hospital decides to hold a child on a Friday night, the hospital is authorized to hold that child through Monday morning.

If you are the subject of a Child Protective Services or Administration for Children’s Services investigation involving allegations of child abuse and/or maltreatment (neglect), contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com

Our firm represents many parents and guardians who are the subject of child abuse and/or maltreatment (neglect) investigations throughout New York City, Westchester, Rockland, Dutchess, Putnam and other downstate counties. The first question almost everyone who is the subject of such an investigation asks is: “Can they take my kids?”

Your child can be taken without a court order by the police, child protective services and even you doctor when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s life or health and they believe there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417). Therefore, before your child can be removed, there must exist an imminent danger to the child’s life or health and not enough time to obtain a court order. The person who removes a child from the home must make every reasonable effort to inform the parent or guardian where the child has been brought. (See NY Fam. Ct. Act §1024(b)(ii)).

The New York Court of Appeals has interpreted section 1024 of the Family Court Act strictly thus limiting the practice of emergency removals. See Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004). It is not enough that the child “appear” to be in imminent danger; the child must in fact be in imminent danger. This eliminates any polices where Child Protective Services err on the side of “safety” and remove as matter of course.

Emotional harm or the risk of emotional harm will almost never be a sufficient reason for the emergency removal of a child. Nicholson Some example which could result in removal would be where the parents were assaulting the child; the child was not being fed; the child was not being provided shelter or needed medical care; or the child was left alone at a young age.

If your child has been removed or if you are the subject of a Child Protective Services investigation, contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.