New York Criminal Attorney Blog

Westchester Journal News Publishes Names and Addresses of Licensed Gun Owners Now We Publish The Reporter's Name and Address

2012-12-26T15:44:11Z

As we already reported in an earlier blog, earlier this week Westchester Journal News Reporter Dwight R. Worley thought it was news worthy to publish the names and addresses of all licensed gun owners in Westchester and Rockland Counties. Under the First Amendment that is his right. However Dwight R. Worley also has a home address and he apparently has a licensed Smith & Wesson .357 magnum revolver at that address. We thought that the old expression "what's good for the goose is good for the gander" was perfect for just this situation, so here it is:

Dwight R Worley
23006 139 Ave
Springfield Gardens, NY 11413

(718) 527-0832

GUN OWNERS OUTED BY LOCAL PAPER

2012-12-23T19:44:21Z

Firearms defense firm Tilem & Campbell is very unhappy to report that a local newspaper has outed local law-abiding gun owners. In the modern day equivalent of the scarlet letter the Journal News has published an article in today's paper with an interactive on-line map that discloses the names of addresses of all law abiding gun owners in Westchester and Rockland Counties. The information was obtained by a Freedom of Information law request to the County clerks of each county.

Exactly the point of the article is not clear but is an apparent attack on law abiding gun owners who may face consequences at their work or in social circles now that their ownership of firearms has been publicized. The map also appears to have the names and addresses of several sworn police officers who for obvious reasons generally keep their residence information a secret. The article, an apparent reaction to the tragic shooting in Newtown, Connecticut, ironically puts everyone in danger in that it tells would be murders, terrorists, psychos and other people who are inellegible to purchase guns lawfully, exactly where they can steal them.

The basis for such a publication unfortunately has its basis under New York law. No civilian may lawfully purchase or possess a firearm in New York without a permit issue under Penal Law § 400.00 which defines the types of gun license in New York and the rules for issuing them. Penal Law § 400.00(5) specifically requires the filing of all approved applications and goes on to state: "The name and address of any person to whom an application for any license has been granted shall be a public record." Penal law § 400.00(5). Apparently, Paul Piperato, the Rockland County Clerk, expressed some reluctance in giving up these records even as he apparently released the records under New York Law. "You have judges, policemen, retired policemen, FBI agents — they have permits,” Piperato said. “Once you allow the public to see where they live, that puts them in harm’s way.”

What is most unfortunate is that the newspaper only published the names of addresses of those who lawfully purchased their firearms but specifically excluded the names of criminals who unlawfully possess firearms since those records are not readily available. The individuals whose names were released not only underwent an expensive and time consuming process but were thoroughly vetted by a police investigation and then had their licenses issued by a County Court Judge. Those who avoided this process were obviously not on the list.

It appears that the all out assault on lawful gun owners has begun. Already, this firm has been contacted by lawful gun owners who fear losing their licenses after the brutal murders in Newtown. Any lawful gun owner who faces any action to suspend or revoke their licenses should contact this firm immediately. Likewise, anyone who is denied a license should contact us to discuss their options.

Tilem & Campbell attorneys can be reached at 877-377-8666 or visit us on the web at www.handgunattorney.com.

DWI CONVICTION REVERSED ON APPEAL. TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY PERMITTING HIS MOTHER-IN-LAW TO SERVE ON JURY

2012-12-21T20:30:27Z

In another stunning victory for Westchester County based DWI attorney John Campbell, a Yates County man had his conviction reversed on appeal because the Trial Judge allowed his own mother-in-law to sit on the jury.

In a December 20th Decision, Acting Yates County Court Judge Dennis Bender reversed Richard Regan’s July, 2011 Driving While Intoxicated Conviction because the trial judge, Benton Town Justice Dave Grace, allowed his mother-in-law to serve on the jury. While Regan’s trial counsel, Dave Mashewske failed to object to Judge Grace’s mother-in-law sitting on the jury, the County Court placed the ultimate responsibility on Judge Grace. In reversing the conviction, the County Court held that Judge Grace: “should not have permitted his mother-in-law to serve on the jury and she should have been disqualified on the Court’s own initiative.” Allowing Judge’ Graces mother-in-law to sit on the jury, argued Campbell, violated Regan’s constitutional right to a fair trial by a panel of impartial jurors.

The victory is one of a recent string for Mr. Campbell who just last week had all of the evidence in a Westchester County DWI suppressed. In that case, Mr. Campbell was able to successfully argue that the driver was unlawfully stopped and seized because the police office lacked probable cause that the driver was speeding.

In the Benton Town case, Mr. Regan unfortunately served six months in jail after his conviction for DWI and before hiring Mr. Campbell to file the appeal. As a result of the successful appeal Mr. Regan's conviction was thrown out. It is unclear at this point whether the prosecutor will seek a new trial.

These two recent victories serve to solidify Mr. Campbell's reputation as one of the most skilled, knowledgeable and successful DWI's in New York State. While victory can never be assured, any one charged with a DWI in New York would be well advised to contact Tilem & Campbell for a fast, free and friendly telephone consultation with Mr. Campbell. Many of Mr. Campbell's greatest victories have been after another attorney has advised his/her client to plead guilty or as in the case of Mr. Regan after another lawyer lost the case. Before pleading guilty or going to trial with any lawyer, consider a second opinion from Mr. Campbell.

GUN OWNERS BE WARNED ABOUT SUICIDE HOTLINES

2012-10-25T21:24:22Z

As a New York criminal defense lawyer that handles an inordinate number of gun related cases, I hear a large number of stories about the interaction between the police and law abiding gun owners. After more than 20 years, however, very few cases shock me. What happened after a Westchester County gun owner called a suicide hotline bears repeating as a cautionary tale to law abiding citizens everywhere.

A Westchester County gun owner owner got the surprise of his life when he called a suicide hot line to talk about tools to manage depression. After the gun owner's wife from whom he had been separated introduced him to her new boyfriend, and after having suffered a medical condition the loss of his home and the break up of his marriage the gun owner decided to call a suicide help line for help and instead ended up with more trouble.

The gun owner clearly remembers calling 1800 SUICIDE to ask about tools for managing depression. He also recalls that he started out the conversation by telling the operator that he wasn't going to hurt himself or anyone else but that he simply wanted information. The operator then steered the conversation to whether or not there was a child in the house (there was) and whether or not there were guns in the house (there were). Within a very short time of answering that there were guns in the house, and while still on the telephone, the Westchester County gun owner heard a knock at the door. It was the police.

When he answered the door, he was informed by police that he called the Suicide hotline and he has guns in the house, its mandatory that they take them. He was then led to a patrol car while the police took the .357 magnum he kept for protection. The police seized the gun without a warrant but left other guns in a safe that contained a collection of guns. The police drove the gun owner to the County hospital.

Unfortunately, the nightmare didn't end there. After being held against his will for several days, the gun owner was released to the custody of the police who then drove him home to take the rest of his guns without a warrant. The gun owner was made to open the safe while the police inventoried and seized his guns. To date, two months later the police have refused to release the guns putting the burden on the gun owner to go to Court to get a Court order for the police to release the guns.

For the gun owner, a momentary call to get information about depression resulted in a nightmare that could come right out of a story from the Soviet Union. Here in the United States a gun owner seeking help ends up with his guns seized without a warrant and held without charges.

If you have any legal issue regarding the ownership, possession, sale or licensing of firearms or would like to share your story, please contact the law firm of Tilem & Campbell for a free and friendly consultation over the telephone or visit us on the web at handgunattorney.com.

Appearance Tickets In New York: Service Of An Appearance Ticket Or A Summons For Purposes of Commencing or Prosecuting a Criminal Action Against a Corporate Defendant [CPL 600.10]

2012-06-06T03:02:36Z

Corporations in New York can be charged with criminal and non-criminal offenses. Corporations are often charged with regulatory violations some of which are indeed criminal. These include zoning, building, fire safety and health offenses but can also be charged with criminal offenses. Service of an appearance ticket on a corporate defendant in a criminal action is not guided by Article 150 of the New York Criminal Procedure Law as it is for service on a natural person. Instead, service of an appearance ticket upon a corporate defendant in a criminal action is guided by CPL 600.10 which provides in pertinent part:

The court attendance of a corporation for purposes of commencing
or prosecuting a criminal action against it may be accomplished by
the issuance and service of a summons or an appearance ticket if
such action has been or is about to be commenced in a local criminal
court, and by a corporate summons if such action has been commenced
in a superior court.

CPL 600.10(1)

Keep in mind, service of an appearance ticket on a corporate defendant must comport with CPL 600.10 only when the charges are criminal. Whether the criminal action is in local criminal court or superior court provides a key distinction. The actual commencement of a criminal action is not required before an appearance ticket or summons can be issued and served to secure a corporate defendant’s attendance in local criminal court. With regard to local criminal court actions, the summons or appearance ticket can be issued and served if a criminal action “has been or is about to be commenced in a local criminal court. . .” Id.
However, a corporate defendant’s attendance in a criminal action commenced in a superior court can only be secured by the issuance and service of a corporate summons (not an appearance ticket) pursuant to [CPL Art. 600] if a criminal action “has been commenced in a superior court. . .” Id.
The summons or appearance ticket:

must be served upon the corporation by delivery thereof to an officer, director, managing or general agent, or cashier or assistant cashier of such corporation or to any other agent of such corporation authorized by appointment or by law to receive service of process.

CPL 600.10

The problem in terms of fair notice to a corporate criminal defendant is that this statute allows for the summons or appearance ticket to be delivered to, among others, “any other agent of such corporation authorized by appointment or by law to receive service of process.” Id. (emphasis supplied). Therefore, because the Secretary of State is deemed to be an agent for service of process for all domestic corporations and foreign corporations authorized to do business in the State (Bus. Corp. Law 304), service of an appearance ticket issued against a corporate defendant on the Secretary of State pursuant to Bus. Corp. Law 306 has been held sufficient to confer the criminal court’s jurisdiction over such corporate defendant. People v. New York Paving, Inc., 155 Misc.2d 934 (N.Y. City Crim. Ct. 1992).

Furthermore, service of a complaint in a civil action on a New York Corporation or foreign corporation authorized to do business in New York can also be accomplished by service on the Secretary of State. The Secretary of State then mails the complaint to the business. See Bus. Corp Law 306 and 307. Therefore, it is imperative that New York Corporations or foreign corporations authorized to do business in New York notify the Secretary of State of any change of address. These corporations must update the address they have on file with the Secretary of State otherwise they risk defaulting in both criminal and civil actions where the initial documents (complaints in civil cases and summons in criminal cases) are served through the Secretary of State.

For more information about appearance tickets for both individual and corporate defendants in New York, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.

APPEARANCE TICKETS IN NEW YORK: IMPROPER SERVICE OF AN APPEARANCE TICKET WILL NOT DEPRIVE THE COURT OF JURISDICTION IF THE DEFENDANT APPEARS IN COURT AND A SUFFICIENT ACCUSATORY INSTRUMENT HAS BEEN FILED

2012-05-28T02:53:40Z

Recently I was contacted by a person who had been issued a ticket for passing a stopped school bus (VTL 1174 “Overtaking And Passing School Bus) by a New Rochelle Police Officer who left the ticket with this person’s son at the front door of his home located in White Plains, New York. Briefly, this gentleman’s front doorbell rang. His nineteen year old son answered the door and was greeted by a New Rochelle Police Officer who asked him if he was the owner of a particular vehicle that was parked in his driveway. The son said he wasn’t but that his dad was at which point the New Rochelle Police Officer handed the son a traffic ticket for his father for passing a stopped school bus (VTL 1174).

I later learned that the New Rochelle Police Officer had not witnessed the alleged improper passing of the school bus nor had any other police officers. However, a school bus driver had written down the license plate number of a vehicle the school bus driver alleged had failed to stop for the school bus which had stopped, activated its lights and stop-sign and was discharging school children. The school bus driver then contacted the police, told them what he witnessed and gave them the plate number.

The police ran the plate number and learned the make, model, year and color of the vehicle and who it was registered to. The make, model, year and color matched the description given by the school bus driver. That’s what led the New Rochelle Police to this person’s home in White Plains, NY. However, the police cannot issue a traffic ticket to a person by leaving it with someone else.

As I’ve explained in other articles, a traffic ticket, uniform traffic ticket, simplified traffic information, etc are all Appearance Tickets. (See e.g. People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket is an appearance ticket) see also People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(uniform traffic ticket is an “appearance ticket”).
Because they are also appearance tickets, traffic tickets issued to individuals must be personally served. [CPL 150.40(2)]. Furthermore, the police can only issue an appearance ticket for non-criminal offenses if such non-criminal offense is committed in their presence. See CPL 150.20(1) and People v. Genovese, 156 Misc. 2d 569 (J. Ct. 1992)

Here, the officer did not issue the ticket to the actual defendant but instead the officer left it with the defendant’s son. However, this is not grounds for dismissal of the case. A defendant issued an appearance ticket cannot appear in the criminal action for the sole purpose of challenging the court’s jurisdiction based upon improper service of said appearance ticket if a sufficient accusatory instrument has been filed.

This is because the appearance ticket has nothing to do with the court’s jurisdiction. The appearance ticket is merely an invitation to appear in court. It is the subsequent filing of a sufficient accusatory instrument that confers jurisdiction. Therefore, an improperly served appearance ticket is not a ground for dismissal of the underlying action although it could be a ground to dismiss a charge of failing to appear on an appearance ticket under PL 215.58. People v. Byfield, 131 Misc.2d 884 (N.Y. Crim. Ct. 1986).

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. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.

SENTENCING IN NEW YORK: WHEN A DEFENDANT IS SENTENCED TO PROBATION, THE SENTENCING COURT, NOT THE DEPARTMENT OF PROBATION, SETS THE TERMS AND CONDITIONS OF PROBATION

2012-05-18T02:40:37Z

In New York, as elsewhere, probationary sentences for criminal charges play a major role in the criminal justice system. Incarceration is rarely appropriate. When a judge sentences a defendant to a sentence that involves probation, it is the judge that determines the conditions of such probation. By law, it is the judge who determines a sentence and the conditions of that sentence. The sentencing judge cannot delegate his or her sentencing authority by allowing the Department of Probation to determine a defendant’s probation conditions. It is improper for sentencing judge to simply tell a defendant at sentencing that the Department of Probation will determine the defendant’s probation conditions. Such a blanket delegation of total discretion to the department of probation without any court-imposed parameters and guidance is improper.

“Sentenc[ing] is primarily a judicial responsibility.” People v. Selikoff, 35 N.Y.2d 227, 240 (1974). The granting of probation is a judicial process exercised in the discretion of the sentencing court. People v. Oskroba, 305 N.Y. 113 (1953). When a defendant is sentenced to probation, the Court, not the probation department, sets the terms and conditions of probation. PL § 65.10(1).

New York Criminal Procedure Law § 410.10(1) provides in part, “When the court pronounces a sentence of probation . . . it must specify as part of the sentence the conditions to be complied with.” This duty of the court to specify probation conditions cannot be delegated to the probation department or to any other party. See People v. Fuller, 57 N.Y.2d 152 (1982)(“Although a sentencing court may utilize the Probation Department “to act as a preliminary fact finder and submit its recommendations in a written report . . . in the end it is for the court, which alone must impose the sentence, to decide how much of the report, if any, to adopt and how much to reject”).

This sentencing structure has never been interpreted to allow the probation department to set the conditions of probation. To the contrary “the terms of probation must be prescribed by the court and not the probation officer”. People v. McDonald, 136 Misc.2d 1047, 1050 (N.Y.Sup. 1987)

In Darvin M. v. Jacobs, 69 N.Y.2d 957, 964 (1987), the Court of Appeals stated “in our system, the role of the Probation Department, an unelected administrative agency, is to supervise probationers (see, CPL 410.50[2]; Executive Law § 255[2] ) [and] enforce the conditions of probation imposed by the sentencing court (9 NYCRR 352.3[b] [1] )”

In fact, it has been held that it is against “public policy to allow a trial judge to delegate his sentencing discretion to an administrative agency.” People v. Nichols, 85 A.D.2d 753, 754 (3rd Dept. 1981). Furthermore, the rules pertaining the Supervision of Persons Sentenced to or Placed on Probation define the term “conditions of probation” as “specific supervision requirements prescribed by the court as part of the probation disposition to assist the probationer in leading a law-abiding life.” 9 NY ADC 351.1(e)(emphasis supplied). The same rules further provide “Courts are required to impose specific conditions relating to supervision and other conditions required by law . . .” 9 NY ADC 351.7(emphasis supplied)

In People ex rel. Perry v. Cassidy, 23 A.D.2d 706 (3rd Dept. 1965), the Third Department held that it was improper for the sentencing court to order a youthful offender placed on probation “on such terms as the probation officer shall provide for you” because such a statement failed to determine the conditions of probation.

Accordingly, the sentencing court sets the conditions of probation based upon what it deems reasonably necessary. A sentencing court cannot simply defer all discretion to probation. Such a “whatever probation says” condition is improper.

For more information about this or any other criminal justice issue in New York, please contact Tilem and Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com

HOW CAN APPEARANCE TICKETS ISSUED IN NEW YORK BE SERVED [CPL 150.40(2)]

2012-05-08T02:26:41Z

With Limited Exceptions, When the Defendant is a Natural Person,
Appearance Tickets Must be Served Personally [CPL 150.40(2)]

Generally, under New York law, other than an appearance ticket issued for a traffic infraction relating to parking, an appearance ticket must be personally served. Except, an appearance ticket issued for the violation of a local zoning ordinance or local zoning law, or of a local building or sanitation code may be issued in any manner authorized for service in a civil action under CPLR 308. CPL 150.40(2).

To summarize, appearance tickets issued to natural persons in New York must be personally served. Except, appearance tickets may be served in accordance with CPLR 308 (see below section) if they are for parking violations or violations of local zoning, building or sanitation violations.

Service Upon a Natural Person by Mail Insufficient. New York City Routinely Ignores The Requirement That Appearance Tickets Issued To Natural Persons Be Personally Served.

Personal service on a “defendant, whose liberty will be at stake in a criminal action, serves to assure his right to adequate notice and expeditious resolution of the charges.” People v. DiLorenzo, 149 Misc.2d 791, 794 (N.Y. City Crim. Ct. 1990). In DiLorenzo, the court noted that the certified mailing of an appearance ticket that should have been personally served was insufficient service.

In People v. Baxter, 148 Misc.2d 1009 (N.Y. City Crim. Ct. 1990) the court found service of appearance tickets by a New York City administrative agency by mail defective and dismissed charges for lack of jurisdiction. In doing so, the court observed “that the CPL requirements of personal service are not being followed by the Buildings Department and other administrative agencies.” Id. at 1010.

In People v. Neuberger, 149 Misc.2d 1 (N.Y. Crim. Ct. 1991) the court dismissed all charges against the defendants in the interests of justice explaining that “[a]s for the Corporation Counsel’s continued practice of flouting the service requirements of the Criminal Procedure Law, that abuse cannot be left unremedied.” People v. Neuberger, 149 Misc. 2d 1, 5 (N.Y. City Crim. Ct. 1991).

In Neuberger, several defendants were served appearance tickets by mail which ordered them to appear in criminal court. The Honorable Martin G. Karopkin explained that the Corporation Counsel had been warned numerous times over the preceding several months that such service by mail was improper:

On numerous occasions during the past several months this court, and others, have warned the Office of the Corporation Counsel, the Buildings Department and other city agencies that service by mail is improper and contrary to CPL 150.40, as well as CPL 600.10

Id. at 1-2.

Despite the repeated warnings of both J. Karopkin and other judges, “the Corporation Counsel . . . continued to submit affidavits of mailing to the court accompanying its pleadings and to argue that the defendants’ appearances confer jurisdiction and render that issue moot.” Id. at 2-3.

In other words, the New York City Corporation Counsel knowingly served appearance tickets on individuals by mail, in clear contravention of the law. What’s more troubling is that they continued to do so even after several judges warned the Corporation Counsel that such service was improper. Thus, the Corporation Counsel “acquired these defendants’ presence by means of improper service” and then argued that the defendants’ mere presence before the court conferred jurisdiction thus mooting the service issue. Id. at 5.

]]> Service When Issued For Violation Of Local Zoning Laws,
Ordinances or a Building or Sanitation Code

An appearance ticket issued for the violation of a local zoning ordinance or law or a building or sanitation code may be served the same way a summons may be personally served upon a person in a civil action. [CPL 150.40(2)]. Personal service of summons upon a person in a civil action doesn’t necessarily require that the summons be literally handed (served) to the person. Pursuant to CPLR 308, personal service can be accomplished by:

(1) Actual Personal Service: Delivering the summons/appearance ticket upon the person within the State [CPLR 308(1)]; or

(2) Suitable age and Discretion Servcie: Delivering the summons/appearance ticket within the State to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served. When service is made by this method, it must be followed by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This follow-up mailing must be done within twenty days of the delivery of the summons/appearance ticket to the person of suitable age and discretion as described above [CPLR 308(2)]; or

(3) Service on Designated Agent: Delivering the summons/appearance ticket within the State to an agent designated in accordance with CPLR 318 [CPLR 308(3)]; or

(4) “Nail-and-Mail” Service: If service cannot be made in a manner described above despite due diligence (a diligent effort), service may be made by affixing the summons/appearance ticket to the door of either the actual place of business, dwelling place or usual place of abode within the State of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This follow-up mailing must be done within twenty days of the “affixing” of the summons/appearance ticket as described above [CPLR 308(4)]; or

(5) Court Ordered Service: If service of the summons/appearance ticket in a manner described above is impracticable, service may be made in a manner as the court, upon a motion without notice, directs [CPLR 308(5)]

In Contravention of New York State Law; New York City Code
Allows Service of Departmentally Issued Notices by Mail

While CPL 150.40(2) requires that appearance tickets issued for the violation of a local zoning ordinance or law or a building or sanitation code must be served the same way a summons may be personally served upon a person in a civil action, NYC Administrative Code 26-244 (c) provides for service of departmentally issued notices by mail.

APPEARANCE TICKETS IN NEW YORK: POLICE CAN REQUIRE BAIL BEFORE THEY RELEASE SOMEONE ON AN APPEARANCE TICKET [CPL 150.30(1)]

2012-05-01T02:11:01Z

In New York, where a police officer has arrested a person but has decided to issue that person an appearance ticket instead of bringing that person before a judge, the arrested person may be required to post pre-arraignment bail. The bail is forfeited if the person fails to appear as instructed in the appearance ticket. [CPL 150.30(1)].

Pre-arraignment bail (sometimes referred to as “stationhouse” bail) is fixed by the desk officer in charge at any police station/headquarters or the county jail or any of the desk officer’s superior officers as follows:
• For an E felony – up to $750.00;

• For an A misdemeanor – up to $500.00;

• For a B misdemeanor – up to $250.00;

• For a petty offense – up to $100.00

See CPL 150.30(2)

New York Police Agencies May Have A Policy Requiring Formal Arrest And The Posting
Of Bail Prior to Issuing Appearance Ticket Where Defendant Does Not Have Identification

A police officer can issue an appearance ticket to a person without formally arresting that person. For example, an officer who stops a person for the unclassified misdemeanor of reckless driving (VTL 1212) can issue that person an appearance ticket at the scene just as if the person was stopped for speeding or some other offense. In such a situation the person avoids an arrest record; is not handcuffed and transported to the police station; he is not printed or photographed and his car is not impounded.

However, the police officer has the discretion to formally arrest the person, impound his car, transport him to the police station, print and photograph him (if required), require the posting of bail and then issue the defendant an appearance ticket in connection with the reckless driving charge.

If the person does not have identification, some police agencies have policies in place that require the police officer to arrest that person, transport him to police headquarters, process him and require him to post bail even though the law does not require the posting of bail in such circumstances. See e.g. People v. Taylor, 294 A.D.2d 825 (4th Dept. 2002)(describing City of Hornell Police Department’s policy of arresting defendants to obtain pre-arraignment bail before issuing defendant an appearance ticket).

Pre-Arraignment Bail – Payment By Credit Card [CPL 150.30(4)]

The Chief Administrator of the courts in New York is required to develop a system for the posting of pre-arraignment bail on appearance tickets by credit card. [NY Jud. Law 212; CPL 150.30(4)]. However, police departments in New York are not required to participate in the system developed by the Chief Administrator for the payment of pre-arraignment bail by credit card; it is optional. [CPL 150.30(4)]. If you need to post pre-arraignment bail on an appearance ticket and you don’t have the required cash, you should ask if the particular police agency that has arrested you accepts credit cards for the posting of pre-arraignment bail.

ARE YOU UNDER ARREST IF THE POLICE SHOW UP AT YOUR HOME? THE MERE ISSUANCE OF AN APPEARANCE TICKET BY THE POLICE AT A PERSON’S HOME DOES NOT CONSTITUTE AN ARREST

2012-04-21T01:58:09Z

If the police crash through your front-door at 6:00 a.m. in full paramilitary ninja outfits like Seal Team 6; drag you out of bed with assault weapons jammed in your temple; handcuff you and then proceed to tear up your house before realizing you live at 639 Main Street and the warrant is for 693 Main Street, you are most likely in custody. You couldn’t just get up and head out for your morning jog. However, if the police simply want to serve you with an appearance ticket at your home for leaving the scene of an accident or some other traffic infraction mystery they diligently investigated; you would not be in custody when they show up in the same paramilitary ninja outfits.

It does not constitute an arrest where the police decide to issue an appearance ticket to a person in a situation that does not require them to stop and seize that person. For example, in Angel v. Kasson, 581 F Supp 170 (N.D.N.Y 1983) after conducting an investigation into the death of an infant, the police decided to charge the parents with Endangering the Welfare of a Child. Id. at 174.

However, instead of formally arresting the parents, the police traveled to their home and served them with appearance tickets directing them to appear in court on a specific date to answer charges of endangering the welfare of a child. Id. The parents weren’t stopped while walking on the street or driving their car, detained and searched.

At the recommendation of the district attorney, the court dismissed the charges against the parents “in the interests of justice.” Id. at 175. Thereafter, the parents filed a federal civil rights action against the police under 42 USC 1983 alleging, among other claims, false arrest. In finding in favor of the defendant police officers on the false arrest claim, the district court held that it is “well settled that the issuance of such tickets under the provisions of [CPR Art. 150] does not constitute an arrest.” Id. at 177-178.

The problem is that it’s not exactly “well settled” that the issuance of an appearance ticket does not constitute an arrest. To the contrary, the NYC Criminal Court has held that the detention of a person for the purpose of issuing that person an appearance ticket amounts to an “arrest situation”. People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980).
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. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.

Are New York Police Required To Read A Driver Their “Miranda Rights” Before Questioning Them During a Car Stop?

2012-04-06T01:42:45Z

If you’re stopped by the police in New York (Greenburgh, White Plains, Harrison, etc) for a traffic infraction such as speeding, should the police read you your “rights” prior to questioning you about where you coming from, if you had anything to drink or if you knew why you were stopped? When a person is arrested they lose certain rights. For example, when one is arrested, they lose their right to liberty and they are subject to a warrantless search incident to their arrest. In fact, a search incident to a lawful arrest is one of the many exceptions to the search warrant requirement.

However, while a person loses certain rights when they are arrested, they also obtain certain rights once they are arrested. For example, before the police can question a person who has been arrested they must read that person their “rights” – the police must “Mirandize” an arrested person before questioning.

There is absolutely no doubt that Uniform Traffic Tickets or Simplified Traffic Informations are also appearance tickets. See e.g., People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket deemed an appearance ticket); People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(The front of the uniform traffic tickets directed defendant to appear in the Justice Court of the Village of Old Westbury on September 18, 2003, thus serving as an “appearance ticket” under CPL 150.10); Farkas v. State, 96 Misc. 2d 784, 787 fn 1 (N.Y. Ct. Cl. 1978)(Appearance ticket includes, by definition, uniform traffic tickets); People v. Litean, 2008 N.Y. Misc. LEXIS 5475, 240 N.Y.L.J. 33 (N.Y. Sup. Ct. 2008)(“A summons requiring a defendant to appear in court is the equivalent of a desk appearance ticket . . .”); People v. Genovese, 156 Misc. 2d 569, 571 (J. Ct. 1992)(“the yellow copy of the simplified traffic information is an appearance ticket as defined by CPL 150.10”).

Since People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) held that the detention of a person by the police for the purpose of issuing such person an appearance ticket creates an “arrest situation” justifying a search of such person just as if they had been formally arrested, doesn’t it follow that the police would have to Mirandize this so-called “arrested” person before questioning them? Why should the police get the benefit of deeming the person “arrested” so they can search them but not allow this “arrested” person the benefit of his Miranda rights just like any other arrested person?

One stopped by the police is clearly not free to go. In People v. Wallgren, 2011 NY Slip Op 51556U, (N.Y. County Ct. Aug. 16, 2011) the police officers testified at the probable cause hearing that defendant’s vehicle was driving erratically and they stopped it only to check on the driver’s “welfare.” However, as observed by the court, the officers were not concerned about the driver’s welfare but instead immediately launched into a DWI investigation:
Notwithstanding both officers’ testimony regarding the welfare
check, Officer Einsfeld, upon approaching the driver’s window,
asked whether the defendant was drinking prior to driving, where
the defendant came from and where the defendant was going.
These questions were clearly indicative of a DWI investigation,
not a welfare check and are designed to solicit incriminating
evidence from a motorist.

Furthermore, the police admitted that “when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person.” Id. The court therefore concluded that the police testimony established that the defendant was in custody from the very inception of the defendant’s encounter with the police: “By [Officer Einsfeld’s] testimony alone the custodial status of the defendant from the very inception was admitted by the police.” Id.

]]> The court further noted additional police testimony that made clear what every motorist knows: a motorist is not free to leave when stopped by the police:
Moreover, Officer Einsfeld frankly testified that when he asked
for the defendant’s license and registration the defendant was no
longer free to drive away as the police wanted to conduct further
questioning of the defendant.

Id.

If the driver is not free to go when stopped for a traffic infraction; and if it’s an arrest situation when one is stopped by the police for the purpose of issuing them an appearance ticket as the Hazzelwood decision held; isn’t one in “custody” thus requiring the police to inform that person of their Miranda rights?

NEW YORK FIREARMS LAWYERS, NRA MEMBER BECOMES NRA CERTIFIED FIREARMS INSTRUCTOR

2012-03-27T19:00:08Z

Senior Partner Peter H. Tilem of the White Plains law firm, Tilem & Campbell recently passed the test to become an NRA Certified Pistol Instructor. Mr. Tilem, who is a senior criminal defense lawyer, NRA member and handles much of the firms firearms law practice together with law partner John Campbell, was an experienced and avid firearms enthusiast before passing the National Rifle Association's instructors' test.

Besides being a lifelong shooter, Mr. Tilem has been handling gun and weapons cases for decades. Initially, as a prosecutor, in one of the most anti-gun counties, in one of the most anti-gun states in the United States, Mr. Tilem handled the prosecution of countless gun and knife cases as well as cases involving a variety of other weapons. After several years as a prosecutor, Mr. Tilem was asked to join the District Attorney's Office's Firearms Trafficking Unit where he handled large scale, gun trafficking conspiracy cases in addition to other gun cases and violent crimes and became an adviser to other prosecutors in the handling of gun cases.

After leaving the District Attorney's Office and entering private practice, Mr. Tilem put his experience and knowledge of New York gun laws to work helping law-abiding citizens who got caught in the web of New York's criminal justice system which treats law-abiding citizens with firearms (or knives) as criminals. In New York, a law abiding citizen who carries his (or her) pistol into New York with an out-of-state permit (ccw) faces a mandatory minimum sentence of 3 and 1/2 years in prison. In addition, New York still has on the books the functional equivalent of the since repealed Federal Assault Weapons ban which punishes as a felony possession of rifles or shotguns that have cosmetic features that are deemed to look offensive. The outdated and ill conceived assault weapon ban in New York is so poorly written and hard to understand that neither the police, prosecutors nor civilians can be sure of what is felonious conduct and what is perfectly legal.

In addition to New York's bizarre gun laws, New York bans virtually any weapon imaginable including brass knuckles, billy clubs, "sand bag[s]" (whatever that means), wrist-brace type sling shots, nun-chucks and kung fu stars just to give some examples. As Mr. Tilem has written about extensively, New York's ban on knives is so complete that it seems to ban steak knives in restaurants (at least in the five boroughs of New York City) and virtually any lock blade folding knife as a "gravity knife."

Mr. Tilem's experience in gun cases has led to very successful defenses of individuals accused of possessing handguns at New York area airports, application of the federal travelers defense to successfully defend individuals driving with handguns and individuals accused of selling guns. By receiving this very important certification from the National Rifle Association, Mr. Tilem hopes that the training and certification will assist him in defending more individuals accused of weapon's possession in New York. In addition, Mr. Tilem will be available to testify as an expert witness in gun trials throughout New York State. Mr. Tilem can always be reached by calling 877-377-8666 or visiting handgunattorney.com.

US SUPREME COURT VACATES TWO CONVICTIONS FOR LAWYERS INEFFECTIVE PLEA BARGAINING

2012-03-26T20:08:54Z

Recently we reported in our blog that a DWI conviction was vacated on grounds of ineffective assistance of counsel where the lawyer simply had his client plead guilty to Driving While Intoxicated without conducting an investigation into the evidence in the case. Now, just last week, the United States Supreme Court reversed a conviction where a defense attorney neglected to tell the defendant about a plea offer and the defendant was later sentenced to a much more lengthy prison sentence than he would have gotten if he accepted the plea deal.

In the case of Missouri v. Frye the United States Supreme Court for the first time recognized that the 6th Amendment to the United States Constitution ensures that a defendant's right to effective representation extends to the plea bargain process and that if the lawyer is ineffective during the plea bargain process, the defendant may be entitled to reversal of his conviction.

In the Frye case, Galin Frye was accused of driving with a revoked license. Since he had been convicted of this same offense three times in the past he was facing a felony charge which carries up to 4 years in prison. During the pendency of the case, the prosecutor told Frye's lawyer that Frye could plead guilty to a misdemeanor and receive a sentence of 90 days. Frye's lawyer never conveyed that offer to him and he subsequently plead guilty and received three years in prison. On appeal Galin Frye argued that that we was denied his right to counsel because of ineffective of assistance of counsel. His conviction was reversed.

In the second decision, issued the same day last week, the United States Supreme Court agreed with two lower Federal Courts that reversed the convictions of a defendant who rejected a plea deal because of his lawyers erroneous advice.

In Lafler v. Cooper, Anthony Cooper shot the victim and was charged with Assault with Intent to Murder under Michigan Law. The prosecutor offered a plea deal that carried a sentence of 51-85 months in prison. Anthony Cooper on the advice of his attorney refused the plea deal and was subsequently convicted after trial and sentenced to a term of imprisonment of 185-360 months, more than three times the plea offer. Cooper's lawyer had erroneously advised him to reject the plea deal because in the opinion of the lawyer the prosecutor could not prove intent to murder since all of the gun shots landed below the waist. This advice was wrong.

In the Cooper case, as in the Frye case, the Supreme Court recognized that the right to effective representation includes the right to effective representation during plea bargaining. According to a recent New York Times article 94% of cases in State Court and 97% of cases in Federal Court are resolved by plea bargains. In a system where the overwhelming majority of cases result in plea bargains, it seems that these two cases offer defendants critical constitutional protections that are at least as important as trial rights.

As these cases make clear, a criminal defense lawyer must not only communicate with his or her client, particularly about plea offers but must also offer competent advice about whether or not to accept those offers.

New York Speeding Tickets: Speed Not Prudent Charge Cannot Be Based Upon The Mere Happening of An Accident

2012-02-20T19:35:56Z

Have you been charged in New York with “speed not prudent” by an officer who did not witness the alleged offense? Were you involved in an accident and then issued a ticket for an infraction by an officer who did not witness the accident? Judge Malone of the Justice Court of Mendon, New York, noted in People v. Genovese, that the practice whereby police officers in New York issue tickets for traffic infractions they did not witness occurs every day in lower courts across the State.

One of the most common scenarios is where an officer arrives upon the scene of an accident he did not witness and, after conducting an “investigation”, concludes that one of the drivers (or the only driver if it was a single car accident) had to be driving at a speed not reasonable and prudent and issues a traffic ticket to the “offending” driver charging him or her with violating VTL 1180(a) – “Speed Not Prudent” – which states that:

No person shall drive a vehicle at a speed greater than is reasonable
and prudent under the conditions and having regard to the actual
and potential hazards then existing.

This practice is wholly improper. First, as detailed above, a police officer cannot issue an appearance ticket for a traffic infraction not committed in his presence. Second, “[t]he mere happening of the accident because of the skidding of [driver’s car] did not warrant the conclusion that there had been negligent operation of a motor vehicle or that the statute had been violated.” Weisinger v. MacDuff, 285 A.D. 607, 611 (1st Dept. 1955). To be guilty of driving faster than is reasonable and prudent, the conduct of the driver must constitute more than mere error of judgment or simple negligence. People v. Benway, 41 Misc.2d 39 (1963) see also Hessney v. MacDuff, 284 A.D. 70, 72 (4th Dept. 1954)(Negligent operation of a motor vehicle may not be inferred merely because a car skidded or an accident happened); Fake v. MacDuff, 281 A.D. 630, 633 (4th Dept. 1953)(The fact that the car skidded or slid off the road does not, standing alone, even constitute ordinary negligence).

]]> If you have been issued an appearance ticket/uniform traffic ticket for offense anywhere in New York State, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.

Sentencing Issues In New York: Court Has No Authority To Alter a Judgment And Sentence In The Absence Of The Defendant And His Attorney

2012-02-13T19:24:09Z

In New York, a court cannot change, amend or otherwise alter a sentence in a criminal case without the defendant and his or her criminal defense attorney being present. Occasionally a court might attempt to change an otherwise legal sentence post sentence by signing additional probation conditions. This practice is contrary to both statutory and decisional law. The New York Criminal Procedure Law provides that “[t]he defendant must be personally present at the time sentence is pronounced.” CPL 380.40(1). It is axiomatic that a defendant has a statutory and constitutional right to be present at the time of sentencing. People v. Brown, 155 A.D.2d 608 (2nd Dept. 1989)(CPL 380.40(1) requires a defendant to be present at the time of sentence); People v. Lucks, 91 A.D.2d 896 at 897, 457 N.Y.S.2d 514 (1st Dept. 1983)(“CPL 380.40 (subd 1) is clear in its direction that a defendant be personally present at the time sentence is pronounced.”)

More importantly however, is the long-standing, clearly established, rule of law, that a court has no authority to alter a sentence in the absence of the defendant and his attorney. People v. Saperstein, 1 A.D.2d 949, 150 N.Y.S.2d 844 (1st Dept. 1956). A court’s failure to have a defendant produced at a proceeding at which the defendant’s sentence is amended, violates that defendant’s statutory right to be present at the time of sentencing. People v. Garrison, 9 A.D.3d 436, 780 N.Y.S.2d 170 (2nd Dept. 2004); see also People ex rel. Walker v. Wilkins, 23 A.D.2d 619, 256 N.Y.S.2d 810 (4th Dept. 1965)(Change of sentence out of presence of defendant and his attorney ruled invalid).
Not only must the defendant be present for all sentencing proceedings, his or her attorney must also be present. The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to . . . . have the Assistance of Counsel for his defense.” U.S.C.A. Const. Amend. VI. Similarly, the New York State Constitution provides in pertinent part: “In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel . . .” NY Const. Art I, § 6.

Furthermore, a defendant is afforded the aforementioned constitutional right to counsel “at the crucial stage of sentencing”. People v. Gonzalez, 43 A.D.2d 914 (1st Dept. 1974); see also, People v. Perez, 63 A.D.2d 911 (1st Dept. 1978); People v. Di Salvo, 19 A.D.2d 747 (2nd Dept 1963). Accordingly, an accused’s rights are violated if, in the absence of a waiver, he is not afforded assistance of counsel at time of sentence. People v. Sykes, 23 A.D.2d 701 (2nd Dept. 1965). Sentencing is considered a critical stage of the proceeding at which a criminal defendant has a constitutional right to be represented by counsel. U. S. v. Morales, 498 F.Supp. 139 (E.D.N.Y. 1980). The imposition of a sentence in the absence of counsel requires the vacation of the sentence. People v. Read, 134 A.D.2d 462, 521 N.Y.S.2d 85 (2nd Dept. 1987).

For more information about sentencing issues in New York, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.