New York Criminal Attorney Blog

GOING TO TRIAL IN A NEW YORK LOCAL CRIMINAL COURT – HOW IS THE JURY POOL SELECTED?

2008-07-23T15:31:04Z

How jury pools are chosen in a New York misdemeanor cases depends on what type of court your case is in. Section 2012 of New York's Uniform District Court Act, New York's Uniform City Court Act or of New York's Uniform Justice Court Act, prescribes how jury panels are chosen in each of the aforementioned courts. In the New York City Criminal Court, the jury pool or panel is chosen in the same manner as in the Supreme Court in counties within cities having populations of one million or more.
When one reviews Section 2012 of the aforementioned acts, one realizes the section is not very enlightening. Both the New York State District Court Act and the New York State City Court Act merely tell us that jurors may be summoned as prescribed by the rules of the appellate department in which the particular court sits. So in reality, to determine how a jury pool is selected in a District or City Court we first turn to the CPL 360.10(2) which directs us to Section 2012 of the District or City Court acts as the case may be. After we look up Section 2012 in either act, it directs us to the appellate division rules for the department in which the particular city or district court sits. Now you know why lawyers like to get paid by the hour. It’s as if these statutes and rules were written by 3 different people who had no idea what the others were writing.
Section 2012 of the Uniform Justice Court Act is evening less enlightening bordering on comical. This section simply informs us that the jury panel in Justice Court trials is to be selected in accordance with the rules. What?! What Rules?! This is really comedic. Therefore, if you are going to trial in a local Justice of Village Court, the jury panel will be selected in accordance with the Rules – whatever they may be.
In reality, the New York State Judiciary Law is where we find the rules and procedures pertaining to the selection of the jury panel. Recall, it is the jury panel that your actual jury will be selected from. It is the policy of New York State that all litigants have a right to grand and trial juries (referred to as petit juries) randomly assembled from a fair cross-section of the community in the county or other local government subdivision where the court in which the trial is to take place is located. It is also the policy of this State that all eligible citizens have an opportunity to serve on grand and trial juries and in fact are obligated to when summoned unless otherwise excused. Jud. Law. § 500.
The jury panel is selected from a cross-section of eligible jurors drawn from the community where the crime was committed – not where the defendant lives. People v. Kellerman, 102 A.D.2d 629, 479 N.Y.S.2d 815 (3rd Dept. 1984). The panel of prospective jurors should reasonably represent a fair cross section of the community in which the trial is to take place. People v. Guzman, 89 A.D.2d 14, 454 N.Y.S.2d 852 (2nd Dept. 1982). However, there is not constitutional or statutory right requiring the trial (petit) jury be reasonably representative of the community in which the trial is to take place. Only the jury pool that the trial jury is chosen from need be reasonably representative of the community. People v. Moss, 80 Misc.2d 633, 366 N.Y.S.2d 522 (1975).
One way of knowing if the jury pool in a particular community is representative of the community in general is research the demographics of that community. In the pretrial conference, your attorney should inquire as to the make up of the jury panel. Your attorney should ask for a hearing on the manner of selection of the jury pool if an identifiable group is underrepresented. If your case is approaching jury selection and you have questions about the process, feel free to contact Tilem & Campbell for a free consultation.

JURY TRIALS IN A NEW YORK LOCAL CRIMINAL COURT – ORDER OF THE TRIAL

2008-07-21T15:26:43Z

The order of proceeding in a jury trial in a New York State local criminal court is the same as those in a jury trial in a superior court when one is charged by indictment. CPL § 360.05. Therefore, the order of a jury trial in local criminal court is guided by CPL § 260.30. See CPL § 360.05.
The order of a jury trial in New York local criminal courts is as follows:
1. A jury must be selected and then sworn in. CPL § 260.30(1)
2. The judge must give preliminary instructions to the selected and sworn jury. CPL § 260.30(2)
3. In a jury trial, the People must then deliver an opening statement. CPL § 260.30(3).
4. The defendant may, if he or she so chooses, deliver an opening statement. CPL § 260.30(4).
5. The People must then offer evidence in support of the charge or charges in the information. CPL § 260.30(5).
a. If the People fail to adequately allege in their opening statement that defendant committed each element of the offense charge, the case should be dismissed. People v. Thomas, 21 A.D.3d 643, 799 N.Y.S.2d 653 (3rd Dept. 2005)
6. Next, the defendant may, but is not obligated to, offer evidence in his or her defense. CPL § 260.30(6).
7. If the defendant presents a defense, the People may then present rebuttal evidence. If the People so choose to present rebuttal evidence, the defendant may then present evidence in rebuttal to the People’s rebuttal. The court may, in it’s discretion, allow continued rebuttal evidence. The court may also, in it’s discretion, allow either party to offer evidence on their rebuttal which is not technically rebuttal evidence but actually evidence that is part of the parties original case. CPL § 260.30(7).
8. At the end of the case, the defendant may deliver a closing argument and then the People may deliver a closing argument. CPL § 260.30(8).
9. Next the judge must charge the jury and the jury will then retire to deliberate and if possible, reach a verdict. CPL § § 260.30(9), (10) & (11).
If you’re facing trial in local or superior court on any criminal charge and would like a
free consultation regarding your case, call Tilem & Campbell toll free at 1-888-AnyCrime.

GOING TO TRIAL IN A NEW YORK LOCAL CRIMINAL COURT – MUST DEFENDANT BE PRESENT?

2008-07-18T20:09:33Z

As a New York criminal defense attorney, at a law firm that handles a lot of criminal trials, I often am asked by clients charged with misdemeanors and/or violations in a New York State local criminal court if they must appear in court with me for trial. Generally a defendant must be present during his or her trial. CPL § 340.50 (1).
However, where a defendant is represented by an attorney, a court may, upon written motion by the defendant, waive the defendant’s appearance at trial provided the prosecutor doesn’t object. The defendant must file a written signed and notarized statement declaring the he or she waives their right to be present at trial and authorizing their attorney to conduct their defense in their absence. CPL § 340.50(2).
A defendant may also be excluded from his or her trial if they act in disruptive and disorderly manner to the point that the trial cannot proceed. Before a judge can exclude a defendant from his or her own trial, the defendant must be accorded a warning indicating that the defendant will be removed from the courtroom if he or she continues to act in a disruptive and disorderly manner. CPL § 340.50(2).
In reality, it is common place for defendants not to appear for traffic violation trials but instead to hire an attorney who appears with a signed and notarized “Authorization to Appear”. The written notice requirement is very often overlooked by the court and the prosecutor. However, there are some courts that require the formality of a written motion where the defendant chooses to go to trial on a traffic violation but not where the defendant chooses instead to have his attorney plead guilty to a reduced charge.
One judge who employs this policy is J. Glenn Galbreath of the Cayuga Heights Village Court. J. Galbreath has no problem waiving a traffic violator’s appearance at trial and taking pleas from attorneys with authorizations to appear signed by their clients. However, where a defendant chooses instead to proceed to trial on his or her traffic matter, J. Galbreath requires a written motion. Did somebody say coercive? Take a plea and save a trip to court or proceed to trial and either come to court or pay a lawyer to draft a motion. Sounds a bit coercive to me.
Not only does a defendant have a right to be present at trial, both the United States Constitution and the New York State Constitution grant a defendant the right to be present at all material stages of trial. Therefore, reversal of conviction was required where a defendant was not present during closing arguments and had not waived his presence or waived his presence by disorderly conduct. Benn v. Stinson, 917 F.Supp. 202 (1995).

]]> A defendant’s right to be present at all material stages of trial extends to side-bar conferences. People v. Williams,11 A.D.3d 810, 784 N.Y.S.2d 185 (3rd Dept. 2004). However, reversal will not be required where a defendant is deprived of his right to be present at a side bar conference unless his presence would have affected the outcome of that conference. People v. Landry, 258 A.D.2d 475, 685 N.Y.S.2d 101 (2nd Dept. 1995). How can a defendant possibly show that his presence at a side bar conference would have affected the outcome of the case? Of course a defense attorney must explain to his or her client what was discussed at a side bar conference. However, how many times does a defendant challenge his or her attorney’s decisions during trial? In order to preserve an objection under this preposterous rule, a defense attorney should make a clear and detailed statement on the record immediately after the sidebar conference. In the on-the-record statement, the defense attorney should restate what was said at sidebar and object to the defendant’s absence.
It is critically important that the defendant’s attorney make a clear statement on the record regarding the court’s refusal to allow the defendant to be present at a sidebar conference. In People v. Williams (3 Dept. 2004) 11 A.D.3d 810, 784 N.Y.S.2d 185, the defendant appealed his conviction alleging that he was denied his right to participate in his defense because he was precluded from a sidebar conference. The Appellate court denied the appeal because there was a lack of on the record proof that the defendant was absent from the sidebar conference. Therefore, always make a record!!
Generally, it is not error for a trial court to preclude a defendant from a side bar conference concerning a potential juror’s personal reasons for not being able to serve as a juror. People v. Landry, 258 A.D.2d 475, 685 N.Y.S.2d 101 (2nd Dept. 1999). In People v. Carter, the Second Department held that defendant’s right to be present at all material stages of trial was not violated because he was not present at a side bar conversation with a prospective juror where the juror had previously answered yes when asked if he knew the judge. Because the potential juror had answered yes when asked if he knew the judge, defendant knew what the side bar discussion was about. 238 A.D.2d 348, 656 N.Y.S.2d 65 (2nd Dept. 1997). Amazingly, the First Department has held that a defendant’s presence is not required at a side bar conference involving a sitting juror who was alleged to have been sleeping. People v. Pujols, 194 A.D.2d 505, 599 N.Y.S.2d 568 (1st Dept. 1993).
If your case is going to trial, you must have competent attorneys who are experienced with all aspects of criminal trial. If you are not completely comfortable with your attorney at any stage in a criminal proceeding contact an experienced criminal attorney at Tilem & Campbell for a free consultation.

NEW YORK CRIMINAL DEFENSE FIRM TILEM & CAMPBELL SCORES MAJOR VICTORY IN HARD FOUGHT DWI CASE

2008-07-16T19:40:59Z

New York criminal defense law firm Tilem & Campbell scored another major victory in a Brooklyn Criminal Court today when the firm’s client had the most serious DWI charges dismissed and plead guilty to the traffic infraction of Driving While Ability Impaired. The client had been charged with several misdemeanors including two counts of Driving While Intoxicated and Reckless Driving and faced up to one year in jail. The client blew a .17 on the breath test machine, more than twice the legal limit, according to police who also claim that the client drove into an active construction zone prompting the Reckless Driving charge.

The case was very hard fought and required eighteen appearances in Brooklyn Criminal Court over a period of more than 20 months. In the end the Kings County District Attorney’s Office relented on the day the trial was scheduled to begin after being confronted with numerous irregularities in the procedures followed by New York City Police discovered by New York criminal attorney Peter Tilem, the firm’s senior partner.

Tilem learned during discovery that the police had forced the client to take a second breath test, after the results of the first test were thrown in the garbage. Tilem was able to obtain a video tape of the police officer actually throwing the results of the first breath test on the garbage. Tilem also observed that the client was chewing gum during the breath test which is specifically forbidden according to the User’s Manual for the Intoxilyzer 5000. Tilem keeps a copy of the manual for the Intoxilyzer 5000, the breath test of choice for the New York City Police Department (NYPD), in his office for precisely these reasons.

This is the latest in a series of major victories for the firm in Brooklyn and elsewhere having had a Driving While Intoxicated case recently reduced to Disorderly Conduct in Kings County Criminal Court and having had a gun possession case recently dismissed in Kings County Supreme Court.

GOING TO TRIAL IN A NEW YORK LOCAL CRIMINAL COURT – WHEN ARE YOU ENTITLED TO A JURY TRIAL?

2008-07-09T14:03:07Z

So you’ve decided to take your New York criminal case to trial. The People’s plea offer is unacceptable and your attorney, after carefully weighing the odds and risks, has advised you to reject the People’s offer and go to trial. As I said in my last blog, at the New York criminal defense law firm of Tilem & Campbell, if we take a New York criminal case to trial, we generally advise our clients to have a jury trial instead of a being tried by a single judge. So what happens next? How does a New York criminal trial proceed in a local criminal court?

Where a defendant is charged in a local criminal court with a misdemeanor, he or she is entitled to a jury trial. However, within New York City, one charged with a misdemeanor is only entitled to a jury trial if the potential sentence is more that six months. CPL § 340.40(2). The right to a jury trial in misdemeanor cases is statutory only as the New York State Constitution does not provide a right to a jury trial where the charges are less than a felony. People v. Erickson, 302 N.Y. 461, 99 N.E.2d 240 (1951); see also Article I, § 2 and Article VI, § 18 of the NYS Constitution; NY Civil Rights Law § 12 (In all criminal prosecutions, the accused has a right to a speedy and public trial, by an impartial jury. However, it has been held that this section only guarantees the same right to trial found in the Sixth Amendment to the federal constitution and that right only applies where a defendant is facing more than six months incarceration).

However, the statutory right to a jury trial in misdemeanor cases in New York was passed by the Legislature in response to the United States Supreme court’s 1970 ruling in Baldwin v. New York, which essentially held that the Sixth Amendment to the
federal constitution requires a jury trial where the defendant is facing more than six months imprisonment. 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Therefore, the right to a jury trial in New York where the defendant is facing more than six months incarceration is mandated by the Sixth Amendment to the federal constitution. To summarize, New York provides for a jury trial in all misdemeanor and felony cases. Except, in New York City, where one is only entitled to a jury trial on a misdemeanor where one is facing more than six months incarceration.

At any time before trial, a defendant may waive his or her right to a jury trial and consent to be tried by a single judge. CPL § 340.40(2). A defendant in local criminal court is not entitled to a jury trial if the charge is only a violation such as most traffic infractions and disorderly conduct. However, if a defendant is charged with both a misdemeanor and a violation and chooses a jury trial, then both the misdemeanor and the violation will be heard by the jury. In such a circumstance, the judge does not decide the violation while the jury decides the misdemeanor. Instead, the jury will decide both. CPL § 340.40(3).

There is one exception to a defendant’s right to a jury trial in local criminal court where the charge is a misdemeanor. Where the defendant is eligible for a youthful offender adjudication and has never been previously convicted of a crime or been adjudicated a youthful offender, the case must be tried by a single judge; not a jury. CPL § 340.40(7).

If you are charged in a local or city court such as those found in Yonkers, Mamaroneck, Harrison, Larchmont, Eastchester, New Rochelle, White Plains, Tarrytown, Dobbs Ferry and others, contact Tilem & Campbell for a free consultation.

New York Jury Trials in Local Criminal Courts (Should you have a jury or bench trial?)

2008-07-07T14:22:31Z

While some New York Criminal Attorneys will waive your right to a jury trial in a New York local justice court, instead opting for a trial before the judge, at Tilem & Campbell, we think that is usually a mistake. At Tilem & Campbell, our policy is that if our client is charged with a misdemeanor and the People (the prosecution) will not reduce the charge below a misdemeanor, we often advise our clients to choose a jury trial. Why? Unfortunately, at the local court level in New York, far too many Judges work hand-in-hand with the prosecution to ensure a defendant’s conviction. That is the simple truth.

Judges at the local level in New York need not be attorneys and many are not. Whether they are attorneys or not, far too many local court judges simply have no apparent understanding about the defendant’s presumption of innocence and the People’s burden to prove a defendant’s guilt beyond a reasonable doubt. In many small villages and towns in New York, the police station and Courthouse are in the same building. The local police and the Judge share the same parking lot, ride the elevator together and see each other regularly in the building. Therefore, only on the rarest occasion will a Judge at the local court level find that a police officer lacked probable cause at a suppression hearing or that an accusatory instrument is insufficient or otherwise rule in a defendant’s favor on a meaningful issue. It would be very hard for the same judge that sees that police officer in the building to now decide that he didn't tell the truth at your trial.

Trials before judges in local criminal courts are far too often nothing more that an exercise in futility. The defendant’s guilt is a foregone conclusion. Do you really think a local judge is going to go against the local police and prosecutor that he or she must deal with on a regular basis?

For a local court judge to rule against the prosecution, the prosecution’s case must implode. And even when the prosecution’s case does implode, many times a local judge will bend over backwards to rationalize and legitimize law enforcement and prosecutorial misconduct. If your criminal case in a local justice court is proceeding to trial, you should seriously consider a jury trial and you should retain counsel who is experienced with jury trials.

New York’s Driver Responsibility Assessment

2008-07-03T22:36:13Z

As if New York Traffic Fines (please see our June 21, 2008 post) were not high enough, New York has a Driver Responsibility Program that can cost those who pay traffic fines in New York a whole lot more. Under the Program in New York, a Driver Responsibility Assessment is billed by New York DMV if you obtain 6 points on your license in 18 months. The Assessment starts at $100 per year for a period of 3 years (for a total of $300) and adds $25 per point per year over 6 points (for example 8 points costs $150 per year for three years).

The Driver Responsibility Assessment in New York applies to both New York Drivers and out-of-state drivers. The penalty for failing to pay is suspension of your driving privileges in New York.

Its important to remember that the Assessment is on top of the fine, surcharge and any raise in insurance rates.

Many drivers in New York who get tickets and plead guilty by mail get completely taken by surprise when they get this additional bill in the mail from New York Department of Motor Vehicles. It’s easy to get to six points in New York. Speeding 76 or above in a 55 mile per hour zone is six points for one ticket. Failing to signal a lane change and 41 in a 30 mile per hour zone is another easy way to get to six points.

Bottom line, if you receive any traffic summons in New York State consult an experience New York Traffic Attorney and get the facts before you plead guilty.

US SUPREME COURT STRIKES DOWN DC GUN BAN

2008-06-27T00:32:35Z

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

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

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

New York Traffic Ticket Fines

2008-06-21T20:04:21Z

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

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

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

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

HUNDREDS ARRESTED IN “OPERATION MALICIOUS MORTGAGE

2008-06-20T21:25:51Z

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

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

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

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

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

New York Sex Offender Registration - An Introduction

2008-06-19T19:41:22Z

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

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

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

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

Brooklyn Felony Gun Case - Tilem & Campbell Scores Big Victory

2008-06-12T20:03:11Z

New York Criminal Attorney’s Tilem & Campbell scored a major victory in Brooklyn Supreme Court yesterday when prosecutors agreed to dismiss all charges in a Kings County felony gun possession case. Peter Tilem, Senior Partner at Tilem & Campbell and former prosecutor in the Firearms Trafficking Unit at the Manhattan District Attorney’s Office handled the case for the client.

The case started back in August 2006 with a felony gun possession arrest in Brooklyn’s 75th Precinct. Police from the 75th Precinct’s elite Anti-Crime Unit claim to have stopped the vehicle the suspect was driving for not wearing a seatbelt directly in front of his apartment building. They further claim that his license was suspended and that he didn’t have identification on him. The police claim the suspect’s wife offered to go up to her apartment to get his identification and that when she didn’t come back down they went upstairs to find out what happened.

Police further claim that when they arrive on the suspect’s floor they smelled the odor of Marijuana (spelled marihuana in the New York State Penal Law) and that when the suspect’s wife opened the door they observed marihuana in plain view. The suspect’s wife then consented to a search of the entire apartment. Police claim to have found a pistol in the apartment.

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

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

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

NEW YORK STATE INMATE’S SUPERINTENDENT HEARINGS MUST BE RECORDED

2008-06-04T20:52:52Z

A New York State Prison inmate retains some basic due process rights despite being imprisoned. An inmate charged with a serious violation faces substantial punishment and should seek the advise of an experienced New York lawyer. When serious violations are alleged against the inmate, a Superintendent’s Hearing will be held. If the inmate is found guilty at the hearing, he must first file an administrative appeal. If his administrative appeal is denied, he can then file an Article 78 petition. An experienced New York attorney should be retained to represent the inmate on his or her Article 78 petition. One due process violation that should result in the reversal and even expungement of a guilty finding is the failure of the prison officials to tape record the hearing. All Superintendents’ Hearings must be “electronically recorded”. 7 NYCRR 254.6(a)(2).

The absence of the tape of the evidence relied upon by a hearing officer in a disciplinary hearing is a violation of the prisoner's fundamental due process rights. Scott v. Coughlin, 161 Misc.2d 777, 615 N.Y.S.2d 828 (Dutchess Cnty 1994).

The Scott case involved a Tier III Superintendent’s Hearing where Michael Scott was found guilty of assault and was sentenced to 365 days in the Special Housing Unit and six months loss of good time. Scott’s administrative appeals were denied.

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

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

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

NEW YORK’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE (CLAYTON MOTIONS)

2008-05-29T17:16:15Z

Experienced New York Criminal Attorney’s who are familiar with the New York Criminal Procedure Law are familiar with CPL § 210.40 which authorizes Judges to dismiss cases in the “Interest of Justice” and the 10 factors that Judges need consider when deciding whether to grant such a motion. The Motion to Dismiss in the Interest of Justice is also known to many New York lawyers as a “Clayton” motion after the 1973 case that originally discussed the parameters of this type of motion. At Tilem & Campbell, our criminal lawyers have successfully used Clayton Motions to resolve difficult cases and protect the interests of our clients.

Our experienced criminal attorney’s have also used the factor delineated in CPL §210.40 to resolve serious criminal cases by addressing the factors in letters to prosecutors. By using the Clayton factors to show a prosecutor that a Judge might dismiss the case, we are sometimes able to convince a prosecutor to offer an ACD or a Violation when they had previously refused to do so. This strategy has been used by lawyers at this firm to resolve cases such as Assault, Insurance Fraud and Gun Possession.

Recently Judge Rory Bellantoni, of the Westchester County Court in White Plains, after an analysis of all of the factors delineated in CPL §210.40 dismissed a felony Sexual Abuse case in the interest of justice. In that case, prosecutors were offering an ACD or a dismissal of the charges and then suddenly withdrew the offer. A number of other factors also supported the dismissal. The case demonstrates that even very serious felony cases can be dismissed under Clayton and not only less serious misdemeanors.

No two cases are alike and some cases even though serious on their face warrant further analysis. The 10 factors listed in CPL §210.40 are generally a great place to start in evaluating the value of a criminal charge. The bottom line is get an experienced criminal defense attorney involved early in the case to get the maximum benefit and to have the most options.

QUEENS COURT LIMITS APPLICABILITY OF NEW YOK CITY KNIFE LAW

2008-05-22T21:47:58Z

New York City Administrative Code 10-133(b) (Unlawful Possession of Knives or Instruments), makes it illegal to possess a knife with a blade over four inches in any public place in New York City. Criminal Lawyers and Judges have struggled with this section for years because the reach of the statute is so broad and because of how easy it is to violate this statute.

Firstly, there is no specific “mens rea” or mental culpability required for this offense. Most criminal statutes require a person to act intentionally, knowingly or recklessly. This statute does not even require that the person knowingly possess the knife. Most weapons offenses require that the possession be knowing possession. In addition, as all of us know, knives have many legitimate uses and even the average kitchen knife has a blade length over four inches. To demonstrate the reach of this statute, over twenty years ago a Queens Criminal Court Judge ruled that the statute could be applied to a Sikh priest who had the knife as part of a genuine religious observance.

Last month another Queens Criminal Court Judge ruled that possessing a knife over four inches in a car is not a violation of this New York City Administrative Code section since a person’s car, even though on a public street, is not a “public place.” In the recent Queens case, the knife was seen in the center console of a vehicle that was stopped by the police for a routine traffic infraction. The Court ruled that the center console of a person’s vehicle is not a public place and dismissed the New York City Administrative Code violation.

Unlawful Possession of a Knife is a violation, not a crime under the New York City Administrative Code. Although only a violation, a person accused of violating this section faces up to 15 days in jail and a fine of up to $300.
If you, a family member or friend receive a summons or are arrested for violating the New York City Administrative Code, take the matter seriously and contact an experienced New York Criminal Attorney.