New York Criminal Attorney Blog

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.

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.

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.

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

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.

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

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.

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.

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.

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.

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

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.

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.

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).

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

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.

In prior blogs I have explained that where the police choose to issue an arrestee an appearance ticket instead of detaining that person until they can see a judge, the police must thereafter file a sufficient accusatory instrument with the court on or before the return date listed in the appearance ticket. What action the courts can take where the required accusatory instrument has not been filed before the return date has not been definitively decided by the courts with some holding the court may dismiss the appearance ticket, while others have held the court must dismiss and still others have held the court cannot dismiss.
The differing holds are discussed in the following three sections.

Must Dismiss:
The Appellate Term For The Second Department Has Held
That Local Criminal Courts Must Dismiss Appearance
Tickets If Accusatory Instrument Is Not Timely Filed

The Appellate Term for the Second Department has held that dismissal of an appearance ticket is mandated if a proper accusatory instrument is not filed in relation to an appearance ticket at or before the appearance ticket return date:
"The appearance ticket is not an accusatory instrument and its filing
does not confer upon a court jurisdiction over a defendant. The
People’s failure to file a proper accusatory instrument with the court
mandates reversal and dismissal of the appearance ticket. . ."

People v. Hedick, 2002 NY Slip Op 50524U, 2 (App. Term 2nd Dept. 2002)

Numerous cases are in accord. See e.g., People v. Apollo, 10 Misc.3d 135A (App. Term 2nd Dept. 2005)(“Since there is no indication upon this record that the People filed a proper accusatory instrument with the court (see CPL 150.50), the court never acquired jurisdiction and dismissal of the summons relative to said charge is mandated.”); People v. O'Shea, 2003 NY Slip Op 51102U; 2003 N.Y. Misc. LEXIS 948 (App. Term 2nd Dept. 2003)(finding that a parking ticket is the “functional equivalent” of an appearance ticket, the court held that the case “must be dismissed” because a proper accusatory instrument had not been timely filed with the court); People v. Lowry, 184 Misc. 2d 306 (App. Term 2nd Dept. 2000)(the People’s failure to file a proper accusatory instrument mandates reversal of defendant's conviction and dismissal of the appearance ticket); People v. Peak Carting, Inc., 11 Misc.3d 4, 5 (App. Term 2nd Dept. 2005)(“This court has consistently held that after issuance of an appearance ticket, the failure to file with the court a proper accusatory instrument mandates reversal and dismissal of the summons.”).

The facts in People v. Consolidated Edison Co., 161 Misc. 2d 907 (N.Y. City Crim Ct. 1994) are similar to those encountered by countless individuals who are issued appearance tickets in New York City – their “paperwork” was not ready when they appeared on the appearance ticket return date. In the Consolidated Edison case, appearance tickets charging violations of the NYC Administrative Code were issued to the defendant (Consolidated Edison) and made returnable to the Criminal Court, Summons Appearance Part. Id. at 908.
On the specified return dates, the required accusatory instruments had not yet been filed. Counsel appearing on behalf of Consolidated Edison was informed that the defendant would be notified of the new return date. Id. This common practice was noted by the court in a footnote:
"In similar fashion, a defendant who has been served with
a desk appearance ticket (DAT) in New York County is given
a new return date by a court officer stationed outside of the
DAT Part if no accusatory instrument has been filed by the
return date."

Id. at 908 (FN 2)

Informations were subsequently filed, and the cases were placed on the court’s calendar for a newly scheduled date. Defendant filed motions to dismiss for lack of jurisdiction. Id. at 909. More specifically, defendant argued “that the failure of law enforcement agents to file accusatory instruments by the return date of the appearance ticket renders the court without jurisdiction.” Id. at 908.

The court granted defendant’s motion and dismissed all four cases holding “the continued prosecution on the same appearance ticket, accomplished by ‘adjourning’ the undocketed DAT, is impermissible. Rather, the appearance ticket, rendered a ‘nullity’ by the lapse.” Id. at 913. Not even the subsequent, but untimely filing of an accusatory instrument can save the prosecution – the case must be dismissed. The court was very clear on the dismissal requirement:
"Nor can the subsequent, untimely filing of an accusatory instrument,
in patent disregard of the mandate of CPL 150.50 (1), serve to cure
such constitutionally infirm proceedings. Rather, it must be dismissed
and, for the purposes of subsequent speedy trial motions or applications
for warrant of arrest pursuant to CPL 120.20, any recommencement
of the criminal proceeding must provide notice to the court of such
prior dismissal.

Id. at 914 (emphasis supplied)

Cannot Dismiss:
Local Criminal Court Cannot Dismiss Appearance
Ticket If Accusatory Instrument Is Not Timely Filed

While the Appellate Term for the Second Department has held the court must dismiss the appearance ticket if the accusatory instrument is not filed before the return date, the Appellate Term for the First Department has held the opposite. In People v. Durao, 3 Misc.3d 134A (App. Term 1st Dept. 2004) the court held that the law imposes no penalty on the People for their failure to comply with the requirement that a sufficient accusatory instrument be filed at or before the appearance ticket return date:
"Although section 150.50 (1) of the CPL requires that an
accusatory instrument be filed with the court at or before
the return date of the appearance ticket, the statute does
not impose any penalty upon the People for their failure
to comply with said requirement. As a result, an aggrieved
defendant has no available recourse other than, in the instances
where defendant appeared on the return date, to start the clock
running for speedy trial purposes."

Id.

See also People v. Giusti, 176 Misc.2d 377, 381 (N.Y. City Crim. Ct. 1998)(“A Criminal Court has no statutory authority to dismiss an accusatory instrument upon a failure to adhere to the requirements for desk appearance tickets in CPL 150.10.”); People v. Brisotti, 167 Misc.2d 688, 691 (N.Y. City Crim. Ct. 1995)(dismissal for an untimely filing of an accusatory instrument is not an available remedy under CPL 150.50); People v. Fysekis, 164 Misc.2d 627, 630 (N.Y. City Crim. Ct. 1995)(“Where the People do not come forward with an accusatory instrument by the return date of the DAT, even though CPL 150.50 states that they must, there is no basis for the court to dismiss the action where, as here, there is no accusatory instrument before the court.”).
In People v. Hausch, 187 Misc. 2d 202 (N.Y. J. Ct. 2001), the Tuckahoe Justice Court held that dismissal of an information is not required where the People fail to comply with the requirement that the information be filed at or before the return date of the appearance ticket. However, this decision is at odds with the numerous Appellate Term 2nd Department decisions cited above which are binding on the Tuckahoe Justice Court.

May Dismiss:
Local Criminal Court May Dismiss Appearance Ticket
If Accusatory Instrument Not Timely Filed

Finally, the Fourth Department has held dismissal is discretionary where a defendant appears in court as directed in an appearance ticket but no accusatory instrument has been filed by the officer as required by CPL 150.50(1). In Snead v. Aegis Secur., Inc., 105 A.D.2d 1059 (4th Dept. 1984), the Rochester City Court had dismissed an appearance ticket in an underlying, related criminal action against Robert Snead because an accusatory instrument had not yet been filed before Snead appeared in that court as directed in the appearance ticket. In Snead, the city court dismissed the very day the defendant appeared as instructed. The city court didn’t make him wait for hours or give him a new date.

Accordingly, where the appearance ticket is issued will determine if the court must, can’t or may dismiss the appearance ticket and underlying charges should the police officer fail to file an accusatory instrument with the court on or before the return date.

In New York, if a person is formally arrested, they can be searched incident to that arrest. However, can the officer also search a person if the person could have been arrested but the officer decides to issue that person an appearance ticket on scene instead? The answer is “sometimes.” Generally, the police can search a person they issue an appearance ticket to. However, the New York courts have frowned on a blanket right to search where traffic infractions are involved.

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) see also People v. King, 102 A.D.2d 710 (1st Dept. 1984)(Where an “officer intends to issue an appearance ticket in lieu of a lawful arrest, he had the concomitant right to ‘pat down’ the defendant.”).

In Hazelwood, 104 Misc.2d 1121, the court held that the police could search a person they detained for the purpose of issuing that person an appearance ticket. Noting that the officer could have arrested the person and then searched the person incident to that arrest, the court observed: “to hold that a search is not permissible because an arrest did not occur in a case where the defendant was subject to arrest, but the officer gave the defendant a break, is an injustice to the officer.” Id. at 1124.

The court considered the detention of a person for the purpose of issuing that person an appearance ticket to be an arrest situation. To allow officers to search a person they lawfully arrest but not search that same person if they choose to issue an appearance ticket instead of arresting that person (in accord with public policy) would eliminate the incentive to issue appearance tickets. Id. at 1124. Accordingly, the court held “that the evidence seized by the officer should not be suppressed as derived from a search incident to the issuance of an appearance ticket in lieu of the lawful arrest which was initially warranted under the circumstances of this case.” Id. at 1124-1125.

In a more recent case, the Fourth Department concluded that where a police officer is authorized to arrest a person for violating a petty offense in the officer’s presence, the officer is authorized to search that person incident to that lawful arrest without regard to whether the officer feared that such person was armed. People ex rel. Johnson v. N.Y. State Div. of Parole, 299 A.D.2d 832, 834 (4th Dept. 2002). While not citing to Hazelwood, the Johnson decision followed the same reasoning as Hazelwood concluding that the police officer was still authorized to search such person where, the officer was planning on issuing an appearance ticket in lieu of arrest but simply hadn’t told the person yet. Id. at 834.

For more information, please 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.

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.

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.

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

The New York State Legislature has acknowledged that CPL140.10(1)(b) prohibits an officer from making an arrest or issuing an appearance ticket for a traffic infraction not committed in his or her presence and has determined that there are only three specific traffic infractions where an officer should be allowed to arrest or issue an appearance ticket despite the fact that said infractions were not committed in the officer’s presence.

Specifically, the New York State Legislature has authorized an officer to arrest or issue an appearance ticket in lieu of arrest where the motorist leaves the scene of an incident involving property damage in violation of VTL 600(1) or leaves the scene of an incident involving injury to certain animals in violation of VTL 601.

Indeed, VTL 602 states in pertinent part that an officer may arrest “in case of violation of section six hundred and section six hundred one, which in fact have been committed, though not in his presence, when he has reasonable cause to believe that the violation was committed by such person.” Therefore, with regard to VTL 600(1) and VTL 601, both non-criminal traffic infractions, the Legislature has determined that officers may arrest or issue appearance tickets even where said infractions are not committed in the officer’s presence.

Additionally, the Legislature has authorized an officer to arrest where the motorist has committed the violation of Driving While Ability Impaired by alcohol in violation of VTL 1192(1) if the motorist was involved in an accident. The relevant statute, VTL 1194(1)(a) states in pertinent part:that a police officer may arrest a person, without a warrant in case of a violation of subdivision (1) of section 1192 of this article, "if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer's presence, when the officer has reasonable cause to believe that the violation was committed by such person."

Accordingly, only if a motorist is believed to have committed VTL 600(1); VTL 601 or VTL 1192(1) involving an accident can an officer arrest even though these non-criminal traffic infractions were not committed in the officer’s presence.The Legislature’s Exclusion of Some Traffic Infractions From The Precepts Of CPL 140.10(1)(b) Establishes An Irrefutable Inference That Those Not Excluded Were Intentionally Not Excluded

That an officer may not arrest for non-criminal traffic infractions not committed in his presence except where said infraction is for violating VTL 600(1); VTL 601; and VTL 1192(1) involving an accident is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York Statutes 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.).
The New York Legislature has in fact judicially created several exceptions to the general rule found in CPL 140.10(1) which prohibits an officer from making an arrest or issuing an appearance ticket for non-criminal traffic infractions not committed in his presence. These express exceptions created by the legislature pertain to violations of VTL 600(1); VTL 601 and VTL 1192(1) involving an accident.

It must be noted however that the Legislature did not except any other non-criminal traffic violations from the precepts of CPL 140.10(1). Therefore, under New York Statute 240, there is an irrefutable inference that the Legislature purposely chose not to exclude any other non-criminal traffic infractions from the precepts of CPL 140.10(1)(a).

Continue reading "Appearance Tickets In New York: New York Has Carved Out Only Three Specific Exceptions Which Allow An Officer To Arrest A Person For A Traffic Infraction Not Committed In the Officer’s Presence" »

The Wall Street Journal Reported last week, that criminal charges were being prepared against British Petroleum and/or individuals who worked for British Petroleum and who were supposedly responsible for the oil spill that occurred in the Gulf of Mexico last year after the Deep Water Horizon drilling platform caught fire. This news highlights another troubling trend in the national trend toward over criminalization; "there are no accidents."

Traditionally, criminal liability required two elements; a criminal act and a criminal mind referred to in Latin as "MENS REA". The criminal mind required for criminal liability traditionally and under New York law was either that you acted intentionally, knowingly, recklessly or with criminal negligence. Specifically absent from the list was acting negligently or carelessly. Under New York law one who merely acts negligently or carelessly could be held liable for financial damages but could not be found guilty of a crime. As we over criminalize our society the traditional rule is giving way to attempts to hold someone criminally liable for every tragedy.

Recently in New York, three individuals were indicted by a grand jury, tried and acquitted of Manslaughter and related charges after a tragic fire in the Deutsche Bank building in lower Manhattan tragically killed two firefighters. The sadness and the outcry were great as the City attempted to place blame for the tragedy. Ultimately, a site safety officer, a contractor and an an abatement foreman, all of whom worked at the site were indicted for Manslaughter under the theory that they recklessly caused the death of the two firefighters. All were ultimately found not guilty in separate verdicts.

Whatever the tragedy, our society has moved to the point where it is not enough to merely hold someone civilly responsible and force them to pay for the damage they caused. Rather someone must be indicted, tried and if convicted sent to prison. It does not really matter whether the tragedy is a crane collapse, elevator accident, collapse of a company, oil spill or fire. The issue of who is to be held criminally responsible seems to take a back seat to the outrage and the need to find anyone who can be sent to prison. In the Deutsche Bank case, the jurors who were interviewed after specifically rejected such scapegoating.

As we have discussed in our prior blog, the element of having a criminal mind has been substantially relaxed or eliminated in many newer statutes, particularly in statutes that punish "Environmental Crimes." As a result, convictions are easier to obtain in many of these cases brought as a result of tragic accidents.

Continue reading "OVER CRIMINALIZATION - Part III - There Are No Accidents" »

As of 2008, 2 million youths are arrested each year. While the original intent of the juvenile justice systems created throughout the country was to prevent stigmatization and collateral consequences that could naturally flow from an arrest. As experienced criminal defense lawyers know the system is less than perfect in that regard. Examples abound of the collateral consequences that can and sometimes do flow to juveniles who are arrested.

For example, children can be suspended or expelled from school under the federal "Gun Free Schools Act (GFSA) for certain weapons offenses committed on school grounds. The GFSA requires that schools that receive federal funds expel a student for one year for certain weapons offenses. A student can be expelled even if found not guilty of the weapons offense. Many states have expanded this to require expulsion for weapons offenses committed off school grounds (New Jersey) or in the case of Missouri any student charged with a felony can be suspended or expelled even if they were found not guilty of the offense.

A common belief is that individuals arrested as youths have their records destroyed when they reach the age of 18. This is not necessarily the case. In New York, for example, there is absolutely no provision for expungement of criminal records and the statutes that require that records be sealed, never completely seal the records leaving the records accessible for a host of reasons. This can lead to more limited employment options for youths who have been arrested, even if those records were eventually sealed.

In addition, the misapplication of sex offender registration databases can have long lasting effects on youths who are charged as juveniles with sex offenses. In Michigan, for example, 8% of the sex offender registration list is made up of juveniles including children as young as 9 years old. In a well publicized and outrageous case in New Jersey a 14 year old girl was arrested and faced child pornography charges after she posted naked pictures of herself on myspace. The charged carries a possible sentence of up to 17 years and mandatory registration as a sex offender.

Sex offender registration laws, which arguably could have the most severe collateral consequences for youths, are a prime example of just how far off mission the juvenile justice system has drifted. Clearly, the aforementioned 14 year old needs help. But she is clearly not the intended target of either child pornography laws or sex offender registration laws which were originally passed to register sexual predators.

The issue of the over criminalization of our society and the resulting collateral consequences that flow to a large percentage of the population has a tremendous cost to our youth and to our economy at large as a large percentage of people are either unemployable or underemployed as a result of the consequences of an arrest. The issue and costs are clearly too significant to ignore.

Continue reading "OVER CRIMINALIZATION - Part II - COLLATERAL CONSEQUENCES OF ARRESTS" »

The issue of the over criminalization of our society has been the focus of an increasing amount of media coverage and even led to recent hearings in congress. As discussed in the past in this blog (September 27, 2011 blog), the number of federal criminal statutes has increased to over 4500 and the watering down of some basic protections has led to convictions of people without criminal intent. Now, a recent study reveals that the number of youths being arrested has steadily increased to a staggering 30% of all youths by the time they turn 23 years old. This number while staggering is not surprising in light of the trend toward over criminalization and the increased reliance on police to address problems.

The number itself bears repeating. Thirty percent of youths are arrested by age 23, nearly one third of all youths. This number reflects all youths, not any particular group and is therefore likely higher among boys than girls and among minorities than non-minorities. The explanation however, is a lot more elusive. Certainly, crime nationally is on a protracted decline but it seems the propensity to arrest, for even minor offenses is clearly on the upswing. There is clearly less of a willingness on the part of the police to allow a school or the parents to handle a minor infraction.

As a criminal defense lawyer, involved with the criminal justice system for more than 20 years, I have noticed, a dramatic increase in the willingness of the police to intervene in what used to be matters often left to the school or the parents. Recent examples that I have noticed include a young high school student who "keyed" another student's car in the high school parking lot is arrested and charged with the felony of Criminal Mischief for damaging property in excess of $250. Another example involves youths who attend parties where underage drinking occurs are arrested rather than being brought to their parents. Often times the parents who hosted the party are arrested themselves, even if they didn't know about the drinking.

The potential for these arrests as youths to have long lasting effects even into adulthood is a legitimate fear as youths with arrests and convictions can lose valuable civil rights, the ability to obtain professional licenses and the ability to get jobs. The study which led to the report concluded that risk factors such as "being poor, struggling in school and having a difficult home" life were all factors that increased the likelihood of a youth being arrested.

As we discuss in a future blog, the consequences of an arrest, even if it doesn't result in a conviction can be devastating to a young person and his or her future plans. The societal issues that have created this problem need to be dealt with. However, more immediately, if you or a loved one has been arrested for an offense you should immediately obtain experienced legal representation who is in a position to explain the process and the potential consequences whether or not a conviction results.

Continue reading "OVER CRIMINALIZATION - Part I, LEADS TO STAGGERING NUMBER OF YOUTH ARRESTS" »

As discussed in our previous blog the Greenburgh Drug Court was so out of control that Court officials eventually had to transfer all of the cases out of the Court to protect the rights of those participating in its Drug Court. As it turns out, Drug Courts in general have become controversial and several studies that have been released this year raise several areas of concern for the people convicted of drug offenses who participate in these programs. Many of the concerns raised are related to the issues that derailed the Greenburgh Drug Court.

Generally, Drug Courts are a type of problem solving Court a new breed of specialized Court that attempts to solve a community problem such as drug abuse, domestic violence or guns. In the case of Drug Courts, participants, individuals arrested for drug related or drug motivated, non-violent crimes are asked to plead guilty in return for entering the Drug Court system where a "carrot and stick" approach will be used to get the participant to deal with their addiction. Participants who are successful are rewarded with such things as applause, certificates, praise and ultimately dismissal of their charges. Participants who are not successful are punished by being required to write essays, do community service, attend extra court sessions and in some cases lengthy jail sentences.

In a series of reports issued this year and discussed in a National Association of Criminal Defense Lawyers magazine article, the efficacy of the drug court model, as well as its expense and denigration of basic constitutional principles are called into question. In the Drug Court model used most often, drug court participants are often forced to plead guilty to crimes more severe than they might without Drug Court in the hopes that they will be able to get the charges dismissed after completing the Drug court program. In this model, as a cost of entering Drug Court, broad waivers are required, contracts and releases are signed and guilty pleas are entered giving the Court the "stick" to punish those who fail.

In the Greenburgh case, by way of example, the Court wanted to sentence the participant to 1 year in jail for a shoplifting case, a sentence so disparate compared to what she would have gotten without Drug Court that it is shocking. One of the criticisms of the Drug Court model is that it leaves many people who accept drug treatment through the Drug Court worse off than if they had simply handled their case through the normal Courts.

In addition, the reports cite violations of the Sixth Amendment right to counsel, a right that was also violated in Greenburgh and a concern that the Drug Courts maybe a place to hide cases involving questionable 4th Amendment search and seizure police actions.

In sum, these reports raise legitimate concerns for Court Administrators who are looking to get the most out of dwindling resources. However, they also raise legitimate concerns for anyone accused of a drug related or drug motivated, non-violent crime. The reports concede the numerous people that have been helped by Drug Courts. But anyone considering entering a Drug Court program needs experienced criminal defense counsel who can help them to get to have all of the information and go into the program with their eyes wide open about the expectations of the program and the consequences of failure.

The Office of Court Administration, transferred all of the cases out of the Greenburgh Drug Court this week in an apparent response to complaints made by Tilem & Campbell partner, Peter H. Tilem. The problems began when a client of Tilem & Campbell, unhappy with her representation in the Town of Greenburgh Drug Court hired the firm to represent her. When Mr. Tilem, a 20 year veteran of the legal profession, and a member of the bar of New York and Connecticut as well as the United States Supreme Court and numerous federal courts initially appeared in Court he was told that he was not permitted to practice before the Greenburgh Drug court. From that moment the situation got worse.

Mr. Tilem observed that this Court was violating numerous constitutional rights of his client and potentially others and reported the conduct to the Deputy Chief Administrative Judge of New York State. After only a couple of hours after the report was made Judge Friedman one of the two judges in the Greenburgh Drug court agreed to comply with the suggestions of the supervising judge. However, when Mr, Tilem appeared next time before Judge Forster, Judge Forster steadfastly refused to comply with basic due process requirements as suggested by the supervising judge. Judge Forster continued to attempt to keep Mr. Tilem from representing his client and permitted the drug court “team” a group of non-judges to vote on matters that can only be decided by a judge such as the issues of bail or sentencing.

Judge Forster told Mr. Tilem and a reporter for the New York Law Journal who wrote a front page article about the matter that because the Court was funded through a federal grant and not through the Court system that they could have their own rules and that the supervising judges were not their supervisors. Judge Forster obviously learned differently when Judge Alan D. Scheinkman, the Administrative Judge for the Ninth Judicial District transferred all of the cases out of the Greenburgh Drug Court to the White Plains Drug Court and leaving Judges Forster and Friedman with no Drug Court cases.

Prior to the actions of Judge Scheinkman, Tilem & Campbell filed an Article 78 seeking to restrain Judge Forster and members of the Drug Court “Team” from continuing a list of illegal activities and from sentencing the firm’s client. On November 25, 2011, an acting Justice of the Westchester Supreme Court signed an order barring Judge Forster from sentencing the Tilem & Campbell client and from continuing other illegal practices that were going on in the Court.

Judge Forster had threatened to give the client one year in the Westchester County Jail for a shoplifting case, a Petit Larceny of less than $250 from a TJ MAXX in the Town of Greenburgh. It was only after Mr. Tilem pointed out that the Court could not conduct the sentencing because Mr. Tilem had not had the required 24 hours to review the pre-sentence report from the Department of Probation, that the sentencing was adjourned giving Tilem & Campbell enough time to file the Article 78 and get the restraining order.

Yesterday, a Judge in the Westchester County Court reversed Judge Forster on the issue of bail. Judge Forster had previously remanded the client, meaning that she was held without bail. Yesterday, after an extensive bail hearing County Court Judge John P. Colangelo agreed that the client should be released on bail.

“Other Judges ruled against Judge Forster every step of the way,” according to Mr. Tilem. “The Supreme Court obviously decided that there was enough evidence of impropriety to issue a stay, an extraordinary remedy. In addition, she was reversed on bail and had her calendar taken away, “according to Mr. Tilem."

Continue reading "GREENBURGH DRUG COURT VIOLATES CONSTITUTIONAL RIGHTS Part-1" »

In New York there are two different Driving While Intoxicated charges. Driving While Intoxicated under VTL 1192(3) is based upon the officer’s opinion that a motorist is intoxicated. This charge has nothing to do with one’s Blood Alcohol Concentration (BAC) and is referred to as common law DWI. The other Driving While Intoxicated charge in New York is based solely upon one’s BAC being at or above .08 as determined by a chemical test such as a breathalyzer type test and is found at VTL 1192(2).
When one is charged under VTL 1192(2) based upon a BAC of .08 or above, the allegation of a BAC of .08 or above must be supported by non-hearsay evidence. What is called the accusatory instrument will be deemed insufficient if the allegation regarding the .08 BAC is not supported by non-hearsay evidence. In other words, it is insufficient for one officer to allege that the defendant’s BAC was .08 unless that officer administered the test or witnessed the test.
For example, in People v Bonner (Lisa), 31 Misc. 3d 142A (App. Term 2nd Dept. 2011), the Court found the Information (accusatory instrument) insufficient where Officer
Montemurro alleged that defendant’s breath test result revealed a .16% BAC but he did not state that he had administered the test, or observed the test being conducted. Furthermore, the Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result included the signature of another officer who had conducted the breathalyzer test. Further, the printout that was signed by another officer did not attest to any personal knowledge nor was it properly verified.
Accordingly, the Court found that the lower court should have granted defendant’s motion to dismiss because “[t]he information did not set forth nonhearsay allegations which, if true, established every element, and defendant's commission thereof, of the offense charged.” Id.

Continue reading "Driving While Intoxicated Per Se In Violation of VTL 1192(2): Sufficiency of Information: Information Must Contain First-Hand, Non-Hearsay Evidence Regarding Breath Test Result" »

As criminal defense lawyers most of the time we represent the rights of the accused but sometimes we are called upon to represents the right of a victim. In the typical case, the victim report a crime to the police, the police investigate, make an arrest and the case is referred to the District Attorney's Office. The victim needs no lawyer because the prosecutor will prosecute the case and often assist the victim in getting compensation from the perpetrator or the Crime Victim's Assistance Fund.

However, all too often, especially in New York City, criminal cases are not handled in the typical way leaving victim's to fend for themselves. In a recent case handled by this office and as reported in the New York Post yesterday, an individual who was ripped off by a car dealership and whose signature was forged on loan documents for a car was repeatedly denied the right to make a police report by the New York City Police Department. With no police report, no investigation and no arrest its as if the crime did not occur and the victim must deal with the consequences, in this case a monthly car loan bill that he didn't bargain for, by himself.

By getting an experience criminal defense lawyer involved we were able to file complaints, with the Bank that issued the loan, the New York State Attorney General's Office, credit reporting agencies such as TRW, Experian and Equifax and the United States Federal Trade Commission. In addition, we are working on getting the loan rescinded. As a result of our work the Bank has already terminated its relationship with the car dealership which has more than 40 complaints against it to the New York Department of Consumer Affairs.

The practice of not taking police reports is unfortunate but also wide spread as has been reported on several occasions by the New York Post and other Newspapers. It appears to be a result of a combination of laziness, sometimes ignorance and is also a symptom of how the Police Department tracks crime statistics. Simply put, if there is no police report the crime didn't happen so crime must be going down. But the practice endangers the public and causes inconvenience and expense for the victims.

Here is a dealership that has over 40 complaints against it and rather than investigating what is happening, the police allow this dealership to continue to rip people off. Sometimes, the consequences of not taking a report or investigating a crime can be even more severe. Its at those times that an experienced New York Criminal defense lawyer can help.

Continue reading "NEW YORK POST ARTICLE - SOMETIMES VICTIMS NEED LAWYERS ALSO" »

An article in today's Wall Street Journal entitled "As Federal Crime List Grows, Threshold of Guilt Declines" focuses public attention on two trends that has long been followed by Federal Criminal Defense lawyers and has raised concerns among civil rights advocates and attorneys. The first trend, involving the rapid and uncontrolled growth of federal crimes (as distinguished from state crimes like murder, rape, assault, etc) has seen the number of federal crimes rise from just 20 to about 4500. The other trend is the erosion of the proof necessary to prove many federal crimes and send someone to prison.

The uncontrolled growth of federal criminal statutes has resulted in many individuals who are clearly not criminals getting caught up in the criminal justice systems for acts that they were clearly not aware constituted crimes. In legal thought there are generally considered two types of crimes. Crimes that are called in Latin malum in se, meaning wrong in itself are crimes that are generally obvious or inherently wrong or evil such as murder, stealing, assault or rape. The other type of crimes are called malum prohibitum in Latin, meaning wrong as prohibited are those crimes which are wrong only because they are prohibited by a statute such as gun possession, drug possession, copy write infringement, tax evasion or illegal immigration.

Since most crimes that are malum in se crimes, the obvious ones, have already been illegal, the new crimes are the malum prohibitum crimes, the crimes that are not so obvious. To make matters worse, according to the Wall Street Journal article, federal criminal offenses are not limited to one section of federal law but are scattered among 42 of the 51 titles of the United States Code. That means there is no one place where you can look to see if your acts are illegal. So the combination of having non obvious criminal offenses scattered all around the law results in frequent accidental transgressions of sometimes serious laws.

The laws can be quite surprising and most people would not be on notice that they were violating a criminal law. The Wall Street Journal article sites several examples such as a native Alaskan selling an Otter for $50 to a non-native Alaskan without first turning the Otter into some type of handicraft. This violated the Marine Mammal Protection Act and landed the offender on Probation for two years and gave him a permanent criminal record. As everyone knows ignorance of the law is no excuse and ignorance of the law did not help this poor individual from serving probation.

In another outrageous example a fisherman who freed a humpback whale that had been caught in his net was convicted of harassing an endangered species because the law requires him to allow the whale to remain tangled while he notifies authorities and they decide to send the government "expert" to free the whale. The fisherman now goes through life with a misdemeanor criminal record.

The examples of law abiding citizens being convicted of obscure federal statutes goes on and on and has been widely publicized among criminal defense lawyers. In our next blog we will talk about how important and ancient legal protections are being eroded in new federal crimes and how law abiding citizens are being caught up by theses laws.

As we have discussed in previous blogs New York has a speedy trial statute than when used by a knowledgeable and experienced criminal defense lawyer can often help get a case dismissed or effect a better plea bargain. Often, when litigation begins over whether the "speedy trial clock" has run out on the prosecution, the prosecutor will try to claim that certain adjournments are excludeable from speedy trial calculations because the defendant had consented to the adjournment.

Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel's failure to object to the adjournment or failure to appear does not constitute consent. People v. Smith, 82 N.Y.2d 676, 678 (N.Y. 1993).

Defendant’s Failure to Object to Adjournment Not Consent: A mere failure by defense counsel to object to an adjournment does not constitute "consent" within the meaning of CPL 30.30 (4) (b). People v Liotta (79 NY2d 841, 843),

Defendant’s Agreeing to a New Date or Notice of a New Date Not Consent:

Defense counsel’s reply “That’s fine” is not deemed consent to an adjournment where court indicated it would notify the parties of the date by mail. “That’s fine” was simply an agreement to the method court would use to notify parties – it was not consent to adjournment. People v Brown, 69 A.D.3d 871 (2nd Dept. 2010) see also People v. Nunez, 47 A.D.3d 545 (1st Dept. 2008)(“Although defense counsel said "fine" in response to the trial court's suggestion of August 21 as an adjourned date, in context this amounted to a representation that such date was not inconvenient, but did not imply consent.”).

Defense Counsel Participating in Picking New Date Not Consent to Adjournment

In People v D.D., the court found that counsel’s response to the court’s questions about a convenient adjourn date did not qualify as defense counsel actively participating in setting that date such that consent to adjourn could be inferred and the time would be subject to exclusion. 2010 NY Slip Op 50837U, 4, 27 Misc. 3d 1221A (FN 2)(N.Y. City Crim. Ct. 2010).

In addition, a delay caused by plea negotiations is only excludable if the defense requested or consented to the delay. People v. Manning, 52 A.D.3d 1295 (4th Dept. 2008).

A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent. CPL 30.30(4)(b). Therefore, unless an unrepresented defendant is specifically advised of his right to a speedy trial and the consequences of his consent he may not be deemed to have consented even if he indicates that he is consenting to an adjournment.

In the end, It is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged. Where the People fail to satisfy this primary obligation, they must assume responsibility for the delay that follows the adjournment. People v. Cortes, 80 N.Y.2d 201, 215-216 (N.Y. 1992) see also People v. Reyes (Carlos), 24 Misc. 3d 51, 55 (N.Y. App. Term 2009)(“As the People failed to satisfy their burden of creating a record establishing that the period from August 10, 2005, to September 28, 2005, is excludeable on the basis of consent, and as they have established no other ground for its exclusion, it must be charged to them.” In other words if there is an ambiguity in the record, the People will be charged for the adjournment.

Continue reading "NEW YORK SPEEDY TRIAL - Part IV - The Defendant's Consent to an Adjournment Must be Clear." »

In the first two parts in our series of blogs on New York's assault weapon ban we discussed the absolute silliness in banning firearms based upon certain cosmetic features. Now we discuss the most troubling part of the ban from the perspective of the citizen who finds himself charged under New York law with possessing an Assault Weapon or the experienced criminal defense lawyer who takes on the responsibility of defending the citizen.

Penalties

Generally, possession of a so called "assault weapon" in New York is a violation of Criminal Possession of a Weapon in the Third Degree under New York Penal Law sec 265.02 (7). Possession of a "Large Capacity Ammunition Feeding Device" is a violation of Penal Law sec 265.02 (8). Both are class "D" violent felonies in New York and are therefore punishable by a definite sentence of up to seven years in prison. A person charged under this section could get a sentence of Probation in lieu of a state prison sentence if the judge thought it was appropriate. In other words, prison is not mandatory.

One of the more troubling provisions of this law is that possession even inside one's home is a "D" felony despite recent United States Supreme Court Decisions that indicate that there is a constitutional right to possess a firearm in your home for self defense. In addition, a very troubling provision makes it a "C" felony to possess a loaded assault weapon inside of your home. The problem is that the definition of "loaded" in New York is very broad. To understand the definition of loaded in New York please see our blog entitled "When Your Unloaded Gun Is Really Loaded" Under New York's definition of loaded it would seem that any firearm or assault weapon inside your home would be considered loaded. In addition, possession of any "loaded" firearm inside your home if you have ever in the past been convicted of a crime is a "C" felony. That means that if you possess a loaded firearm inside your home (again it would be hard to imagine a situation where a gun in your home was not considered loaded under New York Law) and have been previously been convicted of Reckless Driving, you are facing a "C" felony. The significance of a "C" felony is that you must receive a mandatory minimum of 3 and 1/2 years in state prison and you can receive up to 15 years in prison. In other words, probation is not an available sentence. Only prison is available.

These cases are highly technical and obviously very serious. The consequences of a conviction are tremendous. Tilem & Campbell senior partner Peter H. Tilem has spent twenty years involved in first prosecuting and then defending gun and weapons cases in New York and Federal Court with outstanding success. To discuss an assault weapon case or any criminal case contact Peter Tilem by telephone or visit us on the web at handgunattorney.com.

In Part I in our series of blogs covering New York's so called "assault weapon" ban we began to highlight some of the most troubling parts of a ban on certain weapons based purely on cosmetic features. At Tilem & Campbell we handle a large number of gun and weapons cases and so are in a unique position to see how some of these laws are applied. We continue with other troubling provisions of New York's assault weapon ban.

One of the most troubling features of the ban is the ban on flash suppressors. The fact is that there are many devices that attach to the barrel of a rifle and which look alike. There is no definition in the New York Penal sec 265.00 of a flash suppressor. Prior to 2004 when the Federal Assault Weapon ban expired the Federal Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) was responsible for characterizing the various devices that can be attached to the barrel of a gun. Since the federal law expired the BATFE no longer will do that. So manufacturers now attach devices to the barrel of rifles that look like flash suppressors but which manufacturers classify as "muzzle brakes". These devices look like flash suppressors but are seemingly legal under New York law since the law specifically bans flash suppressors. The problem is that New York does not provide any definition of flash suppressor (or muzzle brake) and the difference can mean the difference between not committing any criminal offense and doing 15 years.

In addition, to the ban on firearms containing certain random cosmetic features, the Federal Assault Weapon Ban also banned detachable magazines that held more than 10 rounds. The ban on detachable magazines similarly expired under Federal Law but still exists in some states. For example New York has a ban on magazines that can hold more than 10 rounds and New Jersey has a ban on magazines that can hold more than 15 rounds. (Since these numbers were selected at random there is no uniformity among the various states that imposed their own ban.)

The New York ban on high capacity magazines, or what are called "Large Capacity Ammunition Feeding Devices" in the New York Penal Law only bans such devices manufactured after September 14, 1994. Since firearms magazines do not have serial numbers or date of manufacture this provision of New York's assault weapon ban is largely unenforceable.

Peter H. Tilem, senior partner at Tilem & Campbell had been a practicing criminal lawyer for 20 years. He started his career as a prosecutor in the New York County district attorney's Office and was assigned to the Firearms Trafficking Unit in that office. As a defense lawyer he has handled numerous gun and weapons cases with great success. If you or a loved one has been arrested, questioned summoned or charged with any gun or weapons case contact our office to discuss the case. Or you can visit us on the web at www.handgunattorney.com for additional information.

The Assault Weapon Ban which was passed as both a federal law and State law in many jurisdictions after a swell of media hysteria and which has since elapsed as a Federal ban is still alive and well in New York and New Jersey and a recent amendment to New York law has left a dangerous trap for innocent New Yorkers. Peter Tilem, the senior partner at Tilem & Campbell and former firearms trafficking prosecutor in the City of New York has dealt with a number of these cases as both a prosecutor and a defense attorney.

The Federal Assault Weapon Ban which was passed as a 10 year ban on "Assault Weapons" expired in 2004 after it was found to be absolutely useless. The original ban which is still in effect in New York banned rifles purely based upon cosmetic features. Since automatic weapons were already illegal, the so called assault weapon ban prohibited semi-automatic weapons that had two or more cosmetic features that were deemed to make them "Assault Weapons" the list of cosmetic features includes: a pistol grip, folding or collapsible stock, bayonet lug, flash suppressor and believe it or not if it was a pistol, the weight of the pistol. If the pistol weighed more than 50 ounces that was one of the two features that would make it an "Assault Weapon". (Up until the hysteria surrounding the Assault Weapon Ban we were told that it was the small easily concealable pistols the should be banned.) In addition, certain guns were banned by name.

It should be noted that in New York but not New Jersey if you possessed one of these guns prior to September 14, 1994 you could continue to own the so called assault weapon. This provision made the law largely unenforceable since the prosecutor could not prove, if the gun was manufactured before September 14, 1994 when it was first possessed.

The major problems with the continued assault weapon ban in New York is that these so called assault weapons are widely available all over the country and while the ban in New York seems largely regulatory in nature in that it bans purely cosmetic features on rifles, pistols and shotguns the law seeks to send people to prison for up to 15 years in prison for unwitting violation of the New York ban. Rifles in New York State (outside of New York City) are not considered firearms and no licenses are needed to purchase or possess them but its legality can turn on some very specific, ill defined features and can turn an otherwise lawful rifle into an assault weapon.

The assault weapon ban remains a reality in New York and remains very convoluted in the way the laws are written and applied. The law firm of Tilem & Campbell handles a lot of firearms, weapons and assault weapons cases throughout New York State with tremendous success. Peter H. Tilem has 20 years of experience in both prosecuting and defending gun cases. If you have been arrested or charged with any weapon or gun charge, please contact this office to schedule a free consultation or visit us on the web at handgunattorney.com.

Aggravated Harassment in the Second Degree defined under New York Penal Law 240.30, makes it a class "A" misdemeanor, punishable by up to one year in jail to basically cause a communication to occur with another person by mail or telephone or other electronic means in a manner likely to cause to alarm or annoyance if that communication is made with the intent to annoy, harass, alarm or threaten a person. When the New York State Legislature talks about communication what they are really talking about is speech. New York State is attempting to regulate what you say and that is problematic in light of our Constitution's First Amendment protection of speech; even unpopular or disagreeable speech.

In a decision issued earlier this week and has huge implications for New York criminal defense lawyers, Judge Valerie Alexander ruled that Penal Law sections 240.30 (1) and (2) were unconstitutional in that they were vague and over broad. She ruled that this Aggravated Harassment statute is analogous to one found unconstitutional by New York's highest Court in 1989 and that Federal decisions have agreed that the statute is unconstitutional.

Penal Law section 240.30 clearly attempts to punish particular speech. The issue of what speech may be regulated by law in light of the Constitutional protections associated with speech has been the subject of numerous United States Supreme Court decisions. While not an absolute right (for example in might be permissible top punish someone for yelling fire in a crowded theater), freedom of speech is a fundamental right worthy of substantial protection. The New York State legislature made no attempt to distinguish in the statute between protected speech and unprotected speech or define a line that may not be crossed. Rather New York attempted to punish all speech that was annoying or alarming. Clearly, that is unconstitutional. The judge indicated that a criminal prohibition against communicating in an alarming or annoying way is by its nature facially unconstitutional.

The facts of the case that was dismissed by Judge Alexander involved allegedly harassing messages left on the voice mail of an Assistant District Attorney in Nassau County. The allegations were that Nicolas Pierre-Louis left a series of messages in a loud voice in which he made statements such as "I'm coming at you with fury"; "piece of shit faggot fucking cock sucking cock"; and "I will rain hell on your office and make sure heads roll". The calls included other loud, profane and threatening statements that the Judge agreed were not among the type of statements found illegal in prior cases.

The bottom line is that the Aggravated Harassment statute that was thrown out here constitutes a very popular and over used charge by prosecutors. This sensible ruling has the potential to impact thousands of cases that are pending and an uncountable number of future cases. Anyone who has an Aggravated Harassment charge currently pending or gets arrested for this charge should immediately notify their attorney about this case or contact this office to discuss your constitutionally protected rights.

If you or a loved one has been arrested for Aggravated Harassment in the Second Degree, contact one of the experienced criminal defense lawyers at this office to discuss the facts of the case and your options. Do not plead guilty merely because it is the easiest path to take. The fact is that you may not be guilty of any offense.

Capping an unbelievable three weeks, New York Criminal Defense Firm, Tilem & Campbell plea bargained three cases with truly remarkable results. While, Tilem & Campbell has successfully gone to trial and won many criminal cases, it does not always take a trial to get a successful outcome in a criminal case. With experience and expertise the lawyers at Tilem & Campbell are often able to negotiate truly spectacular deals for their clients. Having two former prosecutors obviously helps.

In the first case resolved in late June, our client was charged with shooting at an individual with an illegal handgun. The client was charged with felony Reckless Endangerment and Criminal Possession of a Weapon in the Second Degree, both felonies. On the Weapons charge the client faced a prison sentence of 15 years in prison with a mandatory minimum of 3 ½ years in prison. On the Reckless Endangerment in the first degree charge the client faced up to 7 years in prison. After months of litigation and negotiation, the client pled guilty at the end of June to a class “B” misdemeanor with no jail, no probation and only a conditional discharge. The “B” misdemeanor the client pled guilty to was an Attempt to Commit the Crime of Criminal Possession of a Weapon in the Fourth Degree.

In the second case resolved just two days ago, the client was charged with the felony of possessing 4 illegal guns in Rennselaer County, New York. In New York, possession of 3 or more illegal guns elevates the crime to a class “D” felony, punishable by up to 7 years in prison. The firm was able to negotiate a plea bargain for this client in which he pled guilty to a “B” misdemeanor and again received no jail, no fine, no probation but just a conditional discharge. In addition, the Judge signed a “Certificate of Relief From Civil Disabilities” which is a certificate that relieves the holder of all bars to employment that may be imposed by law as a result of a criminal conviction.

Yesterday, in the third case, it was our client’s second DWI and he refused to take the breathalyzer test. In addition to the DWI tickets he was issued a total of 42 points in tickets for traffic offenses including Reckless Driving, Speeding, Going the Wrong Way on a One Way Street, Passing a Red Light and many more. In addition to the revocation for a conviction for DWI and the Refusal, the client faced a loss of his driving privileges for having more than 10 points and the Driver Responsibility Assessment for 42 points is $3000 plus fines and surcharges. Yesterday he pled guilty to Driving While Ability Impaired by alcohol which is a traffic infraction not a crime like Driving While Intoxicated. All the other moving violations were dismissed and he pled guilty to one 2 point ticket. That’s right 42 points were reduced to only 2 points. The fines and surcharges which could have been thousands of dollars only totaled $745.

While each case is different and results may vary from County to County, Court to Court and based upon the very specific facts of each individual case. These results demonstrate that great legal representation can help you achieve an exceptional outcome in your criminal case.

The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor's office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:
a. evidence which bears upon the guilt or innocence of the defendant but also the severity of any sentence that may be imposed;
b. records of previous arrest of the victim or witness or any history of immoral, vicious or unethical conduct by a witness;
c. any false statements made by a witness to law enforcement or to the grand jury;
d. any evidence, testimony, transcript, statement or information indicating that any prospective prosecution witness on any occasion gave false, misleading or contradictory information regarding the charge;
e. any mis-identification of the defendant of any information demonstrating an ability of a witness to identify the defendant as the perpetrator of the crime;
f. any history of mental disease or defect, emotional disturbance, or substance abuse of any potential witness; and
g. any malfunction of any testing equipment or any differing results in any scientific testing.

While this list is not exhaustive it gives a general idea of the types of exculpatory information which is required to be turned over to the defense. This requirement in New York not only is codified in the New York Criminal Procedure Law but also has its derivation from the United States Constitution. It is a basic principle of our system of justice that Brady material be turned over promptly by the District Attorney's Offices. While the Manhattan District Attorney's Office should be applauded for the prompt disclosure in the Dominique Strauss Kahn case more prosecutors have to receive training in complying with this basic principle and criminal defense attorneys need to hold prosecutors' feet to the fire in this regard.

If you or a loved one is involved in a criminal case where the prosecutor has withheld exculpatory material you should immediately bring this information to your attorney's attention. If you have any questions about this important right please contact this office.

The Endangering the Welfare of a Child case discussed in today's New York Post article, demonstrates how experienced criminal defense lawyers need to handle complex criminal cases. The case brought against a school bus matron back in 2006 alleges that the bus matron failed to step in and protect a then 8 year old autistic child that was banging his head against the school bus window and that the bus matron taunted the child. The law firm of Tilem & Campbell, representing the bus matron was able to get the case dismissed soon after the charges were filed in 2006 because the lawyers were able to show to a criminal court judge that the evidence in the case was obtained by illegal eavesdropping. The Appellate Term of the New York Supreme Court eventually overturned the criminal court judge and had the charges were reinstated.

After the case was sent back to the criminal court, Tilem & Campbell, undeterred, again began to vigorously fight the charges. This time in 2009 a new motion was made to dismiss based upon violation of the bus matron's statutory speedy trial rights. After litigation on that issue a different criminal court judge than had dismissed it the first time, dismissed the case a second time. The Kings County District Attorney's Office made a motion to reargue the dismissal in the criminal court and after that motion was denied the District Attorney filed its second appeal in the case. Last week, the Appellate Term of the Supreme Court again reversed the dismissal and reinstated the charges.

The case, now more than five years old, will continue to wind its way through the Kings County Criminal Court and no doubt additional motions will be made. The case may even be dismissed a third time. In addition, the lawyers at Tilem & Campbell are planning an appeal to New York's highest court, the New York Court of Appeals in an attempt to get dismissal reinstated by a higher court.

The case demonstrates that a good defense lawyer must be diligent, thorough and tireless in their defense of criminal cases. In order to be successful, a good criminal defense attorney must look at all of the facts, all of the legal issues and fight the case on multiple fronts. If the attorney cannot win on one issue perhaps he/she can win on another issue. It takes time to fight cases this way. In the case of this bus matron the case has gone on for over 5 years and is not over yet. Its frustrating. Senior Partner Peter Tilem was quoted in several papers today as saying that "We can't believe it." Due to the shear frustration of fighting a case for so long as it slowly winds through the criminal justice system.

Attorneys need to remember that the client's are entitled to the type of defense where every issue or defense is examined. Clients need to understand that this type of defense takes time and can be expensive.

There is no way of knowing how this case will ultimately be resolved but at the end of the day its important to feel like you fought the good fight.

As we noted in our previous blog if you are charged with any crime in New York, other than a homicide, or any penal law non-criminal offense you are entitled to a speedy trial under New York Criminal Procedure Law sec 30.30. However, the statute is really misnamed a "speedy trial" statute because it has very little to do with speedy trial but rather has everything to do with "speedy readiness." In other words NY CPL 30.30 does not require that the trial start within the specified period but only that the People (the prosecutor) announce their readiness for trial within the speedy trial period. This reality sets up a game, all too common in some counties where the People announce their readiness only when the case cannot possible go to trial and are not ready when the case is in Court and the matter is ready to be tried. See for example the "Bus Matron case" which was handled by this office and was dismissed after the Kings County District Attorney's Office attempted to play this game. To satisfy the Criminal Procedure Law the prosecutor only need state his readiness for trial. This can be done in several ways.

People’s Communication of Readiness – Open Court Statement or Statement of Readiness in Writing:

For the People to be “ready” for trial in accordance with CPL 30.30, there “must be a communication of readiness" by the prosecutor which is made on the record in the trial Court. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).

The People can accomplish this by “either a statement of readiness by the prosecutor in open court" which needs to be transcribed by a Court stenographer, or recorded by electronic means by the clerk or a "written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" which is placed in the Court files. Id.

The People must strictly comply with the procedures outlined above or a case can be dismissed. For example, a written notice of readiness must indicate present readiness. A written statement that the People are ready for trial “subject to the court setting a date certain for trial in order to notify our witnesses” did not indicate a present readiness. People v. Fields, 214 A.D.2d 332 (1st Dept. 1995).

A statement that expresses a mere expectation to be ready is insufficient. People v Kendzia, 64 NY2d 331, 338 (1985)(the People’s statement, in a May 6th letter, that they would be ready for trial on May 26th was found insufficient because it merely expressed an expectation of readiness).

“The statute contemplates an announcement of present readiness, not a prediction or expectation of future readiness.” People v Scott, 2010 NY Slip Op 51689U, 29 Misc. 3d 1204A (N.Y. City Crim. Ct. 2010).

The statement must be made by the prosecutor not someone on behalf of the prosecutor. In People v Jacobs, 28 Misc. 3d 499, 905 N.Y.S.2d 468 (N.Y. Dist. Ct. 2010) the First District Court of Nassau County rejected the People’s argument that an affirmative representation by the judge of the People’s readiness in open court satisfied the People’s obligation to declare their readiness for trial.

Faxed Statement of Readiness Sufficient: Where People don’t announce readiness in court, facsimile transmission of the People's written notice of readiness satisfies the requirement that a written notice of readiness be sent by the prosecutor to defense counsel after filing of the same with the court.

A statement of readiness served on defendant’s prior attorney instead of current attorney is ineffective. People v. Williams, 21 Misc. 3d 1118A (N.Y. City Crim. Ct. 2008)(People conceded adjournment charged to them because they mailed statement of readiness to wrong attorney).

As you can see, the issues surrounding speedy trial dismissals in New York are complicated. Anyone who believes that they or a loved one have been denied a speedy trial should contact a criminal defense attorney familiar with New York speedy trial Law.

We have been writing about the importance of New York's Speedy Trial statute to experienced criminal defense lawyers and how we have had serious cases dismissed based upon the denial of a speedy trial. In our previous blog, we discussed the fact that New York's Speedy Trial statute is not in fact a speedy trial statute but rather a speedy readiness statute that is satisfied once the prosecution announces their readiness for trial and that fact that this reality sets up a game where prosecutors announce readiness only when they do not expect the case to go to trial and then mysteriously are not ready when the case can go to trial. But, what must a prosecutor do to validly announce his readiness for trial? For example, do the witnesses need to be waiting in the Courthouse?

Actual readiness for trial does not require the prosecution to physically produce their witnesses each and every time they assert trial readiness, because “[a]side from its impracticality, such a requirement would be unduly burdensome and vexing to witnesses.” People v Robinson, 171 A.D.2d 475 (1st Dept. 1991).

Therefore, “[t]he People are not required to contact their witnesses on each and every adjourned date and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid.” People v. Dushain, 247 A.D.2d 234, 236 (1st Dept. 1998)(internal citations omitted) see also People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001)(The People are not required to contact their witnesses on every adjourned date nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid).

Once a prosecutor has made a good faith declaration of actual, present readiness, he or she is not required to “affirmatively prove that he [or she] is in fact ready for trial when he [or she] makes that announcement…the court is entitled to rely on the representations of a prosecutor.” People v Caussade, 162 A.D.2d 4 (2nd Dept. 1990). Indeed, the Court of Appeals has held that “the representations of a prosecutor, as an officer of the court, ought generally to suffice to determine threshold issue[s].” People v Poole, 48 N.Y.2d 144, 149 (1979)

However, the prosecution’s inability to produce the complainant in spite of their assertion of readiness requires dismissal on speedy trial grounds. People v Cole, 73 NY2d 957, 958 (1989). In other words, the mere declaration of readiness is no longer sufficient when its time to actually produce the complainant.

Illusory Statement of Readiness Ineffective

While the representations of a prosecutor, as an officer of the court, generally suffice to determine threshold issues, an illusory statement of readiness by the People, without the ability to produce their complaining witness, is nevertheless insufficient to stop the running of time for CPL 30.30 purposes. The test is whether the People are able to present their case and do so immediately. The statement must be made in good faith and reflect an actual, present state of readiness. People v. Robinson, 171 A.D.2d 475 (1st Dept. 1991).

“The mere announcement of readiness for trial by a prosecutor does not satisfy the People’s statutory obligation because the People must be able to substantiate that they are in fact ready to proceed.” People v. Hargro, 144 A.D.2d 971 (4th Dept. 1988).

As summarized in our recently posted New York Speedy Trial web page, the New York Criminal Procedure Law contains a statutory speedy trial requirement which is separate and apart from the constitutional right to a speedy trial and which is a very valuable tool in the arsenals of experienced criminal defense lawyers in New York. In this and upcoming blogs we will highlight some of the more important aspects of New York speedy trial.

Firstly, the statutory periods vary depending on the seriousness of the offense. That is to say that the time from the commencement of the action until the time that the people must be ready for trial or face dismissal of the action varies depending on the seriousness of the offense. They are as follows:

Felony; Six months from commencement less excludable periods. [CPL 30.30(1)(a)]

Misdemeanor – When Facing More Than Three Months; Ninety days from commencement less excludable periods. [CPL 30.30(1)(b)]

Misdemeanor – When Facing Not More Than Three Months; Sixty days from commencement less excludable periods. [CPL 30.30(1)(c)].

Violation; Thirty days from commencement less excludable periods. [CPL 30.30(1)(c)].

It should be noted that although the speedy trial period is 5 years for felonies regardless of the class of felony, the above speedy trial readiness periods do not apply where the defendant is charged with a homicide case, such as: Criminally Negligent Homicide [PL 125.10]; Manslaughter in the Second Degree [PL 125.15]; Manslaughter in the First Degree [PL 125.20]; Murder in the Second Degree [PL 125.25]; Aggravated Murder [PL 125.26]; and Murder in the First Degree [PL 125.27].

While the People do not have to be ready within the time period set forth in CPL 30.30(1) when the defendant is charged with the aforementioned homicide offenses, defendant is nevertheless still constitutionally guaranteed a speedy trial. See CPL 30.20.

A constitutional speedy trial claim involves a sensitive weighing of a variety of factors, including: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” People v Taranovich, 37 N.Y.2d 442, 445). No one of these elements or partial combination thereof is determinative, as all having applicability must be considered carefully. Id at 445.

There is no set or rigid period of delay which automatically triggers a constitutional speedy trial violation. Instead each case is determined on its own facts and consideration of the “threefold purpose of the speedy trial guarantee -- protection against prolonged imprisonment, relief from anxiety and public suspicion attendant upon an untried accusation and prevention of loss of the means to prove innocence it being recognized that the greater the delay the more probable it is that the accused will be harmed thereby.” People v. Imbesi, 38 N.Y.2d 629, 631-632 (1976)(internal citations and quotations omitted).

These are just a few of the areas that should be considered with regard to speedy trial issues in New York. They are complex and should be discussed with an attorney experienced in New York speedy trial issues and the speedy trial motions that should be made in some criminal cases. If you or a loved one has questions about speedy trial or thinks that they are being denied a speedy trial, you should contact Tilem & Campbell to discuss your rights.

The Westchester law firm, Tilem & Campbell has announced a summer special for Westchester Traffic Ticket Defense and Rockland Traffic Ticket Defense. This sale is thought to be the lowest cost traffic summons defense in the entire region. Anyone who contacts Tilem & Campbell before August 31, 2011 who mentions coupon code “SUMMER SPECIAL” will automatically receive a rate of $195 to fight any traffic ticket in Westchester County or Rockland County*. This special rate includes all speeding tickets, red light tickets, unsafe lane change, cell phones, tailgating turn signal violations and any other traffic infraction.

This is a sale price that is certain to revolutionize the industry and is believed to be the lowest price traffic ticket defense in the area. Why take off work to try to fight your ticket yourself when you can have a professional represent for you?

This offer applies to all of the following courts: Ardsley Village Court, Bedford Town, Court, Bronxville Village Court, Buchanan Village Court, Town of Cortlandt Justice Court, Croton-on-Hudson Justice Court, Dobbs Ferry Village Court, Eastchester Town Court, Elmsford Village Court, Greenburgh Town Court, Harrison Town Court, Harrison Village Court, Hastings-on-Hudson Village Court, Irvington Village Court, Larchmont Village Court, Lewisboro Town Court, Mamaroneck Village Court, Mamaroneck Town Court, Mt. Kisco Village Court, Mount Pleasant Town Court, Mount Vernon City Court, New Castle Justice Court, New Rochelle City Court, North Castle Justice Court, North Salem Town Court, Ossining Town Court, Ossining Village Court, Peekskill City Court, Pelham Town Court, Pelham Village Court, Pleasantville Justice Court, Pleasantville Village Court, Port Chester Village Court, Pound Ridge Town Court, Rye City Court, Rye Town Court, Scarsdale Village Court, Sleepy Hollow Village Court, Somers Town Court, Somers Justice Court, Tarrytown Village Court, Tuckahoe Village Court, White Plains City Court, Yonkers City Court, Yorktown Town Court, Orangetown Justice Court, Clarkstown Justice Court, Ramapo Town Court and Sloatsburg Justice Court.

If you do not see your Court or violation on the list contact our office, for an immediate price quote. Lower prices are in effect all summer for all courts and all violations, including Reckless Driving and Aggravated Unlicensed Operation tickets.

Contact Tilem & Campbell today to take advantage of this tremendous offer. Or visit us on the web at www.drsummons.com.

*Price of $195 applies only to the first ticket for each incident. $25 extra will be charged for each traffic ticket issued at the same time as the first ticket. Offer applies throughout Westchester and Rockland Courts only. Must mention coupon code “SUMMER SPECIAL” at the time of the first contact with the firm by either E-Mail or phone to take advantage of this offer. Offer expires at midnight August 31, 2011 and only valid if the fee is received by the law firm on or before that date.

In New York, judges may not issue appearance tickets. Judges can issue warrants for one’s arrest or a criminal summons. Appearance tickets can only be issued by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue appearance tickets. CPL 150.10(1). A judge is not considered a “public servant” authorized to issue an appearance ticket. A judge can issue a summons directing a defendant to appear in a particular court to be arraigned on an accusatory instrument. See generally CPL Art. 130. However, because a judge is not considered a “public servant” authorized to issue appearance tickets, a summons issued by a judge in a criminal case cannot be deemed an appearance ticket. People v. Hauben, 12 Misc. 3d 1172A (Nas. Cnty. Dist. Ct. 2006). In Hauben, the Honorable Kenneth L. Gartner, in a detailed, researched and well reasoned decision on this issue which cited numerous statutes, cases, practice commentaries and dictionaries, concluded that a summons issued by a criminal court pursuant to CPL Art. 130 is not an appearance ticket.
In so holding, J. Gartner observed: “a summons is merely ‘issued’ by the court, while an appearance ticket must statutorily be ‘issued and subscribed’ by the authorized individual. Id. Furthermore, J. Gartner cited an Attorney General Opinion (No. 93-90) which interpreted the term “other public servants” as stated in CPL 150.10(1) “as referring only to law enforcement personnel.” Id. The Opinion went on to state that “[p]rior to the court date, the public official who issued the appearance ticket must file an accusatory instrument.” Id.
Judge Gartner then noted that (1) a judge is not a law enforcement official and therefore does not meet the definition of “other public servants” as stated in the Opinion; and (2) a judge is not charged with filing an accusatory instrument with the criminal court after he or she issues a summons as law enforcement members are required to do after they issue and subscribe an appearance ticket. Id.
The City Court of Syracuse had reached a similar conclusion in People v. Eckert, 117 Misc. 2d 504 (1983) rejecting the People’s argument that a summons and an appearance ticket are so similar in substance that the criminal action is deemed commenced for speedy trial purposes when a defendant first appears in response to the summons as would be the case with an appearance ticket. Id at 505.
For more information about appearance tickets or any other New York criminal law issue, feel free to contact us toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. Also, you can purchase our New York Appearance Ticket Book on Amazon

In New York, for certain minor offenses, such as speeding, misdemeanor drug offenses or Leaving the Scene of an Accident the police (or other authorized public servant) can issue and serve a person an appearance ticket in lieu of arrest or, if they arrest the person, they can issue an appearance ticket to the person at the police station instead of putting the person through the system to see a judge. [See NY CPL Art. 150].
Typically an appearance ticket says “Appearance Ticket” or “Desk Appearance Ticket” across the top. The appearance ticket must be signed by the a police officer or other authorized public servant, it must name the defendant and direct him to appear in a designated court on certain date and time in connection with the alleged offense. [CPL 150.10(1)].
However, an appearance ticket, or desk appearance ticket, doesn’t have to conform to any particular form or style. So long as the document given to a person contains the information required of an appearance ticket and is properly signed, it can be an appearance ticket.
The most common type of appearance ticket is not even titled or called an appearance ticket. Almost everyone who drives has at one point received a ticket from a police officer. While not called an appearance ticket, the basic uniform traffic ticket or simplified traffic information is legally an appearance ticket. It contains all of the information required to be in an appearance ticket and is supposed to be signed by the officer. A speeding ticket for example, is usually issued in lieu of arrest, it tells the person what court they have to go to, what date and what time and the officer signs it. People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket deemed an appearance ticket).
If you have been issued an appearance ticket for any offense, feel free to contact Tilem & Campbell toll free at 1-877-377-8666

In New York, where a police officer issues a defendant an appearance ticket for a crime such as Reckless Driving or Possession of Marihuana directing that defendant is to appear in a local criminal court on a future date, the police officer is supposed to file, or cause to be filed a sufficient accusatory instrument (the “paperwork”) with that local criminal court before the defendant’s appearance. [See CPL Art. 150].
In some cases, the police officer fails to file the required sufficient accusatory instrument in a timely manner. In many small city, village or town courts a defendant might wait all day (or night) for his “paperwork.” In some bigger jurisdictions such as New York City, the court will give the defendant a notice acknowledging his appearance in court and informing him of a new date or that the court will send him a new date.
However, the local criminal court can dismiss the appearance ticket where a defendant appears in court as directed in an appearance ticket but no accusatory instrument has been filed by the officer as required by CPL 150.50(1). In Snead v. Aegis Secur., Inc., 105 A.D.2d 1059 (4th Dept. 1984), the Rochester City Court had dismissed an appearance ticket in an underlying, related criminal action against Robert Snead because an accusatory instrument had not yet been filed before Snead appeared in that court as directed in the appearance ticket. In Snead, the city court dismissed the very day the defendant appeared as instructed. The city court didn’t make him wait for hours or give him a new date. The city court did what all courts should be doing; it held the police accountable to the law.
For more information about this and other New York Criminal law issues, please contact Tilem & Campbell toll free 1-877-377-8666 or visit us at www.tilemandcampbell.com.

In New York, a police officer can issue a defendant an appearance ticket also referred to as a "Desk Appearance Ticket" or "DAT" instead of formally arresting that defendant where the charge is a non-criminal offense, a misdemeanor or most E felonies. CPL 150.20(1). Before the defendant appears in court as instructed in the appearance ticket, the police officer is supposed to file a sufficient accusatory instrument (the “paperwork”) with the particular court. CPL 150.50(1).
Sometimes the police officer doesn’t file the accusatory instrument in a timely manner and when the defendant arrives in court as instructed in his appearance ticket he learns that his “paperwork” is not ready. In some jurisdictions the defendant might sit around all day waiting for his “paperwork” while in others the court will give the defendant a notice acknowledging his appearance and giving him a new date.
When this happens, while the action against the defendant is deemed “commenced,” [CPL 30.30(5)(b); People v. Stirrup, 91 N.Y.2d 434 (1998)], the court does not obtain jurisdiction over the defendant. A court cannot obtain jurisdiction over a defendant until an accusatory instrument is filed against that defendant. Therefore, the court cannot arraign the defendant nor can it issue an arrest warrant for a defendant who fails to appear in response to an appearance ticket until an accusatory instrument has been filed against that defendant. See People v. Stirrup, 91 N.Y.2d 434, 439 (1998)(court may not arraign a defendant who voluntarily answers an appearance ticket, where no accusatory instrument has been filed; nor may a court issue a warrant of arrest to secure the presence of a defendant to answer the appearance ticket, in the absence of an accusatory instrument).
For more information about this or any other criminal law matter, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In New York, in cases involving non-criminal offenses (violations), misdemeanors and most E felonies, instead of formally arresting the defendant, the police can issue that defendant an appearance ticket directing him to appear in a designated local criminal court on a designated date and at a designated time. [See NY CPL Art. 150].
The date the defendant is instructed to appear in court is referred to as the “return date.” Before, the return date, the officer who issued the appearance ticket is supposed to file or cause to be filed, a sufficient accusatory instrument (the formal papers charging the defendant) with the local criminal court the defendant is supposed to appear in. CPL 150.50(1)].
Sometimes the defendant appears at court as instructed in the appearance ticket only to learn that the accusatory instrument has not been filed (i.e., his “paperwork” is not there). When this happens in some smaller city courts and in the town and village courts, the defendant can spend the whole day waiting for his “paperwork.” In New York City, however, the court will usually give the defendant a notice acknowledging the defendant appeared as instructed in the appearance ticket and either informing him of a new date or that he will receive a new date in the mail.
When a defendant appears in a local criminal court as instructed in the appearance ticket and the accusatory instrument has not been filed as required (i.e., his “paperwork” is not there), the criminal action against the defendant is deemed commenced that day. The commencement date is a critical date for speedy trial purposes. In New York, the prosecution must be ready for trial within a certain time period, which varies depending on the level of the offense. [See NY CPL Art. 30].
The day the criminal action commences is the day the speedy trial clock starts running against the prosecution. Therefore, where a defendant has been issued an appearance ticket, the criminal action commences, thus starting the speedy trial clock, when the defendant first appears in the local criminal court on the date designated in the appearance ticket even if the accusatory instrument has not yet been filed and he is instructed to come back at a later date.
This is set forth in CPL 30.30(5)(b) which states: “where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket.” See also People v. Stirrup, 91 N.Y.2d 434, 439 (1998)(“Once a defendant appears in response to a DAT, the criminal action is deemed commenced for ready-trial purposes”).
For more information about this or any other criminal law matter feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

New York VTL §600 requires that anyone operating a vehicle who is involved in an incident involving that vehicle that knows or has reason to know that damage was caused to property or injury was caused to a person to stop and exhibit their information at the scene of the incident. The question is exactly what do you exhibit? What must you show and What information must be exchanged in order to avoid being charged with Leaving the Scene of an Incident in New York.

New York Vehicle and Traffic Law §600 clearly defines which information must be exchanged, as follows:
1. Name,
2. Address, including number and street,
3. Insurance carrier
4. Insurance identification information including the number and effective dates, and
5. License number

In addition, the statute requires you to physically exhibit your insurance identification card and driver's license.

In the event of injury to a person you are not only required to exchange the information with the injured person but also to report the incident to the police "as soon as physically able."

By following these procedures, a motorist should be able to avoid a serious charge for Leaving the Scene of an Accident or Incident. If you have any questions about these procedures, contact the law firm of Tilem & Campbell for more information.

New York criminal law firm Tilem & Campbell has just added a new Leaving the Scene of an Accident page to its already extensive website.

Leaving the Scene on an Incident (as its called in New York Vehicle & Traffic Law §600) cases in New York can be among the most serious cases faces drivers since Leaving the Scene of an Accident involving Serious Physical Injury or Death can result in felony charges. This is true even if the accident or incident was not the operator's fault. If the incident involves a death the operator faces a 7 year prison sentence upon conviction for a class "D" felony and if the incident involves serious physical injury but not death the driver faces up to four years in prison upon conviction for a class "E" felony.

Even Leaving the Scene involving a minor injury can result in a misdemeanor criminal charge and a jail sentence of up to a year and leaving the scene involving property damage can result in a conviction for a traffic infraction and three points on your license.

In a future blog will discuss what information must be exchanged in order to avoid a charge of Leaving the Scene of an Incident.

If you or a loved one has been charged with or is suspected of Leaving the Scene of an Incident (or Accident) contact one of our experienced criminal defense lawyers to discuss your rights and options.

At Tilem & Campbell our lawyers have the trial experience to take cases to trial when plea bargaining proves to be non-productive. Criminal defense lawyers need not make an opening statement at trial. However, in a New York State criminal trial, the prosecution “must deliver an opening address to the jury.” [CPL 260.30(3)]. Although the relevant statute, CPL 260.30(3), does not set forth the required content of the prosecution’s opening statement, “at a minimum the prosecutor generally should set forth the nature of the charge against the accused and state briefly the facts he expects to prove, along with the evidence he plans to introduce in support of the same.” People v. Kurtz, 51 N.Y.2d 380, 384 (1980).
If the prosecutor’s opening statement is deficient, defense counsel should move to dismiss the case at the conclusion of the prosecution’s opening pointing out the deficiencies in their opening statement. The trial court is obligated to rule on this motion when defense counsel makes it and cannot reserve decision. Why? Because the prosecutor must be given the opportunity to correct any deficiency in their opening - thus avoiding dismissal. Id at 384.
The Kurtz case exemplifies the general rule that courts will rule in a manner that favors the prosecution to the detriment of the defendant. In other words, it is the defense attorney who must (1) recognize that the prosecutor’s opening is deficient; (2) bring this deficiency to the court’s attention; and (3) tell the court (and therefore the prosecutor) why the opening was deficient. Then, after the prosecutor has been taught by the defense attorney how to properly give an opening, the prosecutor gets a “do over” – he gets to present another opening this time making the necessary adjustments all thanks to the defense attorney.
Indeed, in Kurtz, the trial court did not immediately rule on defense counsel’s motion to dismiss due to an inadequate prosecution opening. However, after the trial started, the trial court granted the defendant’s motion and dismissed on that ground. In upholding the appellate court’s reversal of the dismissal, the Court of Appeals held that “[t]he trial court should have ruled on the motion and given the prosecutor the opportunity to correct the deficiency before proceeding with trial.” Id at 384-385.
The Court further noted that a trial court should not direct an acquittal based upon an insufficient prosecutorial opening unless “the prosecutor has been given an opportunity to correct the deficiency in his opening.” Id at 385. In other words, the prosecution must be afforded a “do over.”
If you are facing a criminal trial, feel free to contact us toll free at 1-877-377-8666 for a free telephone consultation to discuss questions you might have about the criminal trial process. We can also be found on the web at www.888AnyCrime.com.

In New York, unless your traffic ticket is returnable to the Traffic Violations Bureau, you will most likely be offered a chance for you or your traffic court attorney to conference your ticket with the prosecutor. At this conference the prosecutor usually offers to reduce the charge to something with less points in return for you agreeing to waive your right to trial. Most times the prosecutor on a traffic ticket is the officer who issued the ticket or another officer from the same police agency. However, the New York State Police have an internal policy forbidding state troopers from plea bargaining tickets they issue. Therefore, many towns, villages and cities have hired “special” prosecutors to prosecute tickets issued by state troopers. These “special” prosecutors are not bound by the New York State Police “no plea” policy.
One individual who is absolutely not allowed to unilaterally reduce a traffic infraction or enter into plea negotiations with the defendant is the judge. A judge is not allowed to plea bargain even if you are charged with a criminal offense. In Matter of Reedy, the son of Justice James H. Reedy received a speeding ticket returnable to J. Reedy’s court. Following correct protocol, J. Reedy recused himself from the case and asked a judge in a neighboring jurisdiction to accept the transfer of the case. At that point J. Reedy should have taken no further action. He should have taken the steps necessary to transfer his son’s speeding ticket case to a neighboring jurisdiction and let that jurisdiction proceed as they would with any other speeding ticket.
However, J. Reedy contacted the other judge, told him that his son was represented by an attorney and that an Assistant District Attorney had offered to reduce the speeding charge to VTL 1202(a)(1) which is a no point parking type violation. The other judge agreed to the plea bargain offer and indicated the fine would be $25.00.
At the request of J. Reedy, the other judge picked up the ticket and the fine money from J. Reedy’s home. The ticket had been signed on the back by J. Reedy’s son. The reference to the speeding violation [VTL 1180(d)] had been crossed out and “VTL 1202-A1” had been hand written in the space provided for the judge to indicate what charge the defendant was ultimately convicted of. Id at 301.
It was later learned that the state trooper who issued the ticket did not make the changes on the ticket nor did he consent to the reduction. Id at 302 (Note: In 1985 when this case occurred, state troopers did routinely prosecute and plea-bargain the tickets they issued. Only recently did the state police start enforcing their “no-plea” policy.).
Judge Reedy was ultimately found to have engaged in “ticket fixing” by the State Commission on Judicial Conduct and the Commission recommended his removal from the bench. The New York Court of Appeals accepted the Commission’s removal determination noting that the state trooper never authorized or agreed to the reduction. The Court of Appeals determined that “Ticket-fixing is misconduct of such gravity as to warrant removal . . .” Id.
If you have been issued a traffic ticket for any traffic related offense (speeding, red light, stop sign, etc) anywhere in New York state, you should consider hiring attorneys experienced with plea bargaining and defending such charges. Feel free to contact us for a free telephone consultation at 1-877-377-8666 or visit us on the web at www.DrSummons.com.

As explained in a prior blog, New York State law requires, with some limited exceptions, that an individual be fingerprinted when he is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction; or (4) loitering for the purpose of engaging in prostitution under Penal Law 240.37(2). [See CPL 160.10(1)].
However, upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, the court may, if it finds reasonable cause to believe the defendant committed one of the “printable” offenses listed above, order that the defendant be fingerprinted. [CPL 130.60(2)].
Therefore, where a defendant appears in court pursuant to a properly served summons and that summons is based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, defense counsel should object to the printing of the defendant absent a finding by the court of reasonable cause to believe the defendant committed one of the printable offenses listed above. Furthermore, defense counsel should further object to defendant’s printing arguing to the court that, under the statute [CPL 130.60(2)], even if the court finds reasonable cause, it “may” but need not order that the defendant be printed. The clear wording of the statute makes the fingerprinting of the defendant discretionary even where the court finds reasonable cause to believe the defendant committed a printable offense.
For more information about this or any other criminal law issue, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.

Tilem & Campbell senior partner Peter H. Tilem was quoted in today's New York Times in the article about the Federal Investigation into the tragic bus crash that killed 15 people over the weekend. There has been much speculation about whether or not the driver will be charged with a crime in connection to the deadly accident and the Times sought advice from two former prosecutors who have been involved in these types of cases.

The issue will boil down to whether the bus driver's conduct leading up to the fatal crash rose to the level of criminal negligence or recklessness according to Mr. Tilem who reportedly told the Times that just falling asleep at the wheel without more usually wouldn't rise to the level of either criminal negligence or recklessness. Mr. Tilem also told the times that it is usually a combination of factors such as weaving, speeding and driving after a long period without rest that could combine to make it possible for prosecutors to charge the driver.

To rise to the level of Recklessness, a person must be aware of and consciously disregard an unjustifiable and substantial risk. To rise to the level of Criminal Negligence a person must fail to perceive an unjustifiable and substantial risk. In both cases the risk must be so grave that the failure to perceive it or the conscious disregard of the risk constitutes a gross deviation from the standard of care that a reasonably prudent person would observe in a given circumstance.

The difference between the two, while subtle, can result in a huge difference in criminal charges. For example recklessly causing death can result in a conviction for Manslaughter in the Second Degree which is punishable by up to 15 years in prison and causing death by criminal negligence can result in a conviction for Criminally Negligent Homicide which is punishable by up to 4 years in prison.

Peter H. Tilem is currently a partner in the law firm of Tilem & Campbell and is a former homicide prosecutor in the New York County District Attorney's Office. You may contact him through the firm's website.

In what appears to be a stunning assault on first amendment rights, a proponent of a concept called "jury nullification" has been indicted in New York for charges relating to jury tampering. Jury nullification, a term familiar to most experienced criminal lawyers refers to a controversial legal principle in which juries acquit defendants, accused of crimes based upon their own conscience and without regard to the judge's explanation of the law. Since an acquittal by a jury is final and not subject to appeal, courts may not examine the reason for an acquittal. Therefore, all juries have an inherent right to nullify a charge. The controversy surrounds telling juries about this right.

Courts and prosecutors are inherently antagonistic to jury nullification so jurors are generally never told that they have the right to nullification and in fact are generally told that they must follow the law as instructed by the judge and must convict the defendant if the evidence establishes guilt beyond a reasonable doubt.

Julian P. Heicklen, a retired Penn State University professor apparently raised the ire of prosecutors in the United States Attorney's Office for the Southern District of New York because he handed out fliers to potential jurors outside the Pearl Street, Federal Courthouse and other area courthouses notifying jurors of their inherent right to nullify verdicts. Although he handed out fliers to jurors, he never targeted any specific jury or attempted to influence the outcome of any specific case. In fact, according to a New York Times article Mr. Heicklen identifies himself as a law an order man.

Since, Mr. Heicklen never targeted any specific juries or tried to influence any specific case it would appear that Mr, Heicklen's conduct is the most basic form of political speech which is afforded the highest first amendment protection.

Tilem & Campbell will continue to monitor the outcome of this apparent assault on our constitutional freedoms.

A recent Appellate Court decision overturning a Nassau County gun law could have far reaching implications for New York City gun charges and New York City weapons offenses. As previously discussed in a prior blog, New York City bans many items which are legal in other parts of New York state. In Chwick v. Mulvey, gun owners successfully challenged a Nassau County local law that prohibited possession of firearms that were "deceptively" colored such as pink, gold or brown.

In finding that the Nassau County Law was preempted by New York State law which already has a comprehensive statutory and licensing scheme, the Appellate Division of the Supreme Court, Second Department ruled that Nassau County could not regulate in this area in direct contradiction to new York State law which says that licenses for firearms shall be valid throughout the State (except New York City). The ruling of this Court has binding in effect in the New York City Counties of Kings and Queens.

What is left unanswered by the Court is whether New York City has the right to ban "weapons" such as handcuffs, imitation pistols, and rifles and shotguns (for which New York City has its own licensing scheme) in the face of comprehensive state legislation that for example lists all of the illegal weapons in New York State. Penal Law sec. 265.01 (1) lists more than fifteen specific weapons such as gravity knives, kung fu stars and switchblades and then in subsection 2 lists additional weapons which are illegal if one has intent to use them unlawfully against another.

In addition, New York City regulates mace despite comprehensive legislation in Penal Law Article 270 and regulates Rifles and Shotguns despite the fact that the New York State Penal law specifically does not include them in the definition of firearms (for which a license is required). In addition, Rifles and Shotguns are regulated in the Penal Law which, for examples, prohibits their possession: on school, college or university grounds (PL 265.01 (3)); prohibits their possession by convicted felons or others convicted of a serious offense (PL 265.01(4)); by a person certified not suitable to possess a rifle or shotgun (PL 265.01(6)).

Anyone charged with any weapons related offense specific to New York City or any other locality in New York State should contact this office to see whether or not a preemption argument should be made to have the charges dismissed. Tilem & Campbell is a criminal defense law firm that handles a considerable number of weapons and firearms related cases.

As explained in a prior blog, New York State law requires, with some limited exceptions, that an individual be fingerprinted when he is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction; or (4) loitering for the purpose of engaging in prostitution under Penal Law 240.37(2). [See CPL 160.10(1)].

However, upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, the court may, if it finds reasonable cause to believe the defendant committed one of the “printable” offenses listed above, order that the defendant be fingerprinted. [CPL 130.60(2)].

Therefore, where a defendant appears in court pursuant to a properly served summons and that summons is based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, defense counsel should object to the printing of the defendant absent a finding by the court of reasonable cause to believe the defendant committed one of the printable offenses listed above. Furthermore, defense counsel should further object to defendant’s printing arguing to the court that, under the statute [CPL 130.60(2)], even if the court finds reasonable cause, it “may” but need not order that the defendant be printed. The clear wording of the statute makes the fingerprinting of the defendant discretionary even where the court finds reasonable cause to believe the defendant committed a printable offense.

For more information about this or any other criminal law issue, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.

New York State law requires, with some limited exceptions, that the police take one’s fingerprints when one is arrested for (1) a felony; (2) a misdemeanor defined in the New York State Penal Law; (3) a misdemeanor defined outside the New York State Penal Law if the misdemeanor would be a felony because the individual has a prior criminal conviction (For example, a first time DWI is a misdemeanor found in the Vehicle and Traffic Law – not the Penal Law – and therefore one arrested for a DWI is not subject to mandatory fingerprinting.

However, a DWI can be charged as a felony if the individual has a prior DWI conviction within the previous ten years. In such a situation, the individual would be subject to mandatory fingerprinting); or (4) Loitering for the purpose of engaging in prostitution under Penal Law 240.37(2)(which is a violation unless the individual has a prior conviction for violating Penal Law 240.37(2), Penal Law 230.00 (Prostitution) or Penal Law 230.05 (Patronizing a Prostitute in the Second Degree) in which case a violation of Penal Law 240.37(2) is a B misdemeanor.) [See CPL 160.10(1)].

Furthermore, the police may fingerprint an individual they arrest for any offense if the police (1) are unable to ascertain the individual’s identity; (2) reasonably suspect the identification given by the individual is not accurate; or (3) reasonably suspect that the individual is wanted by law enforcement for the commission of another offense. [See CPL 160.10(2)].

For more information about this or other criminal law issues, feel free to contact us toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

In New York, often an individual will be issued an appearance ticket by the police. Many times appearance tickets are issued for offenses such as marihuana possession, aggravated unlicensed operator and driving while intoxicated. Experienced criminal attorneys know that getting a client an appearance ticket, also called a "Desk Appearance Ticket, can mean the difference between spending 24 hours or more in custody or spending less than an hour. An appearance ticket can be issued by the police, in lieu of arrest. Also, after an individual has been arrested, the police can issue that individual an appearance ticket and release him from police custody without waiting to be formally arraigned before a judge. There are limitations on when the police may issue an appearance ticket which will be discussed in a future blog. [CPL 150.20].

An appearance ticket is basically a written notice signed by a police officer or other authorized public official directing a designated individual to appear in a designated local criminal court at a designated future time in connection with that individual’s alleged commission of a designated offense. Any notice that conforms to this definition of an appearance ticket constitutes an appearance ticket notwithstanding that the notice is referred to as a summons or other name or title. [CPL 150.10(1)]. A traffic ticket, simplified traffic information or similar notices are therefore also “appearance tickets.”

If you’ve been issued an appearance ticket in connection with any offense (criminal or non-criminal), feel free to contact us toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com. Also you may purchase our book entitled Appearance Tickets in New York at Amazon.com

As we have discussed often in this blog, suppression of evidence can often be the best avenue of an attack for an experienced criminal attorney. New York Courts have consistently held that one’s flight from the police, absent additional conduct creating a reasonable suspicion that a crime has been, is being, or is about to be committed is insufficient to justify further police pursuit. In other words, one’s flight from police alone, is insufficient to justify further police intrusion.
In People v. Prillo, the New York Appellate Division, Third Department upheld this long-standing legal principle reversing the Broome County Court’s denial of a defendant’s motion to suppress physical evidence. In Priollo, the police received a report of a suspicious person. The first officer to arrive saw a man fitting the description running out of a driveway towards her police car. At that time she had no reason to believe defendant had committed any crimes. She ordered defendant to stop. Defendant ignored her order, turned and started running away from the officer. The officer followed the running defendant in her patrol car. While he was running, defendant pulled jewelry and coins out of his pants and threw them on the lawn of a house he was passing. The property was recovered.
The defendant moved to suppress the property arguing that he tossed the items as a result of unlawful police conduct. The Broome County Court denied the motion. The Third Department reversed writing that while the officer could lawfully request information from the defendant about his presence in the area, the law did not require the defendant to answer the inquiry or stop running. The Court further wrote that flight from police, alone, was insufficient to justify further police intrusion such as a pursuit.
The Court found that the defendant discarded the property in response to the illegal pursuit. Accordingly, the Court held that the physical evidence was tainted by the improper police conduct and should have been suppressed.
For more information about this or other search and seizure or other criminal justice issues, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com

The second episode of "Law Talk with Peter Tilem and John Campbell" aired last night and was a great success. The topics last night included prosecutorial and judicial misconduct, the role of the prosecutor and a little bit more about DWAI (Driving While Ability Impaired by Alcohol) in New York. For those who missed the show it is available on demand at the Centanni Broadcasting Network website. Just click on the date to hear the October 20, 2010 show.

Law Talk with Peter Tilem and John Campbell airs every Wednesday night at 8pm. You can listen live or on demand and if you have a specific topic that you would like us to discuss please E-Mail us the question at info@tilemandcampbell.com.

We’ve all heard it a thousand times on T.V. and in the movies, “You have the right to remain silent ….” But unfortunately, many people who are arrested make statements to the police and/or prosecutors in an effort to exonerate themselves. Most times, those statements actually hurt the defendant. Other times, even after being read their rights, defendants outright confess. Normally, questioning of a defendant is done by detectives or assistant district attorneys who are clearly adversarial to the defendant.
However, in 2007, the Queens District Attorney’s Office implemented a program whereby assistant district attorneys conduct pre-arraignment interviews of defendants as they proceed through the booking process before they have been arraigned (brought before a judge) and before they have had the opportunity to obtain an attorney.
While law enforcement is free to ask a defendant if they will answer questions after they have been read their Miranda rights, the problem with the pre-arraignment questioning program in Queens is that before the defendant is informed of their right to remain silent they are asked the following three questions:

1. If you would like us to investigate an alibi, please give us as much information as you can, including the names of any people you were with.

2. If your version of the events of that day differs from what we have heard, this is an opportunity if you so choose, to tell us your story.

3. If there is something you would like us to investigate concerning this incident, if you tell us about it, we will look into it.

Those three questions make it appear as if the assistant district attorneys are perhaps neutral or maybe even there to assist the defendant. It falsely conveys the position that they are disinterested. Ethics professor Ellen Yaroshefsky of the Benjamin N. Cardozo School of Law believes “[t]he context of the interview misleads and deliberately induces the defendant to believe that there is an urgency to speak now when there is no advantage to him doing so prior to appointment of counsel. . .”
Currently, the Queens District Attorney, Richard A. Brown is attempting to block Acting Supreme Court Justice Joel L. Blumenfeld from ruling on the ethics of this pre-arraignment questioning process.
Anyone arrested must understand that there is virtually nothing you can tell the police or the district attorney that will get you released on the spot. Furthermore, once you’re arrested, the goal is to avoid a conviction. In that regard, nothing you say to law enforcement can help you. If you have information that can prove your innocence or that you think is important for your case, tell your defense attorney. Nothing good can come from a suspect or a defendant speaking with the police without first speaking with their own qualified defense attorney.
If you, a loved one or a friend have been arrested, feel free to call Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.

New York Criminal Defense lawyers Peter H. Tilem and John Campbell completed their first radio show broadcast live over internet radio earlier this evening on the Centanni Broadcasting Network. The topic of the show was the severe penalties for DWI and Gun cases in New York. The shows are archived and are available on demand by visiting the Centanni Broadcasting Network website and clicking on the Law Talk with Peter Tilem, Esq. and John Campbell, Esq. button. Or click on the October 13, 2010 show to be brought right there.

Law Talk received rave reviews and is the first in what is expected to be a weekly show, airing every Wednesday Night at 8pm.

Please join us live or E-Mail us any questions that you would like answered on the air to info@tilemandcampbell.com.

New York criminal defense firm Tilem & Campbell won a dismissal earlier today in another Bronx gun case. The case, started with the arrest of the client in December 2009 after a dispute with her roommate. The roommate notified the landlord, an off duty NYPD detective that her roommate had a pistol in her dresser drawer. The landlord entered the apartment without a search warrant and recovered a loaded firearm. The landlord then called the police and had the client arrested. The client was charged with Criminal Possession of a Weapon in the Fourth Degree and Possession of ammunition under the administrative code of the City of New York.

Tilem & Campbell, senior associate Jean Melino filed a motion to suppress the gun and ammunition because of the warrant-less entry and search into the client's bedroom by the off duty police officer/landlord. The Bronx County District Attorney's Office initially attempted to oppose our motion on the grounds that the off-duty police officer/landlord was not acting in his capacity as a police officer but rather as a landlord and that therefore he did not need to obtain a warrant. The Bronx District Attorney's Office cited both Federal cases and a case from the State of Nebraska to establish their position even though plenty of New York cases establish that an off-duty police officer is always acting in his official capacity. The Court granted a hearing on the issue.

After the Bronx District Attorney's Office was not ready to proceed on several dates that the Court had set for the hearing, The District Attorney's Office finally moved to dismiss the case rather than proceed with the hearing that they were sure to lose. The Court records in the matter were sealed.

The case was jointly handled by Jean Melino and Senior Partner Peter H. Tilem. This case represents the latest in a long line of successes on New York gun cases handled by Tilem & Campbell.

If you or a loved one has been charged in New York with any firearms or weapons related charges, contact the law firm of Tilem & Campbell for a free consultation or visit us on the web at handgunattorney.com.

Tilem & Campbell is pleased to announce that Senior Partner Peter H. Tilem, Esq. has earned the highest rating from lawyer rating service AVVO. Peter Tilem earned the maximum rating of 5 out of 5 in each of the rating categories which include experience, industry recognition and professional conduct and received a rating of 10 out of 10 overall, which AVVO ranks as "Superb." Mr. Tilem is admitted to practice before the Courts of the States of New York and Connecticut, the Federal Courts in the Eastern and Southern Districts of New York, the District of Connecticut and the the District of Columbia as well as the United States Court of Appeals, Second Circuit and the United States Supreme Court.

AVVO is a website that profiles and rates attorneys throughout the country in an effort to assist individuals who wish to hire an attorney. The rating agency has been sued by disgruntled attorneys in the past unhappy with their ratings but is widely believed to be useful in assisting the public in locating qualified lawyers.

Peter H Tilem

View lawyer's profile

The "Superb" rating for Mr. Tilem is a reflection of his nearly 20 years of experience in the practice of law, the excellent results he obtains for his clients and the excellent reputation he enjoys.

To contact Mr. Tilem, you can visit his website at www.tilemandcampbell.com or visit his Avvo profile by clicking on the Avvo badge above.

In our May 24, 2009 blog entitled "New York City Bans Items that are Common and Lawful Most Other Places in New York State and in the Country" we detailed a long laundry list of items that are illegal in New York City, all of which are defined in the New York City Administrative Code sec 10-131. Items on our original list included mace, ammunition, imitation guns, assault weapons, rifles and ammunition feeding devices (gun clips or magazines). I left handcuffs off that list because I had never seen anyone arrested or summoned for possession of handcuffs. However, this office was recently contacted by a person who received a summons for possessing handcuffs in violation of New York City Administrative Code Sec 10-147.

Sec 10-147 makes it unlawful to possess handcuffs, thumb cuffs, leg irons and even flexible disposable handcuffs. Violation of 10-147 carries a maximum penalty of 10 days in jail and/or a $200 fine. There are numerous exceptions to this law such as possession by police officers, peace officers, military officers, police officers from other states carrying out their official duties in this State, licensed security guards and private investigators acting in the course of their job or while traveling to or from their job and many others. Kinky sex, which was the excuse that this person who was ticketed recently gave, is not one of the authorized exceptions.

In addition, there has been a lot written in this blog and a lot of press about the expansive definition being used, particularly in New York City of gravity knives and we have written about the aggressive enforcement of knife laws in New York City.

The bottom line is be careful what you carry. Know the law. If you have any questions about carrying something in New York contact the local police, research the law or contact one of the experienced weapons attorneys at Tilem & Campbell.

Rod Blagojevich was the lasted in a line of high profile people to be convicted of lying to law enforcement even though juries fail to convict them of the underlying crime. In the latest case former Illinois governor Blagojevich was convicted of lying to the FBI even though a federal jury was unable to reach a unanimous verdict on the underlying federal corruption charges. This situation is reminiscent of the Martha Stewart case in which Martha Stewart was tried and convicted of Obstruction of Justice and lying to investigators even though she was not charged or convicted of insider trading. Martha Stewart was eventually sentenced to a prison sentence in that case.

Although Obstruction of Justice, perjury or lying to the police charges are very rare in New York state Courts they are much more common in federal courts where making a false statement to federal law enforcement can lead to a federal felony charge. 18 USC 1001 which makes it a federal felony to make any materially false or misleading statement to federal agents is punishable by up to 5 years in prison. In addition, evidence of making false statements to law enforcement or otherwise mislead federal agents or obstructing justice can be used to enhance a sentence by adding two points to a persons Federal Sentence Guideline calculation under 3C1.1 of the United States Sentencing Guidelines.

Individuals who are questioned by police or federal law enforcement such as the FBI, DEA, BATFE have constitutional rights under both the United States Constitution and the New York State Constitution to remain silent and/or speak to an attorney before answering questions. This is an important constitutional right. People who are questioned by the police can often become nervous especially if they may have committed a crime or if they have not interacted with law enforcement in the past.

The bottom line is that anyone who is contacted by the police, FBI or other law enforcement should learn their rights. Contact an experienced criminal defense attorney who can advise you of your rights and be with you through the process. Lying to law enforcement is simply not going to help and quite frankly may make the situation worse.

As we have previously reported in our May 7, 2009, January 18, 2010 and July 26, 2010 blogs, the installation of ignition interlock devices will be come mandatory on all Driving While Intoxicated convictions effective tomorrow, August 15, 2010.

These devices are expensive to install, require monthly monitoring and can be embarrassing to explain. DWI's, DUI's and DWAI's are serious offenses that require serious criminal attorneys who know the science and the law behind DWI cases. Besides the mandatory ignition interlock device and the mandatory revocation of your license, offenders face probation or jail and severe fines and surcharges.

As we approach Labor Day, this is a good time to remind people not to drink and drive. If you or a loved one are arrested, charged or questioned about a DWI or other alcohol related incident including Vehicular Assault or Vehicular Manslaughter contact the law firm of Tilem & Campbell.

New York criminal defense law firm, Tilem & Campbell scored a major victory on a Rockland County Assault case when an Orangetown Judge dismissed the case after a suppression and probable cause hearing. The defendant had been charged with Assault in the Third Degree based upon an altercation that occurred in December 2009. The defendant had faced up to one year and jail on the "A" misdemeanor and had already been suspended from his job as a result of the incident and the charges.

http://www.tilemandcampbell.com/lawyer-attorney-1282538.html had filed a pre-trial motion back in May asking the Court to suppress statements and/or hold a suppression and probable cause hearing. The Hearing was held on July 28, 2010 and one investigator from the New York State Police testified. On cross-examination by Mr. Tilem the investigator admitted that the defendant had been attacked by the victim using eyeglasses as a weapon, that the victim was the initial aggressor and that he had probable cause to arrest the victim but chose not to arrest him.

In a decision dated August 3, 2010, the Judge ruled that the District Attorney's Office failed to establish probable cause for the arrest and dismissed the Assault in the Third Degree charge.

Any experienced criminal defense lawyer should always explore suppression and probable cause issues in the criminal cases they handle. Pre-Trial hearings can be a valuable tool in winning criminal cases.

An issue that comes up very frequently in New York criminal cases is “when may the police properly stop a vehicle”? The intuition or hunch of an officer, even if it thereafter turns out to be correct, cannot justify a stop. Absent at least a reasonable suspicion that its occupants had been, are then, or about to be, engaged in criminal activity, the stopping of an automobile by the police constitutes an impermissible seizure. In addition, any contraband, such as drugs or guns, recovered as a result of improper police conduct may be suppressed.
For example, in People v. Cascio, 63 A.D.2d 183, the defendant had pleaded guilty to Assault in the Second Degree but appealed the denial of his suppression motion. Officers observed defendant and another man walk to the rear defendant’s parked car, open the trunk, look inside and then exchange what appeared to the officer to be money. Based upon that observation, the officers followed defendant’s vehicle and eventually attempted to pull it over. Defendant fled and a chase ensued. Ultimately the defendant crashed his vehicle, a struggle followed and marijuana was found in the vehicle.
The trial court denied defendant’s motion to suppress the seized evidence but the Appellate Court reversed finding that the record lacked any objective evidence of criminal activity. It was insufficient that the officer “felt” a crime was about to be committed. Therefore, the stop was illegal and the evidence found as a result of the stop should have been suppressed. Accordingly, the Appellate Court vacated defendant’s guilty plea and reversed his conviction for Assault in the Second Degree.
If you have been charged with any offense in New York State, including but not limited to New York City, Westchester, Dutchess, Putnam, Orange and Rockland Counties, contact Tilem & Campbell at 1-877-377-8666 for a free consultation or visit us on the web at www.tilemandcampbell.com.

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

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

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

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

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

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

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

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

In New York, the police may not stop your vehicle solely to ask you questions regarding the whereabouts of an individual wanted in connection with a past crime. In People v. Spencer, 84 N.Y.2d 749 (1995), the defendant was convicted of Criminal Possession of a Weapon in the Third Degree and Criminal Possession of Marijuana in the Fourth Degree. The weapon and marijuana were found in defendant’s car after the police stopped him looking for information regarding the whereabouts of defendant’s friend who was wanted in connection with an assault that took place approximately forty hours earlier. The defendant appealed the denial of his suppression motion arguing that the police could not stop his vehicle for the sole purpose of requesting such information.
Noting that the right to request information does not include the right to unlawfully seize, the Court of Appeals agreed with the defendant holding that the stop was unreasonable. The Court noted that the Fourth Amendment does not permit the stopping of potential witnesses. However, noting that the police were investigating past criminal conduct, the Court insinuated the stop might have been legal if the police were investigating recent or ongoing crimes. Accordingly, the Court of Appeals reversed the Appellate Division’s order, granted defendant’s motion to suppress physical evidence and dismissed the indictment.
For more information about this or any other New York criminal law issue, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

One of the first lines of defense in any New York criminal case involving evidence found during a car stop is whether the search of the car was constitutional. In New York, where a vehicle is stopped for a traffic infraction, it is improper for the police to ask for consent to search the vehicle. This rule has been strictly construed by New York courts with one Appellate Court going so far as to suppress a body found in the back of a vehicle stopped for a traffic infraction because the police had no basis to ask for consent to search.
In People v. Turriago, 219 A.D.2d 383 (1st Dept. 1996), the defendant’s vehicle was stopped for speeding by State Troopers on Rt. 17 in Orange County. The Troopers, concerned about illegal hunting, asked defendant for consent to search the vehicle which defendant gave. The police subsequently found the body of a murder victim in the rear of the vehicle. In seeking to suppress the body and other evidence (statements and evidence found during a search of defendant’s apartment), the defendant argued that whether he gave consent was irrelevant because the Troopers had no right to seek his consent to search in the first instance.
The First Department agreed holding that while the Troopers had a valid reason to stop the vehicle, nothing transpired during the stop to justify a suspicion that criminal activity was afoot which was necessary to trigger the Trooper’s common law right to inquire thus justifying a request for consent to search. The First Department therefore, reversed the lower court and held that the body, statements and evidence found as a result of subsequent searches of apartments where defendant stayed must be suppressed.
The People appealed the case to the New York Court of Appeals which did not disturb the First Department’s holding that the Troopers had no right to ask for consent to search but did find that the body would have been inevitably discovered as part of an inventory search of the vehicle. So ultimately the evidence was allowed but under the inevitable discovery doctrine because the vehicle would have been impounded since the defendant’s license was suspended. The request to search however was improper. This distinction, I’m sure, was of no consequence to the defendant in this case.
For more information about this and any other New York criminal law issue, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

One of the first lines of defense in any New York criminal case involving evidence found during a car stop is whether the search of the car was constitutional. In New York, where a vehicle is stopped for a traffic infraction, it is improper for the police to ask for consent to search the vehicle. This rule has been strictly construed by New York courts with one Appellate Court going so far as to suppress a body found in the back of a vehicle stopped for a traffic infraction because the police had no basis to ask for consent to search.
In People v. Turriago, 219 A.D.2d 383 (1st Dept. 1996), the defendant’s vehicle was stopped for speeding by State Troopers on Rt. 17 in Orange County. The Troopers, concerned about illegal hunting, asked defendant for consent to search the vehicle which defendant gave. The police subsequently found the body of a murder victim in the rear of the vehicle. In seeking to suppress the body and other evidence (statements and evidence found during a search of defendant’s apartment), the defendant argued that whether he gave consent was irrelevant because the Troopers had no right to seek his consent to search in the first instance.
The First Department agreed holding that while the Troopers had a valid reason to stop the vehicle, nothing transpired during the stop to justify a suspicion that criminal activity was afoot which was necessary to trigger the Trooper’s common law right to inquire thus justifying a request for consent to search. The First Department therefore, reversed the lower court and held that the body, statements and evidence found as a result of subsequent searches of apartments where defendant stayed must be suppressed.
The People appealed the case to the New York Court of Appeals which did not disturb the First Department’s holding that the Troopers had no right to ask for consent to search but did find that the body would have been inevitably discovered as part of an inventory search of the vehicle. So ultimately the evidence was allowed but under the inevitable discovery doctrine because the vehicle would have been impounded since the defendant’s license was suspended. The request to search however was improper. This distinction, I’m sure, was of no consequence to the defendant in this case.
For more information about this and any other New York criminal law issue, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

An issue sometimes arises in New York when the police stop a vehicle for a traffic violation or other legitimate reason but continue to detain the driver after the ticket has been issued or other legitimate police concerns have been addressed. Where a driver is stopped for a traffic infraction and issued a ticket, it is improper for the officer to then ask for permission to search the car. At that point, the request to search exceeds the scope of the reasonable detention of the motorist for the traffic infraction. People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833 (1995).
Furthermore, where a roving border patrol officer stops a vehicle he or she suspects contains illegal aliens, it is improper to ask to search the trunk once that officer determines that the vehicle does not contain illegal aliens. To do so would exceed the scope of the stop. People v. LaRose, 5 Misc.3d 621 (St. Lawrence Co.Ct. 2004). In LaRose, the County Court held that a roving border patrol agent could make an investigatory stop of a vehicle with Texas plates observed near the Canadian border making “improbable” turns (whatever that means).
Generally, investigatory stops are illegal if they are not based upon reasonable cause to believe that a traffic infraction has occurred. People v. Ingle, 36 N.Y.2d 413 (1975). In fact, in Ingle, the Court held that it was improper for the officer to stop the car because of its unusual appearance. Therefore, it would appear that the even initial stop in LaRose was illegal because the officer admitted it was not based upon reasonable cause to believe a traffic infraction had been committed but instead was based upon the officer’s belief that it was unusual to see a car with Texas plates near the Canadian border.
However, the LaRose decision relied upon a United States Supreme Court decision which held that where an officer’s observations lead him reasonably to suspect that a particular vehicle may contain illegal aliens, the government interest at stake may justify the minimal intrusion of a brief investigatory stop. U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
For more information about this, and other criminal defense issues, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

One of the first questions I ask a defendant charged with Driving While Intoxicated, Driving While Ability Impaired or Driving While Ability Impaired by Drugs or any type of possession crime such as drugs or guns, is what brought about his or her initial contact with the police. If their vehicle was stopped by the police, my next area of inquiry is “was the stop legal”? Today, with a cell phone in virtually every car, we are seeing more and more cases where motorists are reporting erratic driving to the police right from the road. The question therefore is: can the police stop a vehicle based solely on a phone tip that the vehicle was driving erratically? The answer is no.
In People v. Royko, 201 A.D.2d 863 (4th Dept. 1994), the police received a call reporting a car driving erratically. About an hour later, officers saw the vehicle parked outside a restaurant and later observed the vehicle driving down the street. The officers then stopped the vehicle, at which time they detected to odor of an alcoholic beverage and observed the driver to have bloodshot, watery eyes. The driver admitted to having two beers and was unable to perform standardized field sobriety tests. The driver was subsequently arrested for Driving While Intoxicated.
At the suppression hearing, the officer testified that his sole purpose for stopping defendant’s vehicle was the radio dispatch he had heard regarding the erratic driving an hour earlier. The officer made no independent observations. The Fourth Department held that the officers lacked a reasonable suspicion sufficient to stop a vehicle based upon a report that it was driving erratically an hour earlier. The officers made no independent observations of erratic driving and further they had no way of knowing if it was the same driver. The defendant’s suppression motion was therefore, granted.
If you have been charged with any offense anywhere in the New York City, Westchester, or surrounding areas, call Tilem & Campbell toll free at 1-877-377-8666 for a complimentary telephone consultation or visit us on the web at www.tilemandcampbell.com.

New York criminal defense attorneys know that a Desk Appearance Ticket (DAT) can be your best friend. Its great for the attorney who doesn't have to go to Court in the middle of the night to do an arraignment, its great for the client who doesn't have to be locked up for 24 hours or more while they are waiting to see a judge and its even good for the police who can process the arrest at their leisure and who do not have to worry about racking up police overtime while processing the arrest.

Briefly, a DAT in New York is simply a notification to a person arrested that they must appear in Court on a future date in connection with certain specific charges. The police officer or prosecutor will then file those charges in Court. It permits a police officer to release the person prior to the charges being filed in Court and prior to seeing a judge.

DATs are governed by New York CPL Article 150 which limits when police officers may issue Desk Appearance Tickets. In sum, they may only be issued for Class A and B misdemeanors, Class E felonies and violations. There are also some specific exceptions such as certain Escape, Absconding or Bail Jumping charges. People charged with those crimes or more serious felonies will not be eligible for Desk Appearance Tickets.

It should be emphasized that Desk Appearance Tickets are issued at the discretion of the police. Ultimately, it is the police who will decide whether or not to issue a person a DAT. Ironically, in New York City, where a person can spend more than 24 hours waiting to see a judge and winding their way through the Central Booking Process, fewer cases are DAT'd than in other places where the arraignment process can be much shorter. In New York City, charges such at DWI, DWAI, Aggravated Unlicensed Operation of a Motor Vehicle are almost never DAT'd whereas outside of New York City they usually are DAT'd.

The statute permits police officers to accept bail as a condition of getting a Desk Appearance Ticket but in New York City the police will not accept bail. Bail amounts can range as a a maximum of $750 for an "E" felony down to a maximum of $100 for a violation.

DATs are a useful tool and for a person who is going to be arrested, they can be a huge benefit. If you are going to turn yourself in to the police an experienced attorney should explore whether or not you are eligible for and whether you will receive a desk appearance ticket. In many cases everyone wins when the accused is issued a DAT.

For more information about Appearance Tickets in New York visit us on the web at www.tilemandcampbell.com or purchase our book Appearance Tickets in New York on Amazon.

If you a charged with an offense such as Driving While Intoxicated, weapons offense (guns, etc) or controlled substance offense (cocaine, crack, marijuana etc), one of the first areas a criminal defense attorney will look at is why the police stopped you in the first instance. In other words, what brought about that initial contact between you and the police? If the stop was illegal, all evidence, including observations, obtained as a result of that illegal stop should be suppressed.
In New York, an officer may approach an individual sitting in a parked car and request information provided they have an articulable reason not necessarily related to criminal activity. For example, in a case discussed in a prior blog, despite the fact that it is legal to do so, officers may approach an individual sitting in the driver’s seat of a car parked in front of a fire hydrant and request the that person’s license and pedigree information. People v. Thomas, 19 A.D.3d 32, (1st 2005). In New York, this is referred to as a “Request for Information”.
Obviously an officer cannot request information from a person in a moving car; that car must be stopped first. In order to legally stop a vehicle, an officer must have a reasonable suspicion that a person in that vehicle was involved in a felony or a misdemeanor or that the vehicle committed a traffic infraction. In New York, this is referred to a “Stop”. Therefore, what if that parked car in Thomas had started to pull away just as the officer had pulled up? The officer would have had to actually stop that car.
In People v. May, 81 N.Y.2d 725 (1992), the police approached a car parked on desolate street in a known drug area. Just as the police pulled up on the parked car, it slowly pulled away at which time the officers activated their emergency lights and stopped the vehicle. The officers subsequently learned that the vehicle was stolen and upon a search of the driver after his arrest, drugs were found. The Court of Appeals held that the stop was illegal because, once the vehicle pulled away, the officers needed reasonable suspicion that a crime had been or was about to be committed. The evidence, ruled the Court, should have been suppressed.
For more information, or if you have been arrested in New York, call Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In a case involving a New York City drug case, the Appellate Division held that a police officer may request the driver’s license and pedigree of an individual sitting in the driver’s seat of a vehicle parked in front of a fire hydrant. People v. Thomas, 19 A.D.3d 32, 792 N.Y.S.2d 472 (1st 2005).
In Thomas, the police approached a defendant who was sitting in the driver’s seat of a vehicle parked in front of a fire hydrant and asked him for his license and pedigree information. A computer check indicated that defendant’s license was suspended and he was then arrested. Upon searching his pockets, the police found “crack” cocaine. Defendant was subsequently charged with Aggravated Unlicensed Operation in the Third Degree (VTL § 511(1)(a)) and Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06).
In granting the defendant’s motion and suppressing the drug evidence, the Honorable William A. Wetzel of the New York County Supreme Court found, and I believe correctly, that by stopping his police van so as to block in defendant’s vehicle, the officer had in fact “stopped” defendant. Because J. Wetzel found the police conduct constituted a “stop”, the police needed probable cause. Noting that VTL § 1202(3)(b) permits parking in front of a fire hydrant provided a licensed driver is in the driver’s seat, J. Wetzel held that the officer did not have probable cause to suspect a traffic infraction had occurred (this is obvious because the officer would have had no way of knowing the driver’s license status).
In reversing, the First Department held that the blocking of the vehicle was not a “stop” and therefore the officer did not need probable cause/reasonable suspicion but instead only needed an objective, credible reason not necessarily indicative of criminality to make was is referred to as a Level I “Request for Information”. Of key importance was the Court’s finding that the “blocking in” of an already parked vehicle is not a seizure. The Court agreed that had the vehicle been moving, however, the officer would have needed probable cause to stop it.
If you have been charged with any offense in New York from a simple traffic infraction to a misdemeanor or serious felony, one of the first lines of defense is challenging the legality of the police officer’s initial stop (seizure) of you or your motor vehicle. For more information call Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In any New York criminal case where the prosecution has obtained evidence such as guns or narcotics, that they intend to introduce at trial, one of the first areas a criminal defense attorney will explore is why the police stopped/seized and searched the defendant, his home, his vehicle etc. If the stop/seizure was illegal, all evidence obtained as a result of the stop should be suppressed.
In People v. Sobotker, 43 N.Y.2d 559 (1978), the police observed a vehicle driving slowly at night in a well traveled and well lit entertainment and shopping area. Several burglaries had recently taken place in the area. The police observed the occupants glance towards a bar as the vehicle actually came to a stop and paused for two seconds. The vehicle then continued to a stop sign where the police claimed the occupants glanced towards a second bar. At that point, the police stopped the vehicle. The driver exited the vehicle and told the police he did not have a license nor could he produce a registration card. The passengers were then ordered out of the vehicle and during a pat-down search, bullets were found in the pocket of one of the passengers. A gun was subsequently found in the vehicle.
The defendant’s motion to suppress the weapon and the bullets was denied and defendant was convicted of Unlawful Possession of Weapons by Persons Under Sixteen in violation of Penal Law 265.05. The Appellate Division affirmed the denial of defendant’s suppression motion however, the Court of Appeals reversed holding that there was no objective evidence of criminal activity as of the time of the stop. The defendant’s “innocuous” acts of pausing in front of a bar and stopping at a stop sign did not reasonably denote criminal activity. The gun and bullets were therefore suppressed, the judgment vacated and the indictment dismissed.
For more information about this, or any other New York State or Federal criminal matter, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

A police officer may not stop your vehicle based upon hunches or gut feelings. A vehicle may only be stopped if the officer has reasonable suspicion of a violation of the law or in accordance with nonarbitrary, nondiscriminatory, uniform procedures, such as at roadblocks, checkpoints and weighing stations.
In People v. Reynolds, 185 Misc.2d 674, 713 N.Y.S.2d 813 (N.Y.Co.Ct. 2000), the Monroe County Court held that an officer observing a known male prostitute entering a vehicle was insufficient to justify the stop of that vehicle. In fact, the Court suppressed a computer check of the vehicle’s registration. In Reynolds, the officer observed a known male prostitute enter a parked pick-up truck which then pulled away. The officer followed the pick-up truck and ran a computer check on the license plate number which revealed an expired registration. The officer then stopped the vehicle, separated the driver and passenger at which time he observed the driver the exhibit signs of intoxication. The driver was subsequently charged with Driving While Intoxicated. No prostitution related charges were ever filed.

Westchester DWI defense firm, Tilem & Campbell won another DWI trial last week when Mount Pleasant Judge Nicholas Masselli issued a decision finding that the client who was pulled over on the side of the highway was not "operating" the vehicle and therefore could not be convicted of Driving While Intoxicated. Judge Masselli also dismissed another charge of Parking on the Pavement and issued an order sealing the record.

The case arose after the client was found sleeping behind the wheel of a running vehicle that was sitting on the side of the road by a New York State Trooper. The Trooper testified that he smelled the strong odor of an alcoholic beverage on the driver's breath and that the driver failed a horizontal gaze nystagmus test that was performed on the side of the road. The Trooper testified that the driver failed other field sobriety tests and refused a breath test that he was offered at the police station.

Managing partner John Campbell tried the case on behalf of the firm and this victory makes three DWI wins in a row for Mr. Campbell. The defense focused on the troopers errors in administering and scoring the field sobriety tests and the lack of the intent to operate the vehicle.

Tilem & Campbell is a White Plains based criminal defense firm that has an extensive DWI and traffic practice. For more information contact Tilem & Campbell.

As discussed in the previous blog New York police are limited in the way they interact with civilians that they encounter on the street. If the police overstep their authority an experienced criminal defense attorney can use the police conduct to get evidence in a case suppressed.

Below are the four levels of intrusion as set forth by the New York Court of Appeals in Debour. Keep in mind that each case is an individual and may be affected by the minute details of the case.

Level 1 “Request for Information”: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not necessarily indicative of criminality. This is not equivalent to a stop. These encounters should be brief and not be harassing or intimidating. For example, approaching possible witnesses to a crime and checking to see if everyone involved in an accident is alright.
Level 2: “Common-Law Right to Inquire”: This is a greater level of intrusion that must be based upon a founded suspicion that criminal activity is afoot. Here, the officer’s questioning might lead a person to believe they are suspected of criminality.
Level 3: “Forcible Stop and Frisk”: The police may stop and frisk an individual when they have a reasonable suspicion that the individual has committed, is committing or is about to commit a crime (misdemeanor or felony). In such a situation, the police may frisk the individual if the officer reasonably suspects he is in danger because the individual is armed.
Level 4: “Arrest”: Of course, the most intrusive Level of a police encounter is an arrest. The police may arrest an individual when they have probable cause to believe that individual has committed a crime, whether in the officer’s presence or not, or an offense in his presence (See CPL 140.10).

If you have been charged with a crime, one the first areas your attorney should investigate is the legality of law enforcement’s stop and/or seizure of you or your vehicle. For more information, contact Tilem & Campbell toll free 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In New York, a large body of law has developed around police interaction with civilians that they encounter on the street. When may a police officer approach you for information, question you about criminal activity, detain you and finally, arrest you? Experienced New York criminal defense lawyers must be well versed in this area of law. If the police overstep their authority and thereby obtain evidence, skilled criminal attorneys can challenge that evidence in Court at a suppression hearing and have the evidence suppressed. Suppression of evidence can lead to the dismissal or reduction of charges, favorable jury verdicts and favorable plea bargains. Here at Tilem & Campbell, we have used suppression to obtain dismissals of some tough cases.

Suppression, can be especially valuable in fighting drug cases or gun cases since without the contraband as evidence, the case is almost always dismissed. But suppression can also be useful to prevent the admission at trial of statements, identifications, physical evidence of criminal activity or electronic surveillance.

No two cases are alike and each case and each set of facts must be analyzed by analogizing from previously decided cases with similar facts. In a well written and thorough decision, the New York Court of Appeals developed four “Levels” of police intrusions with each Level being based upon the intensity of the intrusion upon the civilian’s life. See People v. De Bour, 40 N.Y.2d 210 (1976). These four level have become the guiding principle for police encounters with civilians on the streets of New York. So much so that New York Courts have cited to Debour well over 1600 times in judicial opinions that have been published in New York. That means that in the more than 33years since Debour was decided, New York Courts cited to it on average about 50 times per year in published opinions.

In the next blog, I will lay out the four levels of intrusion that the Court of Appeals described in Debour.

Remember, to consult with experienced criminal lawyers about the specific facts of a case.

Tilem & Campbell senior partner, Peter Tilem was quoted by the Associated Press over the weekend in an article about Brooke Astor's son, Anthony Marshall. Marshall was convicted on October 8, 2009 of several counts including Grand Larceny in the First Degree for looting his mother's estate. Grand Larceny in the First Degree carries a mandatory minimum of one to three years in state prison and last Friday, Marshall's attorneys filed a Clayton motion seeking to dismiss the Grand Larceny in the First Degree charge so that Mr. Marshall could avoid a prison sentence.

Mr. Tilem, who is familiar with the Clayton Motion also called a Motion to Dismiss in the Interest of Justice was interviewed for the article and was quoted. As discussed in our previous blog, on the subject, a Judge must consider 10 factors which are listed in the New York Criminal Procedure Law when considering a Motion to Dismiss in the Interest of Justice. Mr. Tilem raised a concern about one the factors in the Astor case. The statute asks a judge to examine the impact that dismissal would have on the confidence of the public in the criminal justice system. Mr. Tilem raised the concern that because of the wealth and notoriety of Mr. Marshall a dismissal, especially at this post trial stage of the case, would make it appear that Mr. Marshall was treated differently than others with less money or fame.

For more information about a New York Motion to Dismiss in the Interest of Justice contact Tilem & Campbell.

New York criminal defense firm Tilem & Campbell scored another major victory in a DWI case today when Supreme Court Justice William Wetzel found the defendant not guilty of felony DWI after trial. The defendant was found not guilty of the felony but was found guilty of unlawful possession of marihuana, a non-criminal offense that carries a maximum penalty of a $100 fine. The defendant was facing up to four years in prison on the felony charge.

The charge arose based upon a one car accident in Yonkers. The defendant refused to take a chemical test but his driving privileges were quickly restored after Tilem & Campbell, partner Peter Tilem won at the DMV refusal hearing.

The defendant had been charged with one count of Driving While Ability Impaired by Drugs or Alcohol and Drugs under Vehicle & Traffic Law section 1192 (4-a), a relatively new section of the New York Vehicle and Traffic Law.

Managing Partner John Campbell conducted the trial. Mr. Campbell focused the defense on the failure of the police to properly administer the field sobriety tests as well as the lack of evidence of the defendant's operation of the vehicle.

Tilem & Campbell is a White Plains, New York based criminal defense firm that handles a wide array of criminal cases including DWI, Assault, Drugs, Guns and homicides. For more information contact Tilem & Campbell.

Our July 15, 2009 blog on the Auxiliary Police Officer arrested for possession of Mace has sparked tremendous interest with many calling our firm or writing in about the issue and many wanting to find out how to obtain a New York City permit for mace. Some have contacted us about there failed efforts to obtain information about the permit from the New York City Police Department. The regulations are summarized in our May 24, 2009 blog. So I leave it to you; if any one knows how to obtain a New York City permit for mace, please comment to this blog, or contact Tilem & Campbell with the information. I will publish the results in a future blog.

According to today's newspapers the NYPD Cop accused of killing a woman while driving in an intoxicated condition, had a blood alcohol content of 0.0 indicating that no alcohol was present in the officers blood seven hours after the incident. The blood was not drawn for seven hours after the accident. As discussed in my previous blog, New York drivers arrested for DWI have the right to refuse to take a chemical test. The result of the blood test substantially weakens the case against the officer who is accused of killing the woman while driving drunk.

Early Sunday morning, New York City Police Officer Andrew Kelly, while allegedly driving in an intoxicated condition, struck and killed 32 year old Vionique Valnord in Old Mill Basin, Brooklyn. The accident happened at approximately 12:41 a.m., however, Kelly’s blood was not drawn for more than seven hours. How can this happen? Simple, Officer Kelly exercised his statutory right to refuse to submit to a chemical test.

Let’s start with a brief overview of New York’s “deemed consent” law. To summarize the law; every New York driver is deemed to have given consent to the testing of their breath, blood, urine or saliva to determine the alcoholic and/or drug content of their blood provided the officer has reasonable grounds to believe the driver is impaired or intoxicated and the test is administered within two hours of arrest. See NY VTL § 1194(2)(a)(1), (2) see also 10 NYCRR 59.2 (All samples shall be collected within two hours of the time of arrest).

However, a driver has a qualified statutory right to refuse to submit to a chemical test. The right to refuse is qualified in several ways. Yes, one may refuse to take the test and, absent a court order, no test will be given. However, although one may refuse the test, if properly warned of the consequences, and if they persistently refuse, they may incur a “civil” penalty which includes a fine and the revocation of their driver’s license if the refusal is proven at a DMV refusal hearing. See NY VTL § 1194(2)(b). Further, if the driver, after being sufficiently warned about the consequences associated with refusing, nevertheless, persistently refuses, the refusal can be used by the prosecution at trial. See NY VTL § 1194(2)(f).

Finally, if a driver refuses to submit to a chemical test, that driver can be subjected to a compulsory, court ordered, chemical test. See NY VTL§ 1194(3). Such court ordered compulsory tests are almost always of the blood.

Notably, refusing to submit to a chemical test is not a criminal offense nor is it even a non-criminal traffic infraction. This is distinguished from refusing a breat screening test which is a traffic infraction. Refusals are purely “civil” offenses handled by the Department of Motor Vehicles. See People v. Thomas, 45 N.Y. 2d 100 (1978).

In this case, Officer Kelly exercised his qualified right to refuse to submit to a chemical test. As a result, his refusal can be used against him at trial. But more importantly, in this case, his qualified right to refuse was overcome by the issuance of a court order compelling Officer Kelly to submit to a chemical test to determine the alcohol or drug content of his blood. See VTL § 1194(3)(b).

For more information about Driving While Intoxicated, chemical testing, blood testing or any other question you might have, please contact Tilem & Campbell, PC toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DwiCounsel.com.

As previously discussed, officers are trained in three different Phases of Driving While Intoxicated detection. Phase 1 involves the officer’s observations of the vehicle in motion, Phase 2 involves the officer’s personal contact with the driver and Phase 3, which I will discuss here, involves Pre-Arrest Screening.

During Phase 3, the officer will determine whether the driver has consumed alcohol and whether such consumption has impaired the driver to the extent that he should be arrested. The main focus during Phase 3 is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT) to determine the presence of alcohol but the PBT should only be used to support the SFST; it should not be used in place of SFSTs. In New York, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. These will all be discussed separately in future blogs.

After the driver has performed the SFSTs, the officer will make a determination with regard to intoxication based upon the totality of the evidence developed during all three Phases of DWI detection.

If you have been arrested for Driving While Intoxicated (DWI) in New York, feel free to contact us at toll-free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.com. Those charged with DWI need attorneys who know not the law, but the science and procedures relevant to DWI. Managing partner, John Campbell, is certified in Driving Under the Influence Detection by Blackwater Worldwide having successfully completed the same 8 hour course many members of law enforcement have taken.

Those charged with a New York DWI/DUI or related offenses, should be pleased to hear that New York criminal defense lawyer, John Campbell, the managing partner at Tilem & Campbell recently completed two courses relevant to Driving Under the Influence, Driving While Intoxicated and Driving While Ability Impaired by Drugs. These courses are the same courses that some members of law enforcement take themselves. The knowledge gained in these classes will help Mr. Campbell better cross-examine police officers, toxicologists and others at trial.

With regard to DWI and/or DUI, Mr. Campbell has completed and has been certified by Blackwater Worldwide in Driving Under the Influence Detection. This 8 hour course concentrates on, among other things, the three “validated” Standardized Field Sobriety Tests which are the (1) Walk-and-Turn; (2) One Leg Stand; and (3) the Horizontal Gaze Nystagmus. The course also focuses on Preliminary Breath Screening (which is the handheld device officers sometimes ask a motorist to blow into on the side of the road), and “Red Flags” an officer looks for when observing moving vehicles that indicate a possible intoxicated driver. (weaving, swerving, no headlights at night, wide turns, etc)

Further, Mr. Campbell recently completed a course in, and has been certified by, NIK Public Safety in Narcotic Field Testing. This 2 hour course focused on the field testing of substances to identify illegal drugs such as cocaine and marijuana. Field testing of this type is usually done by law enforcement officers in the field to test substances found during searches, car stops, etc. Mr. Campbell was trained in how to use field testing kits and identify various drugs based upon the test results, how to properly use NIK’s Polytesting system which is utilized when the officer has no idea what the substance is (as opposed to most situations where an officer has an idea of what the substance is), and how to utilize NIK’s reference materials relating to narcotic field testing.

Mr. Campbell was required to pass a competency exam at the end of both courses before receiving his certifications. If you have been charged with any Driving While Intoxicated or related offenses such as Driving While Ability Impaired by Drugs, you need attorneys who know not just the law, but also the science and procedures associated with DWI. In addition to the above-discussed courses, in a continuing effort to provide clients with the best possible DWI defense, the lawyers at Tilem & Campbell routinely attend seminars and classes relating to all aspects of DWI defense. For further information feel free to call us toll free at 1-888-DWI-COUNSEL.

Mortgage Fraud has taken center stage in Westchester County Courts and around New York State. This national problem has taken on extra prominence in New York where property values are high. As a criminal defense law firm that has handled many mortgage fraud cases including headline making cases we are seeing an increased number of cases and increased enforcement by law enforcement authorities.

Indeed, in connection with a high profile mortgage fraud case that this firm is involved with, the Westchester County District Attorney's Office announced the formation of a Mortgage Fraud Unit to investigate and prosecute mortgage fraud in Westchester County. The Westchester County case resulted in the arrest of 8 people, 6 of whom were mortgage professionals and two attorneys.

Mortgage Fraud can take on many different flavors. The Westchester case is alleged to involve "Equity Stripping" which is a way of stealing the equity from a person facing foreclosure. Other cases can involve appraisal fraud, falsely preparing mortgage applications, using straw buyers with good credit to purchase properties, "flipping" properties from one buyer to another, identity theft or a combination of these practices.

The bottom line is that what was tolerated as normal practice several years ago by the banks is now considered fraud once the bank loses money because of a foreclosure or bankruptcy. While banks in the past encouraged "fraud" by loans that promised "no documentation", "light documentation" or "stated income", today they complain that the information they received from borrowers was not accurate.

In addition, victims of mortgage fraud and/or identity theft can have a difficult time navigating through the maze of legal issues related to resolving credit issues and resolving title issues.

These cases can become very complex. Whether you are the victim of mortgage fraud or are suspected of or accused of mortgage fraud, contact us, to speak to an experienced criminal attorney that has specific experience handling New York mortgage fraud cases or Federal mortgage fraud cases.

Senior partner, Peter H. Tilem, appeared on the five o'clock news earlier this evening commenting on the Taconic Parkway fatal collision that left the driver and seven others dead. The piece appeared on channel 7's Eyewitness news shortly after 5 pm. Mr. Tilem, who is a former senior prosecutor in the New York County District Attorney's Office, was asked about the possibility of charges being brought against the husband of the woman who was allegedly intoxicated and indicated that it would not be sufficient if the husband was merely are of a history of substance abuse.

The full video is available and can be viewed at Tilem & Campbell's media page along with other videos of partners Peter Tilem and John Campbell in the news.

As a former Manhattan Prosecutor I have presented hundreds of cases to grand juries in New York. As a partner at a prominent criminal defense firm I have sat with clients inside the grand jury as they were questioned by prosecutors. With recent news reports about the a New York County Grand Jury considering charges against New York Giants stars Plaxico Burress and Antonio Pierce, it is important to understand exactly what a grand jury is and how it operates.

No person may be tried on a felony charge in New York unless a grand jury has considered evidence and voted an indictment or unless the person has waived indictment. The grand jury itself is made up of between 16 and 23 people. They are charged with the duty of hearing and examining evidence involving offenses or misconduct whether or not the misconduct is criminal. In order for a grand jury to vote an indictment 12 of the grand jurors must vote to indict.

The burden to vote for an indictment is low. A grand juror need only find that there is reasonable cause to believe that a person committed an offense. In laymans terms that means that a grand jury need only find sufficient evidence to accuse a person of having committed a felony. This is a very different standard than the proof "beyond a reasonable doubt" needed to convict someone of a crime.

The burden to obtain an indictment is so low that the former Chief Judge of New York State, Sol Wachtler, humorously noted that a prosecutor could persuade a grand jury to "indict a ham sandwich." It is not only the low burden that makes it so easy to indict, it is an area of the Court that is almost exclusively controlled by the prosecutor. Although, in theory the grand jury is supervised by the Court, no Judge sits in the grand jury room while they are hearing evidence or deciding cases. It is the prosecutor that presents all of the evidence and instructs the grand jury on the law. It is the prosecutor who decides what evidence the grand jury will see and which witnesses they will hear.

Although the prosecutor truly controls the goings on in a grand jury, a target of a grand jury investigation or presentation has certain rights which will be discussed in a future blog. In the meantime, if you are charged with a felony or believe that a grand jury may be considering charges against you, contact one of the lawyers at the New York criminal defense firm, Tilem & Campbell.

If you are charged with DWI, you need criminal defense lawyers that not only know the law, but also know the science and procedures relevant to a Driving While Intoxicated cases. Continuing with my series of blogs pertaining to blood draws in New York Driving While Intoxicated cases, in this blog I will briefly review cases which make clear that when the blood is drawn by specifically listed technicians, phlebotomists and the like, such a blood draw must be under the “supervision and at the direction of a physician”.

In People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624 (4th Dept. 1996), blood test results were suppressed where a medical laboratory technician did the draw at the direction of a nurse instead of a physician. Other cases firmly establish that only a physician can direct and supervise those technicians and the like listed in VTL 1194(4)(a)(1)(ii) to perform a blood draw for DWI purposes. The Fourth Department had previously reached the same conclusion in People v. Ebner, 195 A.D.2d 1006, 600 N.Y.S.2d 569 (4th Dept. 1993) where they suppressed the results of a blood test because a registered nurse, instead of a physician, authorized a medical laboratory technician to perform the blood draw.

In People v. Reynolds, 193 Misc.2d 697, 749 N.Y.S.2d 687 (N.Y.Co.Ct. 2002), the Essex County Court suppressed blood test results for non-compliance with the physician supervision requirement holding “[t]he People did not meet their burden of showing that a physician either directed or supervised the taking of a blood sample from Defendant by an AEMT. The blood test results should, therefore, be suppressed.”

Similarly, in People v. Griesbeck, 17 A.D.3d 717, 793 N.Y.S.2d 227 (3rd Dept. 2005), the Third Department upheld the trial court’s reversal of a jury’s guilty verdict because the People “failed to introduce evidence that the medical technologist who drew defendant’s blood was authorized to do so by a physician.”

The Appellate Term for Second Department has reached the same conclusion. In People v. Gertz, 189 Misc.2d 315, 731 N.Y.S.2d 326 (App. Term 2nd Dept. 2001), the Appellate Term held that the People did not establish that a physician directed a medical technologist to draw the defendant’s blood in the emergency room. In rejecting the People’s position, the Appellate Term observed that the technologist merely testified that he received a call to draw blood and that a doctor was on duty in the emergency room.

The above summarized cases establish that the courts strictly construe the supervision and direction of a physician requirement when the blood is drawn by one other than a physician, registered nurse or physician’s assistant.

For more information about Driving While Intoxicated laws in New York, call Westchester Criminal Defense Firm, Tilem & Campbell toll free at 1-877-377-8666.

Last Friday, Tilem & Campbell managing partner, John Campbell scored a major victory on a DWI case in the Town of Ramapo when a jury acquitted the client of all charges in connection with a DWI that police alleged was committed during the Jewish holiday of Purim. The client was charged with DWI and DWAI but was found not guilty on all charges. Although police alleged that the keys were in the ignition of the car and that the engine was running, the client was sleeping in the car and the jury found that the client did not "operate" the vehicle as required for a DWI conviction.

On Monday, the next business day, Tilem & Campbell was back in Ramapo Town Court this time representing a client charged with committing a second DWI just one month after pleading guilty to the reduced charge of Driving While Ability Impaired in connection with the client's first DWI. The client was again offered a plea to the reduced charge of Driving While Ability Impaired (DWAI) and entered a plea to the DWAI with a minimum fine. Other traffic infractions pending against the client were dismissed. This second case was handled by Tilem & Campbell senior partner Peter Tilem.

If you or a loved one has been arrested or charged with a DWI, DWAI or any criminal case in New York contact one of the experienced criminal defense attorneys at the Westchester criminal defense firm of Tilem & Campbell.

As I have previously explained, in a New York Driving While Intoxicated case where a blood test is directed by a police officer, only a physician, a registered nurse or a physician’s assistant my draw the blood unsupervised. [See NY VTL 1194(4)(a)(1)(i)]. Other specifically listed technicians and the like may also perform the blood draw but only under the supervision and direction of a physician. [See NY VTL 1194(4)(a)(1)(ii)].

But what if a registered nurse instead of a physician directs and supervises those specifically listed technicians to do the blood draw? The statute is very clear – only a physician may direct and supervise those listed technicians and the like. In People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624 (4th Dept. 1996), the blood draw was done by a medical laboratory technician at the direction of a registered nurse instead of a physician. The Fourth Department suppressed the blood test result observing that “[t]he critical element, deemed essential by the Legislature when it amended the statute in 1969 . . .is that a physician authorize the taking of the sample.”

Amazingly, the trial court in Olmstead had originally declined to suppress the blood test result holding that there was substantial compliance with the statute because the nurse, who could have drawn the blood without the physician's direction, was present and watched the blood being drawn. This substantial compliance exception created by the trial court in Olmstead was rejected by the Fourth Department.

Wouldn’t we all like to avoid the ramifications and sanctions of the law by simply telling a court that we substantially complied with such law? Wouldn’t it be nice to show up in traffic court and tell the judge to throw out your speeding ticket because you substantially complied with the law by exceeding the speed limit by only 10 mph? Or how about courts dismissing DWI cases where the driver blows .09 (just .01 over the limit) because such a small amount over the .08 limit is substantial compliance with the law.

Nevertheless, in the end the rule of law prevailed. If you have been charged with DWI or other Driving While Intoxicated offense, please call Tilem & Campbell toll free at 1-877-377-8666. We cover the entire downstate area including Westchester, Rockland, Dutchess, Orange and Putnam counties as well as New York City (Bronx, Queens, Brooklyn, Manhattan and Staten Island).

As outlined in our May 24, 2009 blog New York City bans certain items that are legal other places in New York State and most other places in our Country. New York City Auxiliary Police Officer Alexander Gonzalez found that out the hard way when he was arrested, while on duty, in Manhattan for possession of mace. Mace is one of those items which is illegal in New York City but was made legal in New York State in 1996.

New York City Auxiliary Police Officers are neither police officers or peace officers under New York Law and therefore are not entitled to possess any weapons that civilians are not also entitled to possess. Senior partner, Peter H. Tilem was interviewed for an article written about the case today.

Tilem & Campbell handles a large number of gun and weapons charges in New York and has seen an increase in overly aggressive enforcement of minor weapons violations in New York City for items such as Mace and knives.

As I previously discussed in Part 1 of this group of blogs pertaining to blood testing in NY DWI cases, one of the first areas of attack in a blood test DWI case is the person who drew the blood – the “drawer”. Briefly, at the request of a police officer only a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(i)]. For purposes of my blogs, I refer to this as the “first group” of drawers.

And, at the request of a police officer and at the direction and supervision of a physician, a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(ii)]. I refer to this group as the “second group” of drawers.

When the blood draw is done by someone in the second group of drawers, what exactly does at the “direction and supervision of a physician” mean? Recall, those in the second group of drawers may only draw at the “direction and supervision of a physician”.
In People v. Moser, 70 N.Y.2d 476, 522 N.Y.S.2d 497, 517 N.E.2d 212 (1987), the Court of Appeals held that the personal presence and supervision by a physician of a technician who drew a blood sample was not required by Vehicle and Traffic Law § 1194. In so holding, the Court of Appeals only required the physicians authorization of the test.

It’s important to note that the physician in Moser testified that he directed and supervised all activities in the emergency room and had authorized the drawing of the blood. In People v. Ellis, 190 Misc.2d 98, 737 N.Y.S.2d 232 (N.Y.Co.Ct. 2001), the Cattaraugus County Court distinguished Moser and held that the People had not established that a physician authorized the blood draw by an Advanced Emergency Medical Technician because the physician who allegedly authorized the test did not testify.

Therefore, while Moser held that the physician who directs and supervisors the blood draw need not actually watch the draw, that physician should testify at trial that he or she directed and supervised all activities in the emergency room (or similar locale) and had authorized the drawing of the blood. Defense counsel should object to the introduction of a blood test result where the draw was done at the direction and under the supervision of a physician if that physician does not testify at trial.

If you have been charged in New York with Driving While Intoxicated or impaired, contact Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation.

Anyone who drives in New York is deemed to have consented to the chemical testing of his or her breath, blood, urine, or saliva, to determine the alcoholic and/or drug content of their blood. [See NY VTL 1193(2)(a)].

Typically a New York DWI suspect’s breath is tested and he or she is asked to take a Breathalyzer [or similar type] test. However, a police officer might direct that the driver’s blood be tested instead. In this regard, at the request of a police officer, a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(i)]

Or, again, at the request of a police officer and under the supervision and at the direction of a physician, a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(ii)].

Therefore, when defending a DWI blood test case, the first thing you want to look at with regard to the blood test itself is whether the blood was drawn by an authorized person and/or under the direction and supervision of an authorized person. In other words, at the request of a police officer, only a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content without additional supervision or direction. We will refer to these people as the first group of authorized blood drawers.

The second group of blood drawers authorized to draw blood at the direction of a police officer for alcohol and/or drug testing must do so under the supervision and at the direction of a physician. To review, this second group of blood drawers consists of a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law.

Again, always check the qualifications or title of the blood drawer and make the People prove it. Was that really a Registered Nurse? Did a doctor direct that the Emergency Medical Technician draw blood and further, did the doctor supervise the draw? Also, was the Emergency Medical Technician an “Advanced” Emergency Medical Technician?

In coming blogs on this topic I will discuss this issue at length and review some sample cases where who did the blood draw was an issue as well as cases regarding whether the blood draw was properly supervised. Meanwhile, if you have been charged in New York with Driving While Intoxicated or any similar offense, call Tilem & Campbell toll free at 1-877-377-8666 for more information.

So you have been charged in New York with Driving While Ability Impaired by Drugs (VTL 1192(4) or VTL 1192(4-a) if it’s a combination of drugs and alcohol) – specifically, the drug you are alleged to have ingested is cocaine. What comes next? Many times the officer who makes the initial stop is not a Drug Recognition Expert (DRE) so he might call for one to come to the scene. I will discuss DREs in a later blog. But typically, the arresting officer makes a few observations – dilated pupils, fidgety, talkative and of course, you admit to ingesting cocaine.

Once the arresting officer has your admission that you ingested cocaine, he will ask for a urine sample as opposed to a breath sample in a typical Driving While Intoxicated case. However, unlike a Breathalyzer test which supposedly can give a definitive Blood Alcohol Concentration based upon the alcohol present in your lower lung air, the urine test for cocaine can only tell us that there are cocaine metabolites in your urine thus establishing that the drug was used at some point in the past.

In fact, unlike with alcohol where the Legislature has set a .08 % blood alcohol content, as a cut off above which you are presumed intoxicated, with drugs, there is no such line of demarcation. Therefore, not only must the prosecution prove that you ingested a drug, they must also prove that such ingestion impaired your ability to drive with no regard for the amount of the drug in your system. In other words, there is no law in New York that says if one has a certain amount of nanograms per milliliter of urine, they are presumed impaired.

This proves very beneficial for the defendant because, the presence of cocaine metabolites in one’s urine only indicates that the drug was used in the past. No conclusion can be drawn about the degree on one’s impairment from the cocaine, if any, at the time of the urine testing. In fact, the amount of cocaine metabolite concentration in one’s urine tells us absolutely nothing about the amount of cocaine in one’s blood. There is no urine to blood ratio with regard to cocaine metabolites. Any toxicologists who says there is any such relationship is mistaken. Period.

In fact, famed toxicologist and pathologist Steven Karch has written that any attempt to infer impairment based upon urine concentrations of cocaine is “pure folly”. Without a blood test, it is impossible to for an expert to state with a reasonable degree of medical certainty that the defendant was impaired by cocaine based upon a urine test.

If you have been charged with driving under the influence of drugs in New York, you need experienced attorneys who are not just experienced with criminal defense but who are also well versed in the science behind your charges. Attorneys who can cross examine the People’s expert with knowledge of the science involved that not many attorneys have. We just don’t ask the standard scientific questions that so many attorneys ask without really knowing what they are talking about. We know these tests, we know the science behind them and we put the prosecution to the test. For more information call toll free 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

The United States Supreme Court ruled yesterday, that criminal defendants have a constitutional right to cross-examine the scientists who prepare reports which are introduced at trial. The list of scientists would include chemists who test for the presence of controlled substances, fingerprint analysts and ballistics experts as well as many others. Although the ruling is an important one for the rights of those accused of crimes the ruling is likely to have little impact in New York where State laws already gives defense lawyers the right to cross-examine scientific witnesses.

The ruling is an extension of the 2004 Supreme Court decision Crawford v. Washington which limited the permissible uses of hearsay in criminal trials under the Sixth Amendment Confrontation Clause. The Supreme Court seems to be expressing continued concerned over the use of hearsay (out of Court statements) in criminal trials.

If you or a loved one stand accused of a crime or have been convicted of a crime based upon hearsay, contact one of the experienced criminal defense lawyers at Tilem & Campbell.

A Westchester County substitute school teacher was arrested last week and charged with Assault in the Third Degree (misdemeanor assault), Endangering the Welfare of a Child and Harassment for an incident involving a third grader in his gym class. According to police the teacher allegedly taunted and then assaulted the student after the student came at the teacher in a New Rochelle, New York public school. The case has received a great deal of media attention and the teacher, Daniel Sanabria, has now hired the White Plains criminal defense law firm, Tilem & Campbell, to defend him against the criminal charges.

The Westchester Journal News extensively quotes Tilem & Campbell, partner Peter Tilem about Mr.Sanabria's action in the case. According to the Journal News article, both Mr. Sanabria and criminal defense lawyer Peter Tilem are disputing the allegations. An article has also been featured in the New York Post and stories have been run on cable news Channel 12.

Mr. Sanabria is due in New Rochelle City Court next week where he is expected to defend the charges.

A recent change in New York Vehicle & Traffic Law sec. 1806 will make it much harder to fight traffic tickets in New York State. Prior to New York April 7, 2009, New York law made it clear that in most cases a person should only have to appear one time to fight a routine traffic infraction such as speeding, unsafe lane change or failure to signal. The Vehicle & Traffic Law made it clear that upon receipt of a "not guilty" plea from a motorist the Court was required to schedule the matter for a trial. On the trial date the motorist could plea bargain or proceed to trial. Judges who violated this rule faced sanctions from the Commission on Judicial Conduct. The Commission found that judges that set cases down for a "pre-trial" conference rather than trial were putting an unnecessary burden on motorists who would then feel coerced to plead guilty rather than appear in Court multiple times for a rather routine matter.

Well, the New York State Legislature and Governor decided that coercion was the best way to resolve New York traffic tickets and have now amended the Vehicle & Traffic Law to require Courts to send motorists an "appearance" date rather than a "trial" date. This law seems to require motorists to appear a minimum of two times to fight their traffic tickets.

Since New York State Troopers are not permitted to plea bargain their tickets and many localities do not have prosecutors to handle those tickets, we have to wonder both what the purpose is of holding such a Court appearance? and what would happen at that appearance?
In any case as noted by the New York State Commission on Judicial Conduct, this practice is likely to coerce many guilty please.

Motorists who receive tickets need to understand that experienced traffic lawyers can make these appearances without the motorist being present and can usually resolve these tickets with reduced or no points. Since experienced traffic lawyers generally handle several cases in a Court at one appearance they can offer very reasonable rates to fight tickets. Traffic lawyers can save the motorist from making multiple appearances, save the motorist money, save the motorist points, save the motorist the driver responsibility assessment and save the motorist from insurance increases.

If you wish to fight a ticket contact one of the experienced traffic court attorneys at DrSummons.com.

New York State traffic offenses such as speeding tickets, DWI's, Driving with a Suspended License and other driving infractions and crimes are getting more expensive. New York State already imposes surcharges totaling $85 for any traffic infraction over and above any fine. The total Surcharge is $80 in City Courts. However, the law imposed a cap, or maximum surcharge of $100 per incident which meant that if a motorist was convicted of multiple tickets the maximum surcharge could be $100. In a memo sent to all New York State City, Town and Village Courts, the Office of Court Administration has notified the Courts that effective for New York Vehicle and Traffic Law (VTL) offenses committed after July 6, 2009, the cap for mandatory surcharges was raised to $180.

The calculations are complex because over the years, as a way to increase revenue, New York has imposed an increasing number of fees on all types of convictions especially traffic violations. For example the $85 surcharge imposed on a routine traffic infraction such as speeding or passing a red light actually includes a $55 mandatory surcharge, a $5 crime victim assistance fee, a $5 town and village fee if the conviction is not in a City Court, and a $20 additional surcharge. The new $180 cap only applies to the mandatory surcharge and crime victim assistance fee. So if you are convicted of 10 routine traffic infractions, the surcharges will total $180 (the "cap"), plus $200 (the $20 additional surcharge 10 times) plus $50 (the town and village fee 10 times).

A conviction for a DWI can cost $400 just in surcharges. That's excluding the fine of between $500 and $1000. Even a conviction for Driving While Ability Impaired by Alcohol, a traffic infraction, carries surcharges of $260. Additionally, suspension lift fees (suspension termination fees) have gone up from $35 to $70 and the cap on these fees has doubled to $400.

The bottom line is that simply pleading guilty to and paying New York traffic tickets has gotten very expensive. Routine tickets can result in fines, surcharges, imposition of the driver responsibility assessment and insurance increases and/or surcharges. If you receive a traffic ticket contact an experienced New York traffic Court attorney or visit DrSummons.com.

As experienced New York DWI attorneys, we deal with many different types of New York DWI cases. Many times in a New York Driving While Intoxicated (DWI) case, the motorist will have an allegedly high Blood Alcohol Concentration (BAC) but yet perform well on Field Sobriety Tests (FSTs) such as the “Walk-and-Turn”, “One Leg Stand”, and “Finger-to-Nose” tests. Also, many times, despite a high BAC, the motorists will appear fine on a video. When this happens, defense attorneys argue the obvious – the Breathalyzer was not working properly and therefore, the high BAC score was incorrect. Why else would the motorist perform well of the FSTs and appear fine on the video?

In an effort to try and explain this apparent discrepancy between the motorists BAC score, the prosecution will try to offer “Tolerance” Evidence. In other words, the prosecutor will try to make the jury believe that the reason the motorists performed well of the FSTs but yet had a high BAC is because the motorists is a chronic drinker who has been drinking heavily for a long time and therefore, has developed a tolerance to the effects of the alcohol.

However, the prosecutor should not be allowed to offer evidence regarding the motorist’s tolerance where they have no evidence that the motorist is in fact a heavy drinker and has therefore developed a tolerance. Without knowing the motorist’s drinking history and whether they were in fact a heavy drinker, tolerance evidence is completely irrelevant.

If you have been charged in New York with Driving While Intoxicated or Driving While Ability Impaired, call one of the experienced DWI attorneys at Tilem & Campbell toll free at 1-877-377-8666 for a free consultation. We handle cases throughout New York including White Plains, Greenburgh, Yonkers, New Rochelle, Mamaroneck and New York City as well as all other courts throughout the downstate area. You can also visit us on the web at www.tilemandcampbell.com.

The difference between a New York criminal conviction for Driving While Intoxicated and a non-criminal conviction for the violation of Driving While Ability Impaired lies in the extent of the driver’s impairment. In fact, where a defendant is charged with Common Law Driving While Intoxicated, it is a common strategy for an attorney to ask the jury to find the defendant not guilty of Common Law Driving While Intoxicated (VTL 1192(3)) but guilty of the lesser included offense of Driving While Ability Impaired (VTL 1192(1)). Driving While Ability Impaired is a non-criminal traffic infraction while Driving While Intoxicated is an unclassified misdemeanor.

"Impairment" means that the defendant, by voluntarily consuming alcohol or drugs, has actually impaired, to any extent, the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver. “Intoxication”, however, is defined in New York as a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he or she is incapable of employing the physical and mental abilities which he or she is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.

Therefore, one is impaired if their ability is impaired “to any extent” while to be intoxicated one must be totally incapable of operating the vehicle. It would appear that proving intoxication under this totally incapacitated standard would be difficult. However, impairment would be much easier to prove because all that is required is the slightest impairment – i.e., impairment “to any extent”.

If you have been charged in New York with Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI), call Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation. Our attorneys are experienced with all aspects of DWI defense.

New York City Administrative Code §10-131 prohibits the possession of common items which are lawful in most other parts of New York State and the Country. As a criminal defense attorney with experience in so many different weapons offenses I see many clients who innocently bring these items into New York City and find themselves facing extremely serious criminal charges.
A brief list of the items banned in New York City is as follows:

1. Air Pistols and Air Rifles. The Sale and possession are illegal in New York City pursuant to 10-131(b).

2. Sale of certain toy pistols pursuant to 10-131 (d) is illegal in New York City.

3. Sale or possession of mace, tear gas or pepper spray is illegal in New York City without a permit pursuant to 10-131(e). This is so even though in 1996 the New York State legislature repealed the law making self-defense sprays illegal state wide. These self-defense sprays are currently legal, without a permit outside New York City.

4. Sale or possession of certain toy or imitation pistols is illegal in New York City. 10-131 (g).

5. Carrying or possessing rifles and shotguns. These guns are available for sale outside of New York City without a license. Possessing them in New York City without a special license can be a misdemeanor or an offense. 10-131 (h).

6. It is illegal to sell or dispose of ammunition or ammunition feeding devices in the City of New York unless you are “authorized pursuant to law.” However a person who lawfully possesses such items may dispose of them to a dealer in firearms. 10-131 (i) 1.

7. It is unlawful for a gun dealer to sell ammunition to a licensed gun owner if he sells ammunition that cannot be fired from the firearms the gun owner is licensed to possess. 10-131 (i) 2.

8. It is illegal for a person not authorized to possess a pistol in New York City to possess any pistol ammunition. This is so even if you are authorized to possess a pistol some place outside of New York City and the ammunition is in your “shooting bag” in the trunk of your car. 10-131 (i) 3.

9. Even if you have a license to possess a pistol in New York City it is unlawful to possess ammunition of a different caliber. 10-131 (i) 4.

10. It is illegal to possess an ammunition feeding device (a magazine) unless you are authorized to possess a pistol that uses such device or except under other limited circumstances. 10-131 (i) 6.

11. It is unlawful for anyone to dispose of an ammunition feeding device except a gun dealer may sell one to a person authorized to possess the same caliber of pistol or a person authorized to possess it may sell it to a gun dealer. 10-131 (i) 7.

12. New York City has its own definition of assault weapons under Administrative Code Section 10-303.1. Possession of Assault Weapons in New York City are a crime and can subject a person to additional Civil Penalties of up to $10,000 per Assault Weapon.

The bottom line is be careful in New York City. Many people who lawfully possess these items in other States or Cities get caught in their cars or at the airports and find themselves facing serious charges. If you find yourself charged with any violation of these laws remember many of these offenses are crimes and can subject you to jail, fines, probation and leave you with a permanent criminal record.

If you have any questions or have been charged with any criminal offense contact us to discuss your specific circumstances.

Westchester County District Attorney Janet DiFiore announced the results of a three month sting operation which used underage criminal justice students to purchase alcohol at bars, restaurants and liquor store. The sting resulted in the arrest of 28 people but also demonstrated that establishments enforced the drinking age 81% of the time. The 28 people arrested were charged with selling alcohol to minors.

During this season when Proms, graduation parties and Memorial Day Weekend parties are in high gear it is important to remember the potential consequences of underage drinking and especially of underage drinking and driving. New York has a "zero tolerance" for people under 21 years of age driving with any alcohol in their system. In addition, New York imposes enhanced, severe penalties for minors who drink and drive.

If you or a loved one has been charged with an alcohol related offense in New York, contact one of the attorneys at Tilem & Campbell.

Unless your New York Traffic Ticket was issued in New York City, Buffalo and parts of Suffolk County you are entitled as a matter of law to a supporting deposition on all moving violations (including: speeding, red lights, tailgating, unsafe lane change and failure to signal) . You must however, ask for it.

As experienced New York traffic court lawyers, demanding a supporting deposition from the complainant/police officer is one of many tools in our arsenal to help us successfully fight traffic violations. While it is clearly not the right tactic in every case, it can be an effective, although procedurally difficult tactic.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier. N.Y. CPL § 100.25(2).

Failure to comply with the order directing the service and filing of supporting depositions renders the traffic tickets for which they were demanded facially insufficient. CPL 100.40(2); People v. Titus, 178 Misc. 2d 687, 682 N.Y.S.2d 521 [AppTerm, 2d Dept 1998]). This failure divests this Court of jurisdiction to proceed on the simplified traffic information, a divestiture that cannot be "cured" by any attempted untimely service of the supporting deposition. People v. Aucello, 146 Misc. 2d 417, 558 N.Y.S.2d 436 (Appellate Term – Second Department 1990).

Furthermore, the plain language of CPL 100.25 (2) and CPL 100.40 (2) establishes that the designated 30-day period for supplying supporting deposition runs, not from the date of the order directing compliance with a defendant's demand, but from the date the demand is received by the court (see CPL 100.25 [2] [13]; cf. CPL 100.40 [2]; and see People v. Titus).
Moreover, a court may not grant an adjournment to allow the People to furnish a supporting deposition after the 30-day deadline. Rather the statute sets an absolute time, which may not be altered. People v DeFeo, 77 Misc.2d 523, 355 N.Y.S.2d 905 (App Term, 2d Dept. 1974)(Defendant who requested a supporting deposition had an absolute right under statute to a supporting deposition before commencement of trial for speeding, and court's offer of an adjournment for purpose of furnishing deposition could not cure defect and thus information was insufficient on its face requiring that it be dismissed).

If you have received a traffic ticket for any traffic related matter, you might consider demanding a supporting deposition. However, an experienced attorney familiar with the attitudes of the particular court and officer you are dealing with could better guide you with your decision to request a supporting deposition. In some courts, favorable plea bargains are readily available and requesting a supporting deposition might simply annoy the judge, prosecutor and officer. In addition, a person demanding a supporting deposition must make a timely motion for dismissal.

For more information contact Tilem & Campbell at 1-877-DR-SUMMONS or visit us on the web at www.DrSummons.com.

New York criminal defense lawyers, especially those that handle New York gun possession cases, know that New York has some of the most onerous laws restricting the possession, ownership and use of weapons of all types. This blog presents a brief overview of Criminal Possession of a Weapon in the Third Degree (CPW 3rd) (See NY Penal Law 265.02).

There are several ways one may commit CPW 3rd. First, a person is guilty of CPW 3rd in New York if they commit the crime of Criminal Possession of a Weapon in the Fourth Degree (CPW 4th) and have been previously convicted of any crime. [See Penal Law 265.02(1) for exact wording] .

Second, one is guilty of CPW 3rd if they possess any incendiary or explosive bomb, bombshell, silencer, machine gun or any other firearm or weapon simulating a machine-gun and which is adaptable as a machine gun. [See Penal Law 265.02(2) for exact wording] .

Third, a person is guilty of CPW 3rd if they knowingly possess a firearm, machine-gun, rifle or shotgun which has been defaced to conceal or prevent the detection of a crime or to misrepresent the identity of such weapon. [See Penal Law 265.02(3) for exact wording].

Fourth, a person is guilty of CPW 3rd if they possess three or more firearms or possess at least one firearm while having been convicted on a Class “A” Penal Law Misdemeanor within the previous five years. [See Penal Law 265.02(5) for exact wording].

Finally, one is guilty of CPW 3rd if they knowingly possess a disguised gun, possess an assault weapon or a large capacity ammunition feeding device. [See Penal Law 265.02(6)-(8) for exact wording]. Note, possession of a disguised gun must be “knowingly”.

For more information about CPW 3rd or any other weapons offense, conatct Tilem & Campbell toll free at 1-877-377-8666 or visit us at www.HandGunAttorney.com.

Criminal Possession of a Weapon in the Fourth Degree (CPW 4th) is a class “A” misdemeanor in New York punishable by up to one year in jail. There are several ways one can commit the crime of CPW 4th. (There are also exemptions to the statute which will be discussed in future blogs). If you have been charged with a weapons offense, you need experienced criminal defense attorneys to defend you.

One is guilty of CPW 4th if he or she possesses any: (1) firearm; (2) electronic dart gun; (3) electronic stun gun; (4) gravity knife; (5) switchblade knife; (6) pilum ballistic knife; (7) metal knuckle knife; (8) cane sword; (9) billy; (10) blackjack; (11) bludgeon; (12) plastic knuckles; (13) metal knuckles; (14) chuka stick; (15) sand bag; (16) sandclub; (17) wrist-brace type slingshot or slungshot; and (18) shirken or “Kung Fu star”. [See NY Penal Law 265.01(1)].
One is also guilty of CPW 4th if he or she possesses any of the following weapons with
the intent to use it against another unlawfully: (1) dangerous knife; (2) dagger; (3) dirk; (4) razor; (5); imitation pistol; or (6) any other dangerous or deadly instrument or weapon. [See NY Penal Law 265.01(2)].

One is also guilty of CPW 4th if they knowingly possess a firearm, rifle or shotgun in a school or on school grounds including colleges and universities or in a school bus. [See NY Penal Law 265.01(3)]. Further, one convicted of a felony or serious offense may not possess a rifle or shotgun. [See NY Penal Law 265.01(4)]. Nor may a non-citizen possess a dangerous or deadly weapon. [See NY Penal Law 265.01(5)]. One is also guilty of CPW 4th if they have been certified not suitable to possess a shotgun or rifle and refuse to surrender such upon the demand of a police officer. [See NY Penal Law 265.01(6)].

Finally, one is guilty of Criminal Possession of a Weapon in the Fourth Degree if they possess a bullet containing an explosive material designed to explode on impact [See NY Penal Law 265.01(7)] or if they possess armor piercing ammunition with the intent to use it against another unlawfully. [See NY Penal Law 265.01(8)].

As I said above, there are many exceptions to the statute which I will discuss in a future blog. If you have been charged with any weapons offense contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

Tilem & Campbell just obtained a summary of the new Legislation repealing the Rockefeller Drug laws. If you or a loved one is currently serving a term in prison for a New York Narcotics case or is currently charged with any New York Drug case. Contact one of the experienced criminal attorneys at www.888anycrime.com

New York criminal defense lawyers, especially those that handle New York State drug cases, are monitoring an agreement just announced between the New York Senate, Assembly and Governor to repeal the Rockefeller Drug Laws. Details are not fully available but the legislation is expected to substantially reduce and in some cases eliminate mandatory minimums for New York Drug cases, give judges options of treatment instead of sentences of incarceration and give judges the ability to dismiss all charges and seal the arrest records of offenders who complete drug treatment.

While the bill, once passed is likely to have far reaching effects on New York drug cases, the legislation will not have any effect on the draconian, federal mandatory minimums that Tilem & Campbell is currently challenging in Federal Court. The bill will likely provide some relief to the many people serving lengthy state sentences under the old law.

The laws have not been passed yet but with agreement by all the major players, the bills should be passed quickly and will likely take effect soon. Tilem & Campbell will continue to monitor this important legislation and pass on updates as the become available. If you have any questions contact us at 888-ANY-CRIME or visit us on the web at 888anycrime.com

New York Prostitution lawyers are watching a development reported in today's New York Post which reflects a steep decrease in enforcement of prostitution and other vice offenses by the NYPD. The Post is reporting that the NYPD shut down its enforcement of Prostitution on craigslist as long as 3 years ago. The Post is also reporting that other vice operations have been shut down or slowed down because of increased oversight.

Craigslist has a large number of ads catering to adult entertainment. Many of the craigslist ads are for escorts. Escorts are women (or men) who agree to spend time with a person for a fee. While this practice is legal if sex is exchanged it can violate state or federal prostitution laws.

Criminal lawyers John Campbell and Peter Tilem operate a website escortattorney.com which caters to the escort industry and represents, customers, escorts and escort agencies. Tilem & Campbell will continue to monitor these developments as they have a substantial impact on many Tilem & Campbell client's

Tilem & Campbell is fortunate to have former Firearms Trafficking prosecutor Peter H. Tilem as its Senior Partner able to advise clients on all aspects of New York gun possession. Under New York law, the severity of a Criminal Possession of a Weapon charge dealing with a firearm can hinge on whether the firearm was loaded or not. For example, one may be charged with Criminal Possession of a Weapon (CPW) in the Fourth Degree for simply possessing a firearm [See PL 265.01(1)]. Criminal Possession of a Weapon in the Fourth Degree does not require that the firearm be loaded. Therefore, one is guilty of CPW 4th if they simply possess an unloaded firearm without proper licensing. Criminal Possession of a Weapon in the 4th degree is an “A” misdemeanor that carries up to one year in jail.

However, if one possess a loaded firearm outside their home or business, the charge is CPW 2nd, a “C” felony which carries a mandatory minimum 3 ½ year to a maximum 15 years in state prison. [See PL 265.03(3); PL 70.02(3)(b)]. Therefore, if you possess an operable firearm outside your home or place of business, the difference between facing an “A” misdemeanor (CPW 4th) which carries up to one year in jail with no mandatory minimum (which means probation is possible) and the “C” felony (CPW 2nd) which carries a mandatory minimum of 3 ½ years in state prison has everything to do with whether the firearm was loaded.

Here’s the problem. Your unloaded gun might be considered loaded under New York law. Under the Penal Law, a “Loaded firearm” is defined as any firearm actually loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses ammunition for that firearm. [See PL 265.00(15) for the exact definition of “loaded firearm”]. Therefore, the term loaded firearm means not only a truly loaded firearm but also the contemporaneous possession of an unloaded firearm and ammunition for that firearm. Accordingly, under the law of New York State, an unloaded firearm may actually be considered a loaded firearm.

For more information or if you have been charged with any weapons offense, contact Tilem & Campbell toll-free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. For more information about New York’s gun laws, visit www.HandGunAttorney.com.

Currently, Tilem & Campbell has one appeal pending before the United States Court of Appeals for the Second Circuit challenging the constitutionality of the previously discussed 100:1 powder cocaine v. crack cocaine sentencing discrepancy. Tilem & Campbell has another Federal Narcotics case for which it is preparing the appeal now. Among other arguments, we have presented an Equal Protection argument centered on the unequal sentences imposed on crack offenders as compared to powder cocaine offenders.

Every day that a crack offender spends in prison beyond that which a powder cocaine offender would spend for the same quantity of drug is an unconstitutional deprivation of liberty; a fundamental right. Such sentencing discrepancies cannot survive a rational basis analysis let alone a strict scrutiny analysis.

The above-discussed “100-to-1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs.” Kimbrough v. U.S. 128 S.Ct. 558 (2007). As a result of this disparity, “a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.” Id.

Such a penal disparity bears no relation to the government’s goals and no ground can be conceived to justify them. When Congress passed the crack cocaine mandatory minimums, it believed, as did many others at the time, that crack was leading a parade of evils into a national drug-abuse epidemic.

These fears, however, proved unfounded. When the United States Sentencing Commission began to empirically research cocaine sentencing policy, it soon found, much to its dismay, that the 100:1 disparity bore little relationship to differences that actually existed between the two forms of cocaine. The data showed that the disparity significantly overstated the relative seriousness of crack offenses. As discussed in a previous blog, crack and powder cocaine are two forms of the same drug.

If you would like to discuss this issue further or have a another sentencing issue including an appeal, contact Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation or visit on the web, www.888AnyCrime.com

New York criminal defense firm Tilem & Campbell is pleased to report that after years of fierce opposition to New York's draconian "Rockefeller" drug laws, and after some amendments, passed in 2004, did away with some of the harshest sentences, it now appears that much of the remnants of the Rockefeller Drug laws are going to be repealed. Last week by a more that 2-1 margin, the New York State Assembly passed a bill which would repeal additional provisions of the Rockefeller Drug Laws and which would give Judge's greater discretion in sentencing drug-offenders to non-jail, treatment programs. These provisions can have a substantial effect on New York Drug cases.

Governor Patterson has already signaled his approval of amending the Rockefeller Drug Laws and with democrats in control of the New York State Senate, it seems that some significant change in New York State Drug laws is all but certain.

As an experienced criminal defense lawyer I have handled numerous drug cases. In addition, as a former prosecutor I have handled hundreds if not thousands of drug cases. In my vast experience, rarely do I see major traffickers getting arrested and often see low level dealers or users get sentenced to many years in prison. What I find surprising is that often then prosecutor, and judge agree that the sentence is to severe but under the law, often the judges and prosecutors are powerless to reduce the sentence.

The proposed law gives more discretion to New York State judges who are often in the best position to determine whether a person should get treatment or go to prison.

At a time when the law is changing, it is most important for people accused of drug crimes and their families to stay in touch with the latest changes in New York Drug laws. Not all lawyers stay abreast of the latest changes in the law, so stay informed. If you have any questions about any Westchester County drug cases, New York City drug cases, federal drug cases in the New York area please contact Tilem & Campbell at 888-ANY-CRIME (888-269-2746)

As experienced New York and Federal criminal defense lawyers, we keep track of changes and proposed changes in the law that may effect our clients. When appropriate, and as part of the effort of our effort, though this blog to educate the public, our clients and our friends, we post proposed changes in the law here, in our blog.

Congress is taking notice to the injustice associated with the previously discussed 100:1 ratio crack cocaine vs powder cocaine sentencing disparity. At least 6 Bills in 2007 and 1 in 2008 were proposed by both Democrats and Republicans that would in some way reduce or eliminate the 100:1 cocaine/cocaine base ratio. These proposed Bills include:

H.R. 5035, the Fairness in Cocaine Sentencing Act of 2008: Eliminates mandatory minimums for cocaine offenses. On January 17, Rep. Robert “Bobby” C. Scott (D-Va.), who is Chairman of the House Committed on the Judiciary Subcommittee on Crime, Terrorism and Homeland Security and also serves on the House Subcommittee on the Constitution, Civil Rights and Civil Liberties, introduced H.R. 5035, The Fairness in Cocaine Sentencing Act of 2008. The bill would, among other things, eliminate the distinction between powder cocaine and cocaine base (crack) and eliminate all mandatory cocaine sentences. This bill is the first bill introduced in the House in the 110th Congress that would eliminate mandatory minimums for crack and powder cocaine sentences.

S. 1711, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007: Sponsored by Vice-President Joseph R. Biden, Jr. (D-Del.), S. 1711 would, inter alia, eliminate sentencing differences between crack and powder cocaine in favor of a single mandatory minimum at the current powder cocaine levels and eliminate the five-year mandatory minimum for simple possession of crack cocaine. This bill is supported by President Barack Obama and Secretary of State Hillary Clinton . The direction of our incoming Administration is clear. “Obama and Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.” (See http://origin.barackobama.com/issues/civil_rights/#sentencing-disparities)

H.R. 4545, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007: Introduced on December 13 by Rep. Sheila Jackson Lee (D-Texas), H.R. 4545 is the House companion to the above-discussed S. 1711. The bill would, among other things, eliminate sentencing differences between crack and powder cocaine in favor of a single mandatory minimum at the current powder cocaine levels and eliminate the five-year mandatory minimum for simple possession of crack cocaine. The bill has 43 cosponsors:

S. 1685, the Fairness in Drug Sentencing Act of 2007: Introduced by Sen. Orrin Hatch (R-Utah), S. 1685 would reduce the difference between crack and powder sentencing by increasing the amount of crack cocaine needed to trigger the five-year mandatory minimum sentences from five to 25 grams and the 10-year mandatory minimum from 50 to 250 grams. It would also eliminate the five-year mandatory minimum for simple possession. The bill would not eliminate the cocaine sentencing disparity but reduce it from 100:1 to 20:1. The bill also directs the Sentencing Commission to review the sentencing guidelines and amend them if appropriate to account for specified aggravating and mitigating characteristics. There are three cosponsors.

S. 1383, the Drug Sentencing Reform Act of 2007: Sponsored by Sen. Jeff Sessions (R-Ala.), S. 1383 would adjust the disparity between crack and powder sentencing by raising the amounts of crack cocaine that trigger the five- and 10-year mandatory minimum sentences (from five to 20 grams and from 50 to 200 grams respectively) while also lowering the triggering quantities for powder cocaine (from 500 grams to 400 grams for the five-year mandatory minimum sentence and from five kilograms to four kilograms for the ten-year mandatory minimum). It would also lower the simple possession mandatory minimums. S. 1383 directs the Sentencing Commission to amend the guidelines by adding enhancements for a variety of aggravating factors. The bill would cap sentences at level 32 (roughly 10 years) for defendants who played a minimal role in the offense and creates a pilot program to test releasing certain nonviolent elderly prisoners. There are three cosponsors.

H.R. 79, the Powder-Crack Cocaine Penalty Equalization Act of 2007:
Introduced by Rep. Roscoe Bartlett (R-Md.), H.R. 79 would equalize the crack and powder cocaine sentences at by lowering the triggering quantities to those for crack cocaine.

H.R. 460, the Crack Cocaine Equitable Sentencing Act of 2007:
Introduced by Rep. Charles Rangel (D-N.Y.), H.R. 460 would also equalize the crack and powder penalties, but at the powder level. The bill has 20 cosponsors and has been referred to the House Judiciary Committee’s crime subcommittee.

The above discussed proposed legislation shows us that Congress is taking notice of the baseless 100:1 powder cocaine vs. crack cocaine discrepancy and is attempting to correct this injustice. All the evidence and studies show that the fears relied upon when the crack cocaine mandatory minimums were implemented never materialized, that the drugs are chemically identical and that there is no justification for the discrepancy; a discrepancy that has devastated a generation of young black males.

For more information about this and other sentencing issues, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com

The case of Blakely v. Washington decided in 2004, significantly changed New York and Federal sentencing and substantially altered the way experienced criminal defense lawyers handled their most serious cases. It also led to the change in the once mandatory federal sentencing guidelines to a system that is now now merely advisory.

In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, Ralph Blakely pleaded guilty in a Washington State Superior Court to kidnapping his estranged wife. The statutory maximum for the offense Blakely pleaded guilty to was 53 months. The sentencing judge, however, sentenced Blakely to 90 months - more than three years above the 53 month maximum - finding that Blakely acted with deliberate cruelty. Note, Blakely never admitted to acting with deliberate cruelty nor did a jury find that he did so beyond a reasonable doubt.

Blakely appealed to the Washington Court of Appeals which rejected his argument that Washington’s sentencing procedure which allowed sentence enhancements above the statutory maximum based upon judicial determinations deprived him of his federal constitutional right to have all facts legally essential to his sentence determined by a jury beyond a reasonable doubt. The Washington Supreme Court denied discretionary review. The United Supreme Court granted certiorari (agreed to hear the case) and ultimately found the Washington State sentencing procedure unconstitutional.

The issue before the United States Supreme Court was whether a state judge may consider facts, that were not admitted by the defendant nor found by a jury beyond a reasonable doubt, to enhance the defendant’s sentence beyond the maximum sentence the judge may have imposed based upon facts admitted by the defendant or found by a jury beyond a reasonable doubt.

In striking down the Washington State sentencing procedure, the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. To allow otherwise would violate a defendant’s Sixth Amendment right to trial by jury. Where a defendant, such as Blakely, pleads guilty, the State may seek judicial sentence enhancements only if the defendant either stipulates to the relevant facts or consents to judicial fact-finding.

It is of critical importance to note that the statutory maximum is not necessarily the absolute maximum sentence that may be imposed but instead is the maximum sentence that may be imposed within the authorized sentencing range based upon the admitted or proven facts. In Blakely for example, Washington State argued that the challenged sentencing procedure was constitutional because a judge could never go above the statutory maximum based upon judicial findings but could only increase the sentence within the statutorily authorized range.

The Supreme Court rejected this argument noting that had Blakely been sentenced to 90 months based solely upon the admitted facts, the sentence would have been reversed even though it was less than the maximum 10 years.

If you have any questions regarding any sentencing issue, are awaiting sentencing or want to file a criminal appeal of your conviction or sentence feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Mandatory Minimum Drug Sentences for First Time Cocaine Offenders:

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

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

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

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

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

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

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

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

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

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

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

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

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

In New York and elsewhere, it’s common for brake parts to be replaced with rebuilt parts. For example, it’s common for garages to install rebuilt brake calipers, brake pads and shoes, master cylinders and power brake boosters. Furthermore, when repairing or maintaining brakes on trucks, its also common to use rebuilt air compressors and brake valves. Therefore, the most important system on any vehicle, the braking system, is routinely repaired and maintained with re-built or refurbished parts. Many times, the parts to be rebuilt (the “cores”) are obtained from salvage yards (junkyards).

However, the New York State Legislature, in its infinite wisdom, has found it necessary to bar the installation of salvaged airbag systems (called inflatable restraint systems under New York law). Effective March 1, 1999, airbag systems in New York may only be replaced with new systems or salvaged systems which have been certified pursuant to standards set by a nationally recognized testing, engineering and research organization (See VTL § 398-d(6)(e) & 415-c (2)).

Here’s the problem with this law; leave it to the New York State Legislature to pass a law requiring salvaged airbag systems to meet standards set by a nationally recognized testing, engineering and research organization when no such standards or organization to develop such standards exist. And, leave it to the New York Court of Appeals to hold that the failure of the Department of Motor Vehicles to develop such standards did not invalidate the law. N.Y.A.A.D., Inc. v. State of New York, 1 N.Y.3d 245, 771 N.Y.S.2d 54 (N.Y. 2003)
Accordingly, in New York, no matter what reason the air bag system was removed from a vehicle, it may not be sold and installed in another vehicle. Therefore, even if the original car was junked due to a blown engine or rear-end collision, the perfectly working air bag system must be junked.

For more information regarding any New York State Vehicle and Traffic Law issue, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.TrafficTicketExpress.com.

In continuing with my commentary on federal mandatory minimum sentencing for drug offenses and Tilem & Campbell’s challenge to the constitutionality of such sentences, it’s of paramount importance to point out other, influential groups and individuals who are also opposed to mandatory minimums for drug offenses. As previously discussed, former Presidents Kennedy, Johnson and Nixon were all opposed to mandatory minimums for drug offenses and, at Nixon’s urging, in 1970, Congress abolished almost all mandatory minimum sentencing for federal drug offenses with the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

These former Presidents were not, and are not, the only influential individuals opposed to such sentences. With regard to the Boggs Act of 1951 and the Narcotics Control Act of 1956 (both of which contained draconian mandatory minimum sentences for federal drug offenses), a Senate Judiciary Subcommittee found that 92 percent of federal prison wardens who responded were opposed to the mandatory minimum sentences, and 97 percent were opposed to the prohibition against probation or parole. Of the probation officers who responded, 83 percent were opposed to mandatory minimums while 86 percent were opposed to prohibition against probation or parole. Of the federal judges who responded, 73 percent were opposed to mandatory minimums, and 86 percent were opposed to the prohibition against probation or parole.

Many members of law enforcement also supported the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its elimination of the mandatory minimum sentences found in the Boggs Act of 1951 and the Narcotics Control Act of 1956. According to then Congressman William L. Springer (R Ill.): “It is the opinion of most law enforcement people that the harsh mandatory sentences in narcotics law have been a hindrance rather than an aid to enforcement.”

Tilem & Campbell is vigorously challenging the constitutionality of the current mandatory minimum sentences for crack cocaine offenses and the corresponding 100:1 powder cocaine/crack cocaine ratio. It is this ratio that brings about tremendously longer sentences for blacks and minorities convicted of crack offenses than their white counterparts convicted of powder cocaine offenses involving equal weight. If you are currently charged with a crime and are in need of a federal criminal defense attorney or if you have been convicted of a crime and which to discuss various post conviction remedies such as an appeal, contact Tilem & Campbell at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

New York criminal lawyer Peter H. Tilem has been admitted to practice before the United States Supreme Court, effective January 12, 2009. Having been recommended for admission by two current members of the bar of the US Supreme Court the motion for Mr. Tilem's admission was granted and his admission has taken effect.

The admission of Mr. Tilem to this prestigious bar will enhance the appellate practice of Tilem & Campbell and will give it the ability to challenge cases already in the United States Court of Appeals at the United States Supreme Court level, without seeking outside counsel. Tilem & Campbell has several criminal appeals pending in the United States Court of Appeals for the Second Circuit and is currently challenging the mandatory minimums applicable to crack cocaine cases in federal courts.

Tilem & Campbell is currently appealing the constitutionality of the federal mandatory minimums for federal crack offenses and the 100:1 powder cocaine/crack cocaine rationale. In continuing with a thorough review of the failings of prior mandatory minimums for drug offenses, I previously touched on the Boggs Act of 1951 and the Narcotics Control Act of 1956. When Richard Nixon took office in 1969 he supported enforcement of then current drug laws to combat the county’s admitted drug problem. However, he came to realize that was not the best course of action.
(See www.presidency.ucsb.edu/ws/index.php?pid=2353&st=&st1=. (Visited December 14, 2008).

Nixon backed away from mandatory minimums and pushed The Comprehensive Drug Abuse Prevention and Control Act of 1970 (hereinafter the “1970 Act’) through Congress which eliminated all of the mandatory minimum drug sentences but one. (Mandatory minimums from between 10 and 20 to life remained for Engaging in a “continuing criminal enterprise”). The 1970 Act was an acknowledgment of failings of both the Boggs Act of 1951 and the Narcotics Control Act of 1956. The 1970 Act was in lock-step with President Kennedy’s aversion to the mandatory minimums, Kennedy’s Commission’s findings against the mandatory minimums and President Lyndon Johnson’s opposition to the mandatory minimums. The Act had wide bi-partisan support including that of then Congressman, and future President of the United States, George H. W. Bush who supported the repeal of the mandatory minimums found in the Narcotics Control Act of 1956.

Considering the failings of mandatory minimums in the past as well as the current findings of the United States Sentencing Commission all in opposition to mandatory minimums and the 100:1 ratio in general, any rational basis for such mandatory minimums and their disproportionate impact on minorities falters.

To discuss any type of criminal case, federal sentencing issue, federal or state criminal appeal, feel free to contact us toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.

As I indicated in prior blogs, Tilem & Campbell is currently appealing two cases challenging the constitutionality of the federal mandatory minimum sentences for crack cocaine offenses and the 100:1 powder cocaine-to-crack cocaine ratio that results in grossly disproportionate sentences between the mostly minority crack offenders and their mostly white powder cocaine cohorts.

One Appellant Brief is already submitted in the United States Court of Appeals for the Second Circuit and as the drafter of that Brief, I chose to analyze many different sources of information to show that the crack cocaine mandatory minimum sentencing laws (21 USC 841) were based on flawed data and have not achieved their intended goals. In doing so, I analyzed the history of other Congressional Acts imposing draconian mandatory minimums for drug offenses including the Boggs act of 1951 and the Narcotics Control Act of 1956. I also discussed President Kennedy’s disfavor for mandatory minimums and the conclusions of a Commission he assembled critical of such sentences and their recommendation that sentences fit both the offender and the offense and that rehabilitation should be the most important goal – not retribution.

I chose this strategy not to fill up space discussing irrelevant long-abolished statutes or the policies’ of Presidents who served 35 to 45 plus years ago but instead to elucidate the fact that the draconian mandatory minimum sentences of imprisonment for drug offenses has consistently failed over decades and tens of thousands of cases to solve the problem and stem the flow of drugs and their use. It was and remains the objective of my Brief to attack these mandatory minimums not only on strict scrutiny analysis but also on the rationale basis front.

In other words, I want to show the Second Circuit, through solid empirical data, that this mandatory minimum, throw away the key approach has consistently failed; that study after study has concluded that the rational for the mandatory minimums for crack and the 100:1 ratio was flawed and that mandatory minimums have failed for over 57 years to achieve their desired goal; and that the Kennedy Administration, the Johnson Administration and the Nixon Administration all opposed mandatory minimum sentences for drug offenders based upon extensive Committee research.

Our Brief followed with commentary regarding the Sentencing Commission’s strong disagreement with the ratio and the mandatory minimums as well as the United States Supreme Court’s acknowledgment in Kimbrough that the fears were unrealized and that crack and powder cocaine are one in the same drug. Our brief also analyzed and the pending bi-partisan support for Legislation abolishing the ratio. This I argued, supports a strong argument the current laws fail under strict scrutiny analysis because they are not narrowly tailored to achieve a compelling government interest insofar as all the experts recommend rehabilitation over incarceration and therefore, for a mandatory minimum to be deemed narrowly tailored, it cannot lump all offenders, (both addicts and major suppliers), in the same category.

The mandatory minimums for crack cocaine also fail the rational basis test because we are imprisoning minorities for decades for crack offenses while their white counterpart is receiving less than two years for powder offenses involving 100 times the amount of powder cocaine which, as authoritative experts have determined, is the same drug.

Continue reading "FEDERAL MANDATORY MINIMUM DRUG SENTENCING: LYNDON JOHNSON TAKES OFFICE AND ESTABLISHES THE KATZENBACH COMMISSION" »

Tilem & Campbell is currently appealing the constitutionality of the federal crack cocaine statutory mandatory minimum sentences (21 USC 841). In our most recent appeal, we discussed, among other things, the history of mandatory minimum sentences for federal drug offenses starting with the Boggs Act of 1951 and followed by the Narcotics Control Act of 1956. Both Acts imposed onerous mandatory minimum prison terms for relatively minor drug offenses. Both Acts also failed to stem the flow of drugs and their use. We discussed these prior Acts and their utter failures, as well as other empirical data, to support our argument that mandatory minimums for drug offenses have no rational basis.

In 1963, President Kennedy assembled the President’s Advisory Commission on Narcotics and Drug Abuse to address the country’s drug problem. Recall, at that time, drug offenders were facing the mandatory minimums found in Narcotics Control Act of 1956. The Commission studied drug use and the laws pertaining to those who abused drugs. The Commission concluded that rehabilitation rather than retributive punishment was essential to addressing the problem.

Regarding sentencing, the Commission opined that penalties should fit both the offender and the offense and be tailored to promote the offender’s rehabilitation. Draconian sentences, concluded the Commission, did not provide an effective deterrence. To the contrary, the Commission observed that the drug users were risking long prisons sentences to get their drugs. In other words, the lengthy mandatory minimums were having little or no affect on drug use.

President Kennedy’s disagreement with mandatory minimums was evidenced by his extensive use of his pardon power to free inmates languishing in prison. President Kennedy’s issuance of pardons and his commutation of lengthy drug sentences indicated to Congress his desire for a change in federal sentencing for drug offenders. This change, however, would not come about until 1970. As discussed in my next blog, after President’s Kennedy’s tragic assassination in the fall of 1963, President Lyndon Johnson also opposed mandatory minimum sentences for drug offenses.

To avoid the potential for a Presidential pardon or commutation, some plea agreements (and I suspect more in the future) were also requiring that the defendant waive his right to seek a Presidential pardon or commutation. If you have a question about a plea agreement, sentencing issue, appeal or other criminal legal matter, contact Tilem & Campbell toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

Tilem & Campbell is vigorously challenging the federal mandatory minimum crack cocaine sentencing scheme found in 21 USC 841. We are currently appealing two cases to the United States Court of Appeals for the Second Circuit. While most believe mandatory minimums were a new concept resulting from the crack cocaine explosion in the early 1980s, the truth is, mandatory minimums for drug offenses have a 57 year history in the United States. As you will learn, from their inception, mandatory minimums have never achieved their desired result.

Draconian mandatory minimums for drug offenses were previously implemented by Congress in 1951 and 1956 and they failed miserably and were ultimately repealed. One thing that is apparent about our government officials including the elected Legislatures, Presidents as well as the appointed members that head our Administrative agencies and the Federal Judiciary is that they simply do not learn from history. It’s as if they don’t even know it.

The Boggs Act of 1951
What Congress was seemingly oblivious to when they slammed through The Anti-Drug Abuse Act of 1986 (and its draconian mandatory minimums for relatively small amounts of crack cocaine) in the middle of the night, was that approximately 35 years earlier in 1951, Congress had passed the Boggs Act which also had established mandatory minimum prison sentences for drug crimes.

Under the Boggs Act, simple possession of cocaine, heroin or cannabis carried a mandatory minimum 2 years with a maximum 5 years prison term. A second offense carried a mandatory minimum 5 years with a maximum of 10 years in prison. A third offense carried a mandatory minimum of 10 years with a maximum of 15 years in prison. Just as the 1986 ADAA was supported with flawed science, unfounded fears, and outright and erroneous concerns; so too was the Boggs Act and subsequent federal drug laws.

Continue reading "A BRIEF HISTORY OF FEDERAL MANDATORY MINIMUM SENTENCING FOR FEDERAL DRUG OFFENSES" »

As I indicated in prior blogs, Tilem & Campbell is currently challenging the constitutionality of the federal mandatory minimum sentences for federal crack cocaine offenses. We currently have an appeal pending in the United States Court of Appeals for the Second Circuit and will be filing another shortly on behalf of an African-American appellant.

Our current appeal concerns an Hispanic defendant sentenced to the 10 year mandatory minimum for four federal felonies involving approximately 112 grams of crack cocaine (21 USC 841). We challenged the constitutionality of the 10 year mandatory minimum sentence on three grounds. Briefly, we argued that depriving the defendant of his liberty, a fundamental right, longer than one convicted of a powder cocaine offense involving the same weight violates his equal protection rights under both strict scrutiny and rational basis review.

We also argued that the 100:1 ratio and corresponding grossly disproportionate sentences imposed upon minorities for crack offenses compared to those sentences imposed upon the mostly white offenders convicted of powder cocaine offenses involving the same weight violates the defendant’s Fifth Amendment Equal Protection rights (note, the Equal Protection rights found in the Fifth Amendment apply to the Federal Government while the Equal Protection Clause in the Fourteenth Amendment applies to the States).

Finally, we argued that putting one in a jail for a decade for a crack offense when a powder cocaine offender convicted of an offense involving the same weight would receive less than two years violates the Eighth Amendment.

The above arguments are based on sound reasoning supported by numerous reports prepared the United States Sentencing Commission (the experts in the area of sentencing), the United States Supreme Court’s reasoning in Kimbrough as well as many government leaders as evidenced by the numerous proposed Bills which would abolish the ratio or drastically reduce it.

For more information about a federal sentencing issue, federal drug case, a New York drug case, an appeal or representation on any criminal matter, contact Tilem & Campbell 1-888-ANY-CRIME for a free consultation or visit www.888AnyCrime.com.

At Tilem & Campbell, we represent a wide variety of defendants charged with anything from traffic infractions to serious felonies including controlled substance offenses. In a recent federal case, we represented a defendant charged in the United States District Court for the Southern District of New York with four drug offenses involving a total of approximately 112 grams of crack cocaine. Three of the offenses were Class A felonies which carried a mandatory minimum sentence of 10 years with a maximum of life imprisonment. Due to a prior drug felony, however, had the defendant gone to trial and lost, he would have been facing 20 years to life. The remaining offense was a Class B felony which carried a mandatory minimum sentence of 5 years with a maximum of 40 years imprisonment.

Senior Partner, Peter Tilem, a former Assistant District Attorney in the New York County District Attorney’s Office (Manhattan) was defendant’s lead attorney and successfully negotiated a plea bargain pursuant to which the defendant would plead guilty as charged. In return the Government would not seek the 20 year mandatory minimum but instead would recommend the 10 year mandatory minimum. The plea agreement did not require that the defendant waive his right to appeal his sentence.

The imprisonment range recommended by the U.S. Sentencing Guidelines as calculated in the Pre-sentence Investigation Report was 78-97 months based upon a base offense level of 27. However, due to the statutory mandatory 10 year minimum term of imprisonment found in 21 U.S.C 841(a)(1) and 841(b)(1)(A) for offenses involving crack cocaine, the defendant’s minimum term imprisonment increased to 120 months pursuant to USSG § 5G1.1(b).

This sentencing range was substantially higher than it would have been had the offenses involved powder cocaine because the Guidelines as well as the relevant statute (21 U.S.C 841) treat one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, had defendant been sentenced for a powder cocaine offense involving the same quantities, he would have been facing a sentencing range of 15-21 months.

Continue reading "TILEM & CAMPBELL APPEALS DISTRICT COURT’S FINDING THAT THE FEDERAL STATUTORY MANDATORY MINIMUM SENTENCES (21 USC 841) FOR COCAINE BASE (“CRACK”) OFFENSES ARE CONSTITUTIONAL." »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NEW YORK GUN POSSESSION PRESUMPTION

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

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

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

EFFECT OF THE PRESUMPTION

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

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

New York Traffic Ticket Lawyers, Tilem & Campbell are please to announce the posting of their newest web paging entitled "New York City Traffic Tickets". The page is designed to be a primer of the practices of the New York Traffic Violation Bureau Courts (TVB) that operate in New York City, Rochester, Buffalo and parts of Suffolk County. If you receive a traffic summons in Brooklyn, Bronx, Queens, Manhattan or Staten Island in New York City it will be returnable to the Department of Motor Vehicles and be adjudicated in a TVB. The New York City Traffic Ticket page will educate you about the practices and procedures of these administrative courts.

The page is broken up by heading with topics such as "The Hearing", "Entering Your Plea" and "The Rules of Evidence at the Hearing" and more and therefore should be a simple reference for any questions realting to New York City Traffic Tickets.

If you receive a traffic summons in the City of New York or any other area that is covered by the TVB please refer to the "New York City Traffic Tickets" page or contact us at 877-DR SUMMONS. Keep in mind that the TVB only handles traffic infractions and not traffic misdemeanors or other types of violations.

In a previous blog I explained that one doesn’t not have a statutory right to a speedy trial in a New York traffic violation case (such as speeding, red light, stop signs violations, etc). Does this mean that a New York court can take years to schedule your trial? The answer is yes and no. While there is no statutory right to a speedy trial in a traffic violation case, the courts have held that one charged with a New York traffic violation has a constitutional right to have his or her trial held within two years. This constitutional right is found in CPL § 30.20 which basically states that after a criminal prosecution is commenced the defendant is entitled to a speedy trial. This section does not set forth what constitutes a speedy trial however. It also applies to traffic violations because for purposes of procedure, traffic violations are treated as misdemeanors. See VTL § 155. The Sixth Amendment to the United States Constitution also guarantees a right to a speedy trial even in traffic violation cases.

Numerous New York court cases have held that the speedy trial provision found in CPL § 30.20 applies to traffic violation cases. The question becomes therefore, what is considered an acceptable time frame within which one charged with a New York traffic violation must be brought to trial in light of CPL § 30.20? Two years seems to be the limit provided the delay is not caused by the defendant. Below are reviews of relevant cases:

In People v. Thorpe, 160 Misc.2d 558, 613 N.Y.S.2d 795 (1994) the Appellate Term dismissed a conviction due to an unexplained two year delay in bringing the case to trial. This is the case to rely on when making a speedy trial motion. See also People v. Matera, 2003 WL 21974065 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51180(U)(unexplained delay of over two years in bringing traffic infraction to trial warranted dismissal); People v. Rogoish, 2003 WL 21700087 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51120(U)(unexplained delay of over three years in bringing the traffic infraction to trial warranted dismissal)

Therefore, if you are charged with a traffic infraction in New York and never receive a trial notice, don’t call the court. Contact an experienced traffic court firm such a Tilem & Campbell and we will run your license to ensure that you didn’t miss a date. Then we will sit back and wait. If the trial notice comes more than two years later, Tilem & Campbell will file a written motion seeking dismissal. Finally, the above analysis and laws do not apply for tickets handled by the DMV Traffic Violations Bureau. Those tickets have are handled under a different set of rules which I will discuss in a future blog.

The simple fact is, a motorist charged with a New York traffic violation has no statutory right to a speedy trial. The denial of a statutory right to a speedy trial in a New York traffic violation case is yet another example of the New York Judiciary completely disregarding the laws duly enacted by the Legislature and imposing their own will. It is yet another example of what I consistently refer to as judicial supremacy as opposed to judicial oversight. Such rulings by the courts quite simply amount to a judicial hijacking of the legislative role thus destroying the separation of powers.

A review of the relevant laws reveals that the Courts' denial of speedy trial rights in traffic violation cases (as well as the denial of other rights in traffic violation cases) is completely contrary to the clear and unambiguous wording of the laws; laws that the judiciary is constitutionally obligated to enforce and carryout whether they agree with them or not.

First of all, the New York State Legislature has determined that, with some exceptions, traffic “violations shall be deemed as misdemeanors and all provisions of law relating to misdemeanors . . . shall apply except that no jury trial shall be allowed for traffic infractions.” See VTL § 155. Therefore, if the Legislature has determined that traffic violations are to be treated procedurally as misdemeanors, under what possible theory could the speedy trial statutes not apply? See for example People v. Solomon, 1984, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984) where the court held that the right to speedy trial does not attach to actions commenced for traffic violations. See also People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778(1993)(Speedy trial statute applies only to felonies, misdemeanors, and violations, and “violation” is specifically defined to exclude traffic infractions.)

Under what possible theory of statutory construction could the Solomon court have concluded that statutory speedy trial rights do not apply to traffic violations in light of the clear wording of VTL § 155 which states that traffic violations shall be treated as misdemeanors?

In fact, NY CPL 30.30(1)(d) states that when a defendant is charged with a violation, the People must be ready within 30 days of the commencement of the criminal action. However, the courts have literally hijacked the legislative authority by ruling that the speedy trial provisions found in CPL 30.30 don’t apply to traffic infractions. If you are charged with a traffic violation in New York and more than two years have passed since the time you received the ticket and the time your trial is scheduled, contact Tilem & Campbell because while you may not have a statutory right to a speedy trial on a traffic violation case, you do have a constitutional speedy trial right which usually takes effect at about two years. In a future blog I will discuss the constitutional speedy trial right you have when charged with a traffic violation.

There are generally no classifications of people who are exempt or disqualified from jury duty in New York State. However, in order to be initially selected for the jury pool in your county, you must be a citizen of the United States as well as a resident of the particular county that has summoned you for jury duty; have never been convicted of a felony; be at least 18 years of age and be able to communicate in English. See Jud Law § 510. If you don’t satisfy all of these qualifications you are ineligible for jury duty in New York State.

Prior to January 1, 1996, active members of the armed forces; elected federal, state, city and local officers; the heads of certain government agencies; and federal or New York State judges were deemed disqualified to serve as jurors. See Jud. Law 511 (1995). These statutory disqualifications were repealed effective January 1, 1996.

Furthermore, prior to January 1, 1996, certain full-time religious practitioners, certain members of the medical field including doctors, dentists, nurses, licensed physical therapists and even embalmers as well as attorneys, fire personnel, sole proprietors engaged in the full-time operation of their business, parents or guardians with children under the age of 16 and those over 70 years of age were exempt from jury duty. These statutory exemptions were repealed effective January 1, 1996.

If you have been selected for jury duty in New York State, have a jury trial scheduled in New York state or have any questions in general regarding jury trials in New York State including Westchester, Rockland, Dutchess or Putnam counties, feel free to contact Tilem & Campbell PC for a free telephone consultation.

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney's Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)
Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not “been duly and regularly licensed and admitted to practice law in the courts of record of this state” from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478

Continue reading "WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK TRAFFIC TICKET ALSO PROSECUTING IT? PART IV – UNDER THE DOCTRINE OF “INCLUSIO UNIUS EST EXCLUSIO ALTERIUS”, THE LEGISLATURE’S SPECIFIC INCLUSION OF SOME NON-ATTORNEYS WHO MAY ACT AS AN ATTORN" »

The simple fact is, the practice of the issuing officer prosecuting their own New York traffic tickets is allowed only because of an outright Judicial hijacking by the court’s of the State Legislature’s power. Generally, the New York State Constitution establishes that the Legislative Branch (consisting of the New York State Assembly and New York State Senate) enact the laws (with the consent of the governor) (see NY Const. Art. 3, § I).

The New York State Executive branch enforces and carries out the laws enacted by the New York State Legislature (See NY Const. Art. IV) and the New York State Judiciary branch interprets and applies the laws enacted by the Legislature (NY Const. Art. VI). It is not the function of the Executive and/or the Judiciary branches to create laws.
This division of powers and responsibilities is commonly known as the “Separation of Powers” doctrine most of us learned about early in our scholastic careers. The “Separation of Powers” doctrine is a bedrock principle in this country as well as in New York. Each branch of government should be free to carry-out its lawful duties free from the improper interference from the other branches of government. New York State Inspection, Sec. and Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 485 N.Y.S.2d 719, 475 N.E.2d 90 (1984).

Therefore, whether they agree with the law or not, law enforcement (which is part of the Executive Branch) must enforce a law duly enacted by the Legislature. For example, it’s not for law-enforcement to decide that drugs should be legal and refuse to enforce our drug laws. Similarly, absent some constitutional infirmity, judges are bound to impose and interpret the laws as written by the Legislature whether they agree with them or not.

Applying the Separation of Powers Doctrine to attorney admissions to practice law in New York, it is the New York State Legislature that has the unrestricted power to determine the procedures and by what evidence the qualifications for admission as an attorney to the New York State Bar should be ascertained. In re Cooper, 22 N.Y. 67 (1860). In fact, in Cooper, the Court of Appeals noted that the authority and power to admit attorneys to practice in the State of New York is not an inherent power of the courts but is entirely subject to legislative action.

Continue reading "WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK STATE TRAFFIC TICKET ALSO PROSECUTING IT? PART III – A BRIEF OVERVIEW OF THE THREE BRANCHES OF NEW YORK STATE GOVERNMENT AND THEIR RESPECTIVE ROLES" »

As I explained in a previous blog, the practice of officers prosecuting the New York traffic tickets they issue was upheld by the New York Court of Appeals case; People v. Soddano. Soddano and it’s holding that officers may act as prosecutors for their tickets is flawed for several glaring reasons. First, the practice violates a principle as old as trials themselves - a witness may not act as an advocate at a trial. In other words, if the lawyer is a witness in a case, he may not act as one’s lawyer in that same case. For example, if I witness a car accident, I am forbidden from representing someone involved in that car accident. This is commonly referred to as the “Witness-Advocate Rule”. In fact, this ancient rule is codified in the Disciplinary Rules that attorneys in this State are obligated to follow. See N.Y.Ct.Rules, § 1200.21(c); (DR 5-102(c).

This is a very basic rule that most sixth-graders could comprehend once it was explained to them. If you are a witness in the case, you can’t represent someone in the case. Therefore, in a traffic ticket case, the issuing officer is not only a witness; he or she is usually the complaining, and sole witness in the case. Accordingly, under the “Witness-Advocate Rule”, the officer should be barred from representing the People. The officer should be barred from acting as an advocate in the very case he or she is the main witness. Very simple, right? Wrong!

You see, in most New York local criminal courts, “up is down” “down is up” “left is right” “right is left” and the Constitution and Due Process are mere annoyances that are simply cast aside. When I first became an attorney, I thought I was missing something. I became hesitant to even open my mouth in court because apparently in local criminal court, words have different meanings and statutes are interpreted and applied without regard to the plain wording of the law. I came out of law-school thinking the judges were the most wise and legally educated individuals in the equation. Quickly, however, I realized that I wasn’t misreading the law; I came to learn that the law doesn’t matter. It’s that simple – THE LAW DOESN’T MATTER. The extent to which most local criminal court judges will contort the law to ensure conviction and accommodate the prosecution is mind boggling.

How the courts justified officers prosecuting the tickets they issue when such conduct clearly violates the “Witness-Advocate Rule” is a perfect example of the contorted reasoning that courts will employ to justify improper prosecutorial misconduct and constitutional violations. In People v. Pappas, the Appellate Term held that the “Witness-Advocate Rule” didn’t apply to officers who prosecuted their own tickets because they are not attorneys and therefore are not bound by the Disciplinary Rules that attorneys must follow. 19 Misc.3d 140(A)(2008).

The court’s reasoning in Pappas is flawed. If the officers are not attorneys, they shouldn’t be prosecuting cases. By allowing officers to act as attorneys without being bound by the rules of attorney conduct removes a layer of protection designed to protect the public and ensure that those who practice law are fit to do so and comply with strict standards of conduct. It also puts an attorney representing a defendant at a disadvantage. Indeed, the defense attorney’s adversary (the officer) is not bound by the rules of attorney conduct. By allowing officers to prosecute their own tickets, without regard to the rules of attorney conduct, the Courts have created an unequal playing field. If the officer can violate the attorney Disciplinary Rules prohibiting a witness from representing a party; what other attorney Disciplinary Rules can the officer violate?

As I discuss in my next blog, the Legislature has indicated where non-attorneys may act as prosecutors and police officers are not one of the non-attorney classifications empowered by the Legislature to act as prosecutors.

The answer to this question is fairly simple; when it comes to New York traffic violations, the Courts of New York State have allowed deeply rooted judicial principles founded on fairness to be disregarded. As I said in a previous blog, far too many judges have no apparent concept of the presumption of innocence and proof of guilt beyond a reasonable doubt. This fact is more prevalent in traffic court where, in most (but not all) courts, if a traffic violation actually goes to trial, the guilty outcome is a foregone conclusion. The trial, sadly, is a rubberstamp process and the rubberstamp says “Guilty”.

The New York criminal justice system particularly as it pertains to lower level offenses is designed for speed. Some New York courts handle hundreds of tickets per day; others handle dozens per day. Needless to say, fair trials are not on the top of the judge’s list of things to do. In my opinion the desire to “move cases” has eroded our rights to a fair trial in New York traffic court. A prime example of placing the need to “move cases” over the rights of defendants is the practice of having the police officer who issued the ticket both plea bargain the ticket and if necessary, prosecute the ticket. This practice has been condoned by the highest court in New York. See People v. Soddano, 86 N.Y.2d 727, 631 N.Y.S.2d 120 (1995) where the New York Court of Appeals held that officers may, upon a proper delegation from the duly elected District Attorney, prosecute the traffic tickets they issue. The Court acknowledged that the elected county District Attorneys are ultimately responsible for all prosecutions in their particular county (See County Law § 700) but held that the County District Attorneys could properly “delegate” the authority to prosecute traffic infractions to the issuing police officers.

In reality, I doubt the officers have any formal delegation of authority from the elected District Attorney to prosecute their own tickets. Tilem & Campbell handles hundreds of traffic tickets each year and I only recall one time where a local village prosecutor actually presented a written delegation of authority from the elected District Attorney allowing that local prosecutor to prosecute traffic violations within that village. In fact, if you were to ask the issuing officer under what authority he was acting as prosecutor, he or she would most likely have no idea what you were talking about. Most police officers probably learned as rookies that they negotiate and/or prosecute their own tickets. It is in reality, a matter of custom. Ask a local judge to dismiss or inquire as to what delegation of authority the officer has to act as prosecutor and most (not all) local court judges will look at you like you are speaking an unknown foreign language. That’s the reality of New York traffic court.

So your New York Criminal case is heading to jury selection. At jury selection both your criminal defense attorney and the prosecutor will have an opportunity to question potential jurors chosen from the jury pool. (Jury selection itself will be discussed in a later blog). How is the jury pool assembled? Where does the commissioner of jurors for the county your case is be tried in get the names of people to summon for jury duty?

Potential jurors’ names are selected from such lists as voter registration, drivers’ license holders, registered motor vehicle owners, tax payers, those on public assistance, those collecting unemployment and/or those who have volunteered for jury duty. NY Jud. Law § 506. Therefore, that old-time belief that if you don’t vote you won’t be chosen for jury duty is no longer the case. Because one might be discouraged from voting for fear of being selected for jury duty does violate one’s right to vote. Marcus v. Levin, 198 A.D.2d 214, 603 N.Y.S.2d 323 (2nd Dept. 1993).

From the above mentioned lists, the commissioner of jurors randomly selects the names of potential jurors. This random selection may be done mechanically or by any other method to ensure random selection. NY Jud. Law § 507. The randomly selected individuals will make up the jury panel from which your jury will ultimately be selected.

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.

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.

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).

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

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.

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.

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.

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.

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.