New York Criminal Attorney Blog

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.

Dominique Strauss-Kahn, or DSK as he is often known in the international press, head of the International Monetary Fund was arrested earlier this week for a sexual assault on a hotel maid in Manhattan. DSK is currently remanded, pending the outcome of a new york grand jury investigation and is being housed at the Riker's Island jail complex here in New York.

Rape and other Sexual Assault charges are very serious and difficult to defend. They require a skilled criminal defense attorney to know the science, law, psychology and factual intricacies of the case, but they are beatable cases.

While little has come out about the evidence at this early stage of the case one can surmise that the prosecution has more evidence than the mere statements of the victim. The New York City police Department and the New York County District Attorney's Office acted remarkably swiftly to arrest such a powerful and high profile figure.

At this point DSK is presumed innocent, under our system of justice and we will have to wait and see what evidence exists. In the meantime DSK sits in jail awaiting the outcome of the grand jury investigation.

The New York State Appellate Court sitting in Brooklyn ordered a new trial for Anthony DiPippo who was convicted of rape and murder back in 1997. It was since discovered that Mr. DiPippo's attorney in 1997 had a conflict of interest which denied Mr. DiPippo effective assistance of counsel. Attorneys for Mr. DiPippo brought a motion to vacate his conviction before County Court Judge Robert Neary who denied the motion but the Appellate Division, Second Department overturned Judge Neary's decision after learning about the conflict. This marks the second time Judge Neary has been reversed by the Appellate Division in decisions published in the New York Law Journal in the last six months. Please see our previous blog for details on the prior reversal.

Mr. DiPippo was represented at trial by an attorney named Robert Leader who had previously represented Howard Gombert in an unrelated rape. During Mr. DePippo's trial it became clear that Mr. Gombert was also a suspect in this murder and rape but Mr. Leader failed to disclose his obvious conflict of interest. Despite his assertions that he attempted to introduce photographs of Mr. Gombert's car at the trial of Mr. DiPippo, the Appellate Division noted that the trial transcript didn't contain any reference to the admission of the photos.

The right to counsel, that is the right to an attorney which guaranteed in the Sixth Amendment to the United States Constitution not only requires that a defendant in a criminal trial have an attorney but it further requires that the defendant has an EFFECTIVE attorney. If you or a loved one believes that you have been denied effective legal representation, please contact our office.

Tilem & Campbell senior partner, Peter H. Tilem won a huge Court victory after his client was found not-guilty of all charges in connection with an Attempted Rape in the First Degree case stemming from a 2008 incident in Queens. The client had been facing up to 15 years in prison if convicted of Attempted Rape and up to one year in jail if convicted of Endangering the Welfare of a Child. The victim was less than 10 years old at the time of the alleged incident. The incident was not reported to the police until January of 2009.

An investigation by Tilem & Campbell during the pendency of the case revealed numerous inconsistencies in the statements made by the alleged victim to police officers, prosecutors and doctors. A Queens County Assistant District Attorney became an important defense witness in the case.

Mr. Tilem represented the client at trial, but Managing Partner John Campbell handled all pre-trial litigation, and Associate Jean Melino successfully handled motion practice which directly resulted in the preclusion of key prosecution evidence.

Although the client was originally charged with Rape in the First degree, the prosecutor only sought an indictment for two counts of Attempted Rape in the First Degree and Endangering the Welfare of a Child. "The prosecution seemed to change their theory", according to Tilem. The defense strategy relied heavily on the many inconsistencies in the alleged victim's story.

Tilem & Campbell is a New York criminal defense firm located in White Plains, New York. You can contact the firm by calling 888-ANY-CRIME.

As experienced criminal defense lawyers we are all too familiar with New York’s onerous Sex Offender Registration Act (SORA). SORA requires the registration of individuals convicted in New York State of certain sex offenses and demonstrates what could happen when inexperienced defense attorneys fail to inform their clients of all of the consequences of a plea. . In People v. Gravino, the defendant was charged with rape in the second degree; endangering the welfare of a child; and unlawfully dealing with a child in the first degree for providing alcohol to underage children and having sex with a 14-year-old boy. The rape charge was a registerable offense under SORA.
The defendant ultimately agreed to plead guilty to one count of third-degree rape in exchange for a sentence of 1 1/2 to 3 years in prison. During her plea discussions with the court and at the time of her plea allocution, defendant was never informed by the court that she would be required to register as a sex offender as a result of being convicted of third degree rape. At sentencing, defendant moved to withdraw her plea claiming a conflict of interest with her current counsel and that she experienced “nothing but misrepresentation”. The court denied her application and proceeded with the sentencing; imposed the agreed sentence and found defendant to be a sex offender.
Defendant appealed to the Fourth Department of the Appellate Division arguing, among other things, that her plea was not voluntary because the court did not make her aware of the sex offender registration requirements under SORA. The First Department disagreed, holding that the “lack of awareness prior to sentencing” of the SORA sex offender registration requirements did not detract from the voluntariness of defendant’s guilty plea.
The New York Court of Appeals affirmed the Fourth Department holding that the sex offender registration requirement was a collateral consequence that the court was not required to inform the defendant of. A sentencing court, opined the Court of Appeals, must only inform a defendant of direct consequences of a sentence imposed by the court and not collateral consequences typically imposed by another agency. Further, held the Court, SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes. Thus, SORA registration is not a “direct consequence” of a conviction.
The lesson to be learned from this case is that defense counsel must thoroughly review all collateral consequences with their clients before they agree to plead guilty to any charge. It is not the court’s responsibility to inform the defendant of all, or any, possible collateral consequences of pleading guilty.
For information about any criminal related legal issue, please contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.888AnyCrime.com.