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Lawyers experienced with drug cases often seek to suppress the drugs recovered by the police based upon a violation of the client’s right to not be subjected to unreasonable searches.  As a general matter, the Fourth Amendment to the United States Constitution, as well as Article I section 12 of the New York State Constitution, prohibit unreasonable searches and seizures. As a general matter, this means that police must obtain a search warrant prior to conducting a search of a person or their belongings. Even when a search warrant is obtained, however, the police must be able to show that there was probable cause of discovering some kind of criminal activity.

Police CarGiven this background, someone who is arrested after a search that was based on a warrant still has the ability to challenge the search. Generally, these challenges claim that the warrant was issued on insufficient facts or that the search exceeded the scope of the warrant.

A recent New York drug possession case illustrates the type of analysis courts use when reviewing a search warrant.

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When it comes to New York assault cases, there are several different subsections under the general statute outlining what constitutes criminal conduct. One form of aggravated assault is when someone “with intent to prevent a police officer from performing a lawful duty, he [or she] causes physical injury to such police officer.”

CopThis type of aggravated assault does not require any intent to cause harm to the police officer. Under the law, the prosecution need only establish that the defendant was acting to prevent an officer from performing a lawful duty and that the officer was harmed. A 2017 decision issued by a New York appellate court illustrates just how broadly courts will interpret this language when determining if a conviction was appropriate.

The Facts of the Case

The defendant was suspected of theft from a Home Depot store. Police began to follow the defendant as he left the store and soon afterward engaged in a high-speed chase. Eventually, the defendant’s vehicle stopped, and the defendant exited the car and then began to flee.

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In New York criminal cases, the prosecution is under a duty to provide certain evidence to the defendant and his attorney, irrespective of whether the prosecutor intends to use the evidence against the defendant. Importantly, the duty attaches to any evidence that may establish innocence or otherwise be favorable to the Defendant. This concept, first discussed by the United States Supreme Court in the landmark case Brady v. Maryland, has since been expanded to cover any evidence that is in the hands of not just of the prosecution but also of the police.  The material is commonly referred to by Criminal Lawyers as “Brady Material”.

FilesA recent case illustrates just how seriously courts take the prosecution’s duty to disclose evidence to the defense. Indeed, the court noted that, although the defendant’s argument was not necessarily raised at the appropriate time, the issue was so important that the court ruled on the issue anyway.

The Facts of the Case

The defendant was charged with several crimes related to the assault of a minor. Prior to his arrest, and before the police knew where the defendant was, they “pinged” a cell phone that had been used by the minor earlier in the day (by “pinging” a phone, police are able to get a general idea of where the phone is). The police were able to locate the defendant through the cell phone.

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Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving a defendant who confessed to robbing a car at gunpoint. The case required the court to determine if the trial court properly excluded evidence suggesting that the defendant was “bipolar, with psychotic features.” Ultimately, the court concluded that the evidence was properly excluded because under New York Code Article 250, notice of intent to provide psychiatric evidence must be given in advance.

Document ReviewThe Facts of the Case

The defendant was pulled over by police, and as a result of a search, the police discovered a loaded gun. After police seized the gun, the defendant blurted out that it was a good thing that the police officer quickly drew his gun because otherwise the defendant would have shot him. Police arrested the defendant and took him to a hospital to have him evaluated by a psychiatrist. The defendant was read his Miranda warnings and then admitted to taking the car at gunpoint.

After evaluating the defendant, the psychiatrist determined that the defendant was “bipolar, with psychotic features.” The defense hoped to use that diagnosis to explain why the defendant was not able to knowingly waive his Miranda rights and make the statement to police admitting to the robbery.

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When it comes to New York assault cases, or homicides there are a number of  defenses that someone charged with the offense can assert. An affirmative defense is a defense which the person accused of a crime has the burden of proving by a preponderance of the evidence.  A defense, on the other hand must be disproved by the prosecution, beyond a reasonable doubt.  One of the most common defenses in New York aggravated assault cases is that of self-defense or as its called in New York Justification.  Justification is a defense that must be disproved by the prosecution.

Fist in the FaceIn New York, NY Penal Law 35.15 governs self-defense claims. The statute also includes a defense for those acting in the defense of others. Specifically, that statute requires that the actor possess an honest and reasonable belief that they are facing unlawful physical force, or an imminent threat of unlawful physical force.

The statute thus creates two essential elements of a New York self-defense claim. First, the actor was subject to unlawful force, or the actor honestly had a fear that they were about to face unlawful force. However, even if the actor believes this to be the case, the statute also requires that their belief be a “reasonable” one. This introduces an objective element into the claim, essentially asking the judge or jury to determine whether the defendant’s fears were reasonable under the circumstances.

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Over the last few years, there has been a backlash against the New York stop-and-frisk program, based on the fact that racial minorities were being stopped in far greater numbers than non-minority populations. And while by most accounts, the total number of people stopped and frisked has decreased, the basic principle that allows a police officer to stop and frisk a citizen still remains intact and these principles are important for experienced criminal defense attorneys who handle both gun crimes and drug crimes to be familiar with.

Stop and FriskUnder New York criminal law, there are four types of interactions with police. First, police may briefly stop someone to request information if they have any “objective and credible” reason. This does not necessarily have to be related to criminal activity. Second, if police believe that someone has, or is about to, commit a crime, they can briefly stop that person. Third, if police believe that the person poses a danger, they can search that person. Finally, if police have probable cause to believe that person committed a crime, they can arrest them.

In the moment, police have a difficult time neatly fitting each situation they confront into one of these four categories. As a result, police generally err on the side of restricting a person’s rights and will frequently exercise more force than is necessary. When this is the case, any evidence seized as a result of an officer’s violation of a person’s rights may be suppressed by the court.

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When someone is placed on probation in lieu of jail time, it is generally seen as a win. However, often a sentence of probation is not the end of the story. Indeed, probationary sentences can be strictly enforced, and if someone fails to live up to each and every condition of the sentence, they risk being found in violation and face the possibility of jail or prison.

CourtroomWhen someone violates a New York probation sentence, the judge who ordered the original sentence can re-sentence that person to up to the statutory maximum. Thus, what starts off as a short sentence of probation can turn into what seems like a lifetime of being wrapped up in the system. Thus, the importance of a New York criminal defense attorney in a probation hearing cannot be overstated.

Of course, when a person on probation picks up a new criminal case, that case is a potential direct violation of their probation sentence. This is because the terms of probation forbid picking up a new case. Normally, the person will not be found in violation until they have been found guilty of the new offense. If they are found not guilty, in theory, their sentence of probation should continue. If they are found guilty, the new conviction will be a direct violation, and the judge overseeing the probationary sentence will be able to re-sentence that person.

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Being arrested, charged, and convicted of a New York DWI offense can carry significant consequences for motorists. Indeed, as discussed below, even being charged with DWI can result in the immediate suspension of your license.  These consequences can include fines, mandatory participation in the New York Drunk Driver Program, probation, and even jail time. In addition, a DWI conviction can also result in a license suspension or revocation.

Police CarUnder New York Vehicle and Traffic Law section 1193(2)(e)(7), under certain circumstances, a court can suspend the license of a person charged with DUI while the case is still pending. However, to comply with constitutional requirements, the statute allows for judges to make hardship exceptions. A recent case discusses how courts determine if someone charged with a New York DWI offense meets the requirements of a hardship exception.

The Facts of the Case

The defendant was pulled over after making an illegal left turn. When the officer approached the defendant’s car, he claimed to have noticed signs of intoxication. The officer administered a breath test, which indicated that the defendant’s blood-alcohol content was .087. The legal limit in New York is .08.

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New York Firearms Law and Second Amendment Firm, Tilem & Associates has filed three legal actions, two in New York State Supreme Court and one in Federal Court in Manhattan alleging that the New York City Police Department Licensing Division uses factors in licensing decisions that disproportionately deny African-Americans gun licenses.  In one outrageous case, the NYPD admitted to using false arrests, two arrests for which the NYPD was sued and ultimately settled, as part of the  basis for revoking pistol licenses from an African-American.

The NYPD Licensing division is the division within the NYPD that is responsible for issuing and renewing pistol licenses in the City of New York, and has the authority to limit, suspend or revoke a handgun license subject to review by the New York State Supreme Court.

In February 2017, during a hearing at the NYPD License Division offices before an NYPD hearing officer, a Detective assigned to the investigation section of the License Division testified under oath about using dismissed arrests as a basis to recommend revocation of an African-American license holder’s license.  In fact, and to the apparent surprise of the hearing officer, the Detective testified that anything reported to the NYPD License Division was considered an “incident” and that the Police Department did not necessarily consider the quality of the incidents but rather the sheer number and that included dismissed arrests.  The Detective also admitted to considering dismissed arrests for which New York City settled 2 false arrests claims in his decision to revoke.

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Recently, in Nassau County, we successfully argued for the reduction of a Sex Offender Registration Act (SORA) Offender to have his risk assessment classification reduced from a level two down to a level one.  This change can have a dramatic effect on the life of a convicted sex offender who is rehabilitated and trying to move on with his or her life.

New York Corrections Law sec 168-o gives registered offenders the right to argue up to once per year for a downward reduction in their offender status and further gives the offenders the right to argue to be relieved of all registration requirements after 30 years after the date of initial registration.  This application can only be made once every two years after the 30 years has expired.

Generally, registered sex offenders in New York are designated into one of three classifications.  Level 3 offenders are considered the most likely to reoffend and are monitored the most closely.  Level 3 registration for example in addition to all of the other requirements for Level 1 and 2 offenders will need to personally verify their address with law enforcement every 90 days.  In addition, level 3 offenders will need to have their picture taken by law enforcement every year as opposed to level 1 and 2 offenders every 3 years.