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Character evidence is one of the most misunderstood types of evidence available.  It is also evidence that can backfire on the party calling the witness.  As a rule, all relevant evidence is admissible in New York criminal trials. Relevant evidence is defined as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding” more or less likely. However, the general rule that all relevant evidence is admissible is subject to many exceptions.

One type of evidence that may intuitively seem like it would be admissible in a criminal trial, but is generally excluded from evidence, is evidence of a defendant’s prior bad acts. This includes both charged and uncharged crimes. Under the New York evidentiary rules, prior bad acts are “not admissible to prove that the person acted in conformity therewith on a particular occasion or had a propensity to engage in a wrongful act or acts. Essentially, this means that the government cannot use evidence of past crimes or wrongs to prove that a defendant was more likely to have committed the charged crimes there may however be other reasons why such prior crimes are admissible. This is why, absent a few exceptions, a defendant’s criminal history is not admissible if the defendant does not testify at the trial.

Evidence of a defendant’s prior bad acts, however, can be admissible in some situations where the government is introducing the evidence for a permissible purpose; for example to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident. A recent case illustrates how New York courts handle this issue.

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Earlier this month, a state court issued a written opinion in a New York gun case discussing whether a police officer’s actions in approaching, questioning, and searching the defendant were justified under the circumstances. Ultimately, the court concluded that the officer’s actions were unsupported by the requisite level of suspicion, and granted the defendant’s motion to suppress. In so doing, the court discussed the four types of police/citizen interactions.

The Facts of the Case

According to the court’s opinion, the defendant was walking down the street at around 2 a.m. The police approached from behind in an unmarked car. The police were not responding to an emergency call and had not received any information that a crime had been committed. As police approached the defendant from behind, they noticed he had a bulge in his pocket. However, they could not see the shape of the bulge and did not know what it was.

Police pulled up next to the defendant, stating “police, can you stop for a second?” The defendant put his cell phone up to his ear and began to walk away at a hurried pace, although he was not running. At this point, a police officer exited the vehicle and approached the defendant, again telling the defendant to stop. As the officer got closer, he could see the defendant was holding a handgun in his right hand. The officer rushed the defendant, seized the gun, and the arrested the defendant.

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Recently, a state appellate court issued a written opinion in a New York assault case requiring the court discuss an issue that is important to understand for all who are facing New York criminal charges. The case presented the court with determining whether the defendant’s conviction was supported by the weight of the evidence presented at trial. Ultimately, the court concluded that the evidence did support the jury’s verdict, and affirmed the defendant’s convictions.

The Facts of the Case

The defendant was arrested and charged with two counts of assault in the second degree and one count of tampering with evidence. The case proceeded to trial in front of a jury, where it was established that the defendant got into a fight with two other men. During the fight, the defendant produced a knife because he wanted to scare the other men. He specifically stated that he did not intend to injure them.

The defendant also testified that during the fight, he swung the knife at the two men when they were very close to him. He could not remember if he used a slashing or stabbing motion, and a medical witness testified that the victims had injuries that were consistent with either slashing or stabbing.

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New York DWI lawyers must understand the science as well as the law.  Under long-standing U.S. Supreme Court case law, the prosecution must disclose all evidence that is material to guilt or innocence to the defense. This means that in a New York DWI/DUI case, the prosecution has an obligation to hand over not just the evidence that it plans to use to establish that the defendant is guilty beyond a reasonable doubt, but also evidence that would tend to show that the defendant did not commit the crimes charged.

In a recent New York DUI case, the court considered the extent of the discovery that must be provided to a defendant facing charges of operating a motor vehicle while intoxicated.

The Facts of the Case

The defendant was pulled over while traveling 81 miles per hour in a 50-mile-per-hour zone. Upon pulling the defendant over, the officer claimed the defendant had glassy eyes, slurred speech, and an odor of alcohol on his breath. When asked, the defendant told the officer that he had consumed a single drink.

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New York criminal law does not, generally speaking, attach criminal liability to actions that are not accompanied by the requisite level of “guilty knowledge,” or mens rea. Thus, most New York crimes are broken down into at least two elements, the “act” element, and the “knowledge” or “intent” element. Even when a New York criminal statute does not specify that a certain level of knowledge or intent is required, courts will read in such a requirement. Possessory offenses are an excellent example of how this principle is applied by the courts.

A possessory offense is one in which the “act” element of the crime is fulfilled merely by possessing a prohibited object. New York drug and gun crimes are common examples of possessory crimes. For example, under New York Consolidated Laws Article 265, “a person is guilty of criminal possession of a firearm when he or she … possesses any firearm.”

At first glance, the wording of the statute would seem to indicate that anyone who has a weapon in their possession, regardless of whether they know they possess it, is guilty of the offense. However, criminal law disfavors this type of strict liability. Thus, courts generally require that a defendant knowingly possess a firearm before imposing criminal liability. It is important to note that the term “knowingly” goes to the object itself, and not the prohibited nature of the object. For example, a defendant who knowingly possesses a weapon but does not know that it is illegal to possess the weapon will be found to have “possessed” the illegal weapon.

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Recently, a state appellate court issued an opinion in a New York criminal law case discussing whether a police officer’s search of the defendant’s backpack was lawful. The Court examined whether the defendant abandoned property as a result of lawful or unlawful police conduct.  Ultimately, the court concluded that the police officer was justified in his actions leading up to the point where the defendant discarded the bag. Thus, the court denied the defendant’s motion to suppress the gun.

The Facts of the Case

Police received an anonymous radio call that there was a man with a handgun riding the B9 bus towards Canarsie. Police waited at a bus stop, and when the defendant exited the bus, a police officer approached the defendant and asked him if he would mind talking to the officer for a moment.

At this point, the police officer claimed that the defendant became nervous and put his right hand into his pocket. When the police officer asked the defendant to remove his hand, the defendant refused. The police officer then drew his weapon and forcibly tried to remove the defendant’s hand from his pocket. The defendant fled and the police officer pursued him. Shortly thereafter, the defendant discarded the bag, the police officer searched the bag, and the police officer recovered the firearm.

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A state court recently issued an opinion in a New York gun possession case requiring the court to determine if a gun found in the defendant’s motor home was the product of an illegal search. Ultimately, the court concluded that the defendant’s motorhome was afforded the same protection as any other residence, and that the warrantless search was not justified.

The Facts of the Case

Police received a call that someone was stealing electricity by connecting their motorhome up to a telephone wire. Police responded to the scene to see the defendant’s motorhome connected to a nearby telephone pole by a wire coming out of the top of the motorhome.

According to police, an officer knocked on the door of the motorhome. When the defendant answered, police asked him about the wire, and the defendant admitted it was not legal. Police then put the defendant in handcuffs and walked him toward the police car. On the way to the car, police claimed that the defendant said “there is a gun in there.” Another officer then went into the motorhome, located the gun, and confiscated it.

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Recently, a state court issued a written opinion in a case involving allegations that the defendant violated a New York order of protection. The case required the court to determine if the defendant was correct in asserting that the police entered her home without a warrant and without sufficient cause to do so. Ultimately, the court concluded that the police acted improperly, and thus any evidence obtained as a result should have been suppressed.

The Facts of the Case

The defendant had been previously placed on probation based on an unrelated matter. As a condition of that probation, the court issued an order of protection, requiring the defendant to stay away from a certain individual.

One day, police received a call from the downstairs neighbor of the defendant, stating that she heard noises in the apartment. This concerned her because she believed the defendant to have been incarcerated. Police verified that the defendant had previously been released from jail, but went to the apartment anyhow.

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Generally, a defendant in a New York criminal trial does not go to trial expecting that they will be found guilty. On the one hand, if a defendant is innocent of the crimes charged or believes the case against them to be weak, they will fight the case in hopes of being found not guilty. On the other hand, if a defendant believes the case against them to be a strong one, they will normally negotiate a plea agreement through their attorney.There are some cases, however, that fit somewhere in the middle. For example, consider a New York gun possession case in which a gun is recovered from a person by a police officer. If the gun is admitted into evidence, the prosecution will not have a difficult job at trial, needing only to prove that the defendant possessed the gun. However, the defendant may have a strong motion to suppress the gun from evidence, based on the police officer’s conduct leading up to the search and seizure.

In this case, the defendant would litigate a motion to suppress the physical evidence in the case, namely the gun. If successful, the prosecution would be unable to admit the gun into evidence, and in many gun possession cases, the prosecution will withdraw at this point. However, if the defendant’s motion is denied, there is often little to be gained by proceeding to trial – at which the prosecution need only prove that the defendant possessed the weapon.

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The Federal and New York State Constitutions provide citizens who are charged with New York crimes certain rights that must be respected. In addition, there are certain statutes that grant New York criminal defendants additional rights. In the event that any government agent – including police and prosecutors – fails to respect these rights, courts have an obligation to take remedial action, up to and including dismissing the charges. In a recent case, a New York appellate court dismissed criminal charges against a defendant based on the government’s failure to provide accurate and timely notice of the charges he faced.The Facts of the Case

On June 27, 2016, the defendant was charged with various crimes after a 12-year-old girl observed him touching his penis while sitting in his vehicle. Initially, the girl told police that she saw the defendant at Northern Boulevard and 106th Street.

On May 8, 2017, the prosecution filed additional charges against the defendant. The prosecution did not change the named location of the alleged offense and specified that the conduct at issue took place between June 17, 2016 and May 5, 2017. The defendant objected to the charges, arguing that they were overly broad, and requested that the prosecution file a document more specifically stating what he was charged with committing and when it was alleged to have occurred.

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