New York Criminal Attorney Blog

The Difficulty of Overturning the Denial of a Motion to Suppress in New York Criminal Courts

November 30, 2024 | Tilem & Associates

In a New York criminal case, an experienced criminal defense lawyer will often file what’s called a motion to suppress, asking the trial court to exclude incriminating evidence from the trial record based upon the fact that the evidence was unlawfully obtained by law enforcement. If the trial court denies this motion, it can be very hard to successfully appeal the denial. A recent case before the New York Appellate Division, Second Judicial Department, reminds us of this stark reality.

In the case, the defendant was charged with and convicted of criminal possession of stolen property in the third degree and criminal possession of a forged instrument in the second degree. His case began when officers, patrolling a neighborhood with reports of burglaries, approached the defendant as he carried a FedEx package. The defendant had just left a residential home’s front porch, and he gave the officers inconsistent answers for why he was walking the neighborhood in the first place. When he showed the officers his ID, one of the officers recognized that the ID was counterfeit.

During the course of the interaction, the defendant dropped the FedEx package on the ground, and the officers found $20,000 in cash inside the package. The defendant was then criminally charged. He filed a motion to suppress his statements to the police officers.

Destruction of Surveillance Video During New York Criminal Proceedings

November 23, 2024 | Tilem & Associates

Video evidence has become increasingly common and increasingly important in criminal cases. In New York, criminal defense attorneys can request that a court give something called an “adverse inference” in situations where the prosecution acts inappropriately by failing to preserve evidence. This means that the defendant can ask the court to automatically assume that the prosecution was hiding something simply because of its conduct during the litigation process. How does this “adverse inference” relate to surveillance footage when that footage may be crucial to a criminal case?

New York Case Law

According to New York case law, a court can allow for an adverse inference when a defendant has requested important evidence and when that evidence has been “destroyed by agents of the State.” If a defendant requests surveillance footage that could be crucial to his or her case, and if the State has destroyed the evidence since the time of the alleged crime, this could be grounds for an adverse inference.

Considerations from the Court

The court may, however, deny this request under certain circumstances. For example, if the defendant never formally requested the surveillance video prior to trial, the court may decide the request has no merit. Additionally, if the video was destroyed during routine procedure (i.e. without bad intentions but instead during the course of regular operations), there may be grounds to deny the request.

Understanding the Right to Represent Yourself in New York

November 17, 2024 | Peter Howard Tilem

In both the state of New York and the United States more broadly, criminal defendants have the right to an attorney. If they cannot afford an attorney, the court will appoint an attorney for them. Defendants do have the option, though, of requesting to appear pro se, meaning they can litigate their case without any attorney at all.

Case Law Regarding Self-Representation

In New York, a criminal defendant has the option of requesting to represent himself if three criteria are met: (1) the request is both clearly stated and timely made; (2) the defendant has explicitly waived the right to counsel; and (3) the defendant has not done anything that would make self-representation particularly difficult for the court.

Inquiry by the Court

A trial court is not allowed to deny a defendant’s request to represent himself without sufficiently investigating the facts at issue. The court must make an effort to properly determine whether the defendant can meet these three requirements under New York law. Case law specifically states that a court must “conduct a dispassionate inquiry into the pertinent factors” regarding any request for self-representation.

How Difficult Is it for New York Defendants to Argue Insufficiency of Evidence After Trial?

November 10, 2024 | Peter Howard Tilem

Sometimes, if a jury finds a defendant guilty of a crime like sexual assault or any other criminal offense, the defendant will later argue that the verdict was “against the weight of the evidence” at trial. This essentially means that the defendant wants to claim that the jury did not actually have grounds to find him or her guilty. What is the standard for this argument in New York? And how difficult is it to successfully argue that a verdict was against the weight of the evidence at trial?

Case Law in New York

In New York, a court reviewing a case for the “weight of the evidence” must first determine “whether a different verdict would have been unreasonable” and, secondly, must weigh the conflicting testimony and evidence to determine if the verdict is “supported by the weight of the evidence.” The court will generally review the statute that is relevant to a defendant’s guilty verdict and then determine whether the evidence supports the verdict in relation to the statute.

Case Before New York Appellate Court

In a recent case before the New York Appellate Division, Third Department, the court demonstrated the difficulty of proving that a defendant’s verdict was against the weight of the evidence. The case revolved around alleged sexual misconduct between the defendant and a child, and the jury relied on evidence such as testimony from the victim, a medical examination of the defendant, and the defendant’s own statements about the sexual acts.

What is NY TAC Defense, and Why Every New York Gun Owner Needs It

November 3, 2024 | Peter Howard Tilem

Protecting your rights starts before you ever need to use your firearm.

If you own a gun in New York, you already know the laws are complex, strict, and sometimes unforgiving. Even if you do everything right, a single moment of defending yourself or your family can turn into a legal nightmare — unless you’re prepared.

That’s where NY TAC Defense comes in.

Arguing Misidentification in New York Cases Involving Violent Crimes

October 28, 2024 | Peter Howard Tilem

If you have been charged with a violent crime in New York, including assault, assault and battery, or a firearms charge, there may be grounds to argue that there is an issue of identity in the case against you. In a recent case in a New York court, the defendant argued that the guilty conviction against him was unreasonable because the assault victim had no way of accurately identifying him after the incident in question.

Case Before the Appellate Division

In the case before the New York Appellate Division, Third Department, the defendant argued that his assault-related case should have been dismissed by the trial court. According to the defendant, the victim did not actually see who punched him on the left side of his face, since he was busy looking at two other individuals involved in the altercation, who were wrestling on the ground. Therefore, said the defendant, the guilty conviction was not supported by legally sufficient evidence. He asked the higher court to vacate his conviction.

Analysis of Events Surrounding the Assault

The higher court disagreed with the defendant, concluding instead that the events surrounding the incident could have led a reasonable jury to believe he was guilty of the assault. For example, the assault victim saw the defendant standing directly over him after he was hurt. After that, the defendant and the victim had a verbal altercation, and the defendant head-butted the victim. Because of this chain of events, the victim could have sensibly identified the person that assaulted him. Therefore, defendant’s argument did not have merit – there was not reason for the trial court to have dismissed his case.

The Importance of Putting Forward Sufficient Evidence During Your Criminal Case

October 21, 2024 | Peter Howard Tilem

The United States Constitution provides that the defendant has no duty to present any evidence showing that they didn’t commit a crime because it’s the government burden to prove guilt; not the defendant’s burden to prove their innocence. However, when thinking through litigation strategy in any realm, it is important to put forth as much helpful evidence as possible as you build your case for a judge or jury. In preparing for a sentencing hearing it is important to have helpful, specific and mitigating evidence. In a recent criminal case before the New York Appellate Division, Third Department, the defendant lost on appeal, in part because her evidence and testimony were “vague and imprecise.” The opinion serves as a reminder to work relentlessly to meet your burden when trying to win your case or when trying to get your charges dropped altogether.

Facts of the Case

In the case before the Appellate Division, the defendant pled guilty to robbery in the first degree, and the court issued a protective order in favor of the victim in the case. Apparently, during the robbery in question, the defendant had physically harmed the victim, including by pouring toxic household cleaners on her body while she was pregnant. The court sentenced the defendant to nine years in prison.

The Defendant’s Appeal

On appeal, the defendant argued that she was a victim of domestic violence at the hands of a member of the same household at the time of the robbery. She argued that the domestic violence committed against her acted as a significant contributor to her own criminal behavior. The court should have considered this factor and sentenced her to less time in prison as a result.

New York Court Denies Defendant’s Request to Suppress Evidence of Drugs in Controlled Substance Case

October 15, 2024 | Peter Howard Tilem

In a recent drug case before the New York Appellate Division, Second Department, the defendant asked the court to reconsider the lower court’s denial of his motion to suppress the evidence that he was arrested in possession of. Originally, the defendant was convicted of criminal possession of marijuana and criminal possession of a controlled substance. When the defendant had initially asked the trial court to suppress evidence of drugs in his car that were recovered pursuant to a search warrant, the court had denied the motion without a hearing. Despite the defendant’s challenge of this decision, the higher court denied his appeal and affirmed his original convictions. The case serves as a reminder that, at times, officers have broad leeway to search private vehicles, which can lead to incriminating and frustrating results.

Facts of the Case

According to the opinion, officers searched the defendant’s car because the defendant’s brother pointed a firearm at several people after getting out of the car that the defendant was driving. Officers impounded the car, and they later obtained a warrant then searched the vehicle. At that point, the officers found ecstasy pills as well as marijuana inside the car. Facing criminal charges, the defendant filed a motion to suppress, and the court denied this motion without a hearing. The defendant’s case later went to trial, and a jury found him guilty as charged. The trial court then sentenced him to time in prison accordingly.

The Decision

On appeal, the defendant argued that the lower court should not have denied his motion. The higher court, however, disagreed. It was reasonable, said the court, for the officers to suspect that they might find evidence of criminal conduct in the vehicle. The vehicle was properly impounded as a result of the defendant’s brother’s pointing a gun at a group of people nearby. Continue reading

When Can a Police Officer Legally Frisk a Suspect in New York?

October 8, 2024 | Peter Howard Tilem

We have written extensively about the rights of citizens involved in street encounters with the police and the four tiers of intrusion based upon the level of suspicion that the police have. According to New York law, an officer may rightfully frisk a person when the officer has a “reasonable suspicion” that the person is armed and therefore that the officer is in danger. A recent drug case before a New York court put this law to the test, when a defendant appealed a lower court’s decision to deny his motion to suppress. The higher court, considering the defendant’s appeal, decided that the officer did not have grounds to suspect that the defendant was armed, siding with the defendant and reversing the lower court’s decision.

Basis for the Defendant’s Appeal

In New York, an officer with reasonable suspicion that a detainee is armed may, indeed, frisk the detainee. The officer must have knowledge of some circumstance that allows him to believe that his safety is threatened because the detainee is armed. These circumstances could include: the nature of the crime being investigated, the suspect’s behavior, and any bulges in the suspect’s clothing.

In the case on appeal, the defendant argued that when an officer stopped him for failing to use his turn signal, it was unreasonable for the officer to then pat him down several minutes into the traffic stop. During the frisk, the officer found PCP on the defendant’s person; the defendant was charged with (and later convicted of) criminal possession of a controlled substance.

Probable Cause in New York Drug Cases When an Officer Cannot Confidently Identify the Object “Changing Hands”

October 1, 2024 | Peter Howard Tilem

When a police officer suspects that he witnesses the exchange of drugs for sale, can he arrest a suspect even if he’s unable to confidently identify the object that changed hands? According to New York case law, the answer is yes. A recent case before the New York Appellate Division, First Department clarifies the analysis that answers this question, which in turn applies to suspects and defendants involved in cases revolving around the alleged sale of a controlled substance. The case marks an obstacle for defendants in these kinds of cases, but it is crucial for defendants to know where the law stands when involved in the alleged sale of a controlled substance.

Case Before the Appellate Division

According to the facts of the case, a police officer noticed a man standing outside of a hotel one evening, wandering around and “nervously looking around.” A few moments later, the officer saw the man start speaking with a woman that he knew had been arrested in the past for drug-related charges. At that point, he saw an object “change hands,” or go from one person to the other.

The officer arrested the defendant, and the defendant was charged and later convicted of criminal sale of a controlled substance in the third degree, as well as criminal possession of a controlled substance in the third degree. The defendant filed a motion to suppress, arguing the officer did not, in fact, have probable cause to arrest him in the first place. The trial court denied this motion, and the defendant appealed the trial court’s decision.