New York Criminal Attorney Blog — Published by White Plains, New York Criminal Defense Lawyers

New York Court Discusses Validity of Search Based on Defendant’s Admission to Possessing Synthetic Cannabinoids

July 3, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York drug case discussing the validity of the search that resulted in the discovery of narcotics. The case required the court to discuss the protections afforded by the Fourth Amendment to the United States Constitution and whether they necessitated suppression of the evidence seized by police.

Police must follow the requirements of the United States and New York constitutions when investigating crime and making arrests. If they fail to do so, or otherwise violate a defendant’s rights, any evidence they obtain cannot be used against the defendant at trial.

The Facts of the Case

According to the court’s opinion, the defendant was under investigation when he admitted to the police that he had synthetic cannabinoids in his home. Under New York law, the possession of synthetic cannabinoids was not illegal under criminal statutes, however, it was a violation of the State Sanitary Code. Relying on the defendant’s admission, police officers secured a search warrant to search the defendant’s home. Upon doing so, police recovered morphine tablets and brass knuckles, both of which are illegal to possess.

New York Court Holds Officer’s Observation of “Bulge” in Defendant’s Pockets Did Not Justify Search

June 28, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York burglary case involving the defendant’s motion to suppress the physical evidence that police recovered when they searched his pockets. Ultimately, the court concluded that the officer lacked probable cause to conduct the search, and the defendant’s motion was granted.

According to the court’s opinion, police received a call reporting a burglary in which a resident reported $5,500 was stolen. About an hour after the call, an officer came upon the defendant, who matched the description given to police, which was a person “in dark clothing.” The officer approached and asked the defendant for his identification. Initially, the defendant turned and walked away, but later approached the officer. According to the officer, the defendant put his hands into his pockets. The officer asked the defendant to remove his hands and place them on his head, and the defendant complied. The officer then noticed bulges in each of the defendant’s pockets. The officer patted the defendant down, and could not discern what the bulges were, although he could tell they were not weapons. The officer then reached into the defendant’s pockets and removed a large amount of cash. The defendant was arrested and charged with burglary.

The defendant filed a motion to suppress the cash, arguing that the police officer did not have probable cause to reach into his pockets. The lower court granted the defendant’s motion, and the prosecution appealed.

Court Upholds New York Assault Conviction Over Defendant’s Challenge to the Sufficiency of the Evidence

June 22, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York assault case discussing the required elements of “assault in the first degree.” The case required the court to determine if the prosecution presented legally sufficient evidence to sustain the conviction. The court ultimately held that the prosecution met its burden and upheld the defendant’s conviction.

The Facts of the Case

According to the court’s opinion, the defendant was involved in an altercation with two other men. During the altercation, the defendant allegedly struck both men in the head with a hard metal object. One of the men suffered serious injuries, and was transported to the hospital where he underwent a craniotomy and received 40 staples to close the injury to his head. A witness caught the entire incident on video.

The defendant was charged with assault in the first degree, attempted assault of the second degree, and criminal possession of a weapon in the third degree. At trial, a jury convicted the defendant and he was sentenced accordingly. On appeal, the defendant claimed that the evidence presented at trial was legally insufficient to sustain his conviction. He also claimed that there was insufficient evidence to prove that his actions were the cause of the victim’s injuries.

New York Court Discusses the Right to Appeal after Pleading Guilty

June 16, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York burglary case involving the lower court’s decision that the defendant was not able to appeal his conviction. The case involved two separate burglaries, and the defendant’s motion to suppress evidence that related to one of those burglaries.

The Facts of the Case

According to the court’s opinion, a police officer, acting on a tip, stopped the defendant based on suspicion that he was involved in a prior burglary. The officer asked the defendant to remove his hands from his pockets, noticing that the defendant had something in his hands. The officer asked the defendant to open his hands, and discovered that it was a small bag of jewelry. The defendant claimed he bought the jewelry from a nearby yard sale. However, when the officer took the defendant to the yard sale to confirm his story, the homeowner denied ever owning the jewelry. The defendant was eventually arrested for two prior burglaries.

The defendant filed a pretrial motion to suppress, arguing that the officer lacked reasonable suspicion or probable cause to stop him. Because of this, the defendant claimed that the jewelry should have been suppressed. The court denied the defendant’s motion, and the defendant pleaded guilty to one count of burglary. Importantly, the count of burglary that the defendant pleaded guilty to was not the one related to the jewelry.

New York’s Highest Court Finds Non-Citizen’s Plea Cannot be Vacated, Finding Notice Was Provided During Arraignment

June 8, 2020 | Tilem & Associates

New York Criminal Lawyers need to closely examine the immigration consequences of any plea by a non-citizen. New York’s highest court recently decided a case in which it found that a lawful permanent resident could not vacate his conviction for failure to receive advice of potential immigration consequences because he was given a notice during his arraignment discussing the potential immigration consequences for non-citizen defendants. Under New York law, if a criminal defendant is not a U.S. citizen, a court must notify a defendant that “he or she may be deported as a consequence of a guilty plea to a felony.”

In the case before the New York Court of Appeals, the defendant was arrested and charged with burglary in the second degree in 2011. The defendant was born in the Dominican Republic but was a lawful permanent resident of the United States. During the defendant’s arraignment, the state filed a “Notice of Immigration Consequences” with the court and gave a copy to defense counsel. The notice stated in English and Spanish that if the defendant was not a U.S. citizen, a guilty plea, conviction after a trial, or youthful offender adjudication “subjects you to a risk that adverse consequences will by imposed on you by the United States immigration authorities,” including removal from the United States. The notice advised defendants to “consult with your attorney for advice specific to your circumstances.” The notice further advised that “deportable offenses” included “burglary, robbery, receipt of stolen property, or another other theft-related offense” deemed an aggravated felony under immigration law. It also stated that if the crime was an aggravated felony, or if you have not been a lawful permanent resident for at least five years with at least seven years’ continuous residency and the crime is a deportable offense, there would be additional consequences, including ineligibility for cancellation of removal.

Eight months later, the defendant pleaded guilty to attempted burglary in the second degree. During the plea colloquy and allocution, the court did not discuss potential immigration consequences and the defendant did not ask about potential immigration consequences. He was sentenced to five years of incarceration and three years of post-release supervision. Four years later, the defendant filed a motion under CPL 440.10 to vacate his conviction based his attorney’s failure to inform him of potential immigration consequences as a result of his plea. The defendant claimed that his attorney did not inform him of the effects of pleading guilty on his immigration status and that he was not told that he could lose his lawful permanent resident status.

New York Gun Rights Attorneys Announce New Pre-Paid Legal Service for New York Gun Owners

June 2, 2020 | Peter Howard Tilem

Tilem & Associates, New York’s premier law firm for gun owners is pleased to announce the creation of a new pre-paid legal program, NY Tac Defense, for New York gun owners which includes legal representation for self-defense cases and red flag (ERPO) cases for enrolled clients. Clients enrolled in the NY TAC DEFENSE can pay either a low monthly rate of $38.50 per month or can enroll in a discounted annual plan which is $385 for the year and is the equivalent of getting two months free.

Peter H. Tilem, the owner of Tilem & Associates, PC, spent 10 years in the New York County District Attorney’s Office where he was assigned to work on a variety of cases which included gun cases and homicides. Since entering private practice Mr. Tilem has represented a large number of gun owners and has been involved in many justification or self-defense cases.

As of May 2018, several insurance programs, including NRA Carry Guard and a USCCA (United States Concealed Carry Association) program were being offered in New York but were subsequently alleged to be violating New York insurance regulations. Both programs and others have since pulled out of the New York market. The NY TAC Defense Program is a pre-paid legal product that allows clients to retain the firms services and pre-pay the legal services so that if they need to hire a lawyer for a self-defense shooting the client will not need to come up with a large lump sum retainer of $50,000 or more to retain a law firm. It is not insurance and therefore does not indemnify against any losses. It is simply an opportunity to retain a lawyer in advance.

New York Court Suppresses Gun Found Following Traffic Stop

May 31, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case, reversing a lower court that found the defendant’s motion to suppress lacked merit. In holding that the defendant’s motion should have been granted, the appellate court explained that the defendant’s conduct failed to provide the officer with probable cause to search the vehicle without a warrant.

The Facts of the Case

According to the court’s opinion, a police officer saw the defendant make a left turn without using a signal. As the officer initiated the traffic stop, the defendant pulled into a driveway. The defendant initially got out of the vehicle, but the officer told him to get back inside. The defendant was unable to open the window, explaining to the officer that it was broken. Eventually, the defendant moved to the passenger side, opened the door, and fled.

Once the officer caught the defendant, the defendant explained he ran because he had a warrant for his arrest. The officer went back to the defendant’s car, noticing the smell of marijuana. The officer looked through the car, finding small baggies and a substance that he believed was crack cocaine. The officer then obtained a warrant to fully search the car. Upon searching the vehicle, the officer found a semi-automatic handgun.

Can a New York Police Officer Assume the Person Driving a Car Is the Registered Owner?

May 25, 2020 | Peter Howard Tilem

Earlier this month, the United States Supreme court issued a written opinion in a criminal law case discussing an issue that will become very important in many New York drug possession and firearms cases. The case involved the question as to whether a police officer can reasonably assume that the person who is operating a vehicle is the registered owner of that vehicle. While this inquiry may seem like an unimportant one, in reality, it will have a major impact on motion practice and suppression hearings across the country.

The Facts of the Case

According to the court’s opinion, a sheriff deputy ran the license plate on the back of a pick-up truck to find that the registered owner had a revoked license. The deputy pulled the vehicle over, assuming that the registered owner was driving the vehicle. When the deputy discovered that the defendant was indeed the one driving, he cited the defendant.

The defendant filed a motion requesting to suppress all the evidence gathered from the stop, arguing that the deputy lacked reasonable suspicion when he decided to pull the defendant over. The trial court granted the defendant’s motion, but the appellate court reversed. On appeal to the state’s high court, the case was again reversed, this time in favor of the defendant. That court held that the deputy was acting on a “hunch” when he assumed that the registered owner of the car was the one who was driving it. The prosecution appealed to the United States Supreme Court.

New York Court Finds Inexperienced Officer Lacked a “Founded Suspicion” to Stop, Question, and Search Defendant

May 19, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun possession case discussing whether the arresting officer had a “founded suspicion” that there was criminal activity afoot. Ultimately, the court held that the defendant’s motion to suppress the firearm that was found on him should have been granted, because the arresting officer approached, stopped, questioned and subsequently searched the defendant without sufficient reason.

The Facts of the Case

According to the court’s opinion, the defendant was out walking his dog in an area known to be an “open air drug market” when he was approached by a police officer. That night, the temperature was about 40 degrees, and the defendant was wearing a mask that covered part of his face. The officer, who had only been on the force a few months and was working underneath a more experienced officer, pulled his vehicle in front of the defendant’s line of travel, got out of the car, and approached the defendant to ask him why he was wearing a mask. The defendant responded that he was walking his dog.

At this time, the more experienced training officer asked the defendant what was in a bag that he was carrying. The defendant responded that it was “weed.” The arresting officer then frisked the defendant and found a gun. The defendant filed a motion to suppress the gun, arguing that the arresting officer lacked reason to stop and question him, as well as to conduct the pat-frisk that led to the discovery of the gun.

Supreme Court Issues Opinion Impacting New York Defendants with Prior Drug Convictions

May 13, 2020 | Peter Howard Tilem

As we reported in February, the Supreme Court heard argument on a drug case that will likely have significant consequences for many facing New York gun charges. Now, the United States Supreme Court issued a written opinion in the case. Specifically, the case required the Court to interpret the provision of the Armed Career Criminals Act (ACCA) imposing mandatory sentences for those who are convicted of a gun offense after having previously been convicted of at least three drug offenses.

The ACCA seeks to impose escalating punishments for the possession of a firearm, based on a defendant’s prior record. For example, if a defendant is convicted of a gun offense, and has three prior “serious drug offenses,” the defendant is subject to a mandatory minimum sentence of at least 15 years. Of course, not every state’s laws are written the same way, and this requires federal courts to determine whether a drug conviction should be considered a “serious drug offense” under the ACCA.

The Facts of the Case

According to the Court’s opinion, the defendant pleaded guilty to a firearm offense and, based on the defendant’s six prior cocaine-related convictions, he received a sentence of 15 years’ incarceration. On appeal, the defendant challenged the lower court’s finding that the six offenses qualified as “serious drug offenses” under the ACCA.