ATTORNEY ADVERTISING

Published on:

As Second Amendment attorney Peter H. Tilem reported in a blog on April 24, 2016, New York and New Jersey’s outright ban on stun guns and tasers were unconstitutional.  stungunNow today, a Federal District Judge in upstate New York confirmed that opinion and enjoined the New York State Police from enforcing New York Penal Law sec 265.01 (1) as it applies to “Electronic Dart Guns” and “Electronic Stun Guns.”  The case entitled Avitabile v. Beach was decided earlier today by US District Judge David N. Hurd of the United States District Court for the Northern District in New York.  While the case is not necessarily binding in New York City, the case applies the U.S. Supreme Court ruling in Caetano v. Massachusetts, which struck down the Massachusetts state ban on stun guns.

The issue actually began with the famous Second Amendment Case of Heller which was decided in 2008.  In knocking out a ban on handguns in Washington DC, the US Supreme Court in Heller ruled that the Second Amendment applied to “bearable” arms.  The Caetano decision, in knocking down a stun gun conviction in Massachusetts, made it very clear that a stun gun was a bearable arm as that term was used in Heller.

Besides being illegal, bans on stun guns and tasers are inherently illogical.  All states permit the possession of handguns to a degree.  Even New Jersey and New York City which effectively ban the possession of handguns outside the home, permit handgun possession in the home, with the appropriate license (in New York).  However, prior to today’s ruling, New York and New Jersey have a complete and total ban on the civilian possession of stun guns and tasers which are non-lethal.  This complete and total ban includes both possession inside the home and outside the home and does not even permit possession with a license.

Published on:

Self defense cases in New York can be particularly challenging and require a skilled and experienced attorney.  In New York self defense is referred to the defense of justification.  Recently, a state appellate court issued an opinion in a New York assault case discussing the defense of justification. Ultimately, the court reversed the defendant’s conviction for assault in the first degree and ordered a new trial based on the trial court’s failure to instruct the jury appropriately.

The Facts of the Case

According to the court’s opinion, the defendant was arrested and charged with attempted murder and several assault charges after he “slashed his roommate across the neck and stabbed him in the abdomen with a large kitchen knife.” Apparently, the alleged assault occurred in the men’s apartment during a physical altercation.

Evidently, the defendant presented evidence suggesting that he was justified in his actions. It is unclear from the court’s opinion the exact nature of the justification defense, but it was most likely self-defense. At the conclusion of the evidence, the court instructed the jury on each of the charged offenses, as well as the defendant’s justification defense.

Continue reading

Published on:

As a general rule, police officers cannot enter a home without  a warrant. While exceptions do exist, they are somewhat rare and are better left for another blog post. Once a police officer obtains a search or arrest warrant, the officer must comply with all procedural guidelines governing the execution of warrants. If officers disobey these guidelines, any evidence seized as a result of the search or arrest may be deemed inadmissible by the court.  In addition, a defendant can challenge the issuance of the search warrant in certain circumstances.

One issue that frequently comes up is when police officers can forcefully enter a home to execute a search or arrest warrant. Generally speaking, if a valid warrant is issued, officers may approach the house named in the warrant and enter that home. However, under New York law, a police officer must first knock, announce their presence as police, and give the occupant an opportunity to answer before entering forcefully. This is known as the “knock and announce rule.”

New York Laws sections 690.50 (search warrants) and 120.80 (arrest warrants) provide for the specific procedures that must be followed when executing a warrant. Both statutes require an officer serving a warrant knock and announce their presence, and both statutes also contain exceptions when an officer is permitted to forcefully enter a home without first complying with the knock-and-announce rule.

Continue reading

Published on:

Earlier this month, a New York appellate court issued a written opinion in a New York assault case involving a motion to suppress the weapon that the defendant allegedly used to assault the complaining witness. The case required the court to discuss a police officer’s legal authority to approach a citizen to investigate a potential crime. Ultimately, the court found that each of the officers’ actions were justified, and affirmed the denial of the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, police officers were in the area of a recent shooting when they saw the defendant and another man “huddling” together. Evidently, there were no other people out on the street around the two men, and the defendant’s hand was in his pocket.

The police were operating without a description of the alleged shooter, and continued to the location of the shooting. After arriving, the officers turned around and began to approach the two men whom they had just passed. As the officers approached, they started walking away at a “high rate of speed.” While the defendant and his companion were walking away from the officers, the officers watched as the defendant discarded an object into an alleyway. The police officers detained the defendant without arresting him while one of the officers went to see what the defendant discarded. Once it was determined that the defendant had dropped a gun, the police arrested the defendant.

Continue reading

Published on:

As this blog has discussed on several occasions, New York law provides that evidence which is obtained in violation of a person’s constitutional or statutory rights cannot be admitted in a criminal trial against that person. Most often, a motion to suppress evidence refers to physical evidence such as a gun or drugs or confessions or statements made by the person arrested. However, in many cases involving charges of burglary, robbery, or other offenses in which identification may be an issue, there may be a valid motion to suppress the identification of the defendant.

Identification can be an issue in any New York criminal trial. However, identification issues are most common in New York theft crimes. After a crime is committed, police will conduct an investigation. This includes visiting the scene of the alleged crime and interviewing witnesses. While questioning a witness, a police officer may obtain information that leads them to another witness, who the officer will then interview, and so on. This may eventually lead to an arrest, at which point there may be a formal or informal identification conducted.

There are various types of identification procedures. Which procedure a police officer or detective uses depends largely on the type of crime, the nature of the information leading up to the identification, and the time that has elapsed between the alleged crime and the identification. A few examples of identification procedures include:

Continue reading

Published on:

Evidence of someone’s prior acts is generally not admissible in a New York criminal trial. However, under The Guide to New York Evidence Sec. 4.21, evidence of past “crimes, wrongs, or other acts” may be admissible under certain limited situations.

Rule 4.21 specifically prohibits the introduction of prior-act evidence when it is being used to show that the defendant acted in conformity with that act, or if it is being used to show that a person had a propensity to act in a certain way. However, when the evidence is being offered for other reasons, such as to show someone’s motive, intent, opportunity, preparation, the existence of a common plan or scheme, knowledge, identity, or to establish the absence of a mistake, the evidence may be admitted if it is more probative than prejudicial.

Judges are left with the discretion to determine if prior-act evidence should be admitted. In a recent New York domestic violence case, an appellate court discussed Rule 4.21 and its application.

Continue reading

Published on:

Generally speaking, hearsay evidence is not permitted to be considered by the jury in a New York criminal trial. However, there are certain exceptions where a hearsay statement may be properly admitted.hearsay-clipart-canstock18050425

What Is Hearsay?

The concept of hearsay can be complex to grasp, but essentially a hearsay statement is one that was made by a party who is not present to testify in court. A statement is only hearsay if it is testimonial, meaning it is being used for “proof of the matter asserted.” Thus, if the statement is not being used to prove that which was said, it will not be considered hearsay.

Why Is Hearsay Prohibited?

The rationale for the hearsay exclusion is based on the fact that the party who made the statement is not in court to explain what was meant and is not subject to cross-examination. For example, sarcasm may not come across when a statement is relayed at a later date through a third party. In criminal trials, there is also the concern that the person making the statement cannot be cross-examined, depriving the defendant of their confrontation rights under the Confrontation Clause of the Constitution.

Continue reading

Published on:

Recently, a state appellate court issued a written opinion in a New York DWI case raising the issue of whether a trial court can require a defendant to pay for the costs of a device that is used to measure the defendant’s alcohol intake. Ultimately, the court concluded that requiring a defendant to pay these costs is permissible; however, a court must attempt to fashion a “reasonable alternative to incarceration” for those defendants who legitimately cannot afford the costs.

The Facts of the Case

According to the court’s opinion, the defendant was convicted of a New York driving while intoxicated offense. As a result, he was sentenced to six months’ incarceration, to be followed by a term of probation. As a condition of the defendant’s probation, the court ordered the defendant to wear and pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet.

Evidently, the defendant made a few payments for the bracelet but then stopped paying. The company that monitored the bracelet eventually removed it. The defendant claimed that he had suffered an injury that prevented him from working, and that he could no longer afford to pay for the bracelet. The court held a hearing, finding the defendant in violation of a condition of his probation and sentenced him to one to three years in jail.

Continue reading

Published on:

The New York State Sex Offender Registration Act (SORA), has added a very serious consequence to the commission of many crimes.  The requirements of SORA apply to both New York State convictions and to conviction from other states, if the convicted person is or becomes a New York resident.  Earlier this month, a state appellate court issued an opinion in a case discussing whether a defendant who was convicted for the murder of his 13-year-old sister in Virginia was required to register under the New York State Sex Offender Registration Act (SORA). Ultimately, the court concluded that registration was not required based on the fact that the defendant was not required to register as a “sex offender” in Virginia.

The Facts of the Case

According to the court’s opinion, the defendant was convicted for the murder of his 13-year-old sister in Virginia back in 1989. It was undisputed that there was no sexual element involved in the killing. However, as a result of that conviction, the defendant was required to register for life under Virginia’s Crimes Against Minors Registry Act, which required registration for numerous offenses, including some that were not sexual in nature.

After serving his sentence, the defendant moved to New York. Upon arriving, the Board of Examiners of Sex Offenders was notified and required the defendant to register as a Level III offender. The defendant challenged the registration requirement.

Continue reading

Published on:

A police officer cannot stop a pedestrian or motorist for just any reason. New York criminal law requires that an officer possesses reasonable suspicion before initiating a pedestrian stop or motor-vehicle stop. Specifically, the officer must have a reasonable suspicion that “a crime has been, is being, or is about to be committed.” An officer’s reasonable suspicion cannot rest on a “hunch,” and must be supported by articulable facts.

In a recent New York gun crime case, a state appellate court issued an opinion discussing the concept of reasonable suspicion and whether the officer that arrested the defendant for a gun while on a public bus possessed such suspicion when he asked the defendant if he had a gun. Ultimately, the court concluded that the officer did possess a reasonable suspicion and affirmed the denial of the defendant’s motion to suppress.

The Facts

According to the court’s opinion, police officers responded to a call for a shooting. Upon arrival, police located a gun-shot victim, who described the alleged shooter as a male wearing all black clothing, including a black hoodie. The victim also told the officers that the alleged shooter got on a bus at a nearby stop.

Continue reading