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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.

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New York speedy trial statutes can be very effective tools in fighting New York criminal cases ss we have discussed in several blogs.  Earlier this month, the New York Court of Appeals issued an opinion  dismissing a New York homicide case and discussing the defendant’s right to a speedy trial. Ultimately, the court concluded that the six-and-a-half year wait between the defendant’s arrest and his eventual guilty plea violated his constitutional right to a speedy trial. As a result, the court reversed the defendant’s guilty plea and dismissed the indictment.

Concertina WireThe Facts of the Case

The defendant, along with his co-defendant, was alleged to have shot and killed a 15-year-old. The defendant was the one who allegedly pulled the trigger, and the co-defendant acted as an accomplice. Both the defendant and his co-defendant were arrested shortly after the victim’s death, on May 28, 2008. The defendant was held without bail.

The prosecutor hoped that the co-defendant would testify against the defendant and delayed the trial several times while trying to work out a deal with the co-defendant. However, when asked at a later date, the co-defendant explained that he would never testify against the defendant, and he did not consider the offer seriously.

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Experienced criminal attorneys have long been aware of the inherent unreliability of cross racial identification.  Cross-racial identification is the eyewitness identification of a suspect in a  criminal case when the witness is a different race than the suspect.  Recently, an appellate court issued a written opinion in a New York robbery case involving the defendant’s challenge to the lower court’s refusal to instruct the jury on the unreliability of cross-racial identifications. The appellate court determined that the lower court was in error when it refused the defendant’s request, reversed the defendant’s conviction, and ordered that a new trial be granted.

The Facts of the CaseHandcuffs

The defendant was arrested after two white men reported being robbed at knife point. The facts of both robberies were similar, in that the alleged perpetrator approached the victim, asked the time, and then grabbed the victim’s cell phone when they pulled it out to see the time. Each of the victims told police that the man who had robbed them was African-American and about six feet tall.

After his arrest, the defendant was placed in a line-up with several other individuals. One of the victims picked the defendant out immediately. The other victim was unsure until the police instructed all of the men in the line-up to ask “what time is it?” at which point the defendant was identified. There was no physical evidence tying the defendant to the crimes.

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A client facing 7 charges including two counts of DWI, two counts of driving without a license and several traffic DWI-1-300x202infractions had all of those charges dismissed and instead plead to one count of disorderly conduct a no point violation in Rockland County last week.  The client who was charged in the Village of Sloatsburg was charged with two counts of Driving While Intoxicated under Vehicle and Traffic Law 1192 (3), two counts of Driving without a License under VTL 509, one count of failure to keep right in violation of VTL 1120 (a) and one count of failing to use designated lane in violation of 1128 (c) as well as improper plates under VTL 402(2).  In addition the client was charged separately in the Department of Motor Vehicles with Refusing to take a Chemical Test which in this case was a breathalyzer test.  The Refusal in the DMV was dismissed after a contentious hearing, as we have already reported.  Now we are please to report that all of the DWI and VTL charges have been dismissed as well.

The client, who had two prior convictions for DWAI (Driving While Ability Impaired by Alcohol) from 2007 and 2012 was facing a lifetime revocation of his driving privileges as a result of his prior record if he had either been convicted of any alcohol related driving offense such as DWI or DWAI or if he had been found to have refused a validly requested chemical test.

The victory came after we made an application  to the Court seeking suppression of inculpatory statements or in the alternative asking the Court to hold an evidentiary hearing on the issues.  During the hearing during my cross-examination of the arresting officer it seemed unlikely that the officer was telling the truth.  Some of the arresting officer’s answers seemed improbable and in some cases inconsistent with sworn statements made in his paperwork.  In an attempt to verify the arresting officer’s story I asked the officer about any electronic recordings of the incident.  The following colloquy occurred:

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All defendants in New York criminal cases enjoy the right to have the assistance of competent counsel at all critical stages of the case against them. In a recent New York homicide opinion, the New York Court of Appeals determined that a trial judge denied a defendant the right to counsel when the judge asked the defendant to consent to a DNA test without the presence of his attorney.

DNA TestThe Facts of the Case

The defendant was arrested and charged with homicide. At some point in the police investigation, biological evidence was located in the apartment where the homicide occurred. In an attempt to match the sample discovered in the apartment to the defendant, the prosecutor filed a motion to obtain a sample of the defendant’s DNA.

At the time the prosecutor made the request, the defendant was represented by counsel. However, shortly thereafter, the court excused counsel from the case. Later, the judge called the defendant in to discuss the DNA test.

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