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judge with gavelNew York Criminal Lawyers know that Sentencing is one of the most critical aspects of any criminal prosecution. During this phase, the court will consider many different factors and determine the appropriate sentence for the defendant. There are many types of sentences from which a judge can choose, but in some cases, the judge is required to impose certain mandatory minimum sentences. As a recent appellate opinion shows, having a seasoned New York criminal defense lawyer by your side during sentencing can make all of the difference.

The facts of the case are as follows. The defendant was convicted of two counts of violent robbery in November 2010. In 1994, however, the defendant had been convicted of a class B violent felony assault in the first degree. Initially, the defendant was sentenced to probation regarding the 1994 conviction. Following a probation violation, however, he was resentenced to a prison term.

During sentencing regarding the 2010 charge, an issue arose regarding whether his 1994 conviction constituted a predicate violent felony offense for the purpose of sentencing him as a second-time violent felony offender regarding the 2010 convictions. More specifically, the court was asked to decide whether the date of the first sentence imposed for the 1994 crime in lieu of the date of the resentencing imposed for the 1994 crime should be used to determine whether the prior conviction fell within the 10-year look-back period specified in New York’s violent felony offender statute.

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White Plains law firm Tilem & Associates won a major Court victory yesterday when a Supreme Court Justice granted the firm’s application andforest-yin-1-169x300  issued a Temporary Restraining Order (TRO) against the Town of Greenburgh’s enforcement of its local law regulating massage establishments.   In 2015 the Town of Greenburgh, New York in Westchester County passed an ordinance which required massage establishments to obtain special permits from the Town in order to operate within the unincorporated part of the Town.  During consideration of the ordinance by the Town Board, the proposed legislation was not without controversy.  In fact the Town Board received a letter from the New York State Department of Education letting the Board know that licensed massage therapists were wholly regulated by the State of New York and were licensed by the State Department of Education and that the regulation by the State preempted any such regulation by the Town and unfairly burdened professionals licensed by the State.

Notably, the Greenburgh ordinance regulates licensed massage therapists not unlicensed massage therapists and requires those that are already licensed to obtain a Greenburgh License.  Also notably, the Greenburgh ordinance defines Massage, a term already defined in sec 7801 of the New York State Education Law.

Based upon the clear preemption of these regulations by New York State Law, the American Massage Therapy Association brought a lawsuit to invalidate the Greenburgh Law in 2016.   However, after a significant amount of litigation that lawsuit was dismissed on a technicality.  On September 29, 2016, Acting Supreme Court Justice Helen Blackwood ruled that “what appears to be a meritorious claim fails due to petitioners’ lack of standing.”  Standing is a legal principle that requires a litigant to demonstrate some injury before they can bring a lawsuit. Since neither the  American Massage Therapy Association nor an individual petitioner had been directly affected or harmed by the new law Judge Blackwood ruled that they could not maintain the original action.

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gavel and papers

As experienced New York criminal defense lawyers, we have seen many cases involving procedural errors. If you believe that your case involved a serious error or mistake that resulted in an improper conviction or determination, you can appeal the decision. To file a proper appeal, however, there are certain steps that you must take to preserve your rights and to ensure that your appeal will be heard. A recent New York appellate opinion discusses some of the requirements involved in making an appeal.

The background of the case involves a temporary protection order issued against the defendant in 2012. The defendant was arraigned on charges involving trespass and disorderly conduct involving a protest that she attended. The temporary order of protection was issued as a condition of bail and instructed the defendant to stay away from a certain military individual who sought the order. Four months later, the defendant was arrested again involving another protest on the ground of violating the temporary order of protection.

At trial, the defendant was convicted of criminal contempt in the second degree and acquitted of the disorderly conduct charge against her. The proceeding was conducted at a court where a stenographer is not present and where no court transcript is maintained. The trial court pronounced its sentence for the defendant’s conviction, and she appealed the same day. The defendant’s appeal documents did not include an affidavit of errors.

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Witness giving testimonyThere are a wide variety of issues that can be raised on appeal following a criminal charge and criminal sentencing. One of the issues that can be raised is ineffective assistance of counsel. In this type of appeal, which generally is raised not by an appeal but by a motion to vacate a conviction under CPL 440.10, the defendant is arguing that his or her attorney failed to render competent legal counsel and that this failure had a dispositive outcome in his or her case. As seasoned New York criminal lawyers, we understand how critical it is to provide clients with responsive, dedicated, and knowledgeable legal counsel.

A recent appellate opinion discusses when a conviction can be overturned for ineffective assistance of counsel. The defendant was accused of sexual abuse of a minor. At trial, the victim testified regarding the alleged abuse, stating that the abuse occurred for many years and that she had informed a number of individuals, including two officers, regarding the incidences. Following the victim’s testimony, the defendant’s counsel did not seek a limiting instruction from the court requesting that the minor’s statements regarding previous disclosures should not be considered in determining whether or not her testimony was true.

The prosecution called each of the individuals whom the victim had allegedly informed of the abuse. Defense counsel objected at each point at which the prosecution attempted to elicit an answer regarding what the victim disclosed to each witness. The prosecution then called a child sex abuse expert witness to testify regarding her examination of the victim. The expert witness testified that the victim had informed her of the abuse, and defense counsel objected. The doctor also testified that there were no physical signs of sexual abuse, but this conclusion did not foreclose the possibility that abuse occurred. In closing arguments, the prosecution stated that the victim should be believed based on her prior consistent statements and the testimony from each witness regarding the victim’s communications regarding the abuse. Ultimately, the defendant was sentenced to 25 years in prison. The Appellate Division affirmed the ruling, and the defendant appealed.

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man in handcuffsNew York has enacted certain laws that are designed to protect a defendant’s rights during criminal prosecutions and sentencing.  As seasoned New York criminal defense lawyers, we are well versed in these procedural rules and understand how important it is to ensure that our clients receive the fair and equitable treatment that they deserve. One of these rules requires that a defendant be present at the time a sentence against him or her is pronounced. A recent New York appellate opinion discusses whether this rule applies to the re-imposition of an original sentence.

The background of the case is as follows. The defendant entered a guilty plea to a manslaughter charge and attempted murder charge in 2001. As a result, he was sentenced to 25 years in prison for each count, to be served concurrently. At the sentencing hearing, the judge did not mention post-release supervision. It was also omitted from the sentence and commitment order.

In 1998, New York legislators voted to require a mandatory period of post-release supervision for any determinate state prison sentence. Failing to notify the defendant of this term during the plea provided a basis for a defendant to move to vacate a plea. Subsequently, New York courts concluded that any defendant who enters a guilty plea must be informed of the consequences, including the imposition of post-release supervision. The New York Legislature voted to enact an exception to this requirement. Under the law, the notification requirement only applied to determinate sentences imposed between September 1, 1998, and June 30, 2008. Furthermore, the notification must only be provided if a statutorily required PRS term was not pronounced verbally during a sentencing hearing. Stated differently, the law allows the court to re-impose an original determinative sentence without a term of post-release supervision.

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jailhouse interrogation roomNew York Criminal Defense Lawyers need to be aware of the  countless procedural rules that are absolutely essential to follow in order to ensure that you protect your rights at every step of a criminal investigation or prosecution in addition to the substantive law.  At Tilem & Associates, our diligent team of New York homicide defense lawyers has substantial experience and knowledge when it comes to these procedural rules and navigating the courtroom. A recent New York appellate opinion illustrates there are countless rules that apply to how law enforcement can secure a confession from a witness.

In the case, the defendant was convicted of murder, attempted robbery, and burglary. The defendant was not originally a suspect in the matter, but throughout their investigation, the detectives identified inconsistent information in statements that the defendant provided to the police. The police brought the defendant in for questioning, which lasted for several hours during the course of three days. The defendant implicated two other individuals in the crimes and ultimately confessed to murdering two victims, ages 21 and 18 respectively, who were siblings and who lived together in an apartment in Queens.

The events giving rise to the murders involved one of the victims phoning the defendant, who was her ex-boyfriend, and asking for help. The authorities were eventually called to the apartment, where the defendant was waiting. The detectives collected a broad spectrum of evidence from the scene of the crime and conducted multiple interviews of persons related to the incident who potentially had information. The defendant was one of the people who were initially interviewed, even though he was not listed as a suspect at first. By the end of the investigation, he was charged with six counts of murder, among other things.

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lawyers in courtEnsuring that you have the right attorney handling your claim and representing your interests is critically important. At Tilem & Associates, our seasoned team of New York gun crime lawyers has handled countless matters involving criminal investigations and prosecutions. This means we not only feel confident in the courtroom but also understand the many different procedural and substantive aspects of your matter. As a recent New York appellate opinion demonstrates, it is essential to ensure that you have addressed all potential procedural issues as soon as possible.

The background of the case is as follows. The defendant brandished a firearm in front of a friend that was secured in his waistband and threatened to use it on another individual. He then went to a park, where he was seen near a specific individual. The police arrived, and the defendant and the individual fled in separate directions. Multiple witnesses testified to seeing defendant throw the gun, which was later located by the police. The police also found drugs, which the other individual admitted to owning. The defendant was charged with criminal possession of a weapon and resisting arrest. The other individual was charged with drug possession.

A public defender was assigned to the defendant’s claim. Roughly eight months later, the prosecution provided evidence showing that another public defender represented the other individual on his criminal charges stemming from this same set of facts. The attorney for the defendant stated that he intended to use the other individual as a potential witness for the defense before he learned about the potential conflict of interest. The defendant indicated that he wanted the public defender to continue representing him even though the attorney indicated that it may not be ethical for him to do so because another attorney in his office represented the other individual.

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Refusing to take a chemical test in New York can come with very serious consequences.  For example, a motorist who refuses a properly requested best-dwi-attybadgebreath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case.  If a person has prior alcohol related incidents, the period of revocation can be much longer, even life.  Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process.  In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked.  In New York the criminal case, the DWI, and the refusal follow two different tracks.  The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV.  In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted  a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal.  He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.

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Experienced DWI attorneys understand the potential errors associated with breath test machines even when calibrated and functioning properly. ignition-interlock However, recently a New Jersey State Police Sergeant assigned as a coordinator in the Alcohol Drug Testing unit has been arrested for skipping a step in the recalibration of breath test machines and falsifying records to certify that he performed the required check.  Specifically, the Sergeant is alleged to have skipped the temperature check while re-calibrating the machines and then falsely certifying that he performed the check.  The Sergeant was responsible for calibrating breathalyzers in Middlesex, Ocean, Monmouth, Union and  Somerset counties over a period of seven years and State officials have identified well over 20,000 DWI cases that could be affected by this arrest.  This arrest comes on the heels of a Police lab technician having been accused of faking a test in a Marijuana case last December.  That disclosure put into question almost 15,ooo cases.

The issue with breath tests is even more acute than drug cases because generally the police do keep the drugs that were tested for a period of time even after a conviction and so those drugs are available to be retested.  However, when you give a breath sample, no part of the sample is maintained for retesting and therefore the momentary reading from the breath machine plays a crucial part in the case.  In addition, in most drug cases the issue is the presence or absence of a controlled substance and the total weight of the substance.  The concentration of the controlled substance in the sample does not matter.  In DWI cases, however, small differences in the percentage of alcohol detected in a breath sample can have a huge impact on the outcome of a case and can in fact impact whether charges are brought or not.

The issue of calibration goes to the heart of the accuracy of these devices and goes to the heart of the accuracy of what is often the key evidence in DWI cases.  For example, body temperature can affect the breath reading and as experienced DWI lawyers understand a person with a fever can have an artificially high read on a breath test.  Therefore, of course, the temperature of the simulation solution during a re-calibration can be critical. The problem is compounded by the substantial weight given to the results of these machines by prosecutors, courts and even jurors and at the same time manufacturers of breath machines attempt to keep the inner workings of these machines a secret, treating the inner workings of the machine as a trade secret.

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Empty emergency room In many situations, it is best to  seek guidance from an experienced New York criminal lawyer as early in the process as possible.  The authorities do not always have your best interests in mind, whereas a criminal defense lawyer can advise you of your rights at each step of the process. As we have discussed in prior blogs about cases such as DWI or crimes involving possession of guns marijuana or drugs seeking suppression of the evidence, may be a defendant’s best defense.    A well-established constitutional rule states that evidence obtained from unlawful searches and seizures cannot be used against the accused. As a recent criminal case demonstrates, whether you can successfully assert this defense can have a huge impact on your involvement in a criminal investigation. Continue reading