New York Criminal Attorney Blog

New York Court Rules that Lower Court Reasonably Denied Defendant’s Motion to Suppress

January 16, 2025 | Peter Howard Tilem

In a recent gun case before the New York Appellate Division, First Department, the defendant asked the court to reconsider the trial court’s denial of his motion to suppress. After reviewing the defendant’s argument, the higher court disagreed, ultimately concluding that the police officer searching the defendant’s bag was within his rights when he searched the bag and found a firearm.

Facts of the Case

According to the opinion, local officers received a 911 call describing an individual with a firearm at a nearby gas station. Officers arrived at the station and immediately saw the defendant, who matched the suspect’s description. When the officers told the suspect to remain still, the suspect began fleeing the scene. They handcuffed the suspect then searched his bag, noticing that the backpack felt particularly heavy. The officers searched the bag and found a gun. The defendant was later charged with criminal possession of a weapon, and a jury found him guilty as charged.

The Decision

On appeal, the defendant argued that the trial court should have granted his motion to suppress the gun, claiming that the police search of his back pack was an unconstitutional search. The higher court, though, noted several parts of the interaction between the officers and the defendant that warranted their search of his bag. To start, the defendant matched the description of the suspect in the 911 call. Also, the defendant immediately ran when the officers spoke to him. Lastly, the 911 call had come in only a couple of minutes before the officers picked up the bag, which made it reasonable for them to believe the gun might have been inside the bag.

The Emergency Doctrine as Reason for a Police Officer to Search Private Property

January 9, 2025 | Peter Howard Tilem

In a recent New York gun case, the Court upheld a warrantless search of a defendant’s bag. Under New York law, when a police officer does not have prior approval from a judge, the officer is still allowed to search and seize a person’s private property under certain limited circumstances. One of these situations is when the officer has a reasonable basis to believe that there is an emergency, and that a search or seizure is necessary to quickly protect the public from harm. Courts can vary on what it means for an officer to have this “reasonable basis” to believe an emergency exists.

Case Before New York Court

In a recent case before the Supreme Court of New York, First Department, the defendant argued that a police officer unreasonably searched his personal bag. The officer had found a weapon in the bag, and the defendant later faced charges for and a conviction of criminal possession of a weapon. The defendant’s argument on appeal centered on the fact that the officer did not have a basis to search his private property, given that he had not given the officer permission and that the officer had not obtained a warrant from a judge. The search, argued the defendant, was therefore unreasonable and an infringement on his constitutional rights under the Fourth Amendment.

The Emergency Doctrine

The court disagreed with the defendant, ruling instead that the officer could indeed search the defendant’s bag under New York’s emergency doctrine. There were several reasons the officer had a “reasonable basis” to believe there was an emergency: the officer was responding to a nearby radio call indicating a suspect matching the defendant’s description had a gun; a woman nearby was yelling that the defendant had a gun; and the defendant fled the scene when the officer approached.

What Factors Does a New York Court Consider in Applying the Emergency Exception to a Warrantless Search?

January 2, 2025 | Tilem & Associates

It is well-established in the United States that individuals have a constitutional right to privacy in their homes. Experienced New York criminal defense lawyers screen cases for illegal searches and seizures. Under certain circumstances, though, police officers can obtain warrants from a court and search a private dwelling as part of a criminal investigation. In general, without having obtained a warrant, officers are not allowed to search an individual’s home. There is, however, an exception. In emergency situations, officers are allowed to go into a person’s private residence without a warrant.

Six Factors to Apply

What is an emergency situation? Case law in New York says that officers should consider the following six factors when deciding whether to enter a home without a warrant: the violent nature of the alleged crime; the possible involvement of firearms; the likelihood that a crime has occurred; whether the suspect might be inside the home; the likelihood of the suspect escaping; and the possibility of a peaceful entry.

Ideally, an officer will weigh these factors before entering a home without a warrant. If (and only if) the six factors cause an officer to reasonably believe that an emergency exists, that officer can enter a private dwelling without a warrant. Because an officer will likely not be weighing each factor carefully during what the officer believes to be an emergency, it is the trial court’s job to later review these factors and determine whether the officer’s frame of mind lined up with the factors.

When Can a New York Police Officer Pull You Over for a Traffic Stop?

December 26, 2024 | Peter Howard Tilem

Most drivers are aware that under certain circumstances, a police officer is authorized to pull over vehicles and conduct a traffic stop. What does the law say, though, about what kind of situation allows the officer to legally initiate a traffic stop? Is a traffic stop only allowed if there is a major traffic violation, or do minor ones allow the stop as well?

New York Case Law

According to New York case law, an officer can initiate a traffic stop when that officer has “probable cause to believe that a driver has committed a traffic violation.” The officer uses the entirety of the circumstances to determine whether the driver has committed a traffic violation. The officer can observe any range of traffic violations, whether major or minor. The legal standard is that the officer must have probable cause, i.e. a reasonable basis, for believing that the driver at issue did in fact commit a traffic violation.

Crossing the Fog Line

In a recent case decided by New York’s highest court, the Court of Appeals, the defendant argued that when an officer pulled him over for swerving, the officer did not have probable cause to believe he committed a traffic violation (and therefore that the officer violated the defendant’s rights). In this case, police officers testified that they saw the defendant cross the fog line in the road three times within a tenth of a mile before they pulled him over under suspicion of driving while intoxicated.

The Importance of Credibility During Suspect Identification

December 19, 2024 | Peter Howard Tilem

Recently a juvenile who was adjudicated a Juvenile Delinquent in Family Court recently won an appeal. When a victim or witness makes an identification after a crime, the identification must be both credible and consistent. A recent case before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, goes to show just how important this credibility can be in a criminal case. The takeaway from the appellate case is clear: if you are named as a suspect or defendant, make sure your attorney challenges the identification process in any way that could be helpful to your case. With the right kind of challenge, you may be able to get your charges dropped completely.

Case Before the Second Judicial Department

In the appellate case, a complainant saw several black males riding bicycles, then a few moments later, he noticed that someone struck him from behind. The complainant was unable to see who hit him. He testified both that he had no idea who hit him and, inconsistently, that he had noticed the group of men behind him right before he was struck. The complainant further indicated both that he saw the assailants’ faces “for a little bit” and that he only saw the backs of the assailants’ heads.

New York Defendant Unsuccessfully Argues to Overturn Drug Convictions

December 12, 2024 | Peter Howard Tilem

Recently, a New York defendant in a drug case, appealed his convictions before the Appellate Division, Third Department. In his appeal, the defendant argued that his convictions were “against the weight of the evidence,” a very hard burden to meet given that the Court is obligated to give deference to the Jury’s evaluation of the credibility of the witnesses. Unfortunately, the appellate court disagreed with the defendant’s argument and affirmed the convictions and sentences imposed by the lower court.

Facts of the Case

According to the opinion, the state used two confidential informants to catch the defendant in the act of selling heroin. Prior to each controlled buy, the police searched the confidential informants in order to make sure they were not bringing drugs to their agreed-upon meetup with the defendant. After each controlled buy, the informants brought the heroin to the police officers that the defendant had sold them. Following the controlled buy operations, the police obtained a valid warrant and searched the defendant’s apartment. They found several incriminating items, including a scale, baggies and cutting materials, and glassine envelopes.

The defendant was charged with and later convicted of a) criminal sale of a controlled substances and b) criminally using drug paraphernalia. Following his convictions, he filed an appeal, arguing that his convictions were against the weight of the evidence.

Can a Police Officer Lie to Elicit a Confession from a Suspect in New York?

December 5, 2024 | Peter Howard Tilem

In a recent criminal case before a New York court, the defendant appealed her conviction for driving while under the influence of drugs. According to the defendant, the police officer lied to her when he questioned her directly after the car accident she caused. This deception, she argued, was grounds for the resulting drug test results to have been suppressed by the trial court. The disagreed, citing New York case law explicitly stating that police officers are permitted to lie to suspects to get them to cooperate.

New York Case Law

According to case law in New York, “police are permitted to lie or use some deceptive methods” in order to encourage a suspect to cooperate. If the officer in question does not implicitly or explicitly threaten the suspect, it is lawful for the officer to use the coercive tactic of deception to encourage cooperation.

In the criminal case related to driving under the influence, the officer questioned the defendant because she had hit another vehicle with her car. It became apparent to the officer that the defendant appeared to be under the influence of some substance, and he told her that she might not be arrested if she took (and passed) a drug recognition examination. The defendant proceeded to take the exam, and she failed. In a subsequent motion to suppress, the defendant argued it was illegal for the officer to lie to her and tell her that she might not be arrested if she passed the test.

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.