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Recently, a New York appellate court issued a written opinion in a New York DWI case discussing the defendant’s motion to suppress evidence obtained during what could be characterized as a “wellness check.” Ultimately, the court held that the officer’s actions were justified, and denied the defendant’s motion.

The Facts of the Case

According to the court’s opinion, an officer was on routine patrol when he saw a truck parked along the side of the road with no one inside. The officer pulled up behind the vehicle, noticing that it was running. The officer then exited his car, approached the driver’s side door, and saw that the defendant was hunched over the wheel, asleep.

The officer tapped on the window, and after about 30 seconds, the defendant came to. The officer asked him out of the car several times, and on the third time, the defendant complied. During this time, the officer noticed that the defendant seemed intoxicated. Specifically, the defendant had “bloodshot, watery eyes, dilated eyes, slurred speech and a strong odor of alcoholic beverages emanating from the vehicle.”

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In most cases, driving while intoxicated (DWI) charges come after police notice a motorist driving erratically or otherwise violating a New York traffic law.  In other cases a person may be stopped at a DWI checkpoint.  After law enforcement pulls over a driver, they may notice signs of intoxication, such as the smell of an alcoholic beverage, flushed face, or impaired coordination or speech. After an arrest for a New York DWI, the defendant may argue a motion to suppress evidence of their intoxication based on an illegal stop. This often occurs in situations when a police officer approaches a stopped vehicle.

Under New York law, police officers have a broad authority to approach individuals and make inquiries about their identity or destination. However, when an officer’s inquiry becomes accusatory, extended, or focuses on a person’s potential criminality, the officer is no longer asking for information. Once an officer asks more directed questions, in a way that would lead the person to believe that they are under suspicion of wrongdoing, the officer’s inquiry must be supported by a founded suspicion that criminality is afoot.

In some cases, an arrest for DWI precipitates a stop for an unrelated traffic violation. For instance, an appeals court recently issued an opinion stemming from a defendant’s motion to suppress evidence obtained during a traffic stop. In that case, the officer approached the defendant’s vehicle after noticing that the vehicle was illegally parked at a bus stop. The defendant stated that he was waiting for someone and moved his vehicle. The officer then noticed that the defendant’s rear brake light was out. He stopped the vehicle and arrested the defendant for DWI.

An appellate court recently issued an opinion affirming aggravated assault charges against a New York criminal defendant. Using one accusatory instrument for two separate incidents, prosecutors charged the defendant with harassment in the second degree, and two counts of aggravated harassment in the second degree. The complainant alleged that the defendant threatened her daughter in one incident, and the second incident involved multiple phone calls from the defendant. Among other issues, the complainant contended that she recognized the defendant’s voice, and the calls made her fear physical injury to her and her daughter. The defendant pleaded guilty to an underlying charge of disorderly conduct, which was added to the pleading. However, on appeal, the defendant challenges the accusatory instrument’s facial sufficiency.

An accusatory instrument is a document that alleges a criminal defendant’s violation of a petty or criminal offense. Under New York case law, a valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to criminal prosecution. Although the law does not require the instrument to be the most precise, it must provide the accused with sufficient notice and details to prepare an adequate defense. A defendant’s guilty plea will not correct a jurisdictional defect created by a facially insufficient accusatory instrument. In this case, all of the counts in the accusatory instrument were equal to or higher than the uncharged violation the defendant pleaded guilty to. For a successful appeal, all of the defendant’s accusatory instrument charges would have to be facially insufficient. Moreover, because the defendant waived the right to be prosecuted by information, the accusatory instrument must be reviewed under misdemeanor complaint standards.

A person is guilty of second-degree harassment if they intend to harass another person followed by specified conduct, and the actor knows that the conduct will cause the other person to fear harm. Most of these charges stem from a threat and actions such as phone calls, texts, emails, and physical threats, or a combination of these behaviors. Here, the complainant’s accusatory statement was facially valid because :

Recently, an appellate court issued an opinion in a New York criminal defendant’s appeal, arguing that a trial court erred in denying his motion to suppress evidence found in his vehicle. According to the court’s opinion, police were involved in a high-speed chase with the defendant that ended when the defendant crashed his car into a marsh. Police arrested the defendant, and a private company towed his vehicle. Per the towing service’s protocol, the defendant’s vehicle was inventoried. During the inventory, employees discovered $10,000 worth of automotive tools in a nylon bag. The employees believed that the tools were stolen and contacted the police. An investigator was aware that a local automotive store was burglarized recently and noticed one of the drills inside the bag. The investigator walked around the vehicle and noticed other similar items in plain view. The police then obtained a warrant to search the vehicle, where they found numerous reported stolen items.

Before trial, the defendant requested to proceed pro se and suppress the evidence. The court granted the request and proceeded with a Mapp hearing. A Mapp hearing is relevant when a defendant contests the admissibility of physical evidence that law enforcement obtained during an illegal search. If a judge finds that the evidence was acquired illegally, the prosecutor cannot use the physical evidence obtained during the search against the defendant.

In this case, during the Mapp hearing, the officer testified that he ran the defendant’s license plate and discovered that his license and registration was expired. However, when he turned on his emergency lights, the defendant did not respond and then fled. After police detained the defendant, they noticed the items in the vehicle but did not seize any of the tools. The court concluded that the trial court properly denied the defendant’s motion to suppress. They reasoned that the arresting officer was permitted to run a license and registration check through the police database, even without suspicion of criminal activity. Moreover, the defendant’s failure to stop and then flee provided officers with probable cause to detain him.

Facial recognition is a widely-used technological device that uses cameras and artificial intelligence to identify facial features and track people. In some cases, facial recognition is a useful tool in identifying individuals, allowing them to enter buildings, computer systems, phones, and log in to accounts swiftly and safely. However, like many types of technology, facial recognition is not foolproof. The technology flaws can lead to misidentification and false New York criminal charges. It is essential that those facing criminal charges based on facial recognition technology consult with a New York attorney to discuss their rights and defenses.

The New York Times recently reported on another false arrest and incarceration based on an incorrect facial recognition match. The arrest arose when police accused a man of shoplifting candy and attempting to hit an officer with his car. Officers used facial recognition software, and identified the falsely accused man, even though he was over 30 miles away when the incident occurred. The man spent nearly two weeks in jail and spent approximately $5,000 in defense fees before the case was dismissed almost a year later. The man is suing the Woodbridge, NJ Police, prosecutor, and City, for violating his civil rights, based on his false arrest and imprisonment.

In the man’s case, police responded to a call about a person stealing items from the gift shop. When police approached the individual, he offered to pay for the items and provided officers with a fraudulent license, before running into his car and driving off. Police submitted the license photo to a state agency that runs the facial recognition software. The agency stated that they received a match to the falsely identified man. Although the man lived over a half an hour away, worked at a grocery store, and had limited similarities to the license photo-police arrested and charged him. This charge was particularly frightening for the man because of his history with the criminal justice system; if he were convicted, he would have received a long sentence. He recounted that he almost took the prosecutor’s plea deal out of fear. Fortunately, he was able to obtain proof that he was at a pharmacy when the incident occurred.

Recently, a state appellate court issued an opinion in a New York gun possession case, discussing the defendant’s claim that the lower court erred in failing to provide the jury with a requested instruction. Ultimately, the appellate court agreed with the defendant, awarding him a new trial.

The Facts of the Case

According to the court’s opinion, police received a call stating that a man was shot. Police arrived on the scene, and found the defendant, bleeding from the back of the neck. Police entered the apartment, and found two guns. One of the guns, a submachine gun, was in an open drawer.

Several officers testified, as did the defendant. The testimony of each of the witnesses varied; however, the prosecution claimed that the defendant gave different stories to the responding officers and hospital staff. The prosecution proceeded under the theory that the defendant constructively possessed the firearm.

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As we wrote in our blog on September 11, 2017, we were of the legal opinion that the Mossberg Shockwave was legal to own and possess in New York.  Our opinion in 2017 was based upon the statutory definitions of a firearm, a pistol and a shotgun in New York as well as the opinions of the New Jersey State Police, the Suffolk County Police, and the BATFE.  However, up until last week no Court case had ever confirmed the opinion that Mossberg Shockwave is legal to own and possess in New York.  The reason that no Court case confirmed that opinion is because it appears that no one had been arrested for possession of a Mossberg Shockwave.  However, last week, as has been widely reported, a New York State Supreme Court Justice dismissed four counts in an indictment pertaining to the possession of two Mossberg Shockwaves in a person’s home that were discovered by the police who were executing a search warrant for computer equipment that was allegedly involved in an unrelated Harassment investigation.

Our client was originally indicted for possession of the two Shockwaves in New York City back in December 2018.  When our law firm was retained in May 2020, we immediately pointed out that although our client was indicted for criminal possession of two firearms the Shockwaves were not in fact firearms and that the ballistics report from the NYPD ballistics section that was used in the grand jury to prove that the client possessed operable firearms very specifically did not list the Shockwaves as firearms. Rather, the NYPD’s own ballistic expert described the Shockwaves as an “other weapon”, which is not prohibited by New York Law.  Despite the fact that the ballistics report described the Shockwaves as other weapons, the District Attorney’s Office submitted the ballistics report to the grand jury and used it to seek an indictment for possession of operable firearms.  Even after the District Attorney’s Office was caught in this blatant inconsistency and after we asked them to speak to their own expert who tested the Shockwaves, the District Attorney’s Office continued to demand that we file a written motion to dismiss, which was filed back in June.

In August, The prosecutor finally filed a written answer in which they consented to the dismissal of the Shockwave charges after reading our motion.  The client, had faced a mandatory minimum of three and one half years and had that possibility hanging over his head for more than 2 years until the charges were officially dismissed by the Supreme Court Justice, last week.

New York drug and gun offenses and convictions can have long-term repercussions, including lengthy prison sentences. Defendants must understand their rights after being arrested, charged, or convicted of a criminal offense. Additionally, it is vital that defendants understand the typical steps of a New York criminal case. Including, arraignment, pre-trial discovery and pre-trial motions, trial, and sentencing. An attorney is a critical resource during this complex process because decisions made during these steps may drastically change the outcome of a criminal case.

An appellate court recently issued a decision in the defendant’s appeal of his criminal conviction of possession of a weapon in the third degree. The case addressed several issues, including the validity of a court’s denial of the defendant’s motion to controvert a search warrant and suppress evidence. In this case, police officers pulled the defendant over for a defective headlight. The officer asked the defendant for his license and registration, and when the defendant rolled down his window, the officer detected the smell of marijuana. The defendant explained that he smoked marijuana earlier in the day. The officer shined his flashlight and noticed an expandable baton. The officer’s computer search revealed that the defendant had an arrest warrant; thus, the officer placed the defendant under arrest.

At the precinct, the officer told the defendant that a K-9 unit was searching the vehicle, at which point the defendant responded that “you can do that all you want, whatever’s in the car, the cars not registered to me, my prints aren’t on it.” The police then obtained and executed a search warrant on the car, where they discovered drugs and a weapon. At a suppression hearing, the court denied the defendant’s motion to suppress evidence and statements to the officers. The defendant then challenged the search warrant; however, the court denied the defendant’s motion. The defendant pleaded guilty; however, on appeal, the defendant challenged his appeal waiver’s validity.

A state appellate court recently issued a decision in a New York gun case, involving a defendant’s appeal of a jury verdict, finding him guilty of criminal possession of a weapon. The defendant appealed the jury verdict arguing that the New York Supreme Court erred in refusing to suppress evidence of a gun that the police seized during the stop. The defendant argued that the court should have suppressed the evidence because the police did not have reasonable suspicion to stop the car in which the defendant was a passenger.

According to testimony from the suppression hearing, an officer aiding another officer with a traffic stop heard several gunshots coming from north or northeast of the stop. The officer proceeded north, passing two intersections, but did not see any vehicles or pedestrians. When he passed through another intersection, he saw a vehicle with taillights moving slowly. The officer followed and stopped the car, stating that he was stopping the car to investigate whether anyone in the car committed a crime. The officer testified that there was less than a minute from when he heard the gunshot to when he saw the vehicle and less than two minutes from the gunshots to the stop.

Under the law, stops qualify as “seizures implicating the constitution” and require that the police officer has “reasonable suspicion” that the driver or any occupants in the vehicle committed a crime, are in the process of committing a crime, or about to commit a crime. Case law holds that vehicle stops are level three intrusions, which are forcible seizures. Level two intrusions are those that only require a “founded suspicion that criminal activity is afoot.” Courts must consider the “totality of the circumstances” to determine whether police conduct was illegal.

On December 18, 2020,  gun owners were rocked by proposed guidance from the ATF on the evaluation of the legality of pistol braces.   This guidance was of particular concern to New York gun owners who had pistol braces attached to AR style receivers and had thought that the guns they owned were neither rifles nor handguns and thus believed that these “others”  fell outside  the scope of the Safe Act.  I was  contacted by a client this week, who by way of example had a, AR style gun that had an 18 inch barrel and a 26 inch overall length.  As far as the ATF is concerned the new guidance would have no effect on this gun since there was no concern about this being a short barreled rifle regulated by the National Firearms Act (NFA).  However,  if the ATF classified a pistol brace as a stock, then there would be a concern that under New York law, the gun would be considered a rifle that was subject to the restrictions of the Safe Act.

ATF December 18th Guidance

The problem that prompted this is that while initially one company received a letter from the ATF approving a specific pistol brace.  The pistol brace market had gotten crowded with products many of which had not been approved by the ATF.

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