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A successful criminal defense lawyer must know the Rules of Evidence in New York.  As a general rule, the trial judge is the gatekeeper when it comes to what evidence a jury is able to consider. However, judges are bound by certain rules of evidence which are written by lawmakers. The Guide to New York Evidence closely mirrors the Federal Rules of Evidence, but there are a few differences.

The most basic rule of evidence is that only relevant evidence is admissible. Relevant evidence is defined a, “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence.” However, not all relevant evidence is admissible in a New York criminal trial.

Under rule 4.01(2) all relevant evidence is admissible unless it is precluded by the state or federal constitution, by statute, or by the common law. In New York, there are several rules that can help defendants, as well as few that can hurt them. For example, under Rule 4.27, evidence that a defendant has previously been convicted of a crime is only admissible when it is an element of an offense or, “otherwise essential to the establishment of a legally sufficient case.” If the prosecution cannot establish one of these two situations exist, then a defendant’s prior convictions are inadmissible.

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Earlier this month, a state appellate court issued a written opinion in a New York robbery case, reversing the defendant’s conviction based on the lower court’s improper denial of the defendant’s motion to suppress his statement. Specifically, the statement included his answers to a few questions asked by a detective before the detective read the defendant his Miranda warnings.

According to the court’s opinion, a woman was robbed by an unknown man while walking with a friend. Later, the friend admitted that she had planned the robbery with the unnamed man, the defendant in this case. The friend gave a statement to police implicating the defendant, who was arrested. In her statement, the friend claimed she knew the defendant because they both worked at the same bar.

After he was arrested, a detective sat down with the defendant. Before reading the defendant his Miranda rights, the detective asked the defendant a few preliminary questions about his employment and work history. The defendant answered the questions, and then the detective read the defendant his Miranda rights and continued to ask questions about the robbery. The defendant was ultimately arrested and convicted of robbery and related charges.

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Earlier this month, a state appellate court issued an opinion in a New York gun case holding that police were not justified in searching the defendant’s backpack without a warrant. The case presents an informative and important discussion of the exigent-circumstances doctrine, which allows police to bypass the warrant requirement in certain limited situations.

According to the court’s opinion, police officers went to the defendant’s home based on a tip that a man was selling drugs out of the home. The tip also mentioned that the man selling drugs kept a gun in a distinctive backpack. Upon arriving at the scene, officers saw the defendant smoking a joint on the front porch. The defendant allegedly stood up, cursed, grabbed a distinctive looking backpack, and ran inside.

Officers followed the defendant into the home, and observed the defendant toss the backpack on the floor in the home. Police handcuffed the defendant on the second floor. After police secured the defendant, they opened the backpack. Inside the backpack was a gun and some marijuana. The defendant was charged with criminal possession of a weapon and possession of marijuana.

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Under the Fifth Amendment to the United States Constitution, citizens have a right to be free from self-incrimination. The extent of this right, including in what situations it applies, has long been disputed. Currently, courts consider the Fifth Amendment to attach when police engage in the custodial interrogation of a suspect.

Determining when police conduct amounts to custodial interrogation involves a two-prong inquiry. First, courts consider whether the suspect is in custody, or its functional equivalent. Proving a suspect is in custody requires courts use an objective approach, asking whether a suspect reasonably believed they were free to leave. If so, the suspect was not in custody.

A suspect’s Fifth Amendment rights will not attach merely because they are in custody; police must also question or interrogate the suspect. For example, the police may question a suspect about their involvement in a crime. Courts have held that an officer’s conduct that falls short of direct questioning may still trigger interrogation. Thus, any actions taken by an officer reasonably expected to elicit a response from the suspect may count as an interrogation. However, when a statement is spontaneously made, it will not likely be suppressed. A recent case illustrates this concept as it pertained to a “blurted out” confession after a traffic stop. While the suspect was unquestionably in custody at the time she made her statement, it was made with no prodding, encouragement, or questioning from the police.

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As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders 490x280-redflag-landing(ERPOS) sometimes referred to as Red Flag Laws.  New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime.  As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.

New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people.  A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.

The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte.  Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves.  Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.

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Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the concept of forced abandonment. Generally, when a defendant discards an item – such as narcotics or a gun – they lose any ability to argue for the item’s suppression. However, when a defendant’s choice to discard an object is the product of forced abandonment, the object must be suppressed. Forced abandonment occurs when the defendant’s discarding of an item was “spontaneous and precipitated by the unlawful pursuit by the police.”

According to the court’s opinion, police received a report of gunshots near an apartment complex. The report indicated that the suspect was a black male in a group of about eight other men. As officers arrived, they saw two black men, one of whom was the defendant. The officers could not initially see anything in either man’s hand. When the men noticed the officers, the men turned around and ran.

The officers followed the men, giving a description over police radio. The officers lost sight of the men for a few moments, but then regained sight of the second male. As officers were arresting this man, one of the officers involved in the chase looked at a nearby apartment building and saw the defendant with a gun in his hand. The defendant threw the gun and ran. Police caught up to the defendant, arrested him, and charged him with possession of a firearm.

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When most people think about the characteristics they want in a New York criminal defense attorney, terms like aggressive, vigilant, and zealous often come to mind. And to be sure, these are all traits that a well-rounded defense attorney should possess. However, this most certainly is an incomplete list. One of the most essential characteristics for all New York criminal defense attorneys to have is the ability to negotiate on behalf of their client.

One of the areas in which negotiation is especially important is when discussing plea agreements. Many criminal cases end up in a negotiated guilty plea for an agreed-upon sentence. Other plea agreements are “open guilty pleas,” meaning the defendant places all sentencing discretion in the hands of the judge, potentially with a recommendation from the prosecutor.

As we have reported in the past.  Plea bargaining is not only important but having a criminal defense attorney who can plea bargain effectively is a basic constitutional right.  Please read our past blog about the US Supreme Court vacating guilty pleas for ineffective assistance of counsel.

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Recently, we conducted a suppression hearing in New York County (Manhattan) Criminal Court, in a DWI case where the Court suppressed evidence that was found pursuant to an inventory search.  Courts are increasingly scrutinizing inventory searches.  In July, a state appellate court issued a written opinion in a New York forgery case discussing whether the police officers’ search of the defendant’s vehicle was legal. Ultimately, the court concluded that the search was not a valid inventory search, and reversed the defendant’s conviction.

Under New York criminal law, most searches must be supported by a warrant. However, there are exceptions to this general rule. One exception is the inventory search. An inventory search is when a police officer searches a person’s car after conducting a valid arrest. The justification for the inventory-search exception is that inventory searches serve three purposes:

  1. They protect the owner’s belongings;
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The National Firearm Act of 1934 (commonly known as the “NFA”) was the first federal gun control act and for the first time created a national registry of purchasers of “Machine guns”, “sawed-off shotguns” and “silencers”.  In addition, a $200 tax is imposed on each transfer of any NFA item and waiting periods can be long.

However, with the recent introduction of innovative new guns and technology that seem to have effectively circumvented the NFA, is the NFA still a useful law?

More than two years ago, we wrote about a new and innovative “shotgun” that has since taken the forearms world by storm.  Originally introduced as the Mossberg Shockwave and then the Remington Tac-14, these shotguns came with a standard 14 inch barrel and an overall length of just over 26 inches.  The Bureau of Alcohol Tobacco and Firearms (BATF) had examined samples of these firearms and determined that these were legal under the NFA for reasons discussed at greater length in our article about these firearms.

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On July 31, 2019, a state appellate court issued a written opinion in a New York drug case discussing whether police officers can search a person’s car if they smell marijuana. Ultimately, the court concluded that the search was permissible because the smell of marijuana gives rise to probable cause to search the vehicle. With that said, as more states relax the laws prohibiting the possession of marijuana, courts across the country are rethinking this holding.

According to the court’s opinion, police officers stopped a vehicle in which the defendant was a passenger. Once the officers stopped the car, they claimed the smell of marijuana was “emanating from the vehicle” upon their approach. The police officers ordered the driver and two passengers, one of whom was the defendant, out of the vehicle. The officers searched the defendant, put him in handcuffs, and placed him in the back of their squad car. They then searched the car, finding a small amount of marijuana in the car’s ashtray as well as 16 packets of cocaine in the rear of the vehicle, near where the defendant was sitting.

The defendant, charged with possession of cocaine, filed a motion to suppress the cocaine. The defendant argued that the police officers lacked probable cause to search the vehicle. He also claimed that the cocaine should be suppressed because he was illegally handcuffed and placed in the back of the police car. The defendant did not contest the validity of the traffic stop; only the officer’s decision to search the vehicle.

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