New York Criminal Attorney Blog

New York Defendant Unsuccessfully Argues that COVID-19 Face Masks Impeded His Right to Fair Trial

April 12, 2024 | Peter Howard Tilem

In a recent homicide case before a New York Court of Appeals, the defendant challenged his guilty convictions on the grounds that he was unable to fully observe potentially jury members during the jury selection portion of his trial. When the defendant’s case was before the lower court, COVID-19 was in full force, and the potential jurors were required to wear masks inside the courtroom. According to the defendant, the masks presented a problem with regards to his right to observe the individuals’ expressions and demeanors. Ultimately, on appeal, the court disagreed with the defendant and affirmed the guilty convictions.

Procedural Background

The defendant’s case revolved around a three-car collision in 2017, in which the defendant’s blood alcohol content was above the permissible limit. One of the other passengers ended up dying as a result of the crash, and the state charged the defendant with three counts of aggravated vehicular homicide and manslaughter in the second degree.

The defendant pled not guilty, and his trial began in April 2021. At that time, many COVID-19 protocols were still in place, including that potential jury members were told to wear face masks while in the courtroom. They were, however, allowed to remove the masks and put on a clear plastic face shield in its place when the judge or an attorney directly questioned them.

New York Court Issues Opinion Underscoring the Importance of “Voluntary” Confessions in Criminal Cases – GUN CONVICTION REVERSED

April 6, 2024 | Peter Howard Tilem

A Queens County Gun conviction was recently reversed by the Appellate Division, Second Department. In a recent opinion published by an appellate court in New York, the court emphasized that a defendant must be able to voluntarily waive his right to an attorney before speaking with an investigator about a case. In the case before the court, the defendant appealed the trial court’s denial of his motion to suppress, arguing that because he had recently been in a medically induced coma when a detective questioned him, he was unable to understand his Miranda rights and knowingly and voluntarily waive those rights. On appeal, the higher court agreed with the defendant, reminding officers of how important it is that a defendant can comprehend what is happening before he can be subject to interrogation.

The Defendant’s Medical Condition

According to the opinion, the defendant had been involved in a shooting and was shot in the elbow, the leg, and the lower back. An ambulance took him to the hospital, where he underwent three different surgeries. The hospital then put the defendant in a medically induced coma. When he was able to wake up, he remained in the intensive care unit. At approximately 6:00pm, the same day he underwent surgery, a detective came into the defendant’s hospital room to question the him in about the shooting.

The Defendant’s Miranda Rights

When the detective approached, the defendant asked if he could see a nurse because of his level of physical pain. The detective refused, saying he would call a nurse later, after the questioning was finished. At that point, the detective read the defendant his Miranda rights, indicating that he had the right to remain silent and the right to speak with an attorney. The defendant said he understood. The detective then asked the defendant about the shooting, and the defendant admitted to being guilty of criminal possession of a weapon.

New York Court Uses Defendant’s Actions to Infer Intent to Kill in Violent Crimes Case

March 23, 2024 | Tilem & Associates

In a recent case before the Supreme Court, Appellate Division, Third Department, the defendant appealed his convictions of attempted murder, attempted assault, robbery, burglary, and criminal possession of a weapon. Part of the defendant’s argument regarding the “attempted murder” offense was that the facts of the case did not support the jury’s finding of guilt, and the verdict should therefore be reversed. Reviewing the record, the higher court disagreed and ultimately affirmed the lower court’s verdict, emphasizing that the defendant’s actions throughout his physical altercation with the victim led to a reasonable inference that he intended to kill the victim.

Defendant’s Argument

The defendant’s argument centered around the fact that during the incident in question, he and the victim both fought in the hallway of a motel while one of them was holding a gun. Shots were fired, and the victim was shot during the parties’ struggle for the gun. There was not enough evidence, maintained the defendant, to prove that he attempted to kill the victim – the evidence only showed that the victim’s injuries were the result of a chaotic fight that involved a loaded gun. Without reason to assume that he intended to kill the victim, there was no basis for the “attempted murder” conviction. The defendant therefore asked the higher court to reverse the lower court’s ruling.

Basis for Appellate Court’s Ruling

The appellate court disagreed. According to important New York case law, it is possible to infer intent to kill from the defendant’s actions. Here, the victim testified that the defendant shot directly at him while they were fighting, as well as that the defendant placed the gun directly on his body before shooting. Other witnesses affirmed this testimony. These actions directly supported the inference that the defendant intended to kill the victim.
Additionally, the victim’s injuries showed a gunshot wound, lacerations above the eyebrow, and abrasions to other parts of the body. These injuries were consistent with the victim’s testimony about where and how the defendant shot him. Given that the physical evidence, in addition to the testimony, supported the inference that the defendant wanted to kill the victim, it was reasonable for the jury to have found the defendant guilty.
Ultimately, then, the court affirmed the lower court’s ruling, and the defendant’s convictions stayed in place.

New York Court Emphasizes Restrictive Conditions of Probation in February 2024 Opinion

March 17, 2024 | Tilem & Associates

Recently, a New York defendant appealed his convictions related to possession of a firearm, arguing that probation officers did not have the right to search through his personal belongings. The court’s opinion, which denied the defendant’s appeal, reflects the reality that for individuals on probation, there is less of an expectation of privacy. While this can be a difficult restriction to bear, it is important to keep probation conditions in mind to stay in compliance with the related legal restrictions and to stay away from harsh repercussions. Those on Probation are already convicted and are not entitled to a trial if they are accused of violating probation but rather are only entitled to a hearing before the judge that is supervising their probation.

Facts of the Case

In this case, the defendant was on probation for attempted robbery in the first degree. One of the conditions of his probation was that he was not allowed to possess a firearm. Local police officers notified the probation department that the defendant had been seen with a firearm on three different occasions. After that, the defendant’s probation officers promptly showed up at his house.

The defendant was not home, but his mother was home, and she let the officers search the defendant’s bedroom. They found a shotgun shell, a round of ammunition, and a firearm. The defendant was charged with the following offenses: criminal possession of a weapon in the second degree, criminal possession of a firearm, and unlawful possession of pistol ammunition.

Defendant in New York Drug Case Unsuccessfully Asks for Suppression of Incriminating Evidence

March 2, 2024 | Peter Howard Tilem

In a January 2024, New York Drug case before the Supreme Court of New York, Third Department, a defendant filed an appeal of the lower court’s denial of his motion to suppress. The defendant took issue with a police officer’s search of his person, arguing the officer did not have a legal basis to infringe upon his privacy during the traffic stop in question. The higher court reviewed relevant facts related to the defendant’s appeal and ultimately denied his request, affirming the lower court’s ruling in the process.

Convictions at Issue

The defendant was first charged with criminal possession of a weapon and criminal possession of a controlled substance in September 2019. After the State charged the defendant, he filed a motion to suppress the incriminating evidence that officers seized that led to the charges. Ultimately, the trial court denied the motion to suppress, and the defendant pled guilty. The court sentenced him to five years in prison. He promptly appealed.

Basis for Court’s Denial

In the defendant’s appeal, he challenged the denial of his motion to suppress. The higher court, however, reviewed the record and determined the defendant’s motion was, indeed, without merit. The defendant’s charges originated when an officer ran the defendant’s license plate and recognized the address as one related to a narcotics investigation that was ongoing. He then approached the defendant in the parking lot of a local gas station, asking to see his license and registration. The defendant’s license was invalid; there was a missing license plate light on the defendant’s car; and the officer recognized the defendant’s name as an individual known for facing frequent drug charges in the area.

New York Court Denies Defendant’s Appeal in Case Revolving Around Aggravated Family Offense

February 23, 2024 | Peter Howard Tilem

In a recent case before the Appellate Division, Fourth Department in New York, the defendant took issue with the trial court’s denial of his motion for a mistrial. In his appeal, the defendant argued that the lower court made a prejudicial decision in denying his motion, and the decision should therefore be reconsidered. The higher court reviewed the defendant’s argument and ultimately disagreed; the court did, however, decide that the trial court unfairly sentenced the defendant, and it lowered the defendant’s overall sentence as a result.

Background of the Case

The defendant was convicted of four counts of aggravated family offense, meaning a jury found that he violated a no-contact order that was in place in favor of the mother of the defendant’s children. After the jury returned a guilty verdict, the defendant filed a motion for a mistrial, arguing that part of the admitted testimony was inappropriate and prejudicial.

During the proceedings, the individual that had obtained the no-contact order against the defendant (called the “complainant”) testified on the stand about how the defendant had strangled her in front of their children. The defendant objected on the grounds that this was improper testimony. The trial court judge agreed, and while the opinion did not describe why this testimony was improper, both the defendant and the trial court’s judge agreed that it was inadmissible. Having that the testimony was not helpful for the jury in deciding whether to find the defendant guilty, the judge instructed the jury to disregard the testimony from the complainant.
The basis of the defendant’s motion, then, was that the judge did not do enough to fix the problem that the jury heard this prejudicial testimony, and that the jury was therefore biased against him.

New York Criminal Case Emphasizes High Bar for Overly Prejudicial Evidence at Trial

February 16, 2024 | Tilem & Associates

In a recent case before the Appellate Division, Third Department in New York, the defendant appealed his convictions of aggravated family offense and criminal contempt in the second degree. The convictions were based on an incident during which the defendant violated a protective order in place against him and toward the victim in this case. The defendant pled not guilty, his case went to trial, and he appealed on the grounds that the trial court unreasonably let prejudicial evidence into the record during the proceedings. In its decision denying the appeal, the court highlighted the fact that even if the evidence was improper or prejudicial in some regard, it needed to rise to a higher level of prejudice to warrant the court’s granting the defendant’s appeal.

Underlying Facts and Trial Proceedings

This case arose when the defendant reached out to the victim in this case, despite there being a protective order in place prohibiting him from communicating with her by text, email, mail, or any other means. The defendant was criminally charged, and his case went to trial once he pled not guilty. During trial, the jury heard evidence both about the offense and about one of the defendant’s prior convictions. There was also evidence about the protection order itself, which the defendant violated when he was incarcerated by using a messaging service developed specifically for incarcerated individuals.

The jury found the defendant guilty, and he was sentenced to between 7 and 15 years in prison. He promptly appealed the decision.

New York Court Sides with Defendant in Suppression Case, Emphasizing Importance of Fourth Amendment Protections

February 11, 2024 | Tilem & Associates

We have often said that suppression can be the best defense. Recently, a New York defendant appealed a lower court’s decision to deny his motion to suppress physical evidence, and the higher court ruled in his favor. The defendant was originally indicted on one count of second-degree criminal possession of a weapon. He asked the lower court to suppress the gun found in his vehicle, and the trial court denied his motion. On appeal, however, the New York Court of Appeals, New York’s highest Court, in a rare 4-3 decision overturned the lower Court decisions and ultimately granted his appeal.

The Defendant’s Motion to Suppress

An officer first became suspicious of the defendant in this case when he saw the defendant and another individual pull into a parking lot, engage in a “loud conversation,” and walk from one person’s car to the other. The officer believed a drug-related transaction was occurring, especially, after he saw a third individual in the group, one that he knew had been arrested on drug charges in the past.

The officer approached the group, and the defendant began walking toward him. The officer frisked the defendant, found nothing, and then approached the car and saw a rolled dollar bill and white substance in the driver’s seat. He arrested the defendant, and upon a subsequent search, officers found additional narcotics and a handgun in the vehicle as well.

Recent Opinion from Chief Judge Highlights Inadequacies of New York Justice System

February 5, 2024 | Tilem & Associates

In a recent opinion from the New York State Court of Appeals, the chief judge delivered a concurrence that highlights some of the difficulties involved in litigating criminal cases. The opinion centers around an incident in which three pedestrians got into a verbal altercation, after which the defendant stole one of the individual’s phones. The defendant was later convicted of larceny and perjury, and he was sentenced to four to eight years in prison. The judge’s concurrence talks through some of his own frustrations with how the trial court failed to take certain factors into account when sentencing the defendant.

Background of the Case

The opinion describes the incident in question, during which a woman and her boyfriend were walking down the street and almost collided with a bicyclist. The three individuals began yelling at each other in what became a heated conversation. Ultimately, the bicyclist, later named as the defendant in this case, stole the woman’s phone and fled.
The woman called the police, and they were able to quickly find the defendant. He was charged with larceny, and he was called to testify before a grand jury. In connection with that testimony, the defendant was later charged with perjury.

The defendant was later convicted of fourth-degree larceny and two counts of first-degree perjury. The trial court sentenced him to time in prison, which added up to between four and eight years.

New York Court Grants Defendant’s Speedy Trial Motion to Dismiss in Opinion Highlighting Prosecution’s Unpreparedness for Trial

February 5, 2024 | Peter Howard Tilem

Recently, the New York Court of Appeals, New York’s highest court sided with a defendant who was originally charged with and convicted of harassment in the second degree. in a very important speedy trial case that keeps prosecutors honest about complying with New York discovery laws. After being found guilty, the defendant filed a speedy trial motion to dismiss, arguing that the prosecution incorrectly advised the court it was ready for trial before it had turned over all of the documents it was required to disclose as discovery. Ultimately, the court agreed with the defendant, granting his motion to dismiss.

Facts of the Case

According to the opinion, police officers first arrested the defendant in this case after he became physically aggressive toward his mom. The State charged him with harassment in the second degree, and the defendant pleaded not guilty. The court subsequently scheduled the case for trial several months down the line. Prior to trial, as is standard in New York courts, both the prosecution and the defense appeared for several hearings to report in on the progress of trial preparation.

Also, in the state of New York, the prosecution in a criminal case is always required to file something called a “certificate of compliance” with the court. This certificate advises the court that the prosecution has provided all of the necessary “discovery” to the defense, meaning all of the relevant documents that the defense has requested as part of the trial preparation.