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As New York Criminal Defense lawyers we are constantly called about expunging old New York Criminal records and over the many years I have been in practice it has been frustrating to inform people whose lives have been forever altered by an old New York criminal conviction that there was no mechanism to seal or expunge a criminal conviction in New York.  In the past we have offered half measures such as certificates of relief from civil disabilities or certificates of good conduct.  However, great news has arrived.  Beginning in October 2017 the New New York Criminal Procedure Law 160.59 will go into effect permitting a motion to be made to seal up to two criminal convictions including one felony.  This is welcome news for anyone whose professional life is being held back by a past mistake.Records_MAIN-300x200-300x200

New York Criminal Procedure Law provides for sealing of up to two criminal convictions and up to one felony.  Convictions for violent felony offenses, homicides, sex offenses and any conviction that requires SORA (Sex Offender Registration) are ineligible for sealing as well as conspiracy of attempts to commit ineligible crimes.  In order to qualify for sealing the applicant must not have been convicted of a crime in the preceding 10 years and any time spent in prison or jail in that 10 year period is added back into the 10 years.  For example if a person served 5 years in prison after a conviction they would need to wait 15 years before they could apply for sealing under CPL 160.59.

Procedurally, CPL 160.59 sealing requires that an application be made to the Court.  For a person sealing more than one conviction the sealing application must be brought in the Court where the most serious conviction took place.  The application must include a copy of Certificate of Disposition for each conviction (or an explanation of why one could not be obtained) and a sworn statement of the person seeking sealing that sets forth the convictions for which sealing is sought, whether other applications have been brought for sealing, and the reasons why the person is seeking the sealing.  The application must also include any other sealing applications that have been filed.  The entire package must be served on the District Attorney’s Office in the County in which sealing is sought.

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blank breathalyzer machineDUIs can have a serious impact on recipients, causing financial distress and jeopardizing their ability to operate a motor vehicle. Even if you have been charged with a DUI, there may be a number of defenses available to you to alleviate the charge and to ensure that you are not punished unfairly. At Tilem & Associates, our seasoned New York City DUI attorneys have substantial experience analyzing DUI claims and helping individuals fight an unfair charge.

The following recent appellate opinion illustrates why consulting with a criminal defense lawyer as soon as possible can make a huge difference in protecting your rights. The defendant was arrested for driving while under the influence in addition to a number of other traffic-related violations. The arresting officer transported him to the nearby station at which point two other officers observed the breath-testing procedure. Both officers were experienced administrators of the test and familiar with using the device. One of the observing officers administered the test, which involves a 13-step procedure, and the other officer took a video recording of the test.

The defendant was unable to perform a proper breath sample on his first two tries, resulting in two errors. The machine had to be reset each time. On the third attempt, the machine printed out a test result showing that the defendant’s BAC was 0.25.

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As New York Firearms Lawyers we are often asked about the legality of certain specific guns in New York given the very complex laws about what firearms may be owned in New York.  A relatively new pair of firearms present some very interesting legal issues given the current state of New York Law and just may fit into a loophole under existing New York gun laws.

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Mossberg Shockwave

The Mossberg Shockwave is a gun that has a barrel length of just over 14 inches and is a smooth bore (no rifling).  Its overall length is just over 26 inches and it has a magazine capacity of 5.  The shockwave is pump action and is fitted with a grip that appears to be a pistol grip that Mossberg refers to as a bird’s head pistol grip.

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yellow bodega storeWhen facing a criminal trial, one of the most essential things to understand is whether you are able to assert any defenses to the charges against you. As seasoned New York criminal defense lawyers, we have aided many people in assessing their cases and crafting vigorous defenses. The following recent appellate court opinion showcases how taking a considered approach to articulating a defense can make a significant difference.

The defendant was charged with assault in the first degree after he was involved in a physical altercation at a corner store with a man who was 50 years old and who had a history of drug use and criminal activity. The record indicated that the victim had provoked the defendant and that the defendant had made two threats to kill the victim. Eventually, the defendant punched the victim.

Surveillance footage admitted at trial showed what occurred after the initial punch. The defendant and the victim left the premises, but each returned at individual times. The defendant again struck the victim, this time using a milk crate and hitting the victim in the face. Medical professionals later determined that the victim suffered a potentially life-threatening brain injury, broken nose, and broken cheekbone at the hospital to which he was transported.

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In a  recent NRA-ILA article about the Stossel documentary that the NRA Institute for Legislative Action suggests supports the need for national concealed carry  reciprocity, Tilem & Associates senior partner Peter H. Tilem was quoted and described as a criminal lawyer who represents tourists accused of “innocently violating New York’s gun control laws. ”  The Stossel Documentary can be seen here.

Mr. Tilem regularly represents those who travel from other States with firearms and who get arrested for violating New York’s draconian and complex gun laws.  The John Stossel documentary was based on the story of two of Mr. Tilem’s clients who were arrested at Queens, New York airports one with a gun and one with a magazine which New York law calls a high-capacity ammunition feeding device.

The NRA-ILA article goes on to describe the Stossel documentary in some depth including describing the stories of the two tourists from Georgia who were arrested and the interviews of Mr. Tilem and and Mr. Ryan, the Chief Assistant District Attorney in Queens who is in charge of the prosecution of these cases.  Both Laguardia and Kennedy airports, two of the busiest airports in the country are located within the jurisdiction of the Queens District Attorney’s Office.

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As experienced New York Criminal Trial lawyers we understand the risks and potential hazards of going to trial as well as the uncertainty associated with any criminal trial.  However, in a recent felony trial that we conducted in Westchester County Court charging six counts of felony assault, some evidence surprised even the most seasoned people in the courthouse and the verdict, finding the client not guilty on the four most serious assault charges and only guilty on two less serious charges, also surprised many.

The Felony Assault charges included two counts each of Aggravated Assault on a Police Officer, Assault in the First Degree and Assault on a Police Officer and all stemmed from an incident where the motorist as he was stopped at a type of roadblock put the car in reverse and dragged a police officer for some distance and struck another police officer standing near the car.  It was undisputed that both police officers were very seriously injured and it is also undisputed that two years later one police officer has not yet been able to return to work as a police officer.

At the roadblock were three police officers; the two that were seriously injured and a third who immediately took control of the crime scene.  On day one of the trial, the police officer at the scene who was not injured took the stand and identified “crime scene” photos that show that the police sergeant  who was dragged lost a lot of his equipment as the car sped in reverse with the Sergeant stuck under the driver’s side door.  The Officer at the scene was showed and identified both photographs of the scene where the equipment was found and the actual equipment which included a flashlight, handcuffs and a magazine pouch.

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New York law firm Tilem & Associates has filed an Article 78 lawsuit against the New York State DMV based upon the DMV policy of instituting a lifetime revocation against certain drivers who have multiple alcohol related driving incidents.  Although the policy was previously upheld in Court the revocation policy as it pertains to drivers who have had a Certificate of Good Conduct or a Certificate of Relief from Civil Disabilities issued to them is illegal and violated several provisions of New York State Law according to the lawsuit.

In 2012 the New York State Department of Motor Vehicles changed its regulations to institute a lifetime ban on what DMV termed “persistently dangerous drivers.” The term persistently dangerous driver applies to drivers who have three alcohol (or drug) related driving offenses and another serious driving offense in a 25 year period.  The new regulations have been challenged in Court and have been repeatedly upheld by Courts throughout New York State.  However, the new Court challenge relates to an individual with 4 alcohol related driving offenses including two felony DWI cases and a state prison sentence of 2-6 years in prison but who had a Certificate of Good Conduct issued to him by the New York State Department of Corrections and Community Supervision.  Specifically, the Certificate of Good Conduct “provides relief from forfeitures, disabilities or bars to employment and licensing automatically imposed by New York State law as a result of his conviction.”

Certificates of Good Conduct and Certificates of Relief from Civil Disabilities are defined under the New York State Correction Law §703-a and §703 respectively and after a thorough investigation permit the Court or Parole Board to create a presumption of rehabilitation.  Moreover, New York State Correction Law §752 specifically prohibits the denial of a license based upon a previous conviction or based upon lack of good moral conduct if either a Certificate of Good Conduct or Certificate of Relief from Civil Disabilities is issued.  New York State Correction Law §752 does set out two exceptions to that general rule.

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A documentary produced by John Stossel about the experiences of two clients of Tilem & Associates who flew through New York airports, one with a gun and one with a firearm magazine clearly demonstrates the absurdity of New York gun laws and the real need for National Concealed Carry new-york-under-arrestReciprocity.  The video can be viewed here.

The video tells the story of Tricia Jordan who was with her daughter when she was attempting to fly out of Laguardia airport with a gun and was arrested for the class “C” violent felony of Criminal Possession of a Weapon in the Second Degree and of Avi Wolf who had a magazine with no firearm and no bullets but was arrested for the class “D” violent felony of Criminal Possession of a Weapon in the Third Degree (yes, I know, he didn’t possess a weapon) because the magazine, even though it was empty, was capable of holding more than 10 rounds of ammunition.

Both, after hiring Tilem & Associates, pled guilty to a non-criminal disorderly conduct charge and paid a fine of $250.  Both had their records sealed.  However, the video shows what these law abiding citizens went through including spending a day in jail and having to hire a lawyer to defend them against these very serious charges.  The video also shows how misleading the TSA website and the airline website can be for travelers to New York who lawfully fly with their guns.

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night club signOne of the most common issues to arise in a criminal case is whether a certain piece of evidence can be used during a trial. Although there are protocols regarding how the prosecution must maintain evidence and preserve the chain of custody, sometimes evidence is mishandled or lost. This creates a whole host of legal issues regarding the impact of the evidence and whether it can be used or referenced during a trial. As a recent appellate case demonstrates, consulting with a knowledgeable New York criminal defense lawyer can help you understand your legal rights and how evidence may affect your case.

The defendant in the case at hand was charged with intentional murder in the second degree, two counts of criminal possession of a weapon in the second degree, and other things. The shooting allegedly took place outside a nightclub in Queens. Shortly after the incident, a police officer obtained a copy of video surveillance footage of the scene that the nightclub possessed, but the footage was subsequently lost before the trial took place. The defendant was identified as a suspect, and the bouncer of the club identified him in a lineup, but he later testified at trial that he could not be certain whether the defendant was the shooter because he observed the shooter from across the street.

Before trial, the defendant requested disclosure of the nightclub’s surveillance footage, and the prosecution requested a copy as well. The police department responded that the officer misplaced the footage, however, and that it could not be found. The nightclub has ceased operating in the interim and did not have any additional copies of the footage. A number of witnesses and the officer testified about the footage and what they saw, with the bouncer indicating that the footage captured the victim.

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empty jury boxOne of the most common questions that we receive as New York criminal defense attorneys is, “How are jury members selected?” The law surrounding jury selection is very complex, as the following recent appellate opinion demonstrates. The central issue in this appeal was whether the lower court committed a reversible error when it did not allow defense counsel to question prospective jurors regarding their opinions about involuntary confessions. The defendant was charged with a number of crimes, including murder. The defendant provided verbal and written statements to the police indicating that he was involved with the shooting. The victim approached the defendant about a missing cell phone, and sometime after that, the defendant came back and threatened him with an ice pick, at which time the defendant pulled out a gun and shot at the victim while he fled. There were two eyewitnesses to the crime in addition to the defendant’s statements.

Before jury selection, the defendant asked if he could question jurors regarding their ability to understand legal rules applicable to involuntary statements. In response, the prosecution indicated that they had not decided whether they were going to offer the defendant’s statements during trial as evidence. As a result, the court denied the defendant’s request to question jurors on this subject. The court reasoned that if the prosecution did not use the statements, and the jury was questioned about their views on involuntary confessions, the jury might then engage in speculation regarding whether such statements existed. The court also concluded that the jurors would be able to understand that involuntary confessions were inadmissible for any purpose.

During trial, the prosecution admitted the defendant’s statements, and the jury ultimately concluded that the defendant was not guilty of murder in the second degree. Instead, they convicted him of manslaughter in the first degree. The defendant appealed, stating that the trial court erred when it failed to allow the defendant to question jurors about involuntary confessions. The Appellate Division affirmed the lower court’s ruling, and the defendant appealed to the New York Court of Appeal.

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