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Articles Posted in ASSAULT AND BATTERY

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old fashioned phoneUnderstanding which types of evidence can be used against you during a New York criminal investigation or New York criminal trial is extremely important. Having a seasoned and vigilant New York assault defense lawyer at your side throughout the entire process can mean the difference between knowing when to object to a proffered piece of evidence or unknowingly letting it slip by and be used against you.

In a recent New York appellate opinion, the defendant challenged his conviction based on the trial court’s decision to allow evidence of a phone call between the defendant and his former romantic partner at trial to be used as admission evidence. The defendant was charged with multiple counts of trespass, criminal mischief, and assault involving his ex-girlfriend. Through evidence offered at trial, it was clear that the defendant and his former girlfriend had a rocky relationship. The prosecution provided evidence regarding a series of events. In one instance, the defendant allegedly broke the ex-girlfriend’s cable box and struck her face. In another, he allegedly pushed her down and struck her chest, resulting in two broken ribs. The third incident involved the defendant’s unauthorized entry into the ex-girlfriend’s apartment, where he remained until police officers arrested him.

The prosecution did not rely on the victim’s testimony, conceding that she suffered from drug and alcohol abuse as well as mental health issues, a history of violence toward romantic partners, and a lengthy criminal record. During trial, the prosecution requested permission to play a tape recording of a telephone conversation between the defendant and the ex-girlfriend that was made while the defendant was incarcerated. The prosecution offered the tape as an adoptive admission by silence of the defendant’s guilt. The ex-girlfriend continually accused the defendant of causing her to suffer broken ribs, and the defendant did not deny the accusations. The trial court did not deny use of the tape recording but instead provided the jury with an instruction regarding the tape, encouraging them to consider carefully whether the defendant’s silence in response to the ex-girlfriend’s statements regarding the broken ribs constituted an admission of guilt.

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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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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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jailUnderstanding the roles that the court and the jury play in a criminal proceeding can be difficult. As seasoned New York criminal defense attorneys, we believe it is critical that our clients know the rules of law that may affect their trial. The following appellate opinion explains why it is critical to understand these rules and to have an attorney who is prepared to help you fight for the fair and impartial trial that you deserve.

In the case, the defendant was charged with two counts of coercion in the first degree for making physical threats against his former girlfriend and for threatening to ruin her business operation. The girlfriend had asked the defendant to move out of her apartment, and the defendant allegedly engaged in the threats to stay as a resident. The girlfriend reported the defendant’s threatening behavior to his parole officer, who arranged for the defendant’s arrest and incarceration. The defendant allegedly continued to engage in threatening behavior against the girlfriend from jail.

During trial, the defendant asked the court to instruct the jury regarding coercion in the second degree as a lesser-included offense of coercion in the first degree, arguing that the evidence could be construed as lacking indications that he engaged in the heinous conduct that usually characterizes the greater offense of coercion in the first degree. The lower court denied the request, finding that the charge of the lesser-included offense was not applicable, based on the record. The jury convicted the defendant of both counts of coercion in the first degree. The defendant appealed, and the Appellate Division concluded that the lower court did not err in failing to include the lesser coercion charge.

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