ASSAULT AND BATTERY

Published on: July 21, 2018

Preservation of Error in New York Criminal Cases

When someone is convicted of a crime in New York, they are entitled to appeal the conviction or to have a higher court review the conviction to make sure that the judge presiding over the trial did not commit any legal errors that may have invalidated the conviction. However, as a general rule, a New York criminal appeal will only be successful if certain steps are taken at trial to preserve the error for appellate review.

The concept behind requiring the preservation of error is that a judge should have the opportunity to review the alleged error at the time it was made so that she can revisit the decision. If a trial judge’s potential mistake is not brought to the attention of the trial judge, there is no opportunity for the judge to reverse their decision or take other corrective actions to remedy the error. In addition, the legislature wants to encourage litigants to bring potential errors to the attention of the judge sooner, rather than later, in order to reduce the chance that a trial is carried on in vain.

For these reasons, a party must generally make a specific objection in order to preserve an error for appellate review. Absent a specific objection, the reviewing court will likely dismiss the appeal. A recent case illustrates this concept.

Published on: July 7, 2018

Court Discusses “Depraved Indifference” Sub-Section of New York Aggravated Assault Statute

by Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York aggravated assault case requiring the court to discuss the “depraved indifference” sub-section of the New York aggravated assault statute. Ultimately, the court rejected the defendant’s argument that the prosecution failed to establish that the defendant’s mindset at the time of the commission of the crime met the requirement of showing a “depraved indifference for human life.”

Assault in the First Degree

In New York, there are several sub-sections under which someone can be charged with aggravated assault. Sub-section § 120.10(3) states that “a person is guilty of assault in the first degree when … [u]nder circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.”

The Facts of the Case

The complaining witness lived with the defendant. One day, the defendant called the complaining witness’s mother, explaining that the complaining witness was acting odd and banging her head against the wall. Over the course of the next few weeks, several people visited the complaining witness’s residence, suggesting that the defendant take her in to get medical treatment. The defendant explained he was hesitant because he did not want to be blamed for her injuries.

Published on: May 2, 2018

New York Court Upholds Defendant’s Conviction for Aggravated Assault Against an Officer Based on an Unintentional, Minor Injury

by Peter Howard Tilem

When it comes to New York assault cases, there are several different subsections under the general statute outlining what constitutes criminal conduct. One form of aggravated assault is when someone “with intent to prevent a police officer from performing a lawful duty, he [or she] causes physical injury to such police officer.”

This type of aggravated assault does not require any intent to cause harm to the police officer. Under the law, the prosecution need only establish that the defendant was acting to prevent an officer from performing a lawful duty and that the officer was harmed. A 2017 decision issued by a New York appellate court illustrates just how broadly courts will interpret this language when determining if a conviction was appropriate.

The Facts of the Case

The defendant was suspected of theft from a Home Depot store. Police began to follow the defendant as he left the store and soon afterward engaged in a high-speed chase. Eventually, the defendant’s vehicle stopped, and the defendant exited the car and then began to flee.

Published on: April 28, 2018

A New York Prosecutor’s Duty to Provide Evidence to the Defense

by Peter Howard Tilem

In New York criminal cases, the prosecution is under a duty to provide certain evidence to the defendant and his attorney, irrespective of whether the prosecutor intends to use the evidence against the defendant. Importantly, the duty attaches to any evidence that may establish innocence or otherwise be favorable to the Defendant. This concept, first discussed by the United States Supreme Court in the landmark case Brady v. Maryland, has since been expanded to cover any evidence that is in the hands of not just of the prosecution but also of the police. The material is commonly referred to by Criminal Lawyers as “Brady Material”.

A recent case illustrates just how seriously courts take the prosecution’s duty to disclose evidence to the defense. Indeed, the court noted that, although the defendant’s argument was not necessarily raised at the appropriate time, the issue was so important that the court ruled on the issue anyway.

The Facts of the Case

The defendant was charged with several crimes related to the assault of a minor. Prior to his arrest, and before the police knew where the defendant was, they “pinged” a cell phone that had been used by the minor earlier in the day (by “pinging” a phone, police are able to get a general idea of where the phone is). The police were able to locate the defendant through the cell phone.

Published on: April 23, 2018

New York Court Precludes Evidence of Defendant’s Psychiatric Evaluation Based on Failure to Provide Adequate Notice

by Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving a defendant who confessed to robbing a car at gunpoint. The case required the court to determine if the trial court properly excluded evidence suggesting that the defendant was “bipolar, with psychotic features.” Ultimately, the court concluded that the evidence was properly excluded because under New York Code Article 250, notice of intent to provide psychiatric evidence must be given in advance.

The Facts of the Case

The defendant was pulled over by police, and as a result of a search, the police discovered a loaded gun. After police seized the gun, the defendant blurted out that it was a good thing that the police officer quickly drew his gun because otherwise the defendant would have shot him. Police arrested the defendant and took him to a hospital to have him evaluated by a psychiatrist. The defendant was read his Miranda warnings and then admitted to taking the car at gunpoint.

After evaluating the defendant, the psychiatrist determined that the defendant was “bipolar, with psychotic features.” The defense hoped to use that diagnosis to explain why the defendant was not able to knowingly waive his Miranda rights and make the statement to police admitting to the robbery.

Published on: April 17, 2018

New York Self Defense Establishing the Defense of Justification in New York Criminal Cases

by Tilem & Associates

When it comes to New York assault cases, or homicides there are a number of defenses that someone charged with the offense can assert. An affirmative defense is a defense which the person accused of a crime has the burden of proving by a preponderance of the evidence. A defense, on the other hand must be disproved by the prosecution, beyond a reasonable doubt. One of the most common defenses in New York aggravated assault cases is that of self-defense or as its called in New York Justification. Justification is a defense that must be disproved by the prosecution.

In New York, NY Penal Law 35.15 governs self-defense claims. The statute also includes a defense for those acting in the defense of others. Specifically, that statute requires that the actor possess an honest and reasonable belief that they are facing unlawful physical force, or an imminent threat of unlawful physical force.

The statute thus creates two essential elements of a New York self-defense claim. First, the actor was subject to unlawful force, or the actor honestly had a fear that they were about to face unlawful force. However, even if the actor believes this to be the case, the statute also requires that their belief be a “reasonable” one. This introduces an objective element into the claim, essentially asking the judge or jury to determine whether the defendant’s fears were reasonable under the circumstances.

Published on: October 26, 2017

New York Appellate Court Upholds Admission of Recorded Jailhouse Phone Call Between Defendant and Girlfriend

by Tilem & Associates

Understanding 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.

Published on: September 5, 2017

New York Criminal Jury Trials – Anything Can Happen at a Criminal Trial

by Tilem & Associates

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.

Published on: August 15, 2017

New York Court of Appeal Reverses Manslaughter Conviction Based on Improper Jury Instructions

by Tilem & Associates

One 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.

Published on: August 12, 2017

New York Court of Appeal Upholds Coercion Conviction, Dismisses Appeal Based on Improper Jury Instruction

by Tilem & Associates

jail Understanding 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.