Articles Posted in CHILD ABUSE

In a recent assault case before an appellate court in New York, the defendant successfully overturned several convictions related to a Child Abuse case. Although, the top charge of Assault in the First Degree stood, the case outlines some limits on criminal possession of a dangerous instrument.  Originally, the defendant was convicted of several crimes, including assault in the first degree, assault in the second degree, reckless assault of a child, criminal possession of a weapon, and endangering the welfare of a child. On appeal, she asked that the court reconsider these convictions. Ultimately, the court agreed that at least two of the convictions should be vacated, granting the defendant’s request in part.

The Facts of the Case

According to the opinion, the defendant was charged with a myriad of crimes based on injuries found on her two-year-old son. The State presented evidence that the child was violently shaken, bruised, and bitten on different occasions. He also sustained several brain injuries because of the shaking, and the State included medical reports as part of the evidence against the defendant.

At trial, the defendant admitted that she occasionally hit the child, pinched his skin, and bit him and punished him with a “bamboo stick”.  She was later found guilty and was sentenced to time in prison as a result.

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Recently, a state appellate court issued an opinion in a New York child abuse case requiring the court to determine if an interview conducted by a child protective services caseworker was in violation of the defendant’s right to counsel. Ultimately, the court determined that the interview was indeed a violation of the defendant’s right to counsel and ordered the suppression of all statements obtained from the interview.

Generally, when someone is under investigation for a crime, they have the right to have an attorney present when they are questioned. However, the law surrounding this area is quite nuanced, and there is much litigation over exactly when someone is under investigation and what constitutes “questioning.”

The Facts of the Case

According to the court’s opinion, a Child Protective Services (CPS) caseworker interviewed the defendant while he was in custody for criminal charges. At the time, the caseworker had been working on a task force with law enforcement agencies where she received training on how to interview individuals who are accused of committing sexual offenses. The caseworker was aware that the defendant was being represented by counsel for his criminal matter, but no counsel was present during this interview. During the interview, the defendant admitted to having sexual contact with the victim. The prosecution intended to use this statement at the defendant’s trial.

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There are a wide variety of issues that can be raised on appeal following a criminal charge and criminal sentencing. One of the issues that can be raised is ineffective assistance of counsel. In this type of appeal, which generally is raised not by an appeal but by a motion to vacate a conviction under CPL 440.10, the defendant is arguing that his or her attorney failed to render competent legal counsel and that this failure had a dispositive outcome in his or her case. As seasoned New York criminal lawyers, we understand how critical it is to provide clients with responsive, dedicated, and knowledgeable legal counsel.

A recent appellate opinion discusses when a conviction can be overturned for ineffective assistance of counsel. The defendant was accused of sexual abuse of a minor. At trial, the victim testified regarding the alleged abuse, stating that the abuse occurred for many years and that she had informed a number of individuals, including two officers, regarding the incidences. Following the victim’s testimony, the defendant’s counsel did not seek a limiting instruction from the court requesting that the minor’s statements regarding previous disclosures should not be considered in determining whether or not her testimony was true.

The prosecution called each of the individuals whom the victim had allegedly informed of the abuse. Defense counsel objected at each point at which the prosecution attempted to elicit an answer regarding what the victim disclosed to each witness. The prosecution then called a child sex abuse expert witness to testify regarding her examination of the victim. The expert witness testified that the victim had informed her of the abuse, and defense counsel objected. The doctor also testified that there were no physical signs of sexual abuse, but this conclusion did not foreclose the possibility that abuse occurred. In closing arguments, the prosecution stated that the victim should be believed based on her prior consistent statements and the testimony from each witness regarding the victim’s communications regarding the abuse. Ultimately, the defendant was sentenced to 25 years in prison. The Appellate Division affirmed the ruling, and the defendant appealed.

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A recent New York appellate opinion discussed a case in which a defendant asserted that his rights were compromised because he received ineffective assistance of counsel. The defendant was charged with sexual conduct involving a child in the second and first degrees. The victim, a relative of the defendant’s extended family, informed a school counselor that she had been molested by the defendant between the ages of five and 10 years old on several occasions. The defendant acknowledged that the defense asserted at trial was that this disclosure was a recent fabrication. He also argued, however, that the defense was not assumed until final summations and that the defense was inexplicable in light of statements that the victim provided regarding the abuse to three of her friends roughly four years before the criminal proceeding.

According to the trial court record, however, this defense was asserted very early in the trial proceedings, including at the voir dire or jury selection phase, and it proceeded throughout the trial. The record also showed that defense counsel provided a foundation for this defense in his opening statement, indicating that the victim waited seven years to alert the authorities and that the victim’s decision to wait to disclose the event to authorities four years after she informed her friends indicated that she was not credible.

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New York Criminal Defense Attorneys Tilem & Associates in a high profile case in Westchester County successfully negotiated a plea deal for a client charged with criminally negligent homicide in the death of a 6 year old and helped the client avoid a jail sentence.

Homicide. Murder. Negligent homicide. Manslaughter. In the wake of the loss of a life, one may wonder, exactly what the difference in the terms mean? While the words can be confusing, there is an important difference between each charge. Homicide means conduct which causes the death of a person. The difference between murder, negligent homicide and manslaughter all depend on the culpable mental state alleged to be involved with the death of another. In another words did the person intentionally cause the death of someone or did they do so recklessly or with criminal negligence.

The statute, N.Y. Pen. Law § 125.10, spells out criminally negligent homicide in New York. Criminally negligent homicide represents the least serious of all homicide offenses in New York and in fact is the lowest level felony in the New York Penal law. The charge of criminal negligence means that person has failed to perceive a substantial and unjustifiable risk that a particular result will occur or that a particular circumstance exists. The risk is usually of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. This charge is used when the accused lacked the intention of killing the victim, but should have known better than to complete acts which resulted in the victim’s death.

Tilem & Campbell senior partner Peter H. Tilem was on Channel 2 News tonight talking about the “Bus Matron” case. The case, which had gotten media attention in the past, has been getting additional attention due to the unusual age and procedural history of the case. This misdemeanor case which is more than 5 years old has been twice dismissed by the trial Court and twice restored by the Appellate Court who reversed the dismissals.

Back in 2006 the case was dismissed after the trial Court suppressed audio tapes that were the result of what the Court considered to be illegal eavesdropping. Then in 2009 a second judge in the Criminal Court in Brooklyn dismissed the case based upon what the trial judge found to be a violation of New York’s speedy trial statute.

At Tilem & Campbell, our lawyers are used to taking on Child Protective Services and the maddening delays and confusion associated with the State Child Abuse Registry. A federal lawsuit filed in 2004 and just settled, challenged the Office of Children and Families for delaying fair hearings usually over a year while people on the registry either lost or could not get jobs. Others were simply denied hearings altogether because New York State arbitrarily decided that the people who requested the hearings sometimes waived them. In a settlement approved by Federal District Judge Shira A. Sheindlin last week, The New York State Office of Children and Families has agreed to complete hearings within 4 months for everyone whose job is affected by the finding and 8 moths for everyone else.

In a sign that the Office of Children and Families is attempting to reduce some of the backlog, this firm has already received at least one call from the State indicating that they will not be going forward on a hearing against one our clients and therefore agreed to an amendment of the finding of Inadequate Guardianship.

In our experience, the State rarely wins these hearings if they are challenged and the tactics of delay and confusion are nothing more than an attempt to deny people their right to a hearing. This settlement should be welcome news for anyone who finds themselves entangled in the Child Abuse system in New York.

Tilem & Campbell senior partner, Peter H. Tilem won a huge Court victory after his client was found not-guilty of all charges in connection with an Attempted Rape in the First Degree case stemming from a 2008 incident in Queens. The client had been facing up to 15 years in prison if convicted of Attempted Rape and up to one year in jail if convicted of Endangering the Welfare of a Child. The victim was less than 10 years old at the time of the alleged incident. The incident was not reported to the police until January of 2009.

An investigation by Tilem & Campbell during the pendency of the case revealed numerous inconsistencies in the statements made by the alleged victim to police officers, prosecutors and doctors. A Queens County Assistant District Attorney became an important defense witness in the case.

Mr. Tilem represented the client at trial, but Managing Partner Peter Tilem handled all pre-trial litigation, and Associate Jean Melino successfully handled motion practice which directly resulted in the preclusion of key prosecution evidence.

Leaving a young child home alone can and often does lead to a parent being charged with Endangering the Welfare of a Child under the New York Penal Law. But at what is age is a child old and mature enough to be left home alone in New York? While some prosecutors choose to charge parents who leave young children (and even teenagers) home alone with Endangering the Welfare of a Child, the reality is, there is no set age in New York for a child to be left alone. The determination is based upon several factors including the age of the child, the maturity of the child and the length of time the child is left alone.
In fact, the City Court of Mt. Vernon has held that leaving a six-year-old child at home alone for one hour during the night, without more, is not criminal and does not support a charge of Endangering the Welfare of a Child. (See People v. Seward, 173 Misc. 2d 1020 (City Ct. Mt. Vernon 1997). The Seward decision cited Augustine v. Berger, 88 Misc. 2d 487 (1976), where the Suffolk County Supreme Court held that leaving a one and a two year old alone for a half hour at night did not amount to maltreatment under the Family Court Act. Similarly, the Kings County Criminal Court has held that leaving a five, seven, twelve and thirteen year old home alone without more supporting facts is insufficient to support a charge of Endangering the Welfare of a Child. People v. Smith, 178 Misc. 2d 350 (1998).
For more information about this, and other criminal law issues, please contact Tilem & Campbell toll-free at 1-877-377-8666 or visit the web at

The number one concern of parents/guardians who find out they are the subject of a child protective services (CPS) abuse and/or maltreatment (neglect) investigation is whether CPS can remove their children from their home. To summarize, as I wrote in my previous blog, your child can be taken without a court order by CPS when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s health or life and there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417).

However, what many people don’t realize is that hospitals and other similar institutions can hold your child under certain circumstances. New York Soc.Serv. Law § 417(2) authorizes hospitals and other institutions to hold your child for twenty-four hours if “the facts so warrant.” The “imminent danger” necessary for CPS to remove your child is not necessary for a hospital to hold your child for twenty-four hours.

The authority for a hospital to hold a child for twenty-four hours is much broader than the authority granted CPS to remove a child from his or her parents/guardian since “imminent danger” need not exist. This “twenty-four-hour hold” period gives hospitals time to contact CPS and hold the child until a CPS investigator can arrive. It prevents a parent/guardian from simply leaving with the child where it is apparent to that parent that hospital medical staff has concerns about abuse and/or maltreatment (neglect). A hospital might hold a child when the child is brought in with suspicious injuries indicative of abuse or excessive corporal punishment.

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