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Articles Posted in CRIMINAL APPEALS

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In New York one may file a motion to vacate a conviction even after an appeal was denied. A person convicted of a criminal offense after a trial who has exhausted his appeals may still file what is commonly referred to as a “440” motion back in the original court where he was convicted.  Many times “440” motions are based upon newly discovered evidence.

Briefly, under CPL 440.10(1)(g), a court may vacate a conviction where new evidence has been discovered after trial, which could  not have been produced by the defendant at the trial and such evidence creates a probability of an outcome more favorable to the defendant.  Furthermore, the defendant must file his motion with due diligence after discovery of the new evidence.

Generally, however, such “new evidence” cannot be mere impeachment evidence.  In other words, such newly discovered evidence cannot simply be evidence that could have impeached the credibility of a prosecution witness.  However, this is not an absolute rule.  A court can vacate a conviction where the “key” prosecution witness lies at trial about prior criminal activity or other bad acts committed by him prior to him testifying.  In cases where courts have vacated convictions on such grounds, the witness who lied was the key or primary witness against the defendant and the case hinged on that witness’ credibility.

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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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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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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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Picture of drugsThe highest state court in New York recently issued an opinion discussing whether the prosecution can offer evidence of a defendant’s prior drug sale conviction in their direct case in instances in which the defendant is asserting an agency-based defense that is supported entirely by parts of the prosecution’s case-in-chief.

The facts of the case are as follows. In 2010, a number of undercover police personnel were engaged in a so-called buy-and-bust operation in Manhattan. The officers observed the defendant, along with another person, walking for roughly 40 minutes. Shortly thereafter, one of the officers reported seeing the other individual provide the defendant with money, after which the defendant walked across the street and into a residential apartment complex. A few minutes later, the defendant returned to his companion outside the building and provided him with certain items. Later, these items were identified as envelopes of heroin.

The police initiated a stop of the defendant and his companion. The officers discovered a sum of money in the defendant’s pocket and the narcotics in his companion’s pocket.

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gun with bulletsIn a recent opinion from New York’s highest state court, the defendant was convicted of possessing a weapon in the second and third degrees as well as the unlawful possession of marijuana. Before the jury trial, the defendant filed a motion to suppress evidence of a firearm located in his vehicle. During the hearing on the motion, a detective testified about the circumstances surrounding the arrest of the defendant and the subsequent search that revealed the firearm. The detective stated that he and his partner received a warrant for the defendant’s arrest based on a number of parole violations. The detectives made several attempts to locate the defendant’s whereabouts, including an occasion on which they made contact with the defendant’s ex-girlfriend.

Later that day, the ex-girlfriend called the detectives to inform them that the defendant could be found in a specific location in his vehicle. The detectives arrived at the stated location, however, and the defendant was not there. Shortly thereafter, the ex-girlfriend called again in a panic, stating that the defendant had her son in his vehicle and that the defendant told her he had a firearm in the vehicle. The detectives returned to the previous location and confirmed the defendant’s parked and vacant vehicle, using the DMV records database and information that the ex-girlfriend provided. The detectives entered the defendant’s nearby apartment, where he was located with the ex-girlfriend’s son. After the defendant was arrested, the detectives searched the vehicle and located the firearm that the ex-girlfriend mentioned in a bag on the backseat of the vehicle.

The lower court denied the motion to suppress, stating that the parolee status and the tip from the ex-girlfriend regarding the gun provided sufficient support for the search. The appellate division affirmed, and the defendant again appealed to the New York Court of Appeals, the highest court in the state. The defendant argued that the search was unlawful pursuant to a prior case because the search was conducted purely as a result of the defendant’s status as a parolee and that such a search can only be performed by the defendant’s parole agent, rather than detectives.

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empty witness standIn a recent New York appellate decision, the defendant challenged a conviction of first-degree assault, claiming that he was deprived of a fair trial because he was not afforded his constitutional right of confrontation. The defendant was tried before a jury regarding an incident involving an assault on his estranged wife’s romantic partner. The victim testified that while he was hailing a cab in New York with the defendant’s estranged wife and child, he was stabbed from behind several times. During the incident, the victim identified the attacker as the defendant.

The prosecution was unable to locate the wife to provide testimony regarding the incident. Instead, it informed the court that while the wife identified the defendant as the attacker when talking to the police, she informed the prosecutor preceding the trial that she did not want to testify and that she did not recall seeing the defendant during the attack. The prosecution wished to have a detective testify regarding the wife’s statements following the incident, but the defendant objected, claiming that this would be extremely prejudicial to the defendant’s case because he would not have an opportunity to cross-examine the wife about the statements she made to the police. In response, the trial court rejected the prosecution’s request to have the law enforcement official testify. The court also noted that the wife’s absence would be prejudicial because the jury would infer that her testimony would likely be harmful to the defendant’s case. To address these potential outcomes, the court instructed the jury that the wife was “unavailable and, therefore, could not be called as a witness.”

Following testimony from the victim, the prosecution called a detective as a witness, who indicated that he interviewed the wife immediately following the incident and that she identified the defendant as the perpetrator. The defendant objected to this commentary, stating that it made an improper implication to the jury regarding what the wife would or would not testify if she were present. The defendant also moved for a mistrial, but the court rejected this request and instead instructed the jury to not draw any inferences from the testimony.

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New York has banned the possession of stun guns by listing them as “per se” weapons in the Penal Law. Possession by a civilian even in a person’s home constitutes Criminal Possession of a Weapon in the Fourth Degree, a class “A” misdemeanor, punishable by up to one year in jail. There is no license available for civilians to be able to possess stun guns. Rather New York, like Massachusetts and New Jersey have a total ban on civilian possession of stun guns. However, last month, in the first Second Amendment case decided by the Supreme Court in years and in a stunning rebuke of the Supreme Judicial Court of Massachusetts, the United States Supreme Court struck down Massachusetts’ total ban on stun guns and found that stun guns, like any “bearable arms” are subject to the protections of the Second Amendment.

In Heller, in 2008 the United States Supreme Court ruled that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Bearable arms, is a very broad term that encompasses much more than firearms which are the usual focus of Second Amendment jurisprudence thanks in large part to the National Rifle Association and other similar groups. As a result of the focus on firearms very little has been written about other “bearable arms.” Two years later in McDonald, the Supreme Court ruled that the Second Amendment is fully applicable to the States.

In the case of CAETANO v. MASSACHUSETTS, decided last month by the US Supreme Court, the Court criticized the Supreme Judicial Court of Massachusetts’ analysis of the Massachusetts stun gun ban. The Massachusetts high court offered three explanations for why stun guns were not protected by the Second Amendment and the US high court rebuked them for each one explaining that each reason given was inconsistent with the Heller decision. First, the Massachusetts Court tried to explain that Stun Guns were not in general use at the time of ratification of the Second Amendment despite the fact that Heller specifically rejected that argument in 2008. Next the Massachusetts Court argued that Stun Guns were not adaptable for military use another argument specifically rejected in Heller. Lastly, the Massachusetts Court suggested that Stun Guns were an unusual weapon an argument that the Supreme Court equated with the first argument that they were not around during the time of ratification of the Second Amendment.

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Recently we reported in our blog that a DWI conviction was vacated on grounds of ineffective assistance of counsel where the lawyer simply had his client plead guilty to Driving While Intoxicated without conducting an investigation into the evidence in the case. Now, just last week, the United States Supreme Court reversed a conviction where a defense attorney neglected to tell the defendant about a plea offer and the defendant was later sentenced to a much more lengthy prison sentence than he would have gotten if he accepted the plea deal.

In the case of Missouri v. Frye the United States Supreme Court for the first time recognized that the 6th Amendment to the United States Constitution ensures that a defendant’s right to effective representation extends to the plea bargain process and that if the lawyer is ineffective during the plea bargain process, the defendant may be entitled to reversal of his conviction.

In the Frye case, Galin Frye was accused of driving with a revoked license. Since he had been convicted of this same offense three times in the past he was facing a felony charge which carries up to 4 years in prison. During the pendency of the case, the prosecutor told Frye’s lawyer that Frye could plead guilty to a misdemeanor and receive a sentence of 90 days. Frye’s lawyer never conveyed that offer to him and he subsequently plead guilty and received three years in prison. On appeal Galin Frye argued that that we was denied his right to counsel because of ineffective of assistance of counsel. His conviction was reversed.

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The New York State Appellate Court sitting in Brooklyn ordered a new trial for Anthony DiPippo who was convicted of rape and murder back in 1997. It was since discovered that Mr. DiPippo’s attorney in 1997 had a conflict of interest which denied Mr. DiPippo effective assistance of counsel. Attorneys for Mr. DiPippo brought a motion to vacate his conviction before County Court Judge Robert Neary who denied the motion but the Appellate Division, Second Department overturned Judge Neary’s decision after learning about the conflict. This marks the second time Judge Neary has been reversed by the Appellate Division in decisions published in the New York Law Journal in the last six months. Please see our previous blog for details on the prior reversal.

Mr. DiPippo was represented at trial by an attorney named Robert Leader who had previously represented Howard Gombert in an unrelated rape. During Mr. DePippo’s trial it became clear that Mr. Gombert was also a suspect in this murder and rape but Mr. Leader failed to disclose his obvious conflict of interest. Despite his assertions that he attempted to introduce photographs of Mr. Gombert’s car at the trial of Mr. DiPippo, the Appellate Division noted that the trial transcript didn’t contain any reference to the admission of the photos.

The right to counsel, that is the right to an attorney which guaranteed in the Sixth Amendment to the United States Constitution not only requires that a defendant in a criminal trial have an attorney but it further requires that the defendant has an EFFECTIVE attorney. If you or a loved one believes that you have been denied effective legal representation, please contact our office.