CRIMINAL APPEALS Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

When Should a Trial Attorney File a Motion to Suppress?

February 6, 2025 | Peter Howard Tilem

As we have often discussed, one powerful tool that criminal defense attorneys can employ is the motion to suppress incriminating evidence. When a trial court grants a defendant’s motion to suppress, the jury never sees the evidence that the defendant has asked the court to keep out of the trial record. These motions, when successful, can make all the difference for defendants in New York, and they often help defendants win their cases.

How do you know if you, as the defendant, should be filing a motion to suppress? There are several flags that should alert you that there might be grounds for the trial court to suppress incriminating evidence in your case. These include: an unlawful encounter with the police, an officer’s failure to give Miranda warnings, errors in a field sobriety test, and problems with how the State handles evidence before it is admitted in court. Generally, if the prosecutor wishes t0 use incriminating statements, physical evidence or a police arranged identification as evidence at trial, an experienced criminal defense lawyer will include a request for suppression of that evidence as part of their omnibus motion.

It is also true that if you think there might be a chance the court could grant your motion to suppress, it is often better to present the motion than to hold back. In a recent case before a New York court, the defendant appealed her guilty verdict, arguing she received ineffective assistance of counsel when her attorney failed to file a motion to suppress that could have been successful. The court granted the defendant’s appeal, concluding that the defendant’s attorney failed her by not asking the court to suppress evidence that investigators found in a search that might have exceeded the scope of their warrant.

Can Minor Violations of Traffic Law Reasonably Lead to a Traffic Stop in New York?

January 30, 2025 | Peter Howard Tilem

If you drive on the roads of New York, you are automatically susceptible to police-initiated traffic stops for traffic violations. There is much debate, however, about what circumstances can lead an officer to have “reasonable suspicion” to stop a driver for a traffic stop. Without reasonable suspicion that some law has been violated, police officers are supposedly prohibited from initiating these stops. Can a minor violation in traffic laws give an officer reasonable suspicion under New York law?

Opinion Issued by New York Court

A New York court recently issued an opinion confirming that yes, minor violations in traffic laws can be legal grounds for a traffic stop. In the court’s opinion, it considered a defendant’s argument that his broken headlights and tinted windows were not enough to give an officer reasonable suspicion to stop him while he was driving. Therefore, argued the defendant, any evidence that the officer found in his car during the traffic stop should have been suppressed by the trial court judge in his criminal case. The two infractions cited by the police for the stop were 0 point traffic infractions.

The court concluded that broken headlights and tinted windows were sufficient grounds for a traffic stop. According to New York traffic law, all motor vehicles must display at least two lighted head lamps on the front. In addition, no motor vehicle is allowed to be covered with material with “light transmittance of less than seventy percent.” The officer’s view of the defendant’s car gave him reasonable suspicion to initiate the stop, given the defendant’s broken headlights and tinted windows. The court was unpersuaded by the defendant’s argument that the officer did not actually have a valid reason to stop him while he was driving.

What Happens When Your Criminal Case Goes Through Multiple Appeals?

July 18, 2024 | Peter Howard Tilem

If you receive an unfavorable jury verdict in a criminal trial, the good news is that you can appeal that verdict. Sometimes, though, even if the higher court grants your appeal, the State might appeal again, subjecting you to additional waiting and uncertainty. A recent case before the New York Court of Appeals serves as an example of this process, and in this case, even though the defendant got a favorable decision on his first appeal, he got an unfavorable decision from the second appeal when the court decided the prosecution’s error in his trial was ultimately “harmless.”

Originally, the defendant in this case was charged with first-degree assault and attempted murder. The defendant pled not guilty, his case went to trial, and a jury found him guilty of the assault. On appeal, though, the defendant argued that it was unfair for a police officer to testify regarding the victim’s daughter’s statements about the attack. Because the officer testified about the daughter’s statements, the defendant argued he was deprived of his right to cross-examine the daughter about what she said.

The Appellate Division agreed that this testimony was a violation of the defendant’s rights. It granted the defendant’s request and gave him an entirely new trial. The State appealed again, and the New York Court of Appeals then had to decide whether it was correct for the defendant to be given this new trial.

What Happens When a Judge Takes a Side During Trial?

June 30, 2024 | Peter Howard Tilem

In courtroom proceedings, part of the judge’s job is to be as impartial as possible. We have written blogs before about Judges being reversed for failing to act in an inpartial manner at trial. In a recent case before a New York court, the defendant argued that the judge failed to perform this duty during the proceedings before the trial court. Looking at the trial court’s record, the higher court agreed, determining that the judge became biased and helped the prosecution argue its case, when, in reality, he should have let the government attorney make the case himself. The higher court granted the defendant a new trial.

Batson Challenges

In criminal proceedings, each side has the opportunity to “strike,” or eliminate, several prospective jurors without cause. These challenges to a jury are called peremptory, challenges for which you don’t need to give a reason. .If, however, an attorney strikes a possible juror, and the other side shows that the attorney was operating based on racial discrimination, it becomes the striking attorney’s job to come forward with a reasonable explanation for the decision. The explanation must be what the court calls “race-neutral.” The challenges based on racial discrimination are commonly referred to as Batson challenges.

The Judge’s Role in Batson Challenges

When an attorney challenges the other attorney’s decision to strike a possible juror, the judge’s responsibility is to then let the second attorney make his argument. The argument should be able to show that the decision to strike the juror was not based on race, sex, or ethnicity.

New York Court Upholds Defendant’s Contempt Conviction, Despite Ineffective Assistance of Counsel Argument

June 22, 2023 | Peter Howard Tilem

In a recent case before a New York court, the defendant argued that his defense attorney was ineffective in representing him at the trial level. Originally, he was found guilty of both criminal contempt and committing an aggravated family offense, but the defendant thought he was entitled to receive an entirely new trial because of his attorney’s mistake. After reviewing the defendant’s argument, the higher court dismissed the aggravated family offense count but ultimately upheld the conviction for criminal contempt.

Facts of the Case

According to the opinion, the defendant went into his former girlfriend’s apartment one day in 2016 when there was an active stay-away order that legally prohibited him from being in her presence. While he was there, the defendant put his hands around his ex-girlfriend’s neck and stole her ID cards. The ex-girlfriend called the police, and the officers arrested the defendant immediately.

He was subsequently charged with criminal contempt because he had violated the stay-away order that was in effect. He was also charged with committing a family offense, which means that he committed a violent act against a relative or person with whom he had an “intimate relationship.” The defendant was found guilty, and he promptly appealed.

New York Intoxication Defense – Defendant in Assault Case Successfully Argues Jury Should Have Considered Intoxication When Deciding Guilty Verdict

December 8, 2022 | Tilem & Associates

In a recent New York Criminal Assault case which was appealed to the New York Appellate Division, the defendant asked for his guilty conviction to be reversed. Originally, the defendant was found guilty of assault in the second degree after an altercation in a bar one evening. On appeal, he argued that the court should have given the jury the option of deciding that he did not have the necessary guilty intent because he was intoxicated, and his judgment was clouded by alcohol. Although, voluntary intoxication is generally not a defense in New York, Penal Law sec 15.25 makes clear that evidence of intoxication can be used to negate an element of a crime, such as intent. The court ultimately agreed with the defendant and reversed the judgment.

Facts of the Case

According to the opinion, the defendant in this case walked into a bar one evening holding a bottle of Heineken beer. He interacted with other patrons of the bar, and witnesses later described his behavior as “loud, obnoxious, and argumentative.” At one point, the bartender asked the defendant if he had a designated driver.

In an unclear string of events that followed, the defendant asked another individual to step outside. At this point, the defendant allegedly assaulted the victim, and he was later charged with assault in the second degree. At trial, the jury found the defendant guilty as charged.

NEW YORK SECOND AMENDMENT LAWYERS WIN FIVE YEAR BATTLE TO CLEAR NAME OF MASSACHUSETTS LICENSED GUN OWNER AFTER APPELLATE COURT SUPPRESSES FIREARM AND DISMISSES INDICTMENT

March 31, 2021 | Peter Howard Tilem

New York’s premier second amendment law firm announced that a Massachusetts licensed gun owner who was

Mass has very strict gun laws

arrested for bringing his licensed pistol into Manhattan won a five-year battle to clear his name yesterday after the Appellate Division ruled that the police violated the gun owners Fourth Amendment rights after they stopped a vehicle that he was a passenger in for allegedly running a red light. Tilem & Associates, PC, won the decision suppressing the gun and ordering the indictment dismissed after they appealed the denial of the suppression motion and ultimate plea on behalf of the licensed gun owner whose first name is Sandley. You can read the appellate court decision here.

Court Addresses Insufficiency of Accusatory Instrument in New York Aggravated Harassment Case

February 8, 2021 | Peter Howard Tilem

An appellate court recently issued an opinion affirming aggravated assault charges against a New York criminal defendant. Using one accusatory instrument for two separate incidents, prosecutors charged the defendant with harassment in the second degree, and two counts of aggravated harassment in the second degree. The complainant alleged that the defendant threatened her daughter in one incident, and the second incident involved multiple phone calls from the defendant. Among other issues, the complainant contended that she recognized the defendant’s voice, and the calls made her fear physical injury to her and her daughter. The defendant pleaded guilty to an underlying charge of disorderly conduct, which was added to the pleading. However, on appeal, the defendant challenges the accusatory instrument’s facial sufficiency.

An accusatory instrument is a document that alleges a criminal defendant’s violation of a petty or criminal offense. Under New York case law, a valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to criminal prosecution. Although the law does not require the instrument to be the most precise, it must provide the accused with sufficient notice and details to prepare an adequate defense. A defendant’s guilty plea will not correct a jurisdictional defect created by a facially insufficient accusatory instrument. In this case, all of the counts in the accusatory instrument were equal to or higher than the uncharged violation the defendant pleaded guilty to. For a successful appeal, all of the defendant’s accusatory instrument charges would have to be facially insufficient. Moreover, because the defendant waived the right to be prosecuted by information, the accusatory instrument must be reviewed under misdemeanor complaint standards.

A person is guilty of second-degree harassment if they intend to harass another person followed by specified conduct, and the actor knows that the conduct will cause the other person to fear harm. Most of these charges stem from a threat and actions such as phone calls, texts, emails, and physical threats, or a combination of these behaviors. Here, the complainant’s accusatory statement was facially valid because :

Curative Instructions in New York Criminal Trials

November 8, 2020 | Peter Howard Tilem

Throughout the New York criminal trial process, it is not uncommon for comments or evidence to come into the trial that could prejudice either side. Courts take precautions to instruct attorneys and witnesses not to say certain things, and to avoid particular topics. However, the jury will inevitably be exposed to comments or evidence that it should not have seen or heard. When this happens, it may result in a mistrial. However, courts are reluctant to declare a mistrial unless absolutely necessary and, in many cases, will provide the jury with a “curative instruction” instead.

Recently, a state appellate court issued an opinion in a New York assault case discussing whether a juror’s comments during the trial necessitated a mistrial. Ultimately, the appellate court held that the trial court’s curative instruction was sufficient to cure any prejudice to the defense.

The Facts of the Case

According to the court’s opinion, the defendant was on trial for second-degree assault. Two other men were also on trial for the same crime. During the trial, in an attempt to goad the complaining witness, one of the defendants’ attorneys repeatedly asked the complaining witness whether he referred to the defendant by a racial slur. The defense attorney used the actual word, rather than self-editing. After repeating the word multiple times, one of the jurors stood up and exclaimed, “Please, I am not going to sit here . . . and have you say that again. Don’t say it again or I’m leaving. . . . I find that very offensive.”

The Importance of Preserving Errors for Appeal in New York Criminal Trials

February 19, 2020 | Tilem & Associates

In a New York criminal jury trial, the judge has several critical roles. In general terms, the judge determines the “rules” by which the trial will be conducted. For example, the judge will resolve all pretrial motions, manages the jury selection process, rules on objections during the trial, and instructs the jury at the conclusion of the trial. One of the most essential roles of a judge is also to act as the gatekeeper, meaning the judge will determine which evidence will be presented to the jury.

Not surprisingly, a judge’s rulings on these issues can drastically affect the outcome of a trial. And because judges are human, they are prone to making errors. In fact, that is the very purpose of the New York appellate process; to review the trial court’s legal decisions which led to a conviction. Thus, when a party believes that a judge made an error at trial, that party must object. When a party objects to a ruling, they must state the basis for the objection. Typically, when an objection is made, the judge will hear argument on the objection outside the presence of the jury and issue a ruling. It is up to the party making the objection to make sure the judge knows the basis of the objection and is aware of the legal support behind the objection. AS a general principle the Judge must be given an opportunity to fix the error in order to preserve your right to appeal on an issue.

When an appellate court grants review of a case, it will typically consider all arguments raised in the defendant’s brief. However, an appellate court may apply various standards when reviewing an error. For issues that were properly raised at trial, an appellate court uses what is called “de novo” review, meaning that the court will not give the lower court’s decision any deference.