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Articles Posted in CRIMINAL APPEALS

When courts determine a defendant’s sentence, one of the factors they consider is the defendant’s prior record. Typically, the more convictions a defendant has on their record, the harsher the penalty they can expect to receive.

New York lawmakers have prescribed an escalating punishment scheme for “second felony offenders.” Under New York Consolidated Laws § 70.06, a second felony offender is someone who has recently been convicted of a qualifying offense and has a qualifying predicate offense. The punishments for second felony offenders are mandatory, meaning a judge cannot exercise her discretion to impose a more lenient sentence, and are significantly increased over those for first-time felony offenders. A proficient New York criminal appeals attorney can break everything down further regarding the details of your specific case once you reach out to them.

When it comes to determining whether a previous conviction is a qualifying predicate offense, courts look both to the date of the sentence as well as the type of crime. In a recent case, a New York appellate court clarified that it the original date of sentencing that courts should look to when determining if someone qualifies as a second felony offender.

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Self defense cases in New York can be particularly challenging and require a skilled and experienced attorney.  In New York self defense is referred to the defense of justification.  Recently, a state appellate court issued an opinion in a New York assault case discussing the defense of justification. Ultimately, the court reversed the defendant’s conviction for assault in the first degree and ordered a new trial based on the trial court’s failure to instruct the jury appropriately.

The Facts of the Case

According to the court’s opinion, the defendant was arrested and charged with attempted murder and several assault charges after he “slashed his roommate across the neck and stabbed him in the abdomen with a large kitchen knife.” Apparently, the alleged assault occurred in the men’s apartment during a physical altercation.

Evidently, the defendant presented evidence suggesting that he was justified in his actions. It is unclear from the court’s opinion the exact nature of the justification defense, but it was most likely self-defense. At the conclusion of the evidence, the court instructed the jury on each of the charged offenses, as well as the defendant’s justification defense.

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The New York State Sex Offender Registration Act (SORA), has added a very serious consequence to the commission of many crimes.  The requirements of SORA apply to both New York State convictions and to conviction from other states, if the convicted person is or becomes a New York resident.  Earlier this month, a state appellate court issued an opinion in a case discussing whether a defendant who was convicted for the murder of his 13-year-old sister in Virginia was required to register under the New York State Sex Offender Registration Act (SORA). Ultimately, the court concluded that registration was not required based on the fact that the defendant was not required to register as a “sex offender” in Virginia.

The Facts of the Case

According to the court’s opinion, the defendant was convicted for the murder of his 13-year-old sister in Virginia back in 1989. It was undisputed that there was no sexual element involved in the killing. However, as a result of that conviction, the defendant was required to register for life under Virginia’s Crimes Against Minors Registry Act, which required registration for numerous offenses, including some that were not sexual in nature.

After serving his sentence, the defendant moved to New York. Upon arriving, the Board of Examiners of Sex Offenders was notified and required the defendant to register as a Level III offender. The defendant challenged the registration requirement.

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Recently, a state appellate court issued a written opinion in a New York assault case requiring the court discuss an issue that is important to understand for all who are facing New York criminal charges. The case presented the court with determining whether the defendant’s conviction was supported by the weight of the evidence presented at trial. Ultimately, the court concluded that the evidence did support the jury’s verdict, and affirmed the defendant’s convictions.

The Facts of the Case

The defendant was arrested and charged with two counts of assault in the second degree and one count of tampering with evidence. The case proceeded to trial in front of a jury, where it was established that the defendant got into a fight with two other men. During the fight, the defendant produced a knife because he wanted to scare the other men. He specifically stated that he did not intend to injure them.

The defendant also testified that during the fight, he swung the knife at the two men when they were very close to him. He could not remember if he used a slashing or stabbing motion, and a medical witness testified that the victims had injuries that were consistent with either slashing or stabbing.

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New York DWI lawyers must understand the science as well as the law.  Under long-standing U.S. Supreme Court case law, the prosecution must disclose all evidence that is material to guilt or innocence to the defense. This means that in a New York DWI/DUI case, the prosecution has an obligation to hand over not just the evidence that it plans to use to establish that the defendant is guilty beyond a reasonable doubt, but also evidence that would tend to show that the defendant did not commit the crimes charged.

In a recent New York DUI case, the court considered the extent of the discovery that must be provided to a defendant facing charges of operating a motor vehicle while intoxicated.

The Facts of the Case

The defendant was pulled over while traveling 81 miles per hour in a 50-mile-per-hour zone. Upon pulling the defendant over, the officer claimed the defendant had glassy eyes, slurred speech, and an odor of alcohol on his breath. When asked, the defendant told the officer that he had consumed a single drink.

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Recently, a state court issued a written opinion in a case involving allegations that the defendant violated a New York order of protection. The case required the court to determine if the defendant was correct in asserting that the police entered her home without a warrant and without sufficient cause to do so. Ultimately, the court concluded that the police acted improperly, and thus any evidence obtained as a result should have been suppressed.

The Facts of the Case

The defendant had been previously placed on probation based on an unrelated matter. As a condition of that probation, the court issued an order of protection, requiring the defendant to stay away from a certain individual.

One day, police received a call from the downstairs neighbor of the defendant, stating that she heard noises in the apartment. This concerned her because she believed the defendant to have been incarcerated. Police verified that the defendant had previously been released from jail, but went to the apartment anyhow.

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Generally, a defendant in a New York criminal trial does not go to trial expecting that they will be found guilty. On the one hand, if a defendant is innocent of the crimes charged or believes the case against them to be weak, they will fight the case in hopes of being found not guilty. On the other hand, if a defendant believes the case against them to be a strong one, they will normally negotiate a plea agreement through their attorney.There are some cases, however, that fit somewhere in the middle. For example, consider a New York gun possession case in which a gun is recovered from a person by a police officer. If the gun is admitted into evidence, the prosecution will not have a difficult job at trial, needing only to prove that the defendant possessed the gun. However, the defendant may have a strong motion to suppress the gun from evidence, based on the police officer’s conduct leading up to the search and seizure.

In this case, the defendant would litigate a motion to suppress the physical evidence in the case, namely the gun. If successful, the prosecution would be unable to admit the gun into evidence, and in many gun possession cases, the prosecution will withdraw at this point. However, if the defendant’s motion is denied, there is often little to be gained by proceeding to trial – at which the prosecution need only prove that the defendant possessed the weapon.

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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.

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Earlier this month, the United States Supreme Court issued a written opinion in a robbery case requiring the court to determine whether the police should have obtained a warrant prior to obtaining the defendant’s cell phone location data. Ultimately, the court concluded that the level of intrusion in obtaining cell phone location data amounts to a “search” under the Fourth Amendment and should be supported by probable cause.

The Facts of the Case

The defendant was arrested after police obtained his cell phone number from another man who was arrested under suspicion of a string of burglaries. The police had no evidence other than this man’s word that the defendant was involved in the robberies.

Taking the defendant’s cell phone number, the police contacted the defendant’s cell carrier and obtained historical location data over a 127-day range. The information contained approximately 100 data points per day, for a total of nearly 13,000 data points. The historical location data showed the defendant around the area where the robberies occurred, corroborating the man’s statement that the defendant was involved in the crimes.

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One of the hallmarks of our criminal justice system that evidence of prior criminal conduct is not permitted to show a persons propensity or tendency to commit crimes.  Except in very limited circumstances evidence of prior criminal conduct is not permitted on the prosecutions direct case.  However, if a defendant chooses to testify the Court is required to hold a pre-trial hearing called a Sandoval hearing to determine in advance what if anything the prosecution can use to cross-examine the defendant about his criminal past.  The purpose of the hearing is to weigh and balance the People’s interest in testing the defendant’s credibility and the defendant’s interest in ensuring that he is not convicted because a jury heard about prejudicial prior criminal conduct.

Earlier this month, a state appellate court issued a written opinion in a New York burglary case in which the court was tasked with determining if the defendant was entitled to a new trial when the prosecution brought up the fact that he had previously been convicted of a robbery that was currently in the process of being appealed. Ultimately, the court concluded that the lower court improperly allowed the defendant to be cross-examined regarding the prior robbery, and this error was not harmless. Thus, the court ordered a new trial to be conducted.  As we have reported in the past this is not the first case to be revered for such errors.  Please see our prior blog.

The Facts of the Case

During a trial for burglary, the defendant chose to testify on his own behalf, which is his constitutional right. After the defendant had finished answering the questions posed to him by his own attorney, the prosecution conducted cross-examination.

It was during this cross-examination that the prosecutor asked the defendant about a prior robbery conviction. Normally, evidence of prior criminal acts is not relevant at trial and may not be explored by the prosecution. However, under certain circumstances, convictions for crimes involving dishonesty – such as theft, robbery, etc. – may be the subject of cross-examination.  In addition, one who shows through their past criminal conduct that they are willing to put their interests over those of society’s may be more willing to do so again by lying under oath.

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