CRIMINAL APPEALS Category Archives — Page 3 of 7 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Court Discusses What Discovery Is Mandatory in New York DWI/DUI Cases

September 24, 2018 | Tilem & Associates

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.

New York Court Discusses the Emergency Exception to the Warrant Requirement

August 27, 2018 | Tilem & Associates

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.

The Importance of Preserving Appellate Rights in New York Criminal Trials

August 21, 2018 | Tilem & Associates

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.

Preservation of Error in New York Criminal Cases

July 21, 2018 | Tilem & Associates

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.

Supreme Court Holds that Police Need a Warrant to Obtain Cell Phone Location Data

July 14, 2018 | Tilem & Associates

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.

New York Appellate Court Reverses Defendant’s Conviction Based on Improper Questioning Regarding Prior Robbery

June 15, 2018 | Tilem & Associates

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.

New York Appellate Court Finds Trial Judge Should Have Had Hearing on Defendant’s Motion to Vacate Judgment Based on Uncontested Witness Affidavit

June 7, 2018 | Peter Howard Tilem

Post-Judgment motions such as CPL 440.10 motions can be very important to a person already convicted in criminal cases. Very often an appeal cannot address a problem that occurred at the trial such as a lying witness or ineffective assistance of counsel. In such cases, a post-judgment motion may be the only solution.

Earlier this month, a state appellate court issued a written opinion in a New York arson case discussing the defendant’s motion to vacate the judgment, which was denied by the trial court. The appellate court ultimately held that, given the uncontested evidence presented by the defendant in the motion, the lower court should have granted a hearing to determine if the defendant’s motion should have been granted.

The Facts of the Case

The defendant was charged with first- and second-degree arson. Part of the state’s evidence against the defendant was the testimony of a witness who claimed that the defendant confessed to starting a house fire. After a trial, the defendant was convicted on both counts.

The defendant filed a motion to vacate the judgment and submitted an affidavit from the prosecution witness. The affidavit stated that the witness was told by a police investigator that if she testified on behalf of the defendant, the officer would take her daughter away from her. The witness explained that this was concerning to her. The state offered no contradictory evidence, but the trial court denied the defendant’s motion to vacate summarily, without conducting a hearing on the matter.

New York Appellate Court Dismisses Defendant’s Murder Charge Based on a Violation of His Right to a Speedy Trial

March 26, 2018 | Tilem & Associates

New York speedy trial statutes can be very effective tools in fighting New York criminal cases ss we have discussed in several blogs. Earlier this month, the New York Court of Appeals issued an opinion dismissing a New York homicide case and discussing the defendant’s right to a speedy trial. Ultimately, the court concluded that the six-and-a-half year wait between the defendant’s arrest and his eventual guilty plea violated his constitutional right to a speedy trial. As a result, the court reversed the defendant’s guilty plea and dismissed the indictment.

The Facts of the Case

The defendant, along with his co-defendant, was alleged to have shot and killed a 15-year-old. The defendant was the one who allegedly pulled the trigger, and the co-defendant acted as an accomplice. Both the defendant and his co-defendant were arrested shortly after the victim’s death, on May 28, 2008. The defendant was held without bail.

The prosecutor hoped that the co-defendant would testify against the defendant and delayed the trial several times while trying to work out a deal with the co-defendant. However, when asked at a later date, the co-defendant explained that he would never testify against the defendant, and he did not consider the offer seriously.

New York Court Discusses Inherent Unreliability of Cross-Racial Identification

March 20, 2018 | Tilem & Associates

Experienced criminal attorneys have long been aware of the inherent unreliability of cross racial identification. Cross-racial identification is the eyewitness identification of a suspect in a criminal case when the witness is a different race than the suspect. Recently, an appellate court issued a written opinion in a New York robbery case involving the defendant’s challenge to the lower court’s refusal to instruct the jury on the unreliability of cross-racial identifications. The appellate court determined that the lower court was in error when it refused the defendant’s request, reversed the defendant’s conviction, and ordered that a new trial be granted.

The Facts of the Case

The defendant was arrested after two white men reported being robbed at knife point. The facts of both robberies were similar, in that the alleged perpetrator approached the victim, asked the time, and then grabbed the victim’s cell phone when they pulled it out to see the time. Each of the victims told police that the man who had robbed them was African-American and about six feet tall.

After his arrest, the defendant was placed in a line-up with several other individuals. One of the victims picked the defendant out immediately. The other victim was unsure until the police instructed all of the men in the line-up to ask “what time is it?” at which point the defendant was identified. There was no physical evidence tying the defendant to the crimes.

New York Appellate Court Finds Trial Court Denied Defendant Right to Counsel During Request for DNA Test

March 1, 2018 | Tilem & Associates

All defendants in New York criminal cases enjoy the right to have the assistance of competent counsel at all critical stages of the case against them. In a recent New York homicide opinion, the New York Court of Appeals determined that a trial judge denied a defendant the right to counsel when the judge asked the defendant to consent to a DNA test without the presence of his attorney.

The Facts of the Case

The defendant was arrested and charged with homicide. At some point in the police investigation, biological evidence was located in the apartment where the homicide occurred. In an attempt to match the sample discovered in the apartment to the defendant, the prosecutor filed a motion to obtain a sample of the defendant’s DNA.

At the time the prosecutor made the request, the defendant was represented by counsel. However, shortly thereafter, the court excused counsel from the case. Later, the judge called the defendant in to discuss the DNA test.