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Articles Posted in CRIMINAL APPEALS

New York Criminal Lawyers know that Sentencing is one of the most critical aspects of any criminal prosecution. During this phase, the court will consider many different factors and determine the appropriate sentence for the defendant. There are many types of sentences from which a judge can choose, but in some cases, the judge is required to impose certain mandatory minimum sentences. As a recent appellate opinion shows, having a seasoned New York criminal defense lawyer by your side during sentencing can make all of the difference.

The facts of the case are as follows. The defendant was convicted of two counts of violent robbery in November 2010. In 1994, however, the defendant had been convicted of a class B violent felony assault in the first degree. Initially, the defendant was sentenced to probation regarding the 1994 conviction. Following a probation violation, however, he was resentenced to a prison term.

During sentencing regarding the 2010 charge, an issue arose regarding whether his 1994 conviction constituted a predicate violent felony offense for the purpose of sentencing him as a second-time violent felony offender regarding the 2010 convictions. More specifically, the court was asked to decide whether the date of the first sentence imposed for the 1994 crime in lieu of the date of the resentencing imposed for the 1994 crime should be used to determine whether the prior conviction fell within the 10-year look-back period specified in New York’s violent felony offender statute.

As experienced New York criminal defense lawyers, we have seen many cases involving procedural errors. If you believe that your case involved a serious error or mistake that resulted in an improper conviction or determination, you can appeal the decision. To file a proper appeal, however, there are certain steps that you must take to preserve your rights and to ensure that your appeal will be heard. A recent New York appellate opinion discusses some of the requirements involved in making an appeal.

The background of the case involves a temporary protection order issued against the defendant in 2012. The defendant was arraigned on charges involving trespass and disorderly conduct involving a protest that she attended. The temporary order of protection was issued as a condition of bail and instructed the defendant to stay away from a certain military individual who sought the order. Four months later, the defendant was arrested again involving another protest on the ground of violating the temporary order of protection.

At trial, the defendant was convicted of criminal contempt in the second degree and acquitted of the disorderly conduct charge against her. The proceeding was conducted at a court where a stenographer is not present and where no court transcript is maintained. The trial court pronounced its sentence for the defendant’s conviction, and she appealed the same day. The defendant’s appeal documents did not include an affidavit of errors.

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One of the most confusing aspects of a New York criminal case for defendants and suspects to navigate is the procedural rules that apply. There are countless procedural rules that apply in criminal cases, which are primarily designed to ensure a fair proceeding and to provide the parties with fair notice about certain decisions, hearings, and events related to the claim. As New York DWI lawyers, we pride ourselves on staying current with procedural changes and ensuring that our clients’ rights are protected at each step of the legal process. Failing to make objections to procedural errors or to hold the prosecution accountable can have dire consequences for a defendant’s rights.In a recent appellate opinion, the defendant was charged with driving while impaired. In response to the charges, the defendant filed a motion to dismiss after his arraignment. The judge presiding over the motion denied the defendant’s request, and the matter proceeded to a bench trial. A bench trial is a trial that is conducted before a judge without a jury. The same judge who presided over the initial motion presided over the bench trial. Ultimately, the judge found the defendant guilty and issued a sentence against him in response to the conviction.

The defendant appealed the conviction. The matter was heard by the same judge who presided over the pretrial motion and the bench trial. Between the time of the conviction and the defendant’s appeal, the judge was elected to the appellate court. The judge reviewed the defendant’s appeal and upheld the conviction. The defendant appealed again, arguing that the judge should have recused himself from the appeal and that the judge’s failure to do so resulted in a reversible error.

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Sentencing is one of the most challenging aspects of any trial, and perhaps the most critical part of the legal process when it comes to how significantly the matter will affect the defendant’s future. At Tilem & Associates, our seasoned New York criminal defense lawyers assist defendants with ensuring that they receive no greater a sentence than they deserve. As a recent appellate opinion demonstrates, having a knowledgeable attorney in your corner can make all of the difference.

In the appeal, the defendant asked the court to review whether there was a sufficient legal basis for imposing consecutive sentences. The defendant was charged with a number of crimes, including burglary in the first degree and murder in the second degree. The defendant was accused of breaking into his ex-girlfriend’s home and stabbing her with a kitchen knife. Although the defendant admitted to causing the victim’s death, he asserted a defense indicating that he was under an extreme emotional disturbance.

Ultimately, the defendant was convicted of two counts of burglary and intentional murder. During sentencing, the prosecution contended that consecutive sentences were appropriate, due to the evidence presented regarding the brutal nature of the murder, which involved the defendant dragging the victim down a flight of stairs and stabbing her at least 38 times. Specifically, the prosecution noted that the defendant caused injuries to the victim on two separate occasions:  when he dragged her out of bed upstairs, and when he inflicted fatal wounds on her downstairs with the knife. In response, the defendant argued that consecutive sentences were inappropriate because the crimes constituted one continuing sequence of events that the defendant had formulated prior to breaking into the victim’s home.

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One of the most nerve-wracking and stressful phases of any trial is the sentencing phase. During this portion of the trial, a sentencing judge will consider a wide variety of factors in determining whether the defendant must face incarceration or other penalties. There are many rules that apply to sentencing that are designed to protect defendants from unfair sentences, or from facing penalties that exceed the scope of the alleged misconduct. As experienced New York City gun crime lawyers, the legal professionals at Tilem & Associates have the skills and knowledge it takes to navigate a sentencing hearing successfully and appropriately.

A recent appellate opinion highlights how important it is to understand the scope of your rights and available objections during a sentencing hearing. During the summer of 2011, a police officer was accused of raping, sodomizing, and sexually assaulting a schoolteacher in a courtyard area while off duty. The defendant used his police-issued firearm to threaten the victim, and evidence indicated that the weapon was loaded at the time the assault occurred. The defendant was charged with three counts of predatory sexual assault and three counts of a criminal sexual act in the first degree, and he was convicted of all of the charges. During sentencing, the defendant received a 25-year prison term with an additional 20 years of supervision after release for each of the counts of criminal sexual conduct and for each related count of predatory sexual assault. The sentence was to run consecutively, for a total of 75 years to life, with the sentence imposed for each criminal act running concurrently to the related conviction for predatory sexual assault.

The defendant appealed the consecutive sentencing, and the reviewing court upheld it, finding that the sentencing judge had a proper legal basis for imposing the consecutive sentences. It reasoned that while the convictions for predatory sexual assault involved similar criminal acts rendering concurrent sentences appropriate, the convictions for criminal sexual acts involved three distinct events, thereby justifying the consecutive sentencing.

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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.

When 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.

One 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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The 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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