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Articles Posted in CRIMINAL PROCEDURE

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Over the last few years, there has been a backlash against the New York stop-and-frisk program, based on the fact that racial minorities were being stopped in far greater numbers than non-minority populations. And while by most accounts, the total number of people stopped and frisked has decreased, the basic principle that allows a police officer to stop and frisk a citizen still remains intact and these principles are important for experienced criminal defense attorneys who handle both gun crimes and drug crimes to be familiar with.

Stop and FriskUnder New York criminal law, there are four types of interactions with police. First, police may briefly stop someone to request information if they have any “objective and credible” reason. This does not necessarily have to be related to criminal activity. Second, if police believe that someone has, or is about to, commit a crime, they can briefly stop that person. Third, if police believe that the person poses a danger, they can search that person. Finally, if police have probable cause to believe that person committed a crime, they can arrest them.

In the moment, police have a difficult time neatly fitting each situation they confront into one of these four categories. As a result, police generally err on the side of restricting a person’s rights and will frequently exercise more force than is necessary. When this is the case, any evidence seized as a result of an officer’s violation of a person’s rights may be suppressed by the court.

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Recently, in Nassau County, we successfully argued for the reduction of a Sex Offender Registration Act (SORA) Offender to have his risk assessment classification reduced from a level two down to a level one.  This change can have a dramatic effect on the life of a convicted sex offender who is rehabilitated and trying to move on with his or her life.

New York Corrections Law sec 168-o gives registered offenders the right to argue up to once per year for a downward reduction in their offender status and further gives the offenders the right to argue to be relieved of all registration requirements after 30 years after the date of initial registration.  This application can only be made once every two years after the 30 years has expired.

Generally, registered sex offenders in New York are designated into one of three classifications.  Level 3 offenders are considered the most likely to reoffend and are monitored the most closely.  Level 3 registration for example in addition to all of the other requirements for Level 1 and 2 offenders will need to personally verify their address with law enforcement every 90 days.  In addition, level 3 offenders will need to have their picture taken by law enforcement every year as opposed to level 1 and 2 offenders every 3 years.

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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.

Concertina WireThe 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.

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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 CaseHandcuffs

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.

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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.

DNA TestThe 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.

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juror boxAs we have been discussing in previous blogs, there are many different issues that can arise in the jury selection process. The main objective is to ensure that the jurors who are selected for the trial will act without bias and that they will be able to apply the law in an objective manner. As seasoned New York criminal defense lawyers, the attorneys at Tilem & Associates have handled many trials and jury selections. We know how important it is to understand the rules of jury selection and how critical it is to ensure that you receive an appropriate and unbiased panel of jurors.

Recently, a New York appellate court considered the role that a juror’s skin color may play in the jury selection process. The court was asked to determine whether a juror’s skin color is a sufficient basis for challenging a prosecutor’s use of a peremptory strike to remove that juror. A peremptory strike describes the right of either party to challenge the selection of a juror without having to provide a reason for wanting to excuse that prospective juror. During the jury selection process, each side has a certain number of peremptory strikes that they are allowed to use. The parties are allowed to assert an unlimited number of challenges to jurors when the parties provide just cause for wanting to excuse that juror.

The United States Supreme Court has held, however, that peremptory strikes cannot be used to dismiss a juror based on his or her skin color or gender. If a party believes that the other side is using peremptory strikes to dismiss jurors based on skin color or gender, the party can challenge the other side’s peremptory strike, particularly when the challenging party believes that the other party is engaging in discrimination. The challenging party has the burden of making a prima facie showing that the other party used peremptory challenges to exclude jurors based on skin color.

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Man on PhoneOne of the most critical phases of a trial is providing instructions to the jury before deliberation. There are form jury instructions that the judge can use, but the parties are also allowed to offer suggested jury instructions. The type of instructions that the jury receives can have a serious impact on the ultimate verdict that they return. Additionally, if you believe an error was made during jury instructions, it is critical that you object to it on the record so that you can later appeal the matter. At Tilem & Associates, our team of New York criminal defense lawyers has guided numerous clients through the jury instruction phase.

A recent New York appellate opinion discusses alleged errors in jury instructions. The defendant was charged with a number of crimes, including coercion involving his ex-girlfriend. The defendant was accused of making physical threats against the former girlfriend and threatening to ruin a business that she operated after the girlfriend asked the defendant to move out of her apartment. The defendant allegedly made these threats in an attempt to stay at the apartment. The defendant was on parole at the time he made these threats, so the girlfriend reported the threatening conduct to his parole officer. The parole officer then had the defendant arrested. Evidence at trial suggested that the defendant continued to make threats against his ex-girlfriend while he was in prison.

During trial, the defendant asked the judge to instruct the jury on coercion in the second degree as a lesser-included offense of coercion in the first degree. In making this request, the defendant asserted that his conduct did not rise to the level of heinousness contemplated by coercion in the first degree. The trial court denied his request. At the close of trial, the jury returned a verdict convicting the defendant of coercion in the first degree on two counts. The defendant appealed.

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empty jury boxAs we discussed in our previous blog, if you are involved in a criminal trial, one of the most crucial steps is selecting the jurors. There are many rules that apply to this part of the legal process, and it is crucial to make sure you protect your right to a fair and unbiased jury. As seasoned New York criminal defense lawyers, the trial attorneys at Tilem & Associates have guided many individuals through the jury selection process and their case in general.

A recent New York appellate opinion discusses a case involving a jury dismissal issue. The defendant was facing criminal charges in connection with the death of a five-year-old. During the jury selection phase, defense counsel questioned one of the prospective jurors regarding whether or not he or she had issues with the fact that the case involved the death of a toddler. The juror indicated that he could not be impartial because of the victim. Another juror indicated that he also felt he could not be impartial. The defense counsel asked the jurors whether they agreed that the burden to prove guilt beyond a reasonable doubt was on the prosecution. The jurors all agreed, including the two jurors who indicated that they did not believe they could remain impartial. The defense counsel then asked whether the jurors would have trouble finding the defendant not guilty if the prosecution failed to meet its burden of proof. One of the jurors who showed initial hesitation expressed doubt about this question.

The trial court then asked the doubtful jurors a series of questions to determine their ability to be unbiased and to apply the law fairly. Based on this examination, the court dismissed one of the jurors. Defense counsel asked the court to dismiss the other doubtful juror, but the court denied this motion. Defense counsel then used one of their peremptory challenges to dismiss the juror. The case proceeded, and the defendant eventually appealed the judgment.

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Jurors Swearing InAs experienced New York criminal defense lawyers, we often receive questions about the jury selection process and the rules that apply to ensure that a fair and unbiased jury is selected.  Jury selection, the process of choosing fair and impartial jurors can be one of the most critical stages of a jury trial.  During the selection process, lawyers are permitted to ask the jurors questions and can select certain jurors to be removed, either based on their answers or based on a certain number of challenges they can use without having to explain their reasoning. A recent appellate opinion discusses the rules that apply to questioning jurors.

The defendant in the action was charged with murder. The defendant provided a written and verbal statement to law enforcement officials regarding the shooting and the events that led up to it. He said that the victim approached him to discuss a missing cell phone and that the victim later approached the defendant again and threatened him with an ice pick. The defendant said he then shot at the defendant as the defendant fled. The prosecution identified two witnesses to these events.

Before the jury selection phase of the trial, the defendant’s lawyer asked if the court could instruct the prospective jurors about the rules that apply to the use of the defendant’s statement. The lawyer wanted to make sure that he could weed out any jurors who would be unable to accept the rules that apply to involuntary statements and who would automatically assign weight to any statement regardless of how it was procured. The prosecution indicated that it had not decided whether it intended to admit the defendant’s statement into evidence. The court ultimately declined the defense lawyer’s request, finding that the jury selection phase was not the appropriate time to address this issue.

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judge with gavelNew 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.