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Articles Posted in CRIMINAL PROCEDURE

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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.

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New York’s new sealing law which authorizes the sealing of up to one felony conviction and two total convictions went into effect in New York last week and is already creating new possibilities for those with old criminal convictions.  Up until recently a New York expungement law would be considered to be almost impossible.  After all as experienced criminal defense lawyers there is rarely a week that goes by without a call from someone asking about “expunging” criminal convictions and we as attorneys were frustrated with what used to be the answer; that there was no way of sealing old criminal convictions in New York.old_dl_for_sample_docs-300x150

Like all the uncertainty surrounding all new laws no one really knows how impactful CPL 160.59  will be.  One factor will be whether prosecutors routinely oppose applications to seal under CPL 160.59 or not.  The other will be what types of hearings are used by the Court and lastly how generous will the Courts be in sealing old convictions.

Another question pertains to the use of prior alcohol related driving convictions to deny people driver’s licenses.  The New York Department of Motor Vehicles (DMV) is currently applying a twenty-five year look back and denying those with three or more alcohol related driving convictions reinstatement of their driver’s licenses.  These revocations are essentially turning into lifetime revocations.  As we reported last month, our firm has already filed a lawsuit against DMV because we believe that prior DWI convictions cannot be used to deny people licenses if the Court (or the Department of Corrections)  has issued a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.

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orange prison clothesJury selection is one of the most important aspects of any case. At Tilem Law Offices, our seasoned New York gun crime lawyers have handled countless voir dire selection processes and understand just what it takes to make sure that you receive a fair jury. As a recent appellate opinion indicates, even the clothes you are wearing during jury selection may have an impact on your legal rights.

In the case, the defendant was arrested while entering a vehicle that was reported stolen at gunpoint nearly two weeks before. The defendant was charged with both first-degree and second-degree robbery. Before the jury selection phase of the trial, the defendant noted that he was not wearing his own clothing and that he was not provided with a chance to contact his family. The defendant requested an adjournment, which was granted. The judge granted the adjournment to allow the defendant a chance to obtain plain clothes, as opposed to the orange correctional facilities jumpsuit that he was wearing. After the adjournment, the defendant returned wearing a plain black top but still wearing orange correctional facility-issued sweatpants. Since the defendant was seated at the end of a long table, and since the judge believed that the jury would not be able to see the defendant’s sweatpants, the judge denied the defendant’s request to postpone jury selection until he could obtain plain clothes.

The prospective jurors were asked whether they noticed anything about the defendant. One indicated noticing that the defendant was in a wheelchair, which the parties explained was irrelevant to the case. Six jury members were selected that day. On the next day, the defendant was wearing a suit, and the jury selection process continued. Testimony from the victim and the arresting officer was provided, and the jury returned a verdict convicting the defendant of both counts of robbery.

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As New York Criminal Defense lawyers we are constantly called about expunging old New York Criminal records and over the many years I have been in practice it has been frustrating to inform people whose lives have been forever altered by an old New York criminal conviction that there was no mechanism to seal or expunge a criminal conviction in New York.  In the past we have offered half measures such as certificates of relief from civil disabilities or certificates of good conduct.  However, great news has arrived.  Beginning in October 2017 the New New York Criminal Procedure Law 160.59 will go into effect permitting a motion to be made to seal up to two criminal convictions including one felony.  This is welcome news for anyone whose professional life is being held back by a past mistake.Records_MAIN-300x200-300x200

New York Criminal Procedure Law provides for sealing of up to two criminal convictions and up to one felony.  Convictions for violent felony offenses, homicides, sex offenses and any conviction that requires SORA (Sex Offender Registration) are ineligible for sealing as well as conspiracy of attempts to commit ineligible crimes.  In order to qualify for sealing the applicant must not have been convicted of a crime in the preceding 10 years and any time spent in prison or jail in that 10 year period is added back into the 10 years.  For example if a person served 5 years in prison after a conviction they would need to wait 15 years before they could apply for sealing under CPL 160.59.

Procedurally, CPL 160.59 sealing requires that an application be made to the Court.  For a person sealing more than one conviction the sealing application must be brought in the Court where the most serious conviction took place.  The application must include a copy of Certificate of Disposition for each conviction (or an explanation of why one could not be obtained) and a sworn statement of the person seeking sealing that sets forth the convictions for which sealing is sought, whether other applications have been brought for sealing, and the reasons why the person is seeking the sealing.  The application must also include any other sealing applications that have been filed.  The entire package must be served on the District Attorney’s Office in the County in which sealing is sought.

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yellow bodega storeWhen 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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In a  recent NRA-ILA article about the Stossel documentary that the NRA Institute for Legislative Action suggests supports the need for national concealed carry  reciprocity, Tilem & Associates senior partner Peter H. Tilem was quoted and described as a criminal lawyer who represents tourists accused of “innocently violating New York’s gun control laws. ”  The Stossel Documentary can be seen here.

Mr. Tilem regularly represents those who travel from other States with firearms and who get arrested for violating New York’s draconian and complex gun laws.  The John Stossel documentary was based on the story of two of Mr. Tilem’s clients who were arrested at Queens, New York airports one with a gun and one with a magazine which New York law calls a high-capacity ammunition feeding device.

The NRA-ILA article goes on to describe the Stossel documentary in some depth including describing the stories of the two tourists from Georgia who were arrested and the interviews of Mr. Tilem and and Mr. Ryan, the Chief Assistant District Attorney in Queens who is in charge of the prosecution of these cases.  Both Laguardia and Kennedy airports, two of the busiest airports in the country are located within the jurisdiction of the Queens District Attorney’s Office.

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As experienced New York Criminal Trial lawyers we understand the risks and potential hazards of going to trial as well as the uncertainty associated with any criminal trial.  However, in a recent felony trial that we conducted in Westchester County Court charging six counts of felony assault, some evidence surprised even the most seasoned people in the courthouse and the verdict, finding the client not guilty on the four most serious assault charges and only guilty on two less serious charges, also surprised many.

The Felony Assault charges included two counts each of Aggravated Assault on a Police Officer, Assault in the First Degree and Assault on a Police Officer and all stemmed from an incident where the motorist as he was stopped at a type of roadblock put the car in reverse and dragged a police officer for some distance and struck another police officer standing near the car.  It was undisputed that both police officers were very seriously injured and it is also undisputed that two years later one police officer has not yet been able to return to work as a police officer.

At the roadblock were three police officers; the two that were seriously injured and a third who immediately took control of the crime scene.  On day one of the trial, the police officer at the scene who was not injured took the stand and identified “crime scene” photos that show that the police sergeant  who was dragged lost a lot of his equipment as the car sped in reverse with the Sergeant stuck under the driver’s side door.  The Officer at the scene was showed and identified both photographs of the scene where the equipment was found and the actual equipment which included a flashlight, handcuffs and a magazine pouch.

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jury boxA New York appellate court recently considered in an opinion whether a trial court committed a reversible error when it failed to discharge a sworn juror who, after four days of deliberations, indicated multiple times that she was unable to “separate [her] emotions from the case.” The juror also stated that she lacked the ability to decide both factual and legal issues in the matter.

The defendant was indicted for a murder in which the victim was stabbed 38 times. After the jury was excused for deliberations, the court clerk received a phone call from the juror in question, in which the juror asked what she needed to do to be excused from the trial. Next, the judge performed a substantive inquiry with the juror in the presence of the attorneys and the defendant, in which the juror repeatedly stated that she felt unable to separate her emotions from the case and that she was not fit to make certain factual and legal decisions. The exchange was lengthy and included in the court record. The defendant moved for a mistrial because the alternative jurors had already been dismissed. The judge then asked the defendant to reconsider the prosecution’s plea offer of manslaughter, finding that the juror had reached the conclusion that the defendant was guilty but was unable to carry out her duty as a juror to vote in favor of entering a guilty plea against him.

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NY License PlateIn a recent New York court opinion, the court analyzed whether a police officer can enter a license plate into a government database to check for any suspensions, outstanding violations, and the registration of the vehicle without first developing any suspicion that the vehicle was engaged in criminal activity. More specifically, the court ruled that this review of the license plate information does not constitute a search.  Given the fact that many modern police cars are equipped with license plate readers and fixed license plate readers are becoming more commonplace, the issue is of paramount importance.

The facts of the case that gave rise to this opinion are as follows. In 2014, a police officer saw a vehicle drive past him. The vehicle was operated by the defendant. During the eventual trial on the matter, the officer stated that he did not see the vehicle engaging in any traffic violations or otherwise erratic behaviors. The police officer entered the vehicle’s license plate into his computer system, which was linked to the Department of Motor Vehicles. The analysis indicated that the registration for the vehicle was suspended due to outstanding parking tickets. The officer then initiated a stop of the vehicle. During that stop, the officer conducted a database search of the defendant’s driver’s license and discovered that his license was also suspended. Ultimately, the officer initiated an arrest of the defendant for driving while intoxicated as well as for operating a vehicle with a suspended license and registration.

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Picture of drugsThe 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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