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Articles Posted in CRIMINAL PROCEDURE

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lawyers in courtEnsuring that you have the right attorney handling your claim and representing your interests is critically important. At Tilem & Associates, our seasoned team of New York gun crime lawyers has handled countless matters involving criminal investigations and prosecutions. This means we not only feel confident in the courtroom but also understand the many different procedural and substantive aspects of your matter. As a recent New York appellate opinion demonstrates, it is essential to ensure that you have addressed all potential procedural issues as soon as possible.

The background of the case is as follows. The defendant brandished a firearm in front of a friend that was secured in his waistband and threatened to use it on another individual. He then went to a park, where he was seen near a specific individual. The police arrived, and the defendant and the individual fled in separate directions. Multiple witnesses testified to seeing defendant throw the gun, which was later located by the police. The police also found drugs, which the other individual admitted to owning. The defendant was charged with criminal possession of a weapon and resisting arrest. The other individual was charged with drug possession.

A public defender was assigned to the defendant’s claim. Roughly eight months later, the prosecution provided evidence showing that another public defender represented the other individual on his criminal charges stemming from this same set of facts. The attorney for the defendant stated that he intended to use the other individual as a potential witness for the defense before he learned about the potential conflict of interest. The defendant indicated that he wanted the public defender to continue representing him even though the attorney indicated that it may not be ethical for him to do so because another attorney in his office represented the other individual.

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DNA evidence swabKnowing which evidence can be used against you in a New York criminal trial or prosecution is critically important to ensuring that you receive fair treatment. At Tilem & Associates, our seasoned New York criminal defense lawyers have counseled numerous residents on their rights and assisted them with ensuring that the prosecution plays by the rules. A recent appellate opinion demonstrates the complexity that can often arise with evidentiary issues, especially when it comes to DNA evidence.

In the case, the appellate court was asked to consider whether a defendant’s constitutional right to confront persons who offer testimony against him was violated by the admission of DNA evidence by a witness who did not supervise or generate the DNA evidence. The defendant was charged with a number of offenses stemming from three burglaries. The first burglary involved a dry cleaning store and a number of other stores that were connected through a common basement. The defendant was seen on surveillance footage in the stores, and the police took swabs of streaks of blood that they identified on the rear door of the building. The swabs were sent to the Office of the Chief Medical Examiner (OCME) for DNA analysis.

The second incident involved a home furnishings store. The police located a receipt covered in blood near a check-out stand, which they also sent to OCME for DNA analysis. Eventually, the DNA evidence from the two burglaries was matched with the defendant’s DNA profile that was stored in the database. During trial, the prosecution called one witness from OCME to testify about the DNA evidence. The witness testified about the DNA evidence based on his review or reports that other lab technicians had prepared and about other test results that he did not run himself. The defendant objected at several points throughout the testimony, stating that the prosecution was actually eliciting evidence from witnesses who were not going to testify at trial, i.e., the technicians who performed the other tests and DNA analyses. Ultimately, the trial court allowed the witness to testify in a conclusory and general fashion regarding the evidence without personal knowledge of the tests and analyses, including the DNA profile generated from the swabbing of the defendant.

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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.drunk driving

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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gavel and booksSentencing 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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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.