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Articles Posted in CRIMINAL PROCEDURE

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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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empty witness standIn a recent New York appellate decision, the defendant challenged a conviction of first-degree assault, claiming that he was deprived of a fair trial because he was not afforded his constitutional right of confrontation. The defendant was tried before a jury regarding an incident involving an assault on his estranged wife’s romantic partner. The victim testified that while he was hailing a cab in New York with the defendant’s estranged wife and child, he was stabbed from behind several times. During the incident, the victim identified the attacker as the defendant.

The prosecution was unable to locate the wife to provide testimony regarding the incident. Instead, it informed the court that while the wife identified the defendant as the attacker when talking to the police, she informed the prosecutor preceding the trial that she did not want to testify and that she did not recall seeing the defendant during the attack. The prosecution wished to have a detective testify regarding the wife’s statements following the incident, but the defendant objected, claiming that this would be extremely prejudicial to the defendant’s case because he would not have an opportunity to cross-examine the wife about the statements she made to the police. In response, the trial court rejected the prosecution’s request to have the law enforcement official testify. The court also noted that the wife’s absence would be prejudicial because the jury would infer that her testimony would likely be harmful to the defendant’s case. To address these potential outcomes, the court instructed the jury that the wife was “unavailable and, therefore, could not be called as a witness.”

Following testimony from the victim, the prosecution called a detective as a witness, who indicated that he interviewed the wife immediately following the incident and that she identified the defendant as the perpetrator. The defendant objected to this commentary, stating that it made an improper implication to the jury regarding what the wife would or would not testify if she were present. The defendant also moved for a mistrial, but the court rejected this request and instead instructed the jury to not draw any inferences from the testimony.

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New York Firearms Attorney Peter Tilem has been named to the Critical Response Team of the United States Concealed Carry Association. The USCCA Critical Response Team is an exclusive community of qualified attorneys that are committed to defending the rights of responsible gun owners in New York State and throughout the Country. USCCA is an organization that promotes firearms education, training and insurance to law abiding gun owners. The insurance covers members who are involved in a self-defense shooting and provides benefits for both legal defense and coverage in the event of a civil suit. The USCCA provides a list of pre-screened attorneys to its members. Mr. Tilem, who has been on the list of pre-screened attorneys for a number of years was recently named to the critical response team to provide 24 hour assistance to members in the event of a self defense incident. critical-response-team-logo

Mr. Tilem joins the USCCA Critical Response Team with extensive experience handling assault cases where the defense of “justification” or “self-defense” has been used. As a former senior prosecutor in the New York County District Attorney’s Office, Mr. Tilem was often called upon to investigate shootings and stabbings involving self-defense claims and has continued during his 25 year career defending those accused of assault but many of whom were acting in self-defense.

Mr. Tilem is well aware of New York’s expansive defense of justification which goes way beyond using physical force including deadly physical force to defend ones self and others against violent attack. Article 35 of the New York State Penal law includes a variety of situations where an individual may use physical force and even deadly physical force to: defend premises and to terminate and prevent or prevent a burglary, (See Penal Law sec. 35.20); use physical force to prevent a larceny and/or criminal mischief, (See Penal Law 35.25); use physical force including deadly physical force by a civilian to effect the arrest of a person who has committed certain violent offenses, (Penal Law 35.30).

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As New York Gun Lawyers we are aware that New York has a ban on possessing firearms magazines that are capable of containing more than 10 rounds. However, not everyone is as aware of the gun laws as they should be and this week two different cases in two opposite ends of New York State demonstrated how serious these cases are and how the right representation can make all of this difference in the world.

As was widely reported in the paper last week (see another article here) a former Army veteran who spent more than 9 years in the army was convicted of three felonies in Niagra County in far western New York, after he was found to be in possession of three magazines for a Glock 9mm handgun. Each of the magazines was capable of holding more than 10 rounds of ammunition. The Army veteran did not possess any firearm, only the magazines. He is awaiting sentencing in two months according to the reports and faces up to 21 years in prison.

Meanwhile, in far Northern New York, on the same day that the veteran was convicted a man was being arrested and charged for bringing two handguns that were illegal in New York along with two high capacity ammunition feeding devices across the Canadian border in New York. This man possessed both the firearms and the high capacity magazines, also for a Glock pistol (albeit for a different model). Within a period of a week, the individual in Northern New York had the gun charges dismissed and had the high capacity magazine charges reduced to two counts of disorderly conduct. He paid fines totaling $500 a state mandated surcharge of $125 and the record of the arrest and conviction were sealed.

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As very experienced New York DWI Attorneys we are often asked to assist other attorneys on complex DWI cases.  Recently, that request paid off for the attorney and his client after all charges related to a Rockland County DWI were dismissed.   In November Tilem & Associates was hired to take the lead in a suppression hearing for a client who was facing DWI charges and who was not being offered any plea bargain.  We had sought the suppression of statements and breath that we asserted were taken illegally from our client after he was illegally taken out of his car.

At the suppression hearing, one police officer testified.  The officer claimed that in response to a 911 call the officer responded to a location and saw our client in a vehicle that matched the description given to the 911 operator.  On cross-examination, by me, the officer admitted that at the time the officer approached the vehicle and removed the driver from the vehicle that there was no reason to believe that the motorist had committed any offense other than a parking violation for parking on the line in a parking lot.  The officer claimed that the motorist was asleep in the vehicle and tried to justify further action as a “welfare check” to ensure that the motorist was ok.  However after responding that he was ok, I attacked the officers continued investigation, including: removing the motorist from the vehicle, bringing the motorist to the back of the vehicle, questioned the motorist, conducted standardized field sobriety tests and detained the motorists while other witnesses were questioned.  The Judge ruled that all of those actions exceeded the authority that the officer had at the the time of incident.

As we have discussed extensively in the past, in a case called People v. Debour, New York’s highest Court recognized four different levels of intrusion that police officers may have based on the police officers level of suspicion.  The lowest level, level one, the right to inquire, gives the police officer very limited authority to make inquiries about a person.  Such inquiries may not be pointed or accusatory in nature.  In the case in Rockland County, the Judge correctly ruled that the police officers authority capped at Debour level one there by only giving the officer the very limited right to inquire. Therefore, all of the statements and other evidence derived after that illegal conduct were suppressed, leaving no evidence and therefore no provable case.

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New York Traffic Court Attorneys, Tilem & Associates has been able to verify rumors that have made the rounds of social media that for the first time New York State Troopers have been patrolling New York City Highways including the Belt Parkway in Brooklyn, The FDR Drive in Manhattan and the New England Thruway in the Bronx.  The Troopers have been seen pulling over cars and handing out summonses for unknown traffic violations most likely speeding and failing to signal lane changes.

In reality the New York State Police do have a small Troop in New York City that is headquartered at Wards Island by the TriBoro (Robert F Kennedy) Bridge.  Although the State Police have chosen not to engage in many law enforcement functions inside of New York City, New York State troopers are Police Officers as defined in the Criminal Procedure Law (CPL 1.20 (34a)) and have the power to issue simplified traffic informations also known as summonses or traffic tickets.  In addition, subdivision 34-a of Criminal Procedure Law 1.20 defines the “geographical area of employment” of a police officer employed by a state agency as “New York State”.  Meaning that State Police Officers maintain their jurisdiction throughout all of New York State including the five boroughs of New York City.

As New York Traffic Ticket attorneys we are concerned about how to best fight the tickets issued by New York State troopers inside of New York City. Firstly, a motorist must understand that most traffic tickets issued within New York City are returnable in the Traffic Violations Bureaus (TVB’s) in each borough.  These tickets take a different path than tickets issued outside of New York City. Tickets adjudicated inside of New York City are handled through an administrative process which precludes the request for supporting depositions, motions for speedy trial and has a lower burden of proof than exists for tickets issued outside New York City.  As a result there is no plea bargaining within New York City.  The calendars are very congested inside of New York City TVB’s and police officers generally go to the TVB to handle multiple tickets at a time.

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As New York firearms lawyers we think it is important to keep the public updated on possible significant changes to New York gun laws. The idea of national concealed carry reciprocity is not a new idea but it is an idea that may be close to becoming law. The theory is very simple. If a driver’s license, which has been held by the Courts to be a privilege not a right, is valid in all 50 States than why isn’t a license to carry a gun, which has been held by the Courts to be right not a privilege, also valid in all 50 States. While different versions of the bill have been introduced in varying forms in Congress since at least 2008, President-Elect Trump has expressed an interest in signing such legislation.

Currently HR 923 entitled Constitutional Concealed Carry Reciprocity Act of 2015 has 121 cosponsors. The Companion bill in the Senate of the same name has 35 cosponsors.

The issue is how will New York law, which is notoriously hostile to gun owners, interact with a National Concealed Carry law. According to the Congressional Research Service HR 923 can be summarized as follows: “[HR 923 a]mends the federal criminal code to authorize a person who is not prohibited from possessing, transporting, shipping, or receiving a firearm under federal law, who is entitled and not prohibited from carrying a concealed firearm in his or her state of residence or who is carrying a valid state license or permit to carry a concealed weapon, and who is carrying a government-issued photographic identification document, to carry a concealed handgun (which has been shipped or transported in interstate or foreign commerce, other than a machine gun or destructive device) in any state in accordance with the restrictions of that state. [And,]

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In yet another victory in a New York firearms case, a Tilem & Associates client arrested in New York’s LaGuardia airport in September with an alleged “high capacity” magazine had all felony charges dismissed and only pled guilty to a non-criminal disorderly conduct, a violation but not a crime under the New York State Penal Law and paid a $250 fine. The record will be sealed.

New York State bans the possession of what it calls a “Large Capacity Ammunition Feeding Device.” NY Penal 265.00 (23). A Large Capacity Magazine Feeding Device is defined as “a magazine, belt, drum, feed strip, or similar device, that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or (b) contains more than seven rounds of ammunition, or (c) is obtained after the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition . . .” Boiled down, and there are some exceptions, New York defines both a capacity limit and a load limit. Under New York Law, as written, one could either not possess a magazine with a CAPACITY of more than 10 rounds but if one had an old magazine with a ten round capacity one could only LOAD up to seven rounds into that magazine. An empty magazine with a capacity of more than 10 rounds is a class “D” violent felony under New York Law punishable by up to seven years in prison.

In the Federal case of NEW YORK STATE RIFLE AND PISTOL ASSOCIATION INC LLC v. Gerald J. Gill, the United States Court of Appeals struck down the seven round load limit finding it violated the Second Amendment but left the 10 round magazine capacity limit in place.