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Articles Posted in CRIMINAL PROCEDURE

The COVID-19 pandemic has had an extraordinary impact on the lives of all Americans. It seems as though almost every aspect of life has changed, seemingly overnight. As New York Criminal Defense Lawyers we are very concerned about the impact on the New York criminal justice system. In the wake of the pandemic, New York courts all but shut down, hearing only emergency matters. This took a serious toll on the effectiveness of the state’s criminal justice system. Indeed, jury trials have been delayed for months, and courts are getting overwhelmed as new cases continue to come in. Even since courts have started to reopen, concerns around the effective administration of justice remain—chief among these being the ability to get a fair jury trial during the COVID-19 pandemic.

While all New Yorkers are hopeful that the worst of the pandemic is in the rear-view mirror, New York is still struggling to return to a level of normalcy even as safety measures remain in place.  These safety measures can substantially interfere with a defendant’s due process rights and their ability to obtain a fair trial.

The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to a speedy and public trial by an impartial jury and “to be confronted with the witnesses against him,” and “to have compulsory process for obtaining witnesses in his favor.” However, each of these rights may be seriously hampered by the restrictions in place during the COVID-19 pandemic.

The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.

New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial.   It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.

One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.

Earlier this month, a state appellate court issued an opinion in a New York criminal case involving a question as to whether statements that the defendant made to Pennsylvania state troopers could be used against him in his New York arson case. Ultimately, the court concluded that the Pennsylvania State Troopers questioned the defendant in violation of his right to counsel. Thus, the court held that the statements should have been suppressed.

According to the court’s opinion, the defendant was under investigation for several arsons in New York. After detectives interviewed the defendant about one of the fires, the defendant fled to Pennsylvania. A short time later, Pennsylvania State Troopers arrested the defendant for an alleged arson offense that allegedly occurred in Pennsylvania. The defendant requested that the court appoint counsel.

Upon hearing about the defendant’s arrest, New York police traveled to Pennsylvania to interview the defendant. While New York police did not actually interview the defendant, they observed as Pennsylvania State Troopers asked the defendant questions about the New York arsons without the presence of defense counsel. The defendant made several statements regarding the New York arsons.

In a New York criminal jury trial, the judge has several critical roles. In general terms, the judge determines the “rules” by which the trial will be conducted. For example, the judge will resolve all pretrial motions, manages the jury selection process, rules on objections during the trial, and instructs the jury at the conclusion of the trial. One of the most essential roles of a judge is also to act as the gatekeeper, meaning the judge will determine which evidence will be presented to the jury.

Not surprisingly, a judge’s rulings on these issues can drastically affect the outcome of a trial. And because judges are human, they are prone to making errors. In fact, that is the very purpose of the New York appellate process; to review the trial court’s legal decisions which led to a conviction. Thus, when a party believes that a judge made an error at trial, that party must object. When a party objects to a ruling, they must state the basis for the objection. Typically, when an objection is made, the judge will hear argument on the objection outside the presence of the jury and issue a ruling. It is up to the party making the objection to make sure the judge knows the basis of the objection and is aware of the legal support behind the objection.  AS a general principle the Judge must be given an opportunity to fix the error in order to preserve your right to appeal on an issue.

When an appellate court grants review of a case, it will typically consider all arguments raised in the defendant’s brief. However, an appellate court may apply various standards when reviewing an error. For issues that were properly raised at trial, an appellate court uses what is called “de novo” review, meaning that the court will not give the lower court’s decision any deference.

The United States Constitution and the Bill of Rights provide many invaluable rights to citizens. Among the most important rights included in these documents is the right to a jury trial. The Sixth Amendment to the United States Constitution provides that defendants are entitled to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

In New York, people who are facing certain misdemeanor charges are entitled to a jury that consists of six jurors. In New York City, individuals charged with “B” misdemeanors which carry a maximum sentence of 90 days in jail.  May not be entitled to a jury trial.  Although that issue has become more complicated with the the New York Court of Appeals ruling that immigrants facing deportation would be entitled to a jury trial even for a “B” misdemeanor.  Defendants facing felony charges are entitled to a jury of 12 people. In misdemeanor and felony trials, all jurors must be unanimous before a defendant can be found guilty or not guilty. In the event that the jurors cannot come to a unanimous decision, the court will eventually declare a mistrial, and the prosecution will have the ability to retry the case.

All New York criminal cases are either heard by a judge or by a jury. A trial can be heard by a judge only if the defendant waives their right to a jury trial. This type of trial is commonly known as a “waiver” or “bench” trial. The decision whether to have a judge or a jury hear a case is one that rests with the defendant himself, rather than with his attorney. Of course, defendants often consult with a criminal defense attorney when making the decision because an experienced defense attorney can often provide valuable input. There are several reasons why a defendant may choose to have a judge hear their case rather than a jury.

When someone is arrested for a New York crime, the prosecution is subject to certain rules. Most of the rules that are imposed on prosecutors are designed to ensure that the defendant is provided a fair trial. After all, the prosecution’s primary responsibility is to see that justice is done, not necessarily to win their case.

This tension between the pursuit of justice and obtaining a conviction has led to some tragic outcomes involving innocent men and women spending their lives in prison based on the crimes that someone else committed. Hence the reason for special rules that govern criminal cases. One of the most essential rules involves pretrial discovery.

Pretrial discovery refers to the process in which the parties provide the opposing sides certain information in their possession. The idea is to prevent the sort of trial by ambush that is commonly seen on television. When it comes to pretrial discovery in a New York criminal case, prosecutors must provide any material evidence that may be favorable to the defense, in either the guilt or punishment phase of a trial.

New York criminal defendants enjoy many important constitutional rights, one of which is the right to a jury drawn from a cross-section of society. In the 1986 United States Supreme Court case, Batson v. Kentucky, the Court determined that the defendant was deprived of his constitutional rights when the prosecution struck all black potential jurors from the jury panel, resulting in an all-white jury.

Since then, the Court has made it clear the prosecutors cannot use a potential juror’s race as a decision in whether to accept or reject that juror. In its most recent case discussing race in the jury-selection process, the Court again affirmed the principle that race should not be a consideration when selecting a jury.

This case involved a black man who was previously tried five times for the murder of four furniture store employees, three of whom were white. In the first three trials, the case either resulted in a mistrial based on the prosecution’s race-based jury-selection techniques or the jury’s verdict was reversed on appeal based on prosecutorial misconduct. The fourth and fifth trials resulted in hung juries. Thus, this time was the sixth time the state tried the defendant for murder.

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Guns, ammunition and magazines that were suppressed by the Judge

New York, Second Amendment attorney and NRA  Firearms instructor Peter Tilem scored a major victory in Rockland County Court earlier today, when the Judge holding a suppression hearing ruled that there was no probable cause for the arrest of his client and ordered 13 guns, hundreds of rounds of ammunition, and high capacity magazines, called “high capacity ammunition feeding devices” suppressed, meaning that they could not be used as evidence at trial because of the fact that they were illegally seized.  The decision came after an intense suppression hearing in Rockland County Court where two senior police officers testified about the circumstances surrounding the arrest and interrogation of both individuals charged in a 12 count indictment.

Following reports of shots fired on July 8, 2018, in the area of the New York – New Jersey border in Rockland County, police from both New Jersey and New York police departments located three individuals firing weapons which were lawfully purchased and possessed in New Jersey.  The handguns were unlicensed in New York and the individuals were found less than a 1/4 mile over the border in New York.  In addition, some of the weapons which were lawful in New Jersey violated New York’s “Safe Act” and magazines that were legal in New Jersey violated New York’s ban on magazines capable of accepting more than 10 rounds of ammunition.

Prosecutors and Police officers routinely use confidential informants to gather information and perform controlled buys in narcotics cases, firearms cases or cases involving other contraband. Often, police will use what a confidential informant tells them to establish probable cause when they seek to obtain a  search warrant. Thus, confidential informants can play a significant role in many New York drug cases.

However, police and prosecutors generally refuse to a provide the defense with the identity of the confidential informant because once an informant’s identification is known, they can no longer be used by police and may face retaliation. At the same time, if a defendant cannot question police about the existence of the informant, there is the concern that the informant may not exist and that police fabricated the informant to get around the warrant requirement.

To alleviate these concerns, courts require that the prosecution present the confidential informant in an ex parte hearing (outside the presence of the defendant). Recently, a New York appellate court issued an opinion in a case discussing the proper procedure a court should follow when presented with a case in which the prosecution is relying on a confidential informant’s testimony to develop probable cause.

When courts determine a defendant’s sentence, one of the factors they consider is the defendant’s prior record. Typically, the more convictions a defendant has on their record, the harsher the penalty they can expect to receive.

New York lawmakers have prescribed an escalating punishment scheme for “second felony offenders.” Under New York Consolidated Laws § 70.06, a second felony offender is someone who has recently been convicted of a qualifying offense and has a qualifying predicate offense. The punishments for second felony offenders are mandatory, meaning a judge cannot exercise her discretion to impose a more lenient sentence, and are significantly increased over those for first-time felony offenders. A proficient New York criminal appeals attorney can break everything down further regarding the details of your specific case once you reach out to them.

When it comes to determining whether a previous conviction is a qualifying predicate offense, courts look both to the date of the sentence as well as the type of crime. In a recent case, a New York appellate court clarified that it the original date of sentencing that courts should look to when determining if someone qualifies as a second felony offender.

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