CRIMINAL PROCEDURE Category Archives — Page 12 of 24 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

DSK Rape Case Highlights Important Issue that Few Prosecutors Take Seriously – BRADY MATERIAL

July 1, 2011 | Jasmine Hernandez

The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor’s office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:

NEW YORK CRIMINAL DEFENSE LAWYER PETER TILEM QUOTED IN TODAY’S NEW YORK POST HAS CASE DISMISSED TWICE AND REVERSED TWICE

June 29, 2011 | Tilem & Associates

The Endangering the Welfare of a Child case discussed in today’s New York Post article, demonstrates how experienced criminal defense lawyers need to handle complex criminal cases. The case brought against a school bus matron back in 2006 alleges that the bus matron failed to step in and protect a then 8 year old autistic child that was banging his head against the school bus window and that the bus matron taunted the child. The law firm of Tilem & Campbell, representing the bus matron was able to get the case dismissed soon after the charges were filed in 2006 because the lawyers were able to show to a criminal court judge that the evidence in the case was obtained by illegal eavesdropping. The Appellate Term of the New York Supreme Court eventually overturned the criminal court judge and had the charges were reinstated.

After the case was sent back to the criminal court, Tilem & Campbell, undeterred, again began to vigorously fight the charges. This time in 2009 a new motion was made to dismiss based upon violation of the bus matron’s statutory speedy trial rights. After litigation on that issue a different criminal court judge than had dismissed it the first time, dismissed the case a second time. The Kings County District Attorney’s Office made a motion to reargue the dismissal in the criminal court and after that motion was denied the District Attorney filed its second appeal in the case. Last week, the Appellate Term of the Supreme Court again reversed the dismissal and reinstated the charges.

The case, now more than five years old, will continue to wind its way through the Kings County Criminal Court and no doubt additional motions will be made. The case may even be dismissed a third time. In addition, the lawyers at Tilem & Campbell are planning an appeal to New York’s highest court, the New York Court of Appeals in an attempt to get dismissal reinstated by a higher court.

NEW YORK SPEEDY TRIAL – Part 2 – Trial Readiness not necessarily Trial

June 15, 2011 | Jasmine Hernandez

As we noted in our previous blog if you are charged with any crime in New York, other than a homicide, or any penal law non-criminal offense you are entitled to a speedy trial under New York Criminal Procedure Law sec 30.30. However, the statute is really misnamed a “speedy trial” statute because it has very little to do with speedy trial but rather has everything to do with “speedy readiness.” In other words NY CPL 30.30 does not require that the trial start within the specified period but only that the People (the prosecutor) announce their readiness for trial within the speedy trial period. This reality sets up a game, all too common in some counties where the People announce their readiness only when the case cannot possible go to trial and are not ready when the case is in Court and the matter is ready to be tried. See for example the “Bus Matron case” which was handled by this office and was dismissed after the Kings County District Attorney’s Office attempted to play this game. To satisfy the Criminal Procedure Law the prosecutor only need state his readiness for trial. This can be done in several ways.

People’s Communication of Readiness – Open Court Statement or Statement of Readiness in Writing:

For the People to be “ready” for trial in accordance with CPL 30.30, there “must be a communication of readiness” by the prosecutor which is made on the record in the trial Court. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).

NEW YORK SPEEDY TRIAL – Part 3 – What must the prosecution do to validly answer ready for trial

June 11, 2011 | Jasmine Hernandez

We have been writing about the importance of New York’s Speedy Trial statute to experienced criminal defense lawyers and how we have had serious cases dismissed based upon the denial of a speedy trial. In our previous blog, we discussed the fact that New York’s Speedy Trial statute is not in fact a speedy trial statute but rather a speedy readiness statute that is satisfied once the prosecution announces their readiness for trial and that fact that this reality sets up a game where prosecutors announce readiness only when they do not expect the case to go to trial and then mysteriously are not ready when the case can go to trial. But, what must a prosecutor do to validly announce his readiness for trial? For example, do the witnesses need to be waiting in the Courthouse?

Actual readiness for trial does not require the prosecution to physically produce their witnesses each and every time they assert trial readiness, because “[a]side from its impracticality, such a requirement would be unduly burdensome and vexing to witnesses.” People v Robinson, 171 A.D.2d 475 (1st Dept. 1991).

Therefore, “[t]he People are not required to contact their witnesses on each and every adjourned date and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid.” People v. Dushain, 247 A.D.2d 234, 236 (1st Dept. 1998)(internal citations omitted) see also People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001)(The People are not required to contact their witnesses on every adjourned date nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid).

NEW YORK SPEEDY TRIAL – Part 1

June 1, 2011 | Jasmine Hernandez

As summarized in our recently posted New York Speedy Trial web page, the New York Criminal Procedure Law contains a statutory speedy trial requirement which is separate and apart from the constitutional right to a speedy trial and which is a very valuable tool in the arsenals of experienced criminal defense lawyers in New York. In this and upcoming blogs we will highlight some of the more important aspects of New York speedy trial.

Firstly, the statutory periods vary depending on the seriousness of the offense. That is to say that the time from the commencement of the action until the time that the people must be ready for trial or face dismissal of the action varies depending on the seriousness of the offense. They are as follows:

Felony; Six months from commencement less excludable periods. [CPL 30.30(1)(a)]

New York Traffic Ticket attorney’s Tilem & Campbell announce a $195 summer blow-out special for Traffic Ticket Defense

May 17, 2011 | Jasmine Hernandez

The Westchester law firm, Tilem & Campbell has announced a summer special for Westchester Traffic Ticket Defense and Rockland Traffic Ticket Defense. This sale is thought to be the lowest cost traffic summons defense in the entire region. Anyone who contacts Tilem & Campbell before August 31, 2011 who mentions coupon code “SUMMER SPECIAL” will automatically receive a rate of $195 to fight any traffic ticket in Westchester County or Rockland County*. This special rate includes all speeding tickets, red light tickets, unsafe lane change, cell phones, tailgating turn signal violations and any other traffic infraction.

This is a sale price that is certain to revolutionize the industry and is believed to be the lowest price traffic ticket defense in the area. Why take off work to try to fight your ticket yourself when you can have a professional represent for you?

This offer applies to all of the following courts: Ardsley Village Court, Bedford Town, Court, Bronxville Village Court, Buchanan Village Court, Town of Cortlandt Justice Court, Croton-on-Hudson Justice Court, Dobbs Ferry Village Court, Eastchester Town Court, Elmsford Village Court, Greenburgh Town Court, Harrison Town Court, Harrison Village Court, Hastings-on-Hudson Village Court, Irvington Village Court, Larchmont Village Court, Lewisboro Town Court, Mamaroneck Village Court, Mamaroneck Town Court, Mt. Kisco Village Court, Mount Pleasant Town Court, Mount Vernon City Court, New Castle Justice Court, New Rochelle City Court, North Castle Justice Court, North Salem Town Court, Ossining Town Court, Ossining Village Court, Peekskill City Court, Pelham Town Court, Pelham Village Court, Pleasantville Justice Court, Pleasantville Village Court, Port Chester Village Court, Pound Ridge Town Court, Rye City Court, Rye Town Court, Scarsdale Village Court, Sleepy Hollow Village Court, Somers Town Court, Somers Justice Court, Tarrytown Village Court, Tuckahoe Village Court, White Plains City Court, Yonkers City Court, Yorktown Town Court, Orangetown Justice Court, Clarkstown Justice Court, Ramapo Town Court and Sloatsburg Justice Court.

A Summons Issued by a Local Criminal Court or Superior Court in a Criminal Case is Not an Appearance Ticket [People v. Hauben, 12 Misc. 3d 1172A; People v. Eckert, 117 Misc. 2d 504 ]

May 1, 2011 | Tilem & Associates

In New York, judges may not issue appearance tickets. Judges can issue warrants for one’s arrest or a criminal summons. Appearance tickets can only be issued by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue appearance tickets. CPL 150.10(1). A judge is not considered a “public servant” authorized to issue an appearance ticket. A judge can issue a summons directing a defendant to appear in a particular court to be arraigned on an accusatory instrument. See generally CPL Art. 130. However, because a judge is not considered a “public servant” authorized to issue appearance tickets, a summons issued by a judge in a criminal case cannot be deemed an appearance ticket. People v. Hauben, 12 Misc. 3d 1172A (Nas. Cnty. Dist. Ct. 2006). In Hauben, the Honorable Kenneth L. Gartner, in a detailed, researched and well reasoned decision on this issue which cited numerous statutes, cases, practice commentaries and dictionaries, concluded that a summons issued by a criminal court pursuant to CPL Art. 130 is not an appearance ticket.

In so holding, J. Gartner observed: “a summons is merely ‘issued’ by the court, while an appearance ticket must statutorily be ‘issued and subscribed’ by the authorized individual. Id. Furthermore, J. Gartner cited an Attorney General Opinion (No. 93-90) which interpreted the term “other public servants” as stated in CPL 150.10(1) “as referring only to law enforcement personnel.” Id. The Opinion went on to state that “[p]rior to the court date, the public official who issued the appearance ticket must file an accusatory instrument.” Id.

Judge Gartner then noted that (1) a judge is not a law enforcement official and therefore does not meet the definition of “other public servants” as stated in the Opinion; and (2) a judge is not charged with filing an accusatory instrument with the criminal court after he or she issues a summons as law enforcement members are required to do after they issue and subscribe an appearance ticket. Id.

A SPEEDING TICKET CAN BE DEEMED AN “APPEARANCE TICKET” UNDER NEW YORK LAW

April 26, 2011 | Tilem & Associates

In New York, for certain minor offenses, such as speeding, misdemeanor drug offenses or Leaving the Scene of an Accident the police (or other authorized public servant) can issue and serve a person an appearance ticket in lieu of arrest or, if they arrest the person, they can issue an appearance ticket to the person at the police station instead of putting the person through the system to see a judge. [See NY CPL Art. 150].

Typically an appearance ticket says “Appearance Ticket” or “Desk Appearance Ticket” across the top. The appearance ticket must be signed by the a police officer or other authorized public servant, it must name the defendant and direct him to appear in a designated court on certain date and time in connection with the alleged offense. [CPL 150.10(1)].

However, an appearance ticket, or desk appearance ticket, doesn’t have to conform to any particular form or style. So long as the document given to a person contains the information required of an appearance ticket and is properly signed, it can be an appearance ticket.

LOCAL CRIMINAL COURT CAN DISMISS AN APPEARANCE TICKET IF THE POLICE OFFICER FAILS TO SUBSEQUENTLY FILE THE REQUIRED ACCUSATORY INSTRUMENT BY THE RETURN DATE [Snead v. Aegis Secur., Inc., 105 A.D.2d 1059]

April 20, 2011 | Tilem & Associates

In New York, where a police officer issues a defendant an appearance ticket for a crime such as Reckless Driving or Possession of Marihuana directing that defendant is to appear in a local criminal court on a future date, the police officer is supposed to file, or cause to be filed a sufficient accusatory instrument (the “paperwork”) with that local criminal court before the defendant’s appearance. [See CPL Art. 150].

In some cases, the police officer fails to file the required sufficient accusatory instrument in a timely manner. In many small city, village or town courts a defendant might wait all day (or night) for his “paperwork.” In some bigger jurisdictions such as New York City, the court will give the defendant a notice acknowledging his appearance in court and informing him of a new date or that the court will send him a new date.

However, the local criminal court can dismiss the appearance ticket where a defendant appears in court as directed in an appearance ticket but no accusatory instrument has been filed by the officer as required by CPL 150.50(1). In Snead v. Aegis Secur., Inc., 105 A.D.2d 1059 (4th Dept. 1984), the Rochester City Court had dismissed an appearance ticket in an underlying, related criminal action against Robert Snead because an accusatory instrument had not yet been filed before Snead appeared in that court as directed in the appearance ticket. In Snead, the city court dismissed the very day the defendant appeared as instructed. The city court didn’t make him wait for hours or give him a new date. The city court did what all courts should be doing; it held the police accountable to the law.

WHERE A DEFENDANT APPEARS IN A LOCAL CRIMINAL COURT AS INSTRUCTED IN AN APPEARANCE TICKET, THE COURT DOES NOT ACQUIRE JURISDICTION OVER THE DEFENDANT IF AN ACCUSATORY INSTRUMENT HAS NOT BEEN FILED [People v. Stirrup, 91 N.Y.2d 434]

April 20, 2011 | Tilem & Associates

In New York, a police officer can issue a defendant an appearance ticket also referred to as a “Desk Appearance Ticket” or “DAT” instead of formally arresting that defendant where the charge is a non-criminal offense, a misdemeanor or most E felonies. CPL 150.20(1). Before the defendant appears in court as instructed in the appearance ticket, the police officer is supposed to file a sufficient accusatory instrument (the “paperwork”) with the particular court. CPL 150.50(1).

Sometimes the police officer doesn’t file the accusatory instrument in a timely manner and when the defendant arrives in court as instructed in his appearance ticket he learns that his “paperwork” is not ready. In some jurisdictions the defendant might sit around all day waiting for his “paperwork” while in others the court will give the defendant a notice acknowledging his appearance and giving him a new date.

When this happens, while the action against the defendant is deemed “commenced,” [CPL 30.30(5)(b); People v. Stirrup, 91 N.Y.2d 434 (1998)], the court does not obtain jurisdiction over the defendant. A court cannot obtain jurisdiction over a defendant until an accusatory instrument is filed against that defendant. Therefore, the court cannot arraign the defendant nor can it issue an arrest warrant for a defendant who fails to appear in response to an appearance ticket until an accusatory instrument has been filed against that defendant. See People v. Stirrup, 91 N.Y.2d 434, 439 (1998)(court may not arraign a defendant who voluntarily answers an appearance ticket, where no accusatory instrument has been filed; nor may a court issue a warrant of arrest to secure the presence of a defendant to answer the appearance ticket, in the absence of an accusatory instrument).