CRIMINAL PROCEDURE Category Archives — Page 16 of 23 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

NEW YORK SEARCH AND SEIZURE LAW – STREET ENCOUNTERS WITH THE POLICE IN NEW YORK

January 7, 2010 | Tilem & Associates

In New York, a large body of law has developed around police interaction with civilians that they encounter on the street. When may a police officer approach you for information, question you about criminal activity, detain you and finally, arrest you? Experienced New York criminal defense lawyers must be well versed in this area of law. If the police overstep their authority and thereby obtain evidence, skilled criminal attorneys can challenge that evidence in Court at a suppression hearing and have the evidence suppressed. Suppression of evidence can lead to the dismissal or reduction of charges, favorable jury verdicts and favorable plea bargains. Here at Tilem & Campbell, we have used suppression to obtain dismissals of some tough cases.

Suppression, can be especially valuable in fighting drug cases or gun cases since without the contraband as evidence, the case is almost always dismissed. But suppression can also be useful to prevent the admission at trial of statements, identifications, physical evidence of criminal activity or electronic surveillance.

No two cases are alike and each case and each set of facts must be analyzed by analogizing from previously decided cases with similar facts. In a well written and thorough decision, the New York Court of Appeals developed four “Levels” of police intrusions with each Level being based upon the intensity of the intrusion upon the civilian’s life. See People v. De Bour, 40 N.Y.2d 210 (1976). These four level have become the guiding principle for police encounters with civilians on the streets of New York. So much so that New York Courts have cited to Debour well over 1600 times in judicial opinions that have been published in New York. That means that in the more than 33years since Debour was decided, New York Courts cited to it on average about 50 times per year in published opinions.

New York Defense Lawyer Peter Tilem Quoted by the Associated Press on Brooke Astor Story

December 7, 2009 | Tilem & Associates

Tilem & Campbell senior partner, Peter Tilem was quoted by the Associated Press over the weekend in an article about Brooke Astor’s son, Anthony Marshall. Marshall was convicted on October 8, 2009 of several counts including Grand Larceny in the First Degree for looting his mother’s estate. Grand Larceny in the First Degree carries a mandatory minimum of one to three years in state prison and last Friday, Marshall’s attorneys filed a Clayton motion seeking to dismiss the Grand Larceny in the First Degree charge so that Mr. Marshall could avoid a prison sentence.

Mr. Tilem, who is familiar with the Clayton Motion also called a Motion to Dismiss in the Interest of Justice was interviewed for the article and was quoted. As discussed in our previous blog, on the subject, a Judge must consider 10 factors which are listed in the New York Criminal Procedure Law when considering a Motion to Dismiss in the Interest of Justice. Mr. Tilem raised a concern about one the factors in the Astor case. The statute asks a judge to examine the impact that dismissal would have on the confidence of the public in the criminal justice system. Mr. Tilem raised the concern that because of the wealth and notoriety of Mr. Marshall a dismissal, especially at this post trial stage of the case, would make it appear that Mr. Marshall was treated differently than others with less money or fame.

For more information about a New York Motion to Dismiss in the Interest of Justice contact Tilem & Campbell.

New York Criminal Defense Lawyer Peter Tilem Quoted by the Associated Press on Brooke Astor case

December 7, 2009 | Jasmine Hernandez

Tilem & Associates senior partner, Peter Tilem was quoted by the Associated Press over the weekend in an article about Brooke Astor’s son, Anthony Marshall. Marshall was convicted on October 8, 2009 of several counts including Grand Larceny in the First Degree for looting his mother’s estate. Grand Larceny in the First Degree carries a mandatory minimum of one to three years in state prison and last Friday, Marshall’s attorneys filed a Clayton motion seeking to dismiss the Grand Larceny in the First Degree charge so that Mr. Marshall could avoid a prison sentence.

Mr. Tilem, who is familiar with the Clayton Motion also called a Motion to Dismiss in the Interest of Justice was interviewed for the article and was quoted. As discussed in our previous blog, on the subject, a Judge must consider 10 factors which are listed in the New York Criminal Procedure Law when considering a Motion to Dismiss in the Interest of Justice. Mr. Tilem raised a concern about one the factors in the Astor case. The statute asks a judge to examine the impact that dismissal would have on the confidence of the public in the criminal justice system. Mr. Tilem raised the concern that because of the wealth and notoriety of Mr. Marshall a dismissal, especially at this post trial stage of the case, would make it appear that Mr. Marshall was treated differently than others with less money or fame.

CRIMINAL DEFENSE FIRM TILEM & CAMPBELL SCORES ANOTHER MAJOR VICTORY ON DWI CASE

October 21, 2009 | Tilem & Associates

New York criminal defense firm Tilem & Campbell scored another major victory in a DWI case today when Supreme Court Justice William Wetzel found the defendant not guilty of felony DWI after trial. The defendant was found not guilty of the felony but was found guilty of unlawful possession of marihuana, a non-criminal offense that carries a maximum penalty of a $100 fine. The defendant was facing up to four years in prison on the felony charge.

The charge arose based upon a one car accident in Yonkers. The defendant refused to take a chemical test but his driving privileges were quickly restored after Tilem & Campbell, partner Peter Tilem won at the DMV refusal hearing.

The defendant had been charged with one count of Driving While Ability Impaired by Drugs or Alcohol and Drugs under Vehicle & Traffic Law section 1192 (4-a), a relatively new section of the New York Vehicle and Traffic Law.

New York City Mace Issue Has Sparked Interest

October 5, 2009 | Jasmine Hernandez

Our July 15, 2009 blog on the Auxiliary Police Officer arrested for possession of Mace has sparked tremendous interest with many calling our firm or writing in about the issue and many wanting to find out how to obtain a New York City permit for mace. Some have contacted us about there failed efforts to obtain information about the permit from the New York City Police Department. The regulations are summarized in our May 24, 2009 blog. So I leave it to you; if any one knows how to obtain a New York City permit for mace, please comment to this blog, or contact Tilem & Campbell with the information. I will publish the results in a future blog.

NYPD COP’S BLOOD NOT DRAWN FOR MORE THAN SEVEN HOURS AFTER FATAL ACCIDENT – UPDATE

September 30, 2009 | Tilem & Associates

According to today’s newspapers the NYPD Cop accused of killing a woman while driving in an intoxicated condition, had a blood alcohol content of 0.0 indicating that no alcohol was present in the officers blood seven hours after the incident. The blood was not drawn for seven hours after the accident. As discussed in my previous blog, New York drivers arrested for DWI have the right to refuse to take a chemical test. The result of the blood test substantially weakens the case against the officer who is accused of killing the woman while driving drunk.

NYPD COP’S BLOOD NOT DRAWN FOR MORE THAN SEVEN HOURS AFTER FATAL ACCIDENT – A DRIVER’S RIGHT TO REFUSE A CHEMICAL TEST

September 29, 2009 | Tilem & Associates

Early Sunday morning, New York City Police Officer Andrew Kelly, while allegedly driving in an intoxicated condition, struck and killed 32 year old Vionique Valnord in Old Mill Basin, Brooklyn. The accident happened at approximately 12:41 a.m., however, Kelly’s blood was not drawn for more than seven hours. How can this happen? Simple, Officer Kelly exercised his statutory right to refuse to submit to a chemical test.

Let’s start with a brief overview of New York’s “deemed consent” law. To summarize the law; every New York driver is deemed to have given consent to the testing of their breath, blood, urine or saliva to determine the alcoholic and/or drug content of their blood provided the officer has reasonable grounds to believe the driver is impaired or intoxicated and the test is administered within two hours of arrest. See NY VTL § 1194(2)(a)(1), (2) see also 10 NYCRR 59.2 (All samples shall be collected within two hours of the time of arrest).

However, a driver has a qualified statutory right to refuse to submit to a chemical test. The right to refuse is qualified in several ways. Yes, one may refuse to take the test and, absent a court order, no test will be given. However, although one may refuse the test, if properly warned of the consequences, and if they persistently refuse, they may incur a “civil” penalty which includes a fine and the revocation of their driver’s license if the refusal is proven at a DMV refusal hearing. See NY VTL § 1194(2)(b). Further, if the driver, after being sufficiently warned about the consequences associated with refusing, nevertheless, persistently refuses, the refusal can be used by the prosecution at trial. See NY VTL § 1194(2)(f).

THE THREE PHASES OF DWI DETECTION – PHASE 3– PRE-ARREST SCREENING

September 20, 2009 | Tilem & Associates

As previously discussed, officers are trained in three different Phases of Driving While Intoxicated detection. Phase 1 involves the officer’s observations of the vehicle in motion, Phase 2 involves the officer’s personal contact with the driver and Phase 3, which I will discuss here, involves Pre-Arrest Screening.

During Phase 3, the officer will determine whether the driver has consumed alcohol and whether such consumption has impaired the driver to the extent that he should be arrested. The main focus during Phase 3 is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT) to determine the presence of alcohol but the PBT should only be used to support the SFST; it should not be used in place of SFSTs. In New York, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. These will all be discussed separately in future blogs.

NEW YORK LAWYER Peter Tilem CERTIFIED IN DRIVING UNDER THE INFLUENCE DETECTION AND NARCOTIC FIELD TESTING.

September 5, 2009 | Tilem & Associates

Those charged with a New York DWI/DUI or related offenses, should be pleased to hear that New York criminal defense lawyer, Peter Tilem, the managing partner at Tilem & Campbell recently completed two courses relevant to Driving Under the Influence, Driving While Intoxicated and Driving While Ability Impaired by Drugs. These courses are the same courses that some members of law enforcement take themselves. The knowledge gained in these classes will help Mr. Campbell better cross-examine police officers, toxicologists and others at trial.

With regard to DWI and/or DUI, Mr. Campbell has completed and has been certified by Blackwater Worldwide in Driving Under the Influence Detection. This 8 hour course concentrates on, among other things, the three “validated” Standardized Field Sobriety Tests which are the (1) Walk-and-Turn; (2) One Leg Stand; and (3) the Horizontal Gaze Nystagmus. The course also focuses on Preliminary Breath Screening (which is the handheld device officers sometimes ask a motorist to blow into on the side of the road), and “Red Flags” an officer looks for when observing moving vehicles that indicate a possible intoxicated driver. (weaving, swerving, no headlights at night, wide turns, etc)

Further, Mr. Campbell recently completed a course in, and has been certified by, NIK Public Safety in Narcotic Field Testing. This 2 hour course focused on the field testing of substances to identify illegal drugs such as cocaine and marijuana. Field testing of this type is usually done by law enforcement officers in the field to test substances found during searches, car stops, etc. Mr. Campbell was trained in how to use field testing kits and identify various drugs based upon the test results, how to properly use NIK’s Polytesting system which is utilized when the officer has no idea what the substance is (as opposed to most situations where an officer has an idea of what the substance is), and how to utilize NIK’s reference materials relating to narcotic field testing.

New York Mortgage Fraud

September 1, 2009 | Jasmine Hernandez

Mortgage Fraud has taken center stage in Westchester County Courts and around New York State. This national problem has taken on extra prominence in New York where property values are high. As a criminal defense law firm that has handled many mortgage fraud cases including headline making cases we are seeing an increased number of cases and increased enforcement by law enforcement authorities.

Indeed, in connection with a high profile mortgage fraud case that this firm is involved with, the Westchester County District Attorney’s Office announced the formation of a Mortgage Fraud Unit to investigate and prosecute mortgage fraud in Westchester County. The Westchester County case resulted in the arrest of 8 people, 6 of whom were mortgage professionals and two attorneys.

Mortgage Fraud can take on many different flavors. The Westchester case is alleged to involve “Equity Stripping” which is a way of stealing the equity from a person facing foreclosure. Other cases can involve appraisal fraud, falsely preparing mortgage applications, using straw buyers with good credit to purchase properties, “flipping” properties from one buyer to another, identity theft or a combination of these practices.