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

TILEM & CAMPBELL WINS ANOTHER DWI TRIAL

January 12, 2010 | Jasmine Hernandez

Westchester DWI defense firm, Tilem & Campbell won another DWI trial last week when Mount Pleasant Judge Nicholas Masselli issued a decision finding that the client who was pulled over on the side of the highway was not “operating” the vehicle and therefore could not be convicted of Driving While Intoxicated. Judge Masselli also dismissed another charge of Parking on the Pavement and issued an order sealing the record.

The case arose after the client was found sleeping behind the wheel of a running vehicle that was sitting on the side of the road by a New York State Trooper. The Trooper testified that he smelled the strong odor of an alcoholic beverage on the driver’s breath and that the driver failed a horizontal gaze nystagmus test that was performed on the side of the road. The Trooper testified that the driver failed other field sobriety tests and refused a breath test that he was offered at the police station.

Managing partner Peter Tilem tried the case on behalf of the firm and this victory makes three DWI wins in a row for Mr. Campbell. The defense focused on the troopers errors in administering and scoring the field sobriety tests and the lack of the intent to operate the vehicle.

NEW YORK SEARCH AND SEIZURE LAW – STREET ENCOUNTERS WITH THE POLICE IN NEW YORK – The Four Levels of Intrusion

January 10, 2010 | Tilem & Associates

As discussed in the previous blog New York police are limited in the way they interact with civilians that they encounter on the street. If the police overstep their authority an experienced criminal defense attorney can use the police conduct to get evidence in a case suppressed.

Below are the four levels of intrusion as set forth by the New York Court of Appeals in Debour. Keep in mind that each case is an individual and may be affected by the minute details of the case.

Level 1 “Request for Information”: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not necessarily indicative of criminality. This is not equivalent to a stop. These encounters should be brief and not be harassing or intimidating. For example, approaching possible witnesses to a crime and checking to see if everyone involved in an accident is alright.

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.