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As this blog has discussed on several occasions, New York law provides that evidence which is obtained in violation of a person’s constitutional or statutory rights cannot be admitted in a criminal trial against that person. Most often, a motion to suppress evidence refers to physical evidence such as a gun or drugs or confessions or statements made by the person arrested. However, in many cases involving charges of burglary, robbery, or other offenses in which identification may be an issue, there may be a valid motion to suppress the identification of the defendant.

Identification can be an issue in any New York criminal trial. However, identification issues are most common in New York theft crimes. After a crime is committed, police will conduct an investigation. This includes visiting the scene of the alleged crime and interviewing witnesses. While questioning a witness, a police officer may obtain information that leads them to another witness, who the officer will then interview, and so on. This may eventually lead to an arrest, at which point there may be a formal or informal identification conducted.

There are various types of identification procedures. Which procedure a police officer or detective uses depends largely on the type of crime, the nature of the information leading up to the identification, and the time that has elapsed between the alleged crime and the identification. A few examples of identification procedures include:

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The Federal and New York State Constitutions provide citizens who are charged with New York crimes certain rights that must be respected. In addition, there are certain statutes that grant New York criminal defendants additional rights. In the event that any government agent – including police and prosecutors – fails to respect these rights, courts have an obligation to take remedial action, up to and including dismissing the charges. In a recent case, a New York appellate court dismissed criminal charges against a defendant based on the government’s failure to provide accurate and timely notice of the charges he faced.The Facts of the Case

On June 27, 2016, the defendant was charged with various crimes after a 12-year-old girl observed him touching his penis while sitting in his vehicle. Initially, the girl told police that she saw the defendant at Northern Boulevard and 106th Street.

On May 8, 2017, the prosecution filed additional charges against the defendant. The prosecution did not change the named location of the alleged offense and specified that the conduct at issue took place between June 17, 2016 and May 5, 2017. The defendant objected to the charges, arguing that they were overly broad, and requested that the prosecution file a document more specifically stating what he was charged with committing and when it was alleged to have occurred.

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One of the hallmarks of our criminal justice system that evidence of prior criminal conduct is not permitted to show a persons propensity or tendency to commit crimes.  Except in very limited circumstances evidence of prior criminal conduct is not permitted on the prosecutions direct case.  However, if a defendant chooses to testify the Court is required to hold a pre-trial hearing called a Sandoval hearing to determine in advance what if anything the prosecution can use to cross-examine the defendant about his criminal past.  The purpose of the hearing is to weigh and balance the People’s interest in testing the defendant’s credibility and the defendant’s interest in ensuring that he is not convicted because a jury heard about prejudicial prior criminal conduct.

Earlier this month, a state appellate court issued a written opinion in a New York burglary case in which the court was tasked with determining if the defendant was entitled to a new trial when the prosecution brought up the fact that he had previously been convicted of a robbery that was currently in the process of being appealed. Ultimately, the court concluded that the lower court improperly allowed the defendant to be cross-examined regarding the prior robbery, and this error was not harmless. Thus, the court ordered a new trial to be conducted.  As we have reported in the past this is not the first case to be revered for such errors.  Please see our prior blog.

The Facts of the Case

During a trial for burglary, the defendant chose to testify on his own behalf, which is his constitutional right. After the defendant had finished answering the questions posed to him by his own attorney, the prosecution conducted cross-examination.

It was during this cross-examination that the prosecutor asked the defendant about a prior robbery conviction. Normally, evidence of prior criminal acts is not relevant at trial and may not be explored by the prosecution. However, under certain circumstances, convictions for crimes involving dishonesty – such as theft, robbery, etc. – may be the subject of cross-examination.  In addition, one who shows through their past criminal conduct that they are willing to put their interests over those of society’s may be more willing to do so again by lying under oath.

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Earlier this month, a state appellate court issued a written opinion in a New York gun crime case discussing whether the arresting officer’s conduct violated the defendant’s constitutional right to be free from unreasonable searches and seizures. Ultimately, the court concluded that the officer possessed a reasonable belief that the defendant was armed or had recently committed a crime, and thus it held that the search of the defendant was permissible.

Police Interaction with Citizens

Under New York law, there are four levels of interactions between a police officer and a citizen. The more evidence a police officer has to believe that they are in danger or that the suspect has committed a crime, the more authority the officer has to stop, detain, frisk, and search the individual.

The Facts of the Case

The plaintiff was riding in a vehicle as the front-seat passenger, when the car was pulled over by police for a traffic violation. As one of the police officers approached the vehicle, he noticed that the defendant made a sudden move with his hand from his right shoulder to his lap area.

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Over the last few years, there has been a backlash against the New York stop-and-frisk program, based on the fact that racial minorities were being stopped in far greater numbers than non-minority populations. And while by most accounts, the total number of people stopped and frisked has decreased, the basic principle that allows a police officer to stop and frisk a citizen still remains intact and these principles are important for experienced criminal defense attorneys who handle both gun crimes and drug crimes to be familiar with.

Under New York criminal law, there are four types of interactions with police. First, police may briefly stop someone to request information if they have any “objective and credible” reason. This does not necessarily have to be related to criminal activity. Second, if police believe that someone has, or is about to, commit a crime, they can briefly stop that person. Third, if police believe that the person poses a danger, they can search that person. Finally, if police have probable cause to believe that person committed a crime, they can arrest them.

In the moment, police have a difficult time neatly fitting each situation they confront into one of these four categories. As a result, police generally err on the side of restricting a person’s rights and will frequently exercise more force than is necessary. When this is the case, any evidence seized as a result of an officer’s violation of a person’s rights may be suppressed by the court.

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Recently, in Nassau County, we successfully argued for the reduction of a Sex Offender Registration Act (SORA) Offender to have his risk assessment classification reduced from a level two down to a level one.  This change can have a dramatic effect on the life of a convicted sex offender who is rehabilitated and trying to move on with his or her life.

New York Corrections Law sec 168-o gives registered offenders the right to argue up to once per year for a downward reduction in their offender status and further gives the offenders the right to argue to be relieved of all registration requirements after 30 years after the date of initial registration.  This application can only be made once every two years after the 30 years has expired.

Generally, registered sex offenders in New York are designated into one of three classifications.  Level 3 offenders are considered the most likely to reoffend and are monitored the most closely.  Level 3 registration for example in addition to all of the other requirements for Level 1 and 2 offenders will need to personally verify their address with law enforcement every 90 days.  In addition, level 3 offenders will need to have their picture taken by law enforcement every year as opposed to level 1 and 2 offenders every 3 years.

New York speedy trial statutes can be very effective tools in fighting New York criminal cases ss we have discussed in several blogs.  Earlier this month, the New York Court of Appeals issued an opinion  dismissing a New York homicide case and discussing the defendant’s right to a speedy trial. Ultimately, the court concluded that the six-and-a-half year wait between the defendant’s arrest and his eventual guilty plea violated his constitutional right to a speedy trial. As a result, the court reversed the defendant’s guilty plea and dismissed the indictment.

The Facts of the Case

The defendant, along with his co-defendant, was alleged to have shot and killed a 15-year-old. The defendant was the one who allegedly pulled the trigger, and the co-defendant acted as an accomplice. Both the defendant and his co-defendant were arrested shortly after the victim’s death, on May 28, 2008. The defendant was held without bail.

The prosecutor hoped that the co-defendant would testify against the defendant and delayed the trial several times while trying to work out a deal with the co-defendant. However, when asked at a later date, the co-defendant explained that he would never testify against the defendant, and he did not consider the offer seriously.

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Experienced criminal attorneys have long been aware of the inherent unreliability of cross racial identification.  Cross-racial identification is the eyewitness identification of a suspect in a  criminal case when the witness is a different race than the suspect.  Recently, an appellate court issued a written opinion in a New York robbery case involving the defendant’s challenge to the lower court’s refusal to instruct the jury on the unreliability of cross-racial identifications. The appellate court determined that the lower court was in error when it refused the defendant’s request, reversed the defendant’s conviction, and ordered that a new trial be granted.

The Facts of the Case

The defendant was arrested after two white men reported being robbed at knife point. The facts of both robberies were similar, in that the alleged perpetrator approached the victim, asked the time, and then grabbed the victim’s cell phone when they pulled it out to see the time. Each of the victims told police that the man who had robbed them was African-American and about six feet tall.

After his arrest, the defendant was placed in a line-up with several other individuals. One of the victims picked the defendant out immediately. The other victim was unsure until the police instructed all of the men in the line-up to ask “what time is it?” at which point the defendant was identified. There was no physical evidence tying the defendant to the crimes.

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All defendants in New York criminal cases enjoy the right to have the assistance of competent counsel at all critical stages of the case against them. In a recent New York homicide opinion, the New York Court of Appeals determined that a trial judge denied a defendant the right to counsel when the judge asked the defendant to consent to a DNA test without the presence of his attorney.

The Facts of the Case

The defendant was arrested and charged with homicide. At some point in the police investigation, biological evidence was located in the apartment where the homicide occurred. In an attempt to match the sample discovered in the apartment to the defendant, the prosecutor filed a motion to obtain a sample of the defendant’s DNA.

At the time the prosecutor made the request, the defendant was represented by counsel. However, shortly thereafter, the court excused counsel from the case. Later, the judge called the defendant in to discuss the DNA test.

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As we have been discussing in previous blogs, there are many different issues that can arise in the jury selection process. The main objective is to ensure that the jurors who are selected for the trial will act without bias and that they will be able to apply the law in an objective manner. As seasoned New York criminal defense lawyers, the attorneys at Tilem & Associates have handled many trials and jury selections. We know how important it is to understand the rules of jury selection and how critical it is to ensure that you receive an appropriate and unbiased panel of jurors.

Recently, a New York appellate court considered the role that a juror’s skin color may play in the jury selection process. The court was asked to determine whether a juror’s skin color is a sufficient basis for challenging a prosecutor’s use of a peremptory strike to remove that juror. A peremptory strike describes the right of either party to challenge the selection of a juror without having to provide a reason for wanting to excuse that prospective juror. During the jury selection process, each side has a certain number of peremptory strikes that they are allowed to use. The parties are allowed to assert an unlimited number of challenges to jurors when the parties provide just cause for wanting to excuse that juror.

The United States Supreme Court has held, however, that peremptory strikes cannot be used to dismiss a juror based on his or her skin color or gender. If a party believes that the other side is using peremptory strikes to dismiss jurors based on skin color or gender, the party can challenge the other side’s peremptory strike, particularly when the challenging party believes that the other party is engaging in discrimination. The challenging party has the burden of making a prima facie showing that the other party used peremptory challenges to exclude jurors based on skin color.

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