CRIMINAL PROCEDURE Category Archives — Page 22 of 24 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

KIMBROUGH v. UNITED STATES DID NOT STRIKE DOWN THE FEDERAL STATUTORY MANDATORY MINIMUM SENTENCES FOR CRACK OFFENSES. THE FEDERAL STATUTORY MANDATORY MINIMUM SENTENCES (21 USC 841) FOR CRACK COCAINE OFFENSES ARE ALIVE AND WELL – FOR NOW

December 30, 2008 | Tilem & Associates

At Tilem & Campbell, we often consult with and are retained by those facing or serving 5, 10 or 20 year federal statutory mandatory minimum sentences for cocaine base (crack) offenses. Many individuals mistakenly believe that the United States Supreme Court’s 2007 decision in Kimbrough v United States, 128 S. Ct. 558 struck down the statutory mandatory minimums for crack offenses. The decision did no such thing and has been widely misinterpreted as having struck down the federal statutory mandatory minimums for crack offenses as well as the 100:1 powder cocaine to crack cocaine ratio. In fact the Kimbrough case concerned a Booker issue – not a statutory mandatory minimum challenge. The Kimbrough decision held that the 100:1 ratio found in the United States Sentencing Guidelines is merely advisory; as are all of the Guidelines after Booker.

The Kimbrough decision held that a sentencing court may consider the 100:1 crack/powder cocaine disparity found in the Guidelines when determining a sentence. In Kimbrough, the defendant’s Guideline range was well above the statutory mandatory minimum. What the District Court did was consider the 100:1 ratio and its effect on the sentencing range. Based upon that consideration, the District Court, decided that the ratio resulted in an overly excessive sentencing range and sentenced the defendant to a sentence below the advisory sentence as calculated under the Guidelines – but above the 10 year statutory mandatory minimum.

However, the reasoning and discussion in Kimbrough established that the United States Supreme Court has now acknowledged that the fears that one time supported the 100:1 crack/powder sentencing disparity have proved unfounded and that crack cocaine and powder cocaine are the same drug and bring about the same physiological effects of the user. The decision also cited numerous Commission reports critical of the ratio and urging its abolishment.

THE FEDERAL 100:1 POWDER COCAINE/CRACK COCAINE RATIO AND THE RESULTING DISPARITY IN FEDERAL MANDATORY MINIMUM SENTENCING FOR COCAINE OFFENSES?

December 27, 2008 | Tilem & Associates

Recently, Tilem & Campbell filed an appeal challenging the constitutionality of the federal statutory mandatory minimum sentences applicable to crack cocaine offenses and the 100:1 powder cocaine vs. crack cocaine ratio. The issues raised in the appeal will be discussed in future blogs as will the United States Supreme Court’s recent decision in Kimbrough v United States, 128 S. Ct. 558 (2007).

However, one must have a basic understanding of the federal statutory mandatory minimum sentencing statutes and how they apply to both powder cocaine and crack cocaine to understand the arguments against them as well as the Kimbrough decision. Germane to this discussion is an understanding of the often discussed 100:1 powder cocaine/crack cocaine ratio. It is this ratio that has resulted in crack offenders spending decades in prison while powder cocaine offenders convicted of offenses involving the same weight often spend less than two years in prison.

Basically, for sentencing purposes in the federal system, the relevant statute (21 U.S.C 841) treats one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, possession of just 5 grams of crack cocaine (about a thimble full) triggers a five year mandatory minimum sentence. However, it would take 500 grams of powder cocaine (1/2 kilo) to trigger the same mandatory minimum. (See 21 USC 841). Therefore, one who possesses what is clearly a personal use amount of crack cocaine (5 grams) faces the same sentence as a major dealer of powder cocaine.

New York Times Reports Sharp Increase in Shoplifting Arrests

December 23, 2008 | Jasmine Hernandez

On the front page of today’s New York Times, the Times is reporting a sharp increase in shoplifting and shoplifting arrests across the Country. Citing several factors including the weak economy the Times is reporting that shoplifting arrests are up ten to twenty percent over last year.

At the New York criminal defense firm, Tilem & Campbell we have also seen the increase in New York shoplifting cases through telephone inquiries to the firm, cases on which the firm has been retained, and cases we see in Court. Here in White Plains, New York, home to several shopping malls, the increase is clearly visible in the cases that the White Plains Court is handling.

It is important to remember that shoplifting in New York can result in several criminal charges including Petite Larceny and Criminal Possession of Stolen Property in the Fifth Degree both class “A” misdemeanors punishable by up to one year in jail. If the property stolen retails for more than $1000 the charges can be Grand Larceny and Criminal Possession of Stolen Property In the Fourth Degree, both felonies punishable by up to four years in prison.

NEW YORK’s VEHICLE PRESUMPTION – NEW YORK DRUG AND NARCOTICS CASES – Marijuana Not Included Part II

December 20, 2008 | Jasmine Hernandez

As discussed in the previous blog, under certain circumstances, all occupants of a vehicle can be presumed to possess drugs, guns or other weapons found within the vehicle. We also discussed the effect of the presumption on the New York criminal case and went into some detail about the presumption as it applies to New york gun cases and New York Weapon cases.

Now we discuss the vehicle presumption as it applies to New York controlled substance cases. With certain drug possession offenses carrying a mandatory minimum of eight years, the stakes are very high when traveling in a vehicle with someone who may possess illegal drugs. Similar to the gun presumption, New York’s drug presumption applies to all vehicles except public buses (it applies in stolen vehicles unlike the gun presumption). According to a strict reading of the statute, the drug presumption applies to all persons in the vehicle at the time the drugs are found. Since generally the police take all of the occupants out of the vehicle, I would argue that in such a case the presumption does not apply.

Like the gun presumption, the drug presumption does not apply in three circumstances. The presumption does not apply to a cab driver or livery cab driver. It does not apply if a person in the vehicle is authorized to possess the controlled substance (has a prescription for the drug) and the drug is in the same packaging as when he received it. The presumption also does not apply when the drugs are found on the person of one of the occupants.

NEW YORK’s VEHICLE PRESUMPTION – KNOW WHO YOU’RE IN THE CAR WITH (AND WHAT THEY HAVE) Part I

December 17, 2008 | Jasmine Hernandez

New York Criminal Law establishes a presumption that all people in a vehicle are presumed to possess either drugs or guns that are found within the vehicle. What that means is that in New York each and every person inside a car will generally be charged with gun possession or drug possession for contraband that is found anywhere in that car, regardless of where the drugs or guns are found. (With certain exceptions, some of which are discussed below.)

NEW YORK GUN POSSESSION PRESUMPTION

In the case of gun, with possession of a loaded gun in New York carrying a mandatory minimum of three and one half years in prison, you are taking a tremendous chance driving with someone who may have an illegal gun. The New York gun presumption applies to all vehicles except stolen vehicles and public buses and applies not only to firearms but other weapons. The presumption has three major exceptions. The presumption does not apply if the weapon is recovered on the person of one of the occupants of the vehicle. It does not apply to the driver of a cab or livery cab and the presumption does not apply if one of the occupants has a license to carry the weapon concealed.

New Tork Traffic Ticket Lawyers Tilem & Campbell Announce New Web Page

October 8, 2008 | Tilem & Associates

New York Traffic Ticket Lawyers, Tilem & Campbell are please to announce the posting of their newest web paging entitled “New York City Traffic Tickets“. The page is designed to be a primer of the practices of the New York Traffic Violation Bureau Courts (TVB) that operate in New York City, Rochester, Buffalo and parts of Suffolk County. If you receive a traffic summons in Brooklyn, Bronx, Queens, Manhattan or Staten Island in New York City it will be returnable to the Department of Motor Vehicles and be adjudicated in a TVB. The New York City Traffic Ticket page will educate you about the practices and procedures of these administrative courts.

The page is broken up by heading with topics such as “The Hearing”, “Entering Your Plea” and “The Rules of Evidence at the Hearing” and more and therefore should be a simple reference for any questions realting to New York City Traffic Tickets.

If you receive a traffic summons in the City of New York or any other area that is covered by the TVB please refer to the “New York City Traffic Tickets” page or contact us at 877-DR SUMMONS. Keep in mind that the TVB only handles traffic infractions and not traffic misdemeanors or other types of violations.

CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL IN A NEW YORK TRAFFIC VIOLATION CASE

September 10, 2008 | Tilem & Associates

In a previous blog I explained that one doesn’t not have a statutory right to a speedy trial in a New York traffic violation case (such as speeding, red light, stop signs violations, etc). Does this mean that a New York court can take years to schedule your trial? The answer is yes and no. While there is no statutory right to a speedy trial in a traffic violation case, the courts have held that one charged with a New York traffic violation has a constitutional right to have his or her trial held within two years. This constitutional right is found in CPL § 30.20 which basically states that after a criminal prosecution is commenced the defendant is entitled to a speedy trial. This section does not set forth what constitutes a speedy trial however. It also applies to traffic violations because for purposes of procedure, traffic violations are treated as misdemeanors. See VTL § 155. The Sixth Amendment to the United States Constitution also guarantees a right to a speedy trial even in traffic violation cases.

Numerous New York court cases have held that the speedy trial provision found in CPL § 30.20 applies to traffic violation cases. The question becomes therefore, what is considered an acceptable time frame within which one charged with a New York traffic violation must be brought to trial in light of CPL § 30.20? Two years seems to be the limit provided the delay is not caused by the defendant. Below are reviews of relevant cases:

In People v. Thorpe, 160 Misc.2d 558, 613 N.Y.S.2d 795 (1994) the Appellate Term dismissed a conviction due to an unexplained two year delay in bringing the case to trial. This is the case to rely on when making a speedy trial motion. See also People v. Matera, 2003 WL 21974065 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51180(U)(unexplained delay of over two years in bringing traffic infraction to trial warranted dismissal); People v. Rogoish, 2003 WL 21700087 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51120(U)(unexplained delay of over three years in bringing the traffic infraction to trial warranted dismissal)

NEW YORK HAS NO STATUTORY SPEEDY TRIAL RIGHT FOR TRAFFIC INFRACTIONS.

September 2, 2008 | Tilem & Associates

The simple fact is, a motorist charged with a New York traffic violation has no statutory right to a speedy trial. The denial of a statutory right to a speedy trial in a New York traffic violation case is yet another example of the New York Judiciary completely disregarding the laws duly enacted by the Legislature and imposing their own will. It is yet another example of what I consistently refer to as judicial supremacy as opposed to judicial oversight. Such rulings by the courts quite simply amount to a judicial hijacking of the legislative role thus destroying the separation of powers.

A review of the relevant laws reveals that the Courts’ denial of speedy trial rights in traffic violation cases (as well as the denial of other rights in traffic violation cases) is completely contrary to the clear and unambiguous wording of the laws; laws that the judiciary is constitutionally obligated to enforce and carryout whether they agree with them or not.

First of all, the New York State Legislature has determined that, with some exceptions, traffic “violations shall be deemed as misdemeanors and all provisions of law relating to misdemeanors . . . shall apply except that no jury trial shall be allowed for traffic infractions.” See VTL § 155. Therefore, if the Legislature has determined that traffic violations are to be treated procedurally as misdemeanors, under what possible theory could the speedy trial statutes not apply? See for example People v. Solomon, 1984, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984) where the court held that the right to speedy trial does not attach to actions commenced for traffic violations. See also People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778(1993)(Speedy trial statute applies only to felonies, misdemeanors, and violations, and “violation” is specifically defined to exclude traffic infractions.)

ARE CERTAIN PEOPLE EXEMPT OR DISQUALIFIED FROM JURY DUTY IN NEW YORK STATE?

August 22, 2008 | Tilem & Associates

There are generally no classifications of people who are exempt or disqualified from jury duty in New York State. However, in order to be initially selected for the jury pool in your county, you must be a citizen of the United States as well as a resident of the particular county that has summoned you for jury duty; have never been convicted of a felony; be at least 18 years of age and be able to communicate in English. See Jud Law § 510. If you don’t satisfy all of these qualifications you are ineligible for jury duty in New York State.

Prior to January 1, 1996, active members of the armed forces; elected federal, state, city and local officers; the heads of certain government agencies; and federal or New York State judges were deemed disqualified to serve as jurors. See Jud. Law 511 (1995). These statutory disqualifications were repealed effective January 1, 1996.

Furthermore, prior to January 1, 1996, certain full-time religious practitioners, certain members of the medical field including doctors, dentists, nurses, licensed physical therapists and even embalmers as well as attorneys, fire personnel, sole proprietors engaged in the full-time operation of their business, parents or guardians with children under the age of 16 and those over 70 years of age were exempt from jury duty. These statutory exemptions were repealed effective January 1, 1996.

WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK TRAFFIC TICKET ALSO PROSECUTING IT? PART IV – UNDER THE DOCTRINE OF “INCLUSIO UNIUS EST EXCLUSIO ALTERIUS”, THE LEGISLATURE’S SPECIFIC INCLUSION OF SOME NON-ATTORNEYS WHO MAY ACT AS AN ATTORN

August 5, 2008 | Tilem & Associates

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)
Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not “been duly and regularly licensed and admitted to practice law in the courts of record of this state” from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478