CRIMINAL PROCEDURE Category Archives — Page 3 of 23 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Discusses the Use of Confidential Informants

April 9, 2019 | Tilem & Associates

Prosecutors and Police officers routinely use confidential informants to gather information and perform controlled buys in narcotics cases, firearms cases or cases involving other contraband. Often, police will use what a confidential informant tells them to establish probable cause when they seek to obtain a search warrant. Thus, confidential informants can play a significant role in many New York drug cases.

However, police and prosecutors generally refuse to a provide the defense with the identity of the confidential informant because once an informant’s identification is known, they can no longer be used by police and may face retaliation. At the same time, if a defendant cannot question police about the existence of the informant, there is the concern that the informant may not exist and that police fabricated the informant to get around the warrant requirement.

To alleviate these concerns, courts require that the prosecution present the confidential informant in an ex parte hearing (outside the presence of the defendant). Recently, a New York appellate court issued an opinion in a case discussing the proper procedure a court should follow when presented with a case in which the prosecution is relying on a confidential informant’s testimony to develop probable cause.

Court Holds that New York Recidivist Statutes Look to Original Sentencing Date, Rather than a Subsequent Resentencing Date

March 6, 2019 | Peter Howard Tilem

When courts determine a defendant’s sentence, one of the factors they consider is the defendant’s prior record. Typically, the more convictions a defendant has on their record, the harsher the penalty they can expect to receive.

New York lawmakers have prescribed an escalating punishment scheme for “second felony offenders.” Under New York Consolidated Laws § 70.06, a second felony offender is someone who has recently been convicted of a qualifying offense and has a qualifying predicate offense. The punishments for second felony offenders are mandatory, meaning a judge cannot exercise her discretion to impose a more lenient sentence, and are significantly increased over those for first-time felony offenders. A proficient New York criminal appeals attorney can break everything down further regarding the details of your specific case once you reach out to them.

When it comes to determining whether a previous conviction is a qualifying predicate offense, courts look both to the date of the sentence as well as the type of crime. In a recent case, a New York appellate court clarified that it the original date of sentencing that courts should look to when determining if someone qualifies as a second felony offender.

New York Court Discusses Justification Defense in Recent Attempted Murder Case

February 16, 2019 | Tilem & Associates

Self defense cases in New York can be particularly challenging and require a skilled and experienced attorney. In New York self defense is referred to the defense of justification. Recently, a state appellate court issued an opinion in a New York assault case discussing the defense of justification. Ultimately, the court reversed the defendant’s conviction for assault in the first degree and ordered a new trial based on the trial court’s failure to instruct the jury appropriately.

The Facts of the Case

According to the court’s opinion, the defendant was arrested and charged with attempted murder and several assault charges after he “slashed his roommate across the neck and stabbed him in the abdomen with a large kitchen knife.” Apparently, the alleged assault occurred in the men’s apartment during a physical altercation.

Evidently, the defendant presented evidence suggesting that he was justified in his actions. It is unclear from the court’s opinion the exact nature of the justification defense, but it was most likely self-defense. At the conclusion of the evidence, the court instructed the jury on each of the charged offenses, as well as the defendant’s justification defense.

Motions to Suppress Identification in New York Criminal Cases

January 28, 2019 | Tilem & Associates

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:

New York Court Dismissed Criminal Charges Based on Lack of Notice Provided to Defendant

August 15, 2018 | Tilem & Associates

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.

New York Appellate Court Reverses Defendant’s Conviction Based on Improper Questioning Regarding Prior Robbery

June 15, 2018 | Tilem & Associates

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.

New York Court Affirms Denial of Defendant’s Motion to Suppress Firearm

June 1, 2018 | Tilem & Associates

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.

Limits on a Police Officer’s Ability to Stop and Frisk Citizens in New York

April 12, 2018 | Tilem & Associates

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.

REDUCING THE RISK ASSESSMENT CLASSIFICATION FOR NEW YORK REGISTERED SEX OFFENDERS

March 28, 2018 | Peter Howard Tilem

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 Appellate Court Dismisses Defendant’s Murder Charge Based on a Violation of His Right to a Speedy Trial

March 26, 2018 | Tilem & Associates

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.