CRIMINAL PROCEDURE Category Archives — Page 4 of 23 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Discusses Inherent Unreliability of Cross-Racial Identification

March 20, 2018 | Tilem & Associates

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.

New York Appellate Court Finds Trial Court Denied Defendant Right to Counsel During Request for DNA Test

March 1, 2018 | Tilem & Associates

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.

New York Appellate Court Reverses Conviction Based on Improper Use of Peremptory Strikes During Jury Selection

February 7, 2018 | Tilem & Associates

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.

New York Appellate Court Upholds Conviction in Coercion Case Based on Defendant’s Failure to Make a Timely Objection

January 31, 2018 | Tilem & Associates

One of the most critical phases of a trial is providing instructions to the jury before deliberation. There are form jury instructions that the judge can use, but the parties are also allowed to offer suggested jury instructions. The type of instructions that the jury receives can have a serious impact on the ultimate verdict that they return. Additionally, if you believe an error was made during jury instructions, it is critical that you object to it on the record so that you can later appeal the matter. At Tilem & Associates, our team of New York criminal defense lawyers has guided numerous clients through the jury instruction phase.

A recent New York appellate opinion discusses alleged errors in jury instructions. The defendant was charged with a number of crimes, including coercion involving his ex-girlfriend. The defendant was accused of making physical threats against the former girlfriend and threatening to ruin a business that she operated after the girlfriend asked the defendant to move out of her apartment. The defendant allegedly made these threats in an attempt to stay at the apartment. The defendant was on parole at the time he made these threats, so the girlfriend reported the threatening conduct to his parole officer. The parole officer then had the defendant arrested. Evidence at trial suggested that the defendant continued to make threats against his ex-girlfriend while he was in prison.

During trial, the defendant asked the judge to instruct the jury on coercion in the second degree as a lesser-included offense of coercion in the first degree. In making this request, the defendant asserted that his conduct did not rise to the level of heinousness contemplated by coercion in the first degree. The trial court denied his request. At the close of trial, the jury returned a verdict convicting the defendant of coercion in the first degree on two counts. The defendant appealed.

New York Appellate Court Upholds Lower Court Denial of Motion to Dismiss Juror Based on Allegations of Impartiality and Bias

January 24, 2018 | Tilem & Associates

As we discussed in our previous blog, if you are involved in a criminal trial, one of the most crucial steps is selecting the jurors. There are many rules that apply to this part of the legal process, and it is crucial to make sure you protect your right to a fair and unbiased jury. As seasoned New York criminal defense lawyers, the trial attorneys at Tilem & Associates have guided many individuals through the jury selection process and their case in general.

A recent New York appellate opinion discusses a case involving a jury dismissal issue. The defendant was facing criminal charges in connection with the death of a five-year-old. During the jury selection phase, defense counsel questioned one of the prospective jurors regarding whether or not he or she had issues with the fact that the case involved the death of a toddler. The juror indicated that he could not be impartial because of the victim. Another juror indicated that he also felt he could not be impartial. The defense counsel asked the jurors whether they agreed that the burden to prove guilt beyond a reasonable doubt was on the prosecution. The jurors all agreed, including the two jurors who indicated that they did not believe they could remain impartial. The defense counsel then asked whether the jurors would have trouble finding the defendant not guilty if the prosecution failed to meet its burden of proof. One of the jurors who showed initial hesitation expressed doubt about this question.

The trial court then asked the doubtful jurors a series of questions to determine their ability to be unbiased and to apply the law fairly. Based on this examination, the court dismissed one of the jurors. Defense counsel asked the court to dismiss the other doubtful juror, but the court denied this motion. Defense counsel then used one of their peremptory challenges to dismiss the juror. The case proceeded, and the defendant eventually appealed the judgment.

New York Appellate Court Reverses Murder Conviction Based on Lower Court’s Refusal to Allow Questioning of Prospective Jurors

January 17, 2018 | Tilem & Associates

As experienced New York criminal defense lawyers, we often receive questions about the jury selection process and the rules that apply to ensure that a fair and unbiased jury is selected. Jury selection, the process of choosing fair and impartial jurors can be one of the most critical stages of a jury trial. During the selection process, lawyers are permitted to ask the jurors questions and can select certain jurors to be removed, either based on their answers or based on a certain number of challenges they can use without having to explain their reasoning. A recent appellate opinion discusses the rules that apply to questioning jurors.

The defendant in the action was charged with murder. The defendant provided a written and verbal statement to law enforcement officials regarding the shooting and the events that led up to it. He said that the victim approached him to discuss a missing cell phone and that the victim later approached the defendant again and threatened him with an ice pick. The defendant said he then shot at the defendant as the defendant fled. The prosecution identified two witnesses to these events.

Before the jury selection phase of the trial, the defendant’s lawyer asked if the court could instruct the prospective jurors about the rules that apply to the use of the defendant’s statement. The lawyer wanted to make sure that he could weed out any jurors who would be unable to accept the rules that apply to involuntary statements and who would automatically assign weight to any statement regardless of how it was procured. The prosecution indicated that it had not decided whether it intended to admit the defendant’s statement into evidence. The court ultimately declined the defense lawyer’s request, finding that the jury selection phase was not the appropriate time to address this issue.

New York Appellate Court Reverses Second-Time Violent Offender Classification Based on Improper Sentencing

January 5, 2018 | Peter Howard Tilem

New York Criminal Lawyers know that Sentencing is one of the most critical aspects of any criminal prosecution. During this phase, the court will consider many different factors and determine the appropriate sentence for the defendant. There are many types of sentences from which a judge can choose, but in some cases, the judge is required to impose certain mandatory minimum sentences. As a recent appellate opinion shows, having a seasoned New York criminal defense lawyer by your side during sentencing can make all of the difference.

The facts of the case are as follows. The defendant was convicted of two counts of violent robbery in November 2010. In 1994, however, the defendant had been convicted of a class B violent felony assault in the first degree. Initially, the defendant was sentenced to probation regarding the 1994 conviction. Following a probation violation, however, he was resentenced to a prison term.

During sentencing regarding the 2010 charge, an issue arose regarding whether his 1994 conviction constituted a predicate violent felony offense for the purpose of sentencing him as a second-time violent felony offender regarding the 2010 convictions. More specifically, the court was asked to decide whether the date of the first sentence imposed for the 1994 crime in lieu of the date of the resentencing imposed for the 1994 crime should be used to determine whether the prior conviction fell within the 10-year look-back period specified in New York’s violent felony offender statute.

New York Appellate Court Upholds 25-Year Sentence, Rejects Ineffective Assistance of Counsel Claim

December 24, 2017 | Tilem & Associates

There are a wide variety of issues that can be raised on appeal following a criminal charge and criminal sentencing. One of the issues that can be raised is ineffective assistance of counsel. In this type of appeal, which generally is raised not by an appeal but by a motion to vacate a conviction under CPL 440.10, the defendant is arguing that his or her attorney failed to render competent legal counsel and that this failure had a dispositive outcome in his or her case. As seasoned New York criminal lawyers, we understand how critical it is to provide clients with responsive, dedicated, and knowledgeable legal counsel.

A recent appellate opinion discusses when a conviction can be overturned for ineffective assistance of counsel. The defendant was accused of sexual abuse of a minor. At trial, the victim testified regarding the alleged abuse, stating that the abuse occurred for many years and that she had informed a number of individuals, including two officers, regarding the incidences. Following the victim’s testimony, the defendant’s counsel did not seek a limiting instruction from the court requesting that the minor’s statements regarding previous disclosures should not be considered in determining whether or not her testimony was true.

The prosecution called each of the individuals whom the victim had allegedly informed of the abuse. Defense counsel objected at each point at which the prosecution attempted to elicit an answer regarding what the victim disclosed to each witness. The prosecution then called a child sex abuse expert witness to testify regarding her examination of the victim. The expert witness testified that the victim had informed her of the abuse, and defense counsel objected. The doctor also testified that there were no physical signs of sexual abuse, but this conclusion did not foreclose the possibility that abuse occurred. In closing arguments, the prosecution stated that the victim should be believed based on her prior consistent statements and the testimony from each witness regarding the victim’s communications regarding the abuse. Ultimately, the defendant was sentenced to 25 years in prison. The Appellate Division affirmed the ruling, and the defendant appealed.

New York Appellate Court Reverses Sentence Based on Violation of Defendant’s Right to Be Present at Sentencing Hearing

December 16, 2017 | Peter Howard Tilem

New York has enacted certain laws that are designed to protect a defendant’s rights during criminal prosecutions and sentencing. As seasoned New York criminal defense lawyers, we are well versed in these procedural rules and understand how important it is to ensure that our clients receive the fair and equitable treatment that they deserve. One of these rules requires that a defendant be present at the time a sentence against him or her is pronounced. A recent New York appellate opinion discusses whether this rule applies to the re-imposition of an original sentence.

The background of the case is as follows. The defendant entered a guilty plea to a manslaughter charge and attempted murder charge in 2001. As a result, he was sentenced to 25 years in prison for each count, to be served concurrently. At the sentencing hearing, the judge did not mention post-release supervision. It was also omitted from the sentence and commitment order.

In 1998, New York legislators voted to require a mandatory period of post-release supervision for any determinate state prison sentence. Failing to notify the defendant of this term during the plea provided a basis for a defendant to move to vacate a plea. Subsequently, New York courts concluded that any defendant who enters a guilty plea must be informed of the consequences, including the imposition of post-release supervision. The New York Legislature voted to enact an exception to this requirement. Under the law, the notification requirement only applied to determinate sentences imposed between September 1, 1998, and June 30, 2008. Furthermore, the notification must only be provided if a statutorily required PRS term was not pronounced verbally during a sentencing hearing. Stated differently, the law allows the court to re-impose an original determinative sentence without a term of post-release supervision.

New York Appellate Court Upholds Murder Conviction, Rejects Defendant’s Challenge to Voluntariness of Confession

December 14, 2017 | Tilem & Associates

New York Criminal Defense Lawyers need to be aware of the countless procedural rules that are absolutely essential to follow in order to ensure that you protect your rights at every step of a criminal investigation or prosecution in addition to the substantive law. At Tilem & Associates, our diligent team of New York homicide defense lawyers has substantial experience and knowledge when it comes to these procedural rules and navigating the courtroom. A recent New York appellate opinion illustrates there are countless rules that apply to how law enforcement can secure a confession from a witness.

In the case, the defendant was convicted of murder, attempted robbery, and burglary. The defendant was not originally a suspect in the matter, but throughout their investigation, the detectives identified inconsistent information in statements that the defendant provided to the police. The police brought the defendant in for questioning, which lasted for several hours during the course of three days. The defendant implicated two other individuals in the crimes and ultimately confessed to murdering two victims, ages 21 and 18 respectively, who were siblings and who lived together in an apartment in Queens.

The events giving rise to the murders involved one of the victims phoning the defendant, who was her ex-boyfriend, and asking for help. The authorities were eventually called to the apartment, where the defendant was waiting. The detectives collected a broad spectrum of evidence from the scene of the crime and conducted multiple interviews of persons related to the incident who potentially had information. The defendant was one of the people who were initially interviewed, even though he was not listed as a suspect at first. By the end of the investigation, he was charged with six counts of murder, among other things.