EVIDENTIARY ISSUES Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

NEW YORK HANDLING OF EXCULPATORY DNA EVIDENCE

October 6, 2025 | Tilem & Associates

In a New York Burglary case, People v Moore, the First Department confronted a familiar but consequential problem: the prosecution disclosed exculpatory DNA results late. Rather than ordering a mistrial or dismissing the case outright, the trial court imposed targeted sanctions. The parties entered a stipulation that squarely informed the jury the DNA excluded the defendant as a contributor for one charged incident, and the court dismissed the count tied to that evidence. On appeal, the panel affirmed, emphasizing that the remedy preserved a “meaningful opportunity” to use the material and cured any prejudice. This outcome underscores a key Brady principle in New York practice: prejudice is the touchstone, and courts tailor remedies to neutralize it, not to punish.

The opinion matters beyond its facts because it illustrates how late Brady disclosures are managed when charges span different dates and locations. Segregating the tainted count and giving jurors an unfiltered exculpatory stipulation allowed the remainder of the case to proceed on unaffected incidents. That approach offers a blueprint for both trial courts and defense counsel facing compartmentalized, multi-event prosecutions.

What Counts as a “Meaningful Opportunity”

Police Dog Searches of Your Body Now Require Probable Cause in New York (At Least in the Third Department)

August 13, 2025 | Peter Howard Tilem

New York’s Appellate Division sent a clear message in People v Butler (July 3, 2025): officers cannot press a drug-sniffing dog against your clothing or skin unless they already have probable cause. The justices threw out a heroin conviction because a trooper let a canine push its snout into the defendant’s waistband during a traffic stop. That intrusion, the court ruled, crossed the line from a minimal sniff to a search so personal that it triggered the highest constitutional protections. If you ever face a roadside dog search, this decision can shape your options, your motions, and your leverage at every stage of the case.

The Decision Raises the Bar for Personal Privacy

The court compared a quick sniff around a car’s exterior with a dog’s nose pressed into intimate areas of a human body and concluded the two encounters are worlds apart. A vehicle sniff affects property; a body sniff affects dignity, autonomy, and personal security. Because the intrusion targets the “most private sphere,” the judges placed it in the top tier of the People v De Bour framework, which requires probable cause rather than mere reasonable suspicion. From now on, officers must point to concrete, verifiable facts suggesting you actually possess contraband before directing a dog toward your person.

NY Court Finds Hospital-Room Interrogation Was Constitutional

April 4, 2025 | Peter Howard Tilem

A recent appeal from Tompkins County shows how quickly a violent-felony indictment can turn into a long prison term—and how limited your options become once you plead guilty. The defendant, accused of taking part in a rolling gunfight that ended with a deadly crash, eventually accepted a plea to manslaughter in the second degree and criminal possession of a weapon in the second degree. Although he later challenged the indictment and the use of his hospital-room statements, the Appellate Division upheld the conviction and the five-to-fifteen-year sentence. If you are facing serious charges in New York, this ruling offers hard-earned guidance on what to contest, when to contest it, and why clear, early strategy matters.

The indictment contained nine counts, ranging from reckless endangerment to homicide. After rejecting an initial offer and losing a suppression motion, the defendant chose to plead on the morning trial was set to begin. On appeal he argued that the weapons count was jurisdictionally defective, that the state’s licensing statute is unconstitutional, and that his statements should have been suppressed because he was injured and asked for a lawyer. None of those claims succeeded, largely because of the legal standards that apply once you accept a negotiated plea.

First, the court dealt with the indictment. A New York indictment is invalid only when it omits an essential element of a charged crime or describes conduct that is not criminal. The defendant claimed the weapon count failed to distinguish between his driveway—arguably private space not covered by the statute—and the public roads where the shootout occurred. He also said the indictment never alleged that he lacked a pistol license. The court called the driveway argument a matter of evidence, not jurisdiction, and ruled that the license issue was satisfied because the count cited the exact Penal Law provision, which by definition requires the firearm to be unlicensed. For anyone accused of a gun offense, the lesson is simple: if a count references the governing statute and tracks its language, a court will likely label it valid. You must raise evidentiary challenges through motions or at trial; waiting until appeal almost always forfeits them.

When Should a Trial Attorney File a Motion to Suppress?

February 6, 2025 | Peter Howard Tilem

As we have often discussed, one powerful tool that criminal defense attorneys can employ is the motion to suppress incriminating evidence. When a trial court grants a defendant’s motion to suppress, the jury never sees the evidence that the defendant has asked the court to keep out of the trial record. These motions, when successful, can make all the difference for defendants in New York, and they often help defendants win their cases.

How do you know if you, as the defendant, should be filing a motion to suppress? There are several flags that should alert you that there might be grounds for the trial court to suppress incriminating evidence in your case. These include: an unlawful encounter with the police, an officer’s failure to give Miranda warnings, errors in a field sobriety test, and problems with how the State handles evidence before it is admitted in court. Generally, if the prosecutor wishes t0 use incriminating statements, physical evidence or a police arranged identification as evidence at trial, an experienced criminal defense lawyer will include a request for suppression of that evidence as part of their omnibus motion.

It is also true that if you think there might be a chance the court could grant your motion to suppress, it is often better to present the motion than to hold back. In a recent case before a New York court, the defendant appealed her guilty verdict, arguing she received ineffective assistance of counsel when her attorney failed to file a motion to suppress that could have been successful. The court granted the defendant’s appeal, concluding that the defendant’s attorney failed her by not asking the court to suppress evidence that investigators found in a search that might have exceeded the scope of their warrant.

Destruction of Surveillance Video During New York Criminal Proceedings

November 23, 2024 | Tilem & Associates

Video evidence has become increasingly common and increasingly important in criminal cases. In New York, criminal defense attorneys can request that a court give something called an “adverse inference” in situations where the prosecution acts inappropriately by failing to preserve evidence. This means that the defendant can ask the court to automatically assume that the prosecution was hiding something simply because of its conduct during the litigation process. How does this “adverse inference” relate to surveillance footage when that footage may be crucial to a criminal case?

New York Case Law

According to New York case law, a court can allow for an adverse inference when a defendant has requested important evidence and when that evidence has been “destroyed by agents of the State.” If a defendant requests surveillance footage that could be crucial to his or her case, and if the State has destroyed the evidence since the time of the alleged crime, this could be grounds for an adverse inference.

Considerations from the Court

The court may, however, deny this request under certain circumstances. For example, if the defendant never formally requested the surveillance video prior to trial, the court may decide the request has no merit. Additionally, if the video was destroyed during routine procedure (i.e. without bad intentions but instead during the course of regular operations), there may be grounds to deny the request.

When Will a Court Decide that Evidence of a Prior Crime is Admissible?

August 26, 2024 | Peter Howard Tilem

In New York, the prosecution in a criminal case is generally unable to present evidence of a defendant’s prior crimes or bad acts. There are, however, exceptions to this rule, and courts can admit otherwise inadmissible evidence using one of the exceptions laid out in the rules of evidence. As a general rule, evidence of a prior bad act may never be used to demonstrate that a person has a propensity for committing crimes.

The Exceptions

The five exceptions to the rule that evidence of a defendant’s prior crime is inadmissible are when the evidence helps establish a defendant’s (1) intent or purpose, (2) motive, (3) knowledge, (4) plan, or (5) identity. These five categories can all end up being fairly broad, and each trial court might interpret the exceptions a bit differently. This can, in turn, be challenging for defendants who are trying to keep evidence of prior bad acts out of the record to keep the jury from being prejudiced against them.

In a recent case before the Appellate Division, Second Department, the defendant challenged the trial court’s use of exception #1, intent or purpose. During the defendant’s trial for criminal contempt in the first degree and aggravated harassment in the second degree, the prosecution sought to present evidence of testimony about an incident that let to a protective order against the defendant. Allegedly, the defendant had violated that protective order, which brought him to court on the criminal contempt and aggravated harassment charges.

New York Defendant Unsuccessfully Argues for Suppression of Incriminating Evidence, Highlighting the Importance of Establishing Standing in Suppression Cases

November 30, 2023 | Peter Howard Tilem

Recently, in a New York criminal case involving possession of a forged instrument, the defendant argued that the lower court should have granted his motion to suppress evidence found in the car he was driving. An officer first pulled the defendant over for speeding, and the officer found a credit card reader in the passenger seat of the car. The defendant filed a motion to suppress, which the trial court denied, and the defendant appealed. Despite the defendant’s reasoning, however, the higher court ultimately denied the defendant’s appeal.

Facts of the Case

According to the opinion, an officer noticed the defendant driving by because he was speeding and because he ran through a red light. The officer conducted a traffic stop and ended up finding a credit card reader along with several debit cards and several blank cards in the car’s passenger seat. The State charged the defendant with criminal possession of a forged instrument in the second degree.

The defendant filed a motion to suppress, arguing the police officer did not have the legal authority to search and seize the credit card reader and debt cards when conducting the traffic stop. The lower court denied the defendant’s motion, and the defendant promptly appealed that decision.

New York Defendant Successfully Appeals Lower Court’s Decision, Highlighting Importance of Contextualizing Evidence Rules in Sexual Assault Cases

November 25, 2023 | Tilem & Associates

In a recent case before a court in New York, the defendant asked the court to find that the lower court had erroneously excluded evidence during his trial. The defendant was originally charged with two counts of first-degree sexual abuse, and a jury found him guilty as charged. On appeal, however, the higher court agreed with the defendant’s argument and ultimately reversed the lower court’s decision.

The Facts of the Case

According to the opinion, the defendant was sitting on a couch with a minor relative of his when he allegedly penetrated the minor’s vagina and touched her breasts. The minor’s testimony indicated that the two individuals had blankets over their laps, and that the defendant reached under the blanket and proceeded to touch her inappropriately.

The minor immediately texted her mother to tell her what had happened. At that point, the defendant was charged with first-degree sexual abuse. He pled not guilty, and his case went to trial. A jury found him guilty, and the court sentenced the defendant to three years in prison.

New York Defendant Unsuccessfully Asks Court to Suppress Incriminating Statement Made to Attorney

January 25, 2023 | Peter Howard Tilem

Earlier this month, a New York defendant convicted of attempted murder, appealed his guilty verdict before the Appellate Division of the Supreme Court of the State of New York. According to the defendant, the lower court violated his rights by allowing the State to enter into evidence a comment that he had made to his attorney in the presence of law enforcement officials. This statement, said the defendant, was meant to be part of a private conversation, and the lower court should not have let it in as evidence. The higher court reviewed the record and ultimately rejected the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant was charged with several violent crimes, including assault in the first degree and criminal possession of a weapon in the second degree. Once charged, the defendant was taken to a holding room at the local police department. A police investigator stood about five feet outside the open door in full view of the defendant, including while the defendant met with his attorney in the holding room. At one point during the defendant’s conversation with his lawyer, he made an incriminating statement in a loud voice, and the investigator overheard the defendant make this statement.

The defendant argued before the lower court that this statement should not be used in court, given the statement was made to his attorney, was made after his right to counsel had attached and was not meant to be heard by the investigator. The lower court denied the motion to suppress, and the defendant appealed.

Defendant in New York Weapons Case Unsuccessfully Asks Court to Reconsider Evidentiary Ruling

January 6, 2023 | Peter Howard Tilem

Recently, a defendant in New York appealed his guilty conviction for attempted murder and criminal possession of a weapon. On appeal, the defendant argued that during trial, the prosecution inappropriately introduced evidence of a 911 call from the victim’s mother. The call, argued the defendant, was hearsay, and it should not have been admitted. After considering this argument, the appellate court ultimately affirmed the original guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged when police arrested him for shooting another person in Queens. During the altercation, the defendant shot the victim, and the victim walked out of the incident injured but still alive. The State charged the defendant with several crimes, including attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree.

The case went to trial, and a jury found the defendant guilty as charged. Even after the verdict, the defendant maintained that he was unjustly found guilty, and he appealed the jury’s decision.