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

Court Affirms New York Manslaughter Conviction After Finding Defendant’s DNA Was Not Illegally Seized

November 14, 2020 | Peter Howard Tilem

Recently, a state appellate court issued an opinion in a New York manslaughter case, affirming the defendant’s conviction after dismissing his challenge to the way in which the prosecution obtained a sample of his DNA. In so doing, the court explained how law enforcement officials can legally obtain DNA evidence from a suspect who has yet to be charged with a crime.

The Facts of the Case

According to the court’s opinion, four men belonging to the gang, Young Gunnaz, drove a Gold Nissan into a rival gang’s territory. The person in the car’s passenger seat exited the vehicle and shot and killed a 16-year-old. The incident was caught by a surveillance camera, but no identification could be made from the footage.

Law enforcement tracked down the owner of the Gold Nissan, who became a cooperating witness. He identified the defendant as the shooter, and explained that, after the shooting, the men went back to their apartment building. The driver allowed the police to take a DNA sample from the car’s front passenger seat area.

Curative Instructions in New York Criminal Trials

November 8, 2020 | Peter Howard Tilem

Throughout the New York criminal trial process, it is not uncommon for comments or evidence to come into the trial that could prejudice either side. Courts take precautions to instruct attorneys and witnesses not to say certain things, and to avoid particular topics. However, the jury will inevitably be exposed to comments or evidence that it should not have seen or heard. When this happens, it may result in a mistrial. However, courts are reluctant to declare a mistrial unless absolutely necessary and, in many cases, will provide the jury with a “curative instruction” instead.

Recently, a state appellate court issued an opinion in a New York assault case discussing whether a juror’s comments during the trial necessitated a mistrial. Ultimately, the appellate court held that the trial court’s curative instruction was sufficient to cure any prejudice to the defense.

The Facts of the Case

According to the court’s opinion, the defendant was on trial for second-degree assault. Two other men were also on trial for the same crime. During the trial, in an attempt to goad the complaining witness, one of the defendants’ attorneys repeatedly asked the complaining witness whether he referred to the defendant by a racial slur. The defense attorney used the actual word, rather than self-editing. After repeating the word multiple times, one of the jurors stood up and exclaimed, “Please, I am not going to sit here . . . and have you say that again. Don’t say it again or I’m leaving. . . . I find that very offensive.”

New York Court Condones Traffic Stop Conducted by Customs and Border Patrol Agent

August 2, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the defendant’s motion to suppress a weapon that police officers found in his car. The case presents a unique issue in that a federal marine interdiction officer – not a police officer – conducted the traffic stop. Ultimately, the court held that the stop was valid.

The Facts of the Case

According to the court’s opinion, a federal marine interdiction agent with the United States Customs and Border Protection was driving an unmarked car when he pulled onto the highway. As he did so, the agent noticed a pair of headlights approaching quickly in his rear-view mirror. As the lights got closer, the driver of that car slammed on his brakes to avoid hitting the agent’s vehicle. The agent noticed as the driver continued to drive erratically.

The agent called police on his personal cell phone to report the incident. At some point, the agent activated his blue-and-red emergency lights and stopped the car the defendant was driving. The agent waited with the defendant until the police arrived. Police searched the defendant’s car and found a gun.

New York Criminal Trials in a Post-COVID World

July 16, 2020 | Tilem & Associates

The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.

New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial. It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.

One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.

New York Court Reverses Robbery Conviction Based on Illegal Arrest and Tainted Identification

January 5, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving the defendant’s motion to suppress an identification made by the complaining witness, as well as statements made by the defendant after his arrest. Ultimately, the court held that because the prosecution failed to establish that the defendant’s arrest on an unrelated matter was supported by probable cause, the subsequent identification and statements were “fruit of the poisonous tree,” and must be suppressed.

According to the court’s opinion, a man was robbed in Queens. A day or two after the robbery, the assigned police officer provided the complaining witness with a photo lineup, where he identified the defendant. The officer filled out an identification card, which essentially put other police officers on notice that the defendant should be arrested. Several days later, the assigned officer was informed that the defendant was in custody based on an unrelated matter. The officer brought the complaining witness to the station, where he identified the defendant. The defendant then gave a statement to the police.

The defendant filed a motion to suppress the witness’s identification, as well as the statement he made following his arrest. The trial court denied the motion, finding that the “fellow officer rule” justified that defendant’s arrest. Under the fellow officer rule, if an arresting officer lacks probable cause to arrest, the arrest may still be valid if the arresting officer makes the arrest based on communication with a fellow officer who had information justifying the arrest. The defendant was convicted of robbery and appealed the denial of his motion to suppress.

Court Rejects Defendant’s Motion to Suppress Eyewitness’s Identification

December 5, 2019 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York robbery case requiring the court to determine if the defendant’s motion to suppress the eyewitness’s identification should be suppressed. Ultimately, the court concluded that the witness’s identification was not suppressible, and affirmed the defendant’s conviction for robbery.

Identifications, like other forms of evidence, must be suppressed if they are unduly suggestive. When making this determination, New York courts employ a burden-shifting analysis. First, the prosecution has the burden to show that the police officers’ identification procedure was reasonable and was not unduly suggestive. If the prosecution meets that burden, then it is up to the defense to show that the identification procedure was improper.

According to the court’s opinion, a pizza delivery person was robbed in September, 2011. The following day, the delivery person identified the defendant as the person who robbed him. Police officers did not preserve the photo array. Thirteen months later, the defendant was arrested and identified by the delivery person in an in-person lineup. The defendant was charged with robbery.

A Primer on the New York Rules of Evidence

November 15, 2019 | Tilem & Associates

A successful criminal defense lawyer must know the Rules of Evidence in New York. As a general rule, the trial judge is the gatekeeper when it comes to what evidence a jury is able to consider. However, judges are bound by certain rules of evidence which are written by lawmakers. The Guide to New York Evidence closely mirrors the Federal Rules of Evidence, but there are a few differences.

The most basic rule of evidence is that only relevant evidence is admissible. Relevant evidence is defined a, “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence.” However, not all relevant evidence is admissible in a New York criminal trial.

Under rule 4.01(2) all relevant evidence is admissible unless it is precluded by the state or federal constitution, by statute, or by the common law. In New York, there are several rules that can help defendants, as well as few that can hurt them. For example, under Rule 4.27, evidence that a defendant has previously been convicted of a crime is only admissible when it is an element of an offense or, “otherwise essential to the establishment of a legally sufficient case.” If the prosecution cannot establish one of these two situations exist, then a defendant’s prior convictions are inadmissible.

New York Court Allows Admission of Defendant’s “Blurt Out” Statement

October 28, 2019 | Tilem & Associates

Under the Fifth Amendment to the United States Constitution, citizens have a right to be free from self-incrimination. The extent of this right, including in what situations it applies, has long been disputed. Currently, courts consider the Fifth Amendment to attach when police engage in the custodial interrogation of a suspect.

Determining when police conduct amounts to custodial interrogation involves a two-prong inquiry. First, courts consider whether the suspect is in custody, or its functional equivalent. Proving a suspect is in custody requires courts use an objective approach, asking whether a suspect reasonably believed they were free to leave. If so, the suspect was not in custody.

A suspect’s Fifth Amendment rights will not attach merely because they are in custody; police must also question or interrogate the suspect. For example, the police may question a suspect about their involvement in a crime. Courts have held that an officer’s conduct that falls short of direct questioning may still trigger interrogation. Thus, any actions taken by an officer reasonably expected to elicit a response from the suspect may count as an interrogation. However, when a statement is spontaneously made, it will not likely be suppressed. A recent case illustrates this concept as it pertained to a “blurted out” confession after a traffic stop. While the suspect was unquestionably in custody at the time she made her statement, it was made with no prodding, encouragement, or questioning from the police.

Do Federal Gun Laws Apply in New York?

June 30, 2019 | Tilem & Associates

Whether you are a resident of New York state, or are just visiting, you are expected to know and follow all state and federal laws. This is particularly important for criminal laws and gun laws. But even the courts can sometimes have a hard time deciding which acts are unlawful and what a criminal statute requires. The Supreme Court recently heard oral argument in a case involving the immigration status of a criminal defendant and what the government is required to prove.

According to the court’s opinion, the defendant was present in the United States on an F-1 student visa. He was dismissed from the university he was attending in December 2014, and his student visa status was terminated in February 2015. After his status was terminated, he stayed in the United States. Later that year, he went to a shooting range, bought ammunition, and rented a firearm for an hour. He was staying at a hotel, and several days later, an employee told police that he had been acting strangely. The FBI spoke with him, and he admitted to firing a firearm at the shooting range. The police searched his hotel room and also found the rest of the ammunition he had bought. The defendant was charged with two counts under 18 U.S.C. § 922(g)(5)(A).

Under that statute, it is unlawful for a person “who, being an alien . . . is illegally or unlawfully in the United States … to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(5)(A). If found guilty, a person can be sentenced to a fine, and up to ten years imprisonment.

New York Court Discusses Jail’s Release of Inmate’s Phone Calls to Prosecutors

February 28, 2019 | Peter Howard Tilem

When someone is arrested and charged with a serious New York crime, they are often subjected to pretrial incarceration. This may be because they are unable to afford bail on their new case, the Court held them without bail, or because they were on probation or parole at the time they were arrested for the new allegations. In any event, after being arrested and subsequently incarcerated, it is common for defendants to make several phone calls to friends, loved ones, and employers. These phone calls are recorded, and anyone charged with a New York crime should not discuss their case over the phone with anyone except their attorney. These recorded phone calls have been increasingly used by prosecutors in New York as evidence in the criminal case.

A recent case issued by a New York appellate court held that a correctional facility does not violate a defendant’s Fourth Amendment rights when it discloses the contents of an inmate’s phone conversations to the prosecution.

The Facts of the Case

According to the court’s opinion, the defendant was facing charges of burglary and robbery, and was held at Rikers Island for eight months until his family was able to post bail. During his pretrial incarceration, the defendant made approximately 1,100 phone calls. At trial, the prosecution attempted to admit excerpts from four of those calls, containing incriminating statements. The defendant filed a motion to preclude the conversations from being admitted into evidence, arguing that their admission would violate his Fourth Amendment rights.