EVIDENTIARY ISSUES

Published on: September 3, 2018

New York Court Determines Warrantless Search of Motorhome Was Illegal

A state court recently issued an opinion in a New York gun possession case requiring the court to determine if a gun found in the defendant’s motor home was the product of an illegal search. Ultimately, the court concluded that the defendant’s motorhome was afforded the same protection as any other residence, and that the warrantless search was not justified.

The Facts of the Case

Police received a call that someone was stealing electricity by connecting their motorhome up to a telephone wire. Police responded to the scene to see the defendant’s motorhome connected to a nearby telephone pole by a wire coming out of the top of the motorhome.

According to police, an officer knocked on the door of the motorhome. When the defendant answered, police asked him about the wire, and the defendant admitted it was not legal. Police then put the defendant in handcuffs and walked him toward the police car. On the way to the car, police claimed that the defendant said “there is a gun in there.” Another officer then went into the motorhome, located the gun, and confiscated it.

Published on: July 28, 2018

New York Court Grants Defendant’s Motion in DUI Stop Based on Lack of Probable Cause

by Tilem & Associates

Late last month, a state appellate court issued a written opinion in a New York DUI case requiring the court to determine if the police officer that stopped the defendant possessed probable cause to do so. Ultimately, the court concluded that the police officer did not have probable cause to stop the defendant’s vehicle for a traffic stop after hearing his tires squeal as he pulled away from an intersection. Thus, the court held that the defendant’s motion to suppress should be granted.

The Facts of the Case

A police officer was on patrol around 2:30 in the morning. The area bars had just closed, and there were a number of pedestrians in the area. While waiting at an intersection, the police officer noticed that as the light turned green, the tires on the defendant’s vehicle squealed as he pulled away from an intersection at a quick pace.

The police officer decided to pull over the defendant based on his screeching tires and rate of acceleration. At the officer’s request, the defendant provided his driver’s license and explained that he was on his way home from work. He told the officer that he did not know why he was pulled over, and the officer informed him of the basis for the traffic stop.

Published on: July 14, 2018

Supreme Court Holds that Police Need a Warrant to Obtain Cell Phone Location Data

by Tilem & Associates

Earlier this month, the United States Supreme Court issued a written opinion in a robbery case requiring the court to determine whether the police should have obtained a warrant prior to obtaining the defendant’s cell phone location data. Ultimately, the court concluded that the level of intrusion in obtaining cell phone location data amounts to a “search” under the Fourth Amendment and should be supported by probable cause.

The Facts of the Case

The defendant was arrested after police obtained his cell phone number from another man who was arrested under suspicion of a string of burglaries. The police had no evidence other than this man’s word that the defendant was involved in the robberies.

Taking the defendant’s cell phone number, the police contacted the defendant’s cell carrier and obtained historical location data over a 127-day range. The information contained approximately 100 data points per day, for a total of nearly 13,000 data points. The historical location data showed the defendant around the area where the robberies occurred, corroborating the man’s statement that the defendant was involved in the crimes.

Published on: June 30, 2018

New York Appellate Court Reverses Defendant’s Drug Conviction Based on Illegal Arrest

by Tilem & Associates

Earlier this month, a state appellate court issued an opinion in a New York drug possession case, reversing a lower court’s decision to deny the defendant’s motion to suppress and holding that the prosecution failed to meet its burden to establish that the defendant’s arrest was legal. In so holding, the court discussed when the prosecution must establish the reliability of information that was given to police.

The Facts of the Case

The defendant was pulled over for two minor traffic offenses by two Syracuse police officers. During the traffic stop, the officers received information that the defendant had an outstanding warrant out of Cortland. One of the officers then contacted the 911 Center, which verified that the defendant had an active warrant. The 911 Center then requested that the police officers detain the defendant until one of their officers could take him into custody.

Published on: June 23, 2018

Common Evidentiary Issues in New York Criminal Cases

by Tilem & Associates

New York criminal trial lawyers know that New York criminal trials are all governed by the New York Rules of Evidence (NYRE). The NYRE cover which evidence is admissible and how courts should go about determining whether contested evidence should be admitted and presented to the jury. Given the importance of the matter, many New York criminal trials involve lengthy and detailed arguments about which evidence is admissible in a series of pre-trial motions.

Through either a motion in limine or a motion to suppress, parties are able to deal with evidentiary issues in advance of them arising at trial. This has the benefit of preventing the jury from ever hearing certain evidence, rather than objecting to the evidence as it arises and then relying on a curative instruction given by the judge in hopes of preventing the inadmissible evidence from having an effect on the jury’s decision.

Not all evidentiary issues can be resolved in advance of trial, however. In some cases, a witness testifies to an unanticipated fact. In these situations, an experienced criminal defense attorney must object in a timely manner, state the basis of the objection, and be prepared to argue why the objection should be sustained and the testimony stricken. If a defendant fails to object to certain evidence, including witness testimony, in a timely manner, the issue will be waived for appellate review. A recent court opinion in a New York sex crime case alleging the defendant engaged in predatory sexual assault illustrates several common evidentiary issues.

Published on: June 15, 2018

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

by 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.

Published on: May 22, 2018

New York Court Excludes Breath-Test Results from DUI Trial Based on Police Officer’s Incorrect Warning

by Tilem & Associates

New York DWI lawyers have been following a landmark ruling issued earlier this month, when a state appellate court issued a written opinion in a New York DUI case which determined whether the lower courts properly excluded the results of a breath test indicating that the defendant’s blood-alcohol content was above the legal limit. The court ultimately determined that the warnings provided to the defendant were not correct, and thus the court could not say that he voluntarily consented to the test. This was a critical decision from New York’s highest Court, the Court of Appeals, which interpreted the extent of New York’s “two hour rule” for chemical tests in DWI cases.

The Facts of the Case

The defendant was pulled over and arrested on various charges, including driving under the influence of alcohol. About two hours after his arrest, a police officer asked the defendant if he would consent to a breath test. The defendant refused the test, and the officer read the defendant refusal warnings.

The refusal warnings provided by the officer stated that the defendant’s license would be suspended or revoked, regardless of whether he was ultimately convicted of driving under the influence. The police officer also explained to the defendant that the fact that he refused the breath test could be used against him at trial. The defendant then agreed to take the test, which indicated that his blood-alcohol level was above the legal limit.

Published on: April 28, 2018

A New York Prosecutor’s Duty to Provide Evidence to the Defense

by Peter Howard Tilem

In New York criminal cases, the prosecution is under a duty to provide certain evidence to the defendant and his attorney, irrespective of whether the prosecutor intends to use the evidence against the defendant. Importantly, the duty attaches to any evidence that may establish innocence or otherwise be favorable to the Defendant. This concept, first discussed by the United States Supreme Court in the landmark case Brady v. Maryland, has since been expanded to cover any evidence that is in the hands of not just of the prosecution but also of the police. The material is commonly referred to by Criminal Lawyers as “Brady Material”.

A recent case illustrates just how seriously courts take the prosecution’s duty to disclose evidence to the defense. Indeed, the court noted that, although the defendant’s argument was not necessarily raised at the appropriate time, the issue was so important that the court ruled on the issue anyway.

The Facts of the Case

The defendant was charged with several crimes related to the assault of a minor. Prior to his arrest, and before the police knew where the defendant was, they “pinged” a cell phone that had been used by the minor earlier in the day (by “pinging” a phone, police are able to get a general idea of where the phone is). The police were able to locate the defendant through the cell phone.

Published on: April 23, 2018

New York Court Precludes Evidence of Defendant’s Psychiatric Evaluation Based on Failure to Provide Adequate Notice

by Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving a defendant who confessed to robbing a car at gunpoint. The case required the court to determine if the trial court properly excluded evidence suggesting that the defendant was “bipolar, with psychotic features.” Ultimately, the court concluded that the evidence was properly excluded because under New York Code Article 250, notice of intent to provide psychiatric evidence must be given in advance.

The Facts of the Case

The defendant was pulled over by police, and as a result of a search, the police discovered a loaded gun. After police seized the gun, the defendant blurted out that it was a good thing that the police officer quickly drew his gun because otherwise the defendant would have shot him. Police arrested the defendant and took him to a hospital to have him evaluated by a psychiatrist. The defendant was read his Miranda warnings and then admitted to taking the car at gunpoint.

After evaluating the defendant, the psychiatrist determined that the defendant was “bipolar, with psychotic features.” The defense hoped to use that diagnosis to explain why the defendant was not able to knowingly waive his Miranda rights and make the statement to police admitting to the robbery.