Covid-19 Update: At Tilem & Associates our lawyers are committed to protecting your rights, serving our clients and keeping you safe.


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.

Continue reading

As a general rule, police officers cannot enter a home without  a warrant. While exceptions do exist, they are somewhat rare and are better left for another blog post. Once a police officer obtains a search or arrest warrant, the officer must comply with all procedural guidelines governing the execution of warrants. If officers disobey these guidelines, any evidence seized as a result of the search or arrest may be deemed inadmissible by the court.  In addition, a defendant can challenge the issuance of the search warrant in certain circumstances.

One issue that frequently comes up is when police officers can forcefully enter a home to execute a search or arrest warrant. Generally speaking, if a valid warrant is issued, officers may approach the house named in the warrant and enter that home. However, under New York law, a police officer must first knock, announce their presence as police, and give the occupant an opportunity to answer before entering forcefully. This is known as the “knock and announce rule.”

New York Laws sections 690.50 (search warrants) and 120.80 (arrest warrants) provide for the specific procedures that must be followed when executing a warrant. Both statutes require an officer serving a warrant knock and announce their presence, and both statutes also contain exceptions when an officer is permitted to forcefully enter a home without first complying with the knock-and-announce rule.

Continue reading

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:

Continue reading

Evidence of someone’s prior acts is generally not admissible in a New York criminal trial. However, under The Guide to New York Evidence Sec. 4.21, evidence of past “crimes, wrongs, or other acts” may be admissible under certain limited situations.

Rule 4.21 specifically prohibits the introduction of prior-act evidence when it is being used to show that the defendant acted in conformity with that act, or if it is being used to show that a person had a propensity to act in a certain way. However, when the evidence is being offered for other reasons, such as to show someone’s motive, intent, opportunity, preparation, the existence of a common plan or scheme, knowledge, identity, or to establish the absence of a mistake, the evidence may be admitted if it is more probative than prejudicial.

Judges are left with the discretion to determine if prior-act evidence should be admitted. In a recent New York domestic violence case, an appellate court discussed Rule 4.21 and its application.

Continue reading

Generally speaking, hearsay evidence is not permitted to be considered by the jury in a New York criminal trial. However, there are certain exceptions where a hearsay statement may be properly admitted.hearsay-clipart-canstock18050425

What Is Hearsay?

The concept of hearsay can be complex to grasp, but essentially a hearsay statement is one that was made by a party who is not present to testify in court. A statement is only hearsay if it is testimonial, meaning it is being used for “proof of the matter asserted.” Thus, if the statement is not being used to prove that which was said, it will not be considered hearsay.

Why Is Hearsay Prohibited?

The rationale for the hearsay exclusion is based on the fact that the party who made the statement is not in court to explain what was meant and is not subject to cross-examination. For example, sarcasm may not come across when a statement is relayed at a later date through a third party. In criminal trials, there is also the concern that the person making the statement cannot be cross-examined, depriving the defendant of their confrontation rights under the Confrontation Clause of the Constitution.

Continue reading

Character evidence is one of the most misunderstood types of evidence available.  It is also evidence that can backfire on the party calling the witness.  As a rule, all relevant evidence is admissible in New York criminal trials. Relevant evidence is defined as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding” more or less likely. However, the general rule that all relevant evidence is admissible is subject to many exceptions.

One type of evidence that may intuitively seem like it would be admissible in a criminal trial, but is generally excluded from evidence, is evidence of a defendant’s prior bad acts. This includes both charged and uncharged crimes. Under the New York evidentiary rules, prior bad acts are “not admissible to prove that the person acted in conformity therewith on a particular occasion or had a propensity to engage in a wrongful act or acts. Essentially, this means that the government cannot use evidence of past crimes or wrongs to prove that a defendant was more likely to have committed the charged crimes there may however be other reasons why such prior crimes are admissible. This is why, absent a few exceptions, a defendant’s criminal history is not admissible if the defendant does not testify at the trial.

Evidence of a defendant’s prior bad acts, however, can be admissible in some situations where the government is introducing the evidence for a permissible purpose; for example to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident. A recent case illustrates how New York courts handle this issue.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Contact Information