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New York gun crimes law firm Tilem & Associates is pleased to announce another victory in a firearms related case, winning a full dismissal of all charges after a person was charged with possessing handgun ammunition and a handgun magazine at JFK airport. As reported almost 6 years ago in our blog about New York City’s ban on commonly possessed items, possession of handgun ammunition and ammunition feeding devices are illegal in the five boroughs of New York City under New York City Administrative Code Section 10-131. That section makes it a misdemeanor, to possess these items punishable by up to one year in jail.

The difficulty with section §10-131 is that it is very long, containing a large number of subdivisions, poorly written and has a large number of exceptions written into the statute. §10-131 subdivision (i)(3) states in pertinent part: “It shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition.”

In the case at JFK airport, the police officer in the accusatory instrument alleged only, in pertinent part that “. . . at Terminal 5 – JFKIA main screening Lane 13, suspect was in possession of two magazines holding six rounds of 9mm ammunition in each.” Yet, it is a well settled principle of New York law that where an exception is contained within a statute the prosecutor or the police are required to disprove the exception. In this case for example the police would have been obligated as a matter of law to establish that the accused was not a dealer in rifles and shotguns. Since the police failed to make that accusation, the accusatory instrument was insufficient as a matter of law and needed to be dismissed.

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New York Criminal Defense law firm, Tilem & Associates has seen an increase in the number of Reckless Driving tickets and other related moving violations, which is consistent with recent media reports that a crackdown on hazardous driving is underway by the NYPD. According to the media a 24 hour per day, 7 day per week crackdown will target drivers who speed, run red lights and use cell phones or other portable electronic devices. These violations which are among the most common also carry the most points and can have the greatest impact on a driver’s license and a driver’s insurance rates. A reckless driving ticket carries 5 points and is a criminal offense under New York Law, a cell phone ticket, which up until several years ago was a no-point violation now also carries 5 points. Speeding tickets can carry anywhere from between 3 and 11 points and Red light tickets carry 3 points. A motorist generally loses their license at 11 points.

The latest NYPD reckless driving crackdown is consistent with Mayor de Blasio’s “Vision Zero” plan which has the goal of eliminating traffic fatalities and comes after a serious accident left a pedestrian serious injured after crossing Linden Boulevard in Brooklyn earlier this week.

“The good news for motorists is that an experienced traffic lawyer can generally get substantial reductions in the points associated with tickets and very often eliminate the points altogether,” according to traffic lawyer Jasmine Hernandez. “An experienced traffic lawyer can especially have the greatest impact on reckless driving tickets which are among the most serious,” according to Ms. Hernandez.

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Tilem & Associates, won a major victory after a Judge in Nassau County ordered that all evidence be suppressed in a Marihuana and Patronizing a Prostitute case. The evidence that was suppressed included both written and oral confessions as well as about a pound of Marihuana, a scale, grinder, baggies for packaging and a large amount of cash (over $4000). All of the evidence was ordered suppressed by the Judge after two detectives testified at a suppression hearing held in February and the Judge questioned their credibility.

The Charges dated back to an incident that occurred back in January 2013 at a motel in Nassau County, Detectives were conducting surveillance on a motel room that they believed was being used by prostitutes. When a male entered the room and left about 20 minutes later he was stopped by the police and questioned about what happened inside the motel room. Police also claimed that they observed marijuana in plain view in his car. They got the male to take them back up to the motel room to identify the prostitutes and they got the male to consent to searches of his car and home and waive his Miranda warnings and then write out a written confession

Tilem & Associates principal, Peter H. Tilem handled the suppression hearing and cross examined the two detectives. Upon cross-examination many inconsistencies were revealed in the testimony of the two detectives and it was revealed for the first time that they likely forcibly stopped the male by grabbing his car keys from his hand with out any lawful justification. Mr. Tilem, successfully argued that if the initial stop of the male was unconstitutional then all evidence that was recovered after the stop, including all statements needed to be suppressed as the “fruit of the poisonous tree” a legal doctrine that requires evidence tainted by unlawful police conduct to be suppressed. In addition, Mr. Tilem cited the case of People v. DeBour which controls under what circumstances a police officer may stop, frisk, search and detain a person they encounter on the street.

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As we already reported in an earlier blog, earlier this week Westchester Journal News Reporter Dwight R. Worley thought it was news worthy to publish the names and addresses of all licensed gun owners in Westchester and Rockland Counties. Under the First Amendment that is his right. However Dwight R. Worley also has a home address and he apparently has a licensed Smith & Wesson .357 magnum revolver at that address. We thought that the old expression “what’s good for the goose is good for the gander” was perfect for just this situation, so here it is:

Dwight R Worley

23006 139 Ave

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As a New York criminal defense lawyer that handles an inordinate number of gun related cases, I hear a large number of stories about the interaction between the police and law abiding gun owners. After more than 20 years, however, very few cases shock me. What happened after a Westchester County gun owner called a suicide hotline bears repeating as a cautionary tale to law abiding citizens everywhere.

A Westchester County gun owner owner got the surprise of his life when he called a suicide hot line to talk about tools to manage depression. After the gun owner’s wife from whom he had been separated introduced him to her new boyfriend, and after having suffered a medical condition the loss of his home and the break up of his marriage the gun owner decided to call a suicide help line for help and instead ended up with more trouble.

The gun owner clearly remembers calling 1800 SUICIDE to ask about tools for managing depression. He also recalls that he started out the conversation by telling the operator that he wasn’t going to hurt himself or anyone else but that he simply wanted information. The operator then steered the conversation to whether or not there was a child in the house (there was) and whether or not there were guns in the house (there were). Within a very short time of answering that there were guns in the house, and while still on the telephone, the Westchester County gun owner heard a knock at the door. It was the police.

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Recently we reported in our blog that a DWI conviction was vacated on grounds of ineffective assistance of counsel where the lawyer simply had his client plead guilty to Driving While Intoxicated without conducting an investigation into the evidence in the case. Now, just last week, the United States Supreme Court reversed a conviction where a defense attorney neglected to tell the defendant about a plea offer and the defendant was later sentenced to a much more lengthy prison sentence than he would have gotten if he accepted the plea deal.

In the case of Missouri v. Frye the United States Supreme Court for the first time recognized that the 6th Amendment to the United States Constitution ensures that a defendant’s right to effective representation extends to the plea bargain process and that if the lawyer is ineffective during the plea bargain process, the defendant may be entitled to reversal of his conviction.

In the Frye case, Galin Frye was accused of driving with a revoked license. Since he had been convicted of this same offense three times in the past he was facing a felony charge which carries up to 4 years in prison. During the pendency of the case, the prosecutor told Frye’s lawyer that Frye could plead guilty to a misdemeanor and receive a sentence of 90 days. Frye’s lawyer never conveyed that offer to him and he subsequently plead guilty and received three years in prison. On appeal Galin Frye argued that that we was denied his right to counsel because of ineffective of assistance of counsel. His conviction was reversed.

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If you are charged with Driving While Intoxicated [VTL 1192(2), (3)] in New York, the criminal defense attorney you choose can be one of the most important decisions of your life. Are you going to retain a “read-em-and-plead-em” hack, the lawyer who handled the closing when you purchased your home, the lawyer who drafted your Will or are you going to retain a lawyer well versed in the law, science and procedures associated with DWI cases?

Are you going to choose an attorney that has experience not just in DWI cases; but also in winning Driving While Intoxicated trials? Make no mistake about it, district attorneys and prosecutors know full well which attorneys are capable of actually taking a DWI case to trial. An attorney’s trial ability often plays a role in the plea bargaining offer. If your attorney has no trial experience, plea bargains all of his or her cases, always backs down at the last minute and accepts whatever offer the prosecution has made and has shown him or herself to be incompetent in the few hearings or trials he or she has done, the prosecutor has no real concern that the case will ever go to trial. If the prosecutor knows that in the end, your attorney will “plea you out” the prosecutor has no incentive to offer anything other than their standard policy offer.
Of course, accepting a plea bargain offer in certain cases is advisable. However, a detailed “risk/benefit” analysis must first be done. If the prosecution wants you to plead guilty to misdemeanor DWI with three years of probation and you’re a first time offender and the case did not involve any accident or injuries; their might not be any risk associated with going to trial because it’s very unlikely you would be sentenced to anything more than probation if you lost at trial.

A lawyer should not advise a client to accept a plea bargain unless that attorney has thoroughly investigated the case. That includes listening to, and investigating, not only a defendant’s claim of innocence, but the facts, circumstances and issues concerning probable cause to stop the vehicle, the legality of the roadblock, the administration of Standardized Field Sobriety Tests, the timeline of events, the officers involved, the administration of any breathalyzer testing, blood drawing, urine collecting and other issues that can arise in DWI cases.

In certain Driving While Intoxicated cases it might be advisable that the attorney visit the scene of the stop. The attorney might view the area where the defendant performed the Standardized Field Sobriety Tests. The attorney might even travel the route the defendant traveled prior to being pulled over. If the defendant claims he or she only had one or two drinks, credit card statements from the restaurant or other establishment where the defendant was prior to being stopped by the police might be helpful. Interviews with employees of the establishment where the defendant drank might reveal a witness to defendant’s drinking. Are their any witnesses to defendant’s driving?

Only after a searching and diligent review and investigation of the above factors as well as the relevant statutes, regulations and case law can an attorney render an opinion on a plea bargain offer. Most importantly however, the attorney who conducts the case review must be extremely knowledgeable and experienced in DWI defense. An attorney can spend countless hours reviewing and investigating all aspects of a Driving While Intoxicated case with zealous enthusiasm, however, if that attorney simply doesn’t know the laws, rules, regulations, case law, science, toxicology, breath testing, chemical testing, police procedures, etc., that lawyer’s opinion on a plea bargain offer will be no better than flipping a coin.

In a recent decision, the New York State Appellate Division unanimously affirmed a lower court ruling which granted a defendant’s motion to vacate his guilty plea in a Driving While Intoxicated case. The Court concluded that “[d]efense counsel failed to conduct any investigation, make any motions, or even view the video of defendant’s breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument.” People v Rivera, 2012 NY Slip Op 43, 1 (1st Dept. Jan. 5, 2012).
In support of its decision, the Court observed that there were defenses that should have been investigated including matters affecting the accuracy of the breathalyzer result. Furthermore, the Court explained that, because the defendant had no prior record and no accident occurred, it was extremely unlikely that he would have received a jail sentence had he lost at trial. Therefore, the “defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People’s case.” Id.

The Rivera decision unfortunately does not indicate the sentence defendant received as part of the plea deal or what his Blood Alcohol Concentration was. In fairness to the attorney that represented defendant in Rivera, if his BAC was alleged to be, for example .16 or .17 and the plea offer didn’t require probation, than Rivera did receive some benefit. Specifically, he avoided probation, which can be difficult for some. For example, in Westchester, avoiding probation is a major consideration on DWI cases because DWI probation in Westchester County can be fairly onerous.

Nevertheless, the Rivera decision should put all defense attorneys on notice that it is unacceptable to advise a DWI client to plead guilty to the top charge without first conducting any real investigation into the strength of the prosecution’s case. The Rivera decision should also put everyone who is charged with DWI on notice that they should speak with several attorneys and get several opinions prior to retaining an attorney. And, the attorney they retain should be knowledgeable specifically with DWI cases.

Generally, if you are charged with Driving While Intoxicated and have no prior criminal history; there was no accident; no injuries; no property damage and there are no allegations that you were driving in an overly reckless or unreasonable manner, be very careful if your attorney recommends you plead guilty to the top charge with probation – be even more careful if your attorney makes such a recommendation very early in the case.

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New York’s “move over” law was expanded starting at the beginning of this year (January 1, 2012) making it applicable to not only emergency vehicles that are stopped on the side of the road but now to “hazard vehicles”. The law, which originally went into effect last January originally only covered “emergency vehicles” those vehicles which are displaying either a red light or a combination of red and white lights such as a police, fire or emergency medical vehicle. Now, as of this year, the law also applies to “hazard vehicles” those vehicles which display one or more amber lights such as tow trucks, road service vehicles and highway crews.

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New York Vehicle and Traffic Law Sec 1144-a requires that drivers on a limited-access highway or parkway to exercise “due care” when approaching an emergency or hazard vehicle and defines due care as requiring at a minimum that the driver move from the lane adjacent to the shoulder where the emergency or hazard vehicle is stopped. In other words if the emergency vehicle is stopped on the right shoulder and you are driving in the right lane, you must move over to the center lane as you pass the emergency or hazard vehicle. Since moving over is not always possible on busy New York highways, the law does set the condition that you should move over only if it complies with other New York Vehicle & Traffic Laws such as moving from lane unsafely under V&TL 1128 and disobeying a traffic control device under V&TL 1110. In other words, if it is not safe to do so you or it is otherwise illegal to move over you should not. Rather, in that case you should slow down.

Violating the new “move over” law is a traffic infraction under New York Law punishable by a fine of $150, 2 points on you license and up to 15 days in jail although it should be emphasized that jail in not a likely possibility and that the points have been improperly reported in the media. The points count toward suspension of your driver’s license and/or the driver responsibility assessment.

Motorists should be warned that when section 1144-a originally went into effect last year the police were very aggressively enforcing the new law. We fully anticipate that the police will be aggressively enforcing all of the new provisions of section 1144-a. In addition motorists need to exercise extreme caution when they attempt to move over. The purpose of the law is safety and changing lanes create another risk. Vehicle and Traffic Law section 1144-a makes clear that you must observe all other Vehicle and Traffic Laws including but not limited to using your turn signal, changing lanes safely, complying with lane markings, signs and speed restrictions.

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The Wall Street Journal Reported last week, that criminal charges were being prepared against British Petroleum and/or individuals who worked for British Petroleum and who were supposedly responsible for the oil spill that occurred in the Gulf of Mexico last year after the Deep Water Horizon drilling platform caught fire. This news highlights another troubling trend in the national trend toward over criminalization; “there are no accidents.”

Traditionally, criminal liability required two elements; a criminal act and a criminal mind referred to in Latin as “MENS REA”. The criminal mind required for criminal liability traditionally and under New York law was either that you acted intentionally, knowingly, recklessly or with criminal negligence. Specifically absent from the list was acting negligently or carelessly. Under New York law one who merely acts negligently or carelessly could be held liable for financial damages but could not be found guilty of a crime. As we over criminalize our society the traditional rule is giving way to attempts to hold someone criminally liable for every tragedy.

Recently in New York, three individuals were indicted by a grand jury, tried and acquitted of Manslaughter and related charges after a tragic fire in the Deutsche Bank building in lower Manhattan tragically killed two firefighters. The sadness and the outcry were great as the City attempted to place blame for the tragedy. Ultimately, a site safety officer, a contractor and an an abatement foreman, all of whom worked at the site were indicted for Manslaughter under the theory that they recklessly caused the death of the two firefighters. All were ultimately found not guilty in separate verdicts.

Whatever the tragedy, our society has moved to the point where it is not enough to merely hold someone civilly responsible and force them to pay for the damage they caused. Rather someone must be indicted, tried and if convicted sent to prison. It does not really matter whether the tragedy is a crane collapse, elevator accident, collapse of a company, oil spill or fire. The issue of who is to be held criminally responsible seems to take a back seat to the outrage and the need to find anyone who can be sent to prison. In the Deutsche Bank case, the jurors who were interviewed after specifically rejected such scapegoating.

As we have discussed in our prior blog, the element of having a criminal mind has been substantially relaxed or eliminated in many newer statutes, particularly in statutes that punish “Environmental Crimes.” As a result, convictions are easier to obtain in many of these cases brought as a result of tragic accidents.

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As of 2008, 2 million youths are arrested each year. While the original intent of the juvenile justice systems created throughout the country was to prevent stigmatization and collateral consequences that could naturally flow from an arrest. As experienced criminal defense lawyers know the system is less than perfect in that regard. Examples abound of the collateral consequences that can and sometimes do flow to juveniles who are arrested.

For example, children can be suspended or expelled from school under the federal “Gun Free Schools Act (GFSA) for certain weapons offenses committed on school grounds. The GFSA requires that schools that receive federal funds expel a student for one year for certain weapons offenses. A student can be expelled even if found not guilty of the weapons offense. Many states have expanded this to require expulsion for weapons offenses committed off school grounds (New Jersey) or in the case of Missouri any student charged with a felony can be suspended or expelled even if they were found not guilty of the offense.

A common belief is that individuals arrested as youths have their records destroyed when they reach the age of 18. This is not necessarily the case. In New York, for example, there is absolutely no provision for expungement of criminal records and the statutes that require that records be sealed, never completely seal the records leaving the records accessible for a host of reasons. This can lead to more limited employment options for youths who have been arrested, even if those records were eventually sealed.

In addition, the misapplication of sex offender registration databases can have long lasting effects on youths who are charged as juveniles with sex offenses. In Michigan, for example, 8% of the sex offender registration list is made up of juveniles including children as young as 9 years old. In a well publicized and outrageous case in New Jersey a 14 year old girl was arrested and faced child pornography charges after she posted naked pictures of herself on myspace. The charged carries a possible sentence of up to 17 years and mandatory registration as a sex offender.

Sex offender registration laws, which arguably could have the most severe collateral consequences for youths, are a prime example of just how far off mission the juvenile justice system has drifted. Clearly, the aforementioned 14 year old needs help. But she is clearly not the intended target of either child pornography laws or sex offender registration laws which were originally passed to register sexual predators.

The issue of the over criminalization of our society and the resulting collateral consequences that flow to a large percentage of the population has a tremendous cost to our youth and to our economy at large as a large percentage of people are either unemployable or underemployed as a result of the consequences of an arrest. The issue and costs are clearly too significant to ignore.

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