IN THE NEWS Category Archives — Page 4 of 17 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Based Federal Court Strikes Down New York’s Ban on Stun Guns and Tasers

March 22, 2019 | Tilem & Associates

As Second Amendment attorney Peter H. Tilem reported in a blog on April 24, 2016, New York and New Jersey’s outright ban on stun guns and tasers were unconstitutional. Now today, a Federal District Judge in upstate New York confirmed that opinion and enjoined the New York State Police from enforcing New York Penal Law sec 265.01 (1) as it applies to “Electronic Dart Guns” and “Electronic Stun Guns.” The case entitled Avitabile v. Beach was decided earlier today by US District Judge David N. Hurd of the United States District Court for the Northern District in New York. While the case is not necessarily binding in New York City, the case applies the U.S. Supreme Court ruling in Caetano v. Massachusetts, which struck down the Massachusetts state ban on stun guns.

The issue actually began with the famous Second Amendment Case of Heller which was decided in 2008. In knocking out a ban on handguns in Washington DC, the US Supreme Court in Heller ruled that the Second Amendment applied to “bearable” arms. The Caetano decision, in knocking down a stun gun conviction in Massachusetts, made it very clear that a stun gun was a bearable arm as that term was used in Heller.

Besides being illegal, bans on stun guns and tasers are inherently illogical. All states permit the possession of handguns to a degree. Even New Jersey and New York City which effectively ban the possession of handguns outside the home, permit handgun possession in the home, with the appropriate license (in New York). However, prior to today’s ruling, New York and New Jersey have a complete and total ban on the civilian possession of stun guns and tasers which are non-lethal. This complete and total ban includes both possession inside the home and outside the home and does not even permit possession with a license.

New York Firearms Law Firm Announces Legal Action Against the NYPD Alleging Racial Bias in Pistol License Decisions

April 2, 2018 | Peter Howard Tilem

New York Firearms Law and Second Amendment Firm, Tilem & Associates has filed three legal actions, two in New York State Supreme Court and one in Federal Court in Manhattan alleging that the New York City Police Department Licensing Division uses factors in licensing decisions that disproportionately deny African-Americans gun licenses. In one outrageous case, the NYPD admitted to using false arrests, two arrests for which the NYPD was sued and ultimately settled, as part of the basis for revoking pistol licenses from an African-American.

The NYPD Licensing division is the division within the NYPD that is responsible for issuing and renewing pistol licenses in the City of New York, and has the authority to limit, suspend or revoke a handgun license subject to review by the New York State Supreme Court.

In February 2017, during a hearing at the NYPD License Division offices before an NYPD hearing officer, a Detective assigned to the investigation section of the License Division testified under oath about using dismissed arrests as a basis to recommend revocation of an African-American license holder’s license. In fact, and to the apparent surprise of the hearing officer, the Detective testified that anything reported to the NYPD License Division was considered an “incident” and that the Police Department did not necessarily consider the quality of the incidents but rather the sheer number and that included dismissed arrests. The Detective also admitted to considering dismissed arrests for which New York City settled 2 false arrests claims in his decision to revoke.

LOCAL FIRM SCORES MAJOR VICTORY IN WESTCHESTER TOWN’S ATTACK ON MASSAGE ESTABLISHMENTS

December 29, 2017 | Peter Howard Tilem

White Plains law firm Tilem & Associates won a major Court victory yesterday when a Supreme Court Justice granted the firm’s application and issued a Temporary Restraining Order (TRO) against the Town of Greenburgh’s enforcement of its local law regulating massage establishments. In 2015 the Town of Greenburgh, New York in Westchester County passed an ordinance which required massage establishments to obtain special permits from the Town in order to operate within the unincorporated part of the Town. During consideration of the ordinance by the Town Board, the proposed legislation was not without controversy. In fact the Town Board received a letter from the New York State Department of Education letting the Board know that licensed massage therapists were wholly regulated by the State of New York and were licensed by the State Department of Education and that the regulation by the State preempted any such regulation by the Town and unfairly burdened professionals licensed by the State.

Notably, the Greenburgh ordinance regulates licensed massage therapists not unlicensed massage therapists and requires those that are already licensed to obtain a Greenburgh License. Also notably, the Greenburgh ordinance defines Massage, a term already defined in sec 7801 of the New York State Education Law.

Based upon the clear preemption of these regulations by New York State Law, the American Massage Therapy Association brought a lawsuit to invalidate the Greenburgh Law in 2016. However, after a significant amount of litigation that lawsuit was dismissed on a technicality. On September 29, 2016, Acting Supreme Court Justice Helen Blackwood ruled that “what appears to be a meritorious claim fails due to petitioners’ lack of standing.” Standing is a legal principle that requires a litigant to demonstrate some injury before they can bring a lawsuit. Since neither the American Massage Therapy Association nor an individual petitioner had been directly affected or harmed by the new law Judge Blackwood ruled that they could not maintain the original action.

NEW YORK DWI LAWYERS BEATS ANOTHER REFUSAL HEARING – CLIENT AVOIDS LIFETIME REVOCATION

December 4, 2017 | Peter Howard Tilem

Refusing to take a chemical test in New York can come with very serious consequences. For example, a motorist who refuses a properly requested breath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case. If a person has prior alcohol related incidents, the period of revocation can be much longer, even life. Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process. In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked. In New York the criminal case, the DWI, and the refusal follow two different tracks. The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV. In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal. He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.

STATE POLICE SERGEANT ARRESTED FOR RECORDS TAMPERING RELATED TO BREATHALYZER MACHINES – 20,000 DWI CASES COULD BE JEOPARDIZED

November 21, 2017 | Peter Howard Tilem

Experienced DWI attorneys understand the potential errors associated with breath test machines even when calibrated and functioning properly. However, recently a New Jersey State Police Sergeant assigned as a coordinator in the Alcohol Drug Testing unit has been arrested for skipping a step in the recalibration of breath test machines and falsifying records to certify that he performed the required check. Specifically, the Sergeant is alleged to have skipped the temperature check while re-calibrating the machines and then falsely certifying that he performed the check. The Sergeant was responsible for calibrating breathalyzers in Middlesex, Ocean, Monmouth, Union and Somerset counties over a period of seven years and State officials have identified well over 20,000 DWI cases that could be affected by this arrest. This arrest comes on the heels of a Police lab technician having been accused of faking a test in a Marijuana case last December. That disclosure put into question almost 15,ooo cases.

The issue with breath tests is even more acute than drug cases because generally the police do keep the drugs that were tested for a period of time even after a conviction and so those drugs are available to be retested. However, when you give a breath sample, no part of the sample is maintained for retesting and therefore the momentary reading from the breath machine plays a crucial part in the case. In addition, in most drug cases the issue is the presence or absence of a controlled substance and the total weight of the substance. The concentration of the controlled substance in the sample does not matter. In DWI cases, however, small differences in the percentage of alcohol detected in a breath sample can have a huge impact on the outcome of a case and can in fact impact whether charges are brought or not.

The issue of calibration goes to the heart of the accuracy of these devices and goes to the heart of the accuracy of what is often the key evidence in DWI cases. For example, body temperature can affect the breath reading and as experienced DWI lawyers understand a person with a fever can have an artificially high read on a breath test. Therefore, of course, the temperature of the simulation solution during a re-calibration can be critical. The problem is compounded by the substantial weight given to the results of these machines by prosecutors, courts and even jurors and at the same time manufacturers of breath machines attempt to keep the inner workings of these machines a secret, treating the inner workings of the machine as a trade secret.

Sealing a Criminal Record in New York Under New CPL section 160.59

September 25, 2017 | Peter Howard Tilem

As New York Criminal Defense lawyers we are constantly called about expunging old New York Criminal records and over the many years I have been in practice it has been frustrating to inform people whose lives have been forever altered by an old New York criminal conviction that there was no mechanism to seal or expunge a criminal conviction in New York. In the past we have offered half measures such as certificates of relief from civil disabilities or certificates of good conduct. However, great news has arrived. Beginning in October 2017 the New New York Criminal Procedure Law 160.59 will go into effect permitting a motion to be made to seal up to two criminal convictions including one felony. This is welcome news for anyone whose professional life is being held back by a past mistake.

New York Criminal Procedure Law provides for sealing of up to two criminal convictions and up to one felony. Convictions for violent felony offenses, homicides, sex offenses and any conviction that requires SORA (Sex Offender Registration) are ineligible for sealing as well as conspiracy of attempts to commit ineligible crimes. In order to qualify for sealing the applicant must not have been convicted of a crime in the preceding 10 years and any time spent in prison or jail in that 10 year period is added back into the 10 years. For example if a person served 5 years in prison after a conviction they would need to wait 15 years before they could apply for sealing under CPL 160.59.

Procedurally, CPL 160.59 sealing requires that an application be made to the Court. For a person sealing more than one conviction the sealing application must be brought in the Court where the most serious conviction took place. The application must include a copy of Certificate of Disposition for each conviction (or an explanation of why one could not be obtained) and a sworn statement of the person seeking sealing that sets forth the convictions for which sealing is sought, whether other applications have been brought for sealing, and the reasons why the person is seeking the sealing. The application must also include any other sealing applications that have been filed. The entire package must be served on the District Attorney’s Office in the County in which sealing is sought.

New York Gun Lawyer Mentioned in NRA-ILA Newsletter

September 6, 2017 | Tilem & Associates

In a recent NRA-ILA article about the Stossel documentary that the NRA Institute for Legislative Action suggests supports the need for national concealed carry reciprocity, Tilem & Associates senior partner Peter H. Tilem was quoted and described as a criminal lawyer who represents tourists accused of “innocently violating New York’s gun control laws. ” The Stossel Documentary can be seen here.

Mr. Tilem regularly represents those who travel from other States with firearms and who get arrested for violating New York’s draconian and complex gun laws. The John Stossel documentary was based on the story of two of Mr. Tilem’s clients who were arrested at Queens, New York airports one with a gun and one with a magazine which New York law calls a high-capacity ammunition feeding device.

The NRA-ILA article goes on to describe the Stossel documentary in some depth including describing the stories of the two tourists from Georgia who were arrested and the interviews of Mr. Tilem and and Mr. Ryan, the Chief Assistant District Attorney in Queens who is in charge of the prosecution of these cases. Both Laguardia and Kennedy airports, two of the busiest airports in the country are located within the jurisdiction of the Queens District Attorney’s Office.

New York Criminal Jury Trials – Anything Can Happen at a Criminal Trial

September 5, 2017 | Tilem & Associates

As experienced New York Criminal Trial lawyers we understand the risks and potential hazards of going to trial as well as the uncertainty associated with any criminal trial. However, in a recent felony trial that we conducted in Westchester County Court charging six counts of felony assault, some evidence surprised even the most seasoned people in the courthouse and the verdict, finding the client not guilty on the four most serious assault charges and only guilty on two less serious charges, also surprised many.

The Felony Assault charges included two counts each of Aggravated Assault on a Police Officer, Assault in the First Degree and Assault on a Police Officer and all stemmed from an incident where the motorist as he was stopped at a type of roadblock put the car in reverse and dragged a police officer for some distance and struck another police officer standing near the car. It was undisputed that both police officers were very seriously injured and it is also undisputed that two years later one police officer has not yet been able to return to work as a police officer.

At the roadblock were three police officers; the two that were seriously injured and a third who immediately took control of the crime scene. On day one of the trial, the police officer at the scene who was not injured took the stand and identified “crime scene” photos that show that the police sergeant who was dragged lost a lot of his equipment as the car sped in reverse with the Sergeant stuck under the driver’s side door. The Officer at the scene was showed and identified both photographs of the scene where the equipment was found and the actual equipment which included a flashlight, handcuffs and a magazine pouch.

SUIT FILED AGAINST NEW YORK DMV FOR LIFETIME BAN ON CERTAIN DRIVERS WHO POSSESS CERTIFICATES OF GOOD CONDUCT

August 24, 2017 | Tilem & Associates

New York law firm Tilem & Associates has filed an Article 78 lawsuit against the New York State DMV based upon the DMV policy of instituting a lifetime revocation against certain drivers who have multiple alcohol related driving incidents. Although the policy was previously upheld in Court the revocation policy as it pertains to drivers who have had a Certificate of Good Conduct or a Certificate of Relief from Civil Disabilities issued to them is illegal and violated several provisions of New York State Law according to the lawsuit.

In 2012 the New York State Department of Motor Vehicles changed its regulations to institute a lifetime ban on what DMV termed “persistently dangerous drivers.” The term persistently dangerous driver applies to drivers who have three alcohol (or drug) related driving offenses and another serious driving offense in a 25 year period. The new regulations have been challenged in Court and have been repeatedly upheld by Courts throughout New York State. However, the new Court challenge relates to an individual with 4 alcohol related driving offenses including two felony DWI cases and a state prison sentence of 2-6 years in prison but who had a Certificate of Good Conduct issued to him by the New York State Department of Corrections and Community Supervision. Specifically, the Certificate of Good Conduct “provides relief from forfeitures, disabilities or bars to employment and licensing automatically imposed by New York State law as a result of his conviction.”

Certificates of Good Conduct and Certificates of Relief from Civil Disabilities are defined under the New York State Correction Law §703-a and §703 respectively and after a thorough investigation permit the Court or Parole Board to create a presumption of rehabilitation. Moreover, New York State Correction Law §752 specifically prohibits the denial of a license based upon a previous conviction or based upon lack of good moral conduct if either a Certificate of Good Conduct or Certificate of Relief from Civil Disabilities is issued. New York State Correction Law §752 does set out two exceptions to that general rule.

New York’s Highest Court Rules Analysis of License Plate in DMV Database Without Reasonable Suspicion Does Not Constitute an Unlawful Search

June 21, 2017 | Tilem & Associates

In a recent New York court opinion, the court analyzed whether a police officer can enter a license plate into a government database to check for any suspensions, outstanding violations, and the registration of the vehicle without first developing any suspicion that the vehicle was engaged in criminal activity. More specifically, the court ruled that this review of the license plate information does not constitute a search. Given the fact that many modern police cars are equipped with license plate readers and fixed license plate readers are becoming more commonplace, the issue is of paramount importance.

The facts of the case that gave rise to this opinion are as follows. In 2014, a police officer saw a vehicle drive past him. The vehicle was operated by the defendant. During the eventual trial on the matter, the officer stated that he did not see the vehicle engaging in any traffic violations or otherwise erratic behaviors. The police officer entered the vehicle’s license plate into his computer system, which was linked to the Department of Motor Vehicles. The analysis indicated that the registration for the vehicle was suspended due to outstanding parking tickets. The officer then initiated a stop of the vehicle. During that stop, the officer conducted a database search of the defendant’s driver’s license and discovered that his license was also suspended. Ultimately, the officer initiated an arrest of the defendant for driving while intoxicated as well as for operating a vehicle with a suspended license and registration.