THEFT CRIMES Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Denies Defendant’s Appeal in Burglary Case, Despite Questionable Use of Security Footage

August 6, 2023 | Peter Howard Tilem

In a July 2023 burglary case before the Appellate Division, Second Department in New York, the defendant highlighted possible issues in identifying a suspect through surveillance footage. This case involved a defendant who was charged with and eventually convicted of Burglary in the Second Degree. The defendant appealed his conviction, arguing in part that the trial court made a mistake when it allowed non-eyewitnesses to identify him in a home surveillance video as the person who had committed the burglary. Looking at the trial court’s record, the higher court denied the defendant’s appeal.

The Facts of the Case

According to the opinion, the defendant broke into a home one evening when the residents were out. He stole several items, all of which he brought back to his bedroom, which was located in a group home for mentally ill adults. The house’s residents had high-tech home surveillance footage, which they shared with the police after the burglary.

The investigators reviewed the footage, and eventually, several of the defendant’s parole officers identified the defendant as the person who committed the robbery. The State charged the defendant with burglary, grand larceny, criminal possession of a weapon in the third degree, petit larceny, and criminal mischief. His case went to trial, and a jury unanimously found him guilty. The court then sentenced him to time in prison as a result.

Appellate Division Reverses Lower Court’s Judgment in NY Robbery and Criminal Possession Case, Highlighting the Importance of Unbiased Courts

July 30, 2023 | Tilem & Associates

In a June 2023 case before the Appellate Division, Second Department in New York, the defendant successfully argued for a reversal of his conviction of robbery in the third degree and criminal possession of stolen property in the fifth degree. Originally, a jury found the defendant guilty after an incident during which he took several pairs of footwear from a department store. On appeal, he argued that the lower court deprived him of his constitutionally guaranteed right to a fair trial. Looking at the record, the higher court agreed with the defendant and granted him an entirely new trial.

Facts of the Case

According to the opinion, the defendant walked in and out of a department store one afternoon in August 2018. When he walked out, the storm alarm started blaring, and a store security guard noticed that he had taken several pairs of footwear with him.

The security guard followed the defendant and tried to retrieve the stolen goods. The defendant reached for his back pocket and said, “Keep going or watch what’s going to happen to you.” The guard let the defendant go, but he summoned police officers to the scene. The officers arrested the defendant several minutes later, close to a subway station, and the defendant was criminally charged.

Defendant in New York Robbery Case Loses on Appeal of Motion to Suppress

February 12, 2023 | Peter Howard Tilem

In a robbery case before a New York appeals court earlier this month, the defendant asked the court to reconsider an unfavorable decision he received at the trial court level. Originally, the defendant was criminally charged with robbery and criminal possession of a weapon, and he asked the lower court to suppress incriminating evidence that an officer found on his person while conducting a search. The court denied the defendant’s motion to suppress, and on appeal, the higher court agreed. The defendant’s argument was rejected, and the original judgment was affirmed.

Facts of the Case

According to the opinion, police officers were called to a residential building one night right as a robbery was taking place. The officers arrested several people at the scene of the crime, then they walked out of the building to find the defendant emerging from a driveway nearby. The driveway was right behind the building where the offense occurred, and the officers approached the defendant to see if he knew anything about the crime.

At that point, the officers tried to ask the defendant several questions, but he immediately began running away. The officers chased him, caught up to him, and arrested him. They quickly found a cell phone and cash on the defendant’s person; the cell phone had several incriminating text messages that ended up playing a part in the State’s case against the defendant.

New York Appellate Division Reverses Burglary Conviction After Illegal Automobile Search

December 1, 2022 | Peter Howard Tilem

The Fourth and Fourteenth Amendments to the U.S. The Constitution prohibits law enforcement officers and other government agents from conducting an illegal search or seizure of persons or property in furtherance of a criminal investigation or prosecution. New York’s state Constitution contains similar provisions. Generally, these Constitutional protections require law enforcement officers to obtain a warrant before performing a search of a person or their vehicle. The warrant requirement does contain exceptions, which allow police officers to perform a search when there is probable cause that evidence of a crime will be found, or for certain safety purposes. The Appellate Division recently reversed a defendant’s burglary conviction which was based upon the fruits of a warrantless search that the trial court had determined to be legally sufficient under an exception to the warrant requirement.

The defendant in the recently decided case was operating a vehicle when he was stopped for a traffic violation. The responding officers testified that they recognized the defendant and his vehicle from a “wanted poster” and an “I-card” that had been distributed to law enforcement after a string of burglaries were reported in the area. The defendant was taken into custody based on his reported description. Police then searched the vehicle and found a backpack which contained property that had been reported stolen in the alleged burglaries. Based on this evidence, the defendant was charged with burglary. Before trial, the defendant moved the court to suppress the physical evidence obtained in the traffic stop, arguing that the police did not have probable cause to search the vehicle based only on the description evidence they knew of at the time of the stop. The defendant’s motion was denied and he was convicted of the charges after a trial.

The defendant appealed the trial court’s denial of his suppression motion, and the appellate division ultimately reversed his conviction. The trial court’s reliance on the “automobile exception” to the search warrant requirement had not been affirmatively argued by the prosecutors before the conviction, and the trial judge’s application of such an exception to deny the defendant’s motion, while not expressly forbidden, was not supported by any evidence on the record when considering all of the circumstances. Because the prosecutors elicited no evidence in support of the trial judge’s reasoning for the denial of the motion, the decision could not stand. As a result of the appellate division ruling, the defendant may not face a conviction for the charges brought against him.

New York Court Grants Defendant’s Appeal in New York Criminal Case, Affirming Defendant’s Motion To Suppress Physical Evidence

September 11, 2022 | Peter Howard Tilem

In a recent New York criminal case, the defendant successfully filed a motion to suppress physical evidence. The defendant was charged with robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree (five counts), criminal possession of stolen property in the fourth degree (four counts), criminal possession of stolen property in the fifth degree (two counts), criminal mischief in the fourth degree, possession of burglar’s tools (three counts), obstructing governmental administration in the second degree, resisting arrest, unlawful fleeing a police officer in a motor vehicle in the third degree, reckless driving, failing to comply with a police officer’s direction, failing to stop at a steady red signal, driving a vehicle on the left side of no-passing markers, failing to signal, driving in excess of the maximum speed limit, and operating a motor vehicle without a license.

In the appeal, the defendant argued that was subjected to an unconstitutional search and seizure during the frisk performed by an officer, when the officer removed a wallet from the defendant’s pocket, and again when the contents of the wallet were searched. As a result, the defendant argues that the wallet and its contents should be suppressed at trial. The appeals court granted his motion, vacating 14 of his counts, and ordering a new trial on those counts.

Facts of the Case

According to the opinion, police officers arrived at the scene of a reported robbery after the defendant allegedly confronted the complainant, claiming to have a weapon, and took the complainant’s wallet. When the police arrived, the defendant allegedly fled on foot, before entering a car and was later apprehended by police officers. The defendant was handcuffed, and a wallet was removed from his pocket. A police officer examined the contents of the wallet and determined that it was the complainant’s wallet. The defendant’s car was identified by police because as he allegedly entered the car, an officer broke the back window of the car so as to make it easier to identify the vehicle, and subsequently reported the vehicle information over the radio. After the defendant was apprehended, he was frisked to ensure officer safety, and the wallet was recovered.

New York Federal Court Sides with Prosecution in Burglary Case, Despite Defendant’s Argument Surrounding Motion to Suppress

August 23, 2022 | Peter Howard Tilem

Earlier this month, a federal court in New York issued an opinion in a burglary and larceny case, ruling on the defendant’s appeal of his motion to suppress. According to the defendant, the lower court had mistakenly denied his motion to suppress physical evidence as well as statements he made to police officers during an encounter in October 2018. The court ended up ruling in the State’s favor, deciding that the evidence should not have been suppressed and that the lower court was indeed correct in its ruling.

Facts of the Case

According to the opinion, early one morning in October 2018, an off-duty officer reported seeing a parked vehicle with one door open and no one in the general vicinity of the car. Two police officers drove to the scene and immediately saw three occupants inside the vehicle. Smelling burnt marijuana, the officers approached the car and asked the occupants what they were doing. The driver responded that they had been smoking marijuana, and the officers asked the occupants to exit the vehicle.

New York Court Denies Defendant’s Appeal in Forgery Case

March 20, 2022 | Peter Howard Tilem

In a recent opinion from a New York court, the defendant’s appeal of his forgery conviction was denied. Originally, the defendant was convicted of criminal possession of a forged instrument due to his attempts at using a fake gift card to purchase items at a department store. He was also convicted of petit larceny, and he appealed both convictions. The higher court considered the defendant’s argument but ultimately affirmed the defendant’s original guilty verdict.

Facts of the Case

According to the opinion, the defendant in this case was a New York resident who went shopping at a Century 21 department store. While there, the defendant used a forged gift card to try and make purchases. Apparently, the gift card had been manufactured so that a third party would be billed for the transaction, allowing the defendant to buy items without having to pay any money. When the defendant was caught using the forged card, he told the department store’s security guards that he purchased the card from a stranger for $20, even though he had been attempting to purchase $70 worth of clothing at the time.

The Decision

On appeal, the defendant argued that incriminating evidence of his attempted theft should have been suppressed at trial. The defendant focused on the fact that the evidence used at trial came from the store’s security guards, who were subject to the same rules as state actors, such as police officers or government employees. The Constitution protects an individual from infringement of certain rights from the Government not from private individuals or companies. Therefore, one may only have evidence suppressed if it is illegally seized by government actors and not private actors. Because the store’s guards were considered state actors for the purposes of this case, said the defendant, they were supposed to carefully ensure that they were not intruding on the defendant’s constitutional rights. These rights include the right to privacy as well as the right to not be searched without probable cause.

Court Grants Motion to Suppress ID in Recent New York Burglary Case

February 22, 2022 | Peter Howard Tilem

Recently, a state appellate court issued an opinion in a New York burglary case discussing the defendant’s motion to suppress evidence of an identification made by a law enforcement officer. Ultimately, the court concluded that the procedures used by police to conduct the identification were “unduly suggestive,” agreeing with the defendant. Thus, the court reversed the lower court’s ruling, granted the defendant’s motion to suppress, and ordered a new trial. In the subsequent trial, the prosecution will not be permitted to use evidence of the complaining witness’s identification unless there is an independent source for the identification.

The Facts of the Case

According to the court’s written opinion, the defendant was arrested for residential burglary. During the investigation, without prompting from the police, the complaining witness found a Facebook picture of the defendant and told police that’s who had burglarized their home. Based on this information, police officers located an old arrest photo of the defendant and asked the complaining witness if it was the same person. The complaining witness made a positive identification.

The defendant filed a pre-trial motion to suppress the identification testimony, claiming it was unduly suggestive. The trial court disagreed, denying the defendant’s motion. The trial court denied the defendant’s motion on the basis that any suggestiveness in the identification procedure was not the result of any improper conduct of law enforcement. The defendant was convicted by a jury. He then appealed.

Court Discusses Admissibility of Defendant’s Statements to Police in Recent New York Robbery Case

October 20, 2021 | Tilem & Associates

Recently, a state appellate court issued a written opinion in a New York robbery case involving a defendant’s motion to suppress statements he made to law enforcement. Specifically, the case required the court determine if the defendant’s statements were admissible or whether they were the product of a violation of his constitutional rights. Ultimately, the court concluded that the defendant’s statements were admissible.

The Facts of the Case

According to the court’s opinion, a police officer witnessed the defendant roll through a stop sign. The police officer pulled over the defendant and requested his driver’s license, registration, and insurance card. As the defendant retrieved the requested items, the officer noticed a can of pepper spray in the glove box. The officer also recognized the vehicle as matching the description of one used in a recent robbery in which the person committing the robbery used pepper spray on the alleged victims.

The officer arrested the defendant and read him his Miranda warnings. Later, the defendant provided a statement to police. While the exact statement was not outlined in the court’s opinion, it’s fair to say that it was against his interest.

Court Grants Defendant’s Motion to Suppress After Officers Search Closed Container Incident to Lawful Arrest

June 21, 2021 | Peter Howard Tilem

The New York and federal constitutions provide fundamental rights to all citizens. Among the most important are those contained in the Fourth Amendment. The Fourth Amendment generally protects citizens from unreasonable searches and seizures. Historically, this meant that police officers needed to obtain a warrant before searching a person, their belongings, or a place in which the person had a reasonable expectation of privacy, such as a home. The Exclusionary Rule prohibits the introduction into evidence and the use in Court of evidence seized in violation of the Fourth Amendment.

However, over the years, courts realized that the warrant requirement was overly burdensome on law enforcement and created exceptions to the warrant requirement. For example, police officers who observed a crime occurring can arrest the person suspected of committing the crime and then conduct a limited search incident to that arrest. Of course, there are limits on the scope of a search incident to an arrest; one of which involves police officers searching a closed container after a lawful arrest.

A recent case illustrates how the plain view doctrine can play out. According to the court’s opinion, a defendant was arrested for criminal possession of a forged instrument. After arresting the defendant, the arresting officer pulled out a manila envelope from the defendant’s pocket. The envelope was closed, and the contents were not visible. However, the police officer opened the envelop enough to peek inside. Inside the envelope, the officer found additional incriminating evidence.