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Articles Posted in THEFT CRIMES

In any New York criminal case, there may be a number of potential defenses. One of the most common defenses in crimes involving people who do not know each other is misidentification. When a defendant argues misidentification, they are claiming that another person was the one who committed the offense, and that they were incorrectly identified as the perpetrator.

Recent studies over the past decade have called into question the reliability of identifications. This is especially the case in cross-racial identifications, where the person making the identification is of a different race than the person they are identifying. Understanding the risks of misidentification, courts require that police officers follow certain rules when conducting an identification procedure.

For example, in a recent state appellate opinion, the court reversed the defendant’s conviction for robbery on the basis that the victim’s identification of the defendant was unduly suggestive. Police arrested the defendant after receiving a report from a person who claimed that a man in dreadlocks robbed him. After the arrest, the defendant was placed in a line-up with other individuals, and the victim was asked to identify whether the person who robbed him was in the line-up and, if so, to identify him. All men in the line-up wore hats; however, the defendant was the only person in the line-up with dreadlocks and his dreadlocks were visible.

Earlier this year, a state appellate court issued an opinion in a New York marijuana possession case involving the question of whether the defendant could legally be convicted of tampering with evidence after he threw a bag of marijuana to the ground while being chased by police. The court determined that the defendant’s conduct did not meet the necessary elements of tampering with physical evidence, noting that the proper charge was the lesser offense of attempted tampering with physical evidence.

According to the court’s opinion, police officers were conducting surveillance out in front of a store after there were recent reports of people drinking and selling drugs outside the store. The undercover police officers observed the defendant leave the store while drinking from a bottle that was wrapped in a brown paper bag. Thinking that the defendant was violating the state’s open-container laws, the officers gave the defendant’s description to backup officers, instructing them to stop the defendant.

As the backup officers tried to stop the defendant, the defendant dropped the brown paper bag to the ground and ran. The bottle broke as it hit the ground. A backup officer started to chase the defendant, and noticed that the defendant threw a baggie that was later determined to contain marijuana. After his arrest, the defendant punched the officer in the face. The defendant was charged with various crimes, including assault, possession of marijuana, and tampering with physical evidence. The prosecution argued that by throwing the baggie of marijuana, the defendant tampered with evidence.

Earlier this month, a state appellate court issued an opinion in a New York burglary case requiring the court to determine whether a police officer’s actions violated the defendant’s rights prior to his arrest. Ultimately, the court concluded that the officer lacked justification to stop the defendant, search his bag, and then transport him to the scene of the crime so that a show-up identification could be made. Thus, the court affirmed the lower court’s decision to grant the defendant’s motion.

According to the court’s opinion, police officers received a report of a burglary. Several officers went directly to the scene and others canvassed the area looking for a suspect. The description given by the caller stated only that the suspect was a male.

An officer saw the defendant walking with a cell phone and a bag a few blocks away from the scene. The officer asked the defendant what he was doing, to which the defendant responded he was looking through garbage cans. The officer searched the defendant’s bag and then told him that he was going to be transported to the scene. At the scene, the defendant was identified as the burglar.

Under the Armed Career Criminals Act (ACCA), federal law provides for enhanced penalties for people convicted of a crime involving a firearm if they have previously been convicted of several “violent felonies.” New York has similar laws that enhance penalties for persistent violent felony offenders and discretionary persistent felony offenders.  Recently, the U.S. Supreme Court agreed to hear a case in which the court will be required to explain what constitutes a “violent felony” under the ACCA. The case is important to New York criminal defendants because it will define what counts as a predicate offense under the ACCA, which could have significant repercussions for a person’s sentence.

The case involves a defendant who was convicted for possession of ammunition. At sentencing, the prosecution presented evidence that the defendant had previously been convicted of five offenses:  a 1974 robbery, a 1982 robbery, a 1983 attempted burglary, a 1986 burglary, and a 1994 robbery. The prosecution argued that each of the previous offenses qualified as violent felonies under the ACCA, and it sought a mandatory sentence on the current case of at least 15 years. If the defendant did not have three qualifying offenses, the maximum sentence that he could receive would have been 10 years. However, the trial court agreed with the prosecution, sentencing the defendant to 15 years.

After the U.S. Supreme Court held that part of the ACCA was unconstitutional, the defendant filed a petition, claiming that several of his previous convictions no longer qualified as “violent felonies.” The prosecution agreed that the 1983 conviction for attempted burglary was no longer a qualifying offense, but it argued that the remaining convictions still qualified under the ACCA. The court disagreed, finding that only two of the defendant’s robbery convictions qualified, and it sentenced him to 88 months.

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving the defendant’s motion to suppress an identification made by the complaining witness, as well as statements made by the defendant after his arrest. Ultimately, the court held that because the prosecution failed to establish that the defendant’s arrest on an unrelated matter was supported by probable cause, the subsequent identification and statements were “fruit of the poisonous tree,” and must be suppressed.

According to the court’s opinion, a man was robbed in Queens. A day or two after the robbery, the assigned police officer provided the complaining witness with a photo lineup, where he identified the defendant. The officer filled out an identification card, which essentially put other police officers on notice that the defendant should be arrested. Several days later, the assigned officer was informed that the defendant was in custody based on an unrelated matter. The officer brought the complaining witness to the station, where he identified the defendant. The defendant then gave a statement to the police.

The defendant filed a motion to suppress the witness’s identification, as well as the statement he made following his arrest. The trial court denied the motion, finding that the “fellow officer rule” justified that defendant’s arrest. Under the fellow officer rule, if an arresting officer lacks probable cause to arrest, the arrest may still be valid if the arresting officer makes the arrest based on communication with a fellow officer who had information justifying the arrest. The defendant was convicted of robbery and appealed the denial of his motion to suppress.

Recently, a state appellate court issued an opinion in a New York theft case, affirming a defendant’s conviction for grand larceny in the third degree which is a class “D” felony under New York law and is punishable by up to 7 years in prison. The case presents a good illustration of the type of evidence necessary to sustain a New York larceny conviction.

According to the court’s opinion, the defendant opened a bank account in his name. To do so, he provided two forms of identification, as well as all his personal information.  The next day a person known to the defendant then deposited in the defendant’s account the amount of $11,340. To facilitate the deposit, the defendant provided the other person with his debit card and its PIN. The subsequent day, the defendant made a series of withdrawals through several branches and locations, totaling $11,000. Each of these withdrawals was below the monetary limit that would require further investigation by the bank. The defendant could be seen on video making two of the withdrawals. The $11,340 check ultimately turned out to be fraudulent.

The defendant was charged with grand larceny in the third degree, based on the “three-day scheme by which he arranged the deposit of a forged check—into an account apparently created for the sole purpose of housing the stolen funds—and then immediately withdrew the proceeds.”

Earlier this month, a state appellate court issued a written opinion in a New York robbery case requiring the court to determine if the defendant’s motion to suppress the eyewitness’s identification should be suppressed. Ultimately, the court concluded that the witness’s identification was not suppressible, and affirmed the defendant’s conviction for robbery.

Identifications, like other forms of evidence, must be suppressed if they are unduly suggestive. When making this determination, New York courts employ a burden-shifting analysis. First, the prosecution has the burden to show that the police officers’ identification procedure was reasonable and was not unduly suggestive. If the prosecution meets that burden, then it is up to the defense to show that the identification procedure was improper.

According to the court’s opinion, a pizza delivery person was robbed in September, 2011. The following day, the delivery person identified the defendant as the person who robbed him. Police officers did not preserve the photo array. Thirteen months later, the defendant was arrested and identified by the delivery person in an in-person lineup. The defendant was charged with robbery.

Earlier this month, a state appellate court issued a written opinion in a New York robbery case, reversing the defendant’s conviction based on the lower court’s improper denial of the defendant’s motion to suppress his statement. Specifically, the statement included his answers to a few questions asked by a detective before the detective read the defendant his Miranda warnings.

According to the court’s opinion, a woman was robbed by an unknown man while walking with a friend. Later, the friend admitted that she had planned the robbery with the unnamed man, the defendant in this case. The friend gave a statement to police implicating the defendant, who was arrested. In her statement, the friend claimed she knew the defendant because they both worked at the same bar.

After he was arrested, a detective sat down with the defendant. Before reading the defendant his Miranda rights, the detective asked the defendant a few preliminary questions about his employment and work history. The defendant answered the questions, and then the detective read the defendant his Miranda rights and continued to ask questions about the robbery. The defendant was ultimately arrested and convicted of robbery and related charges.

The concept of jury nullification is an important concept for experienced criminal defense lawyers to understand.  As a by product of our system of justice, a jury has the power to acquit even those who have had the charges poven against them.  This is a fact, largely kept secret from the public and not sanctioned by the Courts. In People v. Goetz, the Court of Appeals stated:  “While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called mercy-dispensing power,’ . . . is not a legally sanctioned function of the jury and should not be encouraged by the court.”

Jury nullification is when the jury ignores the law because it believes that its application in a specific case is unjust. Essentially, a jury who nullifies believes that the defendant was guilty of the crimes he was charged with, but that convicting him under the specific circumstances would not be in the interest of justice. Jury nullification is not an official part of the criminal law, and in some jurisdictions attorneys who advance a nullification theory to the jury can be sanctioned by the court for violating the profession’s ethical code. Indeed, a defense attorney cannot explicitly request the jury nullify, and if she chooses a nullification strategy, she must go about it subtly.

In June, a state appellate court issued an interesting opinion in a New York burglary case discussing whether an attorney’s strategy to argue for jury nullification constituted effective representation. The court concluded that, given the facts of the case, the chosen jury-nullification strategy was appropriate and a potentially effective defense to the crimes charged. Thus, the court upheld the defendant’s conviction.

In New York, Burglary is a serious felony.  The facts of the Burglary will determine whether there is a mandatory minimum state prison sentence associated with a conviction and how long that state prison sentence will be. In April of 2019, the United States Supreme Court heard oral arguments on an important case discussing the “intent” element of the crime of burglary. While the case arose in Michigan, the case raises an important issue that could come up in a New York burglary case.

Historically, burglary has been defined as an unlawful entry at night into a building owned by another, with the intent to commit a crime therein. Over the years, lawmakers have refined the definition of burglary. For example, nearly all states have eliminated the requirement that the alleged acts occur in the evening hours. Additionally, many states have added language into the burglary statute allowing the crime to be proven by showing that the defendant “unlawfully remained” on the property with the intent to commit a crime.

The exact nature in which the case arose is complex; however, the Court was asked to determine whether Michigan’s “home invasion” statute satisfied the elements of a “burglary” for the purposes of the Armed Career Criminals Act. Michigan defined a home invasion as “breaking and entering a dwelling and while entering or present in the dwelling, committing a misdemeanor.”

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