THEFT CRIMES Category Archives — Page 3 of 4 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Court Affirms Lower Court’s Decision to Deny Defendant’s Motion to Suppress in New York Burglary Case

July 9, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued a written opinion in a New York burglary case discussing whether the lower court properly denied the defendant’s motion to suppress evidence that police recovered from inside of his backpack. Ultimately, the court concluded that the officers had a legal basis to pursue the defendant and that exigent circumstances justified the officers’ search of the pack.

The Facts of the Case

According to the court’s written opinion, police officers received a call for a burglary in progress. Moments after police arrived on the scene, another call came in describing the perpetrator as a black male wearing a black hat, carrying a backpack and riding a bicycle. Two minutes later, police officers saw the defendant, who matched this description.

The defendant fled as police tried to stop him. Ultimately, the defendant fell off the bike and was detained. Moments later, the alleged victim came to the scene, shouting, “that’s him!” Police arrested the defendant and then noticed a backpack nearby. The officers opened the backpack, finding several of the alleged victim’s belongings inside.

New York Court Holds Officer’s Observation of “Bulge” in Defendant’s Pockets Did Not Justify Search

June 28, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York burglary case involving the defendant’s motion to suppress the physical evidence that police recovered when they searched his pockets. Ultimately, the court concluded that the officer lacked probable cause to conduct the search, and the defendant’s motion was granted.

According to the court’s opinion, police received a call reporting a burglary in which a resident reported $5,500 was stolen. About an hour after the call, an officer came upon the defendant, who matched the description given to police, which was a person “in dark clothing.” The officer approached and asked the defendant for his identification. Initially, the defendant turned and walked away, but later approached the officer. According to the officer, the defendant put his hands into his pockets. The officer asked the defendant to remove his hands and place them on his head, and the defendant complied. The officer then noticed bulges in each of the defendant’s pockets. The officer patted the defendant down, and could not discern what the bulges were, although he could tell they were not weapons. The officer then reached into the defendant’s pockets and removed a large amount of cash. The defendant was arrested and charged with burglary.

The defendant filed a motion to suppress the cash, arguing that the police officer did not have probable cause to reach into his pockets. The lower court granted the defendant’s motion, and the prosecution appealed.

New York Court Discusses the Right to Appeal after Pleading Guilty

June 16, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York burglary case involving the lower court’s decision that the defendant was not able to appeal his conviction. The case involved two separate burglaries, and the defendant’s motion to suppress evidence that related to one of those burglaries.

The Facts of the Case

According to the court’s opinion, a police officer, acting on a tip, stopped the defendant based on suspicion that he was involved in a prior burglary. The officer asked the defendant to remove his hands from his pockets, noticing that the defendant had something in his hands. The officer asked the defendant to open his hands, and discovered that it was a small bag of jewelry. The defendant claimed he bought the jewelry from a nearby yard sale. However, when the officer took the defendant to the yard sale to confirm his story, the homeowner denied ever owning the jewelry. The defendant was eventually arrested for two prior burglaries.

The defendant filed a pretrial motion to suppress, arguing that the officer lacked reasonable suspicion or probable cause to stop him. Because of this, the defendant claimed that the jewelry should have been suppressed. The court denied the defendant’s motion, and the defendant pleaded guilty to one count of burglary. Importantly, the count of burglary that the defendant pleaded guilty to was not the one related to the jewelry.

Unduly Suggestive Identifications in New York Criminal Cases

March 25, 2020 | Tilem & Associates

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.

Appellate Court Discusses New York’s Tampering with Evidence Statute in Recent Marijuana Possession Case

March 13, 2020 | Tilem & Associates

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.

New York Court Grants Motion to Suppress Based on Officer’s Illegal Stop

March 1, 2020 | Peter Howard Tilem

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.

Supreme Court Hears Case that May Affect People with Several New York Convictions

February 2, 2020 | Tilem & Associates

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.

New York Court Reverses Robbery Conviction Based on Illegal Arrest and Tainted Identification

January 5, 2020 | Tilem & Associates

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.

New York Court Affirms Defendant’s Larceny Conviction

December 30, 2019 | Tilem & Associates

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.”

Court Rejects Defendant’s Motion to Suppress Eyewitness’s Identification

December 5, 2019 | Peter Howard Tilem

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.