New York Criminal Attorney Blog
In a recent case decided in a New York appellate court, the defendant unsuccessfully appealed his conviction for criminal possession of a weapon in the second degree. On appeal, one of the defendant’s main arguments was that the trial court had improperly denied his motion to suppress; according to him, evidence of the gun he possessed was unfairly used against him during trial and that under the exclusionary rule the fruit of an unlawful search should not be used as evidence. Disagreeing with the defendant, the court denied the appeal.
Facts of the Case
The opinion included a retelling of the following facts: the defendant in this case was in his car one day in 2017 when the police pulled him over. According to the opinion, the police had received a 911 call that the defendant, who was a parolee wanted on an outstanding warrant, had been spotted as a passenger in a certain vehicle. The officers tracked down the car and followed it, eventually pulling the defendant over to investigate.
While one of the officers approached the car, the defendant immediately began to run away. As he was running, the defendant threw a black object, which the police believed was a handgun, over a fence. Officers arrested the defendant and went to find the item the defendant had thrown over the fence, which was in fact a handgun.
The defendant was criminally charged and later convicted of criminal possession of a weapon.
The Decision
On appeal, the defendant argued that the trial court should have granted his original motion to suppress incriminating evidence, to wit: the gun. When the defendant filed this motion to suppress, only one judge considered his argument and determined that it would be inappropriate to suppress the evidence at issue. A second judge then reopened the suppression hearing, which created confusion as to whether or not the motion was going to be granted. According to the defendant, having this second judge replace the first judge constituted a violation of New York law. The second judge was not physically present for the original hearing on the motion to suppress, thus this second judge should not have been allowed to ultimately decide on whether or not to grant the motion.
The court rejected this argument, maintaining that it was acceptable for the second judge to make a decision on the defendant’s motion. All the second judge was doing, said the court, was allowing for additional questioning to take place, and this second judge decided that this process did not elicit any new facts. Thus, the second judge only affirmed the first judge’s findings and conclusion, which was not a violation of New York criminal procedures.
Because the second judge was within his rights when deciding on the motion to suppress, the defendant’s appeal was denied.
Have You Been Charged with Possession of a Weapon in New York?
At Tilem & Associates, we go above and beyond to make sure your rights are well defended. If you are facing criminal charges for possession of a weapon, give us a call so that we can walk you through your options and make sure you have the strongest case possible moving forward. For a free and confidential consultation with a New York criminal defense lawyer, call us today at 877-377-8666.