New York Criminal Attorney Blog

THE CONCEALED CARRY IMPROVEMENT ACT WHERE WE STAND FOUR MONTHS LATER

November 9, 2022 | Peter Howard Tilem

Just about one week after the United States Supreme Court delivered its ground breaking decision in Bruen affirming the Constitutionally protected right to carry a gun in public and addressing the sanctity of the Second Amendment, Governor Hochul and the New York State Legislature convened an extraordinary legislative session and passed the “Concealed Carry Improvement Act. The purpose of the CCIA was to make the lawful carry of a firearm so difficult, so constrained and so limited that no one would choose to carry their firearm for fear of being charged with a felony. The thrust of the law was to create numerous sensitive and restricted locations where a licensed citizen could not carry firearms and to make the application process unduly burdensome.

The law was almost immediately after passage challenged in numerous Court proceedings. New York State rather than defending the law on the merits chose to defend the law mostly with the procedural argument that because the Plaintiffs challenging the law had not been arrested or suffered any harm they did not have standing to challenge the law. Now after several decisions, here is a partial list of what is still enforceable under the CCIA.

In the Western District of New York, on November 3, 2022, Judge Sinatra stayed the enforcement of the provisions of the CCIA which prohibited carrying a firearm in places of worship.

The Importance of a Competent Trial Attorney to Preserve all Potential Appellate Issues

November 7, 2022 | Peter Howard Tilem

Criminal defendants in the State of New York may often feel like they are playing Russian roulette with all of the variables affecting their case which may be out of their control. The assignment of a certain prosecutor, judge, or jury to a case can have an outsized influence on the result of a case. When defendants are convicted upon illegal or improper evidence and tactics by the state, the right to an appeal can be the final chance a defendant has to vindicate themselves from a conviction. The New York Appellate Division recently addressed an appeal that was filed by a defendant who had been convicted of several violent crimes and challenged the police and prosecution conduct pertaining to his arrest and conviction.

The defendant in the recently decided appeal was convicted in early 2020 of manslaughter and several lesser crimes after a jury trial. The defendant appealed his conviction, arguing that the trial court made several errors in his prosecution. The defendant’s primary challenge was to the use of a police lineup for purposes of identification. Before his prosecution, the defendant was included in a lineup with several others. Under New York law, investigators are allowed to use a police lineup for identification purposes, but the participants must be sufficiently similar in appearance to the defendant so as to not orient the witness toward the defendant. The Appellate Division determined that the other participants in the lineup used in this case met that requirement, and the defendant’s appeal of this issue was rejected by the court.

The defendant also challenged a certain line of questioning pursued by the prosecutor when the defendant himself was testifying in his defense. The prosecutor asked the defendant to state on the record whether another witness was lying to the jury. The court determined that this question was not proper, however, the defendant’s trial attorney failed to object to the question at the time it was asked, and the court refused to consider the issue because it was not properly preserved for appellate review. In issues of grave error, an appellate court may address an unpreserved issue, but the bar is much higher to pass for such consideration. Because the defendant’s trial counsel failed to object to the questioning, the court refused to reverse the defendant’s conviction.

The Process of Applying for a Gun Permit in New York City

November 1, 2022 | Peter Howard Tilem

In the state of New York, it is necessary to have a permit in order to carry or possess a handgun. The process of applying for a gun permit can be daunting, but we’re here to help. Keep reading to learn more about the steps you need to take in order to obtain a gun permit in New York City.

1. Determine if you are eligible for a gun permit. In order to be eligible, you must be 21 years of age or older, have no or a minimal criminal record (you may not have a felony conviction), and be a resident of or be be employed within New York City. If you meet these criteria, you can move on to the next step.

2. Collect the necessary documentation. You will need to bring a completed application, two passport-style photos, and the appropriate fee to the NYC Licensing Division, along with other documentation to establish identity, residence and employment. You can find the application and fee schedule on the NYC Licensing Division website.

New York Court of Appeals Sides with Defendant and Suppresses Incriminating Statements

October 22, 2022 | Peter Howard Tilem

Earlier this month, an appellate court in New York ruled in favor of a defendant after he was found guilty of both criminal possession of a weapon and possession of controlled substances. On appeal, the defendant argued that the lower court was incorrect when it decided to admit incriminating statements he had made to a police officer before being given any Miranda warnings. Considering the context of the defendant’s statement, the appellate court reversed the lower court’s decision.

Facts of the Case

According to the opinion, the defendant was charged with several crimes in June 2021: criminal possession of a weapon, unlawful sale of dangerous substances, and criminal use of drug paraphernalia. Because the defendant had to receive medical treatment immediately following an incident with the weapon, he was taken to the hospital and put under emergency care.

A police officer was stationed outside the defendant’s hospital room, and the defendant proceeded to call the officer to his bed and say to him, “I’m beat up.” The officer asked the defendant exactly what happened, and the defendant explained the circumstances around how he illegally came into possession of a weapon. The officer then testified as to these statements before the court, using them as part of the State’s case against the defendant.

New York Court of Appeals Affirms Lower Court Decision, Rejecting Defendant’s Appeal

October 15, 2022 | Peter Howard Tilem

In a recent New York criminal defense case, a New York Appellate Court affirmed the trial court decision, finding that the court had properly denied the defendant’s motion to suppress evidence in a case involving illegal possession of guns and illegal possession of drugs. In the appeal, the defendant challenged the denial of his motion to suppress his statements and certain physical evidence. The defendant was charged with criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree (four counts), criminally using drug paraphernalia in the second degree, criminal possession of a weapon in the fourth degree, criminal possession of stolen property in the fourth degree and three traffic violations.

Facts of the Case

According to the opinion, a state trooper observed the defendant’s vehicle change lanes without signaling and cross over a rumble strip on the highway. The state trooper proceeded to initiate a traffic stop, pulling the defendant over. Upon approaching the defendant’s car, the state trooper observed the defendant sitting in an “unnatural position” that appeared to shield something from view. In response to questioning, the defendant stated that he was returning from work. At that point, the state trooper asked the defendant to exit the vehicle, and the defendant complied. The state trooper continued to question the defendant, at which point, the defendant stated that he was returning from a friend’s house, which was inconsistent with his original answer. At this point, the state trooper decided to run a “file check” on the defendant and discovered he was on parole. The state trooper and his partner then asked for permission to search the car, and according to the trooper, the defendant answered in the affirmative.

New York Supreme Court Sides with State in DWI Case

October 8, 2022 | Peter Howard Tilem

In a recent New York DWI case that came before the Appellate Division of the Supreme Court, the defendant argued that his criminal convictions should be reversed because the police officers did not give him adequate Miranda warnings before interrogating him about his charges. On appeal, the court looked at the circumstances of the defendant’s case and determined that no warnings were necessary because he was not in “custody” at the time of the questioning. Ultimately, then, the court disagreed with the defendant’s argument and affirmed the convictions for aggravated DWI and aggravated vehicular homicide.

Facts of the Case

According to the opinion, police officers and emergency responders came immediately to the scene of an automobile collision after receiving reports that it had taken place. When the officers first arrived at the scene, the defendant was face-down and injured in a ditch. While the defendant waited on an ambulance to arrive, the police officers placed him in the back of their patrol vehicle. Sitting in the back of the car, the defendant made several incriminatory statements about the accident in question.

It was later discovered that the defendant was intoxicated while driving. Tragically, the passengers in the second vehicle died as a result of the crash, and the defendant was charged with aggravated driving while intoxicated as well as aggravated vehicular homicide. The defendant pled guilty, and he was subsequently convicted and sentenced to time in prison.

New York Court Denies Defendant’s Appeal in Firearm Case, Despite Argument that Warrant Was Unauthorized

October 1, 2022 | Peter Howard Tilem

In a recent opinion issued by an appellate court in New York, the defendant’s appeal of his sale of firearm conviction was denied. Originally, the defendant was charged with sale of a firearm in the first degree and criminal sale of a firearm in the second degree. A jury found him guilty of both crimes, and he promptly appealed, arguing that the officers’ search warrant was unauthorized and thus that the evidence they found should have been suppressed.

Facts of the Case

According to the opinion, the defendant was riding a bus from Florida to New York when police officers entered the bus without prior notice. The officers approached the defendant and immediately showed him a search warrant that authorized them to search the suitcase he had brought on board. Feeling as if he had no choice in the matter, the defendant handed over the suitcase.

The officers found multiple firearms in the suitcase, and the defendant was charged accordingly. He appeared for his trial, and in June 2017, and received a guilty verdict. The defendant appealed his verdict pro se, meaning he did not have an attorney to represent him but instead filed the appeal on his own.

New York Court Denies Defendant’s Appeal in Aggravated Vehicular Assault Case

September 23, 2022 | Peter Howard Tilem

Recently, an appellate court in New York ruled on a defendant’s appeal in a case involving assault, manslaughter, and reckless endangerment. The defendant in this case argued that the search warrant leading officers to incriminating evidence against him was invalid and that his guilty verdict should be reversed. On appeal, the court disagreed, deciding that the warrant was valid and that the officers did indeed have probable cause to search the defendant. The defendant’s appeal was ultimately denied.

Facts of the Case

According to the opinion, the defendant was driving early one morning in March 2015 when he collided head-on with a tractor-trailer. Police reports indicated that the defendant had been driving in the opposite direction of traffic at 75 miles per hour and that he had consumed several alcoholic beverages before driving. Tragically, two of the passengers in the defendant’s car died from injuries sustained in the accident.

A police officer then applied for a warrant to gain access to the defendant’s blood vials that had been drawn immediately after the accident. The criminal court issued the warrant, and the officer confirmed that the defendant was intoxicated while operating his vehicle.

Court Denies Appeal in New York Gun Crime Case, Rejecting Defendant’s Motion To Suppress Physical Evidence

September 17, 2022 | Peter Howard Tilem

In a recent New York case involving the illegal possession of a firearm, the court denied the defendant’s motion to suppress physical evidence. In the appeal, the defendant argued that the initial police pursuit of the defendant that led to the recovery of the evidence in question was not legal, therefore barring the use of the gun at trial. The appeals court denied his motion, finding first that the police pursuit was lawful, and as a result, the motion to suppress was denied.

Facts of the Case

According to the opinion, the police officer was engaged in his normal duties when he was patrolling near the Woodside Houses, a New York City Housing Authority complex, in Woodside, Queens. The officer then observed a group of three or four individuals gathered together on a bench and recognized one of them, the defendant, as the subject of two bench warrants that he had received and reviewed prior to March 16. Both bench warrants were in connection with two pending criminal proceedings. Each contained a photograph of the defendant and identifying physical characteristics, including height, weight, age, and race. As the officer and the defendant made eye contact, the defendant began running towards a nearby building.

The officer then observed the defendant make a motion towards the elevator before disappearing into the stairwell. Despite sweeping the building, the police officers were unable to locate the defendant. The officers then referred to video surveillance footage of the building and discovered that the defendant had disposed of a handgun in the elevator before running into the stairwell. An inspection of the elevator revealed a handgun in the shaft. Several days later, the defendant turned himself in.

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.