New York Criminal Attorney Blog

The Confrontation Clause of the US Constitution and Criminal Law

September 5, 2022 | Peter Howard Tilem

The US Constitution protects many rights of Americans accused of crimes. One of the critical protections of the Constitution is the confrontation clause. The Confrontation Clause is included in the 6th Amendment and states in pertinent part: “the accused shall enjoy the right…to be confronted with the witnesses against him.” Enforcing the confrontation clause ensures that defendants are not convicted upon anonymous testimonies. Furthermore, the confrontation clause provides that a defendant or their attorney will have the opportunity to cross-examine any witnesses who offer testimony or evidence that the defendant is guilty of a crime. Further, the confrontation clause prohibits the reliance on hearsay testimony to convict the accused.

Like most constitutional protections, the confrontation clause has its limits and exceptions, as evidenced by a recent New York Court of Appeals decision that affirmed a defendant’s murder conviction despite confrontation clause issues.

The defendant in the recently decided case was involved in a neighborhood fight with several acquaintances, when he allegedly went home, returned with a firearm, and shot into a crowd. Bullets fired by the defendant allegedly struck and killed a two-year-old child. Based on eyewitness testimony, authorities initially arrested another man for the crime. After further investigation and DNA analysis of clothing from the scene, police decided that the defendant was the actual shooter, and he was arrested and charged. The initial suspect quickly pleaded guilty to a gun charge and was released without any charges related to the murder.

New York Court Denies Defendant’s Appeal in New York Criminal Assault Case, Rejecting Defendant’s Claim That He Lacked Requisite Criminal Intent

August 29, 2022 | Peter Howard Tilem

In a recent New York criminal assault case, the defendant unsuccessfully appealed his conviction of assault in the first degree. In the appeal, the defendant argued that the prosecution failed to prove his guilt by legally sufficient evidence because his intoxicated state when the crime was committed rendered him incapable of forming the requisite criminal intent. The appeals court denied his case, finding his claim unpreserved for appellate review. Further, the appeals court found that the evidence was legally sufficient to establish beyond a reasonable doubt that the defendant manifested the requisite criminal intent. Finally, the appeals court was satisfied that the verdict of guilt was not against the weight of the evidence. Generally, voluntary intoxication, either by some drug or alcohol, is not a defense to a criminal prosecution except to the extent that it negates the required culpable mental state to commit the crime.

Facts of the Case

According to the opinion, the defendant was involved in an altercation while intoxicated and was subsequently taken into custody by the police. The defendant raised several arguments on appeal. The defendant argued primarily that due to his intoxicated state when the crime was committed, he was incapable of forming the requisite criminal intent. The defendant also contended that the lower court erred in excluding a hearsay statement made to the police after the defendant was taken into custody. Further, the defendant claimed that beyond the hearsay issues, the lower court’s evidentiary ruling deprived him of his constitutional right to present a defense. Finally, the defendant argued that he was deprived of his federal or state constitutional right to the effective assistance of counsel.

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 Defendant Unsuccessfully Appeals Conviction for Criminal Possession of a Weapon

August 14, 2022 | Peter Howard Tilem

Recently, the New York Appellate Division, Third Department issued an opinion in a case involving a defendant’s attempt to reverse his conviction for a gun crime. On appeal, the defendant asked the court to review the evidence from trial and come to the conclusion that there was insufficient evidence to support the jury’s guilty verdict. After going through both the evidence from trial as well as the defendant’s argument on appeal, the court disagreed with the defendant and ultimately concluding that the evidence was sufficient and that the defendant’s appeal should be denied.

Facts of the Case

According to the opinion, the defendant activated a security alarm while he was on his way out of a sporting goods store in May 2017. Security officers immediately came to the defendant and asked him to remove his backpack so that he could walk by the sensor. Again, the defendant set off alarms. Eventually, a security guard asked the defendant to empty his pockets, and the defendant revealed four boxes of ammunition that he had stolen.

The defendant was taken to the police station, and officers found a slungshot in his backpack when they searched the items he had on his person. A few hours later, the defendant’s granddaughter, with whom he was staying, turned over the defendant’s belongings to the police. In those belongings, the officers found a firearm. Upon searching a storage unit that belonged to the defendant, the officers also found four firearms, ammunition, and three additional slungshots.

New York Defendant Unsuccessfully Argues Appeal in Weapons Case

August 7, 2022 | Peter Howard Tilem

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.

New York Court Denies Defendant’s Appeal in New York Drug Case, Rejecting Defendant’s Motion to Suppress Statements to Law Enforcement Officials

August 1, 2022 | Peter Howard Tilem

In a recent case involving a New York drug crime, the defendant unsuccessfully appealed his conviction of three counts of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree. In the appeal, the defendant argued that statements taken in violation of his Miranda rights should have been suppressed at trial. The appeals court denied his case, finding the defendant’s spontaneous statements were made outside of custodial interrogation and the officers were permitted to question him in order to best respond to his urgent medical needs. Generally, for a statement yo be suppressed because Miranda warnings were not given, the statement in question must be the result of “custodial interrogation.” That is a statement that was made in response to a question while the person being questioned is in “custody” as opposed to perhaps bein detained temporarily for investigation.

Facts of the Case

According to the opinion, the defendant was arrested following an investigation by law enforcement officials into a suspected drug smuggling and sale operation. Operating under information from a confidential informant, law enforcement officials surveilled and observed several drug transactions where the defendant sold drugs to the confidential informant. In response, a search warrant was executed and physical evidence was recovered. The defendant was taken into custody and transported to a correctional facility. At the correctional facility, the officers observed the defendant to be sweating, warm to the touch, and spitting out a chewed plastic bag. These observations gave rise to a reasonable inference that the defendant may need medical attention because he had consumed narcotics.

The Decision

The defendant raised several arguments on appeal. The defendant argued statements he made to law enforcement prior to being notified of his Miranda rights should be suppressed. Additionally, the defendant argued the sentence issued by the county court penalized him for exercising his right to a jury trial. According to the defendant, statements made to law enforcement officers as he was transported to the correctional facility were during custodial interrogation and in violation of his Miranda rights. Further, the defendant argued statements taken by law enforcement officers at the correctional facility should also have been suppressed under Miranda.

Successfully Moving to Controvert a Search Warrant – Evidence Suppressed and Case Dismissed

July 26, 2022 | Peter Howard Tilem

As we have discussed in the past often in New York criminal cases suppression of the evidence may be your best (or only defense. As has been widely reported in the media, all charges were recently dismissed against one of our clients after the Court granted our motion to controvert a search warrant and suppressed all of the evidence recovered during a search of our client’s house. While in can be difficult to have a motion to controvert a search warrant granted by the Court, recent case law makes it easier to file and win such a motion. When a motion to controvert a search warrant is granted, the Court is deciding that the search warrant was not valid and therefore the evidence obtained during the execution of the search warrant may not be used in Court.

Article 710 of the New York Criminal Procedure Law sets out the procedure to file a motion to suppress tangible evidence that is obtained as a result of an “unlawful search and seizure.” The United States Court of Appeals for the Second Circuit, which covers New York State has established that a warrant must at a minimum have three components. One is that the warrant must identify the specific crime for which law enforcement has established probable cause. Then the warrant must particularly describe the places that are allowed to be searched and the things that may be seized with their relationship to the crime.

New York’s highest Court, the New York Court of Appeals has further refined New York’s warrant requirement. (See, People v. Brown, 96 NY2d 80). At a minimum the warrant must particularly describe the places to be searched and the things to be seized. The idea is to ensure that the police have no discretion in either the places to be searched or the things that are permitted to be seized. Exploratory warrants that give police the discretion to look around for evidence are unlawful. If either of those elements are lacking the warrant may be invalid and any evidence suppressed. This is true even though a Judge has signed and authorized the search warrant.

Defendant Appeals Drug Conviction, Citing Inadequacy of Arresting Officer’s Original Statement

July 20, 2022 | Tilem & Associates

In a recent New York drug case, the defendant successfully appealed his conviction for drug possession. When the defendant was originally charged in 2018, the officer arresting him failed to provide specific enough information that would allow a court to conclude that the defendant possessed illegal drugs. Because the defendant successfully argued that this officer’s error meant that he never should have been charged and convicted in the first place, the court of appeals reversed his guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged approximately four years ago with criminal possession of a controlled substance in the seventh degree. When the arresting officer wrote out the accusatory statement that is necessary in every criminal case, the officer described the drug as “synthetic cannabinoid/synthetic marijuana.”

The defendant pled guilty to possession and was sentenced to a conditional discharge. He later appealed after consulting with an attorney, learning that the officer’s original statement did not provide enough specificity to qualify as adequate grounds for the State to criminally charge him. Originally, the court denied the defendant’s request, but the defendant appealed once more. This time, a higher court concluded that the defendant had successfully argued his case and that his conviction should indeed be reversed.

New York Court Denies Defendant Relief Under Statute Guaranteeing Right to Speedy Trial

July 13, 2022 | Tilem & Associates

We have discussed in past blogs how New York’s speedy trial statute can be effectively used in many criminal cases. In a recent case coming out of a New York court, the defendant appealed convictions for three misdemeanor counts and three traffic infractions that had arisen in 2014. On appeal, the defendant argued that an amendment to New York’s speedy trial statute should apply retroactively; thus, he was entitled to a dismissal. The court of appeals considered the defendant’s argument but ultimately disagreed, explaining that the statute in question did not apply to the offense for which the defendant was seeking relief.

Facts of the Case

According to the opinion, approximately eight years ago, the defendant was criminally charged based on traffic violations. 17 months after being charged, the defendant moved to dismiss the charges based on a New York statute that guarantees defendants the right to a speedy trial. The statute includes provisions stating that if a defendant is subject to unreasonable delay because the prosecution is not ready for trial, that defendant can use this statute to argue for a dismissal. At the time of his motion to dismiss, however, the statute did not apply to defendants charged with traffic infractions. Thus, the defendant’s argument was unsuccessful.

In 2019, however, the legislature changed the language of the New York statute, explicitly including defendants charged with traffic infractions as individuals eligible for dismissal because of unreasonable prosecutorial delay. Upon hearing this news, the defendant again brought up this argument, stating that now he was in the class of people that could benefit from the statute. The court of appeals was thus faced with the decision of whether or not the defendant’s case could indeed be dismissed because of the statute.

New York Defendant Denied Right to Jury Trial in Recent Criminal Case

July 5, 2022 | Peter Howard Tilem

In a recent New York sexual abuse case, the defendant unsuccessfully argued that he had the right to a jury trial under the U.S. Constitution. After being charged with and several sex crimes, the defendant asked for a jury trial so that he could get a fair hearing before potentially being found guilty, and thus being found deportable back to his country of origin. Because the court of appeals disagreed with the defendant’s main argument, it ultimately denied the appeal.

Facts of the Case

According to the opinion, an undercover police officer was standing on a train platform in June 2015 when he observed the defendant standing nearby. The defendant seemed to be masturbating, although the officer was not entirely certain what was happening at the time. A few minutes later, the defendant pushed himself onto a nearby woman, then ran away to board a train. Immediately, the defendant pushed himself onto a second woman.

The defendant was charged with two counts of forcible touching, two counts of sexual abuse, and one count of public lewdness. Because the defendant was not a U.S. citizen, he faced the threat of potential deportation if convicted of the crimes. The crimes were Class B misdemeanors, which means that the defendant did not have the right to a jury trial under state law – he could only secure a jury trial if the misdemeanors had been Class A.