New York Criminal Attorney Blog

Defendant’s Challenge to DWI and Assault Convictions is Rejected by Appellate Division

March 6, 2022 | Peter Howard Tilem

An arrest for driving while intoxicated (DWI) can be a serious charge with serious consequences in the event of a conviction. If an intoxicated driver also injures another person in an accident while driving under the influence, they may be charged with criminal assault as well as the DWI offense. Because of the serious implications that both DWI and violent crime charges can have on one’s record, it is important for people charged with such crimes to mount a strong legal defense from the start. The Appellate Division of the Supreme Court of New York recently addressed an appeal by a man who was convicted of DWI and assault charges after being involved in a head-on collision while allegedly intoxicated.

According to the facts discussed in the appellate opinion, the defendant was arrested after he was involved in a crash where he crossed over a double yellow line and struck another vehicle, seriously injuring the occupants. After consenting to a blood test, the defendant was found to have a blood alcohol content in excess of the legal limit, and he was charged with DWI and assault offenses. The defendant attempted to suppress the results of the blood test, arguing that there was no warrant or probable cause for the officer to draw his blood. The appellate court rejected the defendant’s arguments, finding that he had consented to the blood draw and no warrant was needed. The defendant also appealed his conviction on other grounds, which were not addressed by the court because his trial counsel did not make the appropriate objections to preserve those arguments for appellate review.

Trial judges who make legal errors that violate the rights of defendants can be reversed by appellate courts if the proper procedures are followed. One requirement for a ruling to be reversed on appeal is that the ruling was objected to at the lower level. When a criminal defense attorney fails to properly object to an erroneous trial court decision, their client may not be able to get the appropriate relief, even on appeal. Rather, it is essential that a trial attorney “preserve” an issue for appeal by making a timely objection during the trial. Because of this, it is essential for defendants to retain experienced and knowledgeable criminal defense counsel as early in the process as possible.

New York Court Denies Defendant’s Appeal in Recent Murder Case

February 28, 2022 | Peter Howard Tilem

In a recent case coming out of a New York court, the defendant’s appeal of his murder conviction was denied. In 2017, the defendant was convicted of murder in the second degree, assault in the second degree, aggravated criminal contempt, criminal contempt in the first degree, and assault in the third degree. Taking issue with his guilty verdict, the defendant appealed; however, the court rejected the defendant’s argument and affirmed his original convictions.

Facts of the Case

According to the opinion, the defendant and the victim were alone together in an apartment one evening. The pair were arguing at the time of the victim’s death, leading the jury to later infer that the defendant had some kind of motive to hurt the victim. After the death, a medical examiner conducted an autopsy on the victim’s body. That examiner discovered that the victim died from hemorrhages in her skull caused by blows to the head. She also had hemorrhages in her larynx, which would have been due to some kind of external compression. Additionally, the autopsy revealed that the victim had experienced fatal damage to her liver, which could have only come from blunt force trauma.

Reviewing this report from the medical examiner along with other evidence presented at trial, the jury found the defendant guilty of murdering the victim.

Court Grants Motion to Suppress ID in Recent New York Burglary Case

February 22, 2022 | Peter Howard Tilem

Recently, a state appellate court issued an opinion in a New York burglary case discussing the defendant’s motion to suppress evidence of an identification made by a law enforcement officer. Ultimately, the court concluded that the procedures used by police to conduct the identification were “unduly suggestive,” agreeing with the defendant. Thus, the court reversed the lower court’s ruling, granted the defendant’s motion to suppress, and ordered a new trial. In the subsequent trial, the prosecution will not be permitted to use evidence of the complaining witness’s identification unless there is an independent source for the identification.

The Facts of the Case

According to the court’s written opinion, the defendant was arrested for residential burglary. During the investigation, without prompting from the police, the complaining witness found a Facebook picture of the defendant and told police that’s who had burglarized their home. Based on this information, police officers located an old arrest photo of the defendant and asked the complaining witness if it was the same person. The complaining witness made a positive identification.

The defendant filed a pre-trial motion to suppress the identification testimony, claiming it was unduly suggestive. The trial court disagreed, denying the defendant’s motion. The trial court denied the defendant’s motion on the basis that any suggestiveness in the identification procedure was not the result of any improper conduct of law enforcement. The defendant was convicted by a jury. He then appealed.

New York Court Denies Defendant’s Appeal in Sexual Assault Case

February 16, 2022 | Peter Howard Tilem

In a recent opinion from a New York court, the defendant in a child sexual assault case lost his appeal after he attempted to argue that the prosecution had behaved unfairly during his trial. The court disagreed, reviewing the prosecutor’s conduct and concluding that it was all acceptable. The defendant’s verdict was thus affirmed and he was sentenced to time in prison.

Facts of the Case

According to the opinion, the victim, a child born in 2009, told another student on the bus to school that the defendant (her mother’s partner) was engaging in sexual conduct with her. Authorities soon learned of this alleged sexual assault, and the defendant was charged with predatory sexual assault against a child as well as attempted rape in the first degree. The County Court dismissed the defendant’s rape charge, but the prosecution proceeded with a jury trial to rule on the predatory sexual assault charge.

As a result of the trial, the defendant was convicted and sentenced to 20 years to life in prison. He subsequently appealed the jury’s verdict.

Defendant’s Appeal Denied in New York Gun Case

February 10, 2022 | Tilem & Associates

In a recent New York gun case, the court in its decision denied the defendant’s appeal. Originally, the defendant was convicted of criminal possession of a weapon after he had an altercation with a woman on the side of the road. On appeal, he argued that there was not enough evidence to support the guilty verdict. The court sustained the verdict, disagreeing with the defendant’s main argument.

Facts of the Case

The incident leading to this case unfolded one evening in 2017 when the defendant was charged after he got into a fight with a woman on the street. According to the victim, she and a friend were walking one evening when they were almost hit by a red car that appeared to be recklessly driving. The defendant in this case emerged from the passenger seat, beginning the altercation between the defendant and the victim. The defendant punched the victim in the face, grabbed her purse, and ran to the car. At the same time, the victim saw the defendant grabbing what appeared to be a gun.

The defendant then yelled at the victim, “I’m a shooter” and ran away. Several hours later, police officers found the defendant and searched his home. During this search, officers found a loaded handgun hidden in a boot. Later, the defendant was indicted and charged with criminal possession of a weapon in the second degree, menacing in the second degree, and assault in the third degree.

New York Court Considers Defendant’s Right to a Speedy Trial, Remanding His Case to a Lower Court

February 4, 2022 | Peter Howard Tilem

Recently, a New York court considered a defendant’s appeal that too much time had elapsed between his DWI charges and the date of the trial that resulted in his guilty verdict which was a violation of his statutory and constitutional speedy trial rights. The defendant argued that his original guilty verdict should be overturned because his trial was unreasonably delayed. The court considered the defendant’s appeal and decided it did not have enough evidence to make an informed decision on the matter at hand. Thus, the higher court sent the case back to the lower court to consider the speedy trial issue which was never raised in the lower Court.

Facts of the Case

According to the opinion, the defendant was driving in March 2017 when he was pulled over by a police officer. The officer asked the defendant to step out of his car and perform a variety of field sobriety tests. The defendant performed poorly, and he was taken into custody. Tests revealed that the defendant’s blood alcohol content was .13%. He was charged with two misdemeanor counts of driving while intoxicated and one count of aggravated unlicensed operation of a motor vehicle in the first degree.

New York Court Rejects Defendant’s Challenge to Lineup Procedure in Recent Drug Case

January 27, 2022 | Peter Howard Tilem

In a recent New York drug case, the defendant’s attempt to appeal his guilty verdict was unsuccessful. On appeal, the defendant argued that the lineups used to identify him as a drug dealer were not in line with proper procedures, and thus that the decision should be reversed. The court disagreed, ultimately affirming the verdict as well as the defendant’s sentence of time in prison.

Facts of the Case

According to the opinion, investigators began looking into the defendant when they suspected he was involved in several drug transactions. As part of the investigation, officers used a confidential informant. They had the informant look at a group of photos then identify the defendant to let them know which person in the group of photos had been illegally selling drugs.

In two different picture lineups, sometimes referred to as photo arrays, the confidential informant identified the defendant as someone who they knew to be dealing drugs. The investigation led officers to charge the defendant with two counts of criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substance in the third degree, and two counts of conspiracy in the fourth degree.

Can You Take Your Lawfully Possessed Gun on Vacation to St. Thomas the US Virgin Island

January 21, 2022 | Peter Howard Tilem

We wrote a very popular blog about whether you can take your lawfully possessed pistol on vacation with you in Puerto Rico, subsequent to the easing of gun laws in Puerto Rico. Now we explore the gun laws in the US Virgin Islands and in particular whether you can take your pistol to St. Thomas, St. John and St. Croix.

At first glance, the US Virgin Islands appears to have extremely liberal reciprocity laws however that appears to be far from reality. A review of the USVI Police website clearly indicates that visitors are required to declare their firearms before arrival in the US Virgin Islands and to immediately report to the US Virgin Island Police Substation upon

USVI Police Airport Substation

New York Court Agrees with Defendant in Gun and Drug Possession Case, Vacating Guilty Verdict

January 18, 2022 | Tilem & Associates

In a recent New York case involving a defendant who was convicted of possession of a controlled substance and criminal possession of a weapon, the court reversed the original lower court’s guilty verdict. On appeal, the defendant argued that incriminating evidence found by police officers should have been suppressed since the officers did not have reason to believe they could search through his private apartment. The court agreed with the defendant, reversing the judgment in the case.

Facts of the Case

According to the opinion, police officers originally responded to a 911 call made by a woman who reported that her roommate was unconscious on the floor of their apartment. A team of officers and medical personnel arrived at the apartment and discovered that the unconscious woman had died on the floor of the bathroom.

Soon after discovering the woman was dead, an officer decided to conduct a brief search of the residence. As he looked around, he found a digital scale, some powdery residue, and a bag with illegal drugs in the bedroom. Based on these findings, officers proceeded to obtain a warrant to search the entire apartment. They found not only illegal drugs but also a handgun, and the defendant was ultimately charged and convicted for criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree.

ONLINE SPORTS BETTING JUST BECAME LEGAL IN NEW YORK – HERE IS WHAT YOU NEED TO KNOW

January 12, 2022 | Peter Howard Tilem

New York criminal law has a large number of crimes related to illegal gambling on the books. Beginning January 8, 2022, the New York gaming commission gave their approval to four operators to start taking online bets from anywhere in the State including from a person’s own living room a bar or from the street. New York appears to be at least the 18th State to approve some form of online sports betting which has become increasingly popular in the last few years. New Jersey, Pennsylvania and Connecticut already allow online sports betting.

Last April, then Governor Cuomo authorized the New York State Gaming commission to start approving online gaming licenses as part of the State budget in an attempt to get such much needed extra revenue after the COVID lockdowns. New York is taxing gross revenues made by online betting operators at a whopping 51% which is significantly higher than other States and is likely to generate significant revenue for New York.

The way was paved for online sports betting in New York in 2018 when the United States Supreme Court struck down a Federal ban on sports betting. In 2019, New York allowed its brick and mortar casinos to start taking sports bets. The problem is that the New York State Constitution bans gambling. This means that even the Governor could not pass a law that allows online sports betting. However, the Constitutional ban has several exceptions including the State Lottery, Horse Racing and up to 7 private casinos. No exception is made for online gambling. However, the State found a work around. They will be storing the servers for the online sports betting at one of the 7 private casinos that is already authorized to operate in New York.