New York Criminal Attorney Blog

New York Criminal Court Refuses to Allow Prosecution to Introduce Portable Breath Test Result at DUI Trial

September 16, 2021 | Tilem & Associates

Many of our clients who are charged in New York DWI cases are confused by the differences in the two tests that they may have been offered by the police. Very often, police officers will offer a portable breath test (PBT) to a motorist on the side of the road to help them determine whether there is probable cause to arrest someone for DWI. The refusal to take such test is punishable by a traffic infraction which can result in 2 points being assessed on your driver’s license. After a person is arrested for DWI they will be offered the opportunity to take a chemical test by either blood, breath or urine. The refusal to take that test is very serious and can result in a revocation of a person’s driver’s license for a minimum period of one year.

Prosecutors seeking to introduce scientific or technical evidence in a criminal trial have a burden to prove that the evidence is reliable enough to put before a jury. Jurors are not expected to be familiar with the technical specifications of alcohol and drug testing equipment, and prosecutors must show that the methods used by law enforcement to obtain evidence are generally accepted by the relevant scientific community in order to introduce test results as evidence at trial. A New York criminal trial court recently published a decision denying a prosecutor’s request to admit the test results of a portable breath test (PBT) in a defendant’s DUI trial.

In the recently addressed case, the defendant was charged with a DUI offense after he was pulled over by law enforcement officers for violating traffic laws. After he was stopped and the officer claimed to observe signs of intoxication, officers administered a PBT to the defendant, which suggested his blood alcohol content was above the legal limit. As a result of the PBT results, the defendant was arrested and charged with a DUI. Notably, a second non-portable breath or blood test was not administered to the defendant while he was at the police station.

The Importance of Raising Early Challenges to the Admissibility of Evidence in a New York DWI Case

September 8, 2021 | Peter Howard Tilem

One of the most common defenses to a New York DWI offense is challenging the admissibility of the government’s evidence. When police officers investigate someone for driving under the influence of drugs or alcohol, they must respect the constitutional rights of the motorist. For example, a police officer cannot pull over a driver for no reason; they must have either probable cause or reasonable suspicion to believe that an offense occurred. Similarly, police officers cannot ask that every driver take a breathalyzer without justification. If a police officer exceeds the bounds of their authority, any evidence they recovered cannot be admitted at trial.

However, if you wish to challenge the admissibility of evidence, it is imperative that you do so in a timely manner. In a recent case, a New York appellate court rejected a defendant’s appeal because he failed to raise his objections to the admissibility of evidence in a pre-trial motion to suppress.

In that case, the defendant was arrested and charged with two DWI-related offenses. The arrest occurred after police officers used a radar gun to determine the defendant was speeding. As officers approached the car, they identified the smell of alcohol and noticed that he had bloodshot eyes. Officers asked the defendant had been drinking, and he responded that he drank two beers. The officer called backup, who administered a breath test, indicating the defendant was intoxicated.

New York Court Denies Defendant’s Motion to Suppress Gun

September 2, 2021 | Peter Howard Tilem

In a recent opinion from a New York court involving a New York gun case, the defendant’s motion to suppress was denied. The defendant was convicted of gun possession in the third degree and filed a motion to suppress the gun found in his coat pocket during the initial 40 seconds of a traffic stop. The state appellate court denied the motion because they found that the search was not a “level three” detention and that there was reasonable suspicion of criminality.

The Facts of the Case

According to the opinion, a parole officer tipped the police officers of the defendant possibly owning a gun. Police officers conducted a traffic stop, stopping the defendant due to the defendant violating traffic laws and having a suspended license. The officers directed the defendant to exit the vehicle and an officer grabbed the defendant’s arm as he exited the vehicle.

Court Finds Car Stop Unconstitutional in Recent New York Drug Case

August 25, 2021 | Peter Howard Tilem

Recently, a state appellate court issued an opinion reversing a lower court’s decision which denied a defendant’s motion to suppress the drugs that were recovered in a New York drug case. The case involved a traffic stop conducted by police officers who were investigating information that a vehicle would be transporting a large quantity of narcotics. Ultimately, the court concluded that the search of the defendant’s vehicle was unconstitutional based on the information the officers had at the time of the stop.

The Facts of the Case

Police officers intercepted communication indicating that a Ford Explorer would be transporting a large amount of drugs through a particular part of the state on a given night. That night, certain New York State Troopers were told to wait on the highway and stop the Ford Explorer as it passed.

Officers waited for six hours for the Ford Explorer. When they saw it approaching, they stopped the vehicle, arrested the defendant and her codefendant, and searched the car. Officers found a large amount of drugs. No law enforcement ever obtained or sought a warrant for the defendant’s arrest or the search of their vehicle.

What Happens If You Don’t Comply with a Conditional Plea Agreement in a New York Criminal Case?

August 19, 2021 | Tilem & Associates

One of the benefits of working with an experienced criminal defense attorney is that your attorney will often be able to work out a deal with the prosecution. Negotiated plea agreements vary widely, depending on the circumstances, however, the general idea is that you should receive a benefit for accepting responsibility and not making the government take the case to trial.

In some cases, a negotiated plea agreement, or a plea bargain, will result in certain charges being withdrawn. In other situations, the charges remain, but a more favorable sentence is agreed upon. A third option is a conditional plea agreement.

In a conditional plea agreement, you enter a guilty plea on all charges that are a part of the agreement. In addition, you agree to fulfill certain conditions within a specified period of time. In exchange, the prosecution agrees that you will only be convicted of certain offenses if you successfully complete the conditions. However, if you fail to satisfy the condition, the judge will sentence you on all the charges you plead guilty to.

A POLICE OFFICER RESPONDS TO OUR LAST BLOG ABOUT HANDCUFFING A LICENSED GUN OWNER

August 13, 2021 | Peter Howard Tilem

A very close friend of mine who is a retired police officer wrote me a very interesting response to our last blog about whether it is lawful to handcuff a licensed gun owner while an officer verifies the validity and authenticity of a gun license. I know this retired officer to be extremely pro Second Amendment and so it was so interesting to hear from an actual police officer who has had to deal with these issues. The two main take-aways are, in my opinion, that there is a complete lack of training (or at least there was back then) on Second Amendment issues and so much of what happens on the street could be remedied if people (including officers) just act nicely and use their words. I know this particular officer and I know that he is not a bully and rather is very good at obtaining compliance with his words. As he points out, if he was a jack a$$, he probably would me in the law books also. I have reprinted his comments below, verbatim except to remove identifying information.

I just read your post about the Connecticut incident. In my rookie year, I was sent to a house on a report of the homeowner mowing his grass while possessing a firearm in an open carry manner. The complaint was the next-door neighbor who had multiple disputes with the subject over the complainant’s dog.

One month prior, the dog got out and almost bit the man who was mowing the grass while he was unloading groceries from his car.

MAY A POLICE OFFICER HANDCUFF A LICENSED GUN OWNER WHILE HE VERIFIES THE AUTHENTICITY OF THE GUN LICENSE?

August 12, 2021 | Peter Howard Tilem

As the providers of the only pre-paid legal service for gun owners in New York, NY TAC DEFENSE, we are constantly monitoring the law as it pertains to gun ownership in New York. A recent Connecticut case, decided earlier in the week, is worthy of reporting since Connecticut is in the Second Circuit with New York and this case will probably be reviewed by the Court of Appeals in the Second Circuit and any decision will likely become binding law in New York. In the case of Soukaneh v. Andrzejewski, Basel Soukaneh, sued a Waterbury Police Officer who stopped his vehicle one night. The law suit was filed in the Federal district Court for the District of Connecticut. Soukaneh alleged that when he was stopped he handed the police officer his driver’s license and gun license and indicated that he was armed. The Police Officer reacted by handcuffing Mr. Soukaneh while he verified the authenticity of the gun license and while the officer searched the passenger compartment and trunk of the vehicle.

The police officer filed a motion for summary judgment seeking to have the lawsuit dismissed. Among his arguments were that he had probable cause to believe that Basel Soukaneh was in possession of a firearm without a permit until he was able to verify the validity of the permit. Therefore, Police Officer Andzejewski thought he was justified in handcuffing and detaining Mr. Soukaneh. The Court found this conduct to constitute a de facto arrest. The Court strongly disagreed finding that since it was undisputed that the police officer found out that there was a gun in the car either at the same time or after the officer was given the license, that “no reasonable officer” could conclude that they possessed probable cause that Mr. Soukaneh was violating Connecticut law.

The Court likened the firearms license to a driver’s license and concluded that the same way it would be unconstitutional to presume that a driver’s license was invalid and to detain the driver until its validity was verified, it must be unconstitutional to presume that a firearms license was invalid and detain the gun owner until it was verified. The Court found that a contrary finding would “eviscerate Fourth Amendment protections for lawfully armed individuals.”

Cuomo Resigns Effective in Two Weeks

August 10, 2021 | Peter Howard Tilem

It is currently rumored that Governor Andrew Cuomo will resign effective in two weeks. While we have not been able to confirm this with any news source, we believe this to be the case. To be sure Governor Cuomo has been no friend to law abiding gun owners. The SAFE Act which was pushed through by Cuomo in an attempt to pass it without comment or opposition targeted law abiding gun owners including owners of modern sporting rifles, semi automatic rifles and made it more difficult for all gun owners to purchase ammunition. Several of the main provisions of the Safe Act were either found to be unconstitutional or impossible to implement and are not being enforced. These provisions include the 7 round magazine limit and the background checks to buy ammunition.

If it turns out that the rumor is true, Governor Cuomo will not be missed my gun owners.

Court Grants Defendant’s Motion to Suppress in New York Child Abuse Case After Violation of Defendant’s Right to Counsel

July 30, 2021 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York child abuse case requiring the court to determine if an interview conducted by a child protective services caseworker was in violation of the defendant’s right to counsel. Ultimately, the court determined that the interview was indeed a violation of the defendant’s right to counsel and ordered the suppression of all statements obtained from the interview.

Generally, when someone is under investigation for a crime, they have the right to have an attorney present when they are questioned. However, the law surrounding this area is quite nuanced, and there is much litigation over exactly when someone is under investigation and what constitutes “questioning.”

The Facts of the Case

According to the court’s opinion, a Child Protective Services (CPS) caseworker interviewed the defendant while he was in custody for criminal charges. At the time, the caseworker had been working on a task force with law enforcement agencies where she received training on how to interview individuals who are accused of committing sexual offenses. The caseworker was aware that the defendant was being represented by counsel for his criminal matter, but no counsel was present during this interview. During the interview, the defendant admitted to having sexual contact with the victim. The prosecution intended to use this statement at the defendant’s trial.

Court Grants Defendant’s Motion to Suppress Based on Officers’ Contradicting Testimony

July 22, 2021 | Peter Howard Tilem

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine whether it was legal for officers to obtain the defendant’s gun, ammunition, and DNA evidence after a police pursuit. Ultimately, the court determined that the officers gave contradicting testimony about the incident and ordered the suppression of evidence, the firearm, obtained from the police pursuit. The case illustrates the strict procedures that law enforcement must follow when investigating a crime or arresting an individual.

The Facts of the Case

According to the court’s opinion, police officers observed an object bulging out of the defendant’s right waistband. One officer stepped out of the vehicle, causing the defendant to flee. Both officers testified with different versions of events. The first officer stated that she began running after the defendant and attempted to grab him, which led to the defendant dropping a gun. The second officer testified that the first officer attempted to grab the defendant before he began running, causing the defendant to drop the gun before the officer chased him.

The defendant was arrested, and a gun, ammunition, and the defendant’s DNA profile was recovered from the scene. Despite the different testimonies by the officers, the court denied the defendant’s motion to suppress the evidence.