New York Criminal Attorney Blog

The Limits of Appeal When Objections Are Not Raised at Trial

June 20, 2025 | Peter Howard Tilem

In People v. Bacon, the New York Court of Appeals reaffirmed a long-standing rule: if your defense lawyer fails to raise a specific constitutional objection during trial, you may lose the ability to argue that issue on appeal. This decision is a clear warning to anyone charged with a serious crime—the preservation of your rights depends heavily on the conduct and awareness of your attorney during every stage of trial. It is essential to use experienced counsel when facing charges in New York.

What Happened in This Case

The case arose from a robbery and assault in Brooklyn. Two victims gave statements to police officers at the scene. One of them, while being treated in an ambulance, described the attackers, including the defendant. The prosecution did not call either victim to testify at trial. Instead, two police officers testified about what the victims had allegedly said, including identifying information about the defendant.

During the trial, defense counsel made only one specific objection to the officers’ testimony: a hearsay objection to a statement by one victim about what the other had said. The court sustained that limited objection. However, no constitutional objection was made under the Confrontation Clause, which protects your right to cross-examine the witnesses against you.

After the prosecution rested, the defense moved for a trial order of dismissal, arguing that the People’s evidence was not sufficient. Counsel mentioned that the jury could not evaluate the female victim’s physical or mental condition, and noted there had been no chance to cross-examine her. Still, the motion focused solely on the quality and sufficiency of the evidence, not on a constitutional violation.

New Trial Ordered After Court Fails to Excuse Biased Juror in Brooklyn Gun Case

June 5, 2025 | Peter Howard Tilem

If you’ve been arrested and are facing a jury trial, one of the most important stages in a jury trial is jury selection. A single biased juror can jeopardize the fairness of your entire case. In a recent opinion out of Brooklyn, a defendant convicted of criminal possession of a weapon in the second degree secured a new trial—not because of what happened during the shooting or trial itself, but because the trial court failed to remove a prospective juror who openly admitted he couldn’t be impartial.

Facts: A Deli Shooting Leads to a Gun Possession Charge

In May 2018, a shooting occurred outside a deli on Kings Highway in Brooklyn. The defendant was later arrested and charged with several crimes, including second-degree criminal possession of a weapon based on allegations that he had a loaded firearm during the incident.

Domestic Violence and Sentencing Relief Under the DVSJA

May 30, 2025 | Peter Howard Tilem

If you’re a survivor of domestic violence and serving time for a crime you committed while in an abusive relationship, you may be wondering whether New York law allows you to be resentenced based on your trauma. Under Criminal Procedure Law § 440.47, the Domestic Violence Survivors Justice Act (DVSJA) offers exactly that opportunity. But to qualify, you must meet specific criteria—and proving your case takes more than simply showing you were abused. A recent appellate decision out of Nassau County shows exactly where these motions can succeed or fall short.

The Facts Behind the Motion

In 2014, the defendant in this case was involved in a serious car crash that left another driver with life-altering injuries. At the time, she was operating her vehicle while under the influence of drugs. She later pleaded guilty to multiple felony and misdemeanor offenses, including first-degree assault and vehicular assault, and received a ten-year prison sentence as a second felony offender.

NY Court Discusses Prior Bad Acts and the Consent Defense in Recent Rape Case

May 24, 2025 | Tilem & Associates

When you’re accused of a sex crime, one of the most damaging developments in your case can be the admission of past allegations—especially if they involve similar conduct. In People v. Sin, the New York Court of Appeals upheld a conviction for first-degree rape and sexual abuse, ruling that testimony from two of the defendant’s other sisters-in-law about previous attempted sexual assaults was properly admitted at trial. The court found this evidence relevant to the central issue in the case: whether the defendant had criminal intent during the alleged assault.

This ruling is a significant reminder that your prior conduct—even if it never led to criminal charges—can be introduced against you if the court determines it’s legally relevant. Understanding how and why this kind of evidence may be used is essential for anyone facing similar allegations.

The Allegations Against the Defendant

The charges in Sin stemmed from a violent sexual assault reported by the defendant’s sister-in-law. The victim testified that while she and her young child were sleeping in her apartment, the defendant entered under the pretense of delivering mail. After propositioning her and being rejected, the defendant allegedly physically restrained the victim, assaulted her, and raped her on the floor of her home, with her child present.

Court Upholds Murder Conviction, Denying Defendant’s Motion to Suppress Statement

May 11, 2025 | Tilem & Associates

When you’ve been accused of a serious crime like murder, every decision you make during a police interrogation matters—including what you say and whether you waive your right to remain silent. In a recent case out of Queens, the New York Appellate Division reviewed whether a defendant’s statements to police should have been suppressed. Despite the defendant’s argument that he never signed a Miranda waiver form, the court upheld the conviction, holding that an oral waiver was enough. The decision is a warning to anyone facing serious charges: what you say, and how you say it, can follow you all the way to trial.

The Underlying Charges and Police Interrogation

The case stemmed from a homicide that occurred in or around October 2012. The defendant was accused of killing another man using a hammer. After his arrest, the defendant gave oral statements to law enforcement. Although he refused to sign a Miranda waiver card, he did verbally acknowledge his rights and agreed to speak with officers.

Before trial, the defendant’s legal team filed what’s known as an “omnibus motion,” which included a request to suppress the statements he made during the interrogation. The trial court denied that request after holding a hearing. A jury later convicted him of second-degree murder, and he was sentenced accordingly. On appeal, his attorneys argued that the denial of the suppression motion was a mistake and that other pieces of evidence unfairly prejudiced the jury.

Miranda Rights and the Validity of an Oral Waiver

Under the U.S. Supreme Court’s decision in Miranda v. Arizona, police must advise you of your right to remain silent and your right to an attorney before conducting a custodial interrogation. You also have the right to waive those protections—but only if the waiver is knowing, voluntary, and intelligent.

In this case, the defendant claimed that because he didn’t sign the waiver card, his statements to police should have been excluded. But the appellate court disagreed. Relying on long-standing New York precedent, the court emphasized that a signed waiver isn’t required. An oral waiver—so long as it’s clearly made and not coerced—is legally sufficient. Here, the defendant had verbally acknowledged his rights and agreed to answer questions. That was enough for the court to uphold the trial judge’s decision and keep the statements in evidence.

Jailhouse Calls and Alleged Prejudice at Trial

The appeal also challenged the introduction of recordings from jailhouse phone calls the defendant made after his arrest. In some of those calls, the defendant referred to prior bad acts or talked about things he’d be willing to do. While some of the comments did touch on previous wrongdoing, the court found that many of the statements were either relevant to the current charges or speculative in nature—not admissions of other crimes.

The court did agree that a few of the statements were inflammatory and should not have been admitted. However, it concluded that the error was harmless. In other words, the remaining evidence of guilt was strong enough that these mistakes didn’t deprive the defendant of a fair trial. The judge also gave instructions to the jury meant to reduce any potential prejudice.

Gruesome Photos and Their Role in Trial

The defendant further argued that more than 20 photographs of the victim’s post-mortem injuries should have been excluded because they were excessively graphic and designed to inflame the jury. But the court disagreed here as well, stating that the photos helped support the medical examiner’s testimony and illustrated the nature of the attack. Because the images were relevant and not introduced simply to provoke emotion, they were deemed admissible.

Lessons for Anyone Facing a Violent Felony Charge

This case underscores a few key points for defendants:

If you talk to police after waiving your Miranda rights—even verbally—those statements can and will be used against you.
You do not have to sign anything for your waiver to be valid.

Phone calls from jail are recorded and can become trial evidence. Assume nothing is private once you’re behind bars.

Graphic evidence can be admitted if it helps explain the charges, even if it’s upsetting to look at.

Not every mistake at trial leads to a reversal. If the appellate court sees the overall trial as fair and the evidence as strong, it may affirm the conviction anyway.

Protect Yourself from the Start

If you’ve been arrested or charged with murder, manslaughter, or another violent felony, the best way to protect yourself is to say nothing until your attorney is present. Don’t rely on assumptions about Miranda rights, and don’t believe that refusing to sign a form means your words can’t be used against you.

At Tilem & Associates, we fight aggressively to challenge unlawful police conduct and suppress damaging evidence. From pretrial motions to appeals, our team works to uncover weaknesses in the prosecution’s case and uphold your constitutional rights. Call Tilem & Associates today at 877-377-8666 or reach out online for a confidential consultation. Your words matter—make sure you have the right team defending them.

Supreme Court Declines Review in Antonyuk v. James: What It Means for New York Gun Laws

April 20, 2025 | Peter Howard Tilem

The most significant Second Amendment case to come out of New York in spring 2025 was Antonyuk v. James, a direct challenge to the state’s Concealed Carry Improvement Act (CCIA). On April 7, 2025, the United States Supreme Court declined to hear the case, leaving in place a decision by the Second Circuit Court of Appeals that largely upheld New York’s post-Bruen gun law. The Court’s refusal to intervene was a major victory for state officials and a pivotal moment in the ongoing national debate over firearms regulation.

Background: The Bruen Decision and New York’s Response

In June 2022, the Supreme Court issued its landmark decision in New York State Rifle & Pistol Association v. Bruen. That ruling struck down New York’s longstanding requirement that applicants for concealed carry permits show “proper cause” to justify their need to carry a firearm. The Court held that the Second Amendment protects the right of ordinary citizens to carry firearms in public for self-defense, and that New York’s discretionary licensing scheme was unconstitutional.

Court Tosses Brooklyn Gun Conviction After Suppression Ruling Exposes Flawed Police Testimony

April 11, 2025 | Peter Howard Tilem

In a rare but powerful decision, a Brooklyn appellate court has reversed a conviction for Brooklyn gun case, vacated the defendant’s guilty plea, suppressed the gun that formed the heart of the prosecution’s case, and dismissed the indictment. The case sends a clear message: when the police can’t meet their burden to justify a stop and search, and when their account doesn’t withstand basic scrutiny, the evidence they recover may be unusable in court.

If you’ve been charged with a firearm offense in New York, especially following a street stop or chase, this case matters. This case demonstrates what we have often said, that a well-argued suppression motion and careful review of officer conduct can lead not just to a reduced sentence, but to complete dismissal of all charges.

The Arrest That Triggered the Case

NY Court Finds Hospital-Room Interrogation Was Constitutional

April 4, 2025 | Peter Howard Tilem

A recent appeal from Tompkins County shows how quickly a violent-felony indictment can turn into a long prison term—and how limited your options become once you plead guilty. The defendant, accused of taking part in a rolling gunfight that ended with a deadly crash, eventually accepted a plea to manslaughter in the second degree and criminal possession of a weapon in the second degree. Although he later challenged the indictment and the use of his hospital-room statements, the Appellate Division upheld the conviction and the five-to-fifteen-year sentence. If you are facing serious charges in New York, this ruling offers hard-earned guidance on what to contest, when to contest it, and why clear, early strategy matters.

The indictment contained nine counts, ranging from reckless endangerment to homicide. After rejecting an initial offer and losing a suppression motion, the defendant chose to plead on the morning trial was set to begin. On appeal he argued that the weapons count was jurisdictionally defective, that the state’s licensing statute is unconstitutional, and that his statements should have been suppressed because he was injured and asked for a lawyer. None of those claims succeeded, largely because of the legal standards that apply once you accept a negotiated plea.

First, the court dealt with the indictment. A New York indictment is invalid only when it omits an essential element of a charged crime or describes conduct that is not criminal. The defendant claimed the weapon count failed to distinguish between his driveway—arguably private space not covered by the statute—and the public roads where the shootout occurred. He also said the indictment never alleged that he lacked a pistol license. The court called the driveway argument a matter of evidence, not jurisdiction, and ruled that the license issue was satisfied because the count cited the exact Penal Law provision, which by definition requires the firearm to be unlicensed. For anyone accused of a gun offense, the lesson is simple: if a count references the governing statute and tracks its language, a court will likely label it valid. You must raise evidentiary challenges through motions or at trial; waiting until appeal almost always forfeits them.

Pulled Over with a Suspended License? New York Courts Just Clarified What the Police Must Show

March 28, 2025 | Tilem & Associates

Getting stopped while driving with a suspended license can feel like the end of the road. Your first instinct may be to panic—Will you go to jail? Do you have a defense? Two recent appeals, People v. Willis and People v. Martinez-Fernandez, show that prosecutors still have to prove key facts—even if you admit your license was suspended. Understanding what those facts are can help you decide on your next move and avoid pleading to a charge the State can’t support.

In both cases, drivers were charged with “Aggravated Unlicensed Operation in the Third Degree,” or AUO 3rd for short. That offense requires the State to prove two things: (1) you drove when your license was already suspended, and (2) you knew or had reason to know about that suspension. The defendants argued their misdemeanor complaints—the official paperwork that starts a criminal case—were defective because they didn’t spell out how the police knew the drivers had notice of the suspensions. The Court disagreed, ruling that the complaints were “facially sufficient.” Here’s why that matters to you.

What Is “Facial Sufficiency” and Why Should You Care?

Before your case can move forward, the prosecution must file a sworn document—usually a misdemeanor complaint or misdemeanor information—laying out basic facts to show reasonable cause that you broke the law. Think of it as the prosecutor’s opening pitch. If that document is missing essential details, an attorney can ask the judge to dismiss it before things get worse. A dismissal on this ground doesn’t decide guilt or innocence, but it does force the State to start over or drop the charge altogether.

In AUO 3rd cases, the complaint must show more than the “Driver had a suspended license.” It must also allege facts that support the idea you knew about the suspension. Without that, the complaint is vulnerable to attack.

How the State Met the Standard in Willis and Martinez-Fernandez

Both drivers had multiple unpaid traffic tickets. New York traffic summonses carry bold language that says: “If you do not answer this ticket within 15 days, your license will be suspended.” The officers swore that:

They personally issued or saw the tickets on the DMV computer,
They knew the standard warning printed on every ticket, and
The DMV automatically suspends a license within four weeks if the driver ignores the summons.

The court said those details were enough to “reasonably” infer that each driver had notice. Even though the officers didn’t recall handing every ticket directly to the motorist, common sense supports the idea that at least one summons reached the driver’s hands. That was sufficient to keep the case alive.

Court Overturns Plea After Judge Inflates Maximum Sentence

March 21, 2025 | Peter Howard Tilem

When a judge warns that losing at trial could mean forty-five years behind bars for a series of burglary charges, even the most confident defendant will think twice about exercising the right to a jury. That was the scenario facing twenty-three-year-old Marquese Scott, who accepted a six-to-eight-year offer on three second-degree burglary charges. Recently, the New York Court of Appeals ruled that his plea was not knowing, voluntary, or intelligent because the court overstated the maximum lawful sentence by twenty-five years. The ruling teaches prosecutors, judges, defense lawyers—and anyone charged with a felony—that accuracy is everything when liberty is on the line.

How an Erroneous “Worst Case” Skewed the Decision

Scott stood accused of three burglaries. Each Class C felony carries up to fifteen years, but Penal Law § 70.30(1)(e)(i) caps the combined term at twenty. During the plea colloquy, however, the judge told Scott three separate times that consecutive sentences could total forty-five years. Neither counsel nor the prosecutor corrected the mistake. Confronted with what sounded like an almost half-century exposure, Scott took the plea immediately—only to have the sentencing judge later impose fifteen years after concluding he had not fully accepted responsibility.

Why the Court of Appeals Stepped In

On appeal, Scott’s new counsel argued that the plea was invalid because it rested on patently false information. The prosecution countered that the claim was unpreserved; Scott had never moved to withdraw his plea or filed a CPL 440.10 motion. The Court of Appeals disagreed, applying its “no practical ability to object” exception. When the error is clear on the face of the record and the defendant had no reason to doubt the court’s assertion, preservation is not required. It was unreasonable to expect a young defendant to challenge the judge’s confident, repeated statement of the law.