New York Criminal Attorney Blog

When Can a Police Officer Legally Frisk a Suspect in New York?

October 8, 2024 | Peter Howard Tilem

We have written extensively about the rights of citizens involved in street encounters with the police and the four tiers of intrusion based upon the level of suspicion that the police have. According to New York law, an officer may rightfully frisk a person when the officer has a “reasonable suspicion” that the person is armed and therefore that the officer is in danger. A recent drug case before a New York court put this law to the test, when a defendant appealed a lower court’s decision to deny his motion to suppress. The higher court, considering the defendant’s appeal, decided that the officer did not have grounds to suspect that the defendant was armed, siding with the defendant and reversing the lower court’s decision.

Basis for the Defendant’s Appeal

In New York, an officer with reasonable suspicion that a detainee is armed may, indeed, frisk the detainee. The officer must have knowledge of some circumstance that allows him to believe that his safety is threatened because the detainee is armed. These circumstances could include: the nature of the crime being investigated, the suspect’s behavior, and any bulges in the suspect’s clothing.

In the case on appeal, the defendant argued that when an officer stopped him for failing to use his turn signal, it was unreasonable for the officer to then pat him down several minutes into the traffic stop. During the frisk, the officer found PCP on the defendant’s person; the defendant was charged with (and later convicted of) criminal possession of a controlled substance.

Probable Cause in New York Drug Cases When an Officer Cannot Confidently Identify the Object “Changing Hands”

October 1, 2024 | Peter Howard Tilem

When a police officer suspects that he witnesses the exchange of drugs for sale, can he arrest a suspect even if he’s unable to confidently identify the object that changed hands? According to New York case law, the answer is yes. A recent case before the New York Appellate Division, First Department clarifies the analysis that answers this question, which in turn applies to suspects and defendants involved in cases revolving around the alleged sale of a controlled substance. The case marks an obstacle for defendants in these kinds of cases, but it is crucial for defendants to know where the law stands when involved in the alleged sale of a controlled substance.

Case Before the Appellate Division

According to the facts of the case, a police officer noticed a man standing outside of a hotel one evening, wandering around and “nervously looking around.” A few moments later, the officer saw the man start speaking with a woman that he knew had been arrested in the past for drug-related charges. At that point, he saw an object “change hands,” or go from one person to the other.

The officer arrested the defendant, and the defendant was charged and later convicted of criminal sale of a controlled substance in the third degree, as well as criminal possession of a controlled substance in the third degree. The defendant filed a motion to suppress, arguing the officer did not, in fact, have probable cause to arrest him in the first place. The trial court denied this motion, and the defendant appealed the trial court’s decision.

Using Psychological Tests as Evidence During Criminal Proceedings in New York

September 24, 2024 | Tilem & Associates

One set of tools that defendants can use throughout the course of their litigation is psychological testing and accompanying expert opinion. For some defendants, if a qualified expert can testify that the defendant is not at high risk of re-offending, the court will sentence the defendant more leniently. In one recent case before the Appellate Division, Third Department, the court decided that the defendant’s test results should have resulted in a downward departure of his sex offender registration (SORA) risk level. The case marks a win for the defendant, who asked the court to keep his psychological test results in mind when making a decision.

Originally, the defendant pled guilty to four counts of felonious sexual assault as well as misdemeanor charges related to the provision of alcohol to a minor. The trial court sentenced him to time in prison, and when he was released, the Board of Examiners of Sex Offenders classified him as a risk level two sex offender under the Sex Offender Registration Act. The defendant appealed, arguing he should have been classified as a level one offender, which would indicate to the public that he was not at high risk for reoffending.

The court agreed with the defendant that level one would have been more appropriate. The court’s reasoning rested on results of the defendant’s psychometric testing and of the testers’ expert opinions. Two professional evaluators tested the defendant, one a clinical social worker and the other a psychologist. According to both test results, the defendant was at a low risk of reoffending. The defendant had strong familial support, he was undergoing a difficult time when he originally offended, and he did not have a tendency to inappropriately act on feelings of anger.

First Degree v. Third Degree Assault in New York

September 16, 2024 | Peter Howard Tilem

When an individual is charged with assault, the proceedings can take many different forms. It can depend, in part, on what kind of assault the State alleges the defendant committed. In an opinion that recently came out of an appeals court in New York, the court discusses the difference between assault in the second degree and in the third degree, providing an apt reminder of the different elements and consequences of each crime.

Facts of the Case

In the recent case before the Appellate Division, First Department, the defendant was convicted of attempted assault in the first degree and assault in the second degree. The conviction was based on an incident in which the defendant punched and injured two individuals one night in Manhattan. At least one other person was involved in the attack, and that second person used a weapon, which the prosecution described as a “long, thin, dark-colored object” during trial.

Assault in the Second Degree

On appeal, the defendant argued that the court should have granted his request to instruct the jury that he could have been found guilty of assault in the third degree in instead of assault in the first degree. The difference between the two crimes is important. To be found guilty of assault in the first degree, a jury would have to find: that you had the intent to cause serious physical injury (and did cause injury); that you intended to cause injury and used a dangerous instrument (i.e., a weapon); that you assaulted an official; that you recklessly caused injury with a weapon; that you intentionally caused someone to become unconscious; or that you injured someone when committing a felony.

New York Court Answers Question Regarding Sex Offender Registry in Opinion

September 9, 2024 | Peter Howard Tilem

A New York court recently issued an interesting opinion dealing with the sex offender registry, and its opinion highlights a technical question that can have significant impacts on defendants convicted of sex crimes. The question before the court had to do with a specific defendant’s status on the sex offender registry. She argued that she should be listed on the registry as a nonviolent offender, while the State argued she should be listed on the registry as a violent offender. Ultimately, the court’s decision came out in favor of the defendant, and it decided to make her status “nonviolent” on the registry in New York.

The Defendant’s Conviction

In the case before the Appellate Division, Fourth Department, the defendant appealed an order from the lower court that designated her as a “sexually violent offender.” The defendant lived in North Carolina, and while living there, she was convicted of sexual activity under the theory of aiding and abetting. She registered as a sex offender and later moved to the state of New York. She was then required, under the law, to register as a sex offender in New York.

The Board of Examiners of Sex Offenders conducted a risk assessment of the defendant to determine her level of risk for purposes of the sex offender registry. The Board did not think that the defendant needed to be labeled “sexually violent,” but the State argued that she should be designated “violent” because of a specific law, which says when a person is convicted in another state, that person should then be labeled as a sexually violent offender in the new state where they reside.

Criminal Case in New York Demonstrates Importance of Diligent and Detail-Oriented Representation

September 2, 2024 | Peter Howard Tilem

A September 2024 Grand Larceny case in New York demonstrates how crucial it is to carefully review every agreement you sign related to your criminal offense. The case was based on the theft of a cell phone, and it originally resulted in a sentence of one year in prison. The defendant ultimately got his conviction reversed on appeal. The case serves as a reminder that if you are facing criminal charges in New York, you need a thorough and detail-oriented defense attorney in your corner to carefully represent your best interest.

Facts of the Case

The defendant in this case originally faced criminal charges when he snatched a cell phone from another person. The State charged him with fourth-degree grand larceny, petit larceny, and fifth-degree criminal possession of stolen property. Importantly, the complaint that brought the case to court did not state anything about the defendant using force at any point during the incident.

Superior Court Information

The defendant later waived his right to be prosecuted by indictment. Instead, he opted to be prosecuted by what is called a “superior court information,” meaning he chose to waive indictment by a grand jury. According to the superior court information, the defendant was charged with third-degree robbery and petit larceny.

When Will a Court Decide that Evidence of a Prior Crime is Admissible?

August 26, 2024 | Peter Howard Tilem

In New York, the prosecution in a criminal case is generally unable to present evidence of a defendant’s prior crimes or bad acts. There are, however, exceptions to this rule, and courts can admit otherwise inadmissible evidence using one of the exceptions laid out in the rules of evidence. As a general rule, evidence of a prior bad act may never be used to demonstrate that a person has a propensity for committing crimes.

The Exceptions

The five exceptions to the rule that evidence of a defendant’s prior crime is inadmissible are when the evidence helps establish a defendant’s (1) intent or purpose, (2) motive, (3) knowledge, (4) plan, or (5) identity. These five categories can all end up being fairly broad, and each trial court might interpret the exceptions a bit differently. This can, in turn, be challenging for defendants who are trying to keep evidence of prior bad acts out of the record to keep the jury from being prejudiced against them.

In a recent case before the Appellate Division, Second Department, the defendant challenged the trial court’s use of exception #1, intent or purpose. During the defendant’s trial for criminal contempt in the first degree and aggravated harassment in the second degree, the prosecution sought to present evidence of testimony about an incident that let to a protective order against the defendant. Allegedly, the defendant had violated that protective order, which brought him to court on the criminal contempt and aggravated harassment charges.

What Happens When a Judge Exerts Too Much Influence During Trial?

August 19, 2024 | Peter Howard Tilem

In criminal trials, juries must reach unanimous verdicts, which means all jurors must find a defendant guilty in order for the defendant to receive a guilty verdict. In a perfect world, jurors are able to deliberate and come to a verdict without the influence of the judge’s opinion regarding the case’s outcome. In a recent New York case, however, things took a turn when the higher court found that the trial court judge influenced jury members too heavily during their deliberations.

In the case before the Appellate Division, Second Department, the State charged the defendant with conspiracy and criminal possession of a controlled substance. The defendant pled not guilty, and his case went to trial. After both sides presented evidence, the jury went back to deliberate.

Jury Deliberations

After two days of deliberation, the jury submitted a note to the judge indicating that “after intense discussion,” they were unable to reach a unanimous decision. The judge advised the jury to try again, and after one more day, the jury again submitted a note that they were unable to reach a decision. Again, the judge advised the jury to keep trying. On the fourth day of deliberations, the jury again submitted a note indicating that the members were “hopelessly deadlocked.”

New York Case Highlights the Importance of Experience with Criminal Procedure

August 12, 2024 | Peter Howard Tilem

As we have written extensively, discovery is a large part of the criminal process. In a recent case before a New York appeals court, the parties asked the court to address whether certain changes to New York procedural standards, that is the new discovery laws, affected cases that were already in motion prior to the date the changes took effect. The case provides an interesting look at how very procedural and mechanical problems can end up having a big impact in a defendant’s proceedings.

Changes to Trial Procedure in New York

On January 1, 2020, New York made a technical change to its laws about preparing for trial. The change said that the State must file a “certificate of compliance” with the state’s newly enacted discovery rules. “Discovery” is the exchange of documents between parties in preparation for trial, and the 2020 changes essentially sought to make sure the State was in compliance with these new discovery rules prior to stating that it was ready to move forward to trial.

In the case before New York’s highest court, the New York Court of Appeals, the parties went to trial on January 27, 2020. On day one of trial, the State said it was prepared to move forward, even though it hadn’t filed its certificate of compliance under the new law. The defendant asked the court to dismiss the indictment because the State failed to file this certificate. The defendant’s case began, however, before the January 1, 2020 changes went into effect. Did the State still have to comply with the new law, even though it wasn’t in effect when the defendant was arraigned?

Using the Right Standard in New York Traffic Stop Cases

August 5, 2024 | Peter Howard Tilem

As we have written about extensively, New York recognizes 4 levels of police intrusions during street encounters. Under New York law, when a police officer conducts a traffic stop, the officer cannot unnecessarily prolong the stop. If an officer does keep the driver beyond a reasonable amount of time, he or she must have “reasonable suspicion” that criminal activity is afoot. Whether the officer had reasonable suspicion is a decision that a court must make, and if the court ultimately finds that the officer did not have reasonable suspicion, the Court can grant a defendant’s motion to suppress whatever incriminating evidence the officer ended up finding during the traffic stop.

In a recent case before a New York court, the defendant argued on appeal that the officer conducting his traffic stop unnecessarily prolonged the encounter between the two of them. During the encounter, the officer found significant amounts of heroin in the defendant’s car. Originally, when the case was before a New York trial court, the court determined that the traffic stop and resulting search of the vehicle were both justified. The court denied the defendant’s motion to suppress the incriminating evidence.

Reasonable Suspicion v. Founded Suspicion

When the case went up on appeal, however, the higher court noted that the trial court used the incorrect standard while evaluating the case. Instead of asking whether the officer had “reasonable suspicion” regarding possible criminal activity, the trial court asked whether the officer had “founded suspicion.” This “founded suspicion” standard, said the higher court, is a lesser standard than “reasonable suspicion.”