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The Fourth Amendment to the United States Constitution protects residents from unreasonable search and seizure of themselves and their property by law enforcement. The protections afforded by the Fourth Amendment are generally understood to be the strongest when the home of a suspect is involved. The New York Court of Appeals recently released a ruling concerning a Fourth Amendment claim that social guests in the home of a friend are entitled to some level of fourth amendment protection by their presence in the home. Although the Court ultimately rejected the defendant’s arguments, one judge on the panel submitted a passionate dissent to the majority decision, suggesting that the law in this area is not entirely settled at this time.

The defendant in the recently decided case was charged and convicted of a drug crime after police allegedly witnessed him sell drugs to an undercover officer and followed him into an apartment building. The police entered an apartment in the building that they believed the defendant had entered but had no warrant to enter that home. After noticing evidence of commercial drug activity in the home, police obtained a warrant to search the home and found the evidence which was later used to convict the defendant at trial.

The defendant challenged the admissibility of the evidence that was collected by police, challenging their entry into the home of his friend without a warrant. The defendant maintained that he had been eating dinner in the apartment “all night” and the police misidentified him. Under the Fourth Amendment, the defendant argued, people are entitled to a reasonable expectation of privacy when they are socially visiting the home of a friend for dinner. The trial court rejected the defendant’s contentions without holding a hearing, ruling that he had no right to challenge the search of another person’s home.

When juries are given the ability to determine a defendant’s guilt, the stigma of the crimes alleged sometimes plays a larger factor in the jury’s decision than evaluation of the required elements of the crime. Because of this, it is extremely important in the administration of criminal justice that juries are only allowed to convict defendants of crimes that are legally possible based upon the allegations of the criminal complaint and the evidence presented at trial. The Appellate Division of the New York Supreme Court recently addressed a defendant’s appeal from several New York sex crime convictions, which claimed the evidence against him was legally insufficient to support the convictions.

The defendant in the recently decided case was convicted of first degree sexual abuse after he allegedly made sexual contact with the victim without their consent. Before the trial, the defendant objected to being tried for first-degree sexual abuse, as that charge required a showing that force or compulsion was used to affect the sexual abuse. Additionally, the defendant appealed a conviction for first-degree sexual assault that was handed down based upon his touching two parts of the victim’s body during the same occurrence. The defendant’s pretrial motions were denied, and the defendant was ultimately convicted of the crimes, along with several others stemming from the same criminal episode.

The defendant appealed his convictions to the Appellate Division, arguing that the evidence presented at trial was legally insufficient to prove beyond a reasonable doubt that the defendant subjected the victim to sexual abuse using forcible compulsion. The Appellate Division agreed with the defendant’s arguments, finding that there was not any evidence presented at trial with which a jury could find that forcible compulsion was used. The Appellate Division reduced this conviction to a third-degree sexual assault, which was supported by ample evidence presented at trial. Additionally, the court found that the two separate counts stemming from the same occurrence should not have resulted in two convictions and vacated one of the convictions outright. The defendant’s other arguments were rejected by the court.

As New York’s premier Second Amendment Lawyers we are monitoring pending legislation to criminalize the possession and sale of 80% (Eighty Percent ) lowers in NY.  These unfinished frames have been a recent target of the anti gun crowd who often refer to these unfinished frames or receivers as “Ghost Guns.”  Currently there are no laws on the books in New York State that ban the sale or possession of 80% lowers however legislation is currently pending in Albany and a relatively recent and very ambiguous law was recently passed in New York City which makes in a crime to possess or sell an “unfinished frame or receiver.”

WHAT IS AN 80% LOWER

Various parts of a gun can be bought online and in stores.  The question became which of the parts is the “firearm”?  The part that the government wanted to regulate.  Interestingly, the government chose to regulate the frame or lower receiver of the firearm which is just a simple hunk of metal with cutouts for the action, trigger and some pins.  According to federal law each lower receiver sold in the US must be serialized ( must have a serial number) and an FFL (Federal Firearms Licensee) must do a background check.  However, the question is when does a hunk of

In New York, sex crimes vary in type, degree, and consequences. To know the law and know where you stand, it is important to familiarize yourself with the various elements of each crime. Staying informed and hiring an experienced sex crimes defense lawyer are the best ways to guarantee you are treated fairly if convicted.

Below is a very brief breakdown of the many of the sex crimes in New York.  Other charges involving Unlawful Surveillance, and Child Pornography charges are found in other places in the penal law but may require registration as a sex offender upon a conviction.

Sexual misconduct is a broad term, and it happens when one person engages in any kind of sexual conduct with another party, without that second party’s consent. Sexual abuse is a second broad offense that involves what New York law calls “forcible compulsion” – forcing someone into a sexual act either by physical force or the threat of force.

Criminal Sexual Act

A criminal sexual act is slightly more specific: in the first degree, a criminal sexual act means that one person has engaged in oral sexual conduct or anal sexual conduct by force or with someone less than thirteen years old. In the second degree, a criminal sexual act occurs when a person engages in the same kind of conduct with a person less than fifteen years old; in the third degree, the crime comes up when the second party is less than seventeen years old. Punishments for a criminal sexual act vary greatly – for the first degree, defendants can face sentences between five and twenty-five years in prison, whereas for the third degree, punishments are typically one to four years in prison.

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Recently, a state appellate court issued a written opinion in a New York robbery case involving a defendant’s motion to suppress statements he made to law enforcement. Specifically, the case required the court determine if the defendant’s statements were admissible or whether they were the product of a violation of his constitutional rights. Ultimately, the court concluded that the defendant’s statements were admissible.

The Facts of the Case

According to the court’s opinion, a police officer witnessed the defendant roll through a stop sign. The police officer pulled over the defendant and requested his driver’s license, registration, and insurance card. As the defendant retrieved the requested items, the officer noticed a can of pepper spray in the glove box. The officer also recognized the vehicle as matching the description of one used in a recent robbery in which the person committing the robbery used pepper spray on the alleged victims.

The officer arrested the defendant and read him his Miranda warnings. Later, the defendant provided a statement to police. While the exact statement was not outlined in the court’s opinion, it’s fair to say that it was against his interest.

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The Fourth Amendment of the Constitution is the amendment that protects individuals against unreasonable searches and seizures at the hands of law enforcement. This constitutional protection is typically understood to require that an officer have a warrant before conducting a search. However, over time the courts have interpreted the Fourth Amendment to include certain exceptions that allow a police officer to bypass the warrant requirement. A recent New York drug case highlighted a situation in which an officer may not be required to produce a warrant before searching someone’s vehicle for drugs.

This case involved a defendant’s failed motion to suppress after evidence was obtained during a vehicle search. In this case, after police officers approached an illegally parked car where the defendant sat in the driver’s seat, one of the officers smelled an odor that he recognized to be PCP. The officer received regular training on PCP and other drugs and had encountered the drug numerous times before. The defendant gave the officers a fake name, and the officer observed that the defendant had glassy eyes and slurred speech.

When the defendant was directed to step out of the vehicle, he made a sweeping motion with his hand, which indicated to the officer that the defendant was attempting to hide illegal contraband. The officers conducted a search of the vehicle and found a bag of cocaine and PCP-dipped cigarettes. The defendant waived his Miranda rights and confessed to possessing the cocaine.

In many cases, such as gun cases or drug cases, law enforcement agencies rely on the public to report criminal or suspicious activity to the police or emergency phone line. Tips received by police from the public can help an officer form reasonable suspicion that someone has committed, is committing, or is about to commit a crime. With reasonable suspicion, police officers may be able to stop, detain, question, and search a suspect without a warrant. Because of this, tips from the public are often used by police officers to justify warrantless searches.

Although a phone-in tip can help an officer have a valid reasonable suspicion that criminal activity is afoot, the existence of a tip, particularly an anonymous tip,  is not in itself sufficient to justify performing a search without a warrant. The New York Court of Appeals, New York’s highest court,  recently reversed a trial court ruling that permitted an officer to search a car without a warrant based on a phoned-in tip.

The defendant from the recently decided appeal was riding in a friend’s vehicle when they were stopped by police. According to the facts discussed in the appellate opinion, the arresting officer had received a radio call from dispatch that someone in a vehicle matching the description of the van the suspect was riding was reported to be visibly brandishing a firearm. Based on the tip and the vehicle description, the police stopped the vehicle and performed a search for weapons, without consent or a warrant. After a firearm was found in the defendant’s possession, he was arrested and charged with a gun offense.

In a recent opinion from a New York court involving a leaving the scene of an accident, the defendant’s motion to suppress was denied. The defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree and filed a motion to suppress several statements he made to a sergeant who came to question him after the incident. The appellate court denied the motion because it found the defendant’s freedom was not significantly restricted when he made statements to the sergeant.

The Facts of the Case

According to the opinion, the driver of a van struck another vehicle then drove away from the scene. Because the van’s license plate fell off while the van was driving away, the county sheriff’s office was able to identify the van’s registered owner. When a sergeant from the sheriff’s office went to question the van’s owner at his farm. The owner made statements that ended up being used against him in court.

After a jury found the defendant guilty of unlicensed operation of the motor vehicle, the defendant appealed, insisting that his statements to the sergeant should have been suppressed. On appeal, the defendant argued that he was both “in custody” and actively “interrogated” by the sergeant, meaning his freedom was significantly restricted while he was being questioned.

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Vaccine cards have become commonplace in New York, throughout the US and indeed the world.  Like everythingVaccine Card Sample else of value, there has been a black market in fake vaccine cards that has evolved and has taken hold as the vaccine becomes mandatory in so many places.  To make matters worse, as the vaccine initially rolled out, there was an emphasis in getting as many people shots in the arms as possible and not necessarily an emphasis placed on how people could prove that they were vaccinated.  The result, was flimsy, hand written vaccine cards written often sloppily by whoever gave the injection without any nationwide standards for the type of vaccine cards.  To make matters worse many people crossed state lines to try to get the vaccine faster.  Among all of the chaos and the black market in fake cards the question remains, is it illegal to use a fake vaccine card?

In late August a New Jersey woman was arrested and charged in New York City with selling fake vaccine cards for $250 each.  The woman, who  used the name AntiVaxMomma on social media was charged with multiple felonies including Criminal Possession of a Forged Instrument in the Second Degree.  For an extra $250 an accomplice who worked at a medical facility entered peoples names into the New York State Database.  While the pair has been arrested neither has been indicted and neither has been convicted of any crime.  Both are presumed innocent.

Criminal Possession of a Forged Instrument requires that the prosecution can prove that a person knew that the card was forged and possessed the card with the intent to deceive, defraud or injure someone.  New York, specifically rejects an approach that is used in many other states that the unexplained possession of a forged instrument creates a rebuttable presumption of knowledge that it is forged.  Therefore, the prosecution would need to be able to prove, beyond a reasonable doubt, that the person was aware that the instrument was forged.   In addition, to be charged in the Second Degree, which is a felony, it must be a certain type of forged instrument such as a prescription, a deed or will, a public record or a document required to be filed with the government, a government issued identification or government issued document, subway tokens or transfers, or currency.

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.

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