New York Criminal Attorney Blog

Unduly Suggestive Identifications in New York Criminal Cases

March 25, 2020 | Tilem & Associates

In any New York criminal case, there may be a number of potential defenses. One of the most common defenses in crimes involving people who do not know each other is misidentification. When a defendant argues misidentification, they are claiming that another person was the one who committed the offense, and that they were incorrectly identified as the perpetrator.

Recent studies over the past decade have called into question the reliability of identifications. This is especially the case in cross-racial identifications, where the person making the identification is of a different race than the person they are identifying. Understanding the risks of misidentification, courts require that police officers follow certain rules when conducting an identification procedure.

For example, in a recent state appellate opinion, the court reversed the defendant’s conviction for robbery on the basis that the victim’s identification of the defendant was unduly suggestive. Police arrested the defendant after receiving a report from a person who claimed that a man in dreadlocks robbed him. After the arrest, the defendant was placed in a line-up with other individuals, and the victim was asked to identify whether the person who robbed him was in the line-up and, if so, to identify him. All men in the line-up wore hats; however, the defendant was the only person in the line-up with dreadlocks and his dreadlocks were visible.

New York Court Affirms Defendant’s Conviction for Constructively Possessing a Firearm

March 19, 2020 | Tilem & Associates

As New York’s premier second amendment lawyers we closely monitor cases that may affect the ability of our client’s to lawfully be in possession of firearms and cases that affect our ability to fight gun charges. Late last year, a state appellate court issued a written opinion in a New York gun possession case discussing the concept of constructive possession. Constructive possession is a legal fiction by which a person can be found to have “possessed” an item without there being any direct evidence that the item was in the defendant’s immediate control. The concept of constructive possession often relies on circumstantial evidence suggesting that the defendant possessed an item. This opinion is a good example of how the concept of constructive possession works in practice.

According to the court’s opinion, law enforcement pulled over the defendant for a traffic stop. During the stop, the defendant fled the scene, speeding off around a corner that led down a dead-end street. The sheriff’s deputy knew that the defendant had gone down a dead-end road that had a fence on one side and a wooded area on the other. The deputy waited for the defendant to reemerge.

About a minute later, the defendant’s car reemerged but got stuck in a ditch. The defendant was arrested and the deputy searched the area around the one-way street, finding a gun in the wooded area and a hat alongside the road. The gun was about 12-16 feet from the road. DNA samples from both the gun and the hat matched the defendant’s DNA. A jury convicted the defendant, who appealed his conviction. Specifically, the defendant argued that the evidence was insufficient to prove that he possessed the weapon.

Appellate Court Discusses New York’s Tampering with Evidence Statute in Recent Marijuana Possession Case

March 13, 2020 | Tilem & Associates

Earlier this year, a state appellate court issued an opinion in a New York marijuana possession case involving the question of whether the defendant could legally be convicted of tampering with evidence after he threw a bag of marijuana to the ground while being chased by police. The court determined that the defendant’s conduct did not meet the necessary elements of tampering with physical evidence, noting that the proper charge was the lesser offense of attempted tampering with physical evidence.

According to the court’s opinion, police officers were conducting surveillance out in front of a store after there were recent reports of people drinking and selling drugs outside the store. The undercover police officers observed the defendant leave the store while drinking from a bottle that was wrapped in a brown paper bag. Thinking that the defendant was violating the state’s open-container laws, the officers gave the defendant’s description to backup officers, instructing them to stop the defendant.

As the backup officers tried to stop the defendant, the defendant dropped the brown paper bag to the ground and ran. The bottle broke as it hit the ground. A backup officer started to chase the defendant, and noticed that the defendant threw a baggie that was later determined to contain marijuana. After his arrest, the defendant punched the officer in the face. The defendant was charged with various crimes, including assault, possession of marijuana, and tampering with physical evidence. The prosecution argued that by throwing the baggie of marijuana, the defendant tampered with evidence.

New York Court Affirms Denial of Motion to Suppress, Finding the Defendant Consented to the Search

March 7, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York gun possession case involving the denial of the defendant’s pre-trial motion to suppress. Motions to suppress are often the most critical stage of a trial in cases involving guns or drugs, especially where the contraband item is found on the defendant. In this case, the court ultimately upheld the denial of the defendant’s motion to suppress, finding that the defendant gave the officers consent to search his car.

Consent is one of the few major exceptions to the warrant requirement. Generally, law enforcement needs a warrant to conduct a search of a person or their belongings. To obtain a warrant, an officer must establish that there is probable cause to believe that a crime was committed, and the search would turn up evidence of that crime. However, if a suspect consents to a search, that eliminates the need for an officer to obtain a warrant. To be valid, consent must be voluntary, and cannot be forced or coerced. Courts look to the surrounding circumstances to determine the validity of a suspect’s consent.

According to the court’s opinion, police received a 911 call stating that a man was banging on a hotel door with a gun. Police arrived and began to speak with the defendant outside the hotel room. He was not handcuffed at the time.

New York Court Grants Motion to Suppress Based on Officer’s Illegal Stop

March 1, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York burglary case requiring the court to determine whether a police officer’s actions violated the defendant’s rights prior to his arrest. Ultimately, the court concluded that the officer lacked justification to stop the defendant, search his bag, and then transport him to the scene of the crime so that a show-up identification could be made. Thus, the court affirmed the lower court’s decision to grant the defendant’s motion.

According to the court’s opinion, police officers received a report of a burglary. Several officers went directly to the scene and others canvassed the area looking for a suspect. The description given by the caller stated only that the suspect was a male.

An officer saw the defendant walking with a cell phone and a bag a few blocks away from the scene. The officer asked the defendant what he was doing, to which the defendant responded he was looking through garbage cans. The officer searched the defendant’s bag and then told him that he was going to be transported to the scene. At the scene, the defendant was identified as the burglar.

New York Court Approves Traffic Stop after Officer Observes Defendant’s Car Parked in a Parking Lot with No Open Businesses

February 25, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York DWI case involving the question of whether the arresting officer had the legal authority to approach the defendant’s parked car and knock on the window. Ultimately, the court concluded that the officer possessed the authority to do so. Thus, the court denied the defendant’s motion to suppress and affirmed his convictions.

According to the court’s written opinion, a police officer was on routine patrol when he saw the defendant pull into an empty parking lot shortly after midnight. At the time, no businesses nearby were open. About 20 minutes later, the officer drove by the parking lot again, and he noticed that the defendant’s car was still parked in the lot, running with its lights on. The officer approached the defendant’s vehicle to see the defendant slumped over the steering wheel. Ultimately, the defendant was arrested for DUI and related offenses.

The defendant filed a motion to suppress, arguing that the officer lacked probable cause or reasonable suspicion to approach his vehicle, as there was no indication that he was involved in any criminal activity. Indeed, the police officer testified at the motion that he was “unsure” what he would find when he approached the vehicle, and did not think that “criminal activity was afoot.”

The Importance of Preserving Errors for Appeal in New York Criminal Trials

February 19, 2020 | Tilem & Associates

In a New York criminal jury trial, the judge has several critical roles. In general terms, the judge determines the “rules” by which the trial will be conducted. For example, the judge will resolve all pretrial motions, manages the jury selection process, rules on objections during the trial, and instructs the jury at the conclusion of the trial. One of the most essential roles of a judge is also to act as the gatekeeper, meaning the judge will determine which evidence will be presented to the jury.

Not surprisingly, a judge’s rulings on these issues can drastically affect the outcome of a trial. And because judges are human, they are prone to making errors. In fact, that is the very purpose of the New York appellate process; to review the trial court’s legal decisions which led to a conviction. Thus, when a party believes that a judge made an error at trial, that party must object. When a party objects to a ruling, they must state the basis for the objection. Typically, when an objection is made, the judge will hear argument on the objection outside the presence of the jury and issue a ruling. It is up to the party making the objection to make sure the judge knows the basis of the objection and is aware of the legal support behind the objection. AS a general principle the Judge must be given an opportunity to fix the error in order to preserve your right to appeal on an issue.

When an appellate court grants review of a case, it will typically consider all arguments raised in the defendant’s brief. However, an appellate court may apply various standards when reviewing an error. For issues that were properly raised at trial, an appellate court uses what is called “de novo” review, meaning that the court will not give the lower court’s decision any deference.

How New York Courts Apply the State’s Self-Defense Doctrine

February 13, 2020 | Peter Howard Tilem

When the government brings criminal charges against a defendant, that person may have one or more defenses against the crimes charged. In the case of a New York assault crime or assault related charges, one of the most common defenses is self-defense which in New York is the defense of justification. Self defense may also apply to many Murder or Manslaughter charges.

In New York, self-defense is a defense. In New York if a defense is raised the prosecutor has the obligation to disprove that defense beyond a reasonable doubt. Justification, or self-defense is a type of defense in which a defendant claims he committed the acts that would otherwise constitute the offense, but he should not be found in violation of the statute for some other reason. In the case of self-defense, the defendant claims he committed the charged acts for a justifiable reason – specifically, that he was justified in defending himself or a third person.

The defense of self-defense is discussed in Article 35 of the New York Laws. For example, under section 35.10, the use of force upon someone else which might otherwise make out a crime or offense is justifiable and not criminal if the person uses “physical force upon another person in self-defense or defense of a third person.”

Defendant’s Conviction for Possession of Counterfeit Money Upheld by New York Appellate Court

February 7, 2020 | Tilem & Associates

Recently, a state appellate court issued a written opinion in a New York forged instrument case involving the possession of what turned out to be counterfeit money. The case provided the court with the opportunity to discuss the elements that must be established to convict a defendant for possession of counterfeit currency in New York.

According to the court’s opinion, a police officer observed the defendant in front of a haunted house attraction. The defendant had an unmarked brown paper bag in his hand, and was drinking something from a can or bottle contained in the bag. As the officer approached, the defendant ran. Believing the bag to hold a prohibited alcoholic beverage, the police officer gave chase. Upon catching the defendant, the officer found two bags of crack cocaine and currency in the defendant’s pockets.

The currency was divided into two pockets. In one pocket was a loose wad of bills totaling $148. In the other pocket was a wad of 17 bills bound together by a rubber band. After taking a closer look at the wad of 17 bills, the officer suspected that they were counterfeit, and the defendant later admitted that they were counterfeit.

Supreme Court Hears Case that May Affect People with Several New York Convictions

February 2, 2020 | Tilem & Associates

Under the Armed Career Criminals Act (ACCA), federal law provides for enhanced penalties for people convicted of a crime involving a firearm if they have previously been convicted of several “violent felonies.” New York has similar laws that enhance penalties for persistent violent felony offenders and discretionary persistent felony offenders. Recently, the U.S. Supreme Court agreed to hear a case in which the court will be required to explain what constitutes a “violent felony” under the ACCA. The case is important to New York criminal defendants because it will define what counts as a predicate offense under the ACCA, which could have significant repercussions for a person’s sentence.

The case involves a defendant who was convicted for possession of ammunition. At sentencing, the prosecution presented evidence that the defendant had previously been convicted of five offenses: a 1974 robbery, a 1982 robbery, a 1983 attempted burglary, a 1986 burglary, and a 1994 robbery. The prosecution argued that each of the previous offenses qualified as violent felonies under the ACCA, and it sought a mandatory sentence on the current case of at least 15 years. If the defendant did not have three qualifying offenses, the maximum sentence that he could receive would have been 10 years. However, the trial court agreed with the prosecution, sentencing the defendant to 15 years.

After the U.S. Supreme Court held that part of the ACCA was unconstitutional, the defendant filed a petition, claiming that several of his previous convictions no longer qualified as “violent felonies.” The prosecution agreed that the 1983 conviction for attempted burglary was no longer a qualifying offense, but it argued that the remaining convictions still qualified under the ACCA. The court disagreed, finding that only two of the defendant’s robbery convictions qualified, and it sentenced him to 88 months.