New York Criminal Attorney Blog

Rape Shield Law in New York: What You Need to Know

July 25, 2024 | Peter Howard Tilem

In the state of New York, when a defendant is charged with rape, the defense attorney is prohibited from questioning the rape victim about his or her sexual history. This rule is called the rape shield law, and it prohibits juries from hearing evidence about a victim’s previous sexual acts unless the evidence shows that the defendant and the victim previously engaged in sexual activity. While there are a few other limited exceptions to the rule, the rule generally aims to keep jury members from making assumptions about rape victims that are irrelevant to the specific charges at hand.

In a June 2024 case before a New York appellate court, the defendant argued on appeal that he should have been able to question the victim (sometimes called the “complainant”) about her sexual history during cross examination. According to the defendant, it was relevant to open up this line of questioning in order to show that the complainant had engaged in sexual activity with other individuals. These other individuals, said the defendant, might have given her the physical injuries she claimed were due to the defendant’s rape.

The trial court prohibited the defendant from asking about the woman’s previous sexual history. On appeal, the higher court affirmed the trial court’s decision, concluding that the defendant’s theory that the woman’s injuries came from other sexual interactions was “purely based upon rumor and speculation.” This, said the court, was not a good enough reason to go against the rape shield law protecting the complainant from having to offer testimony about her sexual history.

What Happens When Your Criminal Case Goes Through Multiple Appeals?

July 18, 2024 | Peter Howard Tilem

If you receive an unfavorable jury verdict in a criminal trial, the good news is that you can appeal that verdict. Sometimes, though, even if the higher court grants your appeal, the State might appeal again, subjecting you to additional waiting and uncertainty. A recent case before the New York Court of Appeals serves as an example of this process, and in this case, even though the defendant got a favorable decision on his first appeal, he got an unfavorable decision from the second appeal when the court decided the prosecution’s error in his trial was ultimately “harmless.”

Originally, the defendant in this case was charged with first-degree assault and attempted murder. The defendant pled not guilty, his case went to trial, and a jury found him guilty of the assault. On appeal, though, the defendant argued that it was unfair for a police officer to testify regarding the victim’s daughter’s statements about the attack. Because the officer testified about the daughter’s statements, the defendant argued he was deprived of his right to cross-examine the daughter about what she said.

The Appellate Division agreed that this testimony was a violation of the defendant’s rights. It granted the defendant’s request and gave him an entirely new trial. The State appealed again, and the New York Court of Appeals then had to decide whether it was correct for the defendant to be given this new trial.

Show-Ups in New York Criminal Cases: What You Need to Know

July 11, 2024 | Peter Howard Tilem

In criminal law, a “show-up” is the process through which a witness and a suspect are together face-to-face for the purpose of the witness’s ability to identify whether the suspect indeed committed the crime. A “Show-Up” identification is by its very nature suggestive, as opposed to a line-up identification in which a victim or witness has the opportunity to choose from a group of 6 individuals. Therefore rules are in place that govern how and when a show-up can be employed. In a recent case before a New York court, the defendant argued that the show-up in his case was overly suggestive and therefore unfair. The court reviewed the defendant’s appeal and ultimately disagreed with his argument, affirming his original robbery conviction in the process.

Case Law Around Show-Ups

According to New York case law, courts generally prefer procedures other than show-ups, given that it can be suggestive for a witness to make an identification while face to face with a suspect. However, if there are emergency circumstances, a show-up is permissible. The show-up is also permissible if the witness can view the suspect close to where the crime occurred and close to the time at which the crime occurred.

A June 2024 Case

In the June 2024 case, the defendant argued his show-up was prejudicial. In this case, police officers responded to a robbery committed by two individuals. One individual immediately fled to a nearby house, and officers found and arrested him immediately. In looking for the second individual, the officers drove a witness through the neighborhood to see if he could make any kind of identification. Eventually, the officers and the witness returned to the house, where additional officers had apprehended a second suspect. Upon seeing the second suspect, the witness immediately identified him as the person who committed the robbery. Officers then arrested and charged the defendant with robbery.

Searches and Seizures of Parolees in New York: What You Need to Know

July 5, 2024 | Peter Howard Tilem

What are the rights of a parolee when an officer wants to conduct an invasive search or seizure? In New York, recent case law explored this very question, looking at the circumstances under which a defendant can successfully challenge a search based on his constitutional right to privacy. According to the case, parolees do not, in fact, surrender their fundamental constitutional rights against unreasonable searches and seizures. The case is a win for individuals on parole in New York.

Facts of the Case

The defendant in this case challenged an officer’s search of his pockets. The defendant was on parole, which meant he could be subject to officers searching his home without warning. One day, officer came by his house while looking for a fugitive he suspected might be in the defendant’s home. The officer did not find the fugitive, but the officer did notice a bulge in the defendant’s pocket. The officer then searched the defendant’s person and found heroin in his headphone case. The defendant later faced charges of drug possession.

“Reasonable” Relationship

The court reviewing the facts of the case had to decide whether this search was reasonable. The court first noted that the standard for searches for parolees is different than for those not on parole. According to already-existent New York case law, an officer’s search of a parolee has to do with whether the officer’s conduct was “reasonably related” to that officer’s duty.

What Happens When a Judge Takes a Side During Trial?

June 30, 2024 | Peter Howard Tilem

In courtroom proceedings, part of the judge’s job is to be as impartial as possible. We have written blogs before about Judges being reversed for failing to act in an inpartial manner at trial. In a recent case before a New York court, the defendant argued that the judge failed to perform this duty during the proceedings before the trial court. Looking at the trial court’s record, the higher court agreed, determining that the judge became biased and helped the prosecution argue its case, when, in reality, he should have let the government attorney make the case himself. The higher court granted the defendant a new trial.

Batson Challenges

In criminal proceedings, each side has the opportunity to “strike,” or eliminate, several prospective jurors without cause. These challenges to a jury are called peremptory, challenges for which you don’t need to give a reason. .If, however, an attorney strikes a possible juror, and the other side shows that the attorney was operating based on racial discrimination, it becomes the striking attorney’s job to come forward with a reasonable explanation for the decision. The explanation must be what the court calls “race-neutral.” The challenges based on racial discrimination are commonly referred to as Batson challenges.

The Judge’s Role in Batson Challenges

When an attorney challenges the other attorney’s decision to strike a possible juror, the judge’s responsibility is to then let the second attorney make his argument. The argument should be able to show that the decision to strike the juror was not based on race, sex, or ethnicity.

Controversial Case Before New York Court of Appeals Demonstrates Differing Perspectives on Cross-Racial Identification Instruction

June 24, 2024 | Peter Howard Tilem

In 2017, New York case law created a new precedent indicating that when identification is an issue in a criminal case, and when the identifying witness and defendant are seemingly of different races, the defendant is entitled to a charge on “cross-racial identification.”

This means that when a witness identifies a defendant as the person that committed a crime, and when the witness and defendant are of different races, the defendant has certain rights. The defendant can, for example, request expert testimony, specific questioning, or a jury instruction on what it means to identify a person of a different race. The relevant case law is based on the theory that it is easier to make a mistake when identifying a person of a different race.

Assault and Criminal Possession Case

In a recent case before a New York court, the defendant pled not guilty to assault and criminal possession of a weapon. The victim of the assault was the only person who saw the crime happen, and the entire case was built on the victim’s identification of the defendant as the one who assaulted him. Of note, the defendant and the victim were different races.

New York Police Officers’ “Community Caretaking” Role in Traffic Stops

June 17, 2024 | Peter Howard Tilem

We have previously written that police officers, in New York and elsewhere, have what is called a “community caretaking” duty. This means that officers are not only obligated to enforce the law, but they also must assist an individual when they notice that he or she needs help. Recently, a New York court had to decide how this community caretaking responsibility applies to traffic stops on the road.

In the case that led to the court’s decision, an officer was driving behind another vehicle when the officer noticed one of the passenger doors quickly open and close. The officer thought someone in the car might have needed help, and he therefore initiated a traffic stop. Upon approaching the driver, the officer smelled marijuana. He asked the driver about possible drug use, and the driver admitted to having used ecstasy.

Motion to Suppress

The defendant was arrested, and he quickly filed a motion to suppress. The question before the court, then, was this: was the officer’s stop warranted? At the suppression hearing, the prosecution argued that the stop was acceptable under the officer’s community caretaking duty. The officer genuinely thought someone in the car needed help, and therefore the subsequent actions were reasonable. The trial court agreed with the prosecution and denied the motion to suppress.

New York’s New Standard

The higher court disagreed, and it ended up establishing a two-part test to determine if an officer can legally pull over a car under this community caretaking role. First, the officer must point to specific and objective facts that would lead a reasonable officer to think that a vehicle passenger needs help. Second, the police action must be as unintrusive as possible. Therefore, once the police officer realizes that no assistance is needed, he cannot justify further action under his community caretaking responsibility.

Right to Privacy in Bodily Searches in New York

June 7, 2024 | Tilem & Associates

Under the Fourth Amendment, individuals have a right to be free from unreasonable searches and seizures. The word “unreasonable” can have different meanings in different contexts, but a recent case coming out of the Supreme Court of New York, Third Department, provides interesting case law for one of these contexts. The case serves as a reminder that if you ever have doubts about whether you have been unreasonably searched by a police officer, it is never a bad idea to speak with a New York criminal defense attorney to see if you have options to suppress whatever evidence the officer might have found.

Bodily Examinations

The April 2024 case lists out three kinds of bodily examinations (strip searches) that are common after an officer conducts an arrest: the strip search, the “visual body cavity inspection,” and the “manual body cavity search.” A strip search is when an officer has an individual undress and then visually looks over that person’s body. No physical contact is involved. A visual body cavity inspection, on the other hand, is when the officer visually inspects the individual’s body parts below the waistline. In a manual body cavity search, the officer goes so far as to make contact with the person’s genital or anal area to see if that person is hiding anything there.

In order to initiate a manual body cavity search (the most extreme of the three), an officer must have a warrant from the court, except in emergency situations. Courts recognize that this kind of search is a severe intrusion on a person’s right to privacy, therefore making it difficult for an officer to perform this search without a court’s permission.

Emotional Disturbance as an Affirmative Defense in New York Criminal Cases

May 28, 2024 | Peter Howard Tilem

When a defendant is charged with committing a violent crime in the state of New York, there are various affirmative defenses he can raise in hopes of reducing both his conviction and the resulting sentence. In a recent criminal case before an appellate court in New York, the defendant successfully asked the court to reduce his murder conviction based on the argument that he acted “under the influence of extreme emotional disturbance.” The facts of the case serve as a reminder that this defense applies only in rare circumstances, but that when it does apply, it can serve as a powerful tool in otherwise difficult cases.

The Standard

To successfully argue the affirmative defense of emotional disturbance, a defendant must prove by a preponderance of evidence (1) that he suffered “extreme” emotional disturbance and (2) that there was a reasonable explanation for the emotional disturbance. The first element focuses on the defendant’s mental state, while the second focuses on how the defendant viewed his circumstances at the time of the offense. The affirmative defense of extreme emotional disturbance is different than a psychiatric defense.

April 2024 Case

In the case recently decided by the New York court, the defendant originally argued during trial that he murdered a fellow patient at a medical center because of emotional disturbance. The jury found that this was not a reasonable defense, and it found him guilty.

Understanding a Criminal Defendant’s Rights During Interrogation in New York

May 21, 2024 | Peter Howard Tilem

If you are questioned in relation to a criminal matter in New York, there are important rights you have under the law. Oftentimes, however, the reality is that state actors do not follow the law when interrogating suspects. If you have faced any kind of interrogation and are now being charged with a crime, one tool available to you is filing a motion to suppress. A defendant can file a motion to suppress to ask the trial court to “suppress,” or get rid of, the record of their statements to the officer questioning them. A successful motion to suppress can then have hugely beneficial effects during the rest of a defendant’s criminal proceedings.

In a recent case before the Appellate Division, Second Department, the defendant appealed the denial of his motion to suppress statements he had given to an officer in connection to several burglaries. While the court ended up denying the defendant’s appeal, the order offers several interesting circumstances that can be grounds for a successful motion to suppress.

The Questioning Officer’s Obligations During Interrogation

When an officer questions a suspect, who is in police custody, regarding a criminal matter, the officer must give that suspect his Miranda warnings – that is, the officer must clearly articulate that the suspect has the right to remain silent and has the right to an attorney. If the suspect waives these rights, he must do so knowingly, and he must understand what he is giving up. If a suspect is held for multiple days or multiple rounds of questioning, the officer has a responsibility to reread the Miranda warnings at reasonable intervals.