New York Criminal Attorney Blog

New York Extreme Risk Protection Orders (ERPO), Red Flag Laws Come to New York

October 25, 2019 | Peter Howard Tilem

As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders 490x280-redflag-landing (ERPOS) sometimes referred to as Red Flag Laws. New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime. As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.

New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people. A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.

The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte. Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves. Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.

New York Appellate Court Orders Suppression of Handgun That Defendant Threw While Fleeing from Police

October 23, 2019 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the concept of forced abandonment. Generally, when a defendant discards an item – such as narcotics or a gun – they lose any ability to argue for the item’s suppression. However, when a defendant’s choice to discard an object is the product of forced abandonment, the object must be suppressed. Forced abandonment occurs when the defendant’s discarding of an item was “spontaneous and precipitated by the unlawful pursuit by the police.”

According to the court’s opinion, police received a report of gunshots near an apartment complex. The report indicated that the suspect was a black male in a group of about eight other men. As officers arrived, they saw two black men, one of whom was the defendant. The officers could not initially see anything in either man’s hand. When the men noticed the officers, the men turned around and ran.

The officers followed the men, giving a description over police radio. The officers lost sight of the men for a few moments, but then regained sight of the second male. As officers were arresting this man, one of the officers involved in the chase looked at a nearby apartment building and saw the defendant with a gun in his hand. The defendant threw the gun and ran. Police caught up to the defendant, arrested him, and charged him with possession of a firearm.

A New York Criminal Defense Attorney Should Be a Skilled Negotiator

October 17, 2019 | Tilem & Associates

When most people think about the characteristics they want in a New York criminal defense attorney, terms like aggressive, vigilant, and zealous often come to mind. And to be sure, these are all traits that a well-rounded defense attorney should possess. However, this most certainly is an incomplete list. One of the most essential characteristics for all New York criminal defense attorneys to have is the ability to negotiate on behalf of their client.

One of the areas in which negotiation is especially important is when discussing plea agreements. Many criminal cases end up in a negotiated guilty plea for an agreed-upon sentence. Other plea agreements are “open guilty pleas,” meaning the defendant places all sentencing discretion in the hands of the judge, potentially with a recommendation from the prosecutor.

As we have reported in the past. Plea bargaining is not only important but having a criminal defense attorney who can plea bargain effectively is a basic constitutional right. Please read our past blog about the US Supreme Court vacating guilty pleas for ineffective assistance of counsel.

New York Court Reverses Defendant’s Conviction Based on Police Officers’ Purported “Inventory Search”

October 11, 2019 | Tilem & Associates

Recently, we conducted a suppression hearing in New York County (Manhattan) Criminal Court, in a DWI case where the Court suppressed evidence that was found pursuant to an inventory search. Courts are increasingly scrutinizing inventory searches. In July, a state appellate court issued a written opinion in a New York forgery case discussing whether the police officers’ search of the defendant’s vehicle was legal. Ultimately, the court concluded that the search was not a valid inventory search, and reversed the defendant’s conviction.

Under New York criminal law, most searches must be supported by a warrant. However, there are exceptions to this general rule. One exception is the inventory search. An inventory search is when a police officer searches a person’s car after conducting a valid arrest. The justification for the inventory-search exception is that inventory searches serve three purposes:

They protect the owner’s belongings;

IS THE NATIONAL FIREARMS ACT (NFA) DEAD?

October 3, 2019 | Peter Howard Tilem

The National Firearm Act of 1934 (commonly known as the “NFA”) was the first federal gun control act and for the first time created a national registry of purchasers of “Machine guns”, “sawed-off shotguns” and “silencers”. In addition, a $200 tax is imposed on each transfer of any NFA item and waiting periods can be long.

However, with the recent introduction of innovative new guns and technology that seem to have effectively circumvented the NFA, is the NFA still a useful law?

More than two years ago, we wrote about a new and innovative “shotgun” that has since taken the forearms world by storm. Originally introduced as the Mossberg Shockwave and then the Remington Tac-14, these shotguns came with a standard 14 inch barrel and an overall length of just over 26 inches. The Bureau of Alcohol Tobacco and Firearms (BATF) had examined samples of these firearms and determined that these were legal under the NFA for reasons discussed at greater length in our article about these firearms.

Can New York Police Officers Search a Car if They Smell Marijuana?

September 15, 2019 | Tilem & Associates

On July 31, 2019, a state appellate court issued a written opinion in a New York drug case discussing whether police officers can search a person’s car if they smell marijuana. Ultimately, the court concluded that the search was permissible because the smell of marijuana gives rise to probable cause to search the vehicle. With that said, as more states relax the laws prohibiting the possession of marijuana, courts across the country are rethinking this holding.

According to the court’s opinion, police officers stopped a vehicle in which the defendant was a passenger. Once the officers stopped the car, they claimed the smell of marijuana was “emanating from the vehicle” upon their approach. The police officers ordered the driver and two passengers, one of whom was the defendant, out of the vehicle. The officers searched the defendant, put him in handcuffs, and placed him in the back of their squad car. They then searched the car, finding a small amount of marijuana in the car’s ashtray as well as 16 packets of cocaine in the rear of the vehicle, near where the defendant was sitting.

The defendant, charged with possession of cocaine, filed a motion to suppress the cocaine. The defendant argued that the police officers lacked probable cause to search the vehicle. He also claimed that the cocaine should be suppressed because he was illegally handcuffed and placed in the back of the police car. The defendant did not contest the validity of the traffic stop; only the officer’s decision to search the vehicle.

SCOTUS Issues Case Discussing Police Officers’ Ability to Take the Blood of Unconscious New York Motorists

September 8, 2019 | Peter Howard Tilem

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Courts have long held that to be considered “reasonable”, a search must be supported by the issuance of a valid search warrant. To obtain a warrant, police must fill out an affidavit explaining the basis for their belief that the search is necessary, and present the affidavit to a magistrate, who makes the legal determination if the warrant is justified. Recently, the U.S Supreme Court issued an opinion in a case that may impact when police officers are permitted to take blood when they suspect someone is violating New York DUI laws.

While a warrant is necessary for most searches, there are a number of exceptions to the search warrant requirement. These include:

The plain view doctrine;

New York Court Reverses Murder Conviction Based on Prosecution’s Failure to Hand Over Video Surveillance Footage

September 3, 2019 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York homicide case discussing the obligation that the prosecution has to disclose evidence to the defense. Ultimately, the court reversed the defendant’s murder conviction because it found that the prosecutions’ failure to provide video evidence undermined confidence in the jury’s verdict.

According to the court’s opinion, the defendant was convicted of murder. At the defendant’s trial, several eyewitnesses testified to seeing the defendant in the area immediately before the shooting. One witness identified the defendant as the shooter, but admitted that she only had a brief view of the side of the shooter’s face. The second witness saw the defendant and the victim in the vicinity of the shooting, but lost sight of the two men about a minute before the shooting. The third witness knew both the defendant and the victim, and testified that the defendant ran up to the victim, began arguing with him, and then shot him. The third witness had pending robbery charges against him, and was offered a deal in exchange for his testimony.

In his closing, defense counsel argued that there should have been a video of the shooting, given that it occurred outside an apartment building that had surveillance cameras visible. In his closing, the prosecutor noted that detectives were able to obtain video footage from nearby, and argued that it was “common sense” that if video footage of the apartment complex was available, it would have been presented.

New York Prosecutors Cannot Make Jury-Selection Decisions Based on Race

August 28, 2019 | Tilem & Associates

New York criminal defendants enjoy many important constitutional rights, one of which is the right to a jury drawn from a cross-section of society. In the 1986 United States Supreme Court case, Batson v. Kentucky, the Court determined that the defendant was deprived of his constitutional rights when the prosecution struck all black potential jurors from the jury panel, resulting in an all-white jury.

Since then, the Court has made it clear the prosecutors cannot use a potential juror’s race as a decision in whether to accept or reject that juror. In its most recent case discussing race in the jury-selection process, the Court again affirmed the principle that race should not be a consideration when selecting a jury.

This case involved a black man who was previously tried five times for the murder of four furniture store employees, three of whom were white. In the first three trials, the case either resulted in a mistrial based on the prosecution’s race-based jury-selection techniques or the jury’s verdict was reversed on appeal based on prosecutorial misconduct. The fourth and fifth trials resulted in hung juries. Thus, this time was the sixth time the state tried the defendant for murder.

New York Court Determines Sex Offender Did Not Need to Register Facebook Account

August 21, 2019 | Tilem & Associates

Sex offenses are serious crimes, and a conviction for a New York sex crime can carry with it many repercussions aside from potential jail time. One of the most onerous consequences for those who have been convicted of a sex offense is the requirement that they register as a sex offender with the Division of Criminal Justice Services. Depending on the type of offense, a defendant may be required to register for a certain number of years, or for life.

The specific requirements that a defendant is subject to depends on the type of crime for which they were convicted. However, registration requirements are notoriously complex. Indeed, it is not uncommon for someone who is subject to registration requirements to violate the law without knowing that they have failed to comply with the registration requirements. This can result in an entirely separate crime, called a failure-to-register offense. A recent state appellate decision discusses New York sex offender registration requirements as they pertain to social media accounts.

According to the court’s opinion, the defendant was previously convicted of an offense that classified him as a level-three sex offender. As a result, the defendant had to register “any change of address, internet accounts with internet access providers belonging to such offender, [or] internet identifiers.” New York law defines an internet identifier as “electronic mail addresses and designations used for the purposes of chat, instant messaging, social networking or other similar internet communication.”