New York Criminal Attorney Blog

Court Rejects Defendant’s Motion to Suppress Eyewitness’s Identification

December 5, 2019 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York robbery case requiring the court to determine if the defendant’s motion to suppress the eyewitness’s identification should be suppressed. Ultimately, the court concluded that the witness’s identification was not suppressible, and affirmed the defendant’s conviction for robbery.

Identifications, like other forms of evidence, must be suppressed if they are unduly suggestive. When making this determination, New York courts employ a burden-shifting analysis. First, the prosecution has the burden to show that the police officers’ identification procedure was reasonable and was not unduly suggestive. If the prosecution meets that burden, then it is up to the defense to show that the identification procedure was improper.

According to the court’s opinion, a pizza delivery person was robbed in September, 2011. The following day, the delivery person identified the defendant as the person who robbed him. Police officers did not preserve the photo array. Thirteen months later, the defendant was arrested and identified by the delivery person in an in-person lineup. The defendant was charged with robbery.

U.S. Supreme Court Hears Case Involving Constitutionality of New York Gun Permit Laws

December 3, 2019 | Tilem & Associates

In what is likely to be a blockbuster case the U.S. Supreme Court recently, heard arguments in a case involving New York gun laws. While the parties in this case were not criminally charged for possession of a gun, they prospectively challenged the New York City law banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits. The case is important to New York gun crime law because the U.S. Supreme Court may determine that this specific gun law is unconstitutional. The case may also define the extent of the rights guaranteed under the Second Amendment and the Firearms Owners Protection Act nationwide.

New York City has two types of gun licenses. The first is known as a concealed carry permit, which allows a permit holder to carry a concealed firearm on their person. The second type of license is an “on-premises” license, which allows a permit holder to “have and possess in his dwelling” a pistol or revolver. An on-premises license is specific to a particular residence, and permit holders cannot freely transport a gun. Instead, a limited number of situations are allowed by statute.

One exception allows the permit holder to transport a handgun directly to and from an authorized range or shooting club if it is unloaded and in a locked container. The ammunition must be carried separately. All approved ranges and shooting clubs are located in New York City. Thus, a permit holder cannot transport a gun to a range outside New York City.

New York Court Grants Motion to Suppress after Determining Police Lacked Probable Cause to Search Defendant’s Car

November 27, 2019 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York firearms case discussing whether the police officer’s search of the defendant’s car was constitutionally sound. Ultimately, the court concluded that because the officers lacked probable cause to search the vehicle, anything they recovered as a result of the impermissible search must be suppressed.

According to the court’s written opinion, police responded to a call from the complaining witness that the defendant was threatening him. When police arrived, the defendant was in his parked car, which was out in front of the complaining witness’s home. The complaining witness told police that the defendant had threatened to kill him, and that he believed the threat was a real one because he’d seen the defendant with a gun on a previous occasion. The defendant admitted to the police that he told the complaining witness he would kill him if he came onto his property. The defendant also admitted to having a rifle back at home and being licensed to carry a firearm in Virginia, but not New York.

The officers searched the defendant, finding nothing. The officers then searched the defendant’s car and found a gun near the driver’s seat. The defendant argued that the weapon must be suppressed because the police lacked justification for the search of his truck. The trial court agreed, and the prosecution appealed.

New York Court Holds Police Did Not Have Probable Cause to Pursue Suspect

November 22, 2019 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York gun crime case discussing the defendant’s motion to suppress a firearm that was recovered near where he was arrested. The case allowed the court to discuss whether the police officers’ conduct in stopping the defendant was permissible under state and federal law. Ultimately, the court concluded that the officers attempted to stop the defendant without probable cause, and thus the defendant’s motion was properly granted.

According to the court’s opinion, police received a call reporting a gunshot at a specific intersection. After arriving, police found an unidentified witness about a block away, who reported that he heard the gunshot and had noticed two men walking near the area where the shot originated from. The witness described the men and what they were wearing, but did not indicate that either man had a gun – only that he had seen them at the intersection.

Police continued to the intersection and located the defendant and another man who matched the description given by the witness. Officers asked the defendant to stop. At this point, the defendant’s hands were in his pockets. The defendant turned and ran. The other officer apprehended the defendant a short time later, and recovered a gun nearby after hearing a metal object hit the ground immediately before arresting the defendant.

A Primer on the New York Rules of Evidence

November 15, 2019 | Tilem & Associates

A successful criminal defense lawyer must know the Rules of Evidence in New York. As a general rule, the trial judge is the gatekeeper when it comes to what evidence a jury is able to consider. However, judges are bound by certain rules of evidence which are written by lawmakers. The Guide to New York Evidence closely mirrors the Federal Rules of Evidence, but there are a few differences.

The most basic rule of evidence is that only relevant evidence is admissible. Relevant evidence is defined a, “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence.” However, not all relevant evidence is admissible in a New York criminal trial.

Under rule 4.01(2) all relevant evidence is admissible unless it is precluded by the state or federal constitution, by statute, or by the common law. In New York, there are several rules that can help defendants, as well as few that can hurt them. For example, under Rule 4.27, evidence that a defendant has previously been convicted of a crime is only admissible when it is an element of an offense or, “otherwise essential to the establishment of a legally sufficient case.” If the prosecution cannot establish one of these two situations exist, then a defendant’s prior convictions are inadmissible.

New York Court Reverses Robbery Conviction Based on Improper Admission of Defendant’s Statement

November 9, 2019 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York robbery case, reversing the defendant’s conviction based on the lower court’s improper denial of the defendant’s motion to suppress his statement. Specifically, the statement included his answers to a few questions asked by a detective before the detective read the defendant his Miranda warnings.

According to the court’s opinion, a woman was robbed by an unknown man while walking with a friend. Later, the friend admitted that she had planned the robbery with the unnamed man, the defendant in this case. The friend gave a statement to police implicating the defendant, who was arrested. In her statement, the friend claimed she knew the defendant because they both worked at the same bar.

After he was arrested, a detective sat down with the defendant. Before reading the defendant his Miranda rights, the detective asked the defendant a few preliminary questions about his employment and work history. The defendant answered the questions, and then the detective read the defendant his Miranda rights and continued to ask questions about the robbery. The defendant was ultimately arrested and convicted of robbery and related charges.

New York Court Suppresses Gun Seized in Warrantless Search of Backpack

November 3, 2019 | Tilem & Associates

Earlier this month, a state appellate court issued an opinion in a New York gun case holding that police were not justified in searching the defendant’s backpack without a warrant. The case presents an informative and important discussion of the exigent-circumstances doctrine, which allows police to bypass the warrant requirement in certain limited situations.

According to the court’s opinion, police officers went to the defendant’s home based on a tip that a man was selling drugs out of the home. The tip also mentioned that the man selling drugs kept a gun in a distinctive backpack. Upon arriving at the scene, officers saw the defendant smoking a joint on the front porch. The defendant allegedly stood up, cursed, grabbed a distinctive looking backpack, and ran inside.

Officers followed the defendant into the home, and observed the defendant toss the backpack on the floor in the home. Police handcuffed the defendant on the second floor. After police secured the defendant, they opened the backpack. Inside the backpack was a gun and some marijuana. The defendant was charged with criminal possession of a weapon and possession of marijuana.

New York Court Allows Admission of Defendant’s “Blurt Out” Statement

October 28, 2019 | Tilem & Associates

Under the Fifth Amendment to the United States Constitution, citizens have a right to be free from self-incrimination. The extent of this right, including in what situations it applies, has long been disputed. Currently, courts consider the Fifth Amendment to attach when police engage in the custodial interrogation of a suspect.

Determining when police conduct amounts to custodial interrogation involves a two-prong inquiry. First, courts consider whether the suspect is in custody, or its functional equivalent. Proving a suspect is in custody requires courts use an objective approach, asking whether a suspect reasonably believed they were free to leave. If so, the suspect was not in custody.

A suspect’s Fifth Amendment rights will not attach merely because they are in custody; police must also question or interrogate the suspect. For example, the police may question a suspect about their involvement in a crime. Courts have held that an officer’s conduct that falls short of direct questioning may still trigger interrogation. Thus, any actions taken by an officer reasonably expected to elicit a response from the suspect may count as an interrogation. However, when a statement is spontaneously made, it will not likely be suppressed. A recent case illustrates this concept as it pertained to a “blurted out” confession after a traffic stop. While the suspect was unquestionably in custody at the time she made her statement, it was made with no prodding, encouragement, or questioning from the police.

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.