New York Criminal Attorney Blog

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.”

Recent New York Appellate Decision Highlights the Importance of Obtaining a Favorable Jury Instruction

August 15, 2019 | Tilem & Associates

In a New York criminal trial, after both parties present their evidence, the judge will instruct the jury on the applicable law. The court’s jury instructions, or jury charge as it is also known, is an essential part of the trial because it frames how the jury will view the case and what questions the jurors must answer. Like other phases of the trial, each side can present proposed jury instructions to the court in hopes of obtaining a favorable instruction.

One of the most important jury instructions in a New York violent crime case is a missing evidence instruction. Missing evidence instructions can be based on physical evidence or witness testimony. A missing witness instruction is when the court explains to the jury that it can “draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events.” A recent case illustrates the importance of a missing witness instruction.

According to the court’s opinion, the victim was walking with her boyfriend as the defendant approached them from behind. As the defendant neared the couple, the victim’s boyfriend saw that the defendant had a gun and pushed the victim out of the way. The victim fell to the ground, and looked up at the defendant as he shot her. The victim was later found by police and identified the defendant.

Governor Cuomo Signs Additional Gun Control Measures Into Law

August 5, 2019 | Peter Howard Tilem

As gun rights lawyers we try to keep the public updated on significant changes to New York gun laws. Several new laws are going into effect in New York and gun owners need to be aware.

First, a new gun storage law was passed which makes it a misdemeanor for a gun owner that lives with children under 16 to leave the gun unlocked. The measure amends penal law section 265.45 and leaving a gun unlocked when children live in the home is a class “A” misdemeanor punishable by up to 1 year in jail. In addition, a new penal law section was added 265.50 which makes it a violation, punishable by 15 days in jail to leave a gun unlocked even if there are no children in the home.

Both of these safe storage laws are likely to be challenged and struck down because the United States Supreme Court has made it clear that the Second Amendment protects the right of a person to have a gun for self-defense. By requiring that guns in your home be locked, the government is specifically preventing you from having an accessible gun for self defense.

New York Firearms Attorneys Get 13 Guns, Hundreds of Rounds of Ammunition Suppressed – 12 Count Indictment Dismissed

July 8, 2019 | Tilem & Associates

Guns, ammunition and magazines that were suppressed by the Judge

New York, Second Amendment attorney and NRA Firearms instructor Peter Tilem scored a major victory in Rockland County Court earlier today, when the Judge holding a suppression hearing ruled that there was no probable cause for the arrest of his client and ordered 13 guns, hundreds of rounds of ammunition, and high capacity magazines, called “high capacity ammunition feeding devices” suppressed, meaning that they could not be used as evidence at trial because of the fact that they were illegally seized. The decision came after an intense suppression hearing in Rockland County Court where two senior police officers testified about the circumstances surrounding the arrest and interrogation of both individuals charged in a 12 count indictment.

Following reports of shots fired on July 8, 2018, in the area of the New York – New Jersey border in Rockland County, police from both New Jersey and New York police departments located three individuals firing weapons which were lawfully purchased and possessed in New Jersey. The handguns were unlicensed in New York and the individuals were found less than a 1/4 mile over the border in New York. In addition, some of the weapons which were lawful in New Jersey violated New York’s “Safe Act” and magazines that were legal in New Jersey violated New York’s ban on magazines capable of accepting more than 10 rounds of ammunition.

Do Federal Gun Laws Apply in New York?

June 30, 2019 | Tilem & Associates

Whether you are a resident of New York state, or are just visiting, you are expected to know and follow all state and federal laws. This is particularly important for criminal laws and gun laws. But even the courts can sometimes have a hard time deciding which acts are unlawful and what a criminal statute requires. The Supreme Court recently heard oral argument in a case involving the immigration status of a criminal defendant and what the government is required to prove.

According to the court’s opinion, the defendant was present in the United States on an F-1 student visa. He was dismissed from the university he was attending in December 2014, and his student visa status was terminated in February 2015. After his status was terminated, he stayed in the United States. Later that year, he went to a shooting range, bought ammunition, and rented a firearm for an hour. He was staying at a hotel, and several days later, an employee told police that he had been acting strangely. The FBI spoke with him, and he admitted to firing a firearm at the shooting range. The police searched his hotel room and also found the rest of the ammunition he had bought. The defendant was charged with two counts under 18 U.S.C. § 922(g)(5)(A).

Under that statute, it is unlawful for a person “who, being an alien . . . is illegally or unlawfully in the United States … to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(5)(A). If found guilty, a person can be sentenced to a fine, and up to ten years imprisonment.

New York Court Holds Jury Nullification Was Effective Strategy

June 19, 2019 | Tilem & Associates

The concept of jury nullification is an important concept for experienced criminal defense lawyers to understand. As a by product of our system of justice, a jury has the power to acquit even those who have had the charges poven against them. This is a fact, largely kept secret from the public and not sanctioned by the Courts. In People v. Goetz, the Court of Appeals stated: “While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called mercy-dispensing power,’ . . . is not a legally sanctioned function of the jury and should not be encouraged by the court.”

Jury nullification is when the jury ignores the law because it believes that its application in a specific case is unjust. Essentially, a jury who nullifies believes that the defendant was guilty of the crimes he was charged with, but that convicting him under the specific circumstances would not be in the interest of justice. Jury nullification is not an official part of the criminal law, and in some jurisdictions attorneys who advance a nullification theory to the jury can be sanctioned by the court for violating the profession’s ethical code. Indeed, a defense attorney cannot explicitly request the jury nullify, and if she chooses a nullification strategy, she must go about it subtly.

In June, a state appellate court issued an interesting opinion in a New York burglary case discussing whether an attorney’s strategy to argue for jury nullification constituted effective representation. The court concluded that, given the facts of the case, the chosen jury-nullification strategy was appropriate and a potentially effective defense to the crimes charged. Thus, the court upheld the defendant’s conviction.