New York Criminal Attorney Blog

Preservation of Error in New York Criminal Cases

July 21, 2018 | Tilem & Associates

When someone is convicted of a crime in New York, they are entitled to appeal the conviction or to have a higher court review the conviction to make sure that the judge presiding over the trial did not commit any legal errors that may have invalidated the conviction. However, as a general rule, a New York criminal appeal will only be successful if certain steps are taken at trial to preserve the error for appellate review.

The concept behind requiring the preservation of error is that a judge should have the opportunity to review the alleged error at the time it was made so that she can revisit the decision. If a trial judge’s potential mistake is not brought to the attention of the trial judge, there is no opportunity for the judge to reverse their decision or take other corrective actions to remedy the error. In addition, the legislature wants to encourage litigants to bring potential errors to the attention of the judge sooner, rather than later, in order to reduce the chance that a trial is carried on in vain.

For these reasons, a party must generally make a specific objection in order to preserve an error for appellate review. Absent a specific objection, the reviewing court will likely dismiss the appeal. A recent case illustrates this concept.

Supreme Court Holds that Police Need a Warrant to Obtain Cell Phone Location Data

July 14, 2018 | Tilem & Associates

Earlier this month, the United States Supreme Court issued a written opinion in a robbery case requiring the court to determine whether the police should have obtained a warrant prior to obtaining the defendant’s cell phone location data. Ultimately, the court concluded that the level of intrusion in obtaining cell phone location data amounts to a “search” under the Fourth Amendment and should be supported by probable cause.

The Facts of the Case

The defendant was arrested after police obtained his cell phone number from another man who was arrested under suspicion of a string of burglaries. The police had no evidence other than this man’s word that the defendant was involved in the robberies.

Taking the defendant’s cell phone number, the police contacted the defendant’s cell carrier and obtained historical location data over a 127-day range. The information contained approximately 100 data points per day, for a total of nearly 13,000 data points. The historical location data showed the defendant around the area where the robberies occurred, corroborating the man’s statement that the defendant was involved in the crimes.

Court Discusses “Depraved Indifference” Sub-Section of New York Aggravated Assault Statute

July 7, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York aggravated assault case requiring the court to discuss the “depraved indifference” sub-section of the New York aggravated assault statute. Ultimately, the court rejected the defendant’s argument that the prosecution failed to establish that the defendant’s mindset at the time of the commission of the crime met the requirement of showing a “depraved indifference for human life.”

Assault in the First Degree

In New York, there are several sub-sections under which someone can be charged with aggravated assault. Sub-section § 120.10(3) states that “a person is guilty of assault in the first degree when … [u]nder circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.”

The Facts of the Case

The complaining witness lived with the defendant. One day, the defendant called the complaining witness’s mother, explaining that the complaining witness was acting odd and banging her head against the wall. Over the course of the next few weeks, several people visited the complaining witness’s residence, suggesting that the defendant take her in to get medical treatment. The defendant explained he was hesitant because he did not want to be blamed for her injuries.

New York Appellate Court Reverses Defendant’s Drug Conviction Based on Illegal Arrest

June 30, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued an opinion in a New York drug possession case, reversing a lower court’s decision to deny the defendant’s motion to suppress and holding that the prosecution failed to meet its burden to establish that the defendant’s arrest was legal. In so holding, the court discussed when the prosecution must establish the reliability of information that was given to police.

The Facts of the Case

The defendant was pulled over for two minor traffic offenses by two Syracuse police officers. During the traffic stop, the officers received information that the defendant had an outstanding warrant out of Cortland. One of the officers then contacted the 911 Center, which verified that the defendant had an active warrant. The 911 Center then requested that the police officers detain the defendant until one of their officers could take him into custody.

Common Evidentiary Issues in New York Criminal Cases

June 23, 2018 | Tilem & Associates

New York criminal trial lawyers know that New York criminal trials are all governed by the New York Rules of Evidence (NYRE). The NYRE cover which evidence is admissible and how courts should go about determining whether contested evidence should be admitted and presented to the jury. Given the importance of the matter, many New York criminal trials involve lengthy and detailed arguments about which evidence is admissible in a series of pre-trial motions.

Through either a motion in limine or a motion to suppress, parties are able to deal with evidentiary issues in advance of them arising at trial. This has the benefit of preventing the jury from ever hearing certain evidence, rather than objecting to the evidence as it arises and then relying on a curative instruction given by the judge in hopes of preventing the inadmissible evidence from having an effect on the jury’s decision.

Not all evidentiary issues can be resolved in advance of trial, however. In some cases, a witness testifies to an unanticipated fact. In these situations, an experienced criminal defense attorney must object in a timely manner, state the basis of the objection, and be prepared to argue why the objection should be sustained and the testimony stricken. If a defendant fails to object to certain evidence, including witness testimony, in a timely manner, the issue will be waived for appellate review. A recent court opinion in a New York sex crime case alleging the defendant engaged in predatory sexual assault illustrates several common evidentiary issues.

New York Appellate Court Reverses Defendant’s Conviction Based on Improper Questioning Regarding Prior Robbery

June 15, 2018 | Tilem & Associates

One of the hallmarks of our criminal justice system that evidence of prior criminal conduct is not permitted to show a persons propensity or tendency to commit crimes. Except in very limited circumstances evidence of prior criminal conduct is not permitted on the prosecutions direct case. However, if a defendant chooses to testify the Court is required to hold a pre-trial hearing called a Sandoval hearing to determine in advance what if anything the prosecution can use to cross-examine the defendant about his criminal past. The purpose of the hearing is to weigh and balance the People’s interest in testing the defendant’s credibility and the defendant’s interest in ensuring that he is not convicted because a jury heard about prejudicial prior criminal conduct.

Earlier this month, a state appellate court issued a written opinion in a New York burglary case in which the court was tasked with determining if the defendant was entitled to a new trial when the prosecution brought up the fact that he had previously been convicted of a robbery that was currently in the process of being appealed. Ultimately, the court concluded that the lower court improperly allowed the defendant to be cross-examined regarding the prior robbery, and this error was not harmless. Thus, the court ordered a new trial to be conducted. As we have reported in the past this is not the first case to be revered for such errors. Please see our prior blog.

The Facts of the Case

During a trial for burglary, the defendant chose to testify on his own behalf, which is his constitutional right. After the defendant had finished answering the questions posed to him by his own attorney, the prosecution conducted cross-examination.

It was during this cross-examination that the prosecutor asked the defendant about a prior robbery conviction. Normally, evidence of prior criminal acts is not relevant at trial and may not be explored by the prosecution. However, under certain circumstances, convictions for crimes involving dishonesty – such as theft, robbery, etc. – may be the subject of cross-examination. In addition, one who shows through their past criminal conduct that they are willing to put their interests over those of society’s may be more willing to do so again by lying under oath.

New York Appellate Court Finds Trial Judge Should Have Had Hearing on Defendant’s Motion to Vacate Judgment Based on Uncontested Witness Affidavit

June 7, 2018 | Peter Howard Tilem

Post-Judgment motions such as CPL 440.10 motions can be very important to a person already convicted in criminal cases. Very often an appeal cannot address a problem that occurred at the trial such as a lying witness or ineffective assistance of counsel. In such cases, a post-judgment motion may be the only solution.

Earlier this month, a state appellate court issued a written opinion in a New York arson case discussing the defendant’s motion to vacate the judgment, which was denied by the trial court. The appellate court ultimately held that, given the uncontested evidence presented by the defendant in the motion, the lower court should have granted a hearing to determine if the defendant’s motion should have been granted.

The Facts of the Case

The defendant was charged with first- and second-degree arson. Part of the state’s evidence against the defendant was the testimony of a witness who claimed that the defendant confessed to starting a house fire. After a trial, the defendant was convicted on both counts.

The defendant filed a motion to vacate the judgment and submitted an affidavit from the prosecution witness. The affidavit stated that the witness was told by a police investigator that if she testified on behalf of the defendant, the officer would take her daughter away from her. The witness explained that this was concerning to her. The state offered no contradictory evidence, but the trial court denied the defendant’s motion to vacate summarily, without conducting a hearing on the matter.

New York Court Affirms Denial of Defendant’s Motion to Suppress Firearm

June 1, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun crime case discussing whether the arresting officer’s conduct violated the defendant’s constitutional right to be free from unreasonable searches and seizures. Ultimately, the court concluded that the officer possessed a reasonable belief that the defendant was armed or had recently committed a crime, and thus it held that the search of the defendant was permissible.

Police Interaction with Citizens

Under New York law, there are four levels of interactions between a police officer and a citizen. The more evidence a police officer has to believe that they are in danger or that the suspect has committed a crime, the more authority the officer has to stop, detain, frisk, and search the individual.

The Facts of the Case

The plaintiff was riding in a vehicle as the front-seat passenger, when the car was pulled over by police for a traffic violation. As one of the police officers approached the vehicle, he noticed that the defendant made a sudden move with his hand from his right shoulder to his lap area.

New York Court Excludes Breath-Test Results from DUI Trial Based on Police Officer’s Incorrect Warning

May 22, 2018 | Tilem & Associates

New York DWI lawyers have been following a landmark ruling issued earlier this month, when a state appellate court issued a written opinion in a New York DUI case which determined whether the lower courts properly excluded the results of a breath test indicating that the defendant’s blood-alcohol content was above the legal limit. The court ultimately determined that the warnings provided to the defendant were not correct, and thus the court could not say that he voluntarily consented to the test. This was a critical decision from New York’s highest Court, the Court of Appeals, which interpreted the extent of New York’s “two hour rule” for chemical tests in DWI cases.

The Facts of the Case

The defendant was pulled over and arrested on various charges, including driving under the influence of alcohol. About two hours after his arrest, a police officer asked the defendant if he would consent to a breath test. The defendant refused the test, and the officer read the defendant refusal warnings.

The refusal warnings provided by the officer stated that the defendant’s license would be suspended or revoked, regardless of whether he was ultimately convicted of driving under the influence. The police officer also explained to the defendant that the fact that he refused the breath test could be used against him at trial. The defendant then agreed to take the test, which indicated that his blood-alcohol level was above the legal limit.

The Warrant Requirement in New York Search and Seizure Cases

May 9, 2018 | Tilem & Associates

Lawyers experienced with drug cases often seek to suppress the drugs recovered by the police based upon a violation of the client’s right to not be subjected to unreasonable searches. As a general matter, the Fourth Amendment to the United States Constitution, as well as Article I section 12 of the New York State Constitution, prohibit unreasonable searches and seizures. As a general matter, this means that police must obtain a search warrant prior to conducting a search of a person or their belongings. Even when a search warrant is obtained, however, the police must be able to show that there was probable cause of discovering some kind of criminal activity.

Given this background, someone who is arrested after a search that was based on a warrant still has the ability to challenge the search. Generally, these challenges claim that the warrant was issued on insufficient facts or that the search exceeded the scope of the warrant.

A recent New York drug possession case illustrates the type of analysis courts use when reviewing a search warrant.