New York Criminal Attorney Blog

New York Appellate Court Reverses Sentence Based on Violation of Defendant’s Right to Be Present at Sentencing Hearing

December 16, 2017 | Peter Howard Tilem

New York has enacted certain laws that are designed to protect a defendant’s rights during criminal prosecutions and sentencing. As seasoned New York criminal defense lawyers, we are well versed in these procedural rules and understand how important it is to ensure that our clients receive the fair and equitable treatment that they deserve. One of these rules requires that a defendant be present at the time a sentence against him or her is pronounced. A recent New York appellate opinion discusses whether this rule applies to the re-imposition of an original sentence.

The background of the case is as follows. The defendant entered a guilty plea to a manslaughter charge and attempted murder charge in 2001. As a result, he was sentenced to 25 years in prison for each count, to be served concurrently. At the sentencing hearing, the judge did not mention post-release supervision. It was also omitted from the sentence and commitment order.

In 1998, New York legislators voted to require a mandatory period of post-release supervision for any determinate state prison sentence. Failing to notify the defendant of this term during the plea provided a basis for a defendant to move to vacate a plea. Subsequently, New York courts concluded that any defendant who enters a guilty plea must be informed of the consequences, including the imposition of post-release supervision. The New York Legislature voted to enact an exception to this requirement. Under the law, the notification requirement only applied to determinate sentences imposed between September 1, 1998, and June 30, 2008. Furthermore, the notification must only be provided if a statutorily required PRS term was not pronounced verbally during a sentencing hearing. Stated differently, the law allows the court to re-impose an original determinative sentence without a term of post-release supervision.

New York Appellate Court Upholds Murder Conviction, Rejects Defendant’s Challenge to Voluntariness of Confession

December 14, 2017 | Tilem & Associates

New York Criminal Defense Lawyers need to be aware of the countless procedural rules that are absolutely essential to follow in order to ensure that you protect your rights at every step of a criminal investigation or prosecution in addition to the substantive law. At Tilem & Associates, our diligent team of New York homicide defense lawyers has substantial experience and knowledge when it comes to these procedural rules and navigating the courtroom. A recent New York appellate opinion illustrates there are countless rules that apply to how law enforcement can secure a confession from a witness.

In the case, the defendant was convicted of murder, attempted robbery, and burglary. The defendant was not originally a suspect in the matter, but throughout their investigation, the detectives identified inconsistent information in statements that the defendant provided to the police. The police brought the defendant in for questioning, which lasted for several hours during the course of three days. The defendant implicated two other individuals in the crimes and ultimately confessed to murdering two victims, ages 21 and 18 respectively, who were siblings and who lived together in an apartment in Queens.

The events giving rise to the murders involved one of the victims phoning the defendant, who was her ex-boyfriend, and asking for help. The authorities were eventually called to the apartment, where the defendant was waiting. The detectives collected a broad spectrum of evidence from the scene of the crime and conducted multiple interviews of persons related to the incident who potentially had information. The defendant was one of the people who were initially interviewed, even though he was not listed as a suspect at first. By the end of the investigation, he was charged with six counts of murder, among other things.

New York Appellate Court Upholds Lower Court’s Decision to Relieve Defendant’s Attorney Based on Conflict of Interest Issues

December 9, 2017 | Tilem & Associates

Ensuring that you have the right attorney handling your claim and representing your interests is critically important. At Tilem & Associates, our seasoned team of New York gun crime lawyers has handled countless matters involving criminal investigations and prosecutions. This means we not only feel confident in the courtroom but also understand the many different procedural and substantive aspects of your matter. As a recent New York appellate opinion demonstrates, it is essential to ensure that you have addressed all potential procedural issues as soon as possible.

The background of the case is as follows. The defendant brandished a firearm in front of a friend that was secured in his waistband and threatened to use it on another individual. He then went to a park, where he was seen near a specific individual. The police arrived, and the defendant and the individual fled in separate directions. Multiple witnesses testified to seeing defendant throw the gun, which was later located by the police. The police also found drugs, which the other individual admitted to owning. The defendant was charged with criminal possession of a weapon and resisting arrest. The other individual was charged with drug possession.

A public defender was assigned to the defendant’s claim. Roughly eight months later, the prosecution provided evidence showing that another public defender represented the other individual on his criminal charges stemming from this same set of facts. The attorney for the defendant stated that he intended to use the other individual as a potential witness for the defense before he learned about the potential conflict of interest. The defendant indicated that he wanted the public defender to continue representing him even though the attorney indicated that it may not be ethical for him to do so because another attorney in his office represented the other individual.

NEW YORK DWI LAWYERS BEATS ANOTHER REFUSAL HEARING – CLIENT AVOIDS LIFETIME REVOCATION

December 4, 2017 | Peter Howard Tilem

Refusing to take a chemical test in New York can come with very serious consequences. For example, a motorist who refuses a properly requested breath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case. If a person has prior alcohol related incidents, the period of revocation can be much longer, even life. Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process. In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked. In New York the criminal case, the DWI, and the refusal follow two different tracks. The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV. In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal. He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.

STATE POLICE SERGEANT ARRESTED FOR RECORDS TAMPERING RELATED TO BREATHALYZER MACHINES – 20,000 DWI CASES COULD BE JEOPARDIZED

November 21, 2017 | Peter Howard Tilem

Experienced DWI attorneys understand the potential errors associated with breath test machines even when calibrated and functioning properly. However, recently a New Jersey State Police Sergeant assigned as a coordinator in the Alcohol Drug Testing unit has been arrested for skipping a step in the recalibration of breath test machines and falsifying records to certify that he performed the required check. Specifically, the Sergeant is alleged to have skipped the temperature check while re-calibrating the machines and then falsely certifying that he performed the check. The Sergeant was responsible for calibrating breathalyzers in Middlesex, Ocean, Monmouth, Union and Somerset counties over a period of seven years and State officials have identified well over 20,000 DWI cases that could be affected by this arrest. This arrest comes on the heels of a Police lab technician having been accused of faking a test in a Marijuana case last December. That disclosure put into question almost 15,ooo cases.

The issue with breath tests is even more acute than drug cases because generally the police do keep the drugs that were tested for a period of time even after a conviction and so those drugs are available to be retested. However, when you give a breath sample, no part of the sample is maintained for retesting and therefore the momentary reading from the breath machine plays a crucial part in the case. In addition, in most drug cases the issue is the presence or absence of a controlled substance and the total weight of the substance. The concentration of the controlled substance in the sample does not matter. In DWI cases, however, small differences in the percentage of alcohol detected in a breath sample can have a huge impact on the outcome of a case and can in fact impact whether charges are brought or not.

The issue of calibration goes to the heart of the accuracy of these devices and goes to the heart of the accuracy of what is often the key evidence in DWI cases. For example, body temperature can affect the breath reading and as experienced DWI lawyers understand a person with a fever can have an artificially high read on a breath test. Therefore, of course, the temperature of the simulation solution during a re-calibration can be critical. The problem is compounded by the substantial weight given to the results of these machines by prosecutors, courts and even jurors and at the same time manufacturers of breath machines attempt to keep the inner workings of these machines a secret, treating the inner workings of the machine as a trade secret.

New York Appellate Court Reverses Gun Charge Based on Improper Admission of Unlawfully Seized Evidence

November 20, 2017 | Tilem & Associates

In many situations, it is best to seek guidance from an experienced New York criminal lawyer as early in the process as possible. The authorities do not always have your best interests in mind, whereas a criminal defense lawyer can advise you of your rights at each step of the process. As we have discussed in prior blogs about cases such as DWI or crimes involving possession of guns marijuana or drugs seeking suppression of the evidence, may be a defendant’s best defense. A well-established constitutional rule states that evidence obtained from unlawful searches and seizures cannot be used against the accused. As a recent criminal case demonstrates, whether you can successfully assert this defense can have a huge impact on your involvement in a criminal investigation. Continue reading

New York Appellate Court Orders New Trial in Case Involving Improper Admission of Hearsay Evidence Involving DNA Testing

November 12, 2017 | Tilem & Associates

Knowing which evidence can be used against you in a New York criminal trial or prosecution is critically important to ensuring that you receive fair treatment. At Tilem & Associates, our seasoned New York criminal defense lawyers have counseled numerous residents on their rights and assisted them with ensuring that the prosecution plays by the rules. A recent appellate opinion demonstrates the complexity that can often arise with evidentiary issues, especially when it comes to DNA evidence.

In the case, the appellate court was asked to consider whether a defendant’s constitutional right to confront persons who offer testimony against him was violated by the admission of DNA evidence by a witness who did not supervise or generate the DNA evidence. The defendant was charged with a number of offenses stemming from three burglaries. The first burglary involved a dry cleaning store and a number of other stores that were connected through a common basement. The defendant was seen on surveillance footage in the stores, and the police took swabs of streaks of blood that they identified on the rear door of the building. The swabs were sent to the Office of the Chief Medical Examiner (OCME) for DNA analysis.

The second incident involved a home furnishings store. The police located a receipt covered in blood near a check-out stand, which they also sent to OCME for DNA analysis. Eventually, the DNA evidence from the two burglaries was matched with the defendant’s DNA profile that was stored in the database. During trial, the prosecution called one witness from OCME to testify about the DNA evidence. The witness testified about the DNA evidence based on his review or reports that other lab technicians had prepared and about other test results that he did not run himself. The defendant objected at several points throughout the testimony, stating that the prosecution was actually eliciting evidence from witnesses who were not going to testify at trial, i.e., the technicians who performed the other tests and DNA analyses. Ultimately, the trial court allowed the witness to testify in a conclusory and general fashion regarding the evidence without personal knowledge of the tests and analyses, including the DNA profile generated from the swabbing of the defendant.

New York Appellate Court Reverses Decision Upon Finding of Judicial Bias and Impropriety

October 31, 2017 | Tilem & Associates

One of the most confusing aspects of a New York criminal case for defendants and suspects to navigate is the procedural rules that apply. There are countless procedural rules that apply in criminal cases, which are primarily designed to ensure a fair proceeding and to provide the parties with fair notice about certain decisions, hearings, and events related to the claim. As New York DWI lawyers, we pride ourselves on staying current with procedural changes and ensuring that our clients’ rights are protected at each step of the legal process. Failing to make objections to procedural errors or to hold the prosecution accountable can have dire consequences for a defendant’s rights.In a recent appellate opinion, the defendant was charged with driving while impaired. In response to the charges, the defendant filed a motion to dismiss after his arraignment. The judge presiding over the motion denied the defendant’s request, and the matter proceeded to a bench trial. A bench trial is a trial that is conducted before a judge without a jury. The same judge who presided over the initial motion presided over the bench trial. Ultimately, the judge found the defendant guilty and issued a sentence against him in response to the conviction.

The defendant appealed the conviction. The matter was heard by the same judge who presided over the pretrial motion and the bench trial. Between the time of the conviction and the defendant’s appeal, the judge was elected to the appellate court. The judge reviewed the defendant’s appeal and upheld the conviction. The defendant appealed again, arguing that the judge should have recused himself from the appeal and that the judge’s failure to do so resulted in a reversible error.

New York Appellate Court Upholds Admission of Recorded Jailhouse Phone Call Between Defendant and Girlfriend

October 26, 2017 | Tilem & Associates

Understanding which types of evidence can be used against you during a New York criminal investigation or New York criminal trial is extremely important. Having a seasoned and vigilant New York assault defense lawyer at your side throughout the entire process can mean the difference between knowing when to object to a proffered piece of evidence or unknowingly letting it slip by and be used against you.

In a recent New York appellate opinion, the defendant challenged his conviction based on the trial court’s decision to allow evidence of a phone call between the defendant and his former romantic partner at trial to be used as admission evidence. The defendant was charged with multiple counts of trespass, criminal mischief, and assault involving his ex-girlfriend. Through evidence offered at trial, it was clear that the defendant and his former girlfriend had a rocky relationship. The prosecution provided evidence regarding a series of events. In one instance, the defendant allegedly broke the ex-girlfriend’s cable box and struck her face. In another, he allegedly pushed her down and struck her chest, resulting in two broken ribs. The third incident involved the defendant’s unauthorized entry into the ex-girlfriend’s apartment, where he remained until police officers arrested him.

The prosecution did not rely on the victim’s testimony, conceding that she suffered from drug and alcohol abuse as well as mental health issues, a history of violence toward romantic partners, and a lengthy criminal record. During trial, the prosecution requested permission to play a tape recording of a telephone conversation between the defendant and the ex-girlfriend that was made while the defendant was incarcerated. The prosecution offered the tape as an adoptive admission by silence of the defendant’s guilt. The ex-girlfriend continually accused the defendant of causing her to suffer broken ribs, and the defendant did not deny the accusations. The trial court did not deny use of the tape recording but instead provided the jury with an instruction regarding the tape, encouraging them to consider carefully whether the defendant’s silence in response to the ex-girlfriend’s statements regarding the broken ribs constituted an admission of guilt.

New York Appellate Court Upholds Consecutive Sentencing in Burglary and Murder Conviction

October 18, 2017 | Tilem & Associates

Sentencing is one of the most challenging aspects of any trial, and perhaps the most critical part of the legal process when it comes to how significantly the matter will affect the defendant’s future. At Tilem & Associates, our seasoned New York criminal defense lawyers assist defendants with ensuring that they receive no greater a sentence than they deserve. As a recent appellate opinion demonstrates, having a knowledgeable attorney in your corner can make all of the difference.

In the appeal, the defendant asked the court to review whether there was a sufficient legal basis for imposing consecutive sentences. The defendant was charged with a number of crimes, including burglary in the first degree and murder in the second degree. The defendant was accused of breaking into his ex-girlfriend’s home and stabbing her with a kitchen knife. Although the defendant admitted to causing the victim’s death, he asserted a defense indicating that he was under an extreme emotional disturbance.

Ultimately, the defendant was convicted of two counts of burglary and intentional murder. During sentencing, the prosecution contended that consecutive sentences were appropriate, due to the evidence presented regarding the brutal nature of the murder, which involved the defendant dragging the victim down a flight of stairs and stabbing her at least 38 times. Specifically, the prosecution noted that the defendant caused injuries to the victim on two separate occasions: when he dragged her out of bed upstairs, and when he inflicted fatal wounds on her downstairs with the knife. In response, the defendant argued that consecutive sentences were inappropriate because the crimes constituted one continuing sequence of events that the defendant had formulated prior to breaking into the victim’s home.