New York Criminal Attorney Blog

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.

New York Appellate Court Upholds Sentence in Sexual Assault Case, Noting that the Defendant Failed to Preserve Key Objections

October 18, 2017 | Tilem & Associates

One of the most nerve-wracking and stressful phases of any trial is the sentencing phase. During this portion of the trial, a sentencing judge will consider a wide variety of factors in determining whether the defendant must face incarceration or other penalties. There are many rules that apply to sentencing that are designed to protect defendants from unfair sentences, or from facing penalties that exceed the scope of the alleged misconduct. As experienced New York City gun crime lawyers, the legal professionals at Tilem & Associates have the skills and knowledge it takes to navigate a sentencing hearing successfully and appropriately.

A recent appellate opinion highlights how important it is to understand the scope of your rights and available objections during a sentencing hearing. During the summer of 2011, a police officer was accused of raping, sodomizing, and sexually assaulting a schoolteacher in a courtyard area while off duty. The defendant used his police-issued firearm to threaten the victim, and evidence indicated that the weapon was loaded at the time the assault occurred. The defendant was charged with three counts of predatory sexual assault and three counts of a criminal sexual act in the first degree, and he was convicted of all of the charges. During sentencing, the defendant received a 25-year prison term with an additional 20 years of supervision after release for each of the counts of criminal sexual conduct and for each related count of predatory sexual assault. The sentence was to run consecutively, for a total of 75 years to life, with the sentence imposed for each criminal act running concurrently to the related conviction for predatory sexual assault.

The defendant appealed the consecutive sentencing, and the reviewing court upheld it, finding that the sentencing judge had a proper legal basis for imposing the consecutive sentences. It reasoned that while the convictions for predatory sexual assault involved similar criminal acts rendering concurrent sentences appropriate, the convictions for criminal sexual acts involved three distinct events, thereby justifying the consecutive sentencing.

Appellate Court Reverses Manslaughter Charge Based on Improper Jury Instructions

October 14, 2017 | Tilem & Associates

One of the most critical aspects of a criminal trial is providing instructions to the jury before they begin their deliberations. Before the jury is instructed, the prosecution and defense can consult with the judge about the instructions that they believe should be provided. Whether the jury is instructed about a particular defense or presumption can have serious implications for your trial. As seasoned New York City criminal defense lawyers, we routinely assist defendants with ensuring that the jury receives the appropriate and lawful set of instructions.

A recent case demonstrates the importance of jury instructions. The facts of the case as follows. The defendant was charged with second-degree murder and other charges including assault and possession of a weapon involving the fatal shooting of one victim and the shooting of a second victim. The surviving victim was the primary witness during the defendant’s trial. Evidence at trial indicated that the parties knew one another and that the two victims were friends of the defendant’s mother’s tenant. The defendant, along with his mother, had grown frustrated about the men lingering around the apartment and had repeatedly contacted police authorities to have them removed. On the night the shooting occurred, the police refused to arrest the two victims, stating that they were not engaging in criminal activity out front of the apartment. The defendant made a statement to the police indicating that he may engage in violence toward the victims using a gun.

The next day, the defendant left his home with a gun concealed in his jacket. The defendant confronted the two men, who were standing outside of a nearby bodega. The men eventually engaged in an argument and one of the victims picked up a mop from inside the bodega. The evidence presented at trial suggested that the victim with the mop raised it toward the defendant, at which point the defendant revealed his firearm and shot at both victims, wounding one and killing the other. According to the record and the victim’s testimony, however, it was somewhat unclear whether the mop was raised at the same moment the defendant brandished the gun, or whether the mop was raised prior to the gunshot.

VACATING A CONVICTION AFTER TRIAL PURSUANT TO CPL 440.10 – A COURT MAY VACATE A CONVICTION IF THE KEY WITNESS AGAINST THE DEFENDANT LIED AT TRIAL ABOUT PRIOR CRIMINAL ACTIVITY AND OTHER BAD ACTS

October 12, 2017 | Peter Howard Tilem

In New York one may file a motion to vacate a conviction even after an appeal was denied. A person convicted of a criminal offense after a trial who has exhausted his appeals may still file what is commonly referred to as a “440” motion back in the original court where he was convicted. Many times “440” motions are based upon newly discovered evidence.

Briefly, under CPL 440.10(1)(g), a court may vacate a conviction where new evidence has been discovered after trial, which could not have been produced by the defendant at the trial and such evidence creates a probability of an outcome more favorable to the defendant. Furthermore, the defendant must file his motion with due diligence after discovery of the new evidence.

Generally, however, such “new evidence” cannot be mere impeachment evidence. In other words, such newly discovered evidence cannot simply be evidence that could have impeached the credibility of a prosecution witness. However, this is not an absolute rule. A court can vacate a conviction where the “key” prosecution witness lies at trial about prior criminal activity or other bad acts committed by him prior to him testifying. In cases where courts have vacated convictions on such grounds, the witness who lied was the key or primary witness against the defendant and the case hinged on that witness’ credibility.

New York’s New Sealing Law Opens Up New Possibilities For Those With Old Criminal Convictions

October 10, 2017 | Peter Howard Tilem

New York’s new sealing law which authorizes the sealing of up to one felony conviction and two total convictions went into effect in New York last week and is already creating new possibilities for those with old criminal convictions. Up until recently a New York expungement law would be considered to be almost impossible. After all as experienced criminal defense lawyers there is rarely a week that goes by without a call from someone asking about “expunging” criminal convictions and we as attorneys were frustrated with what used to be the answer; that there was no way of sealing old criminal convictions in New York.

Like all the uncertainty surrounding all new laws no one really knows how impactful CPL 160.59 will be. One factor will be whether prosecutors routinely oppose applications to seal under CPL 160.59 or not. The other will be what types of hearings are used by the Court and lastly how generous will the Courts be in sealing old convictions.

Another question pertains to the use of prior alcohol related driving convictions to deny people driver’s licenses. The New York Department of Motor Vehicles (DMV) is currently applying a twenty-five year look back and denying those with three or more alcohol related driving convictions reinstatement of their driver’s licenses. These revocations are essentially turning into lifetime revocations. As we reported last month, our firm has already filed a lawsuit against DMV because we believe that prior DWI convictions cannot be used to deny people licenses if the Court (or the Department of Corrections) has issued a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.

New York Appellate Court Affirms Denial of New Trial When Defendant Was Wearing Prison Clothes During Jury Selection

October 8, 2017 | Tilem & Associates

Jury selection is one of the most important aspects of any case. At Tilem Law Offices, our seasoned New York gun crime lawyers have handled countless voir dire selection processes and understand just what it takes to make sure that you receive a fair jury. As a recent appellate opinion indicates, even the clothes you are wearing during jury selection may have an impact on your legal rights.

In the case, the defendant was arrested while entering a vehicle that was reported stolen at gunpoint nearly two weeks before. The defendant was charged with both first-degree and second-degree robbery. Before the jury selection phase of the trial, the defendant noted that he was not wearing his own clothing and that he was not provided with a chance to contact his family. The defendant requested an adjournment, which was granted. The judge granted the adjournment to allow the defendant a chance to obtain plain clothes, as opposed to the orange correctional facilities jumpsuit that he was wearing. After the adjournment, the defendant returned wearing a plain black top but still wearing orange correctional facility-issued sweatpants. Since the defendant was seated at the end of a long table, and since the judge believed that the jury would not be able to see the defendant’s sweatpants, the judge denied the defendant’s request to postpone jury selection until he could obtain plain clothes.

The prospective jurors were asked whether they noticed anything about the defendant. One indicated noticing that the defendant was in a wheelchair, which the parties explained was irrelevant to the case. Six jury members were selected that day. On the next day, the defendant was wearing a suit, and the jury selection process continued. Testimony from the victim and the arresting officer was provided, and the jury returned a verdict convicting the defendant of both counts of robbery.

NEW YORK PLEA AGREEMENTS ARE GENERALLY HARD TO VACATE

October 2, 2017 | Tilem & Associates

Many individuals contact us after they are already involved in a criminal proceeding. Some of the most common issues that we deal with regarding ongoing criminal cases involve revoking an earlier guilty plea, which may have been provided before the defendant retained a reliable new york criminal defense lawyer. A recent case illustrates how difficult it can be to get rid of an earlier plea agreement.

The defendant faced charges of hindering with the prosecution in the first degree and possession of a weapon in the third degree for providing and concealing a weapon that a codefendant used during a shooting that resulted in a fatality. The night before the defendant’s trial was set to take place, the defendant entered a guilty plea regarding the lesser included offense of hindering the prosecution in the second degree. The defendant later testified that he assisted the co-defendant and believed that the co-defendant engaged in activities that resulted in a second-degree murder. The defendant also waived his right to appeal as part of the plea agreement.

The trial for the co-defendant proceeded and the prosecution offered evidence from the sole witness, which was the victim’s brother. The brother testified that he was at the victim’s apartment along with a number of other individuals when a dispute erupted and the co-defendant shot the victim. Other evidence presented at trial suggested that the brother may not have seen the shooter and was unclear about the events that occurred after the fight broke out. The prosecution later admitted to finding handwritten notes from an earlier interview with the brother suggesting that the brother did not see the co-defendant shoot the victim. The defendant was allowed to cross-examine the brother regarding these notes and attempted to impeach his credibility.

Sealing a Criminal Record in New York Under New CPL section 160.59

September 25, 2017 | Peter Howard Tilem

As New York Criminal Defense lawyers we are constantly called about expunging old New York Criminal records and over the many years I have been in practice it has been frustrating to inform people whose lives have been forever altered by an old New York criminal conviction that there was no mechanism to seal or expunge a criminal conviction in New York. In the past we have offered half measures such as certificates of relief from civil disabilities or certificates of good conduct. However, great news has arrived. Beginning in October 2017 the New New York Criminal Procedure Law 160.59 will go into effect permitting a motion to be made to seal up to two criminal convictions including one felony. This is welcome news for anyone whose professional life is being held back by a past mistake.

New York Criminal Procedure Law provides for sealing of up to two criminal convictions and up to one felony. Convictions for violent felony offenses, homicides, sex offenses and any conviction that requires SORA (Sex Offender Registration) are ineligible for sealing as well as conspiracy of attempts to commit ineligible crimes. In order to qualify for sealing the applicant must not have been convicted of a crime in the preceding 10 years and any time spent in prison or jail in that 10 year period is added back into the 10 years. For example if a person served 5 years in prison after a conviction they would need to wait 15 years before they could apply for sealing under CPL 160.59.

Procedurally, CPL 160.59 sealing requires that an application be made to the Court. For a person sealing more than one conviction the sealing application must be brought in the Court where the most serious conviction took place. The application must include a copy of Certificate of Disposition for each conviction (or an explanation of why one could not be obtained) and a sworn statement of the person seeking sealing that sets forth the convictions for which sealing is sought, whether other applications have been brought for sealing, and the reasons why the person is seeking the sealing. The application must also include any other sealing applications that have been filed. The entire package must be served on the District Attorney’s Office in the County in which sealing is sought.