New York Criminal Attorney Blog

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.

New York Appellate Court Upholds DWI Conviction, Rejects Defendant’s Confrontation Clause Defense

September 22, 2017 | Tilem & Associates

DUIs can have a serious impact on recipients, causing financial distress and jeopardizing their ability to operate a motor vehicle. Even if you have been charged with a DUI, there may be a number of defenses available to you to alleviate the charge and to ensure that you are not punished unfairly. At Tilem & Associates, our seasoned New York City DUI attorneys have substantial experience analyzing DUI claims and helping individuals fight an unfair charge.

The following recent appellate opinion illustrates why consulting with a criminal defense lawyer as soon as possible can make a huge difference in protecting your rights. The defendant was arrested for driving while under the influence in addition to a number of other traffic-related violations. The arresting officer transported him to the nearby station at which point two other officers observed the breath-testing procedure. Both officers were experienced administrators of the test and familiar with using the device. One of the observing officers administered the test, which involves a 13-step procedure, and the other officer took a video recording of the test.

The defendant was unable to perform a proper breath sample on his first two tries, resulting in two errors. The machine had to be reset each time. On the third attempt, the machine printed out a test result showing that the defendant’s BAC was 0.25.

Is the Mossberg Shockwave (and or the Remington Tac-14) Legal in New York? Surprisingly Yes, I Think

September 11, 2017 | Peter Howard Tilem

As New York Firearms Lawyers we are often asked about the legality of certain specific guns in New York given the very complex laws about what firearms may be owned in New York. A relatively new pair of firearms present some very interesting legal issues given the current state of New York Law and just may fit into a loophole under existing New York gun laws.

Mossberg Shockwave legal in New York

Mossberg Shockwave

New York Appellate Court Upholds Assault Conviction, Rejects Defendant’s Justification Defense

September 8, 2017 | Tilem & Associates

When facing a criminal trial, one of the most essential things to understand is whether you are able to assert any defenses to the charges against you. As seasoned New York criminal defense lawyers, we have aided many people in assessing their cases and crafting vigorous defenses. The following recent appellate court opinion showcases how taking a considered approach to articulating a defense can make a significant difference.

The defendant was charged with assault in the first degree after he was involved in a physical altercation at a corner store with a man who was 50 years old and who had a history of drug use and criminal activity. The record indicated that the victim had provoked the defendant and that the defendant had made two threats to kill the victim. Eventually, the defendant punched the victim.

Surveillance footage admitted at trial showed what occurred after the initial punch. The defendant and the victim left the premises, but each returned at individual times. The defendant again struck the victim, this time using a milk crate and hitting the victim in the face. Medical professionals later determined that the victim suffered a potentially life-threatening brain injury, broken nose, and broken cheekbone at the hospital to which he was transported.