New York Criminal Attorney Blog

NEW YORK STATE PISTOL LICENSING – PRIOR REVOCATION FOR LACK OF NECESSARY CHARACTER DOES NOT BAR SUBSEQUENT APPLICATION. ONLY REVOCATIONS PURSUANT TO CPL § 530.14 or FAM. CT. ACT § 894-a BAR SUBSEQUENT APPLICATIONS. Matter of Romanoff v. Kelly, 23 A.

August 8, 2011 | Tilem & Associates

Eligibility requirements for the issuance of a pistol license in New York are set forth in Penal Law §400.00(1). Briefly, an applicant must (1) be twenty-one years of age; (2) of good moral character; (3) have not been convicted of a felony or serious offense; (4) state whether he has ever suffered from mental illness or been confined to an institution for mental illness; and (5) not had a pistol license revoked or who is not under a suspension or ineligibility order issued pursuant to CPL 530.14 or Fam. Ct. Act 894-a.

The issue is; does a failure to satisfy any of the above eligibility requirements act as a permanent bar to licensure? The question must be answered in the negative. Peter Tilem, a partner with Tilem & Campbell, is currently challenging a Westchester County Licensing Officer’s denial of an application because the applicant had a prior revocation based upon a lack of necessary character and judgment. The Licensing Officer denied the application solely because the applicant had a prior revocation without regard for the basis of that revocation.

The licensing officer that originally revoked the applicant’s license had found that he lacked the character and judgment to possess a pistol license. The revocation was not related to an order of protection and was not made pursuant to CPL §530.14 or Fam. Ct. Act §842-a but instead was made pursuant to Penal Law 400.00(11) for a lack of character. This is important because only revocations pursuant to CPL §530.14 or Fam. Ct. Act §842-a can act as a permanent bar. However, revocations based upon a lack of character and judgment are not permanent bars to re-licensure.

SECOND DEGREE AGGRAVATED HARASSMENT – SPEECH HAS CONSTITUTIONAL PROTECTION

July 27, 2011 | Jasmine Hernandez

Aggravated Harassment in the Second Degree defined under New York Penal Law 240.30, makes it a class “A” misdemeanor, punishable by up to one year in jail to basically cause a communication to occur with another person by mail or telephone or other electronic means in a manner likely to cause to alarm or annoyance if that communication is made with the intent to annoy, harass, alarm or threaten a person. When the New York State Legislature talks about communication what they are really talking about is speech. New York State is attempting to regulate what you say and that is problematic in light of our Constitution’s First Amendment protection of speech; even unpopular or disagreeable speech.

In a decision issued earlier this week and has huge implications for New York criminal defense lawyers, Judge Valerie Alexander ruled that Penal Law sections 240.30 (1) and (2) were unconstitutional in that they were vague and over broad. She ruled that this Aggravated Harassment statute is analogous to one found unconstitutional by New York’s highest Court in 1989 and that Federal decisions have agreed that the statute is unconstitutional.

Penal Law section 240.30 clearly attempts to punish particular speech. The issue of what speech may be regulated by law in light of the Constitutional protections associated with speech has been the subject of numerous United States Supreme Court decisions. While not an absolute right (for example in might be permissible top punish someone for yelling fire in a crowded theater), freedom of speech is a fundamental right worthy of substantial protection. The New York State legislature made no attempt to distinguish in the statute between protected speech and unprotected speech or define a line that may not be crossed. Rather New York attempted to punish all speech that was annoying or alarming. Clearly, that is unconstitutional. The judge indicated that a criminal prohibition against communicating in an alarming or annoying way is by its nature facially unconstitutional.

NEW YORK CRIMINAL DEFENSE FIRM SECURES THREE EXTRAORDINARY PLEA DEALS IN THREE WEEKS

July 15, 2011 | Tilem & Associates

Capping an unbelievable three weeks, New York Criminal Defense Firm, Tilem & Campbell plea bargained three cases with truly remarkable results. While, Tilem & Campbell has successfully gone to trial and won many criminal cases, it does not always take a trial to get a successful outcome in a criminal case. With experience and expertise the lawyers at Tilem & Campbell are often able to negotiate truly spectacular deals for their clients. Having two former prosecutors obviously helps.

In the first case resolved in late June, our client was charged with shooting at an individual with an illegal handgun. The client was charged with felony Reckless Endangerment and Criminal Possession of a Weapon in the Second Degree, both felonies. On the Weapons charge the client faced a prison sentence of 15 years in prison with a mandatory minimum of 3 ½ years in prison. On the Reckless Endangerment in the first degree charge the client faced up to 7 years in prison. After months of litigation and negotiation, the client pled guilty at the end of June to a class “B” misdemeanor with no jail, no probation and only a conditional discharge. The “B” misdemeanor the client pled guilty to was an Attempt to Commit the Crime of Criminal Possession of a Weapon in the Fourth Degree.

In the second case resolved just two days ago, the client was charged with the felony of possessing 4 illegal guns in Rennselaer County, New York. In New York, possession of 3 or more illegal guns elevates the crime to a class “D” felony, punishable by up to 7 years in prison. The firm was able to negotiate a plea bargain for this client in which he pled guilty to a “B” misdemeanor and again received no jail, no fine, no probation but just a conditional discharge. In addition, the Judge signed a “Certificate of Relief From Civil Disabilities” which is a certificate that relieves the holder of all bars to employment that may be imposed by law as a result of a criminal conviction.

NEW YORK TEXTING WHILE DRIVING LAW GETS TOUGHER

July 13, 2011 | Jasmine Hernandez

New York Traffic Ticket lawyers are monitoring New York’s recently enacted Texting While Driving Law which was made tougher this week after a new law signed by governor Cuomo went into effect. The new law makes Texting While Driving a primary enforcement statute. This means that a police officer may stop a vehicle because the driver is observed violating this statute. In the past, a police officer could only stop a vehicle for a reason other than texting while driving and then issue the summons for Texting While Driving if there was probable cause to believe that the operator also committed an offense under New York Vehicle & Traffic Law (VTL) 1225-d. .

While New York VTL 1225-d is usually referred to as New York’s Texting While Driving Statute it punishes a broad range of conduct that does not involve texting or even using your cell phone. For example the statute is entitled “Use of Portable Electronic Devices” and defines portable electronic devices as any: hand-held mobile telephone (cell phones), PDA (personal digital assistant), handheld device with mobile data access (such as a IPAD, IPOD, or Tablet or GPS), laptop computer, broadband personal communication device, pager, two-way messaging device, electronic game, or portable computing device. This list seems like it would encompass pretty much any electronic device you can conceive of including devices that are commonly used in cars such as I-Pods and navigation devices.

In addition, if you simply are holding the device while viewing it that is considered viewing and there is a presumption built into the statute if you hold the device while driving in a “conspicuous manner” you are presumed to be “using” the device. This all means that simply holding any electronic device in your hand while driving can cause you to receive a three point ticket punishable by a fine of up to $150 plus a surcharge of a minimum of $80 for a total of $230. Plus there of course exists the possibility of insurance surcharges or increases and if you accumulate 6 points, additional fees under the Driver Responsibility Assessment.

DSK Rape Case Highlights Important Issue that Few Prosecutors Take Seriously – BRADY MATERIAL

July 1, 2011 | Jasmine Hernandez

The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor’s office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:

NEW YORK CRIMINAL DEFENSE LAWYER PETER TILEM ON CHANNEL 2 NEWS TONIGHT

June 30, 2011 | Tilem & Associates

Tilem & Campbell senior partner Peter H. Tilem was on Channel 2 News tonight talking about the “Bus Matron” case. The case, which had gotten media attention in the past, has been getting additional attention due to the unusual age and procedural history of the case. This misdemeanor case which is more than 5 years old has been twice dismissed by the trial Court and twice restored by the Appellate Court who reversed the dismissals.

Back in 2006 the case was dismissed after the trial Court suppressed audio tapes that were the result of what the Court considered to be illegal eavesdropping. Then in 2009 a second judge in the Criminal Court in Brooklyn dismissed the case based upon what the trial judge found to be a violation of New York’s speedy trial statute.

NEW YORK CRIMINAL DEFENSE LAWYER PETER TILEM QUOTED IN TODAY’S NEW YORK POST HAS CASE DISMISSED TWICE AND REVERSED TWICE

June 29, 2011 | Tilem & Associates

The Endangering the Welfare of a Child case discussed in today’s New York Post article, demonstrates how experienced criminal defense lawyers need to handle complex criminal cases. The case brought against a school bus matron back in 2006 alleges that the bus matron failed to step in and protect a then 8 year old autistic child that was banging his head against the school bus window and that the bus matron taunted the child. The law firm of Tilem & Campbell, representing the bus matron was able to get the case dismissed soon after the charges were filed in 2006 because the lawyers were able to show to a criminal court judge that the evidence in the case was obtained by illegal eavesdropping. The Appellate Term of the New York Supreme Court eventually overturned the criminal court judge and had the charges were reinstated.

After the case was sent back to the criminal court, Tilem & Campbell, undeterred, again began to vigorously fight the charges. This time in 2009 a new motion was made to dismiss based upon violation of the bus matron’s statutory speedy trial rights. After litigation on that issue a different criminal court judge than had dismissed it the first time, dismissed the case a second time. The Kings County District Attorney’s Office made a motion to reargue the dismissal in the criminal court and after that motion was denied the District Attorney filed its second appeal in the case. Last week, the Appellate Term of the Supreme Court again reversed the dismissal and reinstated the charges.

The case, now more than five years old, will continue to wind its way through the Kings County Criminal Court and no doubt additional motions will be made. The case may even be dismissed a third time. In addition, the lawyers at Tilem & Campbell are planning an appeal to New York’s highest court, the New York Court of Appeals in an attempt to get dismissal reinstated by a higher court.

NEW YORK SPEEDY TRIAL – Part 2 – Trial Readiness not necessarily Trial

June 15, 2011 | Jasmine Hernandez

As we noted in our previous blog if you are charged with any crime in New York, other than a homicide, or any penal law non-criminal offense you are entitled to a speedy trial under New York Criminal Procedure Law sec 30.30. However, the statute is really misnamed a “speedy trial” statute because it has very little to do with speedy trial but rather has everything to do with “speedy readiness.” In other words NY CPL 30.30 does not require that the trial start within the specified period but only that the People (the prosecutor) announce their readiness for trial within the speedy trial period. This reality sets up a game, all too common in some counties where the People announce their readiness only when the case cannot possible go to trial and are not ready when the case is in Court and the matter is ready to be tried. See for example the “Bus Matron case” which was handled by this office and was dismissed after the Kings County District Attorney’s Office attempted to play this game. To satisfy the Criminal Procedure Law the prosecutor only need state his readiness for trial. This can be done in several ways.

People’s Communication of Readiness – Open Court Statement or Statement of Readiness in Writing:

For the People to be “ready” for trial in accordance with CPL 30.30, there “must be a communication of readiness” by the prosecutor which is made on the record in the trial Court. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).

NEW YORK SPEEDY TRIAL – Part 3 – What must the prosecution do to validly answer ready for trial

June 11, 2011 | Jasmine Hernandez

We have been writing about the importance of New York’s Speedy Trial statute to experienced criminal defense lawyers and how we have had serious cases dismissed based upon the denial of a speedy trial. In our previous blog, we discussed the fact that New York’s Speedy Trial statute is not in fact a speedy trial statute but rather a speedy readiness statute that is satisfied once the prosecution announces their readiness for trial and that fact that this reality sets up a game where prosecutors announce readiness only when they do not expect the case to go to trial and then mysteriously are not ready when the case can go to trial. But, what must a prosecutor do to validly announce his readiness for trial? For example, do the witnesses need to be waiting in the Courthouse?

Actual readiness for trial does not require the prosecution to physically produce their witnesses each and every time they assert trial readiness, because “[a]side from its impracticality, such a requirement would be unduly burdensome and vexing to witnesses.” People v Robinson, 171 A.D.2d 475 (1st Dept. 1991).

Therefore, “[t]he People are not required to contact their witnesses on each and every adjourned date and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid.” People v. Dushain, 247 A.D.2d 234, 236 (1st Dept. 1998)(internal citations omitted) see also People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001)(The People are not required to contact their witnesses on every adjourned date nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid).

NEW YORK SPEEDY TRIAL – Part 1

June 1, 2011 | Jasmine Hernandez

As summarized in our recently posted New York Speedy Trial web page, the New York Criminal Procedure Law contains a statutory speedy trial requirement which is separate and apart from the constitutional right to a speedy trial and which is a very valuable tool in the arsenals of experienced criminal defense lawyers in New York. In this and upcoming blogs we will highlight some of the more important aspects of New York speedy trial.

Firstly, the statutory periods vary depending on the seriousness of the offense. That is to say that the time from the commencement of the action until the time that the people must be ready for trial or face dismissal of the action varies depending on the seriousness of the offense. They are as follows:

Felony; Six months from commencement less excludable periods. [CPL 30.30(1)(a)]