New York Criminal Attorney Blog

How to Dispute Hearsay Evidence in New York Criminal Cases

February 27, 2023 | Tilem & Associates

Criminal prosecutions in New York are confined by constitutional and statutory protections for people accused of crimes in this state. The state rules of evidence and criminal procedure prevent prosecutors from eliciting certain types of testimony and other evidence that is determined to be inadmissible hearsay. Hearsay involves an out-of-court statement, offered for the truth of the matter asserted. Hearsay is by definition a violation of the confrontation clause of the US Constitution in that it may violate the principle that the accused has the right to confront the witness against the accused. Although many exceptions to the prohibition on hearsay evidence exist, hearsay evidence manages to find its way into trial in thousands of criminal prosecutions each year.

A New York court recently affirmed the conviction of a man for attempted sexual assault, rejecting the defendant’s arguments that inadmissible hearsay testimony offered at trial should invalidate his conviction. The defendant from the recently decided case was charged with attempted sexual assault after he was reported to have aggressively approached and grabbed a 14-year-old victim while they were in an elevator together. During the trial, the defendant’s attorney objected to the admission of certain portions of a 911 call involving the victim’s neighbor on the basis that the statements were hearsay. The objection was overruled, and the defendant was convicted of the charges.

The defendant appealed his conviction, arguing that the admission of the hearsay evidence was an error, which tainted his conviction. The appellate court agreed with the defendant that the statements should not have been allowed at trial; however, the court found the error was harmless in light of the overwhelming other evidence incriminating the defendant in the charges. The court noted that there were other areas at trial where inadmissible evidence may have been admitted, but the defendant failed to properly address those on appeal, so the court would not disturb the defendant’s conviction.

Defendant in New York Assault Case Unsuccessfully Argues for Reversal of Conviction

February 18, 2023 | Tilem & Associates

In a recent case before a New York appellate court, the defendant challenged her conviction and sentence for assault and criminal contempt. On appeal, she argued that the State had not proven that the victim of the assault had suffered a physical injury, which was a necessary element of the crime in this case. Looking at the trial court’s record, the court ultimately disagreed with the defendant and affirmed the jury’s original verdict.

Facts of the Case

According to the opinion, the defendant was charged after she was found stabbing another individual. The defendant stabbed the victim six times, and the police arrested her and took her into the station. The defendant was held in jail while she awaited trial, and eventually, the case went before a jury in late 2018. After trial, the defendant was found guilty of assault in the second degree and criminal contempt in the second degree. She promptly appealed.

The Decision

On appeal, the defendant argued that the State had not proven every element of the crime that it needed to prove. In fact, in all criminal cases, the prosecution must prove every element of the offense beyond a reasonable doubt. Specifically, the woman correctly claimed that State had to present evidence both that the victim had suffered a physical injury and that the defendant intended to cause the physical injury. According to the defendant, the State had not proven either of those two elements.

Defendant in New York Robbery Case Loses on Appeal of Motion to Suppress

February 12, 2023 | Peter Howard Tilem

In a robbery case before a New York appeals court earlier this month, the defendant asked the court to reconsider an unfavorable decision he received at the trial court level. Originally, the defendant was criminally charged with robbery and criminal possession of a weapon, and he asked the lower court to suppress incriminating evidence that an officer found on his person while conducting a search. The court denied the defendant’s motion to suppress, and on appeal, the higher court agreed. The defendant’s argument was rejected, and the original judgment was affirmed.

Facts of the Case

According to the opinion, police officers were called to a residential building one night right as a robbery was taking place. The officers arrested several people at the scene of the crime, then they walked out of the building to find the defendant emerging from a driveway nearby. The driveway was right behind the building where the offense occurred, and the officers approached the defendant to see if he knew anything about the crime.

At that point, the officers tried to ask the defendant several questions, but he immediately began running away. The officers chased him, caught up to him, and arrested him. They quickly found a cell phone and cash on the defendant’s person; the cell phone had several incriminating text messages that ended up playing a part in the State’s case against the defendant.

New York Appellate Court Sides with Defendant in the Face of Unfair Treatment from Police Officer

February 6, 2023 | Peter Howard Tilem

Last month, the Appellate Court decided the prosecution’s appeal of a lower court’s unfavorable decision in a firearm possession case. It is unusual for the prosecutors to appeal and they can only do so under very limited circumstances. The State had originally asked the lower court to admit evidence, including two handguns, that resulted from an officer’s pat down of the defendant, and the lower court had determined that the evidence could not come in at trial. When the State appealed, the higher court reviewed the evidence of the case, ultimately deciding that the lower court’s decision was correct and that the officer did not have a legal basis to conduct a pat down of the defendant.

Facts of the Case

According to the opinion, the defendant was driving one evening when an officer attempted to pull him over for several traffic violations, including parking illegally, failing to stop at a stop sign, and failing to signal while turning. At first, the defendant did not stop for the officer, so the officer called in backup to help him conduct the stop.

When the backup officer came to the scene, he saw the defendant get out of the car and start running away. The officer did not know the details of what was going on, but he knew that the original officer was trying to conduct a traffic stop of the individual. The second officer then started chasing the defendant. He tackled the defendant, handcuffed him, and pat him down, finding two handguns between his legs.

New York Murder Defendant Unsuccessfully Argues that Trial Court Violated His Right to Confrontation

January 31, 2023 | Peter Howard Tilem

Recently, a defendant in New York charged with murder in the second degree and criminal possession of a weapon in the second degree appealed his guilty verdict and related sentence. The defendant argued before the Appellate Court that parts of his trial were unfair; namely, the testimony offered about the murder victim’s cause of death violated his constitutional right to cross-examine the witness. Looking at the record of the case, the Appellate Court disagreed and ultimately denied the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant was criminally charged after investigators tracked him down in 2015. The investigators were looking for an individual connected to the shooting death of an unarmed man in Brooklyn in May 2015, and they eventually had enough evidence to charge the defendant in this case.

The defendant’s case went to trial in June 2018, and he was found guilty both of murder and criminal possession of a weapon. After his sentencing hearing, the defendant promptly appealed.

New York Defendant Unsuccessfully Asks Court to Suppress Incriminating Statement Made to Attorney

January 25, 2023 | Peter Howard Tilem

Earlier this month, a New York defendant convicted of attempted murder, appealed his guilty verdict before the Appellate Division of the Supreme Court of the State of New York. According to the defendant, the lower court violated his rights by allowing the State to enter into evidence a comment that he had made to his attorney in the presence of law enforcement officials. This statement, said the defendant, was meant to be part of a private conversation, and the lower court should not have let it in as evidence. The higher court reviewed the record and ultimately rejected the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant was charged with several violent crimes, including assault in the first degree and criminal possession of a weapon in the second degree. Once charged, the defendant was taken to a holding room at the local police department. A police investigator stood about five feet outside the open door in full view of the defendant, including while the defendant met with his attorney in the holding room. At one point during the defendant’s conversation with his lawyer, he made an incriminating statement in a loud voice, and the investigator overheard the defendant make this statement.

The defendant argued before the lower court that this statement should not be used in court, given the statement was made to his attorney, was made after his right to counsel had attached and was not meant to be heard by the investigator. The lower court denied the motion to suppress, and the defendant appealed.

New York Defendant in Firearms Case Successfully Appeals Denial of Motion to Suppress

January 19, 2023 | Peter Howard Tilem

Last month, a New York defendant in a firearms possession case successfully appealed an unfavorable decision from the lower court. Originally, the trial court had denied the defendant’s motion to suppress the gun in this case, which was found by the two officers that arrested the defendant. The defendant argued that officers actually did not have legal grounds to search him, and the trial court disagreed. On appeal, however, the higher court reversed this decision, ruling that the officers unlawfully searched the defendant on the night in question. As we have discussed on many occasions, suppression motions are often the best way to challenge gun possession cases.

Facts of the Case

According to the opinion, the defendant was sitting in a grassy area outside of a vacant house one evening. Police officers patrolling the area noticed that the defendant had an open container of alcohol, and they approached him to issue a citation for the offense.

As the officers approached, the defendant jumped up and attempted to run away. One of the officers tackled the defendant, and he was placed in handcuffs. The officers then arrested the defendant for violation of the local open container ordinance and for obstructing governmental administration. While officers were patting the defendant down, they found a gun on him and charged him with criminal possession of a firearm as well.

Defendant in Murder Case Unsuccessfully Appeals Guilty Verdict on Sufficiency Grounds

January 13, 2023 | Tilem & Associates

In a case before the New York Appellate Division in late November, the defendant asked the court to reconsider his 2016 guilty conviction. Originally, the defendant was charged with both murder in the second degree and criminal possession of a weapon in the second degree. A jury found him guilty at trial, and he promptly appealed, arguing the evidence was insufficient to support his guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged after police found him aiming a gun in the direction of a large group of men. Apparently, the men in the group were all part of the same gang, and the defendant in this case was part of the rival gang. The defendant fired his gun three times, subsequently killing one of the men. After the incident, the defendant fled the scene, throwing his gun into the bushes nearby as he ran.

Police eventually found the defendant, and he was charged accordingly. At trial, the jury heard evidence that the defendant had told friends he needed to protect his family and go after members of the rival gang. He stated to these friends that violence was his only reasonable form of protection and that he was targeting these men in particular because of their rivalry.

Defendant in New York Weapons Case Unsuccessfully Asks Court to Reconsider Evidentiary Ruling

January 6, 2023 | Peter Howard Tilem

Recently, a defendant in New York appealed his guilty conviction for attempted murder and criminal possession of a weapon. On appeal, the defendant argued that during trial, the prosecution inappropriately introduced evidence of a 911 call from the victim’s mother. The call, argued the defendant, was hearsay, and it should not have been admitted. After considering this argument, the appellate court ultimately affirmed the original guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged when police arrested him for shooting another person in Queens. During the altercation, the defendant shot the victim, and the victim walked out of the incident injured but still alive. The State charged the defendant with several crimes, including attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree.

The case went to trial, and a jury found the defendant guilty as charged. Even after the verdict, the defendant maintained that he was unjustly found guilty, and he appealed the jury’s decision.

NEW YORK SUPREME COURT JUSTICE DEEMS NEW YORK’S RED FLAG LAWS ARE UNCONSTITUTIONAL

December 30, 2022 | Peter Howard Tilem

A New York State Supreme Court Justice ruled last week that New York’s Extreme Risk Protection Order laws, often called Red Flag laws are unconstitutional and declined to issue an Extreme Risk Protection Order (ERPO). As we have written in the past, extreme risk protections have become very popular in anti-gun states and are a way for government officials to take away the Second Amendment rights of individuals who have not committed any crime. Yet, New York’s Red Flag laws were expanded in July of 2022. Justice Thomas E. Moran, of the Rochester based Monroe County Supreme Court struck down these laws in a 10 page decision, in a case entitled G.W. v. C.N., 2022 NY Slip Op 22392 (Monroe County Sup. Ct. 2022).

This particular case highlights everything wrong with Red Flag laws. The Petitioner who filed for the Extreme Risk Protection Order was the estranged boy friend of the Respondent who was a licensed gun owner in New York State. He alleged that his ex-girlfriend was a danger to herself and others and obtained a Temporary Extreme Risk Protection Order. Justice Moran pointed out that the Petition cited a variety of statements that the Respondent allegedly made threatening to harm herself with a gun which the Petition falsely claimed were made within 6 months before the Petition was filed but in fact dated back to 2020 and 2021. The Court also pointed out that there was a Family Court case also going on in which The Petitioner had an Order of Protection against him which among other things barred him from the home that they had shared.

Turning to the Constitutionality of the Article 63-A, which lays out New York’s Red Flag laws and procedures, the Court cited the United States Supreme Court decisions in Heller, McDonald and most recently Bruen and applied the Bruen Standard that when the 2nd Amendment’s text covers a person’s conduct, a law which regulates that conduct is presumptively unconstitutional unless the State can demonstrate that the regulation is consistent with the country’s historical tradition of firearms regulations.