New York Criminal Attorney Blog

NEW YORK SEARCH AND SEIZURE LAW – STREET ENCOUNTERS WITH THE POLICE IN NEW YORK – The Four Levels of Intrusion

January 10, 2010 | Tilem & Associates

As discussed in the previous blog New York police are limited in the way they interact with civilians that they encounter on the street. If the police overstep their authority an experienced criminal defense attorney can use the police conduct to get evidence in a case suppressed.

Below are the four levels of intrusion as set forth by the New York Court of Appeals in Debour. Keep in mind that each case is an individual and may be affected by the minute details of the case.

Level 1 “Request for Information”: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not necessarily indicative of criminality. This is not equivalent to a stop. These encounters should be brief and not be harassing or intimidating. For example, approaching possible witnesses to a crime and checking to see if everyone involved in an accident is alright.

NEW YORK SEARCH AND SEIZURE LAW – STREET ENCOUNTERS WITH THE POLICE IN NEW YORK

January 7, 2010 | Tilem & Associates

In New York, a large body of law has developed around police interaction with civilians that they encounter on the street. When may a police officer approach you for information, question you about criminal activity, detain you and finally, arrest you? Experienced New York criminal defense lawyers must be well versed in this area of law. If the police overstep their authority and thereby obtain evidence, skilled criminal attorneys can challenge that evidence in Court at a suppression hearing and have the evidence suppressed. Suppression of evidence can lead to the dismissal or reduction of charges, favorable jury verdicts and favorable plea bargains. Here at Tilem & Campbell, we have used suppression to obtain dismissals of some tough cases.

Suppression, can be especially valuable in fighting drug cases or gun cases since without the contraband as evidence, the case is almost always dismissed. But suppression can also be useful to prevent the admission at trial of statements, identifications, physical evidence of criminal activity or electronic surveillance.

No two cases are alike and each case and each set of facts must be analyzed by analogizing from previously decided cases with similar facts. In a well written and thorough decision, the New York Court of Appeals developed four “Levels” of police intrusions with each Level being based upon the intensity of the intrusion upon the civilian’s life. See People v. De Bour, 40 N.Y.2d 210 (1976). These four level have become the guiding principle for police encounters with civilians on the streets of New York. So much so that New York Courts have cited to Debour well over 1600 times in judicial opinions that have been published in New York. That means that in the more than 33years since Debour was decided, New York Courts cited to it on average about 50 times per year in published opinions.

NEW YORK TRAFFIC VIOLATIONS: CAN AN OFFICER ISSUE A TICKET FOR A TRAFFIC VIOLATION HE OF SHE DID NOT WITNESS? – PART 2

January 5, 2010 | Tilem & Associates

I previously discussed the New York Court of Appeals decision in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968) which held that an officer can issue a traffic ticket for a non criminal offense he or she did not witness. But the discussion does not end there. Unfortunately, many police officers, prosecutors and judges believe that Boback allows officers to issue tickets for non-criminal traffic offenses the officer did not personally witness that are as jurisdictionally sound as a ticket issued by an officer who actually witnessed the offense. This is simply not the holding of Boback.

The Boback decision noted that where an officer issues a ticket for a non-criminal traffic infraction that the officer did not witness, the ticket itself is insufficient to procure the defendant’s appearance before the court. The Boback decision noted that should the defendant/motorist choose to ignore the summons and not appear on the return date of the summons, the court must take testimony or have before it affidavits which would establish probable cause before issuing an arrest warrant. One could argue therefore, that if they were issued a ticket for a traffic infraction not witnessed by the officer, they need not appear in court and that court may not suspend their license or take any other action against them until that court is presented with testimony or affidavits establishing probable cause.

For example, in People v. Genovese, 156 Misc.2d 569, 593 N.Y.S.2d 925 (Jus. Ct. Town of Mendon 1992), the Court held that it was improper for an officer to arrive at the scene of an accident he or she did not witness, decide who was at fault and issue a summons charging a non-criminal traffic violation. The Court held that an action charging a non-criminal traffic infraction could not be commenced by the filing of a simplified traffic information where the officer did not witness the offense.

NEW YORK TRAFFIC VIOLATIONS: CAN AN OFFICER ISSUE A TICKET FOR A TRAFFIC VIOLATION HE OF SHE DID NOT WITNESS?

January 2, 2010 | Tilem & Associates

Generally, an officer may arrest a person when that officer has reasonable cause to believe that person committed a crime, whether in the officer’s presence or not. However, for an officer to arrest a person for a non-criminal offense, the offense must be committed in the officer’s presence. There are a limited number of exceptions to this law. (See CPL § 140.10).

This issue frequently arises when an officer arrives on the scene of an accident; interviews witnesses and determines that, for example, a motorist was speeding, traveling to closely, or changed lanes unsafely and issues a ticket accordingly. However, since speeding, traveling to closely or changing lanes unsafely are all non-criminal offenses (they are traffic infractions), can the officer issue a ticket even though the offenses were not committed in his presence?

I must say, I was surprised to learn that the answer is yes. First, the law says that an officer may not arrest for a non-criminal offense not committed in his presence. It says nothing about the issuance of a ticket. (See CPL § 140.10). Second, in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968), the Court of Appeals held that a traffic ticket may be based upon “information and belief”. That means that an officer need not have personal knowledge of the traffic infraction – he or she need not actually witness the traffic infraction.

NEW YORK DRIVING WHILE INTOXICATED: OFFICER DOES NOT HAVE TO READ MOTORIST MIRANDA WARNINGS PRIOR TO THE ADMINISTRATION OF ALPHABET RECITATION TEST OR THE FINGER COUNTING TEST

December 29, 2009 | Tilem & Associates

Previously I discussed New York Court of Appeal’s cases which held that the police do not have to read a DWI suspect his or her rights before requesting that they perform Field Sobriety Tests because such tests are not testimonial or communicative. People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987); People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
But where the officer requests the suspect to recite the alphabet or perform a finger count test, those responses are verbal and therefore, at the very least communicative. However, the Third Department has held that an officer need not read a suspect his or her Miranda Warnings prior to requesting that the suspect recite the alphabet or perform the finger count test because such tests are not communicative or testimonial in that they don’t reveal the person’s subjective knowledge or thought processes. People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 (3rd Dept. 1998). The Court of Appeals has reached the same conclusion regarding the alphabet and finger count tests. People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999)(these tests are not testimonial or communicative in that they do not require a person to reveal knowledge of facts relating to the offense).
For information regarding Driving While Intoxicated in New York or to schedule a free consultation, please call Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DWICOUNSEL.COM.

NEW YORK DRIVING WHILE INTOXICATED: OFFICER DOES NOT HAVE TO READ MOTORIST HIS OR HER MIRANDA RIGHTS PRIOR TO THE ADMINISTRATION OF FIELD SOBRIETY TESTS

December 26, 2009 | Tilem & Associates

Many times those charged with a New York Driving While Intoxicated charge will complain that they never were read their rights. When one must be read their “rights” is beyond the scope of this blog. However, for purposes of Field Sobriety Tests, the issue addressed in this blog is whether one must be read their “rights”, or what are commonly known as “Miranda Warnings”, prior to being asked to perform Field Sobriety Tests.

The answer is no. In People v. Hager, the New York Court of Appeals held that the police do not have to give a DWI suspect his or her Miranda Warnings prior to the administration of Field Sobriety Tests. 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987). In rendering its decision, the Court noted that the privilege against self incrimination prevents the state from compelling a person to provide testimonial or communicative evidence. In 1999, the Court of Appeals reaffirmed this holding in People v. Berg 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999) again holding that Miranda warnings are not required to allow Field Sobriety Tests into evidence.

So therefore, the police do not have to inform a motorist of his or her right to refuse to perform Field Sobriety Tests (People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993)) nor do they have to read them their Miranda Warnings prior to requesting they perform the tests.

TILEM & CAMPBELL WISHES ALL OUR CLIENTS< BLOG READERS AND FRIENDS A HAPPY AND HEALTHY HOLIDAY SEASON

December 23, 2009 | Tilem & Associates

New York criminal law firm Tilem & Campbell would like to take a moment to thank our clients, blog readers and friends for a great year and wish everyone a very healthy and happy holiday season.

During this season a couple of things bear repeating.

Drinking and Driving is a serious and dangerous crime. Don’t drink and drive.

NEW YORK DRIVING WHILE INTOXICATED: MOTORIST MAY REFUSE TO PERFORM FIELD SOBRIETY TESTS

December 22, 2009 | Tilem & Associates

Field Sobriety Tests (FSTs) are designed to test one’s physical abilities and well as their ability to divide their attention between multiple tasks or instructions. They are utilized by officers in making a decision to arrest a motorist for Driving While Intoxicated. In order to arrest a motorist for DWI, New York law requires that the police officer have probable cause to believe that the motorist had been driving in an intoxicated condition. FSTs are designed to aid the police officer in deciding whether he has probable cause to believe that the person is intoxicated. Most of us have seen the “walk and turn” test, the “one-leg-stand” test or the horizontal gaze nystagmus test (the “follow my finger” test) on videos, in the movies or if you have been suspected of driving while intoxicated and have been asked to perform them by the officer.

The question many ask is, “must I perform these tests?” It’s a very legitimate question. Should one attempt the Walk-and-Turn and One-Leg-Stand tests on the side of highway with cars passing at 55 mph in the middle of the night? Keep in mind; these tests are difficult for sober people to successfully perform. (That’s why judges will almost never allow a defense request that the officer show the court exactly how that officer demonstrated the test for the motorist – as the officer is required to do).

A motorist does have the right to refuse to perform Field Sobriety Tests however; the police have no obligation to inform the motorist of his or her right to refuse to perform the tests. People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993); see also People v. Capraella, 165 Misc.2d 639, 629 N.Y.S.2d 965 (N.Y.City Crim.Ct.,1995)(holding that the police have no obligation to inform motorist that they can refuse to perform field sobriety tests). However, one’s refusal to perform field sobriety tests is admissible at trial. People v. Berg

TILEM & CAMPBELL TO LAUNCH DOCTOR SUMMONS HOLIDAY AD CAMPAIGN

December 17, 2009 | Jasmine Hernandez

New York criminal defense law firm Tilem & Campbell will launch a holiday season ad campaign directed toward those caught Driving While Intoxicated or violating other New York traffic laws. The campaign will advertise the Doctor Summons trade name which will ask potential clients to contact Tilem & Campbell through its 877-DR-SUMMONS toll free number and through its DRSUMMONS.COM website. The ad campaign coincides with the holiday season, during which the firm sees an increase in DWI, Aggravated Unlicensed Operation of a Vehicle, Speeding and other moving violations.

The ad campaign is designed to let motorists know that they can fight these types of charges and that in many cases they can fight traffic violations without the necessity of going to Court.

The Dr Summons name has been used by law firm Tilem & Campbell, for several years to give motorists an easy to remember toll free number and website in case they find themselves charged with a traffic violation or DWI. Tilem & Campbell has successfully handled thousands of traffic violation in New York State.

Criminal Defense Attorney Peter Tilem on Bronx Legal Tonight!

December 15, 2009 | Tilem & Associates

Criminal Defense lawyer Peter Tilem will appear on Bronx Legal tonight at 6:30 pm. The topic of discussion tonight will include New York gun laws, the Plaxico Burress gun arrest and other New York weapons offenses. The video of tonight’s show for those who do not live in the Bronx will be posted on the Tilem & Campbell youtube channel and on tilemandcampbell.com as soon as the video is available.

Tilem & Campbell maintains a media page that contains all of the video’s of television appearances by partner’s Peter Tilem and Peter Tilem. Senior partner Peter Tilem worked as a prosecutor in the Firearms Trafficking Unit of the Manhattan District Attorney’s Office and has both prosecuted and defended hundreds of cases involving illegal possession of weapons in New York.