New York Criminal Attorney Blog

NEW YORK GRAFFITI CASE FOCUSES ATTENTION ON SERIOUS CRIMES

September 22, 2008 | Jasmine Hernandez

The Queens District Attorney’s Office announced the indictment of a Dutch man for his role in spraying graffiti on a subway car in Queens and then taking police on a foot pursuit on the subway tracks. The cases focuses attention on the serious charges associated with graffiti in New York including Criminal Mischief, Making Graffiti and Possession of Graffiti Instruments. It also focuses attention on “Graffiti Tourism” a growing phenomenon in this area.

Criminal Mischief in New York is a crime involving damaging property (either intentionally or recklessly) and is generally a misdemeanor punishable by up to one year in jail. Damaging property in an amount exceeding $250 can be charged as a class “E” Felony punishable by a prison term of up to 4 years and damaging property in an amount exceeding $1500 is a class “D” felony punishable by up to seven years in prison.

The problem is that the threshold amounts have not been changed since 1971 and when the New York State Legislature amended the Grand larceny Statutes in 1986 they forgot to amend the Criminal Mischief statutes. In practice, that means that if you steal property worth $300 you are only guilty of a misdemeanor but if you damage property worth $300 you are guilty of a felony.

WHAT HAPPENS IF YOU DIDN’T RECEIVE NOTICE OF YOUR LICENSE OR REGISTRATION SUSPENSION? (NY VTL 214)

September 17, 2008 | Jasmine Hernandez

Many times at the New York Criminal Defense Firm of Tilem & Campbell we are contacted by individuals who have been charged with Aggravated Unlicensed Operator (VTL § 511) resulting from the suspension or revocation of their New York State driver’s license or the suspension or revocation of their privilege to drive in New York if they are an out-of-state resident. This charge is not simply a traffic violation but it is a serious criminal matter that could result in a misdemeanor conviction.

While I will not discuss the details of the Aggravated Unlicensed Operator charge in this blog, I will discuss a key element of the charge that must be attacked in order to defeat the charge. (It should be noted however that if the defendant clears up the underlying suspensions that resulted in the Aggravated Unlicensed Operator charge most, if not all, prosecutors will agree to reduce the charge to a non-criminal traffic violation. If however, the defendant has multiple Unlicensed charges, was intoxicated, injured someone or if some other aggravating factor is present, their might not be an offer and the case must be fought because a criminal record hangs in the balance.)

What is the key element to attack in an Aggravated Unlicensed Operator charge? It’s the know or having reason to know that your license was suspended or revoked element that must be attacked. In order to be convicted of Aggravated Unlicensed Operator, the People must prove that you knew or had reason to know that that your license was suspended or revoked. How can the People prove this? New York Vehicle and Traffic Law section 214 basically states that if the DMV produces an affidavit from an employee explaining the procedures DMV follows for mailing suspension or revocation notices and if electronic copies of such notices are presented in court, there is a statutory presumption that such notice was mailed.

CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL IN A NEW YORK TRAFFIC VIOLATION CASE

September 10, 2008 | Tilem & Associates

In a previous blog I explained that one doesn’t not have a statutory right to a speedy trial in a New York traffic violation case (such as speeding, red light, stop signs violations, etc). Does this mean that a New York court can take years to schedule your trial? The answer is yes and no. While there is no statutory right to a speedy trial in a traffic violation case, the courts have held that one charged with a New York traffic violation has a constitutional right to have his or her trial held within two years. This constitutional right is found in CPL § 30.20 which basically states that after a criminal prosecution is commenced the defendant is entitled to a speedy trial. This section does not set forth what constitutes a speedy trial however. It also applies to traffic violations because for purposes of procedure, traffic violations are treated as misdemeanors. See VTL § 155. The Sixth Amendment to the United States Constitution also guarantees a right to a speedy trial even in traffic violation cases.

Numerous New York court cases have held that the speedy trial provision found in CPL § 30.20 applies to traffic violation cases. The question becomes therefore, what is considered an acceptable time frame within which one charged with a New York traffic violation must be brought to trial in light of CPL § 30.20? Two years seems to be the limit provided the delay is not caused by the defendant. Below are reviews of relevant cases:

In People v. Thorpe, 160 Misc.2d 558, 613 N.Y.S.2d 795 (1994) the Appellate Term dismissed a conviction due to an unexplained two year delay in bringing the case to trial. This is the case to rely on when making a speedy trial motion. See also People v. Matera, 2003 WL 21974065 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51180(U)(unexplained delay of over two years in bringing traffic infraction to trial warranted dismissal); People v. Rogoish, 2003 WL 21700087 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51120(U)(unexplained delay of over three years in bringing the traffic infraction to trial warranted dismissal)

Tilem & Campbell Scores Major Victory in Another New York Gun Case

September 8, 2008 | Jasmine Hernandez

This time in a Federal Gun Case involving the Interstate Transportation of Firearms, the New York criminal defense law firm of Tilem & Campbell scored another huge victory when Federal District Judge Stephen Robinson refused to sentence Tilem & Campbell’s client to prison. Instead, the defendant was sentenced to two years of Probation with a portion of that time being on home detention. The sentencing victory capped a long fought case in which both the Probation Office and the United States Attorney’s Office were asking for a term of imprisonment.

The case was handled by Tilem & Campbell’s senior partner, New York Attorney Peter Tilem, who himself was a prosecutor in the Firearms Trafficking Unit of the New York County District Attorney’s Office. Tilem & Campbell, a White Plains based law firm, handles a wide variety of gun cases in both New York State and Federal Court and maintains the website handgunattorney.com.

The case was handled in the United States District Court for the Southern District of New York and was before Judge Stephen Robinson sitting in the Federal Courthouse in White Plains.

NEW YORK CRIMINAL LAWYERS Peter Tilem AND John Campbell ON THE RADIO

September 5, 2008 | Tilem & Associates

New York Criminal Defense Attorney’s Peter Tilem and John Campbell spent the morning,yesterday, on The Pulse 87.7 FM talking about criminal law and answering listeners’ questions. Peter Tilem and John Campbell were on the Star and Buc Wild morning show during the 8:00 am hour and ended up staying until 10:00 am talking with Star, DX 21 and White Trash Helene while listeners phoned and E-Mailed in their legal questions and even an NYPD Sergeant E-Mailed in his question concerning arresting people for Possession of Rifles in New York City.

Tilem & Campbell sponsored breakfast for the show and a great time was had by all; both Peter Tilem and John Campbell were invited back to come on the show in the near future. Yesterday’s appearance was videotaped and will be posted on this blog as soon as the video becomes available.

NEW YORK HAS NO STATUTORY SPEEDY TRIAL RIGHT FOR TRAFFIC INFRACTIONS.

September 2, 2008 | Tilem & Associates

The simple fact is, a motorist charged with a New York traffic violation has no statutory right to a speedy trial. The denial of a statutory right to a speedy trial in a New York traffic violation case is yet another example of the New York Judiciary completely disregarding the laws duly enacted by the Legislature and imposing their own will. It is yet another example of what I consistently refer to as judicial supremacy as opposed to judicial oversight. Such rulings by the courts quite simply amount to a judicial hijacking of the legislative role thus destroying the separation of powers.

A review of the relevant laws reveals that the Courts’ denial of speedy trial rights in traffic violation cases (as well as the denial of other rights in traffic violation cases) is completely contrary to the clear and unambiguous wording of the laws; laws that the judiciary is constitutionally obligated to enforce and carryout whether they agree with them or not.

First of all, the New York State Legislature has determined that, with some exceptions, traffic “violations shall be deemed as misdemeanors and all provisions of law relating to misdemeanors . . . shall apply except that no jury trial shall be allowed for traffic infractions.” See VTL § 155. Therefore, if the Legislature has determined that traffic violations are to be treated procedurally as misdemeanors, under what possible theory could the speedy trial statutes not apply? See for example People v. Solomon, 1984, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984) where the court held that the right to speedy trial does not attach to actions commenced for traffic violations. See also People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778(1993)(Speedy trial statute applies only to felonies, misdemeanors, and violations, and “violation” is specifically defined to exclude traffic infractions.)

WHITE PLAINS CITY COURT IN THE SPOTLIGHT

August 25, 2008 | Jasmine Hernandez

The City Court of White Plains is a busy Court located in the heart of downtown White Plains. The White Plains Court handles Landlord – Tenant cases, speeding tickets and traffic violations, small claims cases, Civil Suits with a monetary claim up to $15,000, criminal cases including both misdemeanor cases and felony cases before they are indicted by a grand jury.

As a White Plains criminal defense lawyer with a busy criminal and traffic practice, I routinely appear in the White Plains Court on a wide variety of criminal and other cases. My office is just a short walk from the White Plains City Court which is located near the White Plains Federal Court and the Westchester County Court.

The City of White Plains is the County Seat of Westchester County and is located just 25 miles from Manhattan. White Plains has a residential community of about 56,000 people with a population that increases to about 250,000 on any given business day as shoppers, workers and visitors arrive by rail, car, and bus. The City is one of Westchester County’s top business markets and is home to a large amount of retail activity concentrated into this small city. With three large shopping malls and a newly renovated downtown featuring “top notch” restaurants, shopping and nightlife, it is no wonder that the City Court of White Plains is an exceptionally busy Court.

ARE CERTAIN PEOPLE EXEMPT OR DISQUALIFIED FROM JURY DUTY IN NEW YORK STATE?

August 22, 2008 | Tilem & Associates

There are generally no classifications of people who are exempt or disqualified from jury duty in New York State. However, in order to be initially selected for the jury pool in your county, you must be a citizen of the United States as well as a resident of the particular county that has summoned you for jury duty; have never been convicted of a felony; be at least 18 years of age and be able to communicate in English. See Jud Law § 510. If you don’t satisfy all of these qualifications you are ineligible for jury duty in New York State.

Prior to January 1, 1996, active members of the armed forces; elected federal, state, city and local officers; the heads of certain government agencies; and federal or New York State judges were deemed disqualified to serve as jurors. See Jud. Law 511 (1995). These statutory disqualifications were repealed effective January 1, 1996.

Furthermore, prior to January 1, 1996, certain full-time religious practitioners, certain members of the medical field including doctors, dentists, nurses, licensed physical therapists and even embalmers as well as attorneys, fire personnel, sole proprietors engaged in the full-time operation of their business, parents or guardians with children under the age of 16 and those over 70 years of age were exempt from jury duty. These statutory exemptions were repealed effective January 1, 1996.

NEW YORK STATE LAW ENFORCEMENT OFFICIALS ANNOUNCE ANTI-DWI CAMPAIGN UNTIL LABOR DAY

August 18, 2008 | Jasmine Hernandez

New York State law enforcement officials announced this week a new campaign to crack down on Driving While Intoxicated or Impaired on New York State roads. The campaign coincides with the national “Drunk Driving. Over the Limit. Under Arrest,”campaign which is scheduled to last until September 2, 2008. The program calls for police agencies throughout New York State to increase the use of saturation patrols and checkpoints in an effort to catch intoxicated and impaired drivers.

Readers of this Blog and clients of Tilem & Campbell are reminded of my blog dated March 3, 2008 warning drivers about being arrested even if their Blood Alcohol Limit (BAC) is below the legal limit. Obviously it goes without saying that a driver should never operate a vehicle while intoxicated or impaired by any substance. However, if you are stopped in a DWI check point and you have alcohol on your breath you may be arrested regardless of whether you are legally intoxicated or impaired.

Keep in mind that if you refuse to take the breath test your license to operate a vehicle in New York will be revoked for a period of one year regardless of whether you are convicted of DWI or DWAI. Remember that a good lawyer can challenge both the police testimony and the breath test results.

WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK TRAFFIC TICKET ALSO PROSECUTING IT? PART IV – UNDER THE DOCTRINE OF “INCLUSIO UNIUS EST EXCLUSIO ALTERIUS”, THE LEGISLATURE’S SPECIFIC INCLUSION OF SOME NON-ATTORNEYS WHO MAY ACT AS AN ATTORN

August 5, 2008 | Tilem & Associates

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)
Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not “been duly and regularly licensed and admitted to practice law in the courts of record of this state” from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478