New York Criminal Attorney Blog

MANHATTAN COURTHOUSES IN THE SPOTLIGHT

April 2, 2008 | Jasmine Hernandez

The New York County Courthouses located in downtown Manhattan serve what is perhaps the largest and most diverse population in the world. Courthouses, plural, because the Manhattan Courthouses sprawl across lower Manhattan and have additional Courthouses in Midtown and in Harlem. By my count there are 10 distinct buildings that house the Supreme Court of the State of New York both Civil and Criminal Terms (the Criminal Term is where the most serious indicted criminal cases are handled), the Family Court, the New York City Criminal Court (which handles misdemeanors, violations and unindicted felonies), Surrogate Court, Civil Court of the City of New York which includes Housing Court and Small Claims Court.

As a former New York County Assistant District Attorney, I spent more time in the lower Manhattan, where most Courts are located, than I care to admit. I especially remember the nights, weekends and of course the long days and the numerous restaurants surrounding the Courthouses in the Chinatown, Little Italy, and Tribeca areas of Manhattan. It is not a stretch to say that I have handled over a thousand criminal cases in New York County both as a prosecutor and a criminal defense attorney including cases ranging from homicide to DWI, from Robbery to Drugs and from Assault to simple criminal summons such as Theft of Services or violations. I often affectionately refer to the Manhattan Courts as “my home away from home.”

In addition, the Special Narcotics Prosecutor is located in 80 Centre Street, where my old office was located. The Special Narcotics Prosecutor’s Office and the Special Narcotics Courts located in Manhattan, gives local prosecutors who generally only have borough wide jurisdiction the power to investigate and prosecute Narcotics and related offenses committed anywhere in New York City. As a result, Narcotics (or Drug) cases are often prosecuted in Manhattan even if they are committed in another borough such as the Bronx or Brooklyn.

NEW YORK CRIMINAL LAW DEFINITIONS “CRIMES” AND “PERSONS”

March 31, 2008 | Jasmine Hernandez

New York Criminal Defense Attorneys Tilem & Campbell know that criminal convictions in New York State can have far reaching consequences. As discussed in previous blogs on the subject knowing the legal terminology can have a significant impact on the outcome of a case. In addition, experienced attorneys know that individual localities and specific Courts may have their own specific definitions. At the New York Criminal Defense Firm of Tilem & Campbell we have the experience to know the practices of the Courts throughout New York State. Our attorneys also have the experience to know the significance of a criminal conviction.

New York Crime: (NY PL § 10.00(6)) A crime is a misdemeanor or a felony. When attempting to obtain a favorable plea bargain, an experienced and skilled attorney will fight hard for what is referred to as a “non-criminal disposition” (Please see our past blogs on the subject of ACDs, Violations and Plea Bargaining.) In other words, the defendant would agree to plead guilty; but not to a felony or a misdemeanor. Thus, the defendant would not be saddled with a criminal record and would therefore avoid the stigma and obstacles associated with a criminal record such as difficulty in finding gainful employment, credit difficulties, increased life insurance premiums, denial of certain licenses such as firearms and liquor, etc.

DEFINITION OF PERSON UNDER THE NEW YORK STATE PENAL LAW

WESTCHESTER COUNTY COURTHOUSE IN THE SPOTLIGHT

March 27, 2008 | Jasmine Hernandez

As an experience New York litigator, I am in Court almost every day and handle cases throughout New York State. However, as a Westchester County lawyer, located in White Plains, New York, I have had the opportunity to handle a wide variety of cases in the Westchester County Courthouse, located in White Plains, New York just a short five minute walk from my office. I have handled criminal cases of all types in the Westchester County Courthouse (as a general rule only felonies end up in the County Court), from homicide to felony DWI to firearms and almost everything in between. In addition to the criminal cases having also handled many family law cases involving domestic violence, child support and visitation and civil litigation including personal injury, commercial and real estate litigation, I have been in the Westchester County Courthouse too many times to Count. In fact my experience at the Courthouse goes way back to my days a young law student, working for the now retired Hon. Joseph K. West formerly of the Westchester County Court.

The Westchester County Courthouse serves the vast and diverse Westchester County Community just to the north of the Bronx, a borough of New York City. Westchester County, a suburb of New York City contains the densely populated Cities of Yonkers, New Rochelle, Peekskill and White Plains and the more suburban areas such as Bedford, Scarsdale, Larchmont, Mamaroneck and Greenburgh but also contains the very rural areas of Somers, Lewisboro and Pound Ridge. Housing the Supreme Court of The State of New York, the Westchester County Court and The New York State Family Court, the most serious cases criminal, civil and family are all handled in this Courthouse.

The Courthouse recently underwent a major renovation adding an annex to house the County and Family Court. The annex added 22 courtrooms and related spaces to serve the two Courts housed in the new space. The centerpiece of the new space is a new, landscaped courtyard, visible from the common areas of the interior of the courthouse and accessible to Court visitors and employees.

NEW YORK VIOLATIONS – A MORE IN DEPTH LOOK AT THE MOST SOUGHT AFTER PLEA BARGAIN

March 26, 2008 | Tilem & Associates

As discussed in our March 20, 2008 blog, guilty pleas to “violations” are commonly used

by the experienced NEW YORK CRIMINAL DEFENSE LAWYERS at TILEM & CAMPBELL to resolve more serious charges without putting our clients through the cost, expense, risk and time of a trial. At Tilem & Campbell we have successfully negotiated many criminal offenses down to a non-criminal disposition such as a violation. It’s important that your attorney know the particular court your case is pending in as Westchester County has plea-bargaining policies that differ from other counties such as Bronx County. Because of the importance of plea bargaining in general (see our March 7, 2008 post on Plea Bargaining DWI’s) and using violations in plea bargaining (See our March 20, 2008 post), here is some more information on these critical weapons in the plea bargaining arsenal here at Tilem & Campbell.

Violation: (NY Penal Law § 10.00(3)). A violation is an offense for which a person can be sentenced up to 15 days imprisonment. A violation does not include a Traffic Infraction. In addition to falling under the definition of “offense”, a violation is classified as a “petty offense” under the CPL. See CPL § 1.20(39). Violations are not criminal offenses.

NEW YORK TRAFFIC INFRACTION WHAT THEY ARE AND WHY THEY’RE BAD

March 22, 2008 | Tilem & Associates

If you are charged with a “Traffic Infraction” such as speeding, passing a school bus, red light violation, etc, you should not plead guilty but instead should hire an attorney skilled in defending such charges. The lawyers at the New York Law Firm of Tilem & Campbell have experience in fighting thousands of tickets. The Website trafficticketexpess.com is also a great resource to find out more about your ticket and your right. Tickets issued in New York City (Bronx, Manhattan, Brooklyn, Queens and Staten Island), Rochester, Buffalo and parts of Brookhaven, Babylon, Islip, Huntington, Smithtown and Riverhead, in Suffolk County, your case will be handled by the New York State Department of Motor Vehicles Traffic Violations Bureau. If you received your ticket anywhere else in the State such as Westchester County, White Plains, New Rochelle, Mt. Vernon, Mamaroneck, Larchmont or other municipality, your ticket will be handled by the local criminal court. Below is a brief definition and explanation of a “Traffic Infraction”.

Traffic Infraction: A Traffic Infraction is any offense defined as a “traffic infraction” by VTL § 155. A “traffic infraction” is any violation of the VTL (except Articles 47 & 48) or of any ordinance, law, rule, regulation or order regulating traffic which are not misdemeanors or felonies. VTL § 155. Traffic infractions are not crimes and the punishment imposed for committing a traffic infractions shall not be deemed a penal or criminal punishment nor shall a conviction for a traffic infraction impair one’s credibility as a witness. Id.

A conviction for a New York traffic infraction can result in fines, the remote possibility of jail and points imposed under the New York State Point System.

WHAT IS AN “OFFENSE” – NY PENAL LAW § 10.00

March 21, 2008 | Tilem & Associates

While procedure in New York criminal actions and proceedings can vary from Westchester County to New York County and may even vary from one local court such as Yonkers Criminal Court to New Rochelle City Court definitions of terms and phrases generally are the same throughout the State. In other words, whether you are in Greenburgh, White Plains, Mamaroneck, Larchmont or New York City, the terms used in the criminal courts will have the same meaning. At the New York Defense Firm of Tilem & Campbell, our attorneys are very experienced in criminal defense and have a thorough understanding of the definitions relevant to criminal actions and proceedings.

Definitions of terms germane to criminal cases in New York are found in Section 2 of the New York State Criminal Procedure Law (CPL) and Section 10 of the New York State Penal Law (Penal Law). I will first discuss the definitions of terms found in Section 10 of the PL as they are applicable to the CPL unless the CPL contains a different definition of the term. CPL § 1.20

Offense: The definition of “offense” is found in Section 10 of the Penal Law. It applies to the CPL unless the CPL contains a different definition. An “offense” is any violation of law, including state and local laws as well as local ordinances, for which a term or imprisonment or a fine may be imposed. See PL § 10.00(1). Any “crime”, including a “felony,” “misdemeanor,” “petty offense,” “violation” and/or “traffic infraction” are “offenses”. It’s interesting to note that the term “petty offense” includes the non-criminal offenses of “violation” and “traffic infraction”. CPL § 1.20(39)

TILEM & CAMPBELL Defines Basic New York Legal Terms – Part II (ACD and VIOLATION)

March 20, 2008 | Jasmine Hernandez

As discussed in my previous blog (Legal Definitions, March 14, 2008), convictions for misdemeanors and felonies in New York State can leave a person convicted of a crime with a permanent criminal record and many other “collateral” consequences such as effecting employment, immigration and civil rights. Here at the New York Criminal Defense Law Firm, Tilem & Campbell, preserving a clients “clean” record is often our paramount concern. Many clients however want to preserve their “clean record” without the expense and risk of taking their case to trial. (Please see our March 7, 2008 blog for some general principles of plea bargaining.)Moreover, New York does not have any mechanism for “expunging” a criminal record once you have one. So the stakes are high and the effects are long lasting.

ACD

New York has two options than can often help; they are the Violation and the ACD. The ACD which stands for Adjournment in Contemplation of Dismissal is often the best option for a person accused of a relatively minor crime or offense in New York. If an accused is granted an ACD their case is adjourned for a period of either six months or a year depending on the offense. (Marihuana and domestic violence have one year ACD’s.) On the next date (six months or one year later), if the accused has stayed out of trouble and otherwise abided by the terms of the ACD, the accused does not have to appear in Court and the case will be dismissed and the record sealed. If the person is rearrested or does not live according to the terms of the ACD the case is restored to the Courts calendar and the prosecution begins where it was stopped when the ACD was granted. In my seventeen year legal career, both as a New York County Prosecutor and a Criminal Defense Attorney, I have seen an ACD restored only a handful of times. The net result of an ACD, is almost always a dismissal and a sealed record.

NEW YORK GUN CRIMES and the SECOND AMENDENT – New US SUPREME COURT Case May have Far Reaching Effects

March 19, 2008 | Tilem & Associates

Westchester based Criminal Defense Law Firm, Tilem & Campbell, is following with great interest the case of District of Columbia v. Heller which was argued in the United States Supreme Court yesterday morning. Peter H. Tilem, Senior Partner at the firm is a former member of the Firearms Trafficking Unit of the New York County District Attorney’s Office and has handled numerous firearms and weapons related cases both as a prosecutor and a criminal defense attorney. The firm, Tilem & Campbell owns the domain name handgunattorney.com and has handled numerous firearms and weapons related cases in both Federal and State Court.

The Heller case involves a Federal challenge to the District of Columbia ban on private possession of handguns. This marks the first Second Amendment case considered by the United States Supreme Court since 1939. The question being considered by the Supreme Court in this case is whether the District of Columbia ban violates the rights of citizens who, though not part of any militia, wish to keep handguns in their home. The United States Court of Appeals for the District of Columbia Circuit has already ruled that the ban is unconstitutional and has struck down the DC law. The decision from the U.S. Supreme Court is likely to have far reaching ramifications.

If the Supreme Court agrees with the Circuit Court, it will mark the first time in this nation’s history that the Supreme Court has applied the Second Amendment to citizens not a part of a State Militia and therefore can have an impact on the gun laws of States throughout the Country. New York City and other localities throughout New York State that have particularly restrictive gun laws may be profoundly affected by the Decision particularly if the Supreme Court Decision upholds the Circuit Court ruling.

TILEM & CAMPBELL DISCUSSES CRIMINAL PROCEDURE – A BRIEF INTRODUCTION to the CPL (Sections 1.00 & 1.10)

March 18, 2008 | Tilem & Associates

At the New York Criminal Defense Law Firm of Tilem & Campbell our lawyers recognize that understanding criminal procedure is sometimes as important, if not more important, than understanding the substantive criminal law. Sadly, our criminal defense attorneys will agree that procedure in criminal actions varies drastically from county to county. It even can vary drastically from one local criminal court to another within the same county. That is to say that procedure in New York County (Manhattan) can vary drastically from procedure in Westchester County but even within Westchester County procedure can vary drastically from, for example, the Yonkers local Court to the Greenburgh local Court. Local custom can make the most experienced criminal defense attorney appear like a novice when he or she appears in an unfamiliar court. That is why it is important to utilize lawyers, such as ours, who are familiar with the customs and practices of Courts throughout New York State.

The procedure followed in criminal actions and criminal proceedings in the state courts of New York is found the New York Criminal Procedure Law (CPL). CPL § 1.10. Some provisions of the CPL are specifically applicable under the Family Court Act. See e.g. In re G 68 Misc.2d 80, 326 N.Y.S.2d 483 (N.Y.Fam.Ct. 1971)(provisions of CPL which that fall within the requirements of due process must be applied to juvenile proceedings). The provisions specifically applicable under the Family Court Act will be discussed later. Procedure in federal criminal cases is found in the Federal Rules of Criminal Procedure.

The CPL became effective September 1, 1971 and replaced the Code of Criminal Procedure. Unlike the Code of Criminal Procedure (the Code), the current CPL is found in the New York State Consolidated Laws. The Criminal Procedure Law is cited as, or in other words referred to as; the C.P.L. NY CPL § 1.00. As with the CPL, the Code was applicable in all criminal actions and proceedings. Code Cr.Proc. § 962.

NEW YORK DWI – What Happens if You Refuse to Take a Properly Requested Breathalyzer Test?

March 17, 2008 | Jasmine Hernandez

Here at the New York Criminal Defense Firm of Tilem & Campbell we often represent defendants who, in addition to being charged with Driving While Intoxicated or Driving While Ability Impaired (please see previous posts), refused to submit to a chemical test. Almost always, the chemical test in question is a Breathalyzer or similar machine such as an Intoxilyzer which is usually used in New York City or DataMaster which is often used in Westchester County. Our attorneys are often confronted with questions about the consequences of the refusal. There are no New York State criminal consequences; however, there are other consequences that result from a refusal. First, the refusal can be introduced at trial as what is known in New York as consciousness of guilt evidence. Second, at the time of your arraignment, the court will immediately suspend your license pending the prosecution of your case.

Whether one should refuse a chemical test or not is a complex question well beyond the scope of this Blog. As always, my advice is to consult with a skilled and experienced criminal defense attorney. This Blog provides general informative reading but is not a substitute for personalized legal advise.

Essentially, any person who operates a motor vehicle in New York is be deemed to have given consent to a chemical test of, among other things, his or her breath for the purpose of determining the alcoholic and/or drug content of that person’s blood. See generally VTL 1194(2)(a). However, before an officer may request that a motorist take a chemical test, either a lawful arrest for Driving While Intoxicated or Driving While Ability Impaired, or a positive result on a lawfully requested breath screening test must have occurred. (Note: a breath screening test is NOT a Breathalyzer but is instead a test of one’s breath (not blood) given by an officer on the side of the road. The machine used is a small handheld device. The results can be used to establish probable cause to arrest for DWI or DWAI but the results are not admissible at trial. Breath Screening Tests will be discussed in subsequent Blogs.)