New York Criminal Lawyer Blog 24/7 Published by New York Criminal Attorneys — Stephen Bilkis & Associates, PLLC Tue, 12 May 2020 20:19:57 +0000 en-US hourly 1 112558393 NewYorkCriminalLawyerBlogCom2 Sentencing Court Erred in Unsealing the Court Record Related to a Different, Unrelated Proceeding – People v Anonymous, 2020 NY Slip Op 01113 Mon, 11 May 2020 21:26:57 +0000 When it comes to sentencing in a criminal case, a court is not allowed to consider a proceeding in which the defendant was ultimately acquitted or that was otherwise resolved in favor of the defendant.  In this case the Court of Appeals considered whether the Appellate Division properly concluded that the defendant in a criminal possession of a controlled substance  case was not entitled to resentencing when the sentencing court improperly considered unsealed records related to another criminal proceeding that resulted in the defendant being acquitted.

In this drug crime case, the defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree. The deal he struck with the prosecution was that in exchange for pleading guilty he would receive a sentence of four years of imprisonment followed by three years of post-release supervision.  However, there was a condition to the defendant receiving this sentence:  he had to stay out of trouble. In other words, if the defendant committed another crime, the sentencing agreement was void.

Before the sentencing hearing the defendant was again arrested and was prosecuted for another crime. Had he been convicted, this would have been an obvious violation of the plea agreement. However, he was ultimately acquitted and the transcript of the trial was sealed  pursuant to CPL 160.50.  Under New York’s sealing law, under certain circumstances a criminal record is hidden from public view and from most government agencies. However, law enforcement can access the records, as can the courts and certain agencies.

Court Rejects Defendant’s Claim that Sentence Was Too Lenient – People v Francis 2020 NY Slip Op 00996 Mon, 27 Apr 2020 19:02:14 +0000 It may seem odd that a defendant would challenge a sentence in a criminal case on the ground that it was too lenient. However, that is exactly what happened in People v Francis. What makes this case even more odd is that the defendant moved to set aside a sentence that he already served nearly 30 years prior to when he filed the motion.

In 1988 the defendant was sentenced to six months in prison after pleading guilty to third-degree criminal possession of a weapon. In 2015, pursuant to CPL 440.20, the defendant filed a motion to set aside the sentence on the ground that it was illegally lenient. In addition to the 1988 conviction, over  15 year period the defendant had been convicted other crimes, but under aliases, including a 1982 nonviolent felony conviction.  As a result, he received sentences that were more lenient than they should have been given his true criminal history.

In 1997 the defendant was again arrested. This time, after a jury trial, the defendant was convicted of robbery in the first degree, a violent felony. Based on his 1988 conviction as well as a 1991 conviction, the defendant was adjudicated a persistent violent felony offender and was sentenced to 23 years to life in prison.

Failure to Disclose a Surveillance Video was a Violation of Defendant’s Constitutional Rights- People v Ulett, 2019 NY Slip Op 05060 Mon, 20 Apr 2020 13:06:39 +0000 In this case the Court of Appeals considered whether the defendant in a murder case was entitled to a new trial due to the prosecution failing to disclose potentially exculpatory evidence.

The events that eventually lead to the defendant being arrested began in March 2008. The victim was shot and killed in front of an apartment building. There were several eyewitnesses who either identified the defendant as the shooter or saw the defendant at the scene at the time of the murder. The defendant was eventually arrested and tried.  While several witnesses testified that the defendant was at the scene, on cross examination, the witness statements were not consistent.  In fact, one witnesses testimony contradicted that of another witness named Cream. Cream was also a childhood friend of both the defendant and the victim. Cream was a key witness against the defendant at the trial. However, he fled he scene without talking to the police. He only came forward 10 months later in an effort to make a deal on pending unrelated criminal charges that he was facing. Cream testified that he was standing with the victim when the defendant walked up, argued with the victim, and then shot him. The defendant was convicted of murder.

At the trial the prosecution stated that there was no video of the incident. It turns out that there was indeed a video and the prosecutor had it at the time of the trial. However, the District Attorney’s Office did not turn it over to the defendant until years after the verdict.  The video showed images of those near the victim when he was shot but did not clearly show who shot the victim.

Defendant Who Was Not Permitted To Cross Examine Police Officers Was Denied a Fair Trial- People v Rouse, 2019 NY Slip Op 08522 Mon, 13 Apr 2020 23:28:42 +0000 In this case, the Court of Appeals overturned the decisions of the Appellate Division and trial court and determined that in an attempted murder case the defendant was entitled to challenge the credibility of the law enforcement witnesses.

The incident that resulted in the arrest of the defendant started in the early morning of August 11, 2013. Someone followed a group of teenagers in the Bronx and fired a single gunshot at them. No one was struck or injured.  It just so happened that two police officers were patrolling the area and identified the shooter as the defendant. The officers testified that while they saw the defendant raise the gun to eye level, fire it, drop it, and flee.  One of the officers immediately picked up the gun. After unsuccessfully chasing him on foot, the two officers later found him while driving around and arrested him. The gun was not tested for fingerprints or for DNA evidence.

The defendant was charged with attempted murder in the second degree, criminal use of a firearm in the first degree, and two counts of criminal possession of a weapon in the second degree. Because the gun did not have the defendant’s DNA or fingerprints, the prosecution’s case rested heavily on the testimony of the two police officers who provided eyewitness testimony that the defendant was the shooter.  They both testified that they saw the defendant fire the gun from eye level. The also both testified that they had a clear, well-lit view of defendant at the time of the shooting.

Defendant in an Assault of a Police Officer Case Had Been Unlawfully Forcibly Detained- People v. Tucker, 34 N.Y.S.3d 744 (2016) Mon, 06 Apr 2020 23:32:56 +0000 In People v. Tucker, the Appellate Division considered whether there had been sufficient evidence to prove that the defendant had assaulted a police officer in order to prevent him from performing his lawful duty.

In the early morning hours, three police officers responded to a 911 call, but the caller did not give specifics as to the nature of the emergency.  When they arrived at the scene, the police saw a car abandoned in an intersection and a man struggling with a woman over a purse. After the man and woman were separated, believing that a domestic incident had occurred, one of the police officers attempted to question the woman to determine what was happening. The woman appeared to have been crying, but refused to respond to the officer’s questions. Instead, she was focused on what was happening with the male.  The police officer attempted to handcuff her and told her that she was “going to be detained until I can figure out what’s happening here.” The woman struggled, stating that she did not do anything and did not need to be handcuffed. In the process of struggling, she injured two of the officers. She was subsequently charged with two counts of assault in the second degree.

Following a jury trial, the defendant was convicted of one count of assault in the second degree and sentenced to two years in prison, to be followed by three years of postrelease supervision.  She appealed. The defendant maintained that the prosecutor failed to prove that the police officer who attempted to detain and handcuff her was performing a lawful duty at the time when she assaulted him.  

Admitting DNA Evidence was Harmless Error in Murder Case – People v. Williams, 2020 NY Slip Op 02123 Wed, 01 Apr 2020 21:49:55 +0000 In a criminal trial, a harmless error occurs when the trial court judge makes a mistake, but the mistake was not such that it impacted the outcome of the case.  When there is a finding of harmless error, the appeals court will not reverse the decision based on that mistake.  In this case, the Appellate Division examined whether the trial court erred in admitting low copy number (LCN) DNA evidence without first holding a Frye hearing.

In People v. Williams, months after fleeing from the scene where a young man was shot 4 times and killed, the defendant was arrested and charged with murder. There was testimony that the defendant shot the victim and then hid the gun in a former girlfriend’s apartment. The gun was recovered from a covered wall cavity in the apartment.

At trial the former girlfriend testified that the defendant forced her to hide the gun in her apartment and that he admitted to her that he had just shot someone. In addition, there was eyewitness testimony that the defendant was the shooter. The prosecution also presented DNA evidence purported to link the defendant to the gun. However, the DNA testing showed DNA on the gun from two unknown people. Initially, the medical examiner’s office was not able to link the defendant’s DNA to the DNA that was found on the gun.  The prosecution produced a witness who used LCN testing, a different form of DNA testing that was more “sensitive” than traditional DNA testing. The witness testified that the LCN testing along with a proprietary “calculator” concluded that it was likely that the DNA mixture found on the gun was from the defendant and from one other unknown person.

Court Concluded that Defendant’s Right to a Speedy Trial Was Violated- People v. Watson, 975 N.Y.S.2d 369 (2013) Mon, 30 Mar 2020 23:37:09 +0000 In a drug possession case where the court had to decide whether the defendant’s right to a speedy trial had been violated, the court also examined the distinction between a criminal complaint and an information.

On October 23, 2012, the defendant was charged with criminal possession of a controlled substance in the fifth degree, a felony, in violation of Penal Law §220.06(2).  The defendant allegedly was in possession of Hydrocodone and Alprazolam pills. On October 25, 2012, because there was no lab evidence confirming the type of drug that the defendant allegedly possessed, the charge was reduced to criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor under New York Penal Law §220.03. When the charge was reduced, the court marked the accusatory instrument a misdemeanor complaint. Nearly 5 months later, in March 2013, the defendant’s case had not been brought to trial.

New York’s speedy trial rules required that if the charge is a felony, the case must be ready for trial within 6 months.  For class A misdemeanors the case must be ready for trial within 90 days, while for class B misdemeanors, the case must be ready for trial within 60 days. The time period runs from when the original complaint was filed. Where as in People v. Watson a felony complaint is replaced with a new accusatory instrument charging a misdemeanor, the prosecution must be ready for trial within 90 days from the filing of the new instrument or 6 months from the filing of the felony complaint, whichever is shorter.

Court Finds that Officer Lacked Justification to Stop and Search Defendant – People v. Nazario, 2020 NY Slip Op 00955 Mon, 23 Mar 2020 22:05:34 +0000 In a case where the defendant faced a burglary charge, the Supreme Court, Erie County,  granted the defendant’s motion seeking to suppress physical evidence and statements on the ground that the police lacked justification for detaining and searching him. The People appealed the decision.

There is a well-established test for determining whether the police can lawfully stop, search and detain a person.  Under People v. DeBour, 40 NY2d 210 (1976), the police can stop and request information from a person if there is a good, objective reason to do so.  The police can question the person if he or she has a reasonable suspicion of criminal activity.  The police have the right to forcibly stop and detain a person if there exists a reasonable suspicion that the person has committed a crime or is about to commit a crime.  If the police have probable cause to believe that the person has committed a crime, then the police can arrest the person.

In People v. Nazario, the incident leading up to the defendant’s arrest started when the arresting officer  responded to a call regarding a burglary in progress.  The officer had also viewed a “be on the lookout” (BOLO) photograph depicting a man who  may have been involved in a prior burglary. Three blocks from the burglary scene, the officer noticed the defendant walking alone carrying a bag and a cell phone. When the officer asked the defendant what he was doing, he responded that the was looking through garbage cans. The officer searched defendant’s bag purportedly to check for weapons. He then drove the defendant back to the scene of the burglary to figure out if he was a suspect in the burglary. At the scene a showup identification was conducted. A showup is a form of eyewitness identification during which the police present a single suspect to an eyewitness and ask the eyewitness whether the suspect is the offender.  The witness identified the defendant as the burglar, and the defendant was arrested and later charged

Court Reduced Defendant’s Conviction of Tampering with Physical Evidence to Attempted Tampering – People v Zachary 2020 NY Slip Op 00165 Mon, 16 Mar 2020 15:45:45 +0000 In a case involving marijuana possession, the Appellate Division reviewed what actions amount to the crime of tampering of physical evidence.

On May 9, 2013, in the City of Newburgh, the defendant was stopped as it was suspected that he was violating the City’s open-container law. After the officer identified himself, the defendant fled.  While chasing the defendant, the officer noticed the defendant discard a plastic bag which, it was later determined, contained marijuana. The defendant was apprehended, arrested, and charged with a number of offenses, including tampering with physical evidence. Prior to trial, the defendant filed an omnibus motion to suppress the physical evidence.  The motion was denied.

At trial the defendant testified that he did not discard any marijuana and that nothing was found on him when he was searched.  Nonetheless, the jury convicted him of several charges including unlawful possession of marijuana and tampering with physical evidence.

Appellate Court Affirmed Denial to Suppress Physical Evidence in a Gun Possession Case – People v. Wright-Hale, 2020 NY Slip Op 01092 Mon, 16 Mar 2020 05:41:31 +0000 In this case, the appellate court considered whether evidence should have been suppressed because the defendant’s consent to having his car searched was not voluntary.

In People v. Wright-Hale, the arresting officer went to a hotel in Queens in response to a 911 emergency call that someone was banging on a hotel room door with a firearm. When the arresting officer arrived several other officers were already on the scene.  They were talking to the defendant in the hallway.  The arresting officer entered the hotel room and learned from the room’s occupant, the defendant’s ex-girlfriend, that the defendant was known to carry a gun.  The arresting officer then asked the defendant for permission to search his car.  He gave permission, gave the officer his keys, and told the officer which car belonged to him.  The officer found a gun in a shoebox in the trunk of the defendant’s car.

The defendant was arrested and charged with criminal possession of a weapon in the second degree. The defendant filed a motion to suppress the gun and statements that the defendant made to the police.  The court denied the motion. The defendant was eventually convicted. He appealed on the grounds that the evidence of the gun should have been suppressed because the officer had no reason to suspect criminal activity.  The defendant also argued that the search was involuntary because of the presence of so many police officers and because the arresting officer did not inform the defendant that he had the right to refuse permission to search his car.