New York Criminal Lawyers Blog

Our White Plains criminal defense lawyers handle drug cases in the Westchester Criminal Courts on a regular basis. We are seeing more and more cases where one person in a car, building or even on the street has drugs such as cocaine, heroin, meth or oxycotin on them and everyone in the car or near the person is arrested and charged with criminal possession of a controlled substance.

Many of our clients assume that if they don't have the drugs on them, they cannot be charged with possession of a drugs. However, the New York law also recognizes the concept of constructive possession. In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised "dominion or control" over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband.

The issue often becomes whether there is legally sufficient evidence to prove constructive possession. Under New York Criminal Procedure Law 70.10 [1], legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant's commission of it. New York Criminal Courts allow constructive possession to be proved by showing that a defendant exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property. Whether a constructive possession of drugs case can be proved depends on a number of factors and often turns on fine details and the Courts have drawn very fine lines in determining whether constructive possession has been proven.

The Courts have recognized that knowledge of the presence of illegal drugs may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred. Therefore, our New York City and White Plains criminal defense lawyers recommend that anyone who is arrested in a drug possession case not answer any questions. Our attorneys have seen numerous cases where our clients were arrested and did not have drugs on them, but drugs were found on a friend or somewhere in a car, so there was no case against them, but they admitted knowledge of the drugs which incriminated them. Had they just kept quiet and said nothing the case would have been unprovable. In one recent case, our drug defense lawyers won a major victory in a Class A drug case where Meth was found in a car and and everyone in the car was arrested. Since the client was one of several people in the car and the drugs were found on one individual and our client did not incriminate herself, she got a complete dismissal of all charges.

However, the New York Courts have also recognized that in the absence of any proof that a defendant had authority over person in actual possession of the drugs, there is no constructive possession. In another case, the New York Criminal Courts held that the evidence was legally insufficient to establish the defendant's constructive possession of cocaine which was found in a back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room.

Our Westchester criminal defense lawyers have handled drug cases in New York City including the Bronx, Queens, Brooklyn, Manhattan) and Westchester including White Plains, New Rochelle, Mount Vernon, Yonkers, Scarsdale, Valhalla, Greenburgh, Mount Kisco, Rye, Port Chester and Armonk.

Our White Plains criminal defense lawyers see the unfairness in the current bail system on a daily basis. Based upon nothing more than an allegation, a person can be arrested and held on bail. This disproportionately affects poor and underprivileged defendants who are accused of committing crimes. Often, family members just of the accused who are living paycheck to paycheck simply cannot afford to post even small amounts of bail. The result is that all too often people are held in jail for alleged crimes that ordinarily would not result in jail, not because they are guilty, nor was there even a hearing which analyzed the merits of the case, rather, they are held in jail because they cannot afford to get out.

Judge Lippman has proposed amendments that would overhaul New York's bail statute. The new proposal creates a presumption that an individual charged with a non-violent offense. such driving while intoxicated, prostitution, drugs and financial crimes will be released while awaiting trial with the least restrictive requirements unless the District Attorney demonstrates they the defendant is risk to public safety or of flight. Likewise, the Court will be required not just to focus on whether the accused is a flight risk, but also on whether the accused is likely to commit more crimes or is a risk to public safety.

Our Westchester criminal defense attorneys regularly handle criminal cases and make bail and bond applications in the Criminal Courts of White Plains, Yonkers, New Rochelle, Greenburgh, Mount Vernon, Elmsford, Armonk, Port Chester, Mamaroneck, Tarrytown, Sleepy Hollow, Ardsley, Mount Pleasant, Irvington, Mt Kisco, Valhalla, Mount Pleasant, Bronxville, Hartsdale and Scarsdale. Our criminal defense attorneys also regularly appear in the New York City criminal courts in Queens, Manhattan and the Bronx.

Often, the most valuable evidence to the police and prosecutors is a confession. If is often in the best interest of someone facing criminal charges to remain silent. Often the police may suspect that a person was involved in a crime, but they may not have the proof they need to prosecute or convict. Unfortunately too many people believe lies by the police that it is in their best interest to cooperate and tell the police what happened. This in most cases could not be further from the truth. Our White Plains criminal defense lawyers have encountered situations where both the police in Westchester County and New York City have engaged in deceptive and unfair methods to obtain confessions and to get people to waive their constitutional rights to remain silent and get a lawyer.

A New York Appellate Court in People v. Dunbar, just announced a decision where they reversed a conviction based upon improper police and prosecutor actions which inferred that there was a penalty to exercising the right to remain silent by giving instructions which gutted the Miranda warnings. The case involved a practice by the New York City Police Department and the Queens District Attorney's office of interviewing arrestees (who have usually been sitting in jail for up to 23 hours waiting to see a Judge). These interviews occurred, not coincidentally, immediately before arraignment, which is when the right to counsel attaches. As part of the Program, the District Attorney's office created a script which was read to suspects before they are advised of their constitutional rights.

The police would tell suspects that that they would be read their Miranda rights, and that they would "be given an opportunity to explain what they did and what happened at that date, time, and place. The suspects were told that this was their opportunity to tell the police your story and if there was something the suspect needed the police to investigate about this case they have to tell the police now so they can look into it.
The suspects were also told that this will be your only opportunity to speak with us before you go to court on these charges.

The Court held that It is "an underlying principle in the enforcement of our criminal law[] that ours is an accusatorial and not an inquisitorial system and that society carries the burden of proving its charge against the accused not out of his own mouth but by evidence independently secured through skillful investigation. The Court reaffirmed that both the U.S. Constitution's Fifth Amendment and the New York Constitution guarantees that no person shall be compelled in any criminal case to be a witness against himself and that confessions that are deemed to be involuntary under this standard are still excluded from evidence. The New York Appellate Department went on to recognize that unless adequate protective devices were employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from a defendant could truly be the product of his free choice.

In analyzing whether the tactics utilized by the New York City Police Department and the Queens prosecutor's office passed Constitutional muster, the Court focused on the core principal that the rights must be clearly conveyed to the accused. In finding that these tactics violated the Miranda rule, the New York Appellate Department held that the instructions added information and suggestion to the Miranda warnings which prevent them from effectively conveying to suspects their rights. Consequently, the instructions violated the Miranda rule because Miranda mandates that suspects be informed of their rights in clear and unequivocal terms. The Court correctly held that the message conveyed to suspects is muddled and ambiguous because when the warnings are combined with the speech, it cannot be said with assurance that the suspects clearly understood their rights because these suspects who were interviewed were advised of their Fifth Amendment privilege against self-incrimination, but only after being told that this is their "opportunity," and then "only opportunity," to, essentially, refute what the prosecutor has been told by other individuals, to correct any misperceptions or falsehoods, and to try to help themselves. This tactic was especially egregious because this "opportunity," with which suspects were presented, is to speak, not merely with a police detective, but with an ADA who is the one person who can at the pre-arraignment stage plausibly assert authority to grant favorable treatment to an uncounseled defendant.

The Court further held that the police suggested a sense of immediacy and finality which impaired the suspects' reflective consideration of their rights and the consequences of a waiver. By advising suspects if there is something you need us to investigate about this case you have to tell us now so we can look into it, the preamble suggests that the prosecutor will not investigate their version of events if the suspects decline to speak with the prosecutor at that time. This also suggests that the prosecutor will assist the suspects by performing such an investigation, if the suspects agree to be interviewed. Such a suggestion is contrary to the purpose of the warning that anything a suspect says can be used against him or her, namely, to make the individual more acutely aware that he is faced with a phase of the adversary system -- that he is not in the presence of persons acting solely in his interest.

This ruling may pave the way for motions to set aside conviction under New York Criminal Procedural Law 440 for Defendants who have been convicted based upon confessions obtained under these circumstances.

The Sandy Hook Elementary School tragedy put the right to keep and bare arms in the national spotlight and our New York City and White Plains criminal defense lawyers who handle criminal cases involving guns strive to stay on top of the evolving gun laws. Although the Supreme Court has recently held that the right to keep arms at one's home is protected by the Second Amendment, the Court has not explicitly interpreted the Second Amendment right outside of the home. Commentators and courts are now divided as to the extent of the right afforded by the Amendment. One approach simply argues that the Second Amendment protects an individuals' rights to firearm ownership, possession, and transportation and that the right cannot be infringed. The other approach argues that the right can be limited, regulated and controlled if a state demonstrates a compelling interest and the state regulation is narrowly related to that interest.

A recent case, Kachalsky v. Cacace, 817 F. Supp. 2d 235 (2011), decided by the Second Circuit Court of Appeals held that an unfettered right to keep and bare arms as provided in the Second Amendment is limited to one's home and that outside the home the right can be limited, regulated and controlled. Specifically, the Second Circuit held that New York state could limit the issuance of gun permits to those who demonstrate suitability and a "proper cause" to carry a gun. In making this distinction the Second Circuit noted the long standing notion that one's home is entitled to special constitutional consideration and upheld N.Y. Penal Law § 400.00 (2) (f) which requires a license to carry a handgun and a showing of a proper cause before such license shall be issued.
The plaintiffs in Kachalsky challenged New York's law arguing that a state can not place any restriction on owning and carrying a gun when the gun is sought for self-protection. Plaintiffs argued that since the Second Amendment protects the right to bear arms for purposes of self-defense and since many violent crimes occur without warning, a license must be issued when a person "desires [a gun] for self-defense."
The Second Circuit disagreed and distinguished between the right to carry a fire arm in public and the right to bear arms for self-defense in the home. Using this distinction, the Second Circuit did not feel compelled to follow District of Columbia v. Heller, 128 S. Ct. 2783 (2009) and McDonald v. City of Chicago, 130 S. Ct. 320 (2010). In Heller and McDonald the Supreme Court struck down gun control laws, but the laws that were held to be unconstitutional restricted the possession of firearms in the home. The gun law at issue in Kachalsky, however, was limited to requiring proper cause when the individuals sought "[a] license for a pistol or revolver ... to have and carry concealed, without regard to employment or place of possession." See N.Y. Penal Law § 400.00 (2) (f). This law did not specifically ban or regulate the keeping of a gun inside one's home.
The Second Circuit relied upon the fact that the home has historically been treated as special in "individual rights jurisprudence." The Second Circuit compared the distinction between possessing a gun at home and carry it in public to the distinction between possessing obscene material at home, which cannot be criminalized, and displaying obscene material in public, which can be criminalized. Likewise, the Second Circuit reasoned, outside the home firearm rights could properly be limited since public safety interests are implicated.
The Second Circuit also found authority to uphold the law in that the Supreme Court in Heller indicted that gun control laws should be subject to review based upon a scrutiny analysis. Specifically, the Supreme Court in Heller noted that "under any of the standards of scrutiny" the subject law was unconstitutional "because it completely banned handguns in the home." This language indicated to the Second Circuit that Heller stands for the proposition that gun control laws should be subject to a scrutiny analysis which compares and relates the State's interest in the gun control law to the Constitutional right implicated. Although the Supreme Court did not identify the level of scrutiny that would be applicable, the Second Circuit applied an intermediate level of scrutiny standard for the reason that our country's "tradition so clearly indicates a substantial role for states regulation of the carrying of firearms in public." The Second Circuit then found the New York statute constitutional because a substantial relationship existed between the law and the public safety interest of regulating the possession and carrying of firearms outside the home.

New York's gun laws are some of the most restrictive and draconian in the Country. New York does not honor firearms permits issued by other states. In order to be licensed to possess a firearm in New York, you have to be a New York resident and get a New York firearm permit. In addition, New York City requires its own separate permit to carry within the five boroughs of New York City including the Bronx, Manhattan, Queens, Brooklyn and Staten Island.

If you do not have a New York State gun permit, and are in New York State with a gun you can be charged with criminal possession of a weapon, even if you have a license or permit from another state. There is one exception, 18 USCS § 926A, (also knows as the "Safe Passage Act") which permits the interstate transportation of firearms, provided that you can lawfully possess the gun in the state that you are coming from, and the state you are going to, and that NYS is only a state being passed through and is not a destination (final, overnight or otherwise). It may be permitted to stop briefly in NYS, but only for gas or food, not as a destination. The gun must be unloaded, separate from the ammo and in a locked container (other than the glove box or console).
The 18 USCS §926A states: "Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter [18 USCS §§ 921 et seq.] from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."

This new rule pre-empts New York's gun laws and provides an affirmative defense to any criminal charges under federal law.

Our White Plains criminal defense lawyer Michael Joseph is proud to report that the attempted robbery charge in the Patterson charge, which was featured on Eyewitness News has been voluntarily dismissed by the Westchester District Attorney's office.

Thanks to the quick thinking of one of our client's friends who recorded the interaction with the Greenburgh police, the District Attorney's office voluntarily dismissed all charges and admitted in the Greenburgh Town Court that they could not prove that our client committed any crime. The officer falsely accused our client of jumping on his back and pulling on his gun, thereby attempting to commit a robbery. The video evidence, which was captured on an Iphone, clearly showed that these charges were a complete fabrication.

Video evidence is becoming critical in successfully defending those falsely accused of committing robberies. In another case, where a robbery was captured on tape and our client was falsely accused, our White Plains criminal defense lawyers retained the services of a retired F.B.I. facial recognition expert who was able to exclude our client based on facial differences, height differences and complexion differences between the individual captured on the tape and our client. Our Westchester criminal lawyers strive to stay on the cutting edge of technology to successfully use video evidence to clear those who are falsely accused of committing robberies in Westchester towns including White Plains, Yonkers, Mount Vernon, Rye, Sleepy Hollow, Greenburgh, Elmsford, Valhalla, New Rochelle, Bronxville, Scarsdale, Mamaroneck, Hartsdale, Harrison, Mount Vernon, Port Chester and Mount Kisco.

Families often get into heated arguments and occasionally have to confront aggressive and violent conduct between family members. Often the first impulse is to call the police and this results in criminal charges being brought against a family member. Unfortunately, that call has unintended consequences and the charges do more harm then good. In Westchester, once a call regarding an alleged domestic incident is made, often the husband is arrested, even where no crime was actually committed. Once a husband appears in any of the Westchester criminal Courts including White Plains, Yonkers, Mt. Kisco, Scarsdale, Port Chester, Rye, Mount Vernon, Pelham, Mamaroneck, Mt Kisco, Greenburgh, Elmsford, Armonk or New Rochelle, the court will issue an Order of Protection requiring the husband to stay away from the wife and his own home. Any violation of the order of protection will cause a new charge of criminal contempt, which is often more serious than the original charge for which the person was arrested.

The expenses relating to defending the charges, the difficulties that result from the Stay Away Order of Protection that is usually issued by the criminal court and the inability of the family to get counseling while the criminal proceedings are pending can be devastating. Often the family is destroyed even if the family member is ultimately acquitted. While a case is pending, the Westchester District Attorneys often ignore the spouse's pleas to cancel the order of protection.

Recently our White Plains Criminal Defense Lawyers were retained in just such a circumstance. Our client's husband, after an isolated domestic violence incident, had been arrested and charged with NY Penal Law Section 120 Assault in the Third Degree. Our client never wanted her husband arrested and the Stay Away Order of Protection issued by the criminal court prevent him from coming back to the family home. The marriage had two children who were very upset that their father was not at home. Our client wanted to attend counseling with her husband and attempt to save the marriage. He had no history of violence and this was the first and only time such conduct had occurred. In this circumstance, she felt, the criminal proceedings were doing more harm than good.

Our Westchester domestic violence lawyers represented the wife and intervened in the criminal case on her behalf. Our attorneys relied upon Section 530.11 of the New York Criminal Procedure Law and Section 812 of the Family Court Act to argue that all victims of family offenses have a right to chose as between criminal charges or bringing a civil proceeding in Family Court. Our lawyer argued that every victim has to be informed that: (1) a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, ending the family disruption, obtaining protection and then getting counseling to attempt to save the family, (2) a proceeding in the criminal courts is for the purpose of the prosecution and conviction of the offender, and (3) that the victim has a right to make an election as to how she wishes to proceed.

Our lawyer was able to end the criminal prosecution and have the Stay Away Order of Protection vacated and replaced with a Refrain From Order of Protection. This provided protection against unlawful conduct to our client, but allowed the husband to return home. It also allowed both to attend counseling together. Our client was very happy with the result and felt the kids and the marriage would have been devastated had the Stay Away Order of Protection and criminal prosecution continued.

Our White Plains criminal defense lawyers continue to keep up on the latest developments in the law to better serve our clients. Unfortunately many cases which occur in a few seconds such as robbery or burglary or assault cases involve often shaky witness identifications. Many times, these individuals identify the wrong person, often they are people the police have an agenda to get and who are falsely arrested and then thrown into lineups.

In a recent decision, the Second Circuit found that the New York State Criminal Court's application of law violated the rights of a defendant charged with burglary and threw the case out. In this case, the victim did not see the perpetrator's face and was unable to identify or even describe the perpetrator with any detail. Thereafter, the police arrested the defendant without any probable cause and placed him in a lineup where the victim identified him by his voice. The State Court then held that the arrest was unlawful but held that the identification did not have to be suppressed because the victim had an independent basis to identify the defendant. In this particular case, the defendant's age and height were different than the initial description, nevertheless, the Court permitted the identification. The Second Circuit held that the State Court unreasonably applied Constitutional law and reversed the conviction.

To establish an independent basis the state must prove that the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from his or her observations of him at the time of the crime. Federal Constitutional law provides that an in-court identification following an illegal
lineup procedure is not admissible unless the State establishes by clear and convincing evidence that the in-court identification was based upon observations of the suspect
other than the tainted lineup identification. The rationale is simple. Once a suspect has been seen in police custody, a shaky witness is likely to remember the person the police indicated was a suspect and mold their testimony, rather than rely upon an independent recollection of whether that person is actually the perpetrator. This results in unfortunate and frequent incarceration of innocent people.

To determine whether there was an independent basis, the Courts consider factors such as (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup description and the defendant's actual description; (3) any identification prior to the lineup of another person; (4) a photographic identification of the defendant prior to the illegal lineup; (5) the failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the lineup identification.

From our White Plains office our experienced Westchester criminal defense lawyers have handled hundreds of criminal cases. Often, where a defendant is innocent, they are blindsided by an accusation which they know nothing about. Often these charges are based on faulty evidence and baseless speculation. Our White Plains criminal defense lawyers have used experts in a number of scenarios to challenge the government's evidence. A few examples are as follows.

In robbery cases, often there is a tape of the incident and then some local police department just says the person is on the tape is someone that they are after. The result is that innocent people are being framed. Our Westchester criminal defense lawyers in a recent case had the tape analyzed by a well credentialed facial recognition expert who opined that the perpetrator was not our client and was able to offer substantial and convincing analysis by identifying differences in body type, height and facial structure.

In motor vehicle cases including Driving While Intoxicated, reckless driving, and leaving the scene of the accident, among others, our criminal defense attorneys have had accident reconstruction experts to analyze the physical evidence from the scene and challenge the state's theory of how an accident occurred. In another case, the expert was able to determine that the damage pattern on the vehicles did not match and as such, the car was not involved in the accident described by the complaining witness.

Our Westchester criminal defense lawyers have successfully challenged numerous gravity knife cases by hiring a cutlery expert, who can demonstrate that the knife in question was not a gravity knife based upon the mechanics of how the knife opens.

In another case, our lawyers challenged the authenticity of a taped confession and corroborated that threats were made by having the tape reviewed by an audio engineer who opined that the tape showed definite discontinuities, as such, the tape was not a full and fair account of what happened during the interview.

In another case, we were able to use a ballistics expert to testify that our client was not the shooter because he did had a negative gun shot residue test, which meant that he did not fire a gun. The same expert was also able to dispute the significance of a witness's testimony that our client had a revolver where shells were found at the scene because revolvers do not discharge shells, they retain them in the compartment.

In another sex abuse claim, our criminal defense lawyers actually used the government's forensic expert to show that semen did not match our client and the existence of semen from different individuals showed sexual activity with multiple partners within a short period of time prior to our client being accused.

In a case where our client was accused of having sex with a complaining witness who claimed she must have been unconscious because she did not remember the incident, another expert was able to establish that memory loss was caused by the combined effect of alcohol and drugs which the complaining witness voluntarily took after the alleged sexual activity.

Experts can be utilized in a wide variety of criminal cases to challenge the government's evidence. Often a case becomes a he said, she said situation but an expert provides a high degree of credibility to challenge the government's case.

Our criminal defense lawyers have handled criminal cases in the criminal courts of Westchester including White Plains, Scarsdale, New Rochelle, Mamaroneck, Ossining, Valhalla, Port Chester, Bronxville, Yonkers, Mount Vernon, Valhalla, Scarsdale, Rye, Tarrytown, Greenburgh, Elmsford and Hartsdale

A common question our White Plains criminal defense lawyers hear is when is smoking pot a misdemeanor. Usually the mere possession of marijuana is only a violation. However, when someone is smoking pot in a public place or openly displays it, it is a class b misdemeanor.

In these cases, the question often becomes what exactly is a public place. Certainly a person's home is not a public place, but bars and even clubs are public places. A question that often comes up is whether a person's car is a public place. A recent New York Appellate Court decision held that when a car is on a public street or highway, that is a public place. So when people roll or smoke marijuana in their vehicles, New York now considers the car to be a public place if the car is on a public street or highway, therefore anyone arrested smoking marijuana will face a criminal charge.

Our Westchester criminal lawyers have successfully handled drug and marijuana charges in all of the Westchester Criminal Courts including White Plains, Yonkers, Mount Vernon, Rye, Sleepy Hollow, Greenburgh, Elmsford, Valhalla, New Rochelle, Mt Pleasant, Armonk, Port Chester, Bronxville, Scarsdale, Hartsdale, Rye, and Mount Kisco.

Today Westchester criminal defense lawyer, Michael Joseph had a big win in a felony theft case in the White Plains City Court Court. It was alleged that our client was involved in a scheme whereby individuals purchased goods at Nordstroms with a stolen credit card.

Our client originally was charged with several felonies including Class C felonies for possession of stolen property and grand larceny. After an aggressive criminal defense and questioning of the government's witnesses, our white plains criminal defense lawyer was able to successfully establish that there was simply no evidence that our client ever possessed the stolen credit card. Following the hearing, the Court dismissed the most serious charges and all of the charges except for a low grade, Class E felony of grand larceny. These dismissals drastically reduced the potential sentence that could be imposed if our client is ultimately convicted, which we doubt will happen.

A defendant charged with a felony is entitled to a felony hearing, which requires the government to establish reasonable cause that the defendant committed a felony. The felony hearing often can be used to get a peak in the government's case before the witnesses have been prepped and expose weaknesses in a criminal case early on. If a felony criminal case is going to be litigated, the felony hearing is an incredibly valuable tool.

Our New York criminal defense lawyers keep up on the latest developments in the area of civil rights law and criminal law. Unfortunately the Supreme Court has now made a decision which undercuts a basic Constitutional Right. In the Crawford case, the Supreme Court previously held that scientific reports could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation. In that case, the report at issue contained a testimonial certification, made in order to prove a fact at a criminal trial. Now, in Williams v. Illinois, the Supreme Court has backed away from its prior holdings and significantly undercut the Confrontation Clause.

Inexplicably and through artificial distinctions, the Supreme Court held that a criminal defendant facing a rape charge was properly convicted where a forensic specialist testified that she matched a DNA profile produced by an outside laboratory to a profile the state lab produced using a sample of Defendant's blood.

The Supreme Court found that the confrontation clause was not violated because the Confrontation Clause refers to testimony by "witnesses against" an accused, prohibiting modern-day practices that are tantamount to the abuses that gave rise to the confrontation right, namely, (a) out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct, and (b) formalized statements such as affidavits, depositions, prior testimony, or confessions. The Court drew an artificial distinction by finding that because the Court's prior decision involved reports which were the equivalent of affidavits made for the purpose of proving a particular criminal defendant's guilt, however the outside laboratory in this case's report's primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against the defendant, who was not in custody nor under suspicion at that time. Nor could anyone at the laboratory possibly know that the profile would inculpate petitioner, thus there was thus no "prospect of fabrication" and no incentive to produce anything other than a scientifically sound and reliable profile.

Here the Court's decision seems to be more about convicting a defendant and condoning police shortcuts, than actually interpreting the law. While the Court seemed to place emphasis on the contention that there was an absence of fabrication motive, a fabrication motive is not found in the confrontation clause. Even if there was no fabrication motive, there is still the possibility of error, contamination or junk science. The Confrontation clause is a basic Constitutional guarantee that gives a criminal defendant the right to confront those who present evidence against them and this Court has seriously eroded its protections. Unfortunately, so long as these right wing republicans are in control of the Court, I suspect that all criminal defense lawyers will have a more difficult job in defending our clients, many of whom are innocent. Simply stated, it is impossible to cross examine a piece of paper and allowing people to be convicted based upon scientific opinions which are written on a piece of papers and not by a live person in Court is offensive to the basic protections protections our citizens deserve.

Our New York police misconduct attorneys routinely handle malicious prosecution cases. The decision whether to file a malicious prosecution case in the New York State Courts or in the Federal Courts is often a judgment call which forces the civil rights attorney to choose among various risks.

Both New York law and Federal law under 42 USC 1983 recognize causes of action for malicious prosecution. One of the first issues is whether a notice of claim was filed. Under New York State law a notice of claim must be filed within 90 days of the termination of the prosecution. If the notice of claim is not timely filed, then special permission from the Court called leave must be obtained from the Court. However, in Federal Court there is notice of claim requirement. Also under New York State Law, there is a one year and ninety day statute of limitations period. However, a federal cause of action under the 3 year statute of limitations can be brought in state court, but the risk is that some Judges may still apply the one year and ninety day limitation or enforce the notice of claim requirement because most state Judges are not familiar with Federal Law.

However, there are many benefits to bringing a malicious prosecution action in State Court. First, the State Courts allow the attorneys to directly question witness, whereas in Federal Court, the Judges ask the question and often you end up with better juries in State Court because jurors open up more to lawyers than they do to Judges. Also the jury pools in places like Brooklyn, Queens, Manhattan and the Bronx, are better than the overall Federal Districts which include more conservative jurisdictions like Westchester, Sullivan Count and Suffolk.

Also a string of decisions in the Federal Courts makes the law more favorable to Plaintiffs in State Court. For example, if a case was dismissed in the interest of justice the Federal Courts have held that is not a favorable determination, so there is a malicious prosecution case cannot be brought where the case was dismissed in the interest of justice. However, the New York State Courts have held that a dismissal in the interest of justice can qualify as a favorable termination. Likewise, the federal cause of action has a deprivation of liberty requirement, which must have occurred after the arraignment, so often the deprivation of liberty which occurred between the false arrest and the arraignment cannot be bootstrapped to support the malicious prosecution case because malicious prosecution starts at indictment. In general, this means that to succeed on a malicious prosecution case in Federal Court, the Plaintiff must have been incarcerated for some period after the arraignment or had some other liberty restraint, such as being prohibited from leaving the State or being required to surrender their passport.

One of the main benefits of the Federal Court is more generous discovery and the Plaintiff's attorney has the right under Federal Rule of Civil Procedure 45 to issue subpeonas to the prosecutor and other governmental agencies. In State Court you need a Court order to get these records. Also in Federal Court you generally get more access to the officer's disciplinary records.

Our police misconduct lawyers have successfully handled malicious prosecution cases in both the Federal Courts of New York and in the State Supreme Courts including the Bronx, Manhattan, Brooklyn and Queens.

The New York Assembly passed a bill to decriminalize possession of marijuana, below a certain weight. Under this proposed law, the mere possession of marijuana would no longer be an arrestable offense and would only be a one hundred dollar fine. Unfortunately, the Republican lead Senate killed the bill and as a result the possession of marijuana remains an arrestable offense. The law will continue to impose criminal activities for benign conduct that in general causes no harm.

In the meantime, our White Plains criminal defense lawyers and our New York City criminal defense attorneys will continue to defend people who casually smoke marijuana and those who face sale of marijuana charges in New York because the law is wrong. There is no logical reason that people should go to jail for possessing marijuana or selling marijuana. The Amsterdam approach is much better. New York and our government in general does not have the assets or moral justification to continue to spend tremendous assets to arrest and incarcerate stoners. Our Westchester criminal defense lawyers go to great lengths to keep teenagers who are charged with crimes to avoid getting criminal records.

At a time when we have serious financial problems, we can no longer continue to impose outdated overly moralistic laws which penalize activity that should not be criminal. Our drug defense lawyers have defended marijuana cases in the New York criminal courts of the Bronx, Brooklyn, Queens and Manhattan, White Plains, Scarsdale, New Rochelle, Mamaroneck, Ossining, Mount Kisco, Mount Pleasant, Valhalla, Port Chester, Bronxville, Yonkers, Pelham, Pelham Manor, Mount Vernon, Valhalla, Scarsdale, Rye, Tarrytown, Greenburgh, Elmsford and Hartsdale.

Today in a Bench Trial in the White Plains City Court, Westchester criminal defense lawyer Michael Joseph won an impressive not guilty verdict in the White Plains City Court. Our client was charged with disorderly conduct, but this was much more than a run of the mill disorderly conduct case because it involved police brutality and misconduct because one of the officers involved maliciously and brutally assaulted our client and falsely arrested him to justify the baseless use of force.

Our White Plains criminal defense lawyers had previously gotten the case dismissed because the allegations of what our client did failed to establish the commission of disorderly conduct. The District Attorney's office which ignored our client's complaint of excessive force by performing a white wash, perfunctory and rubber stamp investigation into the assault by the officer reinstituted the charges with completely fabricated and contrived allegations which were completely unproven during the trial.

The City of White Plains and the District Attorney's office was desperate to obtain a conviction to thwart our Federal Civil Rights Lawsuit for False Arrest, Malicious Prosecution and Excessive Force. This desperation was not only to try to thwart our lawsuit, but our excessive force complaint raised serious questions about the fitness of officer Stephen Hart, who less than a year later was recorded calling Kenneth Chamberlin a nigger, shortly before he was unjustifiably shot by the police.

Our White Plains criminal defense lawyers won a not guilty verdict before a White Plains Judge, in the White Plains Court, in a matter where the City of White Plains is facing a lawsuit which raise very serious questions about the integrity of their officers and their continued failure to turn a blind eye to police abuse.

Now based upon the officers testimony during this trial, and undisputable physical evidence, we can establish that these police officers committed perjury.

Today, through a long and difficult fight, justice was finally served and we look forward to holding these officers accountable for their actions in Federal Court.