New York Criminal Lawyers Blog

With so many people exercising their first amendment rights to protest, clashes between protesters and police have become common place. While there are some legitimate uses of force and arrests for disorderly conduct, there have also been numerous baseless arrests, indiscriminate uses of force and plainly criminal assaults on protestors by the New York City Police Department.

Our New York City civil rights lawyers are committing to seeking compensation for OWS victims of police misconduct, including false arrest, malicious prosecution and police brutality. It is important that the police who engage in misconduct be held accountable for their actions and it is the only way that our first amendment rights to protest will be preserved. Now technology has ensured that a majority of the police misconduct will be captured on camera, with so many Occupy Wall Street protesters having phones with video cameras that record the vivid images of police brutality.

Our White Plains criminal defense lawyer Michael Joseph won a major victory on behalf of a police brutality victim. One of our clients was falsely arrested and maliciously prosecuted by the White Plains police department. They charged our client with disorderly conduct under two different sections of the disorderly conduct law, as a pre-text to justify their unlawful assault of our client.

Our White Plains criminal defense attorneys convinced a City of White Plains Judge that no crime occurred, even if the lies which the police officers told were accepted as true. As a result all charges against our client were dismissed. It is worth noting that our client filed a cross complaint for assault against the police officers, which would have been a felony level assault based on the severity of the injuries. Unbelievably, despite clear evidence of wrongdoing and injuries that were unexplainable, except for as the result of an assault, the Westchester District Attorney's office refused to prosecute the officers and instead continued to prosecute our client.

Our Westchester criminal defense lawyers are committed to making sure that police brutality victims are exonerated in the Criminal Courts and obtain justice through civil lawsuits against the police officers responsible for misconduct. We have even represented police officers against other police officers who target them and falsely accuse them of criminal activity to satisfy petty gripes.

Now our New York civil rights lawyers will file a civil lawsuits against the White Plains officers involved and hopefully, the White Plains police department will start to take police misconduct seriously, but I am not optimistic.

Criminal defense attorneys and civil rights lawyers across the Country are shocked at the Court's recent decision in Berghuis v. Thompkins. In this case, the defendant was read his Miranda rights and remained silent for three hours. Even though he was obviously remaining silent, the police continued to interrogate him and after three hours of interrogation, he finally cracked.

Inexplicably, the Court held that there was no Miranda violation because the Court in a twisted and strained logic held that remaining silent is not a sufficient exercise of the right to remain silent, so as to trigger the right to end police interrogation. The Court held that If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation.

So under the new rule, a criminal defendant to come under the protection of the Fifth Amendment right against self incrimination must explicitly state that they are exercising their right to remain silent otherwise, the police are free to continue their interrogation. This was a five to four split decision and is further evidence of the trend in which right wing Courts are intentionally stripping the United States Constitution of its protections. More and more, the Republicans have packed the Courts with political hacks who bend over backwards to undermine the Constitutional protections which our founding fathers enacted for us.

New York criminal defense lawyers should continue to look to the New York Constitution which has traditionally provided greater protection than the Federal Constitution.

New York civil rights lawyer Michael Joseph won an important appeal before the Court of Appeals for the Second Circuit. In the federal Court of the Southern District of New York, Michael Joseph proved that two bronx detectives were guilty of malicious prosecution and the jury awarded almost 1,500,000 in damages. With the attorneys fees award and interest, the total award will be approximately $1,800,000.

The Court of Appeals made a groundbreaking decision which recognized that when detectives use confidential informants, who they know are not credible, they can be held liable for malicious prosecution. The Court of Appeals recognized that where police officers suborn perjury or engage in misconduct, the presumption of probable cause associated with a grand jury indictment is rebutted. The Court of Appeals also recognized that pressuring a witness to falsely implicate a defendant is sufficient to establish fabrication of evidence and malicious prosecution.

New York civil rights lawyer and malicious prosecution attorney Michael Joseph has expanded the way in which malicious prosecution can be proven. Lawyers in New York who represent victims of malicious prosecution in New York should carefully consider this new rule and carefully explore the use of confidential informants.

Unfortunately, the police and detectives in New York, especially New York City ( Bronx, Brooklyn, Queens and Manhattan) use confidential informants who will say anything to get themselves out of criminal charges and jail. Unfortunately, these confidential informants often set up innocent and false implicate innocent people and cause criminal cases to be brought against them. Now New York detectives can be held liable when they use confidential informants who they should know are lying.

New York civil rights lawyer gives free consultations and proudly serves the New York City communities of the Bronx, Manhattan, Brooklyn and Queens as well as the communities of Westchester including White Plains, Yonkers, Ossining, Mamaroneck, Scarsdale, Hartsdale, Bronxville, Port Chester, Mount Vernon and Rye.

New York criminal defense attorneys who represent clients with drug and gun cases often encounter issues concerning the validity of search warrants and the scope of the permitted search.

The Fourth Amendment to the United States Constitution prohibits warrantless entries by police unless the entry is authorized by a recognized exception to the warrant requirement. The New York and Federal Courts have required that a warrant must particularly describe the property and place to be searched. The Courts have recognized that if a warrant doesn't describe with particularity the place to be searched, it is void.

A warrant authorizing a search of an apartment house will usually be invalid if it fails to describe the particular apartment to be searched with sufficient definiteness to preclude a search of other units located in the building and occupied by innocent persons. In New York City boroughs of the Bronx, Manhattan, Queens and Brooklyn and the urban Westchester communities of White Plains, Yonkers and New Rochelle, a large amount of the population lives in apartment houses and these issues become common ones. The description must be sufficiently detailed that the officer can with reasonable effort ascertain and identify the place intended.

Recently, Courts have recognized that where the warrant is vague or ambiguous as to what it authorizes, the officers must suspend their search. Police Officers violate the Fourth Amendment when they rely on outside information to resolve an ambiguity in the warrant or simply guess.

Therefore New York criminal defense attorneys must continue to be diligent in analyzing the scope of warrants on behalf of our clients.

Michael Joseph won an important decision concerning the availability of grand jury minutes to a Plaintiff in a malicious prosecution action.

To establish a claim for malicious prosecution, a plaintiffs must show that (1)the defendant initiated a prosecution against plaintiffs, (2) the matter terminated in plaintiffs' favor, (3) there was no probable cause for the criminal proceeding and (4) the proceeding was motivated by actual malice.

Where the Plaintiff has been indicted, the defendants always claim that the Plaintiff is unable to demonstrate a lack of probable cause because an indictment creates a presumption of probable cause. However, where an indictment was the product of fraud, perjury, and the suppression of evidence a Plaintiff sufficiently rebuts any presumption of probable cause

Therefore, to prove his case, malicous prosecution Plaintiffs must establish what occurred in the grand jury. This poses a problem because the transcripts are automatically sealed.

In a ground breaking decision in the case of People v. Manganiello, Michael Joseph, convinced the Court to unseal the grand jury minutes because the Plaintiff had a compelling need for disclosure of the grand jury minutes to rebut the presumption of probable cause associated with a grand jury indictment. While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute. People v. Di Napoli, 27 N.Y.2d 229. An interested party may bring an ex parte application for disclosure of grand jury minutes. See Aswad v. Hynes, 80 A.D.2d 382 (N.Y.A.D. 1 Dep't 1991).While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute. People v. Di Napoli, 27 N.Y.2d 229. An interested party may bring an ex parte application for disclosure of grand jury minutes. See Aswad v. Hynes, 80 A.D.2d 382 (N.Y.A.D. 1 Dep't 1991).

Grand jury minutes may be provided to a civil litigant where there is a compelling and particularized need for access. Ruggiero v. Fahey, 103 A.D.2d 65 (N.Y.A.D. 2 Dep't 1984); Richburg v Morgenthau 184 App Div 2d 316 ( N.Y.A.D. 1 Dep't 1992). In the Manganiello case, the Court held that allegations that certain witnesses committed perjury before the grand jury were sufficient to establish a compelling need for access.

As a New York criminal defense attorney, I have defended numerous drug and weapons cases in New York (including Manhattan, Bronx and Queens) and Westchester ( White Plains, Yonkers and New Rochelle). As a New York criminal defense lawyer, defending any drug or weapons case, almost always involves search and seizure issues.

The New York Supreme Court, First Appellate Department recently pronounced a decision which continued to strengthen street encounters between the police and criminal suspects. In People v. Reyes, the Court overturned the Manhattan Criminal Court's decision which denied a motion to suppress evidence.

The Appellate Court, held that the defendant's motion to suppress should have been granted because the officers lacked valid grounds to forcibly detain defendant on the street and then pursued him when he fled. The Court noted that in evaluating the propriety of the police action in attempting to seize a suspected criminal, the Court must consider whether it was justified at its inception and whether it was reasonably related to the circumstances leading to the encounter.

The Courts follow a four-level test for evaluating illegal search and seizure issues. These apply when the police find illegal contraband, including weapons and drugs in a street encounter that the police initiate. Level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two-the common-law right of inquiry-permits a somewhat greater intrusion, short of a forcible seizure, and requires a founded suspicion that criminal activity is afoot; level three, authorizing an officer to forcibly stop and detain an individual, requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor.

In Reyes, the Court recognized that flight alone, even if accompanied with equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is not sufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect's possible engagement in criminal activity.

Any New York Criminal Defense Attorney, who handles drug cases and weapons cases arising from street encounters in New York and Westchester, must carefully analyze whether there was reasonable suspicion that the accused had committed a misdemeanor or felony at the initial inception of the police encounter.

Michael Joseph is a criminal defense attorney with offices in New York (Manhattan) and Westchester (White Plains).