Recently in New York Criminal Procedure Category

BRONX SUPREME COURT UPHOLDS DEFENDANTS RIGHTS TO CALL GRAND JURY WITNESSES

December 4, 2013

In most he said, she said cases, such as assault cases, multi-defendant possession of drugs or a weapon charge, a grand jury proceeding is an effective forum to end a felony prosecution at an early stage. Where there is a viable defense, testing the People's case at an early stage can prevent a stressful, expensive and lengthy prosecution. Our Westchester criminal defense lawyers have successfully handled numerous grand jury proceedings and aggressively stand up to the prosecutor's frequent attempts to limit our client's presentation of evidence.

A recent Bronx decision boldly reiterated the rights that defendants have in grand jury proceedings. In People v. Matos-Mesa, the Defendant was charged with felony assault with a weapon and the defendant testified in front of the grand jury that his actions were taken in self defense and indicated that a neighbor had witnessed the incident and had video recorded part of it. The defendant's criminal defense attorney had emailed the prosecutor the witness' contact information, but the prosecutor did not present her testimony and claimed that the witness didn't remember the incident.

The Court dismissed the indictment because the prosecutor violated the defendant's rights by not allowing the grand jury to decide whether to call the witness. New York Criminal Procedure Law 210.20, 210.35 and 190.50 allows a defendant to challenge the legal sufficiency of an indictment on the ground that it was obtained by an unfair grand jury proceeding. The Court found that by failing to notify the Grand Jury of the witness, the assistant district attorney obstructed the the Grand Jury's investigation by denying the accused a meaningful Grand Jury presentation. Criminal Procedure Law §190.50 (6) provides a defendant the right to request that a witness testify before the Grand Jury and it allows the Grand Jury, not the prosecutor to determine whether to have the witness' testimony. The Courts have even recognized that the defense has the right to ask that a Grand Jury issue a subpoena to secure a witness' testimony. The Westchester prosecutors have tried to side step this requirement by claiming that it was the defense's obligation to have its witnesses present to testify.

Our criminal defense attorneys have also encountered situations where a prosecutor tried to condition presentation of the witness upon a private interview with the witness prior to their testifying. The Court in Matos Mesa affirmatively rejected this contention because the prosecutor may not claim they have to learn what the witness' testimony will be prior to advising the Grand Jury of the request that the witness testify because a prosecutor does not have discretion whether to the present a defense witness or to usurp the Grand Jury's discretion in determining what witnesses can testify. In New York, a prosecutor has the obligation to inform the Grand Jury of any witnesses the defense wants to call and all information about the witness provided by the defense, Our New York City criminal defense attorneys will continue to fight prosecutorial abuse of the grand jury process.

New York Appellate Court To Decide Battle over New York Prosectuorial Discretion versus Judicial Power

October 26, 2013

Our New York criminal defense lawyers continue to keep up to date on emerging areas of criminal defense law in the state of New York. An update New York power struggle has emerged over a case involved arrests from an occupy wall street movement where protestors set up a protest in Albany across from the State Capitol Building. The District attorney opted to decline to prosecute the cases and one of the criminal court judges decided that the prosecutor has broad discretion to decide which cases to prosecute dismissed the cases. However a handful of cases landed on the docket of a different judge which decided that he would only dismiss the cases if the protestors performed community service which would have benefited military veterans. The protestors refused and the Court refused to dismiss the charges. This requirement obviously would have been offensive to the protestors,many of whom, who were protesting the military industrial complex in the first place. The prosecutor then decided to decline to prosecute and the criminal court judge refused to allow him to do so.

In response to the Court's unreasonable tactics, the prosecutor essentially opted to throw the case. Since the Court ordered the prosecutor to proceed to trial, the prosecutor did so, but opted not to call any witnesses, which mandated a dismissal because without witnesses being called there can be no prima facie case that a crime or offense was committed.

The New York Supreme Court held that the Judge was correct, that a case could not be withdrawn once initiated, unless the Criminal Court Judge approved of the dismissal. The Supreme Court also held that the Criminal Court did not have the power to hold the prosecutor in contempt because it is solely in the prosecutors discretion to determine what witnesses to call and what evidence to present. The Criminal Court Judge contends that criminal court judges need the contempt power to ensure that justice is done and that the public is protected, from accused criminals as well as the abuse of the prosecutorial power and to ensure that the rights of the accused are protected by the prompt, lawful and conclusive administration of justice

The Third Appellate Department is set to hear the controversy. For over a decade our New York attorneys have continued to fight on behalf of the underdog in the New York Courts.

What Sentence Does A Youthful Offender Get In New York

May 17, 2013

Our White Plains criminal defense lawyers have handled many cases involving teenage offenders. There are numerous benefits that the law recognizes for offenders who are eighteen years old or younger and are charged with crimes as an adult.

One of the most important benefits is when the youthful offender is charged with a sex crime, the law prohibits the youthful offender from being registered as a sex offender under SORA. Another benefit that New York law provides for youthful offenders is that there is no DNA registry. Normally, under New York law, when someone is convicted of a misdemeanor or felony, their DNA is taken and placed in a centralized database. Youthful offenders exempted from the DNA databank under New York law.

The authorized sentences for a youthful offender are as follows. For an offense other than a felony, the court must impose a sentence authorized for the offense for which the youthful offender finding was substituted, however the maximum sentence is six months incarceration. For any felony, the court must impose a sentence authorized to be imposed upon a person convicted of a class E felony. In most cases the maximum sentence for a Class E felony is four years incarceration. The maximum sentence is a mazimum possible sentence and that does not mean that is what the youthful offender will get. Our Westchester criminal defense attorneys have extensive experience in negotiating non-jail sentences, such as fines, conditional discharge and probation, especially for youthful offenders.

From our White Plains office, our criminal defense lawyers regularly handle cases in the criminal courts of White Plains,Yonkers, New Rochelle, Greenburgh, Mount Vernon, Elmsford, Armonk, Port Chester, Rye, Mamaroneck, Tarrytown, Sleepy Hollow, Ardsley, Mount Pleasant, Hartsdale and Scarsdale.

From our Queens office in Forest Hills, our criminal defense lawyers have handled many criminal cases in Manhattan, Bronx and Queens.

The Use of Experts In Criminal Cases

October 3, 2012

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

New York Courts Again Misconstrue The Prosecutor's Obligations

May 17, 2010

In general prosecutors have an obligation to disclose to New York criminal defense attorneys, information which tends to establish the defendants' innocence or undermine the State's case. Unfortunately the New York Court of Appeals in People v. Fuentes restricted the right of New York criminal defense lawyers right to obtain material which undermines the case against their clients.

This ruling will undoubtedly encourage Prosecutors to withold information that undermines the case against criminal defendants and completely undermining the intergrity of criminal trials. In this blogger's opinion, the New York Courts are misconstruing the federal caselaw.

Judge Jones, the dissent in Fuentes was correct. In general Appellate Courts essentially forgive a failure to disclose unless a document is " Material". Material means there must be "a reasonable possibility" that its disclosure would have affected the outcome of the trial. In Fuentas, the defendant was charged with rape and the defendant claimed that the sexual activity was consentual. A record which was withheld from the defense, i.e., a record of a psychiatric consultation which contained information concerning the condition of the victim during her examination following the incident. The victim expressed feelings of depression, suicide, family problems, mistreatment by her mother, withdrawal and substance abuse. Clearly, these raised issues as to the complaining witness' credibility and the fact that she had recently used drugs was relevant, but the Court to protect a conviction at all costs held that it wasn't material. The Court made this decision even though New York criminal Courts have routinely held that non-disclosure of psychiatric problems justifies a reversal.

Michael Joseph is a New York criminal defense lawyer with offices in Manhattan and White Plains.

New York Grand Jury Practice

January 25, 2010

As a New York criminal defense lawyer, I have handled numerous felony cases which went into the grand jury. The decision on whether to put forward a case before the grand jury or preserve your case for trial is always a sensitive decision. Numerous factors must be considered.

As a Westchester criminal defense lawyer, I have won Assault cases and gun cases in the grand jury. The situation where clients tend to testify before the grand jury is when the client has a strong defense such as actual innocence, justification, self defense or alibi.

Usually, when clients elect to testify before a grand jury, there is usually some time pressure. For example, when clients are incarcerated and unable to make bail, the factors which weigh in favor of testifying before the grand jury outweight the risks of waiting for trial. Of course, when a client is fighting a charge while out on bail, this time pressure is not present.

The drawback in putting a client before the grand jury is that the attorney is not allowed to speak, object or otherwise participated in the proceeding except for advising the client. The Prosecutors will often do things which are improper, and ask improper questions which are aimed at unfairly prejudicing the client. Unfortunately, there is nothing the attorney can do during the proceeding. However, the Criminal Procedural law also gives a New York criminal lawyer, the right to move to dismiss the indictment if the proceeding was not done fairly.

While the lawyer cannot participate in the actual proceeding, the Criminal Procedure Law in New York, does give the defendant the right to testify and present evidence. That means, if there are witnesses that support the defendants' position, the defense can proffer them and actual evidence can be proffered by the witnesses in a grand jury. Early investigation to discover favorable witnesses and evidence is essential to successful grand jury presentation and practice.

Bail In Yonkers Criminal Court on Felony Cases

January 2, 2010

As a Westchester criminal defense lawyer who handles yonkers criminal cases, I have noticed that some of the local Westchester criminal courts, especially Yonkers have been refusing to set bail on felony cases.

The result is that many people who are arrested on felony charges have to sit in jail until their lawyers can get them produced in the Westchester Superior Court. Many criminal defense lawyers who don't regularly practice in Westchester have been unfamiliar with these new procedures.

On average it takes a day or two to have someone who is in remand status, (incarcerated without bail) on a felony transferred to the Westchester Superior Court. These cases can be transferred by making a phone call to the criminal clerk, who upon an oral request will put the case on for a bail hearing before the Westchester Superior Court.

It is imperative that Westchester criminal attorneys, call the Superior Court the same day if their clients are held without bail in Yonkers or another local criminal court. Otherwise the clients will spend time in jail for no reason.

New York Criminal Defendants' Right to Release On Own Recognizance (ROR) In Misdemeanors Charges

December 22, 2009

All New York criminal lawyers must be thoroughly familiar with the New York Criminal Procedural Law provisions concerning when a defendant facing New York criminal charges may be released after bail has been set.

With a misdemeanor charge, under Criminal Procedural Law 170.70, a person who has been incarcerated because they are unable to make bail for more than five days, not including Sunday, must be released if an information has not been filed. In simple terms, that means that there must be sworn allegations based upon personal knowledge filed with the Court that meets all of the elements of the crime charged.

Common examples of defects which require a defendant to be released are the lack of a lab report in a drug case, the lack of a supporting deposition in an assault or criminal mischief case. Another example in a petit larceny or shoplifting case is the failure of the District Attorney to file an affidavit of the owner of the property.

The only exceptions where a defendant may be held in custody is where the defendant has consented or waived the defects or if the District Attorney can establish that there was good cause why the defendant should not be released. Under New York law, good cause must include a compelling fact or circumstance which precluded the District Attorney from establishing all of the elements of the offense.

New York CPL 30.30 and Witness Unavailability Exception to Six Month Indictment Time Limit

December 21, 2009

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For New York Criminal Defense Lawyers, insistence on speedy trial rights are a powerful defense strategy for weeding out baseless claims. If witnesses are shaky, they often will not appear for the grand jury which prevents the People from indicting an accused. We have aggressively pursued our client's speedy trial rights which has resulted in numerous dismissals in numerous questionable assault, gang assault and sexual assault cases in New York City and Westchester.

Criminal Procedural Law § 210.20(g) states in pertinent part that after arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that the defendant has been denied the right to a speedy trial. Criminal Procedural Law § 30.30(1)(a) states in pertinent part that a motion made pursuant to paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.

The six month period is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. People v. Cortez, 80 NY2d 201, 208, (1992).

Unless the defendant has consented, the preindictment period is wholly under the control of the People and there is nothing defendant can do to prevent or delay presentment of the case to the grand jury. People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909 (N.Y.A.D. 4 Dep't 1980). Therefore, unless a defendant consents to waive the speedy trial time, the entire pre-indicment time is chargeable to the People.Unlike the postreadiness delays, the absence of a valid indictment during this period is a circumstance that directly impaired their ability to proceed to trial. People v. Cortes, 80 N.Y.2d 201, 211 (1992). Once the defendant has made a showing of an unexcused delay greater than six months, the burden then shifts to the People to prove that any periods of that time should be excluded. People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909 (N.Y.A.D. 4 Dep't 1980).

The District Attorneys will sometimes try to have this time excluded by claiming that the uncooperative witnesses were unavailable. However, the Courts have narrowly construed exceptions which permit the People to exclude time under CPL 30.30 because the People's obligation to exercise due diligence to procure a witness before he/she becomes unavailable is strictly construed. People v. Mims, 587 N.Y.S.2d 536 (N.Y.Sup.1992).

Also, as a pre-requisite for the People to exclude time under C.P.L. § 30.30, it must be shown that the People have "exercised due diligence "to obtain " the presence of the witness. See CPL § 30.30(4)(g). Jurisprudence has recognized that in order to demonstrate due diligence, the People must undertake "credible, vigorous activity" to make the witness available. People v. Figaro, 245 A.D.2d 300 (N.Y.A.D. 2 Dept.1997); People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup.,1999).

The mere unavailability of a witness, without more does not exclude the time from running against the People. People v. Barenzano, 875 N.Y.S.2d 822 ( N.Y.City Crim.Ct.,2008).There are no exceptional circumstances where the witnesses avoid cooperating for their own reasons. People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup. 1999).

Where a witness resides out of State, the Courts have found no exceptional circumstances where the People fail to make efforts to secure a material witness order or otherwise to secure the witness' attendance. People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup. 1999). Likewise in People v. Meyers, 114 A.D.2d 861 N.Y.A.D. 2 Dept.,1985), the Court held that the People did not demonstrate due diligence or exceptional circumstances where the witnesses were unwilling to testify before the Grand Jury because the People made no attempt to make the recalcitrant witnesses available. An example of taking definitive steps to secure the attendance of a reluctant witness was found in People v. Khan, 146 A.D.2d 806 (N.Y.A.D. 2 Dep't 1989), where upon learning that the out of state witness was reluctant to testify, the People immediately prepared a material witness order, had it signed and forwarded it to the Florida State Attorney's Office.

Westchester County Police Interviews

December 11, 2009

As a White Plains Criminal Defense Lawyer I handle a fair amount of sex crimes in Westchester County. To successfully prosecute a sex crime, corroboration is required and normally an accusation without more is not sufficient to convict.

The Westchester County Police and some the local Police have become very aggressive in getting confessions. We have observed that the police are doing interviews in which they suggest that certain answers will help our clients, then they turn on a recording device. The initial promises and sometimes threats and practice sessions are not on the recording. We recently found one instance where the tapes themselves were edited and were missing information.

If you are arrested and facing sexual assault charges based on a taped confession in Westchester, it is advisable to have the tapes reviewed by a forensic professional as you may find discontinuities which will support a claim that the confession was obtained improperly.

We have also argued that when these issues arise, the defense has a right to the technical information concerning the making of the recording and the mechanics of the recording system. These new police tactics require Westchester criminal defense attorneys to be especially vigilant in handling cases where there was a taped statement.

Michael Joseph is a New York and Westchester criminal defense attorney who regularly defends sex cases in White Plains and New York City.

Defendant's Right to Release on a Felony- New York Criminal Procedure Law 180.80

September 22, 2009

New York criminal defense lawyers who handle felonies need to be familiar with NY criminal procedural law 180.80. Where a defendant is charged with a felony and they are incarcerated because they cannot make bail for more than one hundred twenty hours or one hundred forty-four hours if there is an intervening Saturday, Sunday or legal holiday, must be released if they have not been indicted or had a felony hearing, which is also known as a felony exam. This provision is a powerful tool for New York criminal defense attorneys.

The only exceptions to this rule are where there was a delay due to the defendant's request, action or condition, or if the delay occurred with his consent. Aside from consent or action by the defendant which prevented the indictment or felony examination, the District Attorney must show good cause why the defendant should not be released. This good cause must be a compelling reason that prevented the indictment or that the release would not be in the interest of justice.

At a felony examination or felony hearing, the district attorney must prove reasonable cause to believe the defendant committed a felony. If they meet this burden, the Court can keep the defendant in jail and hold him for grand jury action.

If there has been no grand jury action and the defendant has been held in custody for more than 45 days, the defendant has a right to be released unless the defendant consented to the delay.

Michael Joseph is a New York Criminal Defense Lawyer, who defends felony cases in New York City and Westchester.