Articles Posted in New York Criminal Procedure


The United States Supreme Court recently ruled that a subsection of the federal Armed Career Criminal Act, which imposes an increased prison term upon a defendant with three or more prior convictions for a “violent felony,”  which is commonly known as the ‘Three strikes and your out rule” infringes upon the Constitution’s guarantee of Due Process. The Supreme Court held that the “residual clause” of this federal statute was unconstitutionally vague such that it fails to give ordinary people fair notice of the conduct it punishes. Our Westchester criminal defense lawyers  have long fought against arbitrary definitions and unnecessary harsh resuls for transgressions of criminal law  Continue reading

New York, unlike many other states is especially unforgiving and does not have a law that allows expungment of a criminal conviction. Usually, absent unusual circumstances a person who has been convicted of a crime in New York, will have the conviction for life. Rarely, sympathetic judges will vacate a conviction under New York’s interest of justice standard, but it is discretionary and often arbitrarily applied. Recently a federal court in New York vacated a conviction because the conviction, which was for a minor crime was preventing the woman from gaining employment.

Legal Scale.jpgA fraud conviction that prevented a local woman from employment for 13 years has recently been expunged by Judge John Gleeson. The woman’s criminal record prevented her from working, paying taxes, and caring for her family for 13 years. It forced her to rely on public assistance although she has the ability and desire to work and support herself and her family. Judge Gleeson decided it would better serve public interest if the woman was a contributing member of society, rather than an able body citizen depending on government assistance.

The woman, an immigrant from Haiti has four children and was making 783 dollars a month, which was less than the rent in her Queens apartment at time of the crime. She became involved with a car insurance scam in which she faked an injury and filed a civil suit resulting in her receiving $2,500. Ms. Doe knew that filing a false lawsuit was a crime, what she didn’t know was that the punishment she would receive if caught would wreck her chances of finding employment for over a decade.

WOMAN ON PHONE.jpgNew York City and Westchester federal criminal defense lawyers should be aware of a recent decision concerning the federal wiretap statute.A federal court has recently decided that the FBI’s “two-minute” wire tapping rule on personal calls that are non-criminal is unlawful. The two minute rule has been used by the FBI for years when conducting investigations using wire tapping to convict criminals. The two minute rule treats calls less than two minutes as objectively reasonable thus shielded by immunity.
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One of the most effective means of getting a stale criminal case dismissed is a speedy trial motion, which is also commonly known as a 30.30 motion by Westchester criminal defense lawyers. This remedy often comes into play when the prosecution is routinely not ready to proceed.

The rules under New York Criminal Procedure Law section 30.30 are relatively straight forward, however, the interpretation of the exceptions often allows the exception to swallow the rule. In general the Defendant has a speedy trial right, and under New York Criminal procedure law, the prosecution must be ready for trial within six months of the arraignment, where the case is a felony, or within ninety days when the case is a class A misdemeanor. If the case is a class B misdemeanor, the prosecution must be ready for trial within sixty days.

The definition of ready often is the deciding factor. While prosecutors routinely declare ready, when they are not really ready, there are some clear cases when the People are not ready as a matter of law. However, the defendant must be aware that where the defense counsel consents to an adjournment, the time does not count against the prosecution. Many prosecutors, especially in Queens and Westchester condition plea negotiations upon consent to an adjournment. Where the defendant does not consent, the time is charged to the prosecution when they request the time or declare that they are not ready. On a felony case, where the prosecution has not secured an indictment, all of the time counts towards the speedy trial time, because the prosecution cannot be ready where they have not secured an indictment. Likewise on a misdemeanor case, where the prosecution does not have either a first party complaint or a supporting deposition they are not ready. Likewise, in a misdemeanor drug charge, where the prosecution has not secured a lab report, they are not ready.

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 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

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 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.

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.

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.