Lawmakers draft criminal statutes very intentionally, and every word in a law should have meaning. Thus, when courts are tasked with determining whether certain conduct falls within the scope of a criminal law, the first place the court looks is to the language contained in the statute itself.

In some cases, reading a statute and coming to a conclusion is not a difficult task. However, other situations present circumstances that the drafters of the law may not have thought of when they wrote the law. The court, then, must decide what the legislature’s intention was, and whether the facts in front of the court fit within the statute.

A good example of this is a recent New York theft case, in which the defendant was charged with grand larceny in the fourth degree. According to the court’s opinion, the defendant was a personal assistant to the alleged victim. As the woman’s personal assistant, the defendant had access to her corporate credit card information and her Uber account information.

State and federal constitutional protections prevent police officers from conducting unreasonable searches and seizures. In most New York gun cases, an officer finds a gun on a person or in their car. However, in some cases, police start to chase a defendant, and they toss the gun during the chase. In these cases, whether the gun is admissible at trial depends on if the police officers were justified in their pursuit of the defendant.

A recent case decided by a New York appellate court illustrates this concept. According to the court’s opinion, an anonymous person called 911 to report a group of men, armed with guns. The caller gave police a description of five to seven black men, one of which had a coat that was black and tan, and another with a black coat.

One officer came to the scene to find a man wearing a black-and-tan coat. The officer asked the man if he would consent to a pat-down, which he did, and the officer didn’t find anything. Another officer saw the defendant, wearing a black coat. This officer followed the defendant, providing his whereabouts to other officers over police radio.

It’s common knowledge that you can be prosecuted for a New York gun crime if police officers find a gun on you. But what about if the police find a gun in the car you are riding in? Or if they find a gun in your home or hotel room? In these situations, the doctrine of constructive possession comes into play.

Constructive possession is a legal concept by which a court can find that a person had “control” over an item, even though the object was not in that person’s physical possession at the time. In a recent New York gun case, the court was tasked with determining whether the defendant could be found guilty of possession although the gun was not found on his person.

The Facts of the Case

According to the court’s opinion, police officers got a call that a person was bleeding in front of a residence. When police officers got to the scene, they saw the defendant outside. He was bleeding from the neck. The defendant told police that he was inside his home, when he was shot through a window.

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Earlier this year, a state appellate court issued an opinion in a New York gun case, affirming the lower court’s decision to suppress a weapon found in the defendant’s vehicle that was parked outside his home. The case required the court to determine if the officers’ search of the defendant’s car fell outside the scope of the search warrant police officers obtained after allegedly observing him sell heroin from his home.

The Facts of the Case

According to the court’s opinion, police officers conducted a stake-out in front of the defendant’s home. During the course of their investigation, officers watched on several occasions as the defendant or one of his associates would leave the home and deliver an item to someone standing in the street in exchange for money. Police officers also arranged to make several controlled buys.

Detectives obtained a search warrant. The affidavit in support of the warrant requested the officers be allowed to search the defendant and “the entire premises.” Police officers executed the search warrant and found a gun inside the home. However, someone other than the defendant was charged with the gun found inside the home.

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Recently, a state appellate court issued an opinion in a New York gun possession case involving a police officer’s search of the defendant’s car. In a pre-trial motion to defendant argued that the officers lacked probable cause to stop his car, which ultimately led to his arrest. However, the court determined that the traffic stop was valid.

The Facts of the Case

According to the court’s opinion, at around 1 a.m., police officers observed the defendant driving a car without a working headlight. Police pulled over the defendant’s vehicle, at which point they smelled marijuana. The officers asked for the defendant’s information, which he provided to them. However, the officers discovered that the defendant had an open arrest warrant. The officers also saw an expandable baton in plain view.

As the officers were processing the defendant, he asked what was taking so long. The officers responded that they were waiting for the K-9 Unit to search the car. The defendant responded, “you can do that all you want, whatever’s in the car, the car’s not registered to me, my prints aren’t on it.” The police then obtained a search warrant and found a gun inside the car.

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The United States and New York constitutions provide certain rights to citizens. Among these protections include the right to be free from unreasonable searches and seizures. Generally, police officers need to obtain a warrant to conduct a search. However, there are certain situations where a police officer’s actions are not considered a “search” under the law. In a recent New York burglary case, the court discusses one such situation, called an “inventory search.”

The Facts of the Case

According to the court’s opinion, a police officer attempted to stop the defendant for expired registration. The defendant led the officer on a high-speed chase, before crashing into a marsh. The defendant’s vehicle was disabled, and police called a towing company to tow the car.

When the tow truck driver arrived on the scene, he searched through the car to take an inventory of what was inside. Tow truck companies do this to avoid potential liability, in case the owner of the vehicle later claims there was something of value that turned up missing after their vehicle was towed. The tow truck driver located several high-value tools.

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Recently, a state appellate court issued an opinion in a New York weapons case illustrating the importance of a detailed review of the evidence and effective cross-examination skills. The case involved a traffic stop during which police found a sawed-off shotgun wedged under the driver’s seat. Police also claim to have discovered a matching shotgun shell in the defendant’s pocket. However, because the evidence relied upon by the court did not match up with the testimony at the suppression hearing, the court reversed the trial court’s denial of the defendant’s motion to suppress.

The Facts of the Case

According to the court’s opinion, police officers initiated a traffic stop after noticing that a vehicle’s license plate didn’t match up with the type of car in the police database. Video evidence of the stop—as well as officer testimony—established that the defendant, who was seated in the rear passenger seat, bent down to the left as the car was coming to a stop. Ultimately, police officers found a sawed-off shotgun under the driver’s seat (near where the defendant was seen bending down) and a matching shotgun shell in the defendant’s pocket.

In a pre-trial motion to suppress, the defendant argued that the officers lacked probable cause or reasonable suspicion to search the vehicle. The trial court rejected the defense motion, finding that the officers conducted a limited pat-down of the defendant for their own safety, at which point they found the shotgun shell. According to the court, this gave the officers probable cause to search the rest of the vehicle, at which point they found the shotgun.

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Earlier this year, a state appellate court issued an opinion in a New York hit-and-run case, discussing the defendant’s claim that his statement was taken in violation of his constitutional rights. However, the court rejected the defendant’s issue on appeal, noting that the requirements of Miranda were not implicated because the defendant was not in “custody” when detectives questioned him.

The Facts of the Case

According to the court’s opinion, a dark-colored pick-up truck hit a pedestrian and then fled the scene. The detective learned that the defendant had a vehicle matching the description, and went to the defendant’s home to speak with him. The detective explained that he was investigating an accident, and that the defendant’s vehicle matched the description of the one that struck the pedestrian. The defendant allowed the detective to inspect his vehicle, at which point the detective noticed that one of the truck’s headlight assemblies was missing.

The detective then asked the defendant a few follow-up questions, including where he was on the night of the incident. The defendant explained that he was at a bar, and drove home on the road where the pedestrian was hit. The detective then asked to take a look inside the defendant’s home, and read the defendant his Miranda warnings. Ultimately, the defendant was charged with leaving the scene of an accident.

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Tickets for texting while driving have increased 35% between 2013 and 2014 in New York State. The increase has been most significant in Westchester County, where testing infractions rose a full 50% from 2013 to 2014. In Rockland County, the increase was 35% and in Putnam, there were 38% more texting tickets in 2014 than the year before.

The penalties for texting while driving have also been greatly enhanced in the last two years. A driver who is found guilty of a texting infraction faces a $200 fine and more importantly, five points on his or her driver’s license. Eleven points in an eighteen month period results in a suspended license, and if a driver gets 6 points or more in the same period, they can be assessed a “Driver’s Responsibility Assessment” of an additional $300.00 by the NYS Department of Motor Vehicles. A second offense within 18 months of the previous conviction will result in a $250.00 fine. A third violation or subsequent violations after the third will lead to a $450.00 fine.

Youthful drivers beware: the penalties for drivers with a junior license or permit are much more stringent. For a driver under 21 with a junior license, first offense convictions result in a 120 day license or permit suspension. Further, due to new regulations which went into effect in November, 2014, young drivers will face a one year license or permit revocation for a second offense within six months of their license being restored. Continue reading ›

One of New York City Mayor Bill de Blasio’s programs since he took office last year is “Vision Zero”, which is designed to reduce traffic and pedestrian fatalities and serious injuries in New York City.  The Vision Zero program has already resulted in a reduction of the standard speed limit in the city from 30 miles per hour to 25 miles per hour, the installation of additional red light cameras and traffic reconfiguration at dangerous intersections.

Another element of the program which is encountering some strong resistance, particularly from transportation unions, is a regulation designed to increase the penalties for drivers who fail to yield to pedestrians crossing the street, resulting in fatalities or serious injuries.  This aspect of Vision Zero has come to the forefront recently after a tragic accident on February 13, 2015.  A fifteen year old girl walking to school was crossing Grand Street with a walk signal when she was struck by an MTA bus operated by Francisco DeJesus.  The young girl was pinned under the front wheel of the bus while Mr. DeJesus was making a left turn, and suffered serious left leg injuries.

Based on the new right of way law with enhanced penalties for pedestrian fatalities or serious injuries, a violation of the law is now classified as a misdemeanor, rather than a traffic ticket.  Drivers who are found to have violated the law can be sentenced to up to thirty days in jail and face fines of up to $250.00.  Mr. DeJesus was arrested for violating the failure to yield law, which his union, the Transportation Workers Union Local 100, feels is unfair.  They contend that DeJesus was not distracted by texting or using a cell phone, was not under the influence of drugs or alcohol, and was not driving recklessly. Rather, this was simply a tragic accident, due to a combination of the chaotic nature of making a left turn on city streets and the blind spots on a bus.

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