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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The Wayne County, Pennsylvania District Attorney’s Office announced last week that there will be charges against a 15 year old driver and her father in a fatal car crash on August 30, 2014 on Goosepond Road in Lake Ariel, Pennsylvania. That fateful day, a 15 year old driver from Pleasantville, New York was allegedly given permission by her father, Michael Ware, to drive his 2001 Chevrolet Suburban to a diner for breakfast. In the vehicle were five other teenagers, including three Bucks County, Pennsylvania teens, Ryan Lesher, Shamus Digney, and Cullen Keffer, who were all killed in the accident when the underage driver was apparently going too fast and flipped the vehicle.   Another two teens, including the driver’s friend from Westchester County, NY, survived the horrific crash.

Witnesses allegedly heard some of the occupants screaming at the driver to slow down moments before the accident. When the police arrived at the scene, the driver is alleged to have exclaimed: “I was driving too fast, arrest me”, as she placed her hands in front of her, expecting to be handcuffed. The driver’s father, Michael Ware, 53, of Eastchester, New York, is charged with involuntary manslaughter, a felony, endangering the welfare of children, and other crimes not yet identified. Ware was arraigned in the Wayne County Courthouse on December 17, 2014, and pled not guilty to all charges.

There is interesting evidentiary conflict in the versions of events as described by Mr. Ware, and his fifteen year old unlicensed daughter, with regard to his knowledge and consent for his daughter to operate the vehicle. Ware’s daughter, who is being charged for the deaths in juvenile Court, purportedly informed investigators that her father gave her permission to operate the vehicle at the time of the fatal crash, and on previous occasions, including earlier that morning when she drove to a local Dunkin Donuts. The daughter’s friend from Westchester County also told police that Mr. Ware walked the two girls to the car and placed an egg sandwich order before his teenage daughter drove off in the car.  However, Mr. Ware denies that he gave his daughter permission to operate the vehicle. Continue reading ›

On May 23, 1957, in the Cleveland home of future boxing promoter Don King, three police officers demanded to enter to search for a man who they believed had been involved in a recent bombing. The tenant of the home, Dollree Mapp, refused to admit the police without a warrant. The officers left and returned several hours later, forcing their way into the home. Ms. Mapp called an attorney and again insisted that the officers produce a search warrant. A struggle ensued between one officer and Ms. Mapp over a piece of paper which the officer claimed was a warrant. The battle over the unwarranted intrusion into Ms. Mapp’s premises ultimately led to the one of the most important constitutional cases in U.S. history. On October 31, 2014, although only reported last week in the New York Times, Ms. Mapp died at the age of 90 in Conyers, Georgia.

After entering the house under false pretenses, the officers searched and discovered some sexually explicit materials, including books and drawings, which Ms. Mapp indicated were the possessions of a previous tenant. Ms. Mapp was handcuffed and arrested on obscenity charges. She was later convicted and sentenced to four years in jail. Her conviction was upheld on appeal to an Ohio appellate Court.

The U.S Supreme Court decided to hear the case originally on First Amendment issues and questions regarding what constituted obscenity. However, when the case of Mapp v Ohio was heard in June of 1961, it took on much greater significance, and became one of the most important decisions in the history of the Court. The issue the Court focused on was the role of the Fourth Amendment, which protects citizens against “unreasonable searches and seizures.” Due to the fact that the prosecutors had never provided a proper search warrant or proved that it ever existed, Ms. Mapp’s conviction was overturned. The Court, in a 6-3 decision, and in extending what is known as the “exclusionary rule”, held that evidence obtained by illegal means, which was previously suppressed only in federal Courts, would now be excluded in state Courts as well. Writing the majority opinion, Justice Tom C. Clark declared: “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold.”

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In 2013, there were 135,738 texting while driving tickets issued by New York State police officers. Of these tickets, 63% resulted in convictions or pleas of guilty. 26% of texting tickets ended up in a conviction for a violation other than for texting. 10% of texting tickets were dismissed for various reasons, including failure to prosecute, meaning that the officer was not available to testify or did not witness the violation.

At present, a texting while driving ticket or for using a hand held cell phone results in five points on the operator’s license. This is a substantial increase from three years ago, when a conviction of texting while driving or hand held cell phone use would result in 2 points in the operator’s license. 11 points in an 18 month period will lead to the suspension of the driver’s license, and 6 points in 18 months will result in a $300.00 Driver’s Responsibility Assessment (Thank you Governor Pataki), which must be paid in 3 annual installments or all at once. If not paid, this will also cause a suspended license.

Due to the increase in penalties for texting and cell phone infractions, drivers are hiring attorneys more frequently to fight these tickets. The conviction rate for these tickets was 72% in 2012 and 63% in 2013.  As a result, more texting tickets are being reduced to a lower charge, which is the reverse of what the New York State Legislature intended when it increased the penalties for the infractions. However, in the New York City Parking Violation Bureau Courts (Manhattan, Queens, Bronx, Brooklyn and Staten Island), there are no negotiations on moving violations, and the only possibilities are either fight the ticket and win, or plead guilty/lose at trial and have five points assessed. The only way to win these tickets is to have proof that at the time of the infraction, you were not on the phone (through cell phone records), or a witness who can establish that the phone was not being used at the time of the ticket. This is quite different than in the local Courts in Westchester, Orange, Putnam, Rockland and Dutchess counties, in which these tickets will often be reduced in plea bargaining, although not always. Continue reading ›