New York Criminal Lawyer Blawg

New York Criminal Defense in Westchester County or any trial Court instructions to the jury by the judge are important since this is the basis for the jury's deliberation and decision. The top criminal and civil attorneys always ask the Judge for the most beneficial jury instructions to help their cases. There are many insertions to a jury on the law but one instuctions discussed here is called the missing witness charge.

In People v Onyia, 70 AD3d 1202, the defendant and co defendant were charged with robbery, burglary, criminal use of a firearm and possession of a weapon. The co-defendant pled guilty and testified against the defendant. Testimony differed among witnesses as to the number of perpetrators who had a gun and other facts. The defnedant's request for a missing witness charge was denied. The defendant was convicted of several counts but acquitted of possession of a weapon. The court dismissed the use of a firearm count as a noninclusory concurrent count and sentenced the defendant on the remaining counts.

The appellate court held that the missing witness, the accuser's girlfriend was present in the apartment when the defendant bought drugs from the accuser a few minutes before intruders came in brandished a handgun and took money.

The testimony of others and her statement to the police showed she was knowledgeable about the incident. The prosecution alleged her testimony would be cumulative to that of the accuser and the co-defendant but their testimony was contrary on some points and the girlfriend's testimony could have been helpful.

The court accepted without further inquiry the prosecution's assertion that the girl could not be found. The Court records do not indicate what efforts the prosecution took to locate the girlfriend. The Court determined the girlfriend was under the prosecutions control.

The prosecution failed to rebut the prima facia case established by the defense. The error in denying the missing witness charge was not harmless. Judgment was reversed for a new trial.

This case is a good example of the rule of the missing witness charge to the jury. If the case is pending in any criminal court in New York the witness list and who is available is very important to the criminal defense. In any felony or misdemeanor trial the best prepation is to identify each witness and conduct an interview of that witness to prepare the best criminal defense possible.

In New York State the top criminal defense lawyers and the best criminal defense will focus on any violation of constitutional rights. Importantly the issues of search and seizure and probable cause to arrest.

Westchester, Orange, Putnam, Rockland, Dutchess County or elsewhere it is a must to review the New York State Police, County Police or local Police arrest reports to determine the exact nature of probable cause and search and seizure.

In People v McBride, 14 NY3d 440 an employee who told police that it was the defendant who robbed he restaurant later picked him out of a photo array and lineup. Police went to the defendant's apartment. They could hear voices inside and confirmed that a man was present. When their knock went unanswered they climbed up the fire escape to look into the apartment. They saw a man lying on the floor. With guns drawn, they rapped on the window and ordered him to open up. A women, seemingly upset and out of breath, came to the front door and let the officers in. They arrested the defendant. His pretrial suppression motions challenging evidence taken from his home, the lineup identification and confession given to the police were denied after a hearing. His conviction was affirmed.

The Court of Appeals found warrentless entries into a home to make an arrest are "presumptively unreasonable" People v Molnar, 98 NY2d 328; Payton v New York, 445 US 573. However, if there was probable cause the police could proceed without a warrant in the presence of exigent circumstances.

Exigent circumstances depend on many factors: the gravity or violent nature of the offense; whether the suspect is reasonably believed to be armed; a clear showing of probable cause to believe the suspect committed the offense; a likelihood the suspect will escape if not quickly arrested and the peaceful circumstances of entry. United States v Martinez-Gonzalez, 686 F2d 93.

The Court found in the above facts the alleged crime here was violent, prop bale cause was acknowledged, there was a strong reason to think the defendant was in the apartment, and the police entered only after assessing the distressed condition of the women answering the door. Although the defendant argued that the police created the exigency by frightening the woman was not supported by the record.

The Court also found that the better practice would have been to get a search warrentthe police actions were legally supportable and the seizure of the evidence was justified. The Court also found the defendants Miranda rights were knowingly and voluntary waived. Wi respect the the line up the Court found that the lineup fillers were physically similar to the defendant and wearing an article of clothing described by the accuser was not unduly or suggestive.

In the dissent Judge Pigott reasoned that the Exigency did not cancel the need for an arrest warrant when there was ample time to obtain the warrant. In reviewing the record it was discovery the police had probable cause to arrest the defendant three days before going to his home. Judge Pigott agreed that the police had created the exigency.

It is very important to review each fact of the case to determine if the arrest is lawful. If the arrest was not lawful the Court will likely dismiss the entire matter. This strategy of criminal defense in Westchester County or otherwise is of the utmost importance and can only be determined by a through review of the facts of the case.

The Best criminal defense and the best criminal lawyers will tell you to NEVER speak to the police regarding any criminal investigation. Resist the urge to talk to the police as the prosecution will want to use statements regardless of Miranda warnings during a police interview. Always call a criminal defense lawyer immediately.

A good illustration of this principle is the recent Supreme Court case of Maryland v Shatzer, 559 US ___, 130 SCt 1213 (2010). This directly addresses the complex issue of Miranda and police interviews.

In the case the respondent was suspected of sexual abuse. In 2003, the police interviewed him while he was in prison on an unrelated offense. After being Mirandized, he signed a waiver but after the respondent learned the purpose of the interview he refused to speak without an attorney. In 2006, the investigation was reopened and he was interviewed again at the prison. He acknowledged his Miranda rights and signed a waiver. He was questioned for 30 minutes and after making admissions about the crime agreed to a polygraph test. Five days later, fresh Miranda warnings were given and a waiver was obtained the respondent the respondent failed the polygraph test and made inculpatory statements and asked for a lawyer.

His motion to supress the statements was denied and he was convicted.

The Supreme Count found that the case of Edwards v Arizona, 451 US 477 (1981) provided a second layer of protection over Miranda warnings by requiring the interrogation to stop when a request for counsel has been made and involuntariness in response to further questions is presumed. However, Edwards was found to be a judicially created rule and therefore shouldn't extend more than 14 days past the initial interrogation. A two week break from custody means the suspect is no longer isolated and is able to seek advice from an attorney, family member and friends.

The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of prolonged police custody by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission.

Where the suspect has been released from pretrial custody and returned to his normal prison life for 2 1/2 years before the next interrogation his change of mind in answering questions without counsel could not be presumed to have been coerced. Lawful imprisonment upon conviction of a crime does not create the coercive pressure identified in Miranda.

In this case since the respondent experienced a break lasting more than two weeks between the first and second attempts at questioning Edwards did not mandate suppression of the 2006 statements.

Always consult with a criminal lawyer before speaking to any police officer. This will provide the best criminal defense in any criminal action, felony or misdemeanor in New York, Westchester county or otherwise.

In New York State Family Court child support payments are made pursuant to a Court Order. Child support can be made by the noncustodial parent to the custodial parent either directly or through the support collection unit (SCU).

In Westchester County the SCU unit is located in Mount Vernon but in child support court a representative from SCU will be in Court to inform the Court and the parties regarding the status of child support payments from the noncustodial parent to the custodial parent. It is very important that both parties keep track of all child support payments made or received. It is never suggested by any child support lawyer in Westchester County or otherwise that any payments for support be made or received in cash!!

When the noncustodial parent falls behind in child support payments a petition may be submitted accusing the noncustodial parent of violating the child support court order. This petition is very serious since a nonpayment of support by the noncustodial parent can lead to incarceration. Due to the serious nature of this violation it is always recommended to have a family court lawyer in court with you if you are the noncustodial parent or the custodial parent. If the violation of the court order is found to be willful the court must order attorneys fees for the custodial parent.

Recently in the Westchester County Family Court it was found that proof that the respondent (noncustodial parent) Failed to pay court ordered child support is prima facia evidence that the violation of the order was willful shifting the burden to the respondent to offer competent, credible evidence of an inability to pay. Family Court Act section 454(3)(a).

The respondent sustained his burden of demonstrating his financial inability to make payments required by the Child Support Court Order in Westchester County. To sustain his Burden the respondent offered uncontroverted evidence that since losing his position as a security guard in 2004, he has been able to obtain sporadic employment at low wages and he had no savings or other assets.

Under those circumstances it was found that his violation of the Westchester County Child Support Order was not willful.

There is a fine line the Child support court needs to determine when reviewing a petition for failure to pay child support and a child support lawyer is always necessary since the legal issues can be complex.

New York State DWI Law has been amended VTL 1194(4)(a)(1)

In NYS additional persons are now authorized to draw blood for the purpose of testing for alcohol or drug content. At the request of a police officer, the following additional persons may draw blood: certified nurse practitioner or an advanced emergency medical technician as certified by the New York State Department of Health.

The following additional persons may draw blood under the supervision and at the direction of a physician: a registered physician assistant or certified nurse practitioner acting acting within his or her lawful scope of practice or upon the express consent of a person 18 years are more from whom such blood is withdrawn, a clinical laboratory technician or clinical laboratory technologist.

With the amendment to the DWI laws in New York State additional people may draw blood to allow the government and the police greater options to get a blood sample. The best criminal defense to DWI both felony and misdemeanor charges is to attack the blood or breath result. It was common that the police would have an unauthorized person withdraw blood leading to suppression of DWI blood results in several felony DWI or misdemeanor DWI cases regardless of the class of felony or misdemeanor. With changing policy the government now has extra protection over those authorized to withdraw blood.

This additional authorization to withdraw blood in DWI cases (felony or misdemeanor) does not all ow the prosecution to offer the results into evidence without laying a proper foundation at trial. The person who withdrew the blood still is the best witness for the government at trial. Without the actual person who withdrew the blood in a DWI case there is a bases for suppression of the blood results.

Weschester County, Putnam, County, Rockland County and Orange County in New York all look to have blood results admitted into evidence at trial and part of the best criminal defense is to attack these results early and to look for any errors made by the government well before trial.