New York Criminal Lawyer Blawg

Chain of Custody

In a prosecution for a drug related offense the People must prove at trial that the chain of custody has not been broken in that the evidence (drugs) has not been tampered with and remains in the same condition as it was during the arrest. This requirement is very important to the best criminal defense as it pertains to any drug or possession of a controlled substance case.

An example of chain of custody is as follows; a suspect is arrested because drugs are found on there person. The arresting officer marks the evidence and places it in an evidence bag. The officer will usually deliver the evidence to a "evidence locker" in the police department. The next link in the chain of custody would be the officer who logs the evidence in from the locker to the police department log book. The next link in the chain would be the officer who signs the evidence out of the "evidence locker" and takes the evidence for testing. The next link is the person who accepted the evidence for testing and every person at the testing facility who handled the evidence. Of course the chain must be complete for the return to the police department and delivery to the District Attorney on the day of trial. Any break in this chain could result in suppression of evidence due to the possibility that the evidence was tampered with.

In People v Layou, 71 AD3d 1382 the court held it was an error to admit cocaine found on the defendant and at the arrest scene because there were deficiencies in the chain of custody.

The arresting officer testified about bringing the drugs from the arrest scene to the police station and leaving them on a table in a room. He also testified that about a month later he took the drugs from the station to the crime lab for testing. The arresting officer did not have personal knowledge of where the drugs were during that month and no other officers testified about the storage of the drugs during that time. Therefore, there was no assurance that the seized drugs were the ons tested at the crime lab.

This is an example of the break in the chain of custody.

The best criminal defense lawyers will review and attack at trial the chain of custody.

The DWI Checkpoint or Sobriety Checkpoint or Roadblock

In DWI cases in New York or Westchester County, Putnam County, Rockland County, or Orange County the New York DWI laws and District Attorney policy's have become very strict. This is likely in response to high profile DWI cases in New York State particularly Westchester and Putnam Counties. These high profile cases are for the most part the exception to the average DWI case. Checkpoints or Roadblocks are part of both Felony DWI, Misdemeanor DWI or DWAI arrests.

In order to maximize police resources police departments rely on large sweeping patrols for DWI offenders such as the DWI Sobriety Checkpoints or DWI Roadblocks. This is designed to obtain as many arrests as possible without excess police patrols.

DWI defense in New York the best DWI lawyers will aggressively attack the DWI checkpoint as that forms the basis for the entire DWI arrest. Westchester, Orange and Putnam counties in particular use DWI checkpoints to net large amount of arrests.

In attacking the checkpoint or DWI Roadblock it is important to understand New York State DWI law as it pertains to the checkpoint. The leading case is People v Scott, 63 NY2d 518.

In Scott the New York State Court of Appeals held that DWI checkpoints or roadblocks must be established pursuant to a written directive of the County Sheriff for the purpose of detecting and deterring driving while intoxicated or while impaired. The police are prohibited from administrating sobriety tests unless they observe listed criteria indicative of intoxication which gives substantial cause to believe the operator is intoxicated.

DWI Roadblocks to be constitutional must meet the following criteria:
1. May not intrude to an impermissible degree upon the privacy of motorists approaching the checkpoint.
2. Must be maintained in accordance with a uniform procedure which affords little discretion to operating personal
AND
3. Must utilize adequate precautions as to safety, lighting, and fair warning of the existence of a checkpoint.

In the follow up DWI checkpoint or roadblock case of Scott the Court of Appeals further held in the case of In re Muhammad F., 94 NY2d 136 that limiting the discretion of officers in the field is of decisive significance in determining whether a checkpoint type stop of a vehicle is Constitutional.

Every top DWI lawyer should have a firm understanding of the police department's checkpoint because if the checkpoint is deemed Uncontitutional then the entire arrest will be suppressed.

The best criminal defense in a DWI case or any other criminal matter always starts with the basis for the arrest and in checkpoint or roadblock cases that is clearly defined.

The Second Department in People v O'Hare, 73 AD3d 813 reviewed the basis for stopping and automobile and probable cause for arrest.

In O'Hare a police officer stopped the defendant's vehicle upon seeing an air freshened hanging from the rearview mirror. A forensic safety engineer testified for the defense at the suppression hearing that the air freshened was a dashboard level held by a string one tenth of one inch wide and was not an obstruction of the defendants view as prohibited by the New York State Traffic Law.

Because the court incorrectly assessed the evidence in finding the prosecution had shown reasonable suspicion that the defendant had committed a traffic violation new findings of fact may be mace on appeal. The stop of the defendants vehicle was unlawful.

There was no other basis for the stop and the resulting observation of an apparent seat belt law violation the license check erroneously indicated that e defendant's license was suspended and the eventual vehicle search that revealed weapons.

Due to the unlawful stop the Judgment was reversed and suppression was granted.

Accusatory Instruments

In New York State the basis that forms a criminal prosecution is the Accusatory Instrument. An Accusatory Instrument is also called an Indictment (felony), Felony Complaint, Misdemeanor Information, Misdemeanor Complaint, Violation information, Violation Complaint and Uniform Traffic Ticket. This is the basis for a criminal prosecution and the first place a criminal defense lawyer will investigate to provide the best criminal defense. The sufficiency of the Accusatory Instrument must be carefully reviewed.

In People v Dreyden, 15 NY3d 100, the New York State Court of Appeals addressed this issue. In this case the police stopped a van for a traffic violation and recovered from the defendant passenger a knife and a ziplock bag containing marihuana. The defendant was charged in a misdemeanor complaint with unlawful possession of marihuana and possession of a weapon in the fourth degree. The defendant pled guilty to the weapons charge in full satisfaction of the accusatory instrument in exchange for a sentence of time served.

The defendant appealed claiming the accusatory instrument was jurisdictionally defective because it did not include non conclusory allegations establishing the basis of the arresting officer's belief that the knife was a gravity knife as defined in the statute. the conviction was affirmed.

The Court of Appeals held that "the factual part of a misdemeanor complaint must allege facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime charged" CPL 100.15(3); CPL 100.40(4)(b). In controlled substance cases the reasonable cause requirement cannot be met by a mere conclusory statement that the substance is a particular type of controlled substance.

The statement in the accusatory instrument in support of the weapon charge did not meet this requirement. Despite pleading guilty the defendant did not waive the jurisdictional issue. A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. The test of validity is whether the accusatory instrument supplied the defendant with sufficient notice of the charged crime to satisfy due process and double jeopardy demands.

The conclusory statement that the defendant had a gravity knife violated the reasonable cause requirement and amounted to a jurisdictional defect. Not every knife is a weapon for purposes of PL 265.01(1). An arresting officer should at the very least explain briefly with reference to his training and experience how he formed the belief that the object observed in the defendant's possession was a gravity knife.

In this matter the accusatory instrument contained no factual basis for the officer's conclusion that the knife was a gravity knife rather than a knife that did not fit the definition of a per se weapon under PL 265. The Order was reversed and the complaint dismissed.

This is an example that the top criminal defense strategies should start with the accusatory instrument.

DWI Defense in New York - Prior Out of State Convictions

One of the consequences of a DWI Misdemeanor conviction is that a second DWI arrest within ten years will be treated as a felony in New York. Many questions arise in Westchester County or other jurisdictions about out of state DWI convictions and how New York State treats those out of state convictions with respect to a felony DWI charge in New York.

The best DWI defense attorney will research the out of state conviction to determine if the New York misdemeanor or felony charge is appropriate. Since Westchester, Rockland, Orange, Putnam and the Bronx are alleasy driving distance from Connecticut or New Jersey this is a more common analysis that needs to be done by the DWI criminal defense attorney.

Recently in People v Ballman, 15 NY3d 68 (2010), the New York State Court of Appeals addressed the issue of out of state convictions and how New York DWI laws apply to either the felony DWI or Misdemeanor DWI arrest charges.

In Ballman, the defendant was indicted for DWI as a felony (VTL 1192.3) and for second degree obstructing governmental administration. The prosecution filled a special information charging that the defendant has a 1999 Georgia conviction for driving with an unlawful alcohol concentration with would have been a violation of DWI (VTL 1192.2) had it occured in New York. This supported the DWI felony charge. The defendant's motion to dismiss was denied and he plea guilty to the New York DWI felony charge not the DWI misdemeanor charge. The defendant's conviction was reversed because the prior out of state conviction for DWI occurred before the effective date of the New York DWI statute of VTL 1192.8

The Court of Appeals held that the most reasonable interpretation of the New York DWI statute under VTL 1192.8 and it's enabling language was that out of state convictions from prior to November 1, 2006 cannot be used to elevate a DWI offense in New York to a felony DWI offense. The initial version of this provision VTL 1192.7 was enacted in 1985 to allow prior out of state DWI convictions for driving under the influence of drugs or alcohol to be considered when determining penalties for subsequent New York DWI offenses after November 29, 1985. Until then out of state convictions had not been considered for penalty purposes.

Amendements in 2006 ended the practice of treating all DWI prior out of state convictions as mere traffic infractions under New York Law.

The DWI statute in New York was amended to read as follows:

"A prior out of state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for the purposes of determining penalties imposed under this section....provided however that such conduct had it occurred in New York state would have been a violation of any provision of this section"

It also stated that if the out of state conduct would have been a violation of New York State DWI laws misdemeanor or felony under VTL 1192had it occurred in New York State but would not have constituted a misdemeanor or felony the conduct would be deemded a prior conviction for driving while ability impaired for purposes of determining the appropriate penalties. The enabling language accompanying the amendment indicated that VTL 1192.8 shall apply only to convictions occurring on or after November 1, 2006.

The best DWI lawyers will review any prior DWI felony or DWI misdemeanor to be sure the charge in New York is appropriate considering any out of state DWI conviction.