Search and Seizure Law

The Second Department recently upheld the suppression of evidence by a Queens County court. In People v. Morris (2124/12) the Appellate Division held that the defendant’s dropping a black plastic bag in his driveway did not allow a warrantless search. This means that a person has a reasonable expectation of privacy in his driveway, because the law recognizes that this area is intimately related to the activities of the home.

The police saw the defendant drop his bag and heard a “heavy thud or a clank.” These actions did not give the police enough legal cause to conduct a warrantless search.

Recent Case Law – Juvenile Delinquency

The First Department just reversed a Family Court’s ruling which denied suppression of a gun found in a juvenile’s shoe. In Matter of Jamal S., the Appellate Division held that the police search of a 15 year old which resulted in the discovery of a gun found in his shoe was unreasonable. At the precinct the police learned that the individual was only 15 years old. He had been arrested only for disorderly conduct. Disorderly Conduct is not a crime and the Family Court Act does not allow the police to arrest a juvenile for this without a warrant. The police could have held him only in temporary detention, where a full- fledged search is not authorized. It is important to know that the law makes certain distinctions between the treatment of juveniles and adults when it involves arrests and searches.

Recent Case Law– Juvenile Delinquency

Family lawyers who represent juveniles in criminal matters in Family Court must be aware of New York State’s Criminal Procedure Law, Penal Law, and Family Court Act. When the police stop and arrest someone and there is a search and seizure issue, the prosecution is held to the same burden in Family Court as in Criminal Court. In the recent case of Re Reggie T., decided September 30, 2014, the Appellate Division, First Department held that the Family Court properly granted the respondent’s motion to suppress physical evidence since the police lacked the “requisite suspicion to justify pursuing the respondent. The respondent did not match a description and the radio message lacked any detailed information. Pursuit of the respondent was not proper.”

In another recent case, a Queens judge removed a juvenile offender matter from Supreme Court to Family Court because it would serve the “interests of justice.” People v. Robert C., decided October 3, 2014. The court held that the Family Court would provide more appropriate treatment to the defendant then the continuation of the criminal prosecution.

At times there are cases which may start out in Criminal Court, but get removed and sent to Family Court. Family Court can offer a wide variety of treatment and therapeutic programs which aim to assist the child.

As both Family Court lawyers who regularly defend juveniles and criminal lawyers, you can be assured that we will inform you of your child’s rights and work to protect them.

Recent Case Law – Criminal

It is of the utmost importance that a criminal lawyer keep abreast of recent cases and rulings made by the courts. When trying a case, a criminal lawyer must be aware of their client’s constitutional rights and the essential elements in trial proceedings. In a recent case stemming from Queens County, People v. Sydoriak, decided August 27, 2014, the Appellate Division, Second Department reversed a conviction because the trial judge failed to consult with the defendant’s lawyer after getting a note from the jury during its deliberations. Instead of getting the lawyer’s input on how to proceed, the trial judge reconvened the trial, read the notes into the record, and responded to the jury’s questions. This violated the defendant’s rights pursuant to Criminal Procedure Law 310.30    and the case was reversed by the Appellate Division and a new trial was ordered.

As experienced criminal lawyers, we will apprise you of your constitutional rights and make sure they are protected.

 

Silence is Golden – Know Your Rights

An important element in criminal law is an accused’s right to remain silent in the face of police interrogation. The issue often is what kind of questions are considered interrogation and what are not

If you are in police custody and questioned by officers, you must be advised of your Miranda rights (Miranda v. Arizona, 384 US 436) before you are interrogated. You must be advised that you have the right to remain silent, the right to an attorney, and that anything you say can be used against you in a legal proceeding. However, the police can ask some questions without giving Miranda rights. These are “pedigree” questions: your name, address, height, weight – questions used to establish who you are. Statements made in answering these questions can be used in court, even if your rights were not read to you.

Certain pedigree types of questions are actually more than just that. In a recent case from Queens County, the Appellate Division held that the hearing court erred in not suppressing a defendant’s statement regarding his gang affiliation. The hearing court had ruled that the statement was part of the defendant’s pedigree information. The Appellate Division held that the statement which the police obtained was not pedigree information, and should have been suppressed. People v. Hiraeta, (2010-04564, 2nd Dept. 5-21-2014).

In another recnt Queens County case regarding police questioning, the Appellate Term held that it was acceptable for the prosecutor during summation to comment to the jury about the defendant’s silence on certain matters to the arresting officer, since the defendant had chosen to speak to the arresting officer about other things. People v. Jackson, 2011-1978 Q CR, NYLJ 1202652401254.

The Fifth Amendment protects individuals from making statements to law enforcement which could be used against them. This protection should not be taken lightly. It should be constitutionally unacceptable to penalize a person for invoking his 5th Amendment privilege to remain silent. The two Queens County cases discussed above show the importance of exercising your right to remain silent. The prosecution has the burden of proving its case beyond a reasonable doubt. A person charged with a crime has the right to remain silent. If the prosecution intends on offering a statement at trial, a person charged with a crime has the right to have their attorney move to suppress that statement at a pre-trial hearing.

We at the law firm of Galchus & Gordon have done hundreds of suppression hearings in support of our clients seeking to protect their constitutional rights. Call us to discuss your case.

Juvenile Delinquency

Juveniles who are arrested are generally prosecuted in Family Court. There are similarities, but also many differences between prosecutions in Family Court and Criminal Court. In Family Court, Family Court Act (FCA) Article Three governs juvenile delinquency proceedings. The speedy trial time for prosecuting juveniles pursuant to FCA is much quicker than the Criminal Procedure Law which governs adult prosecutions. Continue reading

Criminal Court – The Grand Jury

If someone is arrested and charged with one or more felonies, the prosecution will serve notice pursuant to Criminal Procedure Law 190.50 that the case will be heard by a Grand Jury. This is one of the preliminary steps in the prosecution of felony cases. A Grand Jury is a panel who listens to the evidence and determines if an indictment will be brought against the defendant and what charges will be contained in the indictment. That indictment is called a true bill. A defendant has a right to testify in the Grand Jury, but must serve cross 190.50 notice of their intention to testify. Failure to file such cross notice may result in foregoing the right to testify at the grand jury. Continue reading

Family Offense Petitions And Orders Of Protection

The Family Court Act gives the Family Court jurisdiction to issue orders of protection to people in a protected class even if they are already complainants in Criminal Court.

The Family Court handles cases involving disorderly conduct, harassment, aggravated harassment, certain sex crimes, stalking, criminal mischief (that is, damage to property), menacing, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation, assault and attempted assault, identity theft, grand larceny, or coercion. Continue reading