Posts Tagged ‘probable cause’

Search Warrant Defense Lawyer explains warrants and rebuttable presumptions

Thursday, December 12th, 2013

Search Warrants

In New York, a valid search warrant signed by a judge can give law enforcement officers the right to search your home or place of business (among other places) for evidence of criminal conduct. Sometimes search warrants are obtained after long criminal investigations, and sometimes they are applied for quickly in emergency cases in which law enforcement fears that evidence will be destroyed. A judge can sign a search warrant where he believes, based upon sworn affirmations made to him by law enforcement and/or civilian informants, that there is probable cause to believe that the targeted location contains evidence of criminality.

Most commonly, search warrants obtained by officers from the NYPD are sought for firearms or narcotics (though the list of possible reasons for a search warrant is endless). With respect to narcotics-related search warrants, police officers will typically not apply for a warrant until they can affirm to a judge that some police officer or police informant has either seen or purchased narcotics inside the location, and done so recently. (When information about possible contraband in a location is not recent, it is considered “stale” and insufficient to justify a search warrant.)

One interesting question that usually arises after search warrants have been executed and contraband discovered is whether the right people have been charged with possessing the illegal items. New York state law provides a “firearm presumption” as well as a “drug presumption” in these contexts. Penal Law chapter 220 provides the following rebuttable presumption about the illegal possession of drugs:

The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found; except that such presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (b) one of them has such controlled substance upon his person. (Penal Law Section 220.25).

Similarly, Penal Law chapter 265 provides the following rebuttable presumption about the possession of a firearm:

The presence in any room, dwelling, structure or vehicle of any machine-gun is presumptive evidence of its unlawful possession by all persons occupying the place where such machine-gun is found. (Penal Law Section 265.15).

Essentially, these presumptions mean that the police will definitely arrest everyone they find inside the same room as contraband during the execution of a search warrant. However, they are likely to arrest everyone in the home (not just the room), as well as those people living in the home but not in the home at the time of the warrant, based upon a theory of “constructive possession”. A person is not necessarily guilty simply because they may have been in the room or in the home at the time that illegal contraband was discovered in the home, as these presumptions are rebuttable with evidence that the accused was either unaware of the contraband or did not exercise any dominion or control over the items.

Search warrants can also be executed to find clothing that a suspect was reported as having worn whilst committing a crime, illegal computer data on an electronic device (such as indecent materials or child pornography or stolen personal identifying information or trade secrets) or stolen property, among many other things.

If you or a loved one have been arrested following a search warrant of your home or place of business, it’s very important that you immediately contact an experienced criminal defense attorney at Galluzzo & Johnson LLP. Their team of three former prosecutors has been involved in writing and applying for countless search warrants, and they are very familiar with the police procedures usually employed in anticipation of applying for one. Most importantly, though, they have experience challenging the bases for the issuance of search warrants as well as defending individuals wrongfully accused of crimes for simply being in the wrong place at the wrong time.

Appellate Attorneys Explain the Basics for Pursuing an Appeal

Thursday, October 20th, 2011

A conviction for a crime doesn’t have to be the end of your case.  A talented and experienced appellate lawyer may be able to find a way to get your conviction overturned or your sentence reduced.  Most criminal defense attorneys do not handle appeals or have very little experience doing it.  Thus, you should strongly consider hiring a specialist to pursue your appeal if you have the resources to do it.   Also, there are deadlines for pursuing the most common types of appeals, so you absolutely must act quickly to get the process started if you are considering pursuing one.

Criminal defendants that have been convicted in New York have the right to one “direct appeal,” or an appeal to a higher court.  In the New York state system, the four Appellate Divisions review convictions from Supreme Court (the trial court that primarily handles felonies).  The Appellate Division, First Department is responsible for Manhattan and the Bronx, the Second Department deals with cases from Brooklyn, Queens, Staten Island, Westchester and Long Island, the Third Department is based in Albany, and the Fourth Department is in Rochester.

From there, cases can be further appealed to the state’s highest court, the Court of Appeals (based in Albany).  A defendant is not entitled to have his case heard by that court; typically, an appellant must persuade the court that his case involves issues of statewide import.  If the Court of Appeals agrees to consider the arguments, then it grants certiorari (sometimes referred to as “leave to appeal” or “cert”) and the appellant’s attorney can file a brief arguing for a reversal of the conviction or modification of the sentence.

In order to pursue the original “direct appeal,” the defendant must first file a “notice of appeal” with the correct Appellate Division immediately.  Aside from finding an attorney to handle the matter, the defendant seeking to appeal his conviction also needs to obtain the transcripts of his court appearances as soon as possible.  Typically, the defendant or his attorney must contact the specific court reporters directly to order the transcript, and arrange for payment to the court reporter.  Indigent defendants can apply to the Appellate Divisions for “poor person relief” if they need to have the minutes provided free of charge.  (Note: indigent defendants that have been represented by the Legal Aid Society, some other public defense agency, or an 18b attorney, can also apply for free appellate representation).

In the federal system, a conviction in New York federal district court (such as the Southern District of New York or the Eastern District of New York) is appealed to the Second Circuit Court of Appeals.  A conviction in the District of New Jersey is appealed to the Third Circuit Court of Appeals.

Generally speaking, typical direct appeals have to involve errors or appealable issues that can be gleaned from the transcript, or “minutes” of the court proceedings.  These sorts of appeals usually stem from mistakes that happened during a trial.  Some common areas of appeal include pre-trial suppression hearings, jury selection, the sufficiency of the evidence, the weight of the evidence, and Molineux and Sandoval.

In cases involving the possession of contraband (such as narcotics or firearms), there is usually a pre-trial suppression hearing before a judge.  These “Mapp hearings” (or Mapp/Dunaway) usually involve police officers testifying as to their basis for the search that led to the recovery of the contraband.  If the judge is convinced that the officers had sufficient or probable cause to act as they did in searching the defendant’s property or person, then the contraband can be used by the prosecutor at trial.  If, on the other hand, the judge finds that the police officers violated the constitutional rights of the defendant, then he orders “suppression,” meaning that the contraband may not be used at trial.  Most of the time, suppression requires the prosecutor to dismiss the case. Obviously, then, these suppression hearings can be enormously important.  The decisions of judges in suppression hearings can be appealed to the Appellate Division, even sometimes in cases where the defendant decides to plead guilty after losing the hearing. Furthermore, statements by defendants can be suppressed where they were involuntarily made or made in violation of Miranda warnings (the subject of a Huntley hearing).  Finally, identifications of suspects can also be suppressed where the procedures used for showing the suspect to the eyewitness were performed improperly (the subject of a Wade hearing).

The jury selection process can sometimes be appealed as well.  For example, if the appellate attorney can demonstrate that the judge wrongfully failed to exclude a potential juror that couldn’t be fair (or failed to assure the court that she could be fair), then the subsequent conviction might be reversible.  Also, a conviction may be reversible where the prosecutor systematically excluded jurors for some discriminatory reason (the age, gender, or race, for example).  This is sometimes referred to as a “Batson violation”.

Furthermore, an appellate lawyer can challenge the conclusions to be drawn from the proof as well.  Typically, one can either challenge the sufficiency of the evidence or its weight.  When arguing sufficiency, an appellate lawyer assumes that all of the prosecution’s evidence was true and credible, but that the evidence nevertheless failed to prove a specific and necessary element of the crime.  Appellate lawyers can also argue about the “weight of the evidence” at trial, meaning that the prosecution’s evidence simply wasn’t strong enough to warrant a conviction.  The distinction between “sufficiency” and “weight” is subtle but nevertheless very significant, as they involve different standards of review by the appellate courts.

Some other types of appeals can also be made to the court in which the conviction occurred.  The most common of these is brought pursuant to CPL Section 440.10.  These motions can be made at virtually any time but are best done as soon as possible.  A 440.10 motion can involve legal issues that are not apparent from the court transcript, meaning that they occurred “off the record”.  For example, newly discovered evidence or improperly withheld evidence (such as exculpatory “Brady material”) can form the basis of a successful 440.10 motion.  Many appellants choose to argue that their trial attorneys represented them poorly, or provided “ineffective assistance of counsel” (note: these arguments can sometimes be made on direct appeal as well).  Along similar lines, many non-citizens have successfully argued that they were deprived of their constitutional right to effective assistance of counsel, or that they made uninformed decisions about their cases, because they were not properly advised of the immigration consequences of their criminal cases.  These arguments are sometimes referred to as “Padilla appeals,” referring to the Supreme Court decision from which these cases spawned.  (The attorneys at Galluzzo & Johnson LLP have handled cases such as these).  Defendants can also pursue similar motions to set aside the verdict after a trial conviction but before their sentence pursuant to CPL Section 330.30 (the main difference between 440.10 and 330.30 being the timing).  Finally, a court can reduce or modify a sentence pursuant to a motion brought under CPL Section 440.20.  Decisions on these sorts of motions can also generally be appealed to the Appellate Division.

Finally, after one’s state appellate options have been fully “exhausted,” meaning that every direct appeal has been decided, an incarcerated person can possibly look to state courts writs of habeas corpus (and possibly even federal courts) for release from prison.  The writ of habeas corpus is a civil motion brought to challenge the legality of the detention of the prisoner.  Basically, the prisoner argues that his constitutional rights are being violated by virtue of his unlawful detention (i.e. the conviction or sentence was improper or unlawful), and the remedy is release from custody.

If you or a loved one have been convicted of a crime and are considering an appeal, you should strongly consider contacting the intelligent and experienced criminal appeals lawyers at Galluzzo & Johnson LLP.  Their team of former prosecutors includes a pair of experienced lawyers – Matthew Galluzzo and Zack Johnson – that routinely handle trial-level matters yet began their careers specializing in criminal appeals.  Zack Johnson has successfully argued a criminal appeal before the highest court in the state of New York (the Court of Appeals) and Matthew Galluzzo is currently working on an appeal to that court involving a cutting-edge legal issue. (See  Unlike most criminal lawyers, they are skilled at handling cases at both the trial level and on appeal; indeed, they firmly believe that being appellate lawyers makes them better trial lawyers, and vice versa.  They also stay abreast of new developments in state and federal law, as evidenced by their sophisticated blog on criminal law topics.  As a result of their exceptional backgrounds, they are uncommonly good at identifying potential grounds for appeal, and they work tirelessly to ensure that their finished products are persuasive.  Contact them today to set up a free initial consultation to discuss your case.

Understanding Your Rights After a False Arrest and “Decline Prosecution”: Explained by a New York Civil Rights Attorney

Thursday, July 7th, 2011

NYPD officers regularly arrest people without probable cause.  A wrongful arrest such as this often results in an innocent person spending a night, or more, in jail before he/she is released from custody. Sometimes the falsely arrested person has to spend months, even years, battling his/her case. Needless to say, criminal cases can result in huge legal fees, missed days of work, tremendous anxiety, and, at worst, the deprivation of liberty for those unfortunate enough to be forced to remain behind bars.  Fortunately, victims of false arrest can seek justice for these wrongs by filing lawsuits against the city.

What you might not know, however, is that even those people who are fortunate enough to have their cases dismissed early in the process can still potentially win money in civil lawsuits against the city.  Almost every night, the District Attorney’s Office issues a “decline prosecution,” whereby the office overrules the decision of the arresting police officer and releases the arrested person from custody (oftentimes, from Central Booking).  In some ways, the DA’s decision to dismiss the case can be construed as evidence that the police officer’s decision to arrest was in fact wrongful.  Thus, the person freed by the District Attorney this way can be surprisingly successful in winning a decent and quick settlement with the help of an experienced attorney.  Oftentimes, the person released from custody before seeing a judge for the first time (arraignment) has no idea why he is being released – if this sounds familiar to you, the DA probably decided to “decline prosecution” in your case, and you may have a viable lawsuit against the city.

If you or a loved one have been falsely arrested and had your case dismissed by the District Attorney’s Office, you should consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP.  Their team of former prosecutors understands how best to pursue civil lawsuits against the city for false arrest and malicious prosecution, and can maybe help you or your loved one win a settlement. They work on contingency, meaning that you don’t pay them a dime unless you collect.  Call them to schedule a free consultation to discuss the possibility of pursuing justice in civil court.