The Elliot Schlissel New York Law Blog

A man had parked his car illegally.  A Police officer walked up to the car.  He asked the man if he should be aware of anything in the car.  The man consented to a search of the car.  The police officer found a handgun in the car.

The issue presented to an Appellate Court in upstate New York was “[did the police officer have] reasonable suspicion to make the inquiry?” The Appeals court found there was none.  The Court said the police must have “founded suspicion” of a crime before asking a motorist if he or she has a firearm.  As a result, the Appeals Court threw out the search for the handgun.  The handgun could not be used as evidence of the illegal possession of the weapon.

The Fourth Amendment to the United States Constitution establishes a standard police must meet before intruding into the personal space of Americans.  The Fourth Amendment specifically protects Americans from unreasonable searches and seizures.

The court’s decision specifically stated while the police officer had an “objective credible reason” for approaching the illegally parked car he was not justified in making an inquiry about the contents of the vehicle without a “founded suspicion that criminal activity is afoot.”

About the Author

Elliot S. Schlissel, Esq. and his associates provide criminal defense legal services for individuals being investigated and charged with crimes throughout the metropolitan New York area.  Our law firm is available seven days a week to assist our clients.  Call for a free consultation.

The Supreme Court in the State of Oregon has taken a very progressive approach to eyewitness identifications of suspects in criminal actions. In a unanimous decision, the Oregon Supreme Court changed how eyewitness identification is utilized in criminal prosecutions in Oregon. The court’s ruling shifts the burden of proof. Prosecutors in Oregon now have to show that identification is sufficiently reliable to be considered admissible into evidence at the time of trial. Experts believe that the leading cause of wrongful convictions in the United States is the misidentification of suspects by witnesses.

The Approach In New York

In New York, trial courts assume eyewitness identification of suspects is admissible. For a defendant to keep an eyewitness identification out of the evidence, he or she must show the identification by the eyewitness is unreliable. Courts in New York rely on eyewitness identifications in most criminal trials.

Memory and Perception Unreliable

The basis of the ruling by the court in Oregon is scientific research showing that memory and perception may not be completely reliable. The court stated “because of the alterations to memory that suggestiveness can cause, it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination.” The court also found that even in the event the prosecution can show a well-founded basis for the eyewitness identification, the Judge in the court can still keep the identification out of the evidence if the defendant, through his attorney can establish that this identification was a result of “suggestive police procedures.”

Conclusion

The courts in Oregon are moving in the right direction. The state legislature in New York and the courts should consider a similar progressive approach.

About the author

Elliot S. Schlissel, Esq. has been representing individuals in the metropolitan New York area charged with felonies and misdemeanors for more than 35 years. If you are a suspect involved in a criminal case or a defendant in a criminal case call the Law Office of Elliott Schlissel for a free consultation.

In a case before Gerri Pickett in the criminal court of Kings County the Judge found the accusatory instrument charging an individual with driving while intoxicated was facially insufficient.  Her conclusion was based upon the fact there were no actual allegations supporting the charges essential elements in the accusatory instrument filed by the Kings County District Attorney’s office.

The accusatory instrument alleged that a police officer observed an individual named Padmore standing with a non-party named More.  The officer’s statement alleged Padmore stated “he hit and sideswiped another vehicle.”  Damage was caused to the other vehicle. Other individuals then drove his car away from the scene of the accident.  The officer further stated she observed Padmore to be intoxicated.

Evidence Of A Criminal Offense

The Court’s decision stated in New York Criminal Procedures Law Section 60.50 for an individual to be convicted, in addition to a confession, there had to be evidence the criminal offense was actually committed. The Court found the prosecution did not meet the minimum requirement of facial sufficiency. There is a question as to whether Padmore “operated the vehicle.”  Since no one saw Padmore driving the vehicle his own statement was the only proof of the officer’s conclusions. Since there was no corroborating evidence of driving while intoxicated, the Judge dismissed the case.

About The Author – New York Criminal Defense Lawyer

The Law Office of Elliot S. Schlissel has been representing men and women charged with misdemeanors and felonies throughout the metropolitan New York area for more than 34 years. Call the law office for a free consultation.

Carl M. Perry had an order of protection against him.  This order of protection from the Family Court in Monroe County indicated he was to have no contact with his wife.  It further ordered, he was to stay away from his wife.

During the period of the order of protection, Carl gained access to his wife’s Facebook account.  He sent out letters to friends and family on his wife’s friends and family list.  In these letters he complained that his wife was using the parties children against him.  He further indicated that she was preventing him from seeing or communicating with his children.  Mr. Perry was charged with criminal contempt for violating the order of protection that barred him from having contact with his wife.

Justice DiSalvo, sitting in the Webster Town court, dismissed the criminal charges against him.  The Justice stated in his decision “changes in technology, including the way people communicate, continue to present unique challenges to the courts. As of the date (April 7^th) of this decision there were no reported cases of people charged with violating an order of protection for accessing Facebook.  One must look for cases where defendants are charged for indirectly contact a protected person by making statements to others.”  The court further held, that there was nothing in the order of protection that prevented him from accessing the Facebook account.

The court held that by communicating with individuals through Facebook he was not either directly or indirectly trying to contact Ms. Perry.  The court further stated, the order of protection did not prevent the defendant from having contact with individuals that happen to be listed on Ms. Perry’s Facebook account.  It also did not prevent him from having contact with family, friends or acquaintances.

Conclusion

This is a win for Facebook.  If you have an order of protection against you can still communicate with third parties through Facebook provided the order of protection doesn’t specifically mention no contact through Facebook accounts.

Jorge Arbaje-Diaz was a New York City Police Officer.  He was arrested in 2008.  He was charged in a federal court proceeding with fourteen other members of a robbery crew.  The charges against him say that they posed as police officers for the purposes of robbing narcotics dealers in the east coast.  Arbaje-Diaz and one other member of the criminal crew were actual police officers.  It is estimated that he participated in more than one hundred violent robberies of narcotics dealers. It is thought that these robberies resulted in more than four million dollars received by his criminal group.

Sentenced to Twenty Years In Prison

Jorge Arbaje-Diaz was sentenced in June 2011 to twenty years in prison.  The prosecutors, in their indictment of him, alleged he used his status as a police officer to gain access to the homes utilized by the drug dealers. Once they were in the home they tied up and tortured their victims until they told them where there drugs and money were hidden.  During at least one robbery Arbaje-Diaz while in his New York Police uniform, carrying his firearm, badge and handcuffs with him actively participated in the robbery.

At the time of the sentencing US Attorney Loretta Lynch stated “today’s sentence will send a strong message that anyone who abuses a position of public trust by committing such heinous crimes will be severely punished.”  At his sentencing Arbaje-Diaz’ attorney argued for a more lenient sentence.  He asked to be only sentenced to ten years instead of twenty years in prison.  The basis of his argument was that a “dirty cop would have a very difficult time inside of prison”.  Unfortunately for Mr. Arbaje-Diaz the judge was not moved by the argument and sentenced him to 20 years in a federal prison.

New York City and Long Island Criminal Defense Lawyers

If you, a friend or loved one are being investigated for a crime that is the time you need to hire an attorney.  You should hire a criminal defense lawyer as soon as you suspect the police or other investigatory agencies are looking into your conduct.

An experienced criminal defense lawyer can mean the difference between walking free and spending a significant portion of your life in a prison.  The attorneys of the Law Offices of Elliot Schlissel are known throughout the court system as dedicated, knowledgeable criminal defense lawyers.  The firm has experience in handling computer and internet crimes, traffic tickets, violent crimes, white collar crimes, sex crimes, weapons possession, driving while intoxicated (DWI/DUI), shop lifting, burglary, juvenile offenses, assault, assault and battery, misdemeanors, domestic violence, drug offenses and all other types of misdemeanors and felonies. Feel free to call for a free consultation.

A documentary “Scenes of a Crime” deals with ten hours of taped interrogations of Adrian Thomas at a police station in Troy, New York, in 2008.  The ten hours of taped interrogations resulted in a disputed confession which is the subject of the documentary.  The confession related to a high profile baby killing case.  The Appellate Division for the Third Department located in Albany, New York, is currently considering an appeal of Mr. Thomas’ conviction based on the ten hours of interrogations.

Police Officers Lie

During the ten hours of taped interrogations, Mr. Thomas was continually lied to.  He was mislead over the two days of interrogations.  The police played good cop/bad cop.  The good cop tried to befriend Mr. Thomas.  The bad cop threatened him and called him a liar.  The detectives threatened to arrest his wife.  They sought to shame him into “being a man” and taking responsibility for the murder of the child so the wife would go free.

They lied to Mr. Thomas about the child being alive, and the doctors trying to save his life.  Mr. Thomas, over the ten hour period, went into a deep depression and talked about suicide.

Mr. Thomas Confesses

In the end the police convinced Mr. Thomas to confess.    He confessed to throwing the infant into the crib three times.

Psychological Coercion

The defense sought to submit an expert witness to testify to the issue of psychological coercion and the use of psychological coercion to obtain false confessions.  The defense tried to have Richard J. Ofshe, a social psychologist and Professor Emeritus at the University of California at Berkeley, testify.  The judge ruled that Mr. Thomas’ theories were not “general[ly] acceptance[d] in the scientific community” and, therefore, were not admissible into evidence.

The police initially believed that the child, Matthew Thomas, died of a severe skull fracture.  In the end, they learned that this diagnosis was incorrect.  There was no skull fracture.  The new theory of how the death took place was based on shaken baby syndrome, which is a crime.

Mr. Thomas Had No Prior Criminal Record

Mr. Thomas had never been previously arrested.  During the interrogation they had insisted for hours they had no idea what happened to the child.  He eventually weakened.  The police repeatedly said that whatever had occurred they are sure it was an accident and that he would not be arrested.  They offered numerous suggestions to him as to how the baby could have been inadvertently hurt.  In the end Mr. Thomas stated “if it comes down to it I’ll take the blame for it because, listen, I didn’t do it, when it comes down I take the rap for my wife so she won’t go to jail…I don’t want my wife to go to jail…I’m saying I will take the fall for my wife because I got a good wife.”

Police asked him again what happened and he responded “I don’t know how it happened”.  The officer then stated “then you can’t take the fall for your wife.  We gotta go pick your wife up.”

At the end of the interrogation Mr. Thomas acknowledged that he threw the baby down in the crib which resulted in the child’s death.  He was convicted by the jury.

The appeal pending before the appellate division of the third department has to do with setting aside the decision made by the jury based on a coerced confession.

Criminal Defense Lawyers

If you, a friend or family member is arrested or is anticipating being arrested relating to a crime you need the best possible criminal defense lawyer for legal representation.  The criminal defense lawyers at the law offices of Elliott Schlissel have extensive experience in dealing with the criminal courts throughout the metropolitan area.  We represent individuals charged with computer and internet crimes, traffic tickets, violent crimes, white collar crimes, sex crimes, weapons possession, driving while intoxicated (DWI/DUI), shop lifting, burglary, juvenile offenses, assault, assault and battery, misdemeanors, domestic violence, drug offenses and all other types of misdemeanors and felonies. Call us for a free consultation. Our phones are monitored 24/7.

In Coram, Long Island, Kevin Daly, age 23, was driving around drunk in his car while wearing a T-shirt that said “I’m not an alcoholic, I’m a drunk. Alcoholics go to meetings.” Kevin Daly was driving a 2000 Saturn. He attempted to make a turn when he struck a marked police patrol car. The officer in the patrol car noted Daly had blood shot, glassy eyes. He slurred his speech and reeked from alcohol. When he exited his vehicle, he was unsteady on his feet. Daly, as he walked out of his car, stated “I tried to stop but I was going too fast for my brakes to stop on the wet road.” He indicated to the police officer that he had two or three beers. He also said, “I deserve whatever I get. I was drinking and driving.” Daly was arraigned in Suffolk County Court and was given ten thousand dollars bail.

Criminal Defense Lawyers

The attorneys of the Law Office of Elliot S. Schlissel handle traffic, tickets, white collar crimes, computer and internet crimes, domestic violence cases, driving while intoxicated (DWI/DUI), drug cases, gun cases and all other types of misdemeanor and felonies. Call us for a free consultation. Our phones lines are open 24/7. We arrange for bail and we do arraignments seven days a week for our clients.

Judge John T. Hecht recently dismissed prostitution charges against a sixteen year old girl who was accused of hustling. Judge Hecht sits in the Criminal Court in Kings County. He has adopted the point of view young prostitutes are simply sexually exploited children. He stated with regard to the case of People vs. Samantha R, 2011kno 9255, “the criminal justice system is not always the best venue for addressing societal problems.”

In this case Samanthar R was arrested after she solicited males for prostitution. She was initially charged with loitering for the purpose of prostitution. This is a noncriminal violation punishable only up to 15 days in jail.

Safe Harbor for Exploited Children’s Act

Judge Hecht, in his decision, stated the legislature in 2008 enacted the “Safe Habor For Exploited Children Act.” Judge Hecht interpretted this statute to mean sixteen and seventeen year olds who are charged with prostitution should be referred to the Family Court and not prosecuted criminally. Judge Hecht further stated “if she is incapable of consenting to intercourse, the incapacity does not change because she agrees to except money.” Judge Hecht’s position is that the Safe Harbor Act precludes prosecution for prostitution of cases such as the one involving Samantha R.

Criminal Defense Lawyers

Should you be charged with a crime, you need the best possible legal representation. The criminal defense lawyers at the Law Office of Elliot Schlissel have been representing New Yorkers and Long Islanders for more than thirty years. We have experience in handling cases involving white collar crimes, violent crimes, computer and internet crimes, drug offenses, driving while intoxicated (DWI), weapons possesssion charges, juvenile cases, assault and battery, and all other felonies and misdemeanors. Call us for a free consultation. Our phones are monitored 24/7. We can also help you arrange for bail and in some situations expunge matters from your record.

Susan Powell has been missing since 2009. She had two children, ages 4 and 6. The children had been staying with her husband, Josh Powell during her absence. Recently the Washington State Children’s Administration removed the children from Mr. Powell’s home. It seems that Josh Powell was also living with his father Steve. Steve has been charged with possession of child pornography and voyeurism. This has caused the children to be removed from Josh’s custody and placed in the custody of his wife’s parents. This action was taken by the Washington State Children’s Administration, even though Steve advised them “I have nothing to do with any kind of illegal pornography.” Josh claimed that he’s a loving father and good to his children. He alleged his children were not at risk and they had not been exposed to any type of inappropriate material such as pornography.

Steven Powell Charged With Crimes

Steven Powell has been jailed on 14 charges of voyeurism and pornography possession. His bail has been set at $200,000.00.

Child Custody and Pornography

If you have custody of your children it is important to make sure that the other individuals residing in your household are not engaged in activities that may create a dangerous or inappropriate environment for your children. Children need to be protected and individuals involved with child pornography are considered to be very poor role models and guardians.

Father’s Rights Lawyers

Father’s rights are protected by the lawyers at our law office. For 30 years we have been assisting fathers in matrimonial and family law matters and family court proceedings. We represent fathers involved in divorce proceedings, orders of protection, child custody, child visitation matters, changes in child custody, child support matters, spousal maintenance, child abuse and child neglect proceedings. In addition, we help our clients to reduce child support payments, we defend the in paternity actions and deal with parental alienation situations. We also negotiate prenuptial agreements and postnuptial agreements for our clients. In amicable situations we negotiate separation agreements and participate in arbitration and mediation of marital issues. Call us for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802. Our phones are monitored 24/7.

Jonathan Lipman is the Chief Judge of the State of New York.  He seeks to reform our legal system with regard to the prosecution of teenagers as adults. He believes that teenagers who commit minor crimes should have these matters handled by the Family Courts and not the Criminal Courts. New York is one of only two states in the United States that try sixteen and seventeen year old as adults for minor offenses. Thousands of non violent youthful offenders should be given community service instead of being sentenced to jail as adults. When teenagers receive criminal records it has a negative impact in their fitting into society and obtaining meaningful employment in the future. Why should young lives be decimated by mistakes made as teenagers! Sometimes these teenagers are convicted before they grow into mature, reasonable adults. They should at least be given a chance to succeed.

Judge Lipman seeks to have the State Sentencing Commission submit a new bill to the State Legislature in 2012. He wants teenagers accused only of violent crimes prosecuted as adults. Teenagers who are charged with non violent crimes will have their cases handling under a pilot project in the Criminal Courts. Judge Lipman feels being more insightful with regard to the handling of cases involving teenagers in the long run is a better policy and will save large sums of money for the State’s present recidivism and eliminate unnecessary prison overcrowding.

I strongly agree with Judge Lipman’s suggestions. I hope the State Legislature will carry through with his ideas.

Family Court Lawyers

The Family Courts in the State of New York handle a variety of cases. They deal with orders of protection, child custody matters, juvenile cases, child abuse and child neglect cases. In addition, they deal with all types of problems involving juveniles. Both father’s rights and mother’s rights need to be protected in cases involving orders of protection in the Family Courts.

Our office can also assist you with regard to divorce related issues in the Supreme Courts. Call us for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.