New York

Published on: April 13, 2012

Court Discusses Integrated Domestic Violence Division

by Stephen Bilkis

In January 2004, the Chief Judge of a State promulgated the establishment of Integrated Domestic Violence (IDV) parts in Supreme Court. The rule directed that the specialized part be devoted to hearing and determination, in a single forum, of cases that are simultaneously pending in the courts if one of them is a domestic violence case in a criminal court and the other is a case in Supreme or Family Court that involves a party or witness in the domestic violence case; or if one is a case in criminal court, Family Court or Supreme Court and the other is a case in any other of these courts having a common party or in which a disposition may affect the interests of a party in the first case.

A New York Criminal Lawyer said the intent of the IDV directive was to allow matters involving a single family to be resolved in one court by the same jurist, thereby eliminating fragmented judicial adjudication and relieving the parties of the burden and costs of having multiple actions pending in different courts. In addition to streamlining the litigation process for litigants and providing better access to community services for families, the new IDV parts also increased judicial efficiency by avoiding duplication of effort by multiple courts, reducing scheduling conflicts and avoiding inconsistent outcomes.

Soon after the Chief Judge issued part of the IDV, the Chief Administrative Judge implemented the new rule by adopting part of the Rules of the Chief Administrator of the Courts, which defined those IDV-eligible cases subject to transfer to Supreme Court. A New York Criminal Lawyer said that under the rules, cases that meet the criteria are sent to an IDV part where, within five days, the cases are screened to determine whether transfer will promote the administration of justice. If so, a formal transfer order is issued and the case is retained by the IDV part for disposition. If not, the case is returned to the originating court.

Published on: April 12, 2012

Defendant Contends he is Eligible for Judicial Diversion Program

by Stephen Bilkis

A man was arrested during the execution of a search warrant in his reported residence. The search warrant was based in part upon an undercover police officer’s sworn allegations that on 13 separate occasions the man, while acting in concert with co-accused sold cocaine and heroin. A New York Criminal Lawyer said the accusation charges the man and his companion, with felony conspiracy for cocaine and heroin and conspiring to commit Criminal Sale of Controlled Substance.

The Criminal Procedure Law defines those accused persons who are eligible for Judicial Diversion as ones charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses as long as they do not have a disqualifying condition listed in the law. If the District Attorney consents, a non-eligible accused will be deemed eligible. The list of eligible crimes is specific and does not include every nonviolent felony.

Robbery in the Third Degree and felony DWI, both nonviolent offenses, are not specified eligible crimes. Disqualifying conditions include convictions within the past ten years for felony or a violent felony; those who have a prior second violent felony or persistent felony offender adjudication; and those who are presently charged with certain violent felony offenses. Prior adjudications for disqualifying crimes may also be considered by the court in determining eligibility.

Published on: April 12, 2012

Domestic Violence Defendant Contends use of Medical Records Inadmissable as Evidence

by Stephen Bilkis

A woman had a boyfriend since she was 14 years old until she reached the age of 20. They broke up and went their separate ways living separate lives. Years later, the boyfriend and the woman met up again. The boyfriend did not have a place to live. So for old time’s sake, the woman allowed her old boyfriend to stay in the spare bedroom in her apartment.

The old boyfriend paid rent to the woman. A New York Criminal Lawyer said the woman saved up the money he had been paying as rent and she planned to give it back to him when he has finally found a suitable place to live.

During the course of their living arrangement, the old boyfriend needed to break his five dollar bill into quarters so that he can do his laundry at the laundromat. He took five dollars in quarters from the coin purse of the woman and put in a five dollar bill. Later, he told the woman what he had done. The woman got upset because she suspected that her old boyfriend was going through her personal belongings.

Published on: April 12, 2012

Court Rules on Divorce Case Based on Domestic Violence

by Stephen Bilkis

The parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, the two youngest children, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university. It appears the youngest son is fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A New York Criminal Lawyer said the husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from 10 November 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The wife was granted a divorce, on consent, after proof, on 10 June 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator, was appointed by the court.

On 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. An NYC Criminal Lawyer said that the wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

Published on: April 12, 2012

Convicted Felon Passes Bar and Wants to Practice in NY

by Stephen Bilkis

What defines good moral character? How long after a youthful infraction, has good moral character been restored? Is it ever possible to know? What types of jobs are appropriate for someone who committed a felony, served their prison sentence, and completed college? How long does the smear of a felony conviction ruin a person’s name? All of these questions are valid ones. There are no set answers. So when a convicted violent felon is released from prison, completes college, and then law school, passes the New York State Bar Exam, the problem becomes one of moral character. The New York Bar rules state that no one will be admitted to the bar who is not of good moral character to practice law. So what establishes his moral character. Even though his crime was violent and drug related, is it enough that the offense occurred thirty years ago?

A New York Criminal Lawyer said the question at hand is best illustrated using a case that was heard in New York. A man was convicted 30 years ago of running a Quaalude sales ring. At first, he was making large sums of money and living a lavish lifestyle. But, as the police began to close in on his operation and his life was falling apart, he took a gun and convinced his girlfriend that he wanted to see her. Once he was with her, he took her captive and held her at gunpoint. He told her that he was going to commit suicide and she believed that he intended to kill her as well. In an attempt to save her own life, when he went to the bathroom, she jumped from the second story window to the ground below. She was severely injured, but survived. As she was running from the location, he fired several bullets at her. He did not hit her with any of them.

He was arrested for the ,offenses and went to Federal Prison first. He was also convicted at the state level and served his sentenced concurrently. Unbelievably, he was released after only seven years on a 12 ½ to 25 year sentence. He completed college and law school. He took the bar exam and passed it. He applied for acceptance to the bar in several states. In all but New York, he was accepted. After all, his crime was committed more than thirty years before he passed the bar. Since that one infraction, he has not committed any crimes and has led an exemplary life.

Published on: April 11, 2012

Court Prohibits Sex Offender From Seeing Wife as a Condition of Release

by Stephen Bilkis

In 1999, petitioner was arrested for rape in the first degree and thereafter convicted, upon his plea of guilty, of sexual abuse in the first degree. The victim, who was his girlfriend at the time and is a petitioner in this proceeding, later married petitioner while he was serving a subsequent prison term in connection with a 2004 conviction of burglary in the second degree. A New York Criminal Lawyer said that the petitioners participated in Family Reunion Program visits three times between October 2006 and October 2007.

In November 2008, petitioner appeared before the Board of Parole, which issued a decision setting the conditions for his anticipated release from prison. In light of the sex crimes committed by petitioner against his wife, as well as evidence of a history of domestic violence between the two, the Board imposed several conditions, including the requirement that petitioner refrain from “associating in any way or communicating by any means with his wife without the permission of” his parole officer.

Petitioners requested the removal of the aforesaid special condition with the Division of Parole but were, thereafter, denied. Hence, petitioners commenced the instant proceeding challenging the condition.

Published on: April 11, 2012

Defendant Charged with Marijuana Possession

by Stephen Bilkis

Recently, a good deal of attention has been given to the legalization or decriminalization of marijuana. Some states have legalized medicinal marijuana use. Some states have decriminalized the private use or possession of less than one ounce. In New York City, it is still illegal to use, possess, or purchase marijuana. While drug possession is still a crime, other less obvious issues surrounding marijuana are being played out in courts all over the United States.

A New York Criminal Lawyer says that people believe that is they are good parents and take good care of their children that no one can take them away. What they do not realize is that sometimes, even good parents are scrutinized by a judicial system that has the power to remove their children from them. This is a terrifying situation. No one wants to believe that the state would come in and take away their children. That is something that happens to other people, bad people, not to the average parent. That image of people who have to fight the system to keep their children is not accurate. Sometimes, there are people who are lousy parents. People can be cruel and people can be clueless when it comes to the welfare of their children. The laws of the state of New York clearly detail that if a parent misuses alcohol or drugs to the extent that it places their children in in actual or imminent danger of impairment to the physical, mental, or emotional condition of the child. The Family Court Act § 1046 also states that there must be a showing of a threshold of serious and ongoing substance abuse. The object of this law is to protect children from serious harm or potential harm. It was not designed to punish parents for behaving in an undesirable manner.

It is possible, that a parent who uses marijuana only once can have their children removed. A New York Criminal Lawyer said it seems unconscionable that the state would take away a person’s children for testing positive for marijuana on one occasion, but it has happened. In fact, one such case was decided in Kings County Family Court in Kings County, New York on January 26, 2012. The incident surrounded the petition from the Administration for Children’s Services to find a mother guilty of child neglect because on the date of her child’s birth, she and the child tested positive for marijuana. The toxicology report was not specific as to when the marijuana had been consumed, if the mother had endangered her child by consuming it, or if the mother had even become intoxicated at the time that the drug entered her body. Interestingly enough, this case brings up the question of what would happen if the drug had entered the mother’s body through second hand smoke. For instance, the mother was passing through a closed in area where other people were smoking marijuana. It could conceivably enter her body in that fashion. She may or may not feel any effects of the drug, but she would probably still test positive on a toxicology report for the drug. That question will have to be answered in a different court case.

Published on: April 10, 2012

Court Decides Jurisdiction Issue Where Domestic Violence Incident Occured Out of State

by Stephen Bilkis

Often, questions of law arise in family violence situations that are unique because they are involving a domestic situation that is volatile and fluid in nature. Families are rarely stationary. The question of jurisdiction and venue become relevant when a family primarily resides in one state, but encounters a violent episode while out of state visiting relatives or on vacation. The law is expected to draw a line that determines who is responsible for protecting the victim or victims as the case may be. The law in New York has a long history of struggling with this concept.

In 1962, New York had a family court law that stated that the victim of domestic violence would have to have their case heard in the family court. This decision was designed to decriminalize family violence. However, the effect that it had was far from the one intended. Rather than providing additional options for handling abuse and domestic violence, it created a situation where criminals could elude criminal prosecution. In 1977, the state revised this law. This revision stated that the Family Court and the criminal court would have concurrent jurisdiction. In 1978, the law was revised further to include the three day rule. It stated that the victim had three days following an incident to decide if they wanted to pursue the case in either criminal court or family court. A New York Criminal Lawyer said the complainant’s choice of either criminal or family court became final after the three days. These amendments were an attempt to provide more effective relief to victims of domestic violence. The idea was that they would provide more remedies to the victims of domestic assaults. In 1994, the state legislature created the 1994 Act. It eliminated the three-day choice of venue. The 1994 Act allowed true concurrent jurisdiction to exist. There was no longer the chance that an offender could escape criminal punishment if the victim chose to have the case handled by family court. Since it is a true concurrent jurisdictional provision, a victim can proceed in both criminal and civil court at the same time.

In 1999, amended the Family Court Act 812 and the Criminal Procedure Law § 530.11 to enable a complainant to proceed in family court and have the criminal court continue to hear the criminal offense that was involved. This legal amendment was created to clarify the intent of the 1994 Act. It is generally assumed that the legislative history of domestic violence laws in New York demonstrate a desire to expand the jurisdiction of Family Court and strengthen the remedies available to the victims.

Published on: April 9, 2012

Defendant Tries to Manipulate Court System to Intimidate Wife

by Stephen Bilkis

Domestic violence issues are complicated. For many years, it was easier for the American judicial system to simply not deal with it. The political climate has changed and with it, the domestic violence laws have changed. We now understand that domestic violence is about control. Sometimes, an abuser cannot accept that the control over the other person has been removed by the state. In some cases, the aggressor attempts to control the court by manipulating the legal system. This type of behavior offensive to the judges and will turn the judges favor away from that person.

In one case like this, which was heard in the Civil Court of the City of New York, Bronx County on October 1, 2010, the situation began on May 5, 2010. A man filed a petition to the court on June 30, 2010 claiming that his wife had illegally locked him out of their apartment located at 1880 Valentine Avenue in the Bronx. However, neither party appeared in court and the petition was dismissed. On July 12, 2010, the man filed a second petition alleging that his wife had illegally locked him out of the apartment. This time he claimed that the lock out had happened in February of 2010. This time, the wife appeared in court, but the husband did not. The court dismissed the man’s petition again.

A New York Criminal Lawyer said the man filed a third petition to the court. This time he claimed that his wife had illegally locked him out of the apartment on July 16, 2010. In this petition, he stated that he had called the police. When the police arrived, they ordered him to leave. Both parties appeared in court on July 23, 2010 in reference to this petition. At that time, the court was notified that on July 16, 2010, Bronx County Family Court had issued each party a Temporary Order of Protection against the other. The wife’s Protection Order directed the husband to stay away from the wife and the three minor children who live with her at 1880 Valentine Avenue. These orders expressly stated that the husband was excluded from that residence. He was also ordered to stay away from the wife’s place of work and not to have any communication with any of the people who lived in the apartment. This is most certainly why the police ordered the husband to leave when they were called to the apartment. Family Court did order that the father could have visitation with his infant child at a location away from the apartment. At that time, the court order for visitation listed the husband’s address as 1160 Wheeler Avenue in the Bronx. The court determined that Family Court was the best resolution to the dispute and dismissed the petition that the husband had filed.

Published on: April 9, 2012

Court Decides Jurisdiction in Domestic Violence Case

by Stephen Bilkis

The discretion of Family Court in New York to handle incidents that have occurred in other states or even other countries has led to many courtroom discussions. The Family Court laws in New York are clear in that they do not limit jurisdiction to events that simply occur in New York. In these laws, New York Criminal Court has concurrent jurisdiction with New York Family Court. A New York Criminal Lawyer said the deciding factor becomes whether or not the family resides in New York. In a case where the entire family no longer resides in New York, the person who is being served with the New York Family Court Documents must be served in New York. The reason for this division is that if the offender is not in New York, there is no imminent threat of further domestic violence to the family. However, if all parties are in New York long enough for the alternate person to be served, then the threat has continued. If the threat has continued, then jurisdiction relies on New York to protect the family from violence.

On December 21, 1989, a New York family who had moved to Florida had an altercation in Florida. During the altercation, the victim claims that the abuser, her husband, grabbed her by the hair pulling it out, slapped her and threw her onto the back patio of their house. The victim claims that also in Florida on January 16, 1990, the husband beat their six year old son, bruising his back, legs, and buttocks. The victim also claims that during the week of January 21, 1990, that her husband watched as she tried to close a window for the second time. He told her that she will never live to do it a third time.

The victim advised the court in New York that she and her family had moved to Florida in July of 1989. She stated that she had been afraid that if she did not move with him that he would take her children away. On February 1, 1990, shortly after the last incidence of violence, the victim moved back to New York with her children. She was afraid for her safety, so she moved into a shelter in Monroe County. On February 16, 1990, while she was living in the shelter, she was granted a temporary order of protection. It was later extended to April 27, 1990. A Long Island Criminal Lawyer said the husband was served in New York since he has weekly, supervised visitation with the children.