New York

Published on: April 8, 2012

Court Hears Tragic Domestic Violence Case

by Stephen Bilkis

Sometimes, the stories that create law are so horrendous that they speak directly to our hearts. It is at that time that you realize how important the law is. It is also when you realize how important another person’s job can be to the lives of others. In many cases, overworked and underpaid civil servants lose sight of how important their calling is. When that happens, they can drop the ball and cut corners. Cut corners always lead to a bad ending.

In New York, the job of the Clinton County Department of Social Services encompasses the assessment of homes to determine if children are deprived or neglected. A New York Criminal Lawyer said the primary goal of the social worker is to work with the parents to keep the child in their natural born home, if at all possible. Sometimes, it is not possible. Sometimes, the social worker does not keep the paperwork as meticulously as it should be kept. Sometimes, it is not possible for the social worker to predict that the parents who are not beating their children or leaving them without food might be the biggest risk to the children in their care.

On March 31, 2010, a set of twins was born to a young couple in Clinton County, New York. One was a boy named Zachary and the other, his twin sister, Zoe. On July 26, 2010, the New York State Central Registry received a complaint that the twins were being abused or mistreated. The department sent a social worker to the home and discovered that the couple engaged in domestic violence in the direct presence of the twins. There was no information recorded about how this information was received, and no documentation of any steps taken to council the parents. The documentation states that the caseworker recommended that the couple engage in mental health counseling and substance abuse treatment. However, there is no documentation about why these steps were recommended. There is no documentation of any mental health problems or substance abuse associated with the report.

Published on: April 7, 2012

Domestic Violence Escalates into Murder Charges

by Stephen Bilkis

Domestic violence is a popular topic these days. Better and stronger domestic violence laws have gone in to effect. The truth about domestic violence is that it is cyclical. It follows a regular cycle that begins with a honeymoon phase where everything is wonderful. The abuser is loving and attentive. Then the abuser begins to pick at the other party. They begin verbally abusing them. From there the cycle heats up until violence breaks out. After the violent episode is over, the abuser tends to go back to the honeymoon cycle again. They promise that they will never abuse their spouse again. However, they do, the cycle continues to repeat itself. Each time the cycle completes, it becomes shorter. The honeymoon phase doesn’t last as long and the abuse phase lasts longer. That is the normal progression. Experience also tells us that the most dangerous time for the victim is shortly after they decide to leave. As soon as they separate, the victim should begin to take steps to protect themselves and any minor children. Unfortunately, many victims do not know what danger they are in.

According to a New York Criminal Lawyer on early April of 1998, a wife and husband filed separation papers in Spafford, Onondaga County, New York. Apparently, the wife did not recognize the danger that she was in during this separation stage. The couple continued to reside in the same house following the signing of the separation agreement. On April 21, only a couple of weeks after they separated, they had a heated argument. It was early in the morning just before dawn when the argument became physical. The later investigation revealed that the husband beat the wife about the head with an aluminum baseball bat in front of her two small children. Evidence revealed that during the beating, the wife told her children to call the police because their father was trying to kill her.

After the wife collapsed with a visible indent in her temple, he called his parents and not an ambulance or medical help. When his parents arrived they brought the husband’s brother and a family friend who was a doctor. The police were finally notified and when they arrived, they found the wife lying on the kitchen floor writhing around in her own blood and moaning unintelligibly. The husband had some scratches and minor cuts. A Nassau County Criminal Lawyer they were taken to different hospitals for treatment.

Published on: April 6, 2012

Domestic Violence Cases are Difficult for Everyone Involved

by Stephen Bilkis

Domestic Violence situations are difficult for everyone who is involved in handling them. Family dynamics can be extremely volatile. When domestic violence occurs, there are many people involved. Family Violence Laws encompass past or current spouses; children or step-children, parents and children, foster parents and foster children, siblings, and anyone who has ever lived or is living in the same residence. This is a broad definition of the relationships that are included in the definition of the domestic violence statutes. Domestic violence laws are created not just to deal with crimes that have already occurred; they are expected to intervene to prevent future assaults from happening. However, whenever a law is created that is expected to prevent future offenses before they have occurred, abuses to that law often follow. Many people are arrested in domestic violence situations who did not need to be arrested. Many are arrested who do need to be arrested, but still deserve a fair hearing in a court of law.

A New York Criminal Lawyer said that often police officers are called upon to enter a home and restrain one or more of the parties involved in the altercation. When this happens, it can be a dangerous situation for the police officers. In April of 2006, a New York City police officer responded to a domestic violence call in Albany County. During the course of that call, the officer had to struggle with and restrain a male subject. The officer in question and his partner ended up against a table which collapsed under the weight of the three people. The subject had pushed one of the officers onto the table before the officer in question was able to hand cuff him. The officer sustained a debilitating injury to his right shoulder. In July of 2007, he applied to the New York State and Local Police and Fire Retirement System to obtain accidental injury retirement benefits. The Hearing officer determined that this officer was not able to obtain these benefits because the injury could not be considered an accidental injury because it occurred in the normal course of performing his ordinary employment duties.

The officer argued that the collapse of the table was not an expected ordinary course of his employment duties. The state did not agree and refused his petition. The state maintains that responding to domestic violence calls and restraining unruly participants is a normal course of a police officer’s duties. If that officer in catastrophically injured in the course of those duties, the state does not feel that they should be responsible. A Westchester County Criminal Lawyer said the Officer appealed this decision. The State Court of Appeals upheld the verdict.

Published on: April 5, 2012

Domestic Violence Cases are Difficult, Particularly Where Children are Involved

by Stephen Bilkis

In July 1996, after a prior order of protection expired, plaintiff obtained a second order of protection against her former boyfriend in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on her former boyfriend. At that time, plaintiff met two officers, the individuals assigned to the unit. Plaintiff later received a telephone call from one of the officers confirming that her former boyfriend had been served with the court order.

According to plaintiff, about a week later, her former boyfriend telephoned her at around 5:00 PM on a Friday evening and threatened to kill her. The former boyfriend had made various threats in the past — threats that prompted plaintiff to secure an order of protection — but plaintiff viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. A New York Criminal Lawyer said the plaintiff immediately left her apartment with her two young sons, planning to go to her grandmother’s house in the Bronx. On the way to her car, however, she stopped at a payphone and contacted the Domestic Violence Unit to alert the police to the latest threat by her former boyfriend. She contended that she spoke with one of the officers, who told her that she should return to her apartment and that the police would arrest her former boyfriend immediately.

After speaking to one of the officers, plaintiff returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether her former boyfriend had been located or arrested. The night passed without incident. A Queens Criminal Lawyer said the following day, a Saturday, plaintiff and her children remained in their apartment most of the day. At about 10:45 PM that evening, plaintiff stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by her former boyfriend brandishing a gun. He ushered her back into the apartment doorway and shot her two or three times injuring her face and arm. The two children witnessed the shooting but were not physically harmed. The former boyfriend then turned the gun on himself and committed suicide.

Published on: April 5, 2012

Court Decide Child Neglect Case

by Stephen Bilkis

In domestic violence cases, the law states that if an incident of domestic violence occurs in the presence of a child, that the involved parties are charged with the offense of cruelty to children, child neglect, or child abuse. Sometimes, the victim is inadvertently charged with child neglect. In the heat of the moment when handling domestic violence calls, officers are called upon to make immediate judgments. Sometimes, these judgments are made mistakenly and the wrong party is charged in relationship to the incident. The statute orders officers to charge the primary aggressor of the domestic violence assault. Sometimes, it is not immediately clear which party involved in a domestic dispute is the primary aggressor. These calls are complicated and emotionally charged. Many times, officers rely on the court system to sort through the involvements because they will see the incident after everyone has cooled off. Unfortunately, the courts are also overburdened and court officers have the same problems sorting out the issues. This was the case in an appeal that was requested on August 10, 2010.

A young mother was assaulted by her boyfriend in her home in front of her child. The altercation was volatile and police were called to the scene. The officer interviewed the child and the child stated that he was scared and nervous during the assault. Both the mother and her boyfriend were charged with child neglect. A New York Criminal Lawyer said that when the case came to court, social services had already determined that the incidence of domestic violence had been isolated. The boyfriend was determined to be the primary aggressor. The mother had broken her relationship with the boyfriend and the incident was established to have been an isolated encounter.

The mother requested that her case be dismissed since the Family Court had already determined that she was no threat to the child. In fact, they determined that there was no reason to exercise any sanctions. They found that the child was healthy and that his mental and emotional condition was not impaired or in imminent danger of being impaired as a result of what they described as an isolated incident. The court established that the mother exercised good parenting skills and had an excellent relationship with the child. The child demonstrated a desire to continue residing with his mother. They found that the child and mother shared a positive relationship. When this situation was brought to the court’s attention, it was expected that the victim’s request to vacate the neglect case against her would be accepted. However, inexplicably the court refused to vacate her charge and found her guilty. The mother filed an appeal under the Family Court Act §105(c) stating that the agency’s evidence at the hearing failed to establish that any neglect had occurred in relation to this mother and her child. In essence, the state had failed to make their case by a preponderance of the evidence against the mother. The appellate court determined that the judgment in this case was flawed and that the case should have been vacated.

Published on: April 4, 2012

Court Discusses Violation of Order of Protection

by Stephen Bilkis

On 22 February 1997, the defendant, after a parental visit, brought his children directly to his then wife (now former wife) in contravention to a court order of protection (hereinafter COOP). Thereafter, a verbal and physical confrontation occurred between the defendant and his wife. The COOP provided that the defendant was to return his children to the local police station.

The defendant was indicted and tried for crimes involved in this incident and another.

On 24 March 1999 after a jury trial, the defendant was found guilty of assault in the second degree, two counts of assault in the third degree, and two counts of criminal contempt in the first degree.

Published on: April 2, 2012

Court Decides Jurisdiction Issue in Domestic Violence Case

by Stephen Bilkis

The parties met through the Internet in 2003, when the mother was studying veterinary medicine and the father was a teacher studying for a Master of Education degree. The parties married on 5 June 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

A New York Criminal Lawyer said that in September 2005, the mother gave birth, in New York, to twin daughters. On 31 October 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court.

Published on: April 2, 2012

Court Decides if Removal of a Child is Necessary in a Domestic Violence Case

by Stephen Bilkis

Three different women were physically abused by their intimate partners or husbands. These three different women all had children who were then living with them at the time that the domestic violence against the women occurred.

These three different women all asked the help of the police and the family court to stop the domestic violence. In all the three cases, the family court issued orders of protection.

In the same family court where these cases for domestic violence were pending, the Administration for Child Services (ACS) all intervened. ACS had a standing policy that all children were removed from the mothers who were victims of domestic violence because even as victims, they are also deemed to have engaged in domestic violence. The ACS contends that the battered woman is negligent when she allowed her children to witness the domestic violence committed against her. The ACS put all the children of these battered women in foster care.

Published on: March 7, 2012

Defendant Contests Calibration of Breathlyzer in DWI Case

by Stephen Bilkis

The accused man is charged of driving while ability is impaired by alcohol. During the course of his DWI consolidated pre-trial hearings and non-jury trial, the accused team objected to the complainant’s admission of the certified calibration records and simulator solution certificates. An NY Criminal Lawyer said that the challenged documents relate to the breath test instrument used to test the accused man’s blood alcohol level at the time of his arrest. The accused counsel’s challenge was made on the grounds that admission of such business records without the testimony of the analyst who created them violates the law. The Court reserved the decision on the application while completion of the case is pending, at which time the Court granted both parties the opportunity to submit summary of law in support of their respective positions. The Court has considered the several submissions by the counsel in concluding that the certified calibration records are admissible and do not violate the law.

A NewYork Criminal Lawyer said that based on records, the law held that since the Constitution guarantees a criminal accused the right to be confronted with the witnesses against him, the practical application of the law prohibits the introduction of out-of-court statements which are testimonial in nature, unless the accused had an opportunity to cross-examine the person who made the statements.

Records similar to the challenged documents have been admitted routinely for years in State DUI cases if properly authenticated under the State business records in exception to the hearsay rule. Most courts examining the issue in light of the law still held the records to be non-testimonial and therefore admissible without live testimony in accordance to the proper authentication. Addressing the business records hearsay exception, the Court of Appeals also cautioned against the categorical elimination of business records as a basic misreading of the law. A thorough analysis declined to adopt a bright line rule admitting business records without testimony, as facts and context are essential and the question of validity of the testimony requires consideration of multiple factors, not all of equal importance in every case.

Published on: March 7, 2012

DWI Defendant Contends Mistaken Identity

by Stephen Bilkis

A man was stopped at the street for failing to wear a seat belt and operating a vehicle with a cracked front windshield. Upon approaching the vehicle, the police officer noticed that the driver have a glassy eyes. The driver responded to the questions of the police officer with a slurred speech and an odor of alcohol emanated from him. After the man failed the standard field sobriety tests, the police arrested the driver for DWI.

A New York Criminal Lawyer said charges against the driver took place and the bail was set and posted. Subsequently, the man came forward and claimed that he did not drive the vehicle which was stopped by the police officer. The man also claimed that his brother used his license and identity. The man submits an affidavit which indicates that he learned of his brother’s arrest when tickets turned up in the man’s mailbox a couple of days after the arrest. The brother of the man called him a couple of days later according to the affidavit submitted. The brother of the man also advised him that he used the license and was arrested for DWI. While no evidence of identity is offered in support of the motion to dismiss the man, the jury concedes that the man did not operate the vehicle and that his brother did. The acknowledgment by the prosecution of the identity of the driver followed initial findings of the present motion. The initial findings ordered a trial to determine that the man did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The prosecution accepted the point rather than proceed to trial. The decision on the merits of the legal action is rendered.

The overlap of the naming of the man as the accused while charging the person of the man’s brother with violating Vehicle and Traffic Law makes the man an wronged person whose privileges to legally operate a motor vehicle have been suspended. The man therefore has the right to challenge the prosecution with his name, his driver’s license and his identity. A New York Criminal Lawyer said that without the right to come forward and reveal the false use of an identity, the man is plagued with the misdemeanor and with potential effects of a conviction. Prosecuting the brother of the man essentially leaves the brother to invest only his time while the man receives the penalties accruing by fines, suspension and revocation of his license.