Bronx

Published on: November 17, 2012

Court Discusses Search Warrant

by Stephen Bilkis

This case is about the validity of a search warrant which authorized a search of the premises where defendant resided, and also of another residential unit distantly located. A New York Criminal Lawyer said whether the warrant itself is sufficient; and whether by collateral estoppel the infirmity of the warrant may be argued or applied to the other residence; has to be determined by the Court.

On September 10, 1985, a New York City Police officer applied by telephone to a Queens County Criminal Court Judge for a search warrant for two premises in Queens: 155-47 116th Avenue; and the second floor of a two family dwelling at 116-66 231st Street. The application was based on the information provided to the Police Officer by an unregistered and unidentified informant, who had provided information in the past. According to the informant, there were two black males who had been abducted, beaten and were near death from a ruined drug crime transaction (drug possession) at the 116th Avenue location. The informant also said to the Police Officer that he had just left the location twenty minutes earlier and that he had been in the company of three of the suspects who were going to the 231st Street location, at about 8:00 P.M., in order to cut and distribute drugs.

The judge authorized a “no-knock” search of both premises and authorized the arrest of all persons found therein, as well as the seizure of any contraband found. The search of the 116th Avenue location resulted in the arrest of seven people and the recovery of misdemeanor quantities of narcotics and several rifles. The search of the 231st Street location, which is defendant’s home, resulted in the arrest of defendant and five others, and the recovery of substantial amount of narcotics, handguns, cash, and drug paraphernalia.

Published on: November 14, 2012

Courts Discuss Population Cap for Prisons

by Stephen Bilkis

This case originated almost two decades ago when the plaintiff-prisoners, complaining of the conditions in the Harris County jails, filed a class action lawsuit against certain Harris County officials (“County”). The district court, based on extensive hearings, found the conditions in the jail to be inhumane. Subsequently, on February 4, 1975, the plaintiffs and the County entered into a “Consent Judgment” calling for renovations of existing facilities, the development of a new jail, and improvements in staff and security at the jails. New York Criminal Lawyer said the litigation, however, was far from over, and the “district court retained jurisdiction to issue interim orders.” Ten months later, the district court issued an opinion providing guidelines for streamlining the criminal justice system, implementing an effective pretrial release program, and improving the living conditions in the jails.

A Suffolk Criminal Lawyer said that, by 1982, the County had completed a new jail (the “Franklin Jail”), with more than three times the capacity of the old central jail (the “old San Jacinto Jail”). The County also maintained a detention center in Humble, Texas, and upon the opening of the Franklin Jail, the County closed the old San Jacinto Jail. The district court, however, remained involved in the jails’ operation and addressed staffing and supervision concerns in the jails. After consulting with an expert, the County determined that it would need additional space, and therefore the County authorized construction of a third jail (the “new San Jacinto Jail”) and the renovation of the old San Jacinto Jail.

A Suffolk Criminal Lawyer said that, eager to be free from the yoke of litigation, the County filed a motion for final judgment and permanent injunction. In order to assess the County’s compliance with its prior orders and to determine the maximum capacity of the jails, the district court appointed three monitors–a special master, a medical monitor-assessor, and a jail monitor-assessor (collectively the “monitors”). The monitors examined eighteen conditions and found that the County had complied fully with nine conditions, had complied partially with seven conditions, and had failed to comply with only two conditions of the court’s prior orders. Additionally, the monitors found that, as of June 1, 1987, the county jails’ population exceeded their design capacities by only five percent. Although the County had made substantial progress in conforming the jails to constitutional requirements, the monitors recommended that the court continue supervising the jails in light of the County’s “inordinate delay in achieving substantial compliance.”

Published on: November 13, 2012

Respondent Claims Constitutional Rights Were Violated

by Stephen Bilkis

Two suits, permitted to proceed as class actions, were brought in District Court under 42 U.S.C. § 1983 by respondents, individuals and organizations, against petitioners, the Mayor of Philadelphia, the Police Commissioner, and others, alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens in particular and Philadelphia residents in general. A New York Criminal Lawyer said the petitioners were charged with misconduct ranging from express authorization or encouragement of the mistreatment to failure to act in such a way as to avoid recurrence.

The principal antagonists involved in one case were two police officer, not named as parties, who were found to have violated complainants’ constitutional rights in three of eight incidents as to which the District Court made detailed factual findings and as to which a five-day suspension had resulted in one incident and no disciplinary action in another. In the other case, in only two of 28 incidents did the District Court conclude that the police conduct amounted to a deprivation of a federally secured right; it found no police misconduct in four incidents; in another, departmental policy was subsequently changed; and, though the court made no comment on the degree of misconduct occurring in the remainder, there were arguably 16 police violations of citizens’ constitutional rights in the year involved.

A Bronx Criminal Lawyer said that, the District Court found, that the evidence did not establish the existence of any policy on the part of petitioners to violate the constitutional rights of respondent classes but found evidence of departmental discouragement of complaints and a tendency to minimize the consequences of police misconduct. The court found that only a small percentage of policemen commit violations of the rights of Philadelphia residents generally but that such violations could not be dismissed as rare or isolated. Petitioners were directed to draft for the court’s approval “a comprehensive program for dealing adequately with civilian complaints” to be formulated in accordance with the court’s “guidelines” containing detailed suggestions for revising the police manuals and procedural rules for dealing with citizens and for changing procedures for handling complaints. On petitioners’ appeal the Court of Appeals affirmed.

Published on: November 12, 2012

Defendants Move for Summary Judgment

by Stephen Bilkis

This involves a case where the Supreme Court Appellate division held that conceivability is not equivalent to foreseebility. The Court herein granted defendant’s motion for summary judgment dismissing the complaint.

A New York Criminal Lawyer said the plaintiff was a tenant in a building located at 584 Academy Street in Manhattan, owned by defendant holding company and managed by defendant development company. In the early afternoon of February 26, 2002, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. As plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.

Plaintiff commenced this action to recover damages for personal injuries, claiming that defendants failed to provide adequate security for the building. Specifically, a New York Criminal Lawyer said the plaintiff’s theory of liability is that defendants failed to maintain a working lock on the door to the tenants’ entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.

Published on: November 11, 2012

Court Discusses Doctor Patient Privledge

by Stephen Bilkis

Hospitals in 1955 were required by the statutory law of New York to report all procedures that involve the termination of a pregnancy. The superintendent of all New York hospitals is required to report each procedure and to subdivide the procedures into categories that reflect the nature of the termination of the pregnancy. In 1955, abortions were illegal in the state of New York. The only permitted abortions were those that were necessary to save the life of the mother. This type of abortion was termed a therapeutic abortion. The only other categories of abortion were natural and illegal. A New York Criminal Lawyer said any time that a woman naturally aborts the fetus, it is called a spontaneous abortion. There is nothing that can be done to prevent a spontaneous abortion. Sometimes, nature just detects something that modern medicine cannot and the pregnancy is self terminating. The illegal abortions are called induced. An induced abortion may be caused by actions or omissions by the mother, or by some other person. Some doctors have been known to perform illegal abortions for women in the state.

New York law requires that the superintendent of a hospital to accurately report the number of therapeutic, spontaneous, and induced abortions that are performed, or that occur in their establishment. In 1955, the prosecutor in Kings county suspected that the superintendent of Kings County Hospital in Brooklyn was not ensuring that his doctors were reporting the numbers accurately. In order to determine if any illegal abortions were being performed in the hospital the prosecutor needed to be able to examine the records of all of the abortions that were performed in the hospital for that year. A Brooklyn Criminal Lawyer said he demanded that an emergency Grand Jury be convened to demand that the hospital provide all of the medical records of all of the abortions that occurred in the hospital that year.

The superintendent of the hospital refused to provide the records. He claimed that the demand for the records of women who had committed no crimes would be an illegal search and seizure under the Fourth Amendment of the United States Constitution. The prosecutor filed charges of contempt of court against the superintendent of Kings Hospital following his refusal to disclose the personal information of innocent women in the state of New York who had not been charged or found guilty of any crime. In fact, there was no probable cause to suspect that any of them had been guilty of a crime. There was little more than a hunch on the part of the prosecutor that someone may have avoided being turned in for an illegal abortion in the hospital. By riffling through innocent American’s personal medical records, the prosecutor hoped to find a few who were guilty of a crime. Many women who had suffered through miscarriages would be forced to have their personal information reviewed by the court. Many who had to suffer through therapeutic abortions to ensure that they survived would have to explain their choices to a prosecutor. A Bronx Criminal Lawyer said the superintendent of the hospital flatly refused to deliver the medical records of the patients of his hospital to the Grand Jury for review.

Published on: November 11, 2012

Defendant Denied Right to Counsel

by Stephen Bilkis

This case is about the Prosecution’s appeal from the order of the Supreme Court, Queens County, dated May 12, 1982, which granted defendant’s motion to suppress certain statements since his Fourth and Fifth Amendment rights were violated by the Police Officers.

A New York Criminal Lawyer said on March 12, 1981, the defendant was arrested on charges of murder in Pemberton, New Jersey. The murder occurred on May 23, 1980 in Queens County, New York. The detectives took the defendant to the local police station in Pemberton, where he was read his Miranda rights. He was then transported to the Burlington County’s prosecutor’s office where he was again given his Miranda rights. Later that day, at approximately 3:00 P.M., defendant was produced before a Judge of the Superior Court of New Jersey where he waived his right to extradition and agreed to return voluntarily to New York.

Specifically, the New Jersey Judge exhaustively explained to defendant his options as well as the concept of extradition considering that he is also wanted in the City of New York for the crime of murder. The said Judge also offered to give him a lawyer if he could not afford one, in case he opts for extradition. After having been apprised of his options, Defendant unequivocally chose to go back to New York voluntarily, thereby waiving his right to extradition.

Published on: November 10, 2012

Defendant Claims He was Denied Due Process

by Stephen Bilkis

In a disciplinary case, the Supreme Judicial Court of the Commonwealth of Massachusetts vacated an order imposing a two-year suspension on K. and entered a judgment suspending K. from the practice of law for four years, retroactive to October 24, 1997. K’s disciplinary proceeding in Massachusetts arose as a result of K’s unlawful payment of $12,000 to a congressman for the purpose of arranging a transfer of K’s uncle from one federal prison to another.

A New York Criminal Lawyer said that the Florida Bar filed a complaint against K and attached a copy of the Massachusetts judgment to the complaint. In his response to the complaint, K admitted that he had been suspended in Massachusetts and that the order attached to the Bar’s complaint setting forth the facts leading to his suspension was genuine and admissible as evidence. The Bar filed a motion for summary judgment. K did not appear for the hearing on the motion. Instead, he filed a pleading entitled “Respondent’s Objection to Complainant’s Motion for Summary Judgment” in which K alleged that he had been denied due process in the Massachusetts proceeding. Following the hearing, the referee granted the Bar’s motion.

In her report, the referee found that K. did not demonstrate that he had been denied due process in the Massachusetts disciplinary proceeding. The referee further determined that the Massachusetts adjudication of misconduct constituted conclusive proof of K’s misconduct in the instant disciplinary proceedings pursuant to Rule Regulating the Florida Bar 3-4.6.

Published on: November 7, 2012

Court Discusses Jurisdiction Issue

by Stephen Bilkis

This involves a criminal jurisdiction case where it was ruled that the courts of the United States have jurisdiction, under section 5346 of the Revised Statutes, to try a person for an assault with a dangerous weapon, committed on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit river, out of the jurisdiction of any particular state, and within the territorial limits of the dominion of Canada.

In February, 1888, the defendant and others, were indicted in the district court of the United States for the eastern district of Michigan for assaulting, in August, 1887, with a dangerous weapon on board of the steamer Alaska, a vessel belonging to citizens of the United States, and then being within the admiralty jurisdiction of the United States, and not within the jurisdiction of any particular state of the United States, viz. within the territorial limits of the dominion of Canada.

The indictment contained six counts, charging the offense to have been committed in different ways, or with different intent, and was remitted to the circuit court for the sixth circuit of the eastern district of Michigan. There the defendant filed a plea to the jurisdiction of the court, alleging that it had no jurisdiction of the matters charged, as appeared on the face of the indictment, and to the plea a demurrer was filed.

Published on: November 7, 2012

Court Finds No Probable Cause for Search

by Stephen Bilkis

On January 20, 1984, two police officers were on patrol in a marked police car, when they observed a white, 2-door Pontiac stopped or standing adjacent to a fire hydrant, at the intersection in the Bronx. The police officer who had been operating the patrol car stopped and requested the woman to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. The officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with the patrol car driver proceeding to the passenger side and his fellow officer to the driver’s door.

A New York Criminal Lawyer said one of the officers asked the woman to produce her operator’s license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by the car owner or by the woman. In any event, after the woman was unable to state the name of the owner in response to the officer’s inquiry, the police officer, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between the car owner and the woman. He inquired as to the contents of the bag, whereupon the woman picked up the bag, handed it out the window and stated that it’s only boxes of envelopes. According to the police officer, she became confused at that point, and didn’t understand him. She complied with the command and handed the bag out the window. The other officer, who was positioned on the sidewalk behind the passenger door, only heard highlights of what had transpired between his fellow officer and the woman.

The officer took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis, the police officer did not testify that he believed the bag to contain a hidden weapon or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two tan stationery-type boxes. When he opened the first, he found hundreds of glassine envelopes and yelled to his fellow officer to watch out because he got something. Although the officer did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them. Actually, the envelopes had no powder and were empty.

Published on: November 6, 2012

Court Discusses Crime of Barbituate Possession

by Stephen Bilkis

At about 6:30 p.m., a 15 year old boy violated the criminal law. The boy was in unlawful barbiturates possession (Drug Possession) that can only be obtained by a doctor’s prescription. The boy, prior to his arrest, has been observed by the witness being approached by another youth who placed a dollar bill upon a mail box and in return received something from the boy. The object is being taken from the boy’s right pants pocket where the two bottles of barbiturates was found.

There was only one witness who testified at the fact finding trial. The police officer testified that at that day from a distance of about 30 feet, he observed the boy approach a youth at a mail box on a public street in daylight, take a bill of currency placed on top of the mail box, pass an unseen object in his closed hand to the youth and then he followed the boy as he shuffled unsteadily, evidently intoxicated by alcohol or a drug, for about two blocks until he turned through the doorway of a grocery store. A New York Criminal Lawyer said the police officer thereupon spoke to the boy in the store. He observed that the shuffling boy appeared to be dazed or drugged, with half-closed eyes. The police officers ask the boy to identify himself and requested to be search. The boy cooperated without objection. Upon tapping his clothes in the well-known manner, the police officer noticed hard objects in the boy’s pocket. He then asked the boy to empty his pockets. Still cooperating without objection, the boy produced two unlabeled brown bottles containing dozens of pills and nine one dollar bills. The boy confessed on the spot, as the police officer testified, that the many white pills were barbiturates and he had sold the pills. He stated that he could not remember or did not know the name of the man from whom he had obtained the pills, a strange man in a park. Quite importantly, the boy further admitted that he had been himself taking those pills for about one and one-half months and his obvious doped condition was the result of it. The pills were now in evidence.

The court was tempted to defer the proceeding, after which no chemical analysis was yet available for the purpose of obtaining the analysis from the police department laboratory. In addition, a New York Criminal Lawyer said because of the failure to analyze the pills received in evidence as found in the possession of the boy, there are lengthy observations and findings which the court required to make. The opinion of the court may shed on the juvenile drug crime problem and simplify the evidence and procedures in similar cases.