Nassau

Published on: April 3, 2012

Does the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation

by Stephen Bilkis

A Lawyers’ Association filed for a rate increase to the State for their in and out of court work. The issue is whether the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation.

A New York Criminal Lawyer said the court finds beyond a reasonable doubt that it does and results in obstructing the judiciary’s ability to function, and declares the law that set those rates are unconstitutional as applied. The court also directed the payment of $90 an hour without distinction between in- and out-of-court work, and without ceilings on total per case compensation, until the governing body acts to address the issue.

Based from the evidence, the grim reality that children and indigent adults in the State Family Court, Criminal Court, and Criminal Term of Supreme Court are at unreasonable risk of being subjected to a process that is neither swift nor deliberate, and fails to confirm the confidence and reliability in the system of justice. It is a direct result of the law-making body’s failure to provide adequate compensation to the assigned counsel. The right of a criminal accused party or Family Court complainant to interpose an attorney between himself and the State with its considerable power and resources is a cherished principle, zealously protected by the State courts. The State continues to ignore its constitutional obligation to the poor by failing to increase the assigned counsel rates that result, in many cases, in denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation. Accordingly, the court declares portions of section of the County Law, section of the Family Court Act and section of the Judiciary Law to be unconstitutional as applied. These statutes were enacted without a mechanism for automatic periodic increases, therefore requiring recurrent visitation by the law-making body. The initial rate set in 1965 of $15 an hour for in-court work and $10 an hour for out-of-court work has been increased twice to $25 and $15 in 1978, and $40 and $25 in 1985. The last increase was 17 years ago.

Published on: February 27, 2012

Court Rules on DWI of Underage Driver

by Stephen Bilkis

Two state police troopers were parked at a corner when a red pick-up truck sped past the intersection. The radar in the police trooper’s patrol car registered that the vehicle was going at a speed of 65 miles per hour in a 45 miles per hour zone. The police troopers then followed the red pick-up truck and while they were right behind the red pick-up truck, the police radar was still tracking the speed of the red pick-up truck.

A New York Criminal Lawyer said that then the red pick-up truck parked into the parking lot outside a bar, the police officers got out of their patrol car and asked the driver for his license and registration. They noted that the driver was only 20 years old. The officers noticed the strong smell of alcohol on the driver and his red, watery and glassy eyes. One of the officers asked the driver if he had been drinking that night and the driver said he had been drinking beer. He also stated that he knew that he should not have been drinking that night.

At this point the officers asked the driver to take sobriety tests at the parking lot. The driver was staggering and swaying when asked to stand still. He failed to follow with his eyes a pen that the officer moved in front of him. The driver succeeded in walking heel to toe in a straight line for about nine steps. But the driver could not keep his leg up to stand on just one leg without staggering or swaying. He could not recite the letters of the alphabet correctly and stopped midway. He was not given a breath analyzer test. After this, the state troopers then placed the driver under arrest for DWI.

Published on: February 18, 2012

Court Decides DWI Case

by Stephen Bilkis

According to a New York DWI Lawyer, the defendant has filed a motion to deny the request made by the prosecution that he should be sentenced as a felony offender for the first time. The defendant had given a guilty plea for attempting to sell illegal drugs. The defendant was convicted for assault charges which he admitted he was guilty. He was sentenced to a prison term of at least one or one and half years. The maximum sentence is four years. The defendant has already admitted that he was the same defendant who was initially charged for the first felony. The defendant has challenged the conviction made in his second conviction. The defendant contends that he received ineffective counsel from his lawyer.

The defendant presented a memorandum to support his motion. The letter memorandum contained an outline of the defendant’s case. It also includes information that the defendant had informed his lawyer about the facts of his alleged offenses. These offenses were the basis of his current assault conviction.

A New York DWI Lawyer said that the defendant further contends that his previous lawyer failed to present a DWI defense during his previous conviction. The defendant also challenged the prosecution that his guilty plea should be removed from the records since he was denied the effective counsel assistance. To support this statement, the defendant has submitted a letter from that lawyer who affirms the circumstances that are relevant to his guilty plea. The prosecution has opposed the motion of the defendant and filed a motion for the court to sentence him for his second felony conviction. It has been noted by the court that the defendant did not submit to a letter from the previous case’s lawyer that should have explained the circumstances involved.

Published on: February 17, 2012

Court Rules of Complex Drug Possession Case

by Stephen Bilkis

According to a New York Drug Crime Lawyer , a 33-year old man was indicted by a jury and charged with marijua posssession. Court records showed that the defendant was a second felony offender but not a violent offender. During the course of plea negotiations, the defendant was offered by the State a plea to a B felony in satisfaction of the indictment with a minimum sentence of four and a half years to nine years in state prison. Prior to defendant’s plea, the New York State Legislature passed the Drug Law Reform Act, which was signed into law in 2004.

The People took the plea with a minimum sentence but the sole issue in contention is, what is the minimum state prison sentence now allowed by law given the passage of the new law.

A New York Drug Possession Lawyer said that the defense attorney argued that the newly enacted DLRA should be applied retroactively and authorized not only a plea to a B felony reduction from an A-I felony but also the appropriate sentence should be a three and a half year determinate prison term with postrelease supervision set by the court at a determinate time of the minimum of one and a half years to a maximum of three years.

Published on: February 17, 2012

Court Rules in Minor DWI Case

by Stephen Bilkis

According to a New York DWI Lawyer, a Lounge bar petitioned for the dismissal of charges against them by the State Liquor Authority after they were found guilty of selling alcoholic beverages to a person under the age of 21 years. The bar’s liquor license was suspended for 15 days and was imposed a penalty. The person to whom the bar allegedly sold the alcohol was killed in a car accident shortly after driving while intoxicated from the Lounge bar.

A Nassau County Criminal Lawyer said that the record establishes that the Lounge was a topless go-go bar whose entertainment fee was included in the additional cost of each customer’s first drink. The Lounge bar’s witnesses testified that its doorman admitted the minor after he displayed false identification. However, the police officer who subsequently inventoried his personal effects found a variety of identification documents, but no false ones. Moreover, his two friends testified that the identification was not checked at the door, but that he was admitted while they were excluded based on their respective physical appearances.

A New York DWI Lawyer has not disputed that the minor spent about an hour inside the bar. During that period, when his two friends testified that they approached the door to the Lounge bar and observed him inside drinking from a bottle of beer, the Lounge bar witnesses claimed that he was not served any alcohol. In addition, all of the witnesses agreed that at some point he endeavored to bribe the doorman to admit his two underage friends. According to his friends, while negotiating with the doorman, he was visibly drunk and was holding a bottle of Budweiser beer in his hand. The bribery attempt was reported to the bar manager, who testified noticing the minor who was then intoxicated and signaled the barmaid to stop serving the minor alcoholic beverages. No Lounge bar employee made any effort to drive him out.

Published on: February 17, 2012

Babysitter Charged with Sex Crimes

by Stephen Bilkis

Anne-Marie P., a juvenile, was charged with various sex crimes that included one count of first degree sodomy, two counts of first degree sexual abuse, two counts of third degree sexual abuse and one count of sexual misconduct. These crimes were allegedly committed against Megan H., who was six years old at the time she testified. The court was satisfied in her ability to offer sworn testimony. The case went to trial in Family Court.

Megan testified that the juvenile defendant pulled down her pants and penetrated her vagina using her fingers. She also stated that the defendant put her mouth on her breasts and touched her behind. According to the victim, she attempted to escape the room where the inappropriate sexual contact took place. She also said she did not give Anne-Marie P. permission to do these things.

According to a New York Criminal Lawyer, Megan also testified that she had seen the defendant place her mouth on her brothers’ penises. Cross-examination revealed that Megan had told her mother what happened as well as the detective who took her statement. Reportedly, she could not remember the date or time the inappropriate sex acts took place. She also said that incidents similar to the ones she described had never happened to her friends and she had never seen anything so portrayed on television.

Published on: February 16, 2012

Court Rules on DWI matter

by Stephen Bilkis

A driver was involved in a one-car accident in Albany County. The car he was driving left the highway and struck a tree. As the result of investigation, officers of the defendant Town Police Department went to the hospital to issue the plaintiff driver his appearance tickets charging him of DWI (driving while intoxicated), operating an unregistered vehicle and driving at a speed not reasonable and prudent. A New York DWI Lawyer said that a blood sample was taken from the plaintiff to determine his blood alcohol content, which later proved to be negative. Consequently, the charges against the driver were dismissed. Thereafter, the driver commenced a legal action against the defendant Town, the police department and the Police Officer for false imprisonment and malicious prosecution. The defendants answered and moved for dismissal of the charges. In opposition to the motions, the driver conceded that his claim for false imprisonment did not lie, but contended that his malicious prosecution claim was viable because the defendants lacked probable cause to initiate the criminal proceeding which was terminated in his favor. The Supreme Court granted the defendants’ motions and an appeal proceeded.

A New York DWI Lawyer explained that elements of an action for malicious prosecution are initiation of a proceeding without probable cause. Records show that the defendants submitted their testimony and affidavits of the police officers who were dispatched to the accident scene. The testimony and affidavits claim that the driver was observed to be somewhat incoherent, and that they detected a faint odor of alcohol emanating from him. When they asked the driver whether he had been drinking, the driver responded that he did not drink much. The police officers further alleged that the driver’s automobile had failed to negotiate a curve at the accident site and that the road surface was dry and free of any defects where the vehicle had left the road. Based upon the facts, the police officers asserted that there existed probable cause to issue the appearance tickets in question.

In opposition to the motion, the driver asserted that he had consumed no alcoholic beverages on the day of the accident, a fact confirmed by the results of his blood alcohol analysis, and that the accident resulted when he leaned over to pick up a cigarette that he had dropped. As to his alleged conversation with the police concerning his alcohol consumption, the driver alleged that he had no recollection of events from the time of the collision until he regained consciousness in the hospital two months later. A Nassau County Criminal Lawyer said that it appears that there are questions of fact as to whether probable cause existed for the issuance of the appearance ticket for driving while intoxicated. Notably, the driver’s alleged admission that he had not drunk much on the day of the accident was a matter solely within the knowledge of the moving parties, given the driver’s lack of recollection of events following the accident, and should not form the basis for dismissal.

Published on: February 16, 2012

Admissibility of Evidence Challenged in Sex Crimes Case

by Stephen Bilkis

Francis McCann was charged with one count each of first degree sodomy, first degree robbery, first degree sexual abuse and two counts of criminal weapon possession in the fourth degree. The crimes allegedly occurred on June 13, 1976 but Mr. McCann was not indicted until January 24, 1980.

A New York Sex Crime Lawyer explained that Mr. McCann’s criminal trial for the robbery and sex crimes charges began in September 1980. The proceeding ended in a mistrial due to a hung jury. The primary piece of evidence presented by the prosecution was the victim’s identification of Mr. McCann.

At the second trial, Mr. McCann hired a new criminal defense lawyer. His attorney filed a request with the prosecution to produce certain evidence based on a police reported prepared by Detective Stanley E. Carpenter, who worked in the Queens Sex Crimes Unit at the time. According to the detective’s report, the person who committed the robbery and sex offenses cut his hand during a struggle. The report stated that there were blood stains around the area where the attack occurred as well as on the victim’s pants.

Published on: February 16, 2012

Court Decides Drug Case where Weapons were Involved

by Stephen Bilkis

A 44-year old man was convicted, following a jury trial, of various crimes stemming from a shootout during which two innocent bystanders were injured. The defendant thereafter was sentenced as a second felony offender to an aggregate term of 30 years in prison with five years of post-release supervision. The defendant appealed his conviction.

A New York Drug Crime Lawyer explained that prior to trial, evidence was introduced showing that the defendant has been convicted with drug crimes, based on guilty pleas, and the other man involved in the shoot-out has been convicted with crack cocaine possession, with the intent to sell. Following the shootout, the other man involved in the shootout was again found in possession of crack cocaine, leading to several drug-related crimes.

The prosecution argued that the prior conviction was probative of the defendant’s intent to act in concert with the other man to constructively possess and sell the cocaine; the State also sought to introduce evidence of the defendant’s alleged gang affiliation and other prior drug dealing and gun possession charges as additional evidence of intent and motive.

Published on: February 13, 2012

Defendant Seeks to Reduce Sex Offender Threat Level

by Stephen Bilkis

In 1985, Juan Santos was convicted of one count of first degree rape, one count of second degree rape, four counts of first degree sodomy and four counts of second degree sodomy. The charges stemmed from claims brought by Mr. Santos’ two stepdaughters, who claimed that he forcibly raped and sodomized them on multiple occasions. Following his conviction, he was sentenced to a combined term of 25 to 50 years.

Mr. Santos’ criminal defense attorney filed a motion to set aside the verdict and this request was granted in 1991. The New York County Supreme Court was unable to determine why the conviction was overturned but the prosecutor in the case claimed they had arranged a plea agreement in which Mr. Santos would plead guilty to one count of first degree rape. In exchange, he received a sentence of 5 to 15 years, according to a New York Criminal Lawyer.

In September 2008, the court received a letter from the New York Board of Examiners of Sex Offenders concerning Mr. Santos’ risk level. The person who drafted the letter, Board Examiner Floyd Epps, stated that Mr. Santos had raped, sodomized, sexually abused and threatened the two victims over a period of several years. The letter also indicated that Mr. Santos claimed the charges were false and that his wife had encouraged the two girls to make up the story because she was angry that he was having an affair. In addition, Mr. Santos has denied committed the sex crimes he was charged with.