Articles Posted in Criminal Procedure

The defendant man charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana moves to dismiss the accusatory instrument on speedy trial grounds alleging that the complainants failed to announce their readiness for trial within the applicable ninety day statutory period mandated by Criminal Procedure Law (CPL). The complainants concede, in their Affirmation in Opposition, that their announcement of readiness for trial was not made until the ninety-first day after the filing of the accusatory instrument. They assert, nonetheless, that their announcement of readiness was timely for reasons, namely that the defendant’s pre-conversion oral request for a copy of the search warrant underlying the defendant’s arrest, is an excludable pre-trial delay as provided in CPL even if the Court would disallow the request for a copy of the search warrant as an excludable pre-trial delay, as the day on which the complainants would have been required to announce their readiness for trial fell on a Sunday, the General Construction Law permits a timely announcement of readiness on the following business day (in the instant case, the ninety-first day which fell on a Monday).

The Court disagrees with both of the complainants’ contentions and, for the reasons that follow, grants the defendant’s motion to dismiss the accusatory instrument on speedy trial grounds. Robbery was not an issue.

The instant motion arises from the following facts and procedural history. The defendant was arrested on the aforementioned charges. The misdemeanor complaint, in relevant part, reads that the deponent entered the premises pursuant to a search warrant issued and observed the defendant standing in a bedroom with a quantity of crack/cocaine possession and a quantity of marijuana on top of a dresser in open view.

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In this Criminal action, petitioner initially filed a petition, alleging a family offense. This petition alleges the respondent committed the acts of aggravated harassment in the second degree, stalking in the first degree and disorderly conduct. The entirety of petitioner’s allegations are that respondent: continues to harass, aggravate, intimidate, frighten and stalk Petitioner. The Petitioner discovered the Respondent hiding behind bushes around her home. She was so frightened that the police notified and she was advised to file this petition. The petitioner obtain a Temporary Order of Protection against the respondent for his negative behavior that was dismissed. The petitioner is afraid of the respondent and fears for her life, she is also concerned for the safety, mental and emotional stability of their child. The Respondent abuses alcohol. The Petitioner requested custody of their child. A weapon was not found.

A Nassau County Criminal attorney said that on the date Petitioner appeared before a Judge of this Court, after arrest, petitioner was granted an ex-parte temporary order of protection against the respondent. The order of protection was a “stay away” while under the influence of illegal drugs, alcohol or other intoxicant. Thereafter, the within motion ensued. While respondent does not cite a theory under which the dismissal should occur, the moving papers seem to allege a failure by petitioner to state a cause of action.

The respondent alleges, in his motion, that the allegations contained in the petitioner’s family offense petition, even if true, do not rise to the level of family offenses. The Family Court Act § 812 defines a family offense, as those acts that would constitute: disorderly conduct,

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A woman is accused in the indictment with four crimes which includes criminal mischief in the fourth degree, as a hate crime, criminal mischief in the fourth degree, making graffiti and possession of graffiti instruments. It is alleged that the woman, a teacher, wrote with a black marker the three unpleasant words on the walls of a female bathroom on the third floor of their school.

The grand jury accuses the woman of the crime of criminal mischief in the fourth degree as a hate crime. It was committed when the woman, having no right to do so nor any reasonable ground to believe she had such right, intentionally selected a girl in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sex orientation of the girl, regardless whether the belief or perception was correct or intentionally committed the act or acts constituting the offense in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation regardless of whether the belief or perception was correct.

The woman argues that the proposed modification would change the theory of the trial because the indictment specifies the girl as the specific person about whose race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation the woman had formed beliefs or perceptions which allegedly motivated the underlying violence and criminal mischief.

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A company provides services as a third party benefits administrator of health benefit plans. The petitioner is the former principal owner and Chief Executive Officer of this company. In July 1995, Respondents purchased said benefit plans company from Petitioner. To ensure an orderly transition, the parties agreed that petitioner was to continue managing it, as CEO, and executed an agreement, pursuant to which petitioner would be paid a salary and incentive bonus based on the increase in the Company’s future earnings. There was a provision in the agreement for arbitration under the Rules of the American Arbitration Association.

A Nassau County Criminal lawyer said that during 1996 and 1997, the parties executed four different amendments to the 1995 Employment Agreement. None of these amendments changed the arbitration provision. Later, petitioner filed a Demand for Arbitration against the company, based on its failure to use diligent efforts to guarantee payment of the Incentive Bonus as required by the Fourth Amendment to the 1995 Employment Agreement. In resolution of this dispute, the parties executed a Settlement Agreement, which provided, among other things, that petitioner would discontinue the arbitration and would execute an Amended and Restated Employment Agreement, which was to amend the 1995 Employment Agreement, and contained a general merger clause.

In compliance with the Settlement Agreement, the parties executed the Amended and Restated Employment Agreement, which included the same arbitration provision of the 1995 Employment Agreement. Thereafter, Nassau County and BPA (represented by petitioner) entered into a contract entrusting BPA with the administration of the employee health benefits plan for Nassau County’s 26,000 workers. The net result of this new contract was to immediately increase petitioner’s incentive bonus to a total of $9 million dollars, payable by the company. No fraud was involved.

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The defendant, charged with two misdemeanor violations of the Vehicle and Traffic Law, appeals from an order of the Nassau County District Court, sitting as a Court of Special Sessions, which denied his application for youthful offender treatment. When the application was made to the District Court, the Presiding Judge ordered that an investigation be made for the purpose of determining the defendant’s eligibility for youthful offender treatment. No examination or investigation was conducted, although ordered, and the court subsequently denied the defendant’s application. An immediate appeal has been taken to this Court, and the sole question presented at this time is whether an immediate right of appeal lies from the refusal by a court of special sessions to grant youthful offender treatment before there has been a criminal judgment of conviction.

The right to an appeal is unknown in common law. It is a creature of statute and does not exist without statutory authority therefor. The sole statutory provisions which may be deemed applicable to the within appeal are contained in sections 749 and 913-r of the Code of Criminal Procedure and in section 251 of the Nassau County District Court Act, Laws 1939, c. 274.

Section 913-r of the Code of Criminal Procedure provides that a defendant adjudged a youthful offender shall be entitled to an appeal in accordance with the provisions of the Code. Section 749 of the Code of Criminal Procedure entitled ‘Review on appeal from minor courts’ states, in part: ‘In counties other than the counties included within the city of New York, a judgment upon conviction, rendered by a court of special sessions in any criminal action or proceedings or special proceeding of a criminal nature may be reviewed by the county court of the county, upon an appeal as prescribed by this title. These two sections clearly indicate that the right to appeal, as contained therein, arises only after there has been an adjudication of guilt.

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The court denies the motion by the plaintiff K, pro se, for an order, inter alia, pursuant to CPLR 3120, directing the defendant, H, an Illinois Corporation, to comply with his Notice to Produce all documents, records and any other information in the possession of said defendant, relating to the identification of the author of the article titled “You’re a Mean One, Mr. K” which appeared in the “Readings” section of the December 2009 edition of the H Magazine.

Further, the court grants in part and denies in part the second motion by defendant, H for an order pursuant to CPLR 3211(a)1 and 7. The court dismisses the plaintiff’s Amended Complaint in its entirety and grants sanctions of costs and attorneys’ fees pursuant to CPLR Rule 8303-a.

This libel action arises out of a column published in the December 2009 issue of H Magazine (the “Column”) that consisted almost entirely of excerpts of a letter and all but two emails that were quoted in full in the criminal complaint filed against the plaintiff herein, K.

In this criminal case, petitioner filed a motion seeking an order granting a preliminary injunction pursuant to CPLR 1333, enjoining the defendant from directly or indirectly effecting or furthering the sale, gift, transfer, pledge or mortgage of money not to exceed $10,000 held by European American Bank and Nassau County Police Property Bureau, and from taking any other action otherwise alienating or encumbering his right, title or interest in that property or any part of it.

Previously, an order to show cause, containing a temporary restraining order (TRO) was granted based on the affidavits of the Assistant District Attorney acting for the claiming authority, the arrest officer, the summons with notice, and the District Court Information charging the defendant with committing violations of sections 220.43, 220.18, 220.41, 220.16, 220.16(12) and 220.16(1) of the Penal Law.

A Nassau County criminal attorney said that defendant was personally served at the Nassau County Correctional Center, East Meadow, New York according an affidavit. Defendant has not appeared in this action.

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A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Robbery was not charged and neither was domestic violence.

The issue in this case is whether the Court should accept for filing the application for leave to appeal filed by the defendant in his criminal indictments.

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The defendant pleaded guilty to conspiracy in the fifth degree in connection with his purchase of cocaine from another individual. At sentencing, the court suspended the defendant’s driver’s license for a period of six months, in accordance with the Vehicle and Traffic Law because the defendant’s conviction was drug-related.

On appeal, the defendant argues that the court improperly suspended his driver’s license because Vehicle and Traffic Law provides for such suspensions where one is convicted of the crimes defined in article 220 or 221 of the Penal Law, and he was not convicted under either article.

At the outset, it is not the Penal Law, but the Vehicle and Traffic Law which requires construction in this case. It is well settled that suspension or revocation of a driver’s license is a civil, not a criminal, sanction. Thus, the statute at issue is construed so as to give it a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions.

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A criminal proceeding was scheduled for trial charging a lawyer with the crime of criminal solicitation in the fourth degree and attempted tampering with a witness in the third degree. The allegation asserts that the attorney and his client attempted to prevent the witness from testifying against the offender by engaging another person to threaten the witness who was charged with domestic violence..

Attached to the information is a sworn supporting statement from the person who threatens the witness. Subsequently, the complainant submitted an application of an order directing the unsealing of the files and records of the county’s criminal courts, the county’s district attorney’s office and the county’s police department.

The complainant seeks the unsealing of an indictment which pertains to the youthful offender adjudication of a young man who is allegedly represented by the lawyer. Later, the complainant had made a representation to the court. They contend that they are entitled to the records containing the information sought. Sex was not an issue.

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