Nassau

Published on: April 24, 2013

Plaintiff Moves for Summary Judgment in DWI Case

by Stephen Bilkis

The Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment as to the issue of the liability on behalf of the Defendant, The Dizzy Lizard, Inc., and directing an assessment of damages to be determined by a jury.

A New York DWI Lawyer said in this criminal action, the Plaintiff was injured in a motor vehicle accident, while he was a passenger in the automobile operated by the defendant, and owned by the co-defendant. Said accident occurred at approximately 1:45 a.m. when the vehicle collided with a train overpass. On the date of the accident, both parties were each 18 years of age. The defendant was arrested and charged with DWI in violation of Vehicle and Traffic Law § 1192.3. Prior to the subject accident, the Defendant was a patron of a tavern located somewhere in New York. As a result of the injuries sustained, the Plaintiff commenced the underlying action against individual defendants, based upon negligence and against the defendant tavern, predicated upon General Obligations Law§§ 11-100 and 11-101. The Plaintiff s instant application seeking summary judgment as to the liability of the defendant tavern thereafter ensued and is determined as set forth hereinafter.

A New York DWI Lawyer said in support of the within application, a New York Drunk Driving Lawyer said that that the record herein conclusively demonstrates that defendant was intoxicated at the time of the accident and that said intoxication was the direct result of the several hours he spent drinking at the tavern. In so arguing, counsel makes particular reference to the annexed police report, which states that defendant was charged with DWI at the time of the accident. Counsel additionally provides various pleadings attendant to a Federal Court action commenced against the tavern by an Insurance, which issued a series of liquor liability insurance policies to the Defendant. The Insurance Company sought rescission of three such policies based upon the tavern’s alleged misrepresentations in the applications for the insurance coverage. Counsel further points to several building violations, in connection to which tavern plead guilty to reduced charges, as well as to pleadings relating to other prior incidents involving the tavern, but which are not related to the within.

Published on: April 23, 2013

Defendant Claims Rights to Due Process Violated in DWI case

by Stephen Bilkis

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (2) and (3), and vehicular assault in the second degree, in violation of Penal Law § 120.03 (1). A New York Criminal Lawyer said that, in his pretrial omnibus motion, the defendant moved, inter alia, to suppress the results of a blood alcohol test, which the trial court granted to the extent of conducting a joint Dunaway/Huntley hearing.

A New York DWI Lawyer said that, at that hearing, the People adduced the following evidence. On July 28, 2006, at approximately 4:00 A.M., in the City of Poughkeepsie, the defendant drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer. The Officer who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007. Immediately after the accident, the Patrol Officer observed the defendant, who was still seated in the driver seat of his pickup truck, detected alcohol on his breath, and saw that his eyes were glassy and bloodshot. The defendant told the Patrol Officer that he had consumed one half of a beer and was on his way to a bar when the accident occurred. Because the defendant complained of possible head injuries, no field sobriety test was conducted. The Patrol Officer could not determine at that time whether the defendant was intoxicated. When the ambulance arrived, the defendant exited the truck without assistance and was transported by ambulance to Vassar Brothers Hospital.

A New York DWI Lawyer said the County Deputy Sheriff arrived at the hospital, where the Patrol Officer briefed him on the circumstances of the accident, his observations of the defendant at the scene, and the defendant’s statement to him at the scene that he had consumed one half of a beer earlier that night. Approximately 20 minutes later, at 5:04 A.M., the Deputy Sheriff administered a prescreening test called an Alco-Sensor, which indicated the presence of alcohol in the defendant’s system. Based upon his observations, training, and experience, the Deputy Sheriff was by then of the opinion that the defendant was under the influence of alcohol. At approximately 6:01 A.M., the Deputy Sheriff placed the defendant under arrest and read him his (DWI) driving while intoxicated warnings, which the defendant indicated he understood.

Published on: March 18, 2013

Court Decides if Defendant Has Right to Speedy Trial after Traffic Infraction

by Stephen Bilkis

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol, a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law (CPL) is denied. While CPL does not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

A New York DWI Lawyer said it is undisputed that fifty-two days between the accused man’s arraignment and the complainant being ready for trial are chargeable to the complainant. The accused argues that the case should be dismissed as more than 30 days have passed since the accused man’s arraignment, the time allowed to be ready for trial on a violation.

Criminal Procedure Law establishes that when the accused is not in custody, the complainant must be ready for trial within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months or within 30 days if the offense is a violation.

Published on: March 1, 2013

Defendant Contends Sobriety Check Point was Illegal

by Stephen Bilkis

At around midnight of April 15, 1992, the police set up a DWI checkpoint at the corner of Clinton and Stanton Streets in Manhattan. The police officers set up the checkpoint so that all the passing cars would be funneled into one lane and every motorist would have to pass the checkpoint.

A New York Criminal Lawyer said when the accused drove up to the check point, the police officer was standing near the driver’s side. He knocked on the window and the driver rolled down his window. The police officer asked the driver something which he could not remember when he testified at the probable cause/ preclusion hearing. Even the accused could not remember what the police officer asked him.

At this time, the police officer asked the driver to pull over to the side of the street because he saw that the driver had watery bloodshot eyes and he could smell alcohol on his breath. When the driver was already parked on the side of the road, the police officer asked him to exit the car. The driver was unsteady on his feet. The driver told the police officer that he drank two beers and had to shots of vodka. The police officer also found an empty bottle of vodka in the car.

Published on: January 25, 2013

Accused DWI Defendant Claims Police was Coerced to Take Breathalyzer Test

by Stephen Bilkis

A police officer was called to the scene of a traffic accident involving two vehicles. When the police officer arrived he noticed that one of the drivers who figured in the accident had slurred speech, red and watery eyes and he was unsteady on his feet.

The police officer immediately placed the driver under arrest. In the patrol car, the police officer read to the arrested drunk driver his Miranda rights. A New York DWI Lawyer said as the police officer was driving his car to the precinct to complete the driver’s paperwork, the driver asked the police officer if he was not going to issue him a D.A.T (a Driver’s Appearance Ticket is a ticket issued by the police officer to a person caught violating the Vehicle and Traffic Law and instead of bringing him to the precinct, filing all the paper work for his arrest and bringing him to the court house immediately for his arraignment, the Driver’s Appearance Ticket will order the person to appear before the same arraignment court at a later date).

The police officers told the man that he would issue him a D.A.T. if he agreed to take the breathalyzer test and the coordination test. The police officer also told him that if he refused to take the breathalyzer test and the coordination test, no D.A.T. will be issued to him and he would have to be placed in jail until such time that he can be arraigned.

Published on: October 24, 2012

Court Discusses Use of Opinion Testimony

by Stephen Bilkis

The Facts of the Case:

On a Tuesday morning, at 4:37 A.M, a police officer was called to the area outside an establishment by the report of a fight. Upon arriving, the officer saw no fight, but observed the defendant’s vehicle parked in the lot with the engine running and the lights on. The officer approached the vehicle and in speaking to the defendant and her passenger, he noted that the defendant was extremely unsteady on her feet, had watery eyes, and had an extremely hard time to understand even the simplest of instructions. Upon testing, the defendant’s blood alcohol level was .00%, showing the absence of alcohol. While defendant refused a request to have a urine sample given for testing, a full DRE was administered at CTS. Thereafter, defendant was arrested and charged with driving while impaired by a drug in violation of the Vehicle and Traffic Law.

The defendant then filed a motion to dismiss the misdemeanor criminal charge against her of driving while ability impaired by drugs and argues that the first insufficiency arises from the fact that there is no specific statement in either the simplified traffic information or the supporting deposition that the defendant was actually observed behind the steering wheel, in the driver’s seat, or even in the vehicle; that the statement that the other person present was her passenger merely infers that the defendant was the driver; that the second insufficiency arises from the fact that neither the simplified traffic information nor the supporting deposition specify the drug which allegedly impaired the defendant.

Published on: October 7, 2012

Plaintiff Contends Insufficient Evidence for the Charges Against Him

by Stephen Bilkis

In this drug crime case, defendant was convicted after a jury trial of criminal possession of a controlled substance in the third degree and unlawful possession of marijuana. A New York Criminal Lawyer said on this appeal, defendant contends that his conviction for criminal possession of a controlled substance in the third degree should be reversed because the People failed to present legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.

A New York DWI Lawyer said that, viewed in the light most favorable to the prosecution, the evidence presented at trial established that at approximately 1:00 A.M. on July 21, 2007 the clerk at the store located on Main Street in the Village of Hudson Falls, Washington County called the police to report that someone was outside the store selling drugs. She placed that call after two separate patrons of the store so informed her. One of those patrons displayed to her what appeared to be a bag of marihuana.

The Patrolman responded to the call. On several occasions earlier that night between 11:00 P.M. and 1:00 A.M. the Patrolman had observed defendant, with whom he was already familiar, standing outside the store. the patrolman said when he arrived at the store in response to the clerk’s call, the Patrolman observed defendant coming out of the store with a six-pack of beer. The Patrolman approached defendant and accused him of selling drugs. At Patrolman’s urging, defendant produced a sock containing seven small bags of marihuana. The Patrolman then searched defendant, discovering four individual packets of heroin in his pocket.

Published on: August 22, 2012

Defendant Claims Ineffective Counsel

by Stephen Bilkis

This is a case being heard in the Supreme Court of Bronx County. The case involves the People of the State of New York versus the defendant.

Defendant’s Case

On or about the 6th of August, 2011, the defendant filed a pro se motion to have his conviction of rape in the first degree, kidnapping in the first degree, and coercion in the first degree from 1977, vacated. A New York DWI Lawyer said the defendant argues that his rights regarding the Confrontation Clause of the Sixth Amendment of the United States Constitution were violated during his trial when the hospital record, including notations made by a resident at the hospital who did not testify, was admitted into evidence.

Published on: August 20, 2012

Defendant Cites 6th & 14th Amendment

by Stephen Bilkis

Under Massachusetts procedure, a ‘two-tier’ system is utilized for trial of a variety of criminal charges. The initial trial under this system is in a county district court or the Municipal Court of the City of Boston. No jury is available in these courts, but persons who are convicted in them may obtain a de novo trial, with a jury, in the appropriate superior court by lodging an ‘appeal’ with that court. At the de novo trial, all issues of law and fact must be determined anew and are not affected by the initial disposition. In effect, the taking of the appeal vacates the district court or Municipal Court judgment, leaving the defendant in the position of defendants in other States which require the prosecution to present its proof before a jury.

A New York DWI Lawyer said in January 1974, appellant was charged with knowing unauthorized use of a motor vehicle, an offense under Mass.Gen.Laws, c. 90 § 24(2)(a). The offense is subject to the two-tier system described above. Prior to trial in the Municipal Court, appellant moved for a jury trial. The motion was denied and the trial before the court resulted in a judgment of guilty. A one-year prison sentence was imposed. Appellant thereupon lodged an appeal in the Superior Court for SuffolkCounty.

Without awaiting proceedings in Superior Court, appellant appealed to the Supreme Judicial Court, seeking to establish that the Sixth and Fourteenth Amendments require that a jury be available in his first trial, whether it be in the Municipal Court or the Superior Court. He also raised speedy trial and double jeopardy contentions as bars to his retrial before a jury.

Published on: August 17, 2012

Defendant Moves to Supress Physical Evidence

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. he 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. A New York DWI Lawyer said 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.

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.