New York

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

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 9, 2012

Defendant Retracts Her Confession

by Stephen Bilkis

On 2009, a seventeen years old girl was arrested and subsequently accused of felony charges in two separately docketed felony complaints. She was charged with criminal sale of a controlled substance in the third degree (drug possession) when an undercover police officer alleged in the complaint that she along several others, were selling narcotics from a first-floor apartment window of a building. The officer specifically alleged that the girl, who he saw at the window inside the apartment, handed three bags of crack cocaine to his colleague, who was standing on the sidewalk outside the window. The man then immediately delivered the crack cocaine in her possession to the officer.

In a separate complaint, a New York Criminal Lawyer said the girl was also charged with crack possession. Another police officer alleged that, at about the same time the sale occurred, he entered the aforementioned apartment and found the girl and a twenty-three-year-old man, inside. The officer further stated that he recovered fifteen clear bags containing crack cocaine sitting in plain view on the dining room table. While the police officers were in the apartment, the girl’s brother entered and asked what is going on. The brother was also arrested, along with the girl and the man.

The girl appeared for her arraignment and the court assigned the public defender organization to represent her. A very experienced staff attorney from the organization was designated to be the girl’s attorney. The attorney met with the girl to discuss the case prior to her court appearance. He went over the factual allegations in the accusatory instruments with her, and she then told the attorney her version of the events. When the girl appeared, she entered pleas of not guilty to all charges. The cases were deferred for grand jury action.

Published on: November 8, 2012

Defendant Raises Issues Regarding 6th and 14th Amendments

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 Criminal 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: 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 Antiterrorism Act of 1996

by Stephen Bilkis

This case involves two federal prescriptions: the one-year limitation period imposed on federal habeas corpus petitioners by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d)(1); and the rule that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same “conduct, transaction, or occurrence.

A New York Criminal Lawyer said the respondent was convicted of murder and robbery in California state court and sentenced to life imprisonment. His current application for federal habeas relief centers on two alleged trial-court errors, both involving the admission of out-of-court statements during the prosecutor’s case in chief but otherwise unrelated. Respondent had made inculpatory statements during pretrial police interrogation. He alleged that those statements were coerced, and that their admission violated his Fifth Amendment privilege against self-incrimination. He also alleged that the admission of a videotape recording of testimony of a prosecution witness violated the Sixth Amendment’s Confrontation Clause.

Respondent’s conviction was affirmed on appeal and became final on August 12, 1997. Under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d)(1), he had until August 12, 1998, to file a habeas petition in federal court. On May 8, 1998, in a timely filed habeas petition, respondent asserted his Confrontation Clause challenge to admission of the videotaped prosecution witness testimony, but did not then challenge the admission of his own pretrial statements. On January 28, 1999, over five months after the August 12, 1998 expiration of AEDPA’s time limit and eight months after the court appointed counsel to represent him, respondent filed an amended petition asserting a Fifth Amendment objection to admission of his pretrial statements. In response to the State’s argument that the Fifth Amendment claim was time barred, respondent asserted the rule that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same “conduct, transaction, or occurrence set forth . . . in the original pleading,” Fed. Rule Civ. Proc. 15(c)(2). Because his Fifth Amendment and Confrontation Clause claims challenged the constitutionality of the same criminal conviction, respondent urged, both claims arose out of the same “conduct, transaction, or occurrence.”

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.

Published on: November 5, 2012

Court Finds Evidence Submitted in Error

by Stephen Bilkis

This case is taking place in the Appellate Division of the Supreme Court of New York, Second Department. The appellant in the matter is the People of the State of New York. The respondent in the case is F.W. The defendant is appealing a judgment made by the County Court of Suffolk County that convicted him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled sentence in the third degree.

A New York Criminal Lawyer said the issue being argued on appeal is whether admission of evidence that the defendant, who was on trial for a single sale of cocaine, sold drugs to the same buyer on more than one occasion was an error in the case that requires a new trial in the matter.

Case Background