New York

Published on: August 7, 2012

Defendant Contends Unlawful Stop and Frisk

by Stephen Bilkis

Police patrol officers encounter a wide variety of calls for service. Some of these calls are hazardous some are humorous. Some of these calls are somewhere in between the two. That was the case when two seasoned patrol officers in New York responded to a radio call in the early morning hours on August 4, 1979. A New York Criminal Lawyer said the radio operator advised the officers that an anonymous call had come in to the radio call center regarding an Hispanic male with an afro style haircut wearing light blue pants and a light shirt. The description involved his height which was listed as five foot ten inches tall. The caller advised that the subject was concealing a handgun inside a white shirt that he was carrying.

The officers responded to the location and observed several persons at that location, but none of them fit the description that was provided by the radio operator. They began to check the area and noticed the defendant walking on Amsterdam Avenue. He was wearing a light short sleeved shirt and was carrying a white shirt in his right hand. A New York Criminal Lawyer said the shirt that had been described in the radio transmission was a t-shirt, but this subject had on a banlon shirt. The officers determined that it would be accurate to assume that someone observing him from a distance would think that the shirt was a t-shirt. They observed the subject walk up 95th street and stop in front of a building. He walked up the first three steps and began to open the door with his left hand. He was having difficulty with the door, so he set down the white shirt that the informant had stated concealed the gun.

One of the police officers came up beside him and put his hand over the shirt on the ground so that the defendant would not be able to pick it up. He stated that as soon as he placed his hand on the shirt, he could feel that it concealed some type of handgun. The defendant began to struggle with the officer. Both officers were in uniform when the second officer approached with his firearm out. He ordered the man to stop fighting and not to move. The officers discovered that the white shirt contained a .22 caliber handgun. The subject was placed under arrest and was transported to the jail. He filed a motion to suppress the evidence of the gun.

Published on: August 6, 2012

Probable Cause Questioned in Drug Crime

by Stephen Bilkis

Drug offenses are governed by numerous laws of varying degrees. Each one is reliant on the laws of search and seizure at the federal and state level to ensure that the officers and prosecutors do not overstep their boundaries in a zealous attempt to make more cases. A New York Criminal Lawyer said if they do, then they jeopardize the trust that the citizens have placed in them. The laws of search and seizure are in place to protect all citizens from illegal intrusions into their homes and businesses. If the prosecutorial team violates that trust, then it is a threat to the freedom of all people, not just the defendant in the drug crime case.

On January 19, 1973, at around 7:30 at night, a narcotics officer was observing activity in a known high drug trafficking area from the roof top of an eighteen story building. He observed a man approach a suspected drug dealer and offer him money. The suspected dealer refused the money and the man produced a larger amount from his pocket. The dealer accepted that amount and left to enter a building. He came back a short time later and put his hand on top of the recipient’s hand in an awkward hand shake. The officer stated later in court that in his experience, that type of hand motion is used to conceal the passing of narcotics from one person to another.

The observing officer communicated with a uniformed chase officer on the roadway that he had observed the drug transaction. He described the defendant by his physical description and by his clothing. He told the chase vehicle that the defendant was walking down the roadway toward his location. He observed the recipient as he walked right up until his contact with the chase officer when the observing officer told the chase officer that it was the man right next to him.

Published on: August 6, 2012

Defendant Claims he was Denied a Right to a Speedy Trial

by Stephen Bilkis

The right to a speedy trial is a right that is essential to the Constitution of the United States of America. Each person is granted the right to a speedy trial before a jury of their peers. However, the Constitution does not define the term speedy. Lawyers and legislatures have argued for two hundred years about the definition of what constitutes a speedy trial. When does the time start?

If an offender commits a crime, does the time allowed for a speedy trial begin at that point? Or, does the time start to run at the point when the authorities become aware of the crime? What about situations where the offender is not identified? Does the time start at the point when the offender is identified? A New York Sex Crimes Lawyer said all of these are questions that have plagued the court systems from the Federal Courts to the smallest city court. Defining the term, speedy, has baffled law makers for a very long time. Some cases call this problem into question in a more obvious manner. In cases where the defendant attempts to conceal his identity and abscond, when does the time start for a speedy trial?

In New York, the prosecutors generally are given six months to prepare a felony case and be ready for trial. However, capital cases where the offender is possibly going to receive the death penalty or life in prison, the courts have generally allowed more time based on the severity of the punishment that the person could face. One case of this nature began in 1972 when a man was arrested for being on a fire escape with tools to commit the crime of burglary. A New York Sex Crimes Lawyer said at that time, he provided a false name and date of birth. He provided an address in Kings County where he said that he lived. The next year, he was arrested in June for rape. He provided a different name and date of birth than he had the first time and a different address than he had provided before. He told the officers that he had never been arrested. Computer systems were not in effect at that time and the deception was not caught until much later.

Published on: August 6, 2012

Court Hears Illegal Abortion Case

by Stephen Bilkis

In 1955, abortion was illegal in New York State. That meant that the only termination of a valid pregnancy was if it was necessary to save the life of the mother. In the case of an abortion to save the life of the mother, it is called a therapeutic abortion. In legal terms, an abortion is any pregnancy that is spontaneously or induced to be terminated. In a spontaneous abortion, the pregnancy is terminate by a cause that is a natural act that is either normal or abnormal. The key is that a spontaneous abortion is one that occurs without any outside force being placed upon it either legally or illegally. A New York Criminal Lawyer said the code section that applied to abortions in New York in 1955 was the Sanitary Code of the City of New York § 224. At the opposite end of the spectrum defined by §224, is the induced abortion. An induced abortion is one that is caused by a person by artificial means. An induced abortion may be caused by a doctor, nurse, layperson, or even the woman herself.

A spontaneous abortion is most commonly referred to as a miscarriage and cannot be governed by the laws of society. In 1955, the prosecutors became concerned that there were illegal abortions being performed by a local hospital. The District Attorney of Kings County went to the Grand Jury of Kings County and requested an inquest to determine if the hospital was covering up illegal abortions. A Nassau County Criminal Lawyer said they stated that they thought that the doctors were not reporting the illegal abortions that were brought to them.

The law stated that anytime that a woman arrived at the hospital and the doctor believed that she had attempted to perform an illegal abortion on herself that they had to call the police and report the incident. The police would arrive and charge the woman with the misdemeanor offense of inducing an abortion in violation of the laws of the state. If a woman presented at the hospital and someone else had attempted to perform an illegal abortion on her, the doctors are responsible for notifying the authorities to come to the hospital and investigate the situation. The hospital administrator is responsible for keeping track of all of the numbers of miscarriages and abortions that are treated at the hospital. These statistics are turned in to the state and are reviewed. In reviewing these statistics, the District Attorney determined that they were not accurate. He had no proof that they were not accurate, only that he believed that they were not being reported correctly.

Published on: August 4, 2012

Defendant Set Up in Sting Operation

by Stephen Bilkis

When police officers make an arrest, it is important that they do so in the proper jurisdiction. The case must then be presented to the Grand Jury if it is a felony. A New York Criminal Lawyer said hat Grand Jury must be in the correct venue to draw an indictment. If it is not, then the case is not legal. One such case was served as a motion from a defendant on June 5, 2005. The defendant claimed that the indictment against him needed to be dismissed because the crime had not occurred in New York County.

The police detective contends that over a period of several weeks, he had telephone conversations with a confidential informant. This informant provided him with information that the defendant and several of his friends had a plan to rob some drug dealers. He stated that the group planned to stockpile some weapons (possession of a weapon) and create a robbing gang. This gang would target drug dealers and rob them of their drugs and cash. The informant contacted the police department. The police detective told the informant to give this robbing gang bad information about a non-existent drug dealer who had 60 kilos of cocaine and a large amount of money. The gang began to make their plans. The detective told the informant that the address that he was to give to the gang was an address in the Bronx. The defendant and his accomplices were arrested and indicted. They maintained that none of the telephone conversations that were the crux of the case occurred in New York County. Because they did not occur in New York County, the state could not prosecute the crimes of conspiracy to commit a crime and the numerous other charges that the gang was indicted on.

The prosecutor makes the argument that the intended target was an address in the Bronx which was in New York county. The prosecutor contends that the intended target would make the case venue New York County. The Supreme Court disagreed. A Long Island Criminal Lawyer said they made several disparaging remarks directed at the prosecutor and at the detectives involved in this case. They contend that the detective did not ascertain the jurisdiction that he or the confidential informant were in at the time that the phone calls were made. Since the jurisdictional issues cannot be formulated based on the locations of each party to the calls, then the court is not able to establish venue for the hearings. They contend that the argument that would apply the jurisdictional issue to the proposed target location is not realistic. The court contends that the crime took place at the location in which one or both of the parties to the telephone conversation were located at the time of the conversation. If the jurisdiction cannot be determined, then the case is not able to continue.

Published on: August 3, 2012

Court Questions if Search Warrants are Needed for Infractions

by Stephen Bilkis

The changes in the state of the economy have produced changes in living arrangements for many people. Most cities in the United States have legal codes that detail what type of structure a building is. If the structure is not zoned as a multiple family dwelling, it is illegal to use it as one. With the downturn of the economy, many larger homes in New York have been purchased by slum lords who illegally subdivide them into multiple family dwellings. A New York Sex Crimes Lawyer said when a code enforcement agent is notified that an illegal boarding house is in existence, they must investigate the claim. Some of the indicators that they look for that suggest that a house is being used as an illegal rooming house involve the existence of extra kitchens, plumbing, or bedrooms located in a basement. Sometimes a home will have a mother-in-law suite in the basement that is occupied by a close relative. That is not an illegal boarding arrangement even if the relative helps with the bills on the house. If the mother-in-law suite is occupied by a family who is paying rent to the homeowner and is not related to the homeowner, they are probably in violation of the city codes.

When two distinct families are residing in a house that is zoned as single family dwellings, the homeowner could be found to be in violation of the housing codes. Another red flag that may expose an illegal rooming house is if the code enforcement investigator observes evidence that there are separately keyed entrances, or key locked doors on individual rooms within the house. Individual locks indicate that separate privacy zones exist in the house. A New York Sex Crimes Lawyer said that these separate zones are the sleeping quarters of persons who are either distantly related, or not related at all to the home owner, it is possible that the homeowner is in violation of the housing codes.

Other evidence can also demonstrate that a house is being used as an illegal rooming house. One way that an illegal rooming house is exposed is often through the utility usages of the home. When more than the normal number of people are living in a single family dwelling, the utility usage becomes extreme. One of the first indicators of a large number of people in a single family house is an increase in garbage that is put out to be collected. More people make more trash. They also use more water and electricity. A spike in either of these utilities can indicate that a single family zoned home is being used as an illegal boarding house. Code enforcement agents may use search warrants, but they are rarely necessary in the course of their investigations. Some code enforcement agents in larger cities often use search warrants because it is the only way to see inside of the residence if the people living there refuse to allow them access. A Suffolk County Sex Crime Lawyer said when they do obtain search warrants, they are generally limited to warrants that are executed during the day, or other times when the intrusion is less invasive than execution of a warrant in the middle of night. The execution of a code enforcement warrant should be less of an intrusion into the private lives of the citizens of the jurisdiction than the execution of a criminal warrant. However, when law enforcement officers are involved, their expertise is often limited to criminal warrants and most have never served a code enforcement warrant in their careers.

Published on: August 3, 2012

Court Determines if New Sentencing Statute Applies

by Stephen Bilkis

The Facts:

On 15 December 1981, defendant was convicted of several drug crimes (which includes marijuana possession, heroin possession, etc.), viz: Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree. Defendant was sentenced to various terms of imprisonment.

The Issue:

Published on: August 2, 2012

Defendant Does his Own Research of Sex Offender Registration Act

by Stephen Bilkis

Statutory law is not as fluid as case law, but there are frequently changes that occur in the law that require the courts to adjust their actions in different cases. A New York Sex Crimes Lawyer said tne case presented in New York, involved an inmate who wanted to be resentenced under the Sex Offender Registration Act. His argument was that he was sentenced as a higher level sex offender than he actually was. He wanted to be reclassified in order to obtain a lighter sentence and less controls on his liberty upon his release. He prepared his argument himself and incorporated his defense into a letter to the courts.

The court officers were impressed with his ability to research the law and to apply his research to his current case. He located a 1909 penal law that the court was not even aware existed. A New York Sex Crimes Lawyer said his contention that the law established sentencing provisions that should apply to his case was an intriguing notion to the court. However, the court did not agree that the differences between the 1909 and the 1967 penal law established a premise to bring otherwise ineligible sentences under provisions that would enable them to be resentenced under the 2009 DLRA. The defendant stated that the 2005 provisions for DLRA are overly complicated is an opinion that is shared by the court. It does not enable the court to ignore the standards of law that are presented. The 2009 provisions are not as restrictive as the 2005 DLRA, but the two statutes are different. They do not negate the applicability of the case law.

The defendant argues that certain statements regulating the calculations of repeat felony offenders that are present in the 2009 DLRA mirror the wording of Article 70. He contends that this wording makes it possible for certain repeat felony offenses to be recalculated for the purposes of resentencing and eligibility for resentencing under the SORA statute. The court does not agree with his argument. The calculation provisions that are in place are there to restrict the offenders of violent or sexual offenses. A Nassau County Sex Crimes Lawyer said these provisions are aimed at offenders who are likely to repeat their offenses and endanger the public welfare. The court reviewed the subject’s history and determined that he would not be eligible for resentencing even if his argument was correct. It is up to the panel to determine who is and is not a good risk as far as their recidivism rates for the offenses that are listed in the law. In the case of this particular offender, he had so many offenses that even if some were reclassified, he would not have a sentence difference. According to the evaluation by the Supreme Court, his sentence of three and one half years to seven years would remain unchanged even if he were to have his offense reclassified.

Published on: August 2, 2012

Defense Argues Probable Cause Not Present

by Stephen Bilkis

A woman is charged with three counts of Criminal Possession of a Weapon. She has moved to suppress the firearms that were seized from her and her boyfriend’s house following the issuance of a search warrant that was targeted not at her, but at her boyfriend. She contends that the search warrant violated her constitutional rights because there was an absence of probable cause to search the premises. Furthermore, there was a lack of sufficient evidence to believe that the woman’s boyfriend lived at the house and the inclusion in the warrant of a no-knock provision was unjustified.

A New York Criminal Lawyer said that in June 12, 2008, a police officer obtained a no-knock search warrant to search the premises of a house in New York, where the woman resides with her boyfriend. Specifically, the warrant was sought to permit a search for marijuana possession, firearms, and ammunition.

According to his warrant application, the police officer believed that the woman’s boyfriend, whom he had been trying to put on surveillance, was a marijuana dealer. The police officer obtained information from the gas and electric company that an individual identified as the woman’s boyfriend used the gas & electric utility services.

Published on: August 1, 2012

Defendant Moves to Suppress Physical Evidence

by Stephen Bilkis

The Facts:

An NYPD Officer, a nine-year veteran, investigates drug sales in lower Manhattan. He has made 500 narcotics-related arrests.

A New York Criminal Lawyer said that on 28 February 2010, the officer and his partner entered the New York City Housing Authority (NYCHA) building. They were there to conduct a vertical floor-by-floor patrol of the premises during which the officers search for loiterers, drug users, people consuming alcohol and trespassers. In housing projects, unlike police procedures applicable to private apartment buildings, officers may question anyone they encounter to determine whether they are on the premises lawfully. Sometimes, at his discretion, the officer requires that purported residents provide identification or a key. Such individuals must prove that they are not trespassers and persons claiming to be legitimate visitors must also supply corroboration.