New York

Published on: April 12, 2012

Defendant as a Defense to Domestic Violence Charges

by Stephen Bilkis

Three children were rescued by the ACS and the NYPD from their home. The two boys were aged 6 and 8 and the girl was aged 7. They were siblings. At the time that they were taken into custody, the children were all unbathed. Their hair was matted. The clothes they wore were torn and dirty. All over their arms and backs the children were bruised and scarred. The girl complained that she hurt in her vaginal area.

A New York Sex Crimes Lawyer said the mother and her three children were all brought to the emergency room. A pediatrician specially trained in treating children who are physically and sexually abused was called to see the children and recommend treatment if necessary.

During the diagnosis and treatment at the emergency room, the pediatrician began taking pictures of each child. He began with documenting the injuries of each child beginning with the head down to the feet. The doctor asked the child what the mark or bruise was. He then asked how the mark of bruise was sustained and who inflicted the bruise or mark. The doctor made copious notes documenting each wound, each bruise, each scar and all injuries.

Published on: April 12, 2012

Domestic Violence Defendant Contends use of Medical Records Inadmissable as Evidence

by Stephen Bilkis

A woman had a boyfriend since she was 14 years old until she reached the age of 20. They broke up and went their separate ways living separate lives. Years later, the boyfriend and the woman met up again. The boyfriend did not have a place to live. So for old time’s sake, the woman allowed her old boyfriend to stay in the spare bedroom in her apartment.

The old boyfriend paid rent to the woman. A New York Criminal Lawyer said the woman saved up the money he had been paying as rent and she planned to give it back to him when he has finally found a suitable place to live.

During the course of their living arrangement, the old boyfriend needed to break his five dollar bill into quarters so that he can do his laundry at the laundromat. He took five dollars in quarters from the coin purse of the woman and put in a five dollar bill. Later, he told the woman what he had done. The woman got upset because she suspected that her old boyfriend was going through her personal belongings.

Published on: April 12, 2012

Court Rules on Divorce Case Based on Domestic Violence

by Stephen Bilkis

The parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, the two youngest children, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university. It appears the youngest son is fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A New York Criminal Lawyer said the husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from 10 November 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The wife was granted a divorce, on consent, after proof, on 10 June 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator, was appointed by the court.

On 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. An NYC Criminal Lawyer said that the wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

Published on: April 12, 2012

Convicted Felon Passes Bar and Wants to Practice in NY

by Stephen Bilkis

What defines good moral character? How long after a youthful infraction, has good moral character been restored? Is it ever possible to know? What types of jobs are appropriate for someone who committed a felony, served their prison sentence, and completed college? How long does the smear of a felony conviction ruin a person’s name? All of these questions are valid ones. There are no set answers. So when a convicted violent felon is released from prison, completes college, and then law school, passes the New York State Bar Exam, the problem becomes one of moral character. The New York Bar rules state that no one will be admitted to the bar who is not of good moral character to practice law. So what establishes his moral character. Even though his crime was violent and drug related, is it enough that the offense occurred thirty years ago?

A New York Criminal Lawyer said the question at hand is best illustrated using a case that was heard in New York. A man was convicted 30 years ago of running a Quaalude sales ring. At first, he was making large sums of money and living a lavish lifestyle. But, as the police began to close in on his operation and his life was falling apart, he took a gun and convinced his girlfriend that he wanted to see her. Once he was with her, he took her captive and held her at gunpoint. He told her that he was going to commit suicide and she believed that he intended to kill her as well. In an attempt to save her own life, when he went to the bathroom, she jumped from the second story window to the ground below. She was severely injured, but survived. As she was running from the location, he fired several bullets at her. He did not hit her with any of them.

He was arrested for the ,offenses and went to Federal Prison first. He was also convicted at the state level and served his sentenced concurrently. Unbelievably, he was released after only seven years on a 12 ½ to 25 year sentence. He completed college and law school. He took the bar exam and passed it. He applied for acceptance to the bar in several states. In all but New York, he was accepted. After all, his crime was committed more than thirty years before he passed the bar. Since that one infraction, he has not committed any crimes and has led an exemplary life.

Published on: April 11, 2012

Court Prohibits Sex Offender From Seeing Wife as a Condition of Release

by Stephen Bilkis

In 1999, petitioner was arrested for rape in the first degree and thereafter convicted, upon his plea of guilty, of sexual abuse in the first degree. The victim, who was his girlfriend at the time and is a petitioner in this proceeding, later married petitioner while he was serving a subsequent prison term in connection with a 2004 conviction of burglary in the second degree. A New York Criminal Lawyer said that the petitioners participated in Family Reunion Program visits three times between October 2006 and October 2007.

In November 2008, petitioner appeared before the Board of Parole, which issued a decision setting the conditions for his anticipated release from prison. In light of the sex crimes committed by petitioner against his wife, as well as evidence of a history of domestic violence between the two, the Board imposed several conditions, including the requirement that petitioner refrain from “associating in any way or communicating by any means with his wife without the permission of” his parole officer.

Petitioners requested the removal of the aforesaid special condition with the Division of Parole but were, thereafter, denied. Hence, petitioners commenced the instant proceeding challenging the condition.

Published on: April 11, 2012

Court Decides if Defendant is Guilty of Criminal Mischief

by Stephen Bilkis

The accused defendant is charged with assaulting his former girlfriend in the presence of their three children. The trial testimony established that during the assault, the victim attempted to call 911 for police assistance (using a land-line telephone) and she made a very brief initial contact, but was then immediately thwarted by defendant, who bound the victim’s wrists with the telephone cord and then slammed the telephone on the victim’s hands/fingers as she tried again to dial 911. At some point, however, during the incident the abused victim was able to complete a 911 call using the same telephone.

A New York Criminal Lawyer said the jury acquitted defendant of assault in the third degree but convicted him of attempted assault in the third degree, three counts of endangering the welfare of a child and criminal mischief in the fourth degree; the last one is the subject of defendant’s instant motion.

The primordial issue in is whether or not the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief in the fourth degree.

Published on: April 11, 2012

Defendant Charged with Marijuana Possession

by Stephen Bilkis

Recently, a good deal of attention has been given to the legalization or decriminalization of marijuana. Some states have legalized medicinal marijuana use. Some states have decriminalized the private use or possession of less than one ounce. In New York City, it is still illegal to use, possess, or purchase marijuana. While drug possession is still a crime, other less obvious issues surrounding marijuana are being played out in courts all over the United States.

A New York Criminal Lawyer says that people believe that is they are good parents and take good care of their children that no one can take them away. What they do not realize is that sometimes, even good parents are scrutinized by a judicial system that has the power to remove their children from them. This is a terrifying situation. No one wants to believe that the state would come in and take away their children. That is something that happens to other people, bad people, not to the average parent. That image of people who have to fight the system to keep their children is not accurate. Sometimes, there are people who are lousy parents. People can be cruel and people can be clueless when it comes to the welfare of their children. The laws of the state of New York clearly detail that if a parent misuses alcohol or drugs to the extent that it places their children in in actual or imminent danger of impairment to the physical, mental, or emotional condition of the child. The Family Court Act § 1046 also states that there must be a showing of a threshold of serious and ongoing substance abuse. The object of this law is to protect children from serious harm or potential harm. It was not designed to punish parents for behaving in an undesirable manner.

It is possible, that a parent who uses marijuana only once can have their children removed. A New York Criminal Lawyer said it seems unconscionable that the state would take away a person’s children for testing positive for marijuana on one occasion, but it has happened. In fact, one such case was decided in Kings County Family Court in Kings County, New York on January 26, 2012. The incident surrounded the petition from the Administration for Children’s Services to find a mother guilty of child neglect because on the date of her child’s birth, she and the child tested positive for marijuana. The toxicology report was not specific as to when the marijuana had been consumed, if the mother had endangered her child by consuming it, or if the mother had even become intoxicated at the time that the drug entered her body. Interestingly enough, this case brings up the question of what would happen if the drug had entered the mother’s body through second hand smoke. For instance, the mother was passing through a closed in area where other people were smoking marijuana. It could conceivably enter her body in that fashion. She may or may not feel any effects of the drug, but she would probably still test positive on a toxicology report for the drug. That question will have to be answered in a different court case.

Published on: April 11, 2012

Court Rules on Divorce Admist Domestic Violence Allegations

by Stephen Bilkis

Plaintiff (husband) and defendant (wife) were married on 17 July 1997. The parties have two (2) infant children. The above entitled divorce action was filed by plaintiff on 30 June 2005.

Both plaintiff and defendant blame each other for their failed marriage. Both plaintiff and defendant each allege that the other was verbally, emotionally, and physically abusive during the course of the marriage. During the pendency of the herein matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the infant children was changed by the Court twice. The defendant has had temporary physical custody of the infant children since 15 April 2008.

A New York Criminal Lawyer said that the Court conducted a non-jury trial with respect to the matrimonial action on March and April 2010. Plaintiff called one witness to testify at the trial while defendant called four witnesses. At the request of the Attorney for the Children, the herein Court conducted in-camera interviews of the two (2) infant children.

Published on: April 10, 2012

Court Considers Revocation of Gun License in Domestic Violence Case

by Stephen Bilkis

On June 29, 2006, a man was involved in a domestic dispute with his wife. His wife told the New York Police Officers that during this dispute, her husband punched and kicked her and that she punched and kicked him. Pursuant to New York Law, the officers discovered that the husband had a residence permit for a target pistol. When they collected the firearms in the home, they discovered that the husband was also in possession of two long guns, rifles, for which he did not have a permit. The husband’s pistol license was suspended pending an investigation into the matter.

A New York Criminal Lawyer said that in June 30, 2006, a Temporary Order of Protection was issued in Kings county New York for the wife against the husband and for the husband against the wife. These protection orders were issued following several additional domestic disputes involving this couple. On September 19, 2006, after a heated verbal dispute with his wife in a public restaurant, the husband was arrested. The arrest was eventually voided. However the fact that he had a history of domestic violence and had been in possession of two long guns illegally in his home, his license to have any guns was revoked.

On December 30, 2006, the man requested an administrative hearing in order to repeal the revocation of his gun permit. His argument stemmed from his assertion that his wife had caused the domestic violence incidents and that he had never been notified of a renewal date for his long guns. The husband stated that he had not been aware that he was supposed to notify the police department of any arrests or orders of protection as they related to his possession of guns.

Published on: April 10, 2012

Court Decides Jurisdiction Issue Where Domestic Violence Incident Occured Out of State

by Stephen Bilkis

Often, questions of law arise in family violence situations that are unique because they are involving a domestic situation that is volatile and fluid in nature. Families are rarely stationary. The question of jurisdiction and venue become relevant when a family primarily resides in one state, but encounters a violent episode while out of state visiting relatives or on vacation. The law is expected to draw a line that determines who is responsible for protecting the victim or victims as the case may be. The law in New York has a long history of struggling with this concept.

In 1962, New York had a family court law that stated that the victim of domestic violence would have to have their case heard in the family court. This decision was designed to decriminalize family violence. However, the effect that it had was far from the one intended. Rather than providing additional options for handling abuse and domestic violence, it created a situation where criminals could elude criminal prosecution. In 1977, the state revised this law. This revision stated that the Family Court and the criminal court would have concurrent jurisdiction. In 1978, the law was revised further to include the three day rule. It stated that the victim had three days following an incident to decide if they wanted to pursue the case in either criminal court or family court. A New York Criminal Lawyer said the complainant’s choice of either criminal or family court became final after the three days. These amendments were an attempt to provide more effective relief to victims of domestic violence. The idea was that they would provide more remedies to the victims of domestic assaults. In 1994, the state legislature created the 1994 Act. It eliminated the three-day choice of venue. The 1994 Act allowed true concurrent jurisdiction to exist. There was no longer the chance that an offender could escape criminal punishment if the victim chose to have the case handled by family court. Since it is a true concurrent jurisdictional provision, a victim can proceed in both criminal and civil court at the same time.

In 1999, amended the Family Court Act 812 and the Criminal Procedure Law § 530.11 to enable a complainant to proceed in family court and have the criminal court continue to hear the criminal offense that was involved. This legal amendment was created to clarify the intent of the 1994 Act. It is generally assumed that the legislative history of domestic violence laws in New York demonstrate a desire to expand the jurisdiction of Family Court and strengthen the remedies available to the victims.