Sex Crimes

Published on: April 13, 2012

Interesting Case Shows the Evolution of Divorce Law

by Stephen Bilkis

It is amazing just how much domestic law and divorce law has changed over the past 50 years. Prior to 1967, a married couple who wanted to get divorced could only obtain a divorce on the grounds of adultery. If neither spouse committed adultery, the courts of the state would not allow the couple to divorce. In 1967, New York legislature added the additional grounds for divorce under mental cruelty. Section 170 of the Domestic Relations law was amended to state that a divorce may be maintained by a husband or a wife if they were dissolving the marriage on the grounds that they were suffering cruel and inhuman treatment at the hands of the other spouse. A New York Criminal Lawyer said this treatment would have to be so egregious that the conduct endangered the physical or mental well-being of the abused party and made it unsafe or improper for the couple to live together. These were also the grounds for any kind of legal separation.

In 1970, a case came before the courts of New York that dealt with a petition for a divorce. The couple was married in New York in 1957. The husband was 28 years old and the wife was 37. She had a 15-year-old son by a previous marriage. The couple had a daughter, who was ten years old at the time of the trial. The pair had a volatile relationship by any standards with four separations and three reconciliations between 1961 and 1967. Throughout their relationship, they only testified to one act of domestic violence. This incident was the cause for the first separation. In 1961, the husband was in the kitchen of the home with some friends. The daughter began to cry, and the husband told her to be quiet. The wife came in to the kitchen and struck him. She then told him to get out of the house. The husband filed for divorce in 1970 claiming mental anguish. The courts determined that even under the changes in law in 1967 that would allow a divorce for cruel and inhuman treatment, the arguments that this pair had were not serious enough to meet the minimal qualifications to get a divorce. The court stated that the responsibility for managing their differences was not the responsibility of the courts.

Rather, the court pointed out that it was the responsibility of the two married people to learn to get along with each other without relying on the courts to step in and solve their problems. The exact term was that the courts of justice have no cure for the ills that these people bring upon themselves. They must minister unto themselves to solve their differences. This is in stark contrast to the customs of today. Now a couple can divorce for any reason. There are no such stipulations that must be met in order for a divorce to be petitioned. A couple may still obtain a divorce under this type of situation, even if the other party does not want to get a divorce. This change in the law was enacted to protect the victims of domestic violence. An uncontested divorce action is possible without any kind of violence, adultery, or other misdeed.

Published on: April 13, 2012

Court Decides Jurisdiction in Sex Crimes Case

by Stephen Bilkis

Court cases are rarely tried strictly on the facts of the case. In almost every case that comes to trial, the issues that cause a mistrial or cause a conviction usually come down to points of legality. Because trials are investigations into the application of statute upon a set of facts or circumstances, it is critical that a defendant is represented by an attorney. In the case of a domestic violence offense, it is even more important. Domestic violence laws change almost daily. A New York Sex Crimes Lawyer said it is imperative to the proper defense of a case that the legality of the statutes that are applied are reviewed and questioned.

In one particular case that was heard in the Supreme court, appellate Division, Second Department, New York, the justices were called upon to review a domestic violence case in which the defendant was charged with misdemeanor aggravated harassment in the second degree. He was charged with three counts. The case was initiated in Criminal Court, Kings County. By an order dated January 31, 2007, the action was removed from Criminal Court and transferred to the Domestic Violence Part of the Supreme Court in Kings County. A New York Sex Crimes Lawyer said the misdemeanor complaint was converted to an information dated February 7, 2007. A bench trial convicted the defendant of three counts of attempted aggravated harassment in the second degree.

The defendant appealed his conviction. He claimed that the Supreme Court did not have jurisdiction over his case because he was never indicted by a grand jury. He argued that minus a formal indictment, there was no superior court information. He relied on CPL 210.05 to support his contentions.

Published on: April 13, 2012

Court Hears Divorce Case Based on Serious Domestic Violence Allegations

by Stephen Bilkis

The parties were both born in Albania. Plaintiff first moved to the United States on 14 December 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. Plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of the herein divorce action, only returning to Albania for brief vacations over the years (approximately the first six years of the marriage). Plaintiff is 48 years of age and defendant is 36 years of age.

A New York Criminal Lawyer said the court is called upon to determine custody of five (5) minor children and whether defendant is entitled to a five (5) year stay away order of protection against plaintiff. The court has bifurcated the issues of custody, visitation and order of protection.

The matter was tried on an expedited basis given the seriousness of the allegations. Defendant-wife (hereinafter referred to as defendant) against plaintiff-husband (hereinafter referred to as plaintiff) was issued a temporary order of protection in Family Court, Kings County on 4 December 2007, the Family Court petitions were consolidated into the instant divorce action by order of this court dated 2 January 2008. The court has bifurcated the issues of custody and visitation and a final order of protection.

Published on: April 13, 2012

Court Discusses Integrated Domestic Violence Division

by Stephen Bilkis

In January 2004, the Chief Judge of a State promulgated the establishment of Integrated Domestic Violence (IDV) parts in Supreme Court. The rule directed that the specialized part be devoted to hearing and determination, in a single forum, of cases that are simultaneously pending in the courts if one of them is a domestic violence case in a criminal court and the other is a case in Supreme or Family Court that involves a party or witness in the domestic violence case; or if one is a case in criminal court, Family Court or Supreme Court and the other is a case in any other of these courts having a common party or in which a disposition may affect the interests of a party in the first case.

A New York Criminal Lawyer said the intent of the IDV directive was to allow matters involving a single family to be resolved in one court by the same jurist, thereby eliminating fragmented judicial adjudication and relieving the parties of the burden and costs of having multiple actions pending in different courts. In addition to streamlining the litigation process for litigants and providing better access to community services for families, the new IDV parts also increased judicial efficiency by avoiding duplication of effort by multiple courts, reducing scheduling conflicts and avoiding inconsistent outcomes.

Soon after the Chief Judge issued part of the IDV, the Chief Administrative Judge implemented the new rule by adopting part of the Rules of the Chief Administrator of the Courts, which defined those IDV-eligible cases subject to transfer to Supreme Court. A New York Criminal Lawyer said that under the rules, cases that meet the criteria are sent to an IDV part where, within five days, the cases are screened to determine whether transfer will promote the administration of justice. If so, a formal transfer order is issued and the case is retained by the IDV part for disposition. If not, the case is returned to the originating court.

Published on: April 12, 2012

Defendant Contends he is Eligible for Judicial Diversion Program

by Stephen Bilkis

A man was arrested during the execution of a search warrant in his reported residence. The search warrant was based in part upon an undercover police officer’s sworn allegations that on 13 separate occasions the man, while acting in concert with co-accused sold cocaine and heroin. A New York Criminal Lawyer said the accusation charges the man and his companion, with felony conspiracy for cocaine and heroin and conspiring to commit Criminal Sale of Controlled Substance.

The Criminal Procedure Law defines those accused persons who are eligible for Judicial Diversion as ones charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses as long as they do not have a disqualifying condition listed in the law. If the District Attorney consents, a non-eligible accused will be deemed eligible. The list of eligible crimes is specific and does not include every nonviolent felony.

Robbery in the Third Degree and felony DWI, both nonviolent offenses, are not specified eligible crimes. Disqualifying conditions include convictions within the past ten years for felony or a violent felony; those who have a prior second violent felony or persistent felony offender adjudication; and those who are presently charged with certain violent felony offenses. Prior adjudications for disqualifying crimes may also be considered by the court in determining eligibility.

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.