New York Criminal Lawyer Blog

Published on: January 26, 2013

Court Weighs Plaintiffs Injuries Against Applicable Insurance Law

by Stephen Bilkis

A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.

A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.

A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant’s vehicle without crossing over the double yellow lines into the complainant’s lane and instead struck the complainant’s stopped vehicle while both vehicles were pretty much right on the line.

Published on: January 25, 2013

Plaintiff Contends Gross Negligence by Newspaper Reporter

by Stephen Bilkis

The case is about a libel suit filed by the Turkish national against the publisher, together with its managing director and other investigative reporters, for the republication into a book pertaining to several newspaper articles regarding worldwide narcotic trade covering several continents. A New York Drug Crime Lawyer said the plaintiff claimed that such articles were allegedly false and defamatory where he was named as a specialist drug criminal smuggler in his country. He further averred that the printed allegations against him were untrue, which caused damaged to his reputation as a legitimate businessman and he was gravely injured by the wrongful accusations written about him.

In 1973, a series of newspaper articles about the international drug crime of heroin possession and smuggling trade were published that merited public recognition and a prize from a recognized award-giving body. A New York Drug Possession Lawyer said the newspaper articles were then converted into a book through the efforts of the defendant publishing company.

The action filed against the newspaper company by the plaintiff was dismissed by the court because the cause of action had already prescribed. No appeal was made by the Turkish national. But the libel case filed by the plaintiff against the publishing firm was not dismissed since it was not barred by the statute of limitations.

Published on: January 25, 2013

Defendant Says Ineffective Counsel Resulted in Unjust Conviction

by Stephen Bilkis

An appeal was filed by the state for the denial of the court of its motion for summary judgment to dismiss the claim of the claimant who maintained an action for wrongful conviction. A New York Sex Crimes Lawyer said the court reviewed the records of the case and found insufficient evidence that would support the claimant’s allegation of unjust conviction for the charge of attempted rape in the first degree. Although it was noted by the court that the counsel of the accused had difficulty communicating with him, such concern did not result to his lawyer’s unwillingness and inability to represent and forward his interest during the trial. The ground of ineffective assistance of an attorney is not proper for a claim of unjust conviction.

Based on the law applied, the grant of the claim for unjust conviction against the state, the claimant must establish that the “the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor.” The indictment of the respondent must prove before the court of claims that there was coercion or fraud used by the court to obtain hiss plea of guilty to the crime charged against him. A New York Sex Crimes Lawyer said there must be clear showing in the statement of facts that would establish his innocence or the conviction was caused by his own conduct alone, otherwise, his claim must be dismissed.

The claimant presented a document evidencing that he entered a plea of guilty for a lower offense of attempted rape instead of charging him with graver sex crimes like sodomy and sexual abuse. But, later on, the felon withdraw his plea of guilty on account that he made it involuntarily and because of the colossal pressure and coercion placed on him by his legal aid counsel. The court found the allegations of the claimant to be distorted and self-serving as revealed by the records of the case.

Published on: January 25, 2013

Petit larceny

by Stephen Bilkis

In a court case, a man was charged with two counts of grand larceny on an allege breaking and entering with intent to commit a felony. Consequently, he was found guilty of the first count and also guilty of petit larceny as a lesser offense of the second count.

A New York Criminal Lawyer said the man contends that the evidence was insufficient to permit the jury to conclude that he had the necessary intent to commit grand larceny when he broke and entered the dwelling. The evidence established that the man was apprehended shortly after he had left the premises, at which time he had in his possession of the color television set, a camera, and a portable radio, all of which had been stolen from the dwelling. Yet, the state offered no evidence to establish that the property had a value of $100.00 or more at the time of the stealing. Beyond being apprehended with the stolen property, there was no other evidence or circumstances bearing on the question of the man’s intent. In such cases it has been said that the best evidence of his intent is his act of stealing.

The court concluded on the basis of previous case and stated that the evidence was insufficient to sustain the conviction of the crime of breaking and entering with intent to commit a felony. The court further asserts that the decision of guilt should be entered as to the lesser included crime.

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: January 24, 2013

Court Decides of Act of Murder was an Act of Terrorism

by Stephen Bilkis

The appeal was filed by the defendant for his conviction of the penal offenses of manslaughter that is considered a crime of terrorism, attempted murder, gun crime and conspiracy.

A law was enacted by the Congress that penalized acts of terrorism due to the terrorist attacks that happened in 2001 enumerating specific crimes considered as acts of terrorism.

On August 18, 2002, members of two rival gangs had a fight that occurred after a party was held in Bronx. A New York Criminal Lawyer said that during the fighting incident, several gun shots were fired that caused the death of a 10-year-old girl and the paralysis of a young guy. The accused was one of the members of a Mexican-American gang and was held responsible for the shootings. The prosecution claimed that said act of defendant was considered a felony of terrorism on the ground that he intended to cause intimidation or coercion towards civilian population, namely, gang members of Mexican-American descents residing in the area of Bronx.

Published on: January 24, 2013

In Consecutive Sentences it Depends on Whether the Acts Were Committed with the Requisite Intent

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Published on: January 24, 2013

Court Rules Upon Third Petit Theft Conviction, Offense is a Felony

by Stephen Bilkis

In a court proceeding, a man filed an appeal for his conviction and sentence for felony petit theft. He asserts that the subsection of the statue convicting him does not permit consideration of convictions for petit larceny.

A New York Criminal Lawyer said that based on records, petit theft is normally a misdemeanor and the law specifically provides that upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree. Therefore, in order to be sentenced under the felony provisions, the offender must have been convicted twice previously with a petit theft (petit larceny) case. Yet, the trial court indicated that they considered two previous convictions of the man, one for petit larceny and one for attempted petit larceny, as the basis for the man’s enhanced sentence. Since the statute does not permit consideration of the attempted petit larceny conviction, the trial court erred in sentencing the man.

Consequently, the court finds no distinction between the two statutes for the purpose of sentencing. As a result, the court decided to reverse the sentence and remand the cause for resentencing.

Published on: January 24, 2013

Court Discusses Act of Depraved Indifference in Murder Trial

by Stephen Bilkis

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway. At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words. A Bronx DWI Lawyer said that, the defendant remained at the party for 1 1/2 to 2 hours before leaving in his pickup truck. Despite having previously received offers to sleep over or utilize a designated driver rather than drive after drinking, the defendant chose to get into his pickup truck and drive while intoxicated.

A Bronx DWI Lawyer said that, the defendant was driving the wrong way in the southbound lanes of the Meadowbrook State Parkway, a limousine was proceeding south in the left southbound lane of the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directly towards it just north of the Babylon Turnpike overpass. The limousine was carrying a family, consisting of their two daughters, seven-year-old and five-year-old, and the parents, back home from a wedding. The pickup truck collided head-on with the limousine, apparently having tracked the limousine’s movement, crushing and killing the other passenger, decapitating the seven-year-old passenger in the limousine, and causing severe, and, in some instances, life-threatening, injuries to the remaining passengers in the limousine.

A Bronx Drunk Driving Lawyer said that, the defendant was placed under arrest at the scene, and was later informed of his arrest by the Investigator of the New York State Police. Upon being so advised, the defendant told the police that from the time he had moved to New York from Arkansas the previous October, “everything was going wrong” and “nothing he did was ever enough.” The defendant recounted to the police that he had argued with his ex-girlfriend over the phone, had financial problems, had recently lost his grandmother with whom he had been close, and was very upset, depressed, and in a “self-destructive mode.”

Published on: January 23, 2013

Defendant Claims Insufficiency of Evidence in Heroin Possession Case

by Stephen Bilkis

Defendant was charged with a drug crime, particularly, for possession of heroin and filed an appeal before the court for his conviction. Appellant averred that there was insufficiency of evidence, admissibility of the testimony pertaining to other drugs than those of which he was indicted and trial judge’s charge to the jury.

A New York Criminal Lawyer said the facts of the case were, the postal inspectors found a package from Thailand containing 13 grams of heroin addressed to the resident of the accused. The postal authorities managed an organized delivery of the package to the defendant’s residence. Upon receipt of the package, the officials waited for about twenty to thirty minutes before they entered the apartment of the appellant equipped with a valid search warrant. They saw the drug felon inside his bedroom with 6.5 grams of heroin on top of a table near him. The police detectives made further search within the premises and found thirty packets of heroin, also known as “dime bags,” and butts of marijuana cigarettes inside a drawer of a dresser at another bedroom at the opposite side of the defendant’s room.

The theory of the government was that the accused intended to distribute the heroin upon discovery of the “dime bags” in his apartment. It was a common practice that heroin found in such kind of packages are fitting for the drug crime of street distribution, which is an indication that the appellant was a drug dealer of heroin and the purpose of the delivery of the heroin package was for its distribution. A New York Drug Crime Lawyer said the accused had a different theory, which he presented before the jury. He contended that the “dime bags” did not contain any heroin from the package and that the entire 13-gram heroin he received were those that was found on top of the table in front of him that was found by the police officers. He alleged that when he heard the law enforcers coming inside his room, he had thrown some of the heroin into a corner of a closet.