New York Criminal Lawyer Blog

Published on: August 8, 2012

Defendant Contends Identification Procedures by Police Incorrect

by Stephen Bilkis

Stalking is a crime that affects everyone who is around the intended victim of the crime. Stalking is a crime that causes a pervasive level of fear that is intolerable for most people. However, a New York Criminal Lawyer said people who have never seen this crime often have a difficult time understanding that the stalker is so focused on their victim that they often do not consider the penalty involved in their actions. The drive to possess that other person is so strong that they will often do anything within their power to have that person and to prevent anyone else from having that person.

In 2008, a woman was being stalked by her ex-boyfriend in New York. She had moved on with her life and was seeing a co-worker romantically. One day while they were at work, her ex-boyfriend showed up. A Staten Island Criminal Lawyer said he began insisting that the woman talk to him. The new boyfriend approached the pair and assessed the situation. He realized that the situation was about to get violent and had the man removed from the business. He thought that the incident was over, but the following day while they were driving to work, the ex-boyfriend drove up beside them on the roadway and brandished a knife in their direction. They refused to pull over and began driving toward the local police station. On their way to the police station, the stalker rammed their mini-van with his car.

Coincidentally, a patrol car was positioned at the street corner just up from the location of the assault with the motor vehicle. The officers heard the impact that they recognized in their experience to be the result of a motor vehicle accident. They immediately turned their patrol car onto the roadway in the direction of the impact sound. When they were on the road, they observed the mini-van and the couple inside the mini-van. The couple motioned to the officers that the car that was behind them needed to be stopped. The officers observed the stalker driving at a high rate of speed in reverse. He changed his direction and began to take evasive action. A New York Sex Crimes Lawyer said the officers turned on their emergency lights and siren to indicate to the driver of the vehicle that he needed to pull over.

Published on: August 8, 2012

Defendant Claims Double Jeopardy

by Stephen Bilkis

This involves an application for stay pending appeal to the United States Court of Appeals for the First Circuit from an order of the United States District Court for the District of Massachusetts denying applicant’s request for a temporary restraining order. The Court of Appeals likewise denied the petition.

A New York DWI Lawyer said on July 2, 1979, the applicant, allegedly led local police on a high-speed automobile chase through Norfolk and Suffolk Counties. He was finally arrested in Suffolk County and charged with various offenses by the District Attorneys in both counties.

In Norfolk County (Quincy District Court), he was charged with driving so as to endanger, failure to stop for a police officer, failure to slow down for an intersection, and driving at an unreasonable speed. In Suffolk County (West Roxbury District Court), he was also charged with driving so as to endanger and failure to stop for a police officer, and in addition was charged with assault and battery with a motor vehicle.

Published on: August 8, 2012

Court Discusses Prima Facie Evidence Provision

by Stephen Bilkis

Respondents committed criminal acts of burning a cross and properties during a gathering. They were convicted of violating Virginia’s cross-burning statute, Sec. 18.2-423.

The statute provides:

“It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Published on: August 8, 2012

Defendant Challenges Indictment

by Stephen Bilkis

This is a case where the court affirmed that custody of the appellant to a representative of the commonwealth of Massachusetts, pursuant to a warrant issued by the Governor of New Jersey under section 5278, is valid and binding.

Appellant committed a robbery in Massachusetts on or about August 18, 1916, and having, by his own admission, been personally present there and in communication with the alleged co-conspirator at or about that time, and being afterwards found in the state of New Jersey. A New York DWI Lawyer said a hearing for habeas corpus was made to demand for appellant’s apprehension and extradition to Massachusetts.

A copy of the indictment states:

Published on: August 8, 2012

Court Discusses Fourth Article of Constitution

by Stephen Bilkis

This is an action of trespass brought by a complainant man against another man and others for breaking and entering the complainant’s house. The opponents justify upon the ground that large numbers of men were assembled in different parts of the state for the purpose of overthrowing the government by military force and were actually levying war upon the state. Moreover, New York Drug Crime Lawyer said that in order to defend itself from the said rebellion, the state was declared by competent authority to be under martial law. In that event the complainant was engaged in the rebellion and that the opponents being in the military service, by command of their superior officer, broke and entered the house and searched the rooms of the complainant, who was supposed to be there concealed, in order to arrest him, doing as little damage as possible. The complainant replied that the trespass was committed by the opponents with their own wrong. The parties then proceeded to trial.

The evidence offered by the complainant and the opponents stated at large in the record and the questions was decided by the circuit court. The evidence revealed that the opponents, in breaking into the complainant’s house and chasing to arrest him were acted under the authority of the government which was established and which is usually called the charter government.

The complainant contends that the charter government was displaced and ceased to have any lawful power, after the organization, of the government which he supported, and although that government never was able to exercise any authority in the state, nor to command obedience to its laws or to its officers, but he still insists that it was the lawful and established government, upon the ground that it was approved by a large majority of the male people of the state with the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the state.

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 7, 2012

Defendant Charged with Third Degree Rape

by Stephen Bilkis

Incidents of rape and sexual assault cases involve many different laws. Each case is reviewed in relationship to how it addresses each element of each law. A New York Criminal Lawyer said the most appropriate law or multiple laws are then charged by the prosecution. In some case, a charge is reduced to a lesser included offense because the jury or prosecutor decides that the lesser included offense if more appropriate to the actions of the charged offender. One case of this type occurred in 2008.

On May 21, 2008, a man was charged with rape. He was convicted after a jury trial on May 28, 2008 of third-degree rape, which is detailed under New York Penal Law § 130.25(3). This charge was determined by how the victim expressed her lack of consent to the sexual assault. This victim apparently never stated the actual term “no,” but rather testified that she had been crying the entire time and stating that she just wanted to go home. The court concluded that any reasonable person observing this situation would conclude that the victim was not consenting to the act. The defense maintained that he did not consider her actions to be a refusal because she never actually stated that she did not want to have sex with him. The court evaluated the totality of the evidence which included the fact that this was his second or third offense of sexual assault.

They also reviewed the fact that the offender forced the woman into his apartment against her will and used threats of physical injury to prevent her from leaving. The court determined that when viewed in their entirety, the circumstances surrounding this assault clearly contained all of the necessary elements to be considered a rape. Because of this, the offender’s request to have his conviction overturned was denied.

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 6, 2012

Court Determines Confession is not Valid

by Stephen Bilkis

New York statutory law requires that certain crimes be convicted only if there is corroboration that the event took place. If there is no corroboration, then the defendant cannot be found guilty. However, the statutory law does not include this requirement for corroboration if the crime that has been committed is a misdemeanor. In 2011, a defendant challenged his conviction on misdemeanor driving while under the influence, because he claims that the admission of the evidence does not provide corroboration of the crime by the admission of additional evidence.

The prosecution claims that on the night that he was arrested, he was not guilty of any illegal action. A New York Drug Possession Lawyer said he contends that an officer approached him while he was standing next to a car. He was not physically in control of the vehicle at the time that he was approached. The police officer contends that he observed an obviously intoxicated man standing next to a vehicle. He stated that the defendant had watery eyes, slurred speech, was unsteady on his feet and had a strong odor of an alcoholic beverage on or about his clothing. He asked the defendant if he had been driving the vehicle and the defendant told the officer that he had. The officer arrested him for driving while under the influence of alcohol and transported him to the location of the intoximeter breathalyzer machine. The defendant was requested to blow his breath into the machine. The machine reported that the defendant had a blood alcohol content of .141 which is considered to be over the legal limit.

The defendant stated that because there was no corroborating evidence that he had been driving the car except for his confession, that the confession is not valid. The Supreme Court evaluated the problem. They observed that although the legislature intentionally put a statement into action in regards to felony confessions, they did not list a corroborating evidence clause in misdemeanor cases. A New York Drug Crime Lawyer said the court is certain that the absence of this corroborating evidence clause was not merely an oversight. Since, the legislature saw fit to include the corroborating evidence clause in the felony statute, it stands to reason that the failure to include this clause in the misdemeanor segment of the statute is clearly the intent of the statute. If the legislature had intended that corroborating evidence is necessary if a defendant confesses to a misdemeanor offense, they would have specifically spelled out that qualification in the law. A Suffolk Drug Possession Lawyer said because it is not spelled out in the law, the court does not find that it would be appropriate to assume an intent that has not been demonstrated.

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.