New York Criminal Lawyer Blog

Published on: July 22, 2012

Court Discusses Recidivism

by Stephen Bilkis

There are statutory laws in New York that provide for the prosecution of felony offenders. The New York Legislature designed these laws to provide stiffer penalties to offenders who have been charged with felony crimes in the past. A felony crime is any crime that the courts have deemed more serious. They are generally defined as any crime in which the penalty is more than one year of incarceration or more than a $2,000.00 fine. Felony theft offenses are offenses that involve high dollar theft. In most states, that is defined as any amount greater than $500.00. However, some states make it a felony to steal any amount over $250.00. If a person enters an automobile to steal something, it does not matter what the value is, or if the car is open or locked, the offense is a felony. Entering the building or dwelling house of another is also a felony. Stealing a car or joyriding in a car is a felony. Some assaults and batteries are considered felonies as well. Rape, sodomy, forcible sodomy, child molestation, child abuse, kidnapping, and numerous other offenses are also felonies.

The New York legislature wanted to send a message to anyone who was a repeat offender of felony crimes that each time the re-offend, or recidivate, the punishment for their crimes will also increase. Because, predicate felony convictions can make such a difference in the punishment that an offender receives, it is in an offender’s best interest to ensure that the prosecution is equipped with the correct information about their predicate offenses. Also, because each state determines felony convictions differently, it is possible that a person who has been charged with a felony in a state other than New York, may have that felony conviction used to determine that he is a felony recidivist.

The question of law arises when the felony crime that the offender was convicted of in another state, would not be considered a felony in the state of New York. One such offender was convicted of a predicate felony in the State of Maryland. He was later convicted of a felony in the state of New York. The prosecution determined that his sentence should be established under the second felony offender as it is written in Penal Law § 70.06(1)(b)(i). However, the offense that was a felony in the State of Maryland, had it been committed in the state of New York, would not have been considered a felony. The prosecution considered that the offense should be considered a predicate felony for the purposes of sentencing this offender. The offender disagrees. He contends that his conviction in Maryland, would not have been a felony if he had committed it in New York. Therefore, in New York, he has not committed a predicate felony offense.

Published on: July 22, 2012

Court Discusses Jury Selection in Possible Death Penalty Case

by Stephen Bilkis

Crime occurs in every type of neighborhood. Domestic violence is not located in some other neighborhood, it is located in every neighborhood in the United States. When domestic violence advances to homicidal violence, it is especially tragic. A New York Sex Crimes Lawyer said that family violence effects more than the two adults who participate in the fighting, it also affects the children of the adults. In some cases, the primary aggressor will batter the victim in front of the children. The effect on the mental stability of children of this type of violence is obvious. No child should have to see one of their parents murdered by the other parent, but it happens.

In a nice middle class home in Spafford, Onondage County, New York on a spring day in April of 1998 a couple determined that they could no longer remain married. Pursuant to New York divorce law, they filed a separation agreement and proceeded to wait the allotted time before they could file for the divorce. They decided that the divorce would be amicable and that they would continue to live in their home together but separately until they could file for the divorce. However, on April 21st, the couple engaged in a violent argument with their young children at home. A New York Sex Crimes Lawyer said the husband and father grabbed a baseball bat and bludgeoned his wife about the head with it. During the assault, the woman cried out for her children to call the police before he killed her. The children were frozen in fear.

Following the assault, the husband realized what he had done. The wife was not dead and was moaning incoherently and bleeding profusely on the floor of the kitchen. The husband contacted his parents and they came over to help him. After his parents arrived, they summoned his brother who called a family friend who was a doctor to come with him to the house. When they arrived, they contacted the police. Upon arriving on the scene, the police found the wife still on the kitchen floor, barely alive. She had the imprint of the baseball bat in her left temple area. The husband had superficial cuts on his person that he claimed were the result of the wife attacking him with a knife from the kitchen. He stated that he had struck her in the head with the bat in self -defense.

Published on: July 22, 2012

Defendant Claims Identification Process was Tainted

by Stephen Bilkis

Early morning, Charles T. Williamson took his girlfriend, Inez Goodwin, to work at where Mr. Williamson also used to work. After Ms. Goodwin entered the building, Mr. Williamson saw her speaking with defendant, Delroy Bulgin. Mr. Williamson watched this conversation for about five minutes from less than 10 feet away and then he approached them to find out what was going on. Mr. Williamson also observed that Ms. Goodwin looked uncomfortable, as though she did not want to have any problems with defendant at her workplace. A New York Drug Crime Lawyer said that Mr. Williamson told defendant that he did not belong there and asked him to leave. Defendant kept saying that he just wanted five minutes to talk with Ms. Goodwin, but Mr. Williamson replied that there was nothing to talk about and he should leave.

The next day, at about 5:30 a.m., a Bronx Criminal Lawyer said that, defendant’s car crashed into Mr. Williamson and Ms. Goodwin’s minivan on Noble Avenue in the Bronx. Police Officer Shawn O’Dwyer and his partner, were in uniform in a marked police car on patrol in the 43rd Precinct at that time. As the officers were traveling westbound on Story Avenue, approaching the intersection of Noble Avenue, Officer O’Dwyer heard a loud bang to his left, which he thought might have been a car accident. He saw Mr. Williamson and Ms. Goodwin in a minivan at the corner of Story and Noble Avenues. Mr. Williamson flagged the officers down, leaning out of his window and pointing behind him, indicating to Officer O’Dwyer that something was going on.

Officer O’Dwyer drove southbound on Noble Avenue and saw a gray or silver Acura about one-half block away, being driven by defendant, backing up. Defendant’s car was the only car that Officer O’Dwyer saw driving on Noble Avenue at that time. Officer O’Dwyer immediately turned his lights on in order to stop defendant’s car and investigate what he had heard, but defendant put the car in drive and drove past the police car. Officer O’Dwyer then made a U-turn and followed defendant’s car northbound on Noble Avenue, approximately 15 feet behind the Acura. At the intersection of Noble and Story Avenues, defendant failed to stop at the stop sign and turned right onto Story Avenue. A New York Drug Possession Lawyer said the defendant proceeded eastbound on Story Avenue to the intersection of Story and Rosedale Avenues, where he failed to stop at a steady red traffic light and turned left onto Rosedale. Officer O’Dwyer was approximately 15 to 20 feet from defendant at this point, with both lights and sirens on. Officer O’Dwyer followed defendant’s car for a minute or two and never lost sight of it. Approximately two-tenths to two-thirds of a mile later, defendant pulled over at a 45 degree angle and exited the Acura. When defendant’s car stopped, Officer O’Dwyer saw damage to its left front quarter panel. Defendant was arrested without incident and transported back to the 43rd Precinct.

Published on: July 22, 2012

Court Discusses Elements of Probable Cause

by Stephen Bilkis

In a criminal case, a Westchester Criminal Lawyer said that, at approximately 9:45 a.m., a civilian resident living at 174 Tibbetts Road, Mr. James Nolan, heard his doorbell ring. When he answered the door, he observed a male Hispanic, wearing a blue jacket and yellow hood, who asked him if he had a room available. When Mr. Nolan stated he did not, the Hispanic male apologized and walked away. Mr. Nolan observed the Hispanic male cross the street towards 175 Tibbetts Road and saw him ring that doorbell; no one answered the door and the Hispanic male crossed the street again and walked toward 178 Tibbetts Road. When the Hispanic male arrived at 178 Tibbetts Road, he rang that doorbell as well, and Mr. Michael McGee opened the door. Mr. McGee testified that there was a male Hispanic at his door inquiring if he had a room available. When Mr. McGee responded that he did not have a room available, the male Hispanic thanked him and walked away. Mr. Nolan, Mr. McGee’s next door neighbor, observed the exchange and continued to observe the male Hispanic continue walking northbound towards another house. When Mr. Nolan was unable to see the male Hispanic from his home, he went outside to his front porch and observed a yellow moped at the side of a hedge within his property of 174 Tibbetts Road. Within minutes, Mr. Nolan observed the Hispanic male come back to his property, pick up the yellow moped and walk northbound. Mr. Nolan lost sight of the male Hispanic and got in his pick up truck, which was parked across the street, to see if he could locate and observe the male Hispanic. When Mr. Nolan crossed the street he discovered that the yellow moped he had previously seen in his property was behind a bush at186 Tibbetts Road. Mr. Nolan was in his truck approximately seven (7) to eight (8) minutes, when he saw the male Hispanic run down the side of 184 Tibbetts Road. Mr. Nolan called 911; as he was reporting the incident, he observed the male Hispanic pick up the yellow moped and drive toward McLean Avenue. Mr. McGee also testified that he observed the male Hispanic drive the yellow moped toward McLean Avenue.

Thereafter, a Westchester Criminal Lawyer said that, several Yonkers police officers heard a radio transmission reporting a suspicious person in the vicinity of Tibbetts Road; the description transmitted was that of a male Hispanic, wearing a blue jacket, yellow collar and driving a yellow scooter. It was further transmitted that he was observed ringing doorbells in that vicinity. Several units responded to this radio transmission as the police investigation was swiftly developing; officers transmitted, through the radio, that the description of this suspect fit the description of a repetitive burglar who had been burglarizing the area for the past several weeks and that the burglary suspect also drove a yellow scooter. Sergeant Kreso, one of the responding officers, drove to 174 Tibbetts Road where he encountered Mr. Nolan and Mr. McGee. At the scene, both Nolan and McGee described the individual to Sgt. Kreso. Another officer who also responded to Mr. Nolan’s 911 call searched 184 Tibbetts Road and that officer discovered that there was an open window at that location; the description of the suspect was again transmitted over the radio as well as the fact that an open window was observed by police officers at 184 Tibbetts Road.

Detective Benash was on duty the morning of the incident, and had been listening to the various radio transmissions describing a suspected repetitive burglar driving a yellow moped in the vicinity. Detective Benash was on an observation spot on the west side of the McLean Avenue bridge when he observed a male on a yellow scooter, with no license plates, wearing a blue jacket, yellow collar, driving on the wrong side of the McLean Avenue bridge. As the suspect drove by on the yellow scooter, Det. Benash exited his unmarked police vehicle and grabbed a hold of the yellow scooter’s handlebars; other officers arrived at the scene simultaneously and assisted Detective Benash. When the suspect came to a stop, Det. Benash informed the individual that he was investigating an incident and directed the suspect to sit by the street curb. One of the officers at the scene transmitted over the radio that an individual fitting the description of the burglary suspect had been detained in the area of McLean Avenue.

Published on: July 22, 2012

Court Defines Meaning of Criminal Enterprise

by Stephen Bilkis

This is a criminal case about the defendants who were indicted for forty one counts of Enterprise Corruption, Bribing a Labor Official, Bribe receiving by a Labor Official, and various Labor Law violations. A New York Criminal Lawyer said the defendants moved for inspection of the grand jury minutes and dismissal of the indictment, specifically for dismissal of Count One, (the Enterprise Corruption count) on various grounds.

The indictment was based on an investigation of the Carpenters’ Union. A Union Official was caught receiving a bribe and thereafter agreed to cooperate with the district attorney’s office. The prosecution contends that the defendants and the Union official were a group of persons engaged in a “criminal enterprise.” The defendants assisted each other to arrange or commit bribery from contractors to the Union Official to influence him to condone various violations of labor laws.

Count One charges the crime of Enterprise Corruption in violation of Article 460 of the Penal Law. Article 460, part of the New York “Organized Crime Control Act” (“OCCA”), was inspired by the federal “Racketeer Influenced and Corrupt Organizations” Act (RICO). 18 U.S.C. 1961 et seq. (Cf. Penal Law Article 460 at 552, McKinney’s Cons.Laws of N.Y., Book 39, ed. Donnino, Practice Commentaries).

Published on: July 21, 2012

Court Discusses Rules that Apply to Direct Evidence

by Stephen Bilkis

Many questions of law dictate the admissibility of evidence in criminal trials. One of the most common motions that are made by defense attorneys is to suppress evidence. Evidence in a criminal case may be either direct or indirect evidence. It may by physical evidence or it may be testimonial evidence. A New York Sex Crimes Lawyer said because evidence is the crux of any criminal trial, it is important that the rules of evidence are followed carefully by the police and prosecution. The ability to contaminate evidence at any step in the location and collection process can have devastating results on the prosecution’s case against a defendant. Whenever a person is arrested, it is the responsibility of the police officers involved to ensure that the rules of evidence are carefully observed.

The rules that apply to direct evidence are easier to apply than those that apply to indirect evidence. Direct evidence is that evidence that directly links one particular individual to the crime that they have been charged with. Common direct evidence can be fingerprints on a murder weapon, or DNA belonging to the defendant located at the crime scene. Direct evidence must be carefully photographed, logged, isolated, and protected. A New York Sex Crimes Lawyer said there must be a definable chain of custody of the direct evidence in order to maintain the validity of the evidence. If the evidence is mishandled in any way, there can be grounds to have it suppressed and not allowed to be mentioned to the jury during the trial of the person who was indicted. These rules of evidence are critical to protect the rights that American citizens hold dear. A criminal defense attorney considers himself the guardian of the rights of all American citizens to ensure that evidence that is submitted in court, has not been obtained in illegal means in violation of the United States of America’s Fourth Amendment to the US Constitution. Direct evidence is often physical evidence, but not always.

Physical evidence is evidence that has a physical component to it. Physical evidence can be a bullet, a body, or even a gun. Anything that can by physically touched is physical evidence. Physical evidence is usually direct evidence, but there are always exceptions. A Nassau County Sex Crimes Lawyer said it can be debated that photographic evidence is not physical evidence, but is actually a more solid form of indirect evidence.

Published on: July 21, 2012

Court Discusses Probable Cause in Gun Crime

by Stephen Bilkis

The Facts:

On 11 November 1976 at about 8:00 p.m., a man entered a liquor store and asked for a pint of vodka. According to the clerk, the man was in the store for about two minutes, the man spoke with a slight Slavic, Polish or Russian accent, and he told the man he had nothing smaller in vodka than a fifth. At 8:30 p.m., the man returned and asked for a fifth of vodka, placing a $20 bill on the counter, but when the clerk obtained the vodka from a shelf at the back of the store and returned to the counter, a criminal law violation or a felony ensued; there was a handgun crime (possession of a weapon); the man pointed a gun at him and ordered him to lie down on the floor. The clerk was clearing the cash register as the man came in and had left the drawer slightly ajar, but had not removed the bills from it. Lying on the floor, he heard the noise of the spring clips in the register compartments, indicating to him that the money was being removed and the noise of the door to the store opening and closing. After the robber left, the clerk noted that the $190 that had been in the register was gone and that the vodka was still on the counter. The elapsed time from beginning to the end of the man’s second visit was four to five minutes.

Thereafter, the clerk called the police, and two patrolmen arrived within 10 to 15 minutes. The clerk told patrolman-one that the man was about 5 feet 9 inches with long hair roughly to his collar and light brown in color, with a long thin face and a slight mustache, that he was wearing a long leather-type jacket with a belt and baggy pants of navy blue, and that the gun was black, with a short barrel and short chamber. Patrolman-two sought witnesses outside and was advised by witness-one that she had seen a tan van, possibly rust color too, with two male occupants and bearing out-of-State plates circle the area approximately four times, that it had stopped about 50 yards from the liquor store, and thereafter proceeded south. Patrolman-one broadcast the description of the robber received from the clerk and patrolman-two added, as part of the same broadcast, the description he had received of the van. Patrolman-two then went back to witness-one and asked her whether the van was colored like a U-Haul van to which she responded that she believed so since there was writing on the side, that the driver of the van had asked for directions, and that he was a white male, with brown curly hair, a slight mustache and a thin face. Patrolman-two then made a second radio broadcast stating that the van could possibly have been a rental van, a U-Haul van. A Suffolk County Criminal Lawyer said his testimony does not reveal whether the second broadcast included the description of the driver of the van that he had received from witness-one.

Published on: July 21, 2012

Defendant Claims Hypnosis Made Him Commit Crime

by Stephen Bilkis

The Facts:

On 27 March 1982, defendant, while driving a large, white, four-door car with a black vinyl roof, offered the complainant a ride. She accepted, initially intending to be taken to a nearby bus stop, but thereafter accepting defendant’s offer to take her a few blocks further. The complainant described the defendant as a man of medium build, medium to fair-skinned, scruffy or unshaven, and with blondish hair and blue eyes; that defendant wore a blue gas station uniform, had greasy hands and fingernails and smelled of liquor. As they drove, defendant told the complainant that he worked at an Exxon station in Elmont and that he had attended, but had not graduated from, Carey and Van Buren High School; and that he was divorced and had two children, a seven-year-old son and a two-year-old daughter. The complainant noticed a baby seat in the backseat of the car. Thereafter, defendant drove into an empty parking lot where he sodomized the complainant at knifepoint (sex crimes). The entire incident lasted approximately 35 to 40 minutes. After she was released, the complainant called her aunt and uncle, who notified the police.

Consequently, defendant was arrested approximately three months later when observed by the police in his girlfriend’s white, four-door Ford Torino with a black vinyl roof and a baby seat in the back. At that time, defendant had a moustache and was wearing a blue shirt with an Exxon patch. After waiving his Miranda rights, defendant stated that he worked at an Exxon station in West Hempstead, that he lived in Floral Park, that he had worked on the day of the crime and that on his usual route to and from work he drove by the intersection of Plainfield Road and Jericho Turnpike where the complainant had been picked up. Defendant also told the police that he had attended, but not graduated from, Carey and Van Buren High School and that he was divorced and had two children, a son and a daughter. On the day of defendant’s arrest, the complainant identified the defendant’s voice and also identified him in a lineup, notwithstanding that she had never described her attacker as wearing a moustache.

Published on: July 21, 2012

Court Discusses Whistleblower Law

by Stephen Bilkis

A woman was employed from a not for profit agency. She worked as a coordinator of the employment services. A New York Criminal Lawyer said when she was still a probationary, she was terminated for alleged unsatisfactory job performance. Eleven months later, she initiated an action claiming that she was terminated because of her objection to and refusal to participate in the agency’s alleged fraudulent billing to the city for placements it never made. The agency finds employment for job applicants or places them in educational or training programs, for which it receives funding from the city.

The agency moved to dismiss the complaint on the ground that it failed to satisfy the two elements which are conditions precedent to the maintenance of an action under a whistleblower law. Based on records, the whistleblower law applies to relatively few situations and several proponents accepted to its narrow scope and urged broader application.

Consequently, the woman asserted that the agency’s billing practices constituted a grand larceny. The court then denied the motion and finding that the complaint states a valid reason for action under the labor law. Based on records, the part of the labor law provides that an employer shall not take any disciplinary personnel action against an employee because such employee does discloses or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.

Published on: July 20, 2012

Court Reviews ROR Motion

by Stephen Bilkis

A good criminal attorney can be the deciding factor in a criminal trial for a defendant who has been charged with an offence, in understanding the rights and restrictions that are imposed upon him. Prosecutors are only human and as such are capable of making mistakes that are common to all people. Procedural law is strict. A New York Drug Crime Lawyer said only a person who has been sufficiently trained in the law is capable of deciphering the requirements that the prosecution team has to meet in order for them to obtain a conviction. When the prosecution team makes an error, it is not up to them to admit to the error. It is incumbent upon the defense team to expose the error.

The case of one defendant in New York is an example. He was charged with several misdemeanor offenses of menacing and reckless endangerment stemming from incidents that occurred between May and October of 2009. On October 12, 2009, he was arraigned on two misdemeanors. Bail was set on the charges and court date was set for October 16, 2009. On the 16th, the prosecutor served and filed an information with the court. As an oversight, the prosecution team failed to convert the misdemeanor information with a misdemeanor complaint as required. A New York Drug Possession Lawyer said that an information is a court document that details the facts of a case against a particular defendant. The information provides the details of the offenses and the charges that are being pursued.

The defense team filed a motion to release the defendant from custody because the complaint was not converted to an information as required by the New York State statute CPL §170.70. This statute requires that a misdemeanor complaint filed by a prosecutor of the state of New York must replace the complaint with an information within five days of the person’s incarceration. The five day rule does not include Sundays. If the complaint is not replaced with an information within five days, the statute requires that the defendant be released on his own recognizance.