New York Criminal Lawyer Blog

Published on: June 23, 2012

sex crimes

by Stephen Bilkis

In New York when an offender commits a sexually related offense, he or she is charged a fee that is designed to defray some of the costs that are incurred by the courts for the prosecution of their case. The surcharge is usually $200.00 plus a victim fee of $10.00. A New York Sex Crimes Lawyer said that some offenders are entitled to request that the court defer their surcharge if they can show that it will pose an undue hardship to them or their families. However, anyone who is charged with a crime that requires that they serve more than 60 days in jail are determined to not be able to defray the surcharge. The money is removed from their inmate pay for work that they perform while they are incarcerated. It is therefore, not considered to pose an undue burden to them to pay it.

Even if the charge is deferred, the offender will be expected to repay the fee, it only postpones the debt until a time when the offender is more capable of repaying the debt. The court has also ruled that it is not practical to file a motion to defer this payment until an offender has completed the term of his sentence. In other words, if a person has committed a sexually based offense and is convicted, he is responsible to pay this debt to the state. If he files to have the debt deferred before he has completed his prison sentence, it will be denied as a premature request. It is not considered to be an undue burden on a person who is incarcerated. A Nassau County Sex Crimes Lawyer said it can only be deferred if a person demonstrates that the cost of the debt is an undue burden on the offender after they have been released from incarceration and are actively attempting to support themselves or their families.

On July 10, 2003, an offender in Kings County, New York, was convicted of attempted burglary in the second degree. He filed a motion on March 24, 2007, to defer payment of the surcharge because he stated that it was posing an undue hardship on his family. He was sentenced upon his conviction of five years to serve, then five years on parole. He contends that he is not working while in prison and receives no prison wages. He stated that he does not have a means of income or property and that he is indigent. A New York Sex Crimes Lawyer said the prosecution argued against his deferral of the payment. They contend that he committed the crime and that he is sentenced. He will be incarcerated for five years and then on parole for five years. To grant his request to defer payment would be an injustice to the citizens of the state and to the victim. The intent of the surcharge is to help the courts defray the costs that this offender created when he violated the crimes of this state. He is not entitled to defer the surcharge as it is an important way to insure that offenders are made responsible for their actions.

Published on: June 23, 2012

Court Discusses Possible 5th Amendment Violation

by Stephen Bilkis

Decisions to protect the public from a person who is violently mentally ill can create many fundamental issues of law and civil rights. This legal quandary has been a puzzlement for Americans since our country began. Freedom to live our lives without the fear of the Federal Government removing our freedom without the benefit of a trial before a jury of our peers is fundamental to our belief systems. However, there are times that we must question the benefit of releasing someone who will almost definitely commit a violent crime if they are ever released from an institution. On May 26, 2011 the Supreme Court of New York held a probable cause hearing to determine if a man who was a detained sex offender should remain incarcerated after his pending release date because of his need for civil management.

The Mental Hygiene Law of New York provided the government with a means to deprive citizens of their right to freedom if they were determined to be a threat to themselves or others based on their mental health. Section 10.06(k) of the Mental Hygiene Law does not provide a different rating for sex offenders (sex crimes) who are dangerous and those who are not when recommending civil management. Once an offender has been determined a sex offender who may require civil management, the only requirement is probable cause to detain the subject post release or pre-trial.

The case that was brought before the court in 2011, disclosed that this law was possibly an affront to the United States Constitution. As such, the attorney for the defendant, filed a motion for the Supreme Court to review the Constitutionality of the law under the Fifth Amendment to the United States Constitution. The Supreme Court examined the conditions of the case. The case involves a man who is detained as a sex offender pending an trial for additional crimes. The trial court in his preliminary hearing found him to be in need of evaluation by the State Office of Mental Health. After the OMH review, it was recommended that the defendant be released from detention under appropriate supervision and treatment into the community pending a hearing of his case. The judge determined that the severity of the charges and the risk to the community was too severe to allow for the release of the defendant pending trial.

Published on: June 23, 2012

Defendant Convicted Several Times of Drug Crimes

by Stephen Bilkis

The Defendant in this case was arrested for a drug possession crime which involves selling and possessing prohibited substance in the third degree on two different occasions. He was convicted on both instances but was given parole thereafter.

While on parole, defendant was once again arrested for selling prohibited drugs which is also a direct infraction covered under criminal law. This time he pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the third degree, a class C felony. He apparently failed to appear in court for sentencing. Hence, a bench warrant for his appearance was issued. Due to his prolonged absence, his warrant was served more than two (2) years later. Upon service of warrant, the court convicted the defendant and sentenced him to be imprisoned for three (3) to seven (7) years.

On his own, the defendant moved for resentencing which is an action, given the requirements of law, granted under the Drug Law Reform Act (DLRA). Defendant’s motion was subsequently denied and the court held that the 2009 DLRA did not authorize the resentencing of Class C felony drug offenders.

Published on: June 23, 2012

Can the Agent of a Purchaser of Narcotics be Convicted of Drug Sale?

by Stephen Bilkis

This is the case wherein the court reiterated its New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance.

A New York Criminal Lawyer said that an undercover police officer befriended the defendant in various bars. The police officer, disguising as a drug user, thereafter mentioned to the defendant that he was interested to buy ecstacy. The defendant indicated that he might be of assistance in doing so and invited the undercover to call him whenever needed. In the course of their meeting in a bar, the police officer advised the defendant of his intention to buy cocaine or heroin. The defendant estimated the cost of the quantity of approximately four ounces of cocaine which was between three and four thousand dollars.

After some days, the defendant and the police officer proceeded in a bar in Manhattan. The defendant entered the premises alone, presumably to meet the man who was the seller. The defendant reported to the police officer that the price of the narcotics would be $4,000. The police officer paid the amount and the defendant re-entered the bar to give the payment to the seller. The two proceeded to a discotheque where the actual delivery of the drugs took place.

Published on: June 22, 2012

Defendant Convicted of Conspriracy Brings Appeal

by Stephen Bilkis

There is no secret to the fact that the federal government has many different organizations that are created with the intent of preserving the nation’s laws and integrity. One of the groups that were tasked with taking action against subversive groups was created in 1912 under the name of the Radical Bureau. A New York DWI Lawyer said the group changed names numerous times over the following years; in 1915, it was called the Neutrality Squad; in 1923, it was the Radical Squad; In 1931, it was the Bureau of Criminal Alien Investigation. By the time that 1945 rolled around, it was the Public Relations Squad. However, in 1946 the name was changed again, and it became the Bureau of Special Services and Investigations. By 1955, the name was the Bureau of Special Services, often referred to as the BOSS agency. During the 1950’s, the focus of BOSS was to investigated communists, by the 1960’s the agency had given up most of the Communist detection had shifted to the FBI leaving BOSS with little to do.

The 1960’s saw an increase in domestic terrorism groups that served as a shot of life for the BOSS agency. However, in 1969, BOSS would be busy with many different organizations especially the domestic terrorists within the American black community. One case that BOSS was integral in putting together involved a case that was called the Panther 21 and was the longest running case in American history. In that case, one of the defendants claimed that the evidence against him was obtained by illegal actions and as such, must be excluded from the courts. A New York DWI Lawyer said the evidence contained tangible property that he contends was the proceeds of an unlawful search and seizure. He states that the search warrant which was the validity for the forcible entry into his home on July 5, 1973 and the seizure of the property that was used as evidence against him should be suppressed as fruit of the poisonous tree under the Exclusionary Rule.

The case involved the infiltration of a subversive group by several undercover police operatives and the case was in trial from May 1971 to July 1973. In April of 1969, this case was called the Panther 21. The defendant was indicted for having an overall plan to harass and destroy the elements of society that the group thought of as the power structure. This defendant was jailed for over two years until his trial where he was acquitted. Even if he had been freed, he would have not gotten credit for this time in jail pending trial. The trial of this case lasted more than two years and ended in all suspects being acquitted. The jury in this case only deliberated for two hours before reaching their decision.

Published on: June 22, 2012

Defendant Seeks to Change His Sex Offender Status

by Stephen Bilkis

In New York, a system of using an offender’s previous crimes to predict his recidivism rates is used. This system classifies sex offenders into degrees. A New York Criminal Lawyer said that certain offenses will cause the offender to be classified as a higher risk to the public if they are released without tighter supervision. In one case, the offender was convicted on July 29, 1982 for attempted rape in the first degree. This offense is considered a class C felony sex offense under Penal Law §§110.00, 110.05 and §130.35. The Sex Offender Registration Act, requires a hearing be held in the Supreme Court to ensure that the designated level of risk that is assigned to an offender is appropriate as it relates to their offenses. In this case, the court took into account, a previous sex offense that had been committed while the offender was still a juvenile.

The offender’s counsel moved to reduce his sex offender status rating because his juvenile record should have remained sealed and not considered as relevant to the current crime. The court did not agree. They admitted that juvenile offenses are deemed vacated after the offender has been adjudicated and served their sentence, however, when it comes to a prior felony sex crime conviction, the court is reticent to not include it. Just because an offender is a juvenile when he commits the offenses that are included in the Sex Crime Registration Act, it does not preclude the court from considering his prior actions when they determine the risk that he poses to commit the same or similar offense again in the future.

The offender’s counsel petitioned the court to provide a presumptive override to the decision based on the use of the juvenile history in determining the offender’s recidivism rate. The court maintained that Risk Assessment Guidelines that were developed by the Board of Examiners of Sex Offenders found that it was appropriate to utilize all information that may be a predictor to the likelihood that the offender will pose a significant risk to the public safety. The risk points that are allocated are based on the facts that are acquired with review of the offender’s criminal history. Failure to include all information that is available on an offender’s criminal history would skew the results of the guidelines.

Published on: June 22, 2012

Court Hears Motion To Supress Search Warrant

by Stephen Bilkis

On September 25, 2003, the Associate Village Justice of the Supreme Court, issued a search warrant directed to “any police officer of the County of Nassau.” A New York Criminal Lawyer said the search warrant found that there is probable and reasonable cause for the issuance of the warrant to make a search with the inspector and his agents, between 09/25/03 and 10/02/03 in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises in 335 Princeton Street, Westbury, NewYork. The warrant categorically states that the seizure of the evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises.

The Senior Building Inspector of the Village of Westbury believed that the subject premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of sec. 79-2, sec. 83-6, sec. 112-7, sec. 184-4, sec. 248-6 A and sec. 248-283 of the code of the Village of Westbury and NewYork State Multiple Dwelling Law sec. 30 and sec. 34. A Supervisor in the Department of Public Works testified that the garbage generated from the home was 3 to 4 times the normal amount at every pick up.

Subject to the defendant’s motion to suppress, the parties stipulated to the receipt into evidence of the “return” on the warrant indicating what was seized during the search.

Published on: June 21, 2012

Potential Juror Misconduct Reviewed In Sex Crimes Case

by Stephen Bilkis

It is difficult to understand the immensity of the responsibility that serving on a jury can be for some people. In this age of electronic information obtainable on the internet and even on a person’s telephone, it can be a daunting task for a juror to follow the instructions provided by the judge and make a determination only on the information that is presented in the courtroom. It is no surprise then when a juror is found guilty of misconduct for investigating a case on their own to attempt to help them make their decisions. As students, we are all taught to research a topic before we can make an informed opinion and not to rely solely on information that is provided by word of mouth. A New York Criminal Lawyer said when assigned to a jury and told that they are not allowed to make an informed decision based on research, many can feel lost and compelled to research the case on their own. This was the case, with one juror who was sitting on a non-sequestered jury, hearing the details of a serial sex crime offender’s case (rape). During the trial, the woman went to dinner with several friends and their acquaintances.

At that dinner, the woman brought up some of the details of the case that she was sitting on the jury for. She stated that the case was about a teen aged defendant who had cut up and raped a woman as part of a gang initiation. She allegedly stated that she had made up her mind about the defendant and his guilt in the situation. However, she stated that she knew she had a duty to deliberate the case with the other jurors before she actually made up her mind. She stated that the jury was a diverse group of people and she would need to hear what everyone had to say about the situation. She was unaware that one of the dinner guests was a defense attorney until later that night when they were walking to the train station. As they were walking, the woman talked to the attorney and found out that she was a defense attorney. The woman asked the attorney what she thought about DNA evidence because she had Googled the defense attorney involved in the case on her computer and discovered that he had a private practice. She asked pointed questions about DNA evidence and if she had ever had an opportunity to represent anyone who had their DNA match a crime several years after the offense had occurred.

The defense attorney informed her that it was not appropriate to discuss the case and that she could not answer the question for her. A Manhttan Criminal Lawyer said that the juror told the attorney that all of the information was in, but that the jury had not received the charge yet. The attorney attempted to change the subject. The following Monday morning, the defense attorney who worked for Legal Aid discussed the situation with her supervisor and her supervisor contacted the defense attorney who was handling the case. It was several days later before the chain of phone calls got to the correct people. By that time, the defendant had been convicted of the crime. As soon as the defense attorney for the defendant learned of the juror’s impropriety, he filed a motion for a mistrial on the case.

Published on: June 21, 2012

Court Determines if Jury Instructions Were Misleading

by Stephen Bilkis

In the early 1970’s the rape law in New York required that the complaint of the victim had to be corroborated by a third person in order to obtain a conviction. A New York Sex Crimes Lawyer said this seems archaic these days and made it almost impossible for a rape victim to obtain justice against her attacker. In one case of a woman who was walking home from the bus stop late at night, a man with a knife followed her and forced her into an abandoned stairwell. He told her that he was going to rape her and forced her to undress while holding the knife to her throat and face. Once she was disrobed, he held his cigarette lighter up to her lady parts. She felt the heat from the lighter and fought to get away. He threatened her again at which time she stopped resisting for fear that he would cut her.

A neighbor in the area called the police because he saw the woman get shoved into the stairwell and reported that a robbery was in progress at that location. A police car with two officers responded to the area. The officers found the man still raping the woman. They arrested him and collected the cigarette lighter and the knife as evidence. They also noticed that the woman had a cut on her cheek from the knife, just below her right eye. The woman was transported to the hospital where a doctor performed an examination. He noticed that the victim had a cut on her chin as well and that there were physical signs that the rape was culminated.

At the trial of the man, the judge did not inform the jury that corroboration was required to convict on the crime of rape. A New York Sex Crimes Lawyer said the defense filed a motion to overturn the guilty verdict that the man received based on that fact. The defense claimed that it was a fatal error to not instruct the jury that corroboration was necessary. Their contention being that since no one saw whether the woman agreed to have sex with him or not, minus corroboration, the jury would have been unable to convict him of rape.

Published on: June 21, 2012

Court Decides if Confession of Minor is Admissible

by Stephen Bilkis

A peace officer (not a police officer) was walking along the corner of 14th Street and 31st Avenue at around 6:30 p.m. on July 19, 1963. He saw a 15 year old boy standing on that street corner. A New York Drug Crime Lawyer said he saw another person approach the 15-year old boy and after briefly talking, the person who approached him put a dollar bill on a public mailbox. After that, the15-year old boy passed something from his hand to the man’s hand. The man then turned and left the 15-year old boy.

The peace officer then observed the 15-year old boy walk around the corner. He saw the 15-year old boy shuffling unsteadily until he went inside a grocery store. The peace officer followed him inside the grocery store and noted that the child looked dazed. His eyes were red and droopy like he was so sleepy. The peace officer then approached the boy and asked him what the matter was with him.

The boy answered that he had taken drugs. The peace officer then identified himself to the boy and asked him if he could frisk him. The boy acquiesced. The peace officer then frisked the boy and found hard objects in his right front pants pocket. The peace officer then asked the boy to remove the contents of his pockets.