New York Criminal Lawyer Blog

Published on: June 20, 2012

Court Discusses Sex Offender Registration Act

by Stephen Bilkis

On January 21, 1996, the Sex Offender Registration Act was created by the legislative body of the New York State legal system. It provided that each offender who commits a sexually related offense, must be registered with the state as a sex offender. A New York Criminal Lawyer said the risk level that is assigned to each offender is based on that offender’s prior criminal history and the chance that the offender will commit the same or similar offence in the future.

When an offender commits a sexually related offense, they are provided with a hearing date where the facts and circumstances surrounding their most recent conviction are compared with any prior convictions. This comparison is designed to look for trends in behavior that could predict the actions of the offender in the future. Since, no one in the justice department, claims to be a fortune teller, there is no truly accurate measure of whether or not, an offender will commit an offense in the future. Bearing this in mind, the courts must look at the actions that this person has taken in the past. Courts have historically been resistant to including previous criminal activities in the measurement of current convictions. Just because a person has offended in this manner in the past does not necessarily mean that the person committed that crime on that date. A Westchester Criminal Lawyer said this contention of law is why it is not admissible for a prosecutor to discuss the offender’s predilection to commit a particular type of offense in court unless they have received prior approval from the court to do so based on a direct link to the offense that is at trial.

That is not the case when discussing the risk for recidivism of a sexually based offender in the legal system. History can show if an offender has an uncontrollable predilection to committing the offense that he is being tried for. For instance, if an offender has committed ten prior rapes, the chances that he will rape again are logically pretty good. However, if a person was convicted of rape under circumstances that were shaky at best, and it is the only offense that is in the person’s criminal history, he is less likely to commit the same or similar offense again. He is certainly less of a risk than the offender with ten like crimes prior to the conviction of his eleventh offense.

Published on: June 19, 2012

Defendant Contends Burden of Proof was Not Met

by Stephen Bilkis

A girl was convicted of criminal sale of a controlled substance in the first degree, for which she was sentenced to a prison term of eight years to life. She was imprisoned and already served her three years term.

The girl contends that the evidence at her trial failed to demonstrate beyond a reasonable doubt that she was the woman who sold an undercover officer 214 vials containing cocaine. However, New York Drug Crime Lawyer said there was ample evidence that the officer had sufficient opportunity during the sale to observe the girl closely enough to permit a reliable identification at the trial, and the jury was entitled to credit the identification. Further, a New York the girl also contends that the New York state failed to demonstrate that she sold two ounces or more of cocaine that was contested by the testimony of the chemist who testified for the New York state as to the procedure he employed in weighing the contents of the vials. It was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether his opinion was entitled to be credited.

The New York state cross-appealed, however, contending that the court illegally imposed a sentence which was less than the legal minimum of fifteen years to life. The girl, at age seventeen was properly convicted for selling drugs. A New York Drug Possession Lawyer said he had already served three years of the original sentence of eight years to life. She didn’t murder anyone. In fact, she has not ever been convicted of any other crime than the said drug crime.

Published on: June 19, 2012

Court Decides What to Do with Money Uncovered During Crime

by Stephen Bilkis

On March 1982, a police officer assisted in the arrest of a man after a search of his rented car. The search was allegedly based on probable cause. Drug paraphernalia amounting to $8,605 was found on the floor behind the driver’s seat and several suitcases of marijuana were also found in the trunk of the car. The police officer states that the man confessed that he was a runner from Florida who brought marijuana to the New York City area for sale and returned to Florida with the proceeds of the sales. A New York Sex Crimes Lawyer said the man was arrested on felony and misdemeanor charges but was permitted to plead guilty to disorderly conduct and was sentenced to a conditional discharge.

The property clerk contends that the $8,605 is the proceeds of or derived from the sale of a controlled substance and is therefore subject to forfeiture pursuant to administrative code. The code provides that where moneys or property have been unlawfully obtained or stolen or are the proceeds of crime or derived through crime or derived through the use or sale of property prohibited by law from being held, used or sold, a person who so obtained, received or derived any such moneys or property, or who so used, employed, sold or held any such moneys or property or suffered the same to be used, employed, sold or held, or who was a participant or accomplice in any such act, or a person who derives his claim in any manner from or through any such person, shall not be consider to be the lawful claimant entitled to any such moneys or property.

The property clerk also argues that the assignee of the man cannot possibly meet his burden under administrative code and that the money should therefore be declared to be forfeited. A New York Sex Crimes Lawyer said the subdivision states that a claimant of property, who derives his title by assignment, must establish that his assignor had a lawful title in such money and lawfully obtained possession thereof and that such money was held and used in a lawful manner.

Published on: June 19, 2012

Defendant Claims He Did Not Play an Active Role in Drug Transaction

by Stephen Bilkis

A team of police officers conducted a buy and bust narcotics operation. The undercover officer carried bills which had been photostatted and drove to the location where twelve people were standing near the area. The officer called out from his automobile asking if anyone had dimes. A New York Criminal Lawyer said based on records, the word dimes mean a $10.00 bag of heroin. The man then came over to the auto and asked the officer what he wanted. The officer then replied again the word dimes. Then, another man standing a few feet behind the first man asked the officer if he wanted Santa Claus. The officer being unfamiliar with the term ignored the other man. The officer again told the first man that he wanted dimes. The man asked how many and the officer replied to give him two. The man called over his shoulder the word duayduay and another man then walked to a tree about fifteen feet from the auto. He bent down, reached among the cobblestones at the base of the tree and removed some glassine envelopes. The first man told the officer to give him the money and he must give him one extra dollar. The officer gave the first man a ten, a five and five singles. The man then counted it and demanded the officer for another dollar. The officer gave him a five dollar bill and the man returned four singles. As the other man was returning to the car, another person walked over to the tree and the man yelled at him to get away. The other man then walked to the car and handed the officer the two glassine envelopes. The other man told the officer that he should get out of the area fast because it’s hot. The officer then left the area and made a transmission to his back-up team to arrest the two men. The police then recovered narcotics from the cobblestones at the base of the tree. The other man was found to have twenty dollars as recorded bills in his possession while only a single dollar bill was found on the first man.

The issue brought into the court was the argument whether the first man was an agent of the purchaser and whether the trial court’s charge on the defense of agency was damaging to the first man so as to require reversal of his conviction for criminal sale of a controlled substance in the third degree. A New York Criminal Lawyer said the court then concluded that the first man was not an agent of the purchaser but rather played an active role as seller of the contraband.

As the court admitted the question of the first man’s status in the illegal transaction was a proper question for the jury and one in which they accurately determined that the first man was a seller of drugs. Based on records, it is important to remember that when the undercover officer drove to the prearranged locale, the man was not the only individual on the street, but was part of a group of twelve men. After the undercover officer asked of the congregation if anyone had dimes, the man then voluntarily emerged from the crowd and inquired as to what the officer desired and in what quantity. The second man approached and handed the narcotics directly to the officer. A few minutes later, the first and second man was arrested at which the second man had in his possession the twenty dollars of marked money while the first man was in possession of the additional dollar.

Published on: June 19, 2012

Defendant Claims Charges Unconstitutional

by Stephen Bilkis

A man was arrested and charged with illegal heroin possession and illegal possession of hypodermic needle and syringe. Even before the man was brought for arraignment, he already filed a motion to dismiss the information on the ground that the laws punished the misdemeanor offense of illegal possession of hypodermic needle and syringe is unconstitutional. He also moved to dismiss the information charging him with illegal heroin possession on the ground that this crime is a misdemeanor and the law defining it as a crime is unconstitutional.

A New York DWI Lawyer said the man claimed that the statute violates his right to due process of law because he is deprived of the right to be presumed innocent. He claims that the statute makes it a criminal act to possess a hypodermic needle and syringe. He claims that the statute is arbitrary and unreasonable and the passage of the law is an abuse of the police power of the State.

The man based his motion for dismissal of the illegal heroin possession charge on two cases decided by the Supreme Court of New York. The man alleged that the facts of those two decided cases and his case are similar. He points particularly to the case of People v. Hicks and People v. Baker where the Court dismissed the indictment because only a trace of heroin was found on a cotton wad that was found on the person of the accused in those two cases. The man claims that these two charges against him should also be dismissed because along with the hypodermic needle and hypodermic syringe, a wad of cotton was also found and seized on his person and the wad of cotton only had a trace of heroin on it. Therefore, these charges should be dismissed.

Published on: June 19, 2012

Defendant Contends Violation of Drug Reform Act

by Stephen Bilkis

The Facts:

On 21 March 2002, defendant was sentenced in Michigan to a two-year probation following his plea of guilty to attempted home invasion in the first degree under Criminal Law.

A New York Criminal Lawyer said that on 22 August 2003, defendant was charged in Bronx County with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, respectively.

Published on: June 18, 2012

Defendant Claims Prior Felony Should Not Be Counted

by Stephen Bilkis

The Facts:

On 10 November 1952, appellant pleaded guilty of attempted violation of section 1751 of the Penal Law as a felony; a violation of the Public Health Law with respect to narcotic drugs; a drug crime. A New York DWI Lawyer was presented therein that the appellant had been found guilty of three previous felony convictions; that he had violated sections 173 and 174 of title 21 of the United States Code which also deals with narcotic drugs. Appellant admitted his identity and the three previous convictions which occurred in 1938, 1947 and 1948, all in the United States District Court for the Southern District of New York.

Thereafter, appellant was sentenced as a third felony offender to a term of not less than 15 years to life.

Published on: June 18, 2012

Defendant Claims Illegal Search and Seizure by Police

by Stephen Bilkis

On October 10, 1979, three uniformed police officers in a marked police car approached the vicinity of Seventh Avenue between 143rd and 144th Streets. At that time, one of the police officers saw the defendant at 144th Street and Seventh Avenue, a known area for drug crimes. A New York Drug Crime Lawyer said the defendant was known to the police officers as he was arrested several times for marijuana possession. The officers had been instructed to keep that particular block clear of drug trafficking. In compliance with the orders, the police officer ordered the police vehicle to stop and called to defendant so that he might ascertain his address and instruct him to leave the area in the event that he did not reside in it.

The police officer called the defendant and asked him to approach the police car. The defendant walked toward the car, stopped at a distance of 15 feet away and refused to come closer. The police officer assured the defendant that he only wanted to talk with him, but the defendant refused to comply. In this instance, the police officer then emerged from the police car and the defendant, began to run. Neither officer drew his own gun at anytime. When the police officers were within ten or fifteen feet from the defendant in a schoolyard, the officers observed that the defendant reached into his waistband and threw an object to the ground. The object, a revolver, was retrieved. A New York Drug Possession Lawyer said the defendant was thereafter arrested and charged with two counts of criminal possession of a weapon in the third degree under criminal law.

The defendant filed a motion to suppress the evidence based on the principle on search and seizure that where the abandonment was coerced by unlawful police action for lack of probable cause, the property may be not used for evidentiary purposes.

Published on: June 18, 2012

Court Determines if Unlawful Surveillnce is a Sex Crime

by Stephen Bilkis

A 55 year old man, after violating a criminal law, has been placed under the Strict and Intensive Supervision and Treatment (SIST) under a sex offender civil management proceeding. Subsequently, the State filed for a petition to revoke the respondent SIST’s placement and requested the court for the respondent to be transferred under a Secure Treatment Facility under Article 10 of the Mental Health Law. The court denied the petition.

A New York Criminal Lawyer said the respondent acknowledged that he was a drug user from 1980 up to 1993. He admitted having marijuana possession and used it during his teenage years. His addiction relating to drug crime led him to commit several offences. In 1994, the court has found him guilty of Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree for entering an apartment of a lady and while holding a knife, placed her hand on his penis. Prior to this incident, he was a known exhibitionist masturbating in public places while his penis was partially exposed to public view. He admitted that he suffered from a Mental Health Abnormality thus the State entered an agreement for him to be placed and monitored under the SIST.

On August 11, 2010, the respondent placed his cellphone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. A New York Criminal Lawyer said the victim upon its discovery threw the cell phone and scuffled with the respondent. In course of the incident, the victim suffered physical injuries. In addition to this incident, a parole officer mandated to supervise him during the program testified that the respondent violated the terms of the agreement by masturbating in a public place. The respondent admitted to masturbating inside the stall of a public restroom and a library.

Published on: June 18, 2012

Error Occurs in Collection of Evidence

by Stephen Bilkis

Often, questions arise in the court system that involve how to handle mistakes that happen in the justice system. Among these mistakes can be the mishandling of evidence. A New York Criminal Lawyer said that while losing evidence can be a devastating blow to a prosecution’s case, it is even more so when it in involves a sexual abuse crime. The physical evidence that is collected in a rape kit cannot be replaced if the kit is lost or mishandled. Unfortunately, it happens more often than the departments involved would like to admit. Large city departments have the biggest problem with ensuring that the chain of custody is kept pure.

In one case, that occurred on October 18, 1991, involved a rape. The victim was forced into the apartment and bedroom of an acquaintance where he pulled a gun on her. He forced her to have sexual intercourse with him. She reported the rape to the police in Queens County. The police officers transported her to Queens Hospital Center where she was examined by a doctor and a rape kit was completed. The offender was arrested on November 5, 1991 when he reported to his parole officer.

On January 2, 1992, the defense lawyer made an omnibus motion requesting the information that was recovered from the examination of the rape kit. He was advised that the rape kit evidence would be provided as soon as it was examined. On April 16, 1992,the defense team again requested an opportunity to examine the rape kit and the resulting laboratory analysis. Again, the police evidence unit stated that the results should come in shortly. The results were never given to the defense. After several failed attempts to obtain a copy of the analysis of the evidence, the police evidence unit finally admitted that the rape kit had been misplaced. They stated that after researching the whereabouts of the rape kit, it was discovered that the kit had never been submitted to the police department crime lab for analysis.