New York Criminal Lawyer Blog

Published on: September 22, 2014

Respondent has submitted a memorandum

by Stephen Bilkis

Respondent was admitted to the practice of law in the State of New York by the Second Judicial Department. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

A New York Criminal attorney said in November 2006, respondent was served with a notice and statement of charges alleging that he engaged in illegal conduct that adversely reflected on his honesty, trustworthiness or fitness as a lawyer, and further engaged in conduct that adversely reflected on his fitness as a lawyer. Both charges arose from respondent’s guilty plea in Supreme Court, Suffolk County, to the crime of attempted criminal sex act in the third degree, a class A misdemeanor. Underlying the guilty plea was respondent’s admission that he engaged in sexually explicit conversations over an Internet chat room with an undercover police officer posing as a 13-year-old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact. Respondent filed an answer in this proceeding, admitting the charges and requesting a hearing on mitigation.

A hearing was held before a Referee. For the most part, the dissent has accurately stated the evidence adduced at the hearing, which will not be repeated herein. The only omission was the testimony of two character witnesses. The first character witness, the chair of the intellectual property practice at a law firm, testified that he first met respondent in 1998, when he was respondent’s supervising criminal attorney at a New York City law firm. After his arrest, respondent called this attorney and told him what he had done. The witness testified that respondent had a reputation for honesty and integrity, notwithstanding the events leading to his conviction, and that respondent has a pending job offer with his current firm once these disciplinary proceedings are concluded. A second character witness testified that she grew up with respondent, and was close friends with his sister. She further testified that she had kept in touch with respondent, who had a reputation for being a smart and honest person, even after his conviction.

Published on: September 22, 2014

Taylor Law

by Stephen Bilkis

Defendants are the President and two other members of the Executive Board of the Uniformed Firefighters Association (UFA). They have been indicted for Reckless Endangerment in the Second Degree and related crimes arising from their role in calling the first strike of firemen in New York City history on November 6, 1973.

It appears therefrom that the UFA, for a time prior to the strike, had been engaged in negotiations with the City for a new collective bargaining agreement. During the pendency of these negotiations, its rank-and-file membership passed a resolution authorizing the Executive Board to conduct a mailed secret ballot of the membership to determine whether the Board should be enabled to call a total strike of the firefighters of the City of New York at a time and date to be determined by the Executive Board. The result was that New York City’s firefighters voted not to strike. Nevertheless, the defendants conspired to conceal the true outcome of the ballot from both the membership and the public and decided instead to falsely announce that the membership of the UFA had voted overwhelmingly in favor of a total strike. In conjunction with this initial deception, the criminal defendants planned and attempted to coerce the City to accept their contract terms by falsely representing the existence of the strike mandate to the City’s negotiators. Finally, on November 6, 1973, the defendants did in fact call and caused a virtual total strike of the firefighters of New York City–a strike that the firemen themselves, still ignorant of the true outcome of the ballot, had democratically voted against.

A fire then broke-out for five and a half hours throughout the city, desperate civilians and some police officers sounded alarms, lugged their own hoses, broke windows in smoke-filled buildings and prayed anxiously that the small force of non-striking firemen could get to the fires in time.

Published on: September 19, 2014

THE RIGHT TO TREATMENT CASES

by Stephen Bilkis

Defendant, a 16 year old boy, is charged with petit larceny and criminal possession of stolen property both arising out of an alleged pocket-book snatch on May 1, 1978. He was arraigned the next day and held in bail pending a hearing which was held on May 18, 1978. Both charges are class A misdemeanors carrying a maximum penalty for non-youthful offenders of one year’s incarceration. Inasmuch as this 16 year old defendant has never been convicted of a crime or found to be a youthful offender, he is eligible for mandatory adjudication as a youthful offender carrying a maximum penalty of six months incarceration. In this instance, because he must be accorded this mandatory adjudication, the statute requires a single judge trial without a jury. Had the defendant already once been adjudicated a youthful offender thus placing his being treated as such on this occasion within the court’s discretion, he would be entitled to trial by jury.

Defendant now challenges the constitutionality of the statute depriving him of a jury trial. The court is here presented with a constitutional challenge to Criminal Procedure Law § 340.40(7) which denies trial by jury to a youth who is eligible for mandatory youthful offender treatment at the same time this right is available to any other defendant, a discretionary youthful offender included, who is charged with the same crime.

The limited power of trial courts to strike down a State statute as unconstitutional has been stated repeatedly. Particularly courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face.

Published on: September 16, 2014

Grand Jury was “severely undermined”

by Stephen Bilkis

On Saturday afternoon, December 22, 1984, A, B , C, and D boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, C and B, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant boarded this subway train and sat down on a bench towards the rear section of the same car occupied by the four youths. Defendant was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition. It appears from the evidence before the Grand Jury that A approached defendant, possibly with D beside him, and stated “give me five dollars”. Neither A nor any of the other youths displayed a weapon. Defendant responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit A in the chest; the second struck D in the back; the third went through C’s arm and into his left side; the fourth was fired at B, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After the criminal defendant briefly surveyed the scene around him, he fired another shot at B, who then was sitting on the end bench of the car. The bullet entered the rear of B’s side and severed his spinal cord.

The conductor went into the car where the shooting occurred and saw defendant sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparent taken cover, also lying on the floor. Defendant told the conductor that the four youths had tried to rob him.

Published on: September 15, 2014

Ex Post Facto Clause of the United States Constitution

by Stephen Bilkis

This is a proceeding wherein the Attorney General of the State of New York filed a petition on 19 July 2010 contending that Criminal Respondent RV is a detained sex offender who has a mental abnormality as that term is defined in Article 10 of the New York State Mental Hygiene Law, § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

On 7 February 2011, Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and that the provision in Article 10, Section 10.07(c) that would allow a jury to determine whether Respondent’s robbery and attempted robbery convictions were “sexually motivated” is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c). The relevant provision of the criminal statute and its concomitant definitional paragraphs serve to retroactively transform a non- sex crime into a new “sexually motivated felony” and that it increases the punishment for the prior crime.

The court denies respondent’s motion to dismiss.

Published on: September 12, 2014

Constitution of the State of New York

by Stephen Bilkis

In the latter part of 1992 and during the beginning of 1993, the office of the United States Attorney for the Southern District of New York was inquiring into allegations that substantial sums of money had been stolen from a certain Royalty Trust (the “Trust”), which fund was established to benefit the citizens of a certain Republic (the Republic). In connection with this criminal investigation, in February 1993, an investigator for the U.S. Attorney’s Office (the “US Investigator”), served “Y”, a resident of California, with a grand jury subpoena. Although Y did not ultimately testify before a federal grand jury, he took part in approximately four debriefings with federal prosecutors and investigators in the Southern District during the latter part of February and March 1993.

After one such debriefing on March 5, 1993, at the request of the U.S. Attorney’s Office and under the direction of US Investigator, Y telephoned defendant, an attorney residing in Florida. US Investigator recorded this call in the presence of, Y’s attorney at the time, Assistant U.S. Attorneys (hereinafter “AUSA”) A and B, and FBI Agent H. The federal authorities proposed making this call to defendant in Florida in an attempt to obtain information on past allegedly criminal activities involving the disappearance of Republic’s money and to gather information respecting what they believed to be on-going criminal behavior in connection with the solicitation of so-called “prime bank notes” and “standby letters of credit”. A review of the transcript of the taped conversation between Y and defendant reveals that both past and on-going activities were discussed during the call.

While that the federal government was investigating the Republic Trust matter, a civil litigation–initiated to recover Republic’s allegedly stolen money–was underway in the High Court of Justice in London. As part of this civil action, both defendant and Y were subpoenaed to give testimony in late December 1992. Shortly thereafter, Y talked with defendant about obtaining legal representation. Y learned that defendant had retained an attorney (the “Attorney”), a member of the Florida bar, to represent him in connection with the London litigation. Y could not specifically recall how defendant described the nature of Attorney’s representation, but he did remember that defendant spoke of the possible need for a criminal defense attorney in connection with the Republic Trust matter. Defendant also advised Y that if he needed a computer fraud lawyer, he should contact Attorney for a referral.

Published on: September 11, 2014

Paragraph Ten of the Bill of Particulars

by Stephen Bilkis

This is a proceeding wherein the respondent, P, a 14 year old female was alleged, inter alia, to have offered to perform a deviate sexual act for U.S. currency, an act which, if committed by an adult, would constitute the crime of prostitution under Penal Law Section 230.00, a class B misdemeanor. P is before the court on the complaint of D.

The court notes that D was not charged with the violation of patronizing a prostitute, P.L. § 230.05 nor was he charged with any other crime applicable to these facts.

Paragraph Ten of the Bill of Particulars of the Corporation Counsel describes the incident as follows:

Published on: September 8, 2014

Court reasoned that indecent assault is a federal felony

by Stephen Bilkis

A New York Criminal Lawyer said that, ten years ago, the Legislature enacted the Sex Offender Registration Act (SORA), which required certain sex crime offenders to register with the Division of Criminal Justice Services within 10 calendar days after discharge from incarceration, parole or other release. The legislation created procedures to weigh the threat posed by the offender’s release and classifications geared to the offender’s risk level. SORA contemplates three levels of risk, from level one (the lowest) to level three, with reporting requirements increasing for each level. A five-member Board of Examiners of Sex Offenders is charged with the responsibility for developing risk assessment guidelines and recommending to a sentencing court the risk level involved upon the release of an offender.

A New York Sex Crimes Lawyer said that, pursuant to Correction Law § 168-a (2)(d), certain defendants convicted of sex offenses in other jurisdictions must register as sex offenders in New York. The case before us involves the application of this subsection to defendant’s United States Navy court-martial, following which the Board recommended, and County Court determined, that he be classified a level two sex offender under Correction Law § 168-a (2)(d)(ii). A New York Criminal Lawyer said that, defendant was convicted in 2000 by a general court-martial under a generic provision in the Uniform Code of Military Justice prohibiting, among other things, “all conduct of a nature to bring discredit upon the armed forces”. Within the general statutory provision, defendant seems to have been convicted of the specific regulatory offense of “indecent assault.” The Navy apparently sentenced defendant to a bad conduct discharge and reduction in pay grade, but no fine or term of imprisonment.

The issue in this case is whether the jurisdiction where defendant was convicted of a felony required registration as a sex offender for that crime.

Published on: September 8, 2014

Code of Criminal Procedure

by Stephen Bilkis

The surety herein applies for an order under sections 597 and 598 of the Code of Criminal Procedure remitting the forfeiture of cash bail deposited by her for and on behalf of the defendant, who was theretofore charged with disorderly conduct in violation of subdivision 8 of section 722 of the Penal Law.

A New York Criminal attorney said that the facts explaining and excusing the defendant’s failure to appear for a hearing on April 30, 1953, have been fully set forth in the moving papers and warrant the exercise of discretion by this court in remitting the forfeiture of the bail deposit heretofore made by the surety if this court has the power to order such remission.

Upon the argument of the appeal, and in answer to the court’s inquiry as to why this motion was not made in the County Court of Queens County, the court was informed that that court had refused to entertain applications for remissions of forfeitures not originating in that court.

Published on: September 7, 2014

Designated Felony

by Stephen Bilkis

A New York Criminal Lawyer said that, the Respondent is the subject of a petition for sex offender civil management pursuant to Sex Offender Management and Treatment Act. He moves here to dismiss the petition on the basis that certain provisions of the statute as applied to him are violative of the United States and New York State constitutions.

A New York Sex Crime Lawyer said that, on May 3, 1995, the Respondent was sentenced in New York County Supreme Court for convictions of Kidnapping in the Second Degree, Promoting Prostitution in the Second Degree and Bail Jumping in the First Degree. He received concurrent indeterminate sentences of 9-18 years’ incarceration on the kidnapping charge, 4-8 years on the promoting prostitution charge and 3-6 years on the bail jumping charge. According to the State, Respondent’s kidnapping and promoting prostitution charges included conduct in which he restrained the victim, repeatedly raped her, forced her to engage in prostitution, beat her and forced her to ingest narcotics. These acts allegedly occurred in 1992. The Respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

A New York Criminal Lawyer said that, a sex crime offender civil management petition was filed in Greene County Supreme Court on December 3, 2009 and an amended petition was filed in New York County Supreme Court on December 18, 2009. The Respondent was in DOCS custody pursuant to his sentence at the time of the filing of the initial petition and has been in DOCS or OMH custody since that time. On February 17, 2010, Acting Greene County Supreme Court Justice found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality. The venue of the instant proceeding was subsequently transferred to this Court where the Respondent is awaiting trial.