New York Criminal Lawyer Blog

Published on: September 7, 2014

People v Moore, People v Doyle

by Stephen Bilkis

This is a proceeding wherein the defendant is charged with the felony of Sexual Abuse in violation of Section 130.65 of the Penal Law and the misdemeanor of Assault, covered by section 120.00 of the Penal Law.

At a preliminary hearing the complainant, RM, testified that she had hitchhiked her way to New York from Montana where she had been employed as a waitress. Her purpose in coming to New York was to visit a male friend who had been hospitalized. At her friend’s urging she slept in the apartment of the defendant, an acquaintance of her friend, on the night of her arrival, and again some three nights later. On the first occasion, she testified that the defendant slept on a separate mattress in the apartment. She did some cooking and cleaning each day following the first night, but did not sleep there again until three nights later when she awoke to find the defendant fondling her. She repelled his advances thus apparently angering the defendant who then beat her about the head and body.

The complainant asserts she was treated at a hospital for her injuries, but the People offered no proof of such treatment or, for that matter, any evidence whatever to corroborate the complainant’s account.

Published on: September 4, 2014

225.05 and 225.30 of the Penal Law

by Stephen Bilkis

Numerous defendants were arrested in a series of raids in Chinatown, carried out by police officers armed with search warrants.

A New York Criminal lawyer said that the amended informations charge the defendants with the crimes of promoting gambling and possession of gambling devices in violations of sections 225.05 and 225.30 of the Penal Law, in that each defendant acted as a ‘Dealer,’ ‘Cutter,’ ‘Manager/Moneyman’ or ‘Security’; listing the gambling activities as ‘Poker,’ ‘Fantan’ and ‘Dominoes.’

In these omnibus motions the defendants move to dismiss the accusatory instruments upon the grounds (1) the specified gambling statutes are unconstitutional, and (2) the ‘People are guilty of selective and discriminatory prosecution.’ In the alternative the defendants move for (a) a preliminary hearing pursuant to section 170.75 of the Criminal Procedure Law, and (b) the suppression of the evidence seized.

Published on: September 2, 2014

Fourth Amendment issues

by Stephen Bilkis

While on patrol in a marked radio car with a fellow officer, a police officer received a radio run reporting shots fired in the vicinity of 142nd Street and Rockaway Boulevard. Arriving at the scene within approximately two minutes, the police were waved down by a man. The latter reported that a friend had attempted to shoot him three times but the gun failed to fire. The police were directed to what was apparently the only apartment on the second floor of a building located at 142-90 Rockaway Boulevard.

A Queens County Gun Crime attorney said that the officer and other officers went to the apartment on the second floor, and upon discovering the door partly open, the officer, with gun drawn, announced that the police were there and were coming in. Upon entering the apartment, the officer observed an older woman in the living room, and he observed criminal defendant and another man emerge from a bedroom, approximately 12 to 15 feet away from the point of the officer’s entrance into the premises. Both men were put up against a wall and frisked. Neither was found to be in possession of a weapon. The man, having entered the apartment, identified defendant as the person who had attempted to shoot him. Defendant was arrested and handcuffed, and the second person who had emerged from the bedroom was released.

The Criminal Term concluded that the warrantless entry into the subject premises violated defendant’s constitutional rights pursuant to the dictates of a jurisprudence. The gun and the statements were suppressed as “Fruits of the Poisoned Tree”. The gun was also suppressed on the independent ground that “the defendant and the premises were secured at the time by four armed police officers who had ample opportunity to obtain a search warrant. “

Published on: August 30, 2014

Order of Protection should not have been issued in this case

by Stephen Bilkis

Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

A New York Criminal Lawyer said that, defendant was arrested on June 24, 1988 and charged with Assault in the Third Degree, and with Harassment, on the complaint of his wife. According to the June 24 complaint of Police Officer corroborated by the complainant wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Domestic Violence Lawyer said that, at his arraignment on June 24, 1988, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of Protection, effective until July 17, 1988, unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The Temporary Order of Protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York, directed defendant as follows: (a) to stay away from the home, school, business or place of employment of the complainant; (c) to abstain from offensive conduct against the complainant; (d) to refrain from acts of omission or commission that tend to make the home not a proper place for the complainant. The effect of this Temporary Order of Protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.

Published on: August 27, 2014

Sex Offenders of the State of New York

by Stephen Bilkis

This is a proceeding wherein the petitioner, DK, petitions for an order and judgment, pursuant to CPLR 7801-7806, annulling and vacating the 25 January 2011 final determination of respondent Board of Examiners of Criminal Sex Offenders of the State of New York on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

The court dismisses the petition.

The petitioner claims that his Florida nolo contendere plea to the crime of indecent assault under former Fla Stat § 800.04[3] for which the court withheld adjudication and entered an order of supervision placing petitioner on sexual offender probation for four years, does not constitute a conviction for purposes of the Sex Offender Registration Act and that, as such, the Board erred in determining that petitioner was required to register under SORA.

Published on: August 26, 2014

The defendant may have been attempting to strike up a conversation with a female

by Stephen Bilkis

In one evening, a Detective, who was assigned as backup to an undercover police officer who was attempting to buy controlled substances at a social club. There is no evidence in the record that the undercover officer was able to achieve that objective. However, at 8:00 P.M., the undercover officer advised the Detective by radio transmission that a tall white male with a pony tail approached her inside the social club and asked her “if she wanted to take a hit of cocaine”.

A Queens County Criminal attorney said that approximately six hours after the defendant asked the undercover officer if she wanted a “hit” of the drug cocaine, the undercover officer left the social club, and the Detective and other police officers arrived at the social club. The police directed its occupants to leave, and “stopped” and searched the defendant and “everybody when they came out”. The Detective recovered a packet of cocaine from the defendant’s jacket pocket and a .38 caliber automatic gun from the defendant’s boot.

It is unclear from the record whether the defendant was arrested before or after the search. Our dissenting colleague’s conclusion that the defendant was “the first of seven patrons to be arrested and searched”, is based upon a statement of the defendant’s attorney made upon “information and belief” during colloquy. During subsequent colloquy, the defense counsel stated, also “on information and belief”, that the undercover officer was a “very beautiful” woman, and that the defendant “could have been just trying to pick her up”. Clearly, neither of these representations constituted evidence.

Published on: August 25, 2014

People v. David W.

by Stephen Bilkis

This is a proceeding wherein the defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on the grounds that, unbeknownst to criminal defendant, the complainant had recanted her accusation both to the court and the district attorney’s office prior to the entry of defendant’s plea of guilty, and the prosecutor’s failure to disclose this information constituted a Brady violation, that such recantation constitutes newly discovered evidence warranting vacatur of the conviction, that criminal defendant’s plea of guilty was involuntary because he was not aware that he would be required to register as a sex offender and that his counsel was ineffective in that he prevented the judge at arraignment from dismissing the charges.

The People assert that, in preparing their response to the motion, they learned that the files of the District Attorney’s office pertaining to this case have been destroyed, and the court file has been lost and is therefore unavailable. The People were, however, able to obtain the pre-sentence report. The People’s affirmation is based on information from records and files of the New York State Division of Parole, the New York City Police Department, the Florida Sex Offender Registry, the United States Attorney’s Office for the Southern District of Florida, and upon conversations with individuals from the U.S. Attorney’s office, the NYS Office of Sex Offender Management and the NYS Department of Correctional Services.

In April 1976, the defendant was charged with rape in the first degree and sexual abuse in the first degree. The defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. On 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, the defendant had told the complainant that he wanted to have sex. Upon her refusal, he forced her to engage in intercourse. Thereafter, the complainant was later taken to Brookdale Hospital for examination. She was negative for the presence of semen. On 28 April 1976, the complaining witness identified defendant to the police in front of the complaining witness’s home. The defendant was arrested. In statements following his arrest, defendant admitted having had intercourse with the complainant but denied having used force. He claimed that the complainant had been angry over the fact that defendant had been seeing another woman.

Published on: August 24, 2014

RCNY, Title 38, and Chapter 12

by Stephen Bilkis

According to the Property Clerk’s invoices, on May 15, 2008 and May 19, 2008, Detective YL of the New York City Police Department’s Major Case Squad seized from Petitioner various items of property and classified them as Investigatory under Property Clerk’s invoices P002313, P002358, P002361, P002363, P002364, and P002360, hereinafter the subject property. According to respondents, Petitioner was arrested by Detective YL on July 17, 2008, and charged with violating New York Penal Law Sections 155.40, Attempted Grand Larceny in the Second Degree; 190.80, Identity Theft in the First Degree; 170.10 Forgery in the Second Degree; 155.35 Grand Larceny in the Third Degree; 190.26(1), Criminal Impersonation in the First Degree; 190.26(2), Criminal Impersonation in the Second Degree; and 155.30, Grand Larceny in the Fourth Degree. On March 26, 2009, Petitioner pleaded guilty to two counts of violating New York Penal Law Section 190.80, Identity Theft in the First Degree, and was sentenced on May 28, 2009 to consecutive terms of 4 to 8 years.

On June 9, 2009, Petitioner filed a motion with the Criminal Court in Richmond County seeking the return of the subject property, which was opposed by the Richmond County District Attorney’s Office. By decision and order dated July 13, 2009, The Supreme Court, Richmond County denied Petitioner’ motion, writing that the motion lacks any basis in statutory or common law in both its form and chosen forum, and that Petitioner failed to provide an affidavit with sworn allegations of fact, hereinafter the Criminal Court decision.

On August 4, 2009, an inquiry was made on behalf of Petitioner with the New York City Police Department’s Property Clerk for the subject property, and the Property Clerk issued an acknowledgment of the demand. Upon receiving an inquiry, the Property Clerk contacted Detective YL to determine the status of the subject property. In memorandum dated August 11, 2009, Detective YL changed the classification of the subject property from Investigative to Arrest Evidence.

Published on: August 24, 2014

Prostitution is a class B misdemeanor

by Stephen Bilkis

Policy considerations, however, may militate against entertaining an action for declaratory judgment that is instituted to challenge a criminal court’s ruling. On this basis, both declaratory relief and prohibition have been limited as a means for attacking penal statutes or court rulings. On reviewing the reasons underlying those decisions, it is concluded that the action here is proper. Declaratory relief, on the other hand, generally seeks a determination of rights before a “wrong” occurs, rather than collateral review of a court’s ruling. In that context, it has been used to test penal statutes. Two tacks have been taken in seeking declaratory relief with regard to criminal laws. First, some have sought a determination whether particular conduct violates some penal law. The other has been to test the constitutional validity of a statute. This court generally has held that the latter is proper; the former is more circumscribed.

With this in mind, it can be stated that a declaratory judgment attacking a criminal court’s interlocutory ruling may be granted when the controversy is over the validity of a statute, the determination of which does not require resolving any factual disputes, and there is no immediate attempt to prevent the criminal court from proceeding on the course which it has charted by its ruling. Furthermore, the criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases. Put another way, the situation must be one where it can be assumed that the question will recur in other prosecutions and the criminal court will decide it in the same way. Inasmuch as a defendant always has available a right to appeal, only an application for declaratory relief by the People should be entertained. The recurring nature of the issue, therefore, should pose a risk of significantly obstructing the task of administering criminal justice by imposing an undue burden on prosecutors and the courts. Although this court declines today to expressly limit when such an action may be brought, it is noted that this concern over obstructing the speedy resolution of cases suggests that it is most appropriate when the challenge is to a ruling on how a trial is to be conducted. This “procedural” type of question is also the sort that is likely to recur and to be decided in the same manner regardless of the facts underlying the criminal charges. On the other hand, mere evidentiary rulings would not be proper subjects. Finally, the appropriate parties do not include the individual defendant in the case where the challenged ruling was made; as to him or her, there is another pending proceeding and the controversy has been decided. As a corollary, the action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court.

Applying these factors to the instant proceeding, it is apparent that declaratory relief is proper. Judge ruled that CPL 340.40 (subd. 2) was unconstitutional as applied to prostitution defendants in New York City. The nature of the ruling clearly makes it one that will be repeated unchanged in future prosecutions. Its potential impact on the criminal justice system is manifest from Judge Erlbaum’s own decision. In 1979, a total of only 15 out of 14,247 prostitution cases went to trial in the Manhattan Criminal Court. It can be expected that, if jury trials were available, far more prostitution defendants would demand trials, which would overwhelm the courts and prosecutors by consuming large amounts of time for selecting juries and would cause unmanageable delays.

Published on: August 23, 2014

The Illinois Appellate Court

by Stephen Bilkis

A Queens Shoplifting Lawyer said that, this case before the court involves a supermarket owner (the complainant) who, while manning the checkout register near the exit, saw the defendant go past him with an armful of meat, subsequently estimated at $30 worth. When he called out, defendant quickened his pace and left the store. The owner took off after him, gave chase around the corner, and saw defendant enter a car. The motor was running. As the complainant paused to jot down the license plate number, the meat was thrown from the car. While this was happening a police patrol car came upon the scene. In a matter of seconds defendant and co-defendant (who was at the wheel of the car) were under arrest, charged with the Class A misdemeanor of petit larceny.

A Queens Petit Larceny Lawyer said that, at the preliminary hearing the complainant testified that the meat, once repossessed, was cleaned, re-wrapped and sold in the regular course of the supermarket’s business. The meat obviously was not produced at the hearing, which took place three weeks after the incident. Such tags as it may have had, identifying its ownership or other information, were lost sight of and were never produced in court.

A Queens Criminal Lawyer said that, at the close of the preliminary hearing the defendants now move to dismiss the complaint on the ground that the People have failed to meet the obligation to establish reasonable cause for the arrest, as required by Section 170.75, subdivision 3(a) of the Criminal Procedure Law. Although they admit that it would have been inappropriate, perhaps, to bring such perishable property into court, they contend that the prosecution had an obligation to bring in and introduce memorandum tags of ownership as a prerequisite to oral testimony of ownership. In the alternative, they claim that the People should have been required, before oral testimony of ownership could be admitted, to give a satisfactory explanation for their failure to produce such tags. To this end they invoke the functional definition of the best evidence rule as requiring ‘that whenever a party seeks to prove the contents of a writing, he must produce the original of the writing or satisfactorily account for its absence.’