New York Criminal Lawyer Blog

Published on: August 22, 2014

CPL 340.40 (subd. 2)

by Stephen Bilkis

Respondent is a Judge of the Criminal Court of the City of New York, New York County. In 1981, two women accused of prostitution, which carries a three-month maximum sentence, appeared before the respondent Judge and moved for trial by jury. The defendants argued that CPL 340.40 (subd. 2), directing that crimes punishable by not more than six months’ incarceration shall be heard before a Judge, was unconstitutional because it deprived them of their Sixth Amendment right to jury trial and denied them equal protection of the law. The court granted their motion, reasoning that, notwithstanding its relatively minor sentence, prostitution is a “serious” crime with a concomitant right to trial by jury. The defendants’ equal protection argument was not reached.

A New York Criminal Lawyer said that, petitioner, the District Attorney of New York County, commenced this proceeding to prevent respondent’s order from taking effect. Initially, the matter was instituted under CPLR article 78 to obtain a writ of prohibition. Petitioner moved to convert the proceeding into an action for declaratory judgment after this court stated that prohibition is not available to attack a criminal court’s ruling that a statute denying a trial by jury is unconstitutional. Special Term granted the motion to convert and declared that CPL 340.40 (subd. 2) is constitutional. The Appellate Division, First Department, affirmed, but without opinion.

The issues in this case are: first is the procedural propriety of an action seeking declaratory relief that, in effect, collaterally attacks a criminal court’s ruling. The other matter, assuming that the action is proper, is whether CPL 340.40 (subd. 2) violates the Sixth Amendment.

Published on: August 22, 2014

Officer Graham approached defendant

by Stephen Bilkis

Upon defendant’s motion, the Court conducted a combined hearing. The People called three witnesses, a Detective assigned to the Police Commissioner’s office, and 2 Police Officers. The defendant’s father testified for the defendant.

A Queens County Criminal attorney said that an Officer overheard these radio reports. While in the vicinity of 156th Street and 113th Avenue, approximately three blocks from the shooting and six minutes after the original broadcast, the officer observed defendant, a male Black, 6’1″‘ tall and 185 lbs., leaning against an automobile, parked on the left side of the street. Defendant was wearing a dark blue hooded sweatshirt and blue jeans, and was the only male in the area. He had his hands in the pouch in the front of the sweatshirt, which sagged a little.

The Officer asked defendant to remove his hands from the pouch, which he did, at which point the officer noticed that the pouch sagged or drooped more and he observed a bulge. He reached and touched the area with his left hand and felt the cylinder of a gun and reached inside with his right hand, removed the gun and swung defendant around, placing him up against a car. A subsequent inspection of the weapon revealed four live rounds and one spent shell.

Published on: August 21, 2014

CPL 60.42

by Stephen Bilkis

A New York Sex Crimes Lawyer said that, the defendants were indicted for the crimes of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree. Although the alleged crimes occurred on April 4, 1975, the trial did not commence until October 21, 1975. The trial court determined that the provisions of CPL 60.42 were applicable to the trial of this case.

A New York Criminal Lawyer said that, pursuant to CPL 60.42, the defendants made an offer of proof concerning the complaint’s prior sexual conduct. After a hearing and a review of the various exhibits submitted by defendants, the trial court ruled that subdivisions 1 through 4 were not applicable and that the evidence offered was not “relevant and admissible in the interests of justice” under subdivision 5. Evidence of the complainant’s prior sexual conduct was therefore barred at the trial. Defendants contend that application of CPL 60.42 violated section 10 of article I of the United States Constitution, which prohibits the Legislature from passing an ex post facto law.

The issue in this case is whether the trial court erred in determining that the provisions of CPL 60.42 were applicable to the trial of this case.

Published on: August 20, 2014

Section 395, Code Cr.Proc

by Stephen Bilkis

In this Criminal case, the indictment charges the defendant with the crime of ‘Carrying a Dangerous Weapon’ in that he ‘had and carried concealed upon his person, a pistol loaded with ammunition at the time, without a valid, written license therefor.’

A Queens County Criminal attorney said that the only testimony before the Grand Jury is that of two police officers, the second one being a fingerprint expert whose testimony was elicited merely for the purpose of making the instant charge a felony, and who otherwise gave no substantive testimony.

The other witness, testified that in the course of a police investigation he took the defendant into custody at the Detective Squad in Queens County; that he questioned him in regard to a shooting that occurred at about 5:30 p. m. on that day; that the defendant told him that he was engaged in the shooting, that he had used a pistol, and that he had dropped that pistol in a specified catch basin.

Published on: August 20, 2014

Miranda warnings

by Stephen Bilkis

While on motor patrol in August 1977, a Police Officer received a call that shots were fired at premises located at a street in Queens. He proceeded to that location with his partners. Upon arriving and receiving information that someone had been seen on the roof, the Officer received permission from a tenant to go through her apartment to the fire escape which gave access to the roof.

A Queens County Gun Crime attorney said that on his way to the roof, the Officer observed the defendant peering down. As the officer approached, the defendant said, “That is all right, Officer, I am only walking my dog.” He told him to keep his hands in view, and he completed his ascent to the roof. It was dark and the weather was clear and warm.

A Queens County Criminal lawyer said that when the Officer arrived on the roof, he saw the defendant standing there without shirt or shoes. He was attired only in a pair of coveralls. He had a dog with him. When asked if he had heard anything, the defendant told the Officer that he had heard a few shots fired. At that moment his partners arrived, coming through two entrances from separate stairwells, which, they said, had been locked from the inside.

Published on: August 19, 2014

Correction Law §§ 168-l and 168-n

by Stephen Bilkis

This is a proceeding wherein the defendant, a convicted sex crimes offender, appeals from an amended order determining that he is a “level three” risk under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.

As a matter of first impression at the appellate level, the court must determine whether County Court, on the People’s request for reconsideration of a prior order determining defendant to be a “level two risk,” had statutory or inherent authority to depart from its prior order and make a new determination.

The court concludes that the appellate court was authorized to reconsider or correct its determination of risk level under SORA based on further argument by the People and/or additional information provided by them.

Published on: August 17, 2014

Supreme Court correctly defined the crime

by Stephen Bilkis

In this Criminal case, the defendant appealed from a judgment convicting him of falsely reporting an incident in the third degree (two counts), upon a jury verdict, and imposing sentence.

A Queens County Criminal attorney said that in the early morning hours of May 2007, the defendant appeared at a for treatment of a gunshot wound to his left foot. After the hospital notified the police responded to the hospital, and asked the defendant what had happened. The defendant answered that, while he was standing on the corner of 157th Street and South Road in Jamaica, Queens, an unknown black male fired shots at the ground, and he was struck in the foot.

The defendant was subsequently transferred to another hospital, where he gave a similar account to a New York City Police Detective. The latter told the defendant that he did not believe his story and warned the defendant that if his account proved to be false, he would be charged with filing a false police report. The defendant then changed his story, and told the Detective that he had been drinking in a bar on Linden Boulevard, a location within the 113th Precinct. He stated that, when he left the bar, he was shot by someone he did not see.

Published on: August 17, 2014

Consequently, the court decided to settle the motion.

by Stephen Bilkis

A man is charged with three counts of forgery in the second degree, criminal buying and receiving stolen property, criminal concealing and withholding stolen and wrongfully acquired property, possessing a pistol loaded with ammunition as a felony, and possession of a pistol, a bludgeon and a set of metal knuckles as a misdemeanor. The matter of the forgery counts and the buying, receiving, concealing and withholding counts are a quantity of airline tickets.

The man then moved for an order suppressing the use of any and all evidence seized in violation of his constitutional rights and for other and further relief as justice may demand a hearing was ordered.

The evidence discloses that the police obtained a search warrant from a judge of the criminal court, based upon the information allegedly furnished by a reliable informant that the man was in possession of jewelry which was proceeds of a crime, also a loaded gun and possible other contraband.

Published on: August 15, 2014

Defendant’s challenges to the court’s charge have not been preserved for appellate review

by Stephen Bilkis

This is an appeal by defendant from a judgment of the Supreme Court, Queens County, convicting him of rape in the first degree, robbery in the first degree, burglary in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

A Queens County Criminal lawyer said that despite the fact that a review of the record demonstrates that the evidence was sufficient to sustain the conviction in this case, reversal is mandated because of the substantial probability that various errors influenced the jury’s verdict.

Evidence of defendant’s guilt was based solely upon eyewitness identification testimony. Defendant proffered an alibi, and the defense theory was that the defendant had been misidentified. During the cross-examination of both of defendant’s alibi witnesses, the prosecutor elicited testimony that both had failed to respond to a letter from the District Attorney’s office and otherwise did not come forward and disclose any information with respect to the alibi to law enforcement authorities. Contrary to the proper procedure prescribed in this type of matter, the court made no attempt to determine at a bench conference the reason for such failure on the part of the alibi witnesses to have come forward to law enforcement authorities, nor did it make any effort to determine whether there existed a good faith basis for the prosecutor’s questioning in this regard.

Published on: August 14, 2014

Department of Correctional Services

by Stephen Bilkis

This is a proceeding wherein the Defendant appeared before the Court for a risk level determination pursuant to the Sex Offender Registration Act (SORA).

First, defendant moved to have this Court declare SORA unconstitutional and argues that the SORA Risk Assessment Instrument (RAI) does not measure the risk of re-offense as it purports to do but reflects a moral judgment about how blameworthy sexually offending behavior is. He describes the instrument and risk level determinations under SORA as punitive rather than regulatory. For this reason, he alleges, the statute is unconstitutional.

Second, defendant urges that the use of a “psuedo-scientific” instrument, the RAI, to deprive persons of a basic liberty interest violates due process. Defendant acknowledges that this claim was rejected by the First Department in People v Ferrer but argues, inter alia, that the decision is so conclusory that it cannot act as a barrier to consideration by this Court.