New York Criminal Lawyer Blog

Published on: August 14, 2014

United States v. Salerno

by Stephen Bilkis

This proceeding brought before the court on 26 May 2011 held a probable cause hearing arising out of a petition filed on 14 January 2011 by the New York State Attorney General (“Petitioner”), pursuant to Article 10 of the Mental Hygiene Law (“MHL”), seeking a determination that Respondent ET is a detained sex crimes offender requiring civil management. Dr. KC, a licensed psychologist, who was qualified by the Court as an expert in the field of psychology, testified on behalf of Petitioner. Respondent presented no witnesses.

At the conclusion of the hearing, Petitioner asked the Criminal Court to make a finding of dangerousness with respect to Respondent and to direct that he be civilly confined pursuant to MHL § 10.06(k) pending a trial on the matter.

Based upon the evidence presented at the hearing, the Court found that Petitioner had established that there is probable cause to believe that Respondent is a detained sex offender requiring civil management. The Court issued an interim order finding that Respondent would be a danger to the community, in part because no form of community supervision pending the outcome of the Article 10 petition is provided for in Article 10. The Court informed the parties that it would issue a written decision.

Published on: August 13, 2014

First, in fact, BM was in New York County when he attempted to acquire the videotapes

by Stephen Bilkis

In the case at bar, the claim that the federal jurisdictional predicate excludes BM’s federal crime from inclusion under SORA is even weaker. First, in fact, BM was in New York County when he attempted to acquire the videotapes, and second, the jurisdictional requirement is for the federal crime, in addition to all other elements, and not in substitution therefor. While an essential element necessary for a conviction in New York missing in the federal prosecution would bar a conviction in such proceeding from consideration under SORA, an additional element should not. In the former case, there would be no basis to believe an analogous crime had been committed. In the latter case, there would only be a possibility that some persons who might have been convicted in New York would not be convicted under the federal statute which requires additional elements to be proven for conviction. The court finds that “essential elements” must be considered by applying appropriate standards of statutory construction.

New York State courts have almost uniformly held that the laws requiring registration of sex crimes offenders are remedial and therefore constitutional. In most cases, the courts have found SORA does not violate double jeopardy rights or the Ex Post Facto Clause. Requirements for notification and registration are civil and remedial and do not constitute punishment. The purpose of which is to adopt a remedial measure to ameliorate the danger to the public caused by the release of sex offenders and does not violate petitioner’s double jeopardy rights. Since SORA is unquestionably a remedial or civil statute, the court must apply appropriate construction to the “essential elements” test.

Remedial statutes are those which are made to supply some defect or abridge some superfluity in the former law, or which supply a remedy where none previously existed. They are also referred to as statutes designed to correct imperfections in prior law by generally giving relief to the aggrieved party. Generally speaking, remedial statutes meet with judicial approval and are to be liberally construed to spread their beneficial results as widely as possible. A liberal construction of such statutes is one which is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act, it is deemed within the statute, though not actually within the letter of the law.

Published on: August 11, 2014

New York Offender Registration Act (SORA)

by Stephen Bilkis

On 12 May 1999, BM pleaded guilty in the United States District Court for the Southern District of New York to an indictment charging a violation of 18 USC § 2252 (a) (2), a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that BM attempted to purchase videotapes depicting child pornography. The underlying facts indicate that BM, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.

Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Offender Registration Act (SORA), Correction Law article 6-C, determined that BM was required to as a sex crimes offender, and so notified him on 7 December 2000. BM has challenged the applicability of SORA to him on the ground that the federal conviction does not include all of the essential elements of the applicable designated felony as set forth in SORA.

SORA requires a person who has been convicted of certain criminal offenses, referred to in SORA as “sexual offenses,” to register as a sex offender in the State of New York. A “sexual abuse offense” is defined by express reference to a list of New York crimes if the conviction was in New York. Under SORA, crimes committed in other jurisdictions include a conviction under federal law in a federal court in New York. There are two alternate criteria established to determine whether such crime is a “sexual offense” under SORA which requires SORA registration: “whether the conviction in the other jurisdiction was a conviction of an offense which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdivision Correction Law § 168-a [2] [b] -paragraph (a) lists the New York offenses requiring registration, or whether the other conviction was a conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.”

Published on: August 10, 2014

Appellate Division of the Supreme Court

by Stephen Bilkis

These are two juvenile delinquency proceedings pursuant to Family Court Act article 3. Appellant appeals are from (1) a fact-finding order of the Family Court, Queens County, which, after a fact-finding hearing, found that the appellant committed an act which, if committed by an adult, would have constituted the crime of resisting arrest, (2) an order of disposition of the same court, which, upon the fact-finding order, and a second fact-finding order of the same court, after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of stolen property in the fifth degree and petit larceny adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months, and (3) an amended order of disposition of the same court. The appeal from the amended order of disposition, brings up for review the fact-finding order.

A Queens County Criminal attorney said that the orders appealed from arose from two separate incidents. In March 2003 the appellant was arrested for disorderly conduct; the charge was subsequently changed to resisting arrest. In August 2003 the appellant was arrested again, this time for shoplifting.

With respect to the first incident, viewing the evidence in the light most favorable to the presentment agency, the Court find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed acts which, had they been committed by an adult, would have constituted resisting arrest.

Published on: August 10, 2014

She did not know who owned the gun

by Stephen Bilkis

At approximately 12:55 a.m., a police officer, in plain clothes and assigned to the street crime unit, was driving southbound in an unmarked police car with his partner when he observed an automobile that double parked the street on the northbound side. He also observed that there were no other similarly double parked cars. The officer saw a man, who was standing on the passenger side of the car by the open rear door, remove something from his waistband, lean over and place it in the rear passenger compartment. The officer could not tell what the object was but, based on his extensive experience as a police officer and member of the street crime unit and the man’s movements, he believed it to be a gun. The officer then made a U-turn and pulled up behind the car, which had two occupants, both women, seated in the front. As the police vehicle came to a stop, the man closed the door and walked away.

The officer exited his car, stopped the criminal man near the rear of the car, identified himself as a police officer and, while the other officer detained the man, approached the car. On the floor of the rear compartment, he observed an empty shoe box and a .9mm semi-automatic handgun, the barrel of which was partially covered by the shoe box. The officer recovered the gun, which had six rounds of ammunition in the magazine and one in the chamber. At that point, the man told the officer that he would take the weight for the gun. After the officer explained to the man that if the gun was not his, he should not take the responsibility for it, but, the man admitted that he owned the gun.

At trial, the man called two witnesses, first, a neighbor and a friend of his family, who testified that the man was on the sidewalk talking to his brother when two men, whom she later learned were police officers, arrived. After speaking to the occupants of the double-parked car and removing them from the vehicle, one of the officers reached into the car and removed something. The two officers then arrested the man. The man’s second witness testified and stated that she was an ice cream vendor and a friend of the man, who had occasionally worked with him on her route. She stated that she was sitting in the driver’s seat of her automobile while waiting for the man, when she saw two plainclothes officers approach him as he stood on the sidewalk talking to his brother, and, apparently believing the man to be a robbery suspect and ask him for identification. She further stated that the officers then searched the front and back of her car and recovered a gun, which the criminal man denied owning. She did not know who owned the gun or how it found its way into her car. She testified that the man had not been in the car before the police approached.

Published on: August 9, 2014

Both crimes result in death

by Stephen Bilkis

The deceased and his male friend occasionally sold marijuana out of a grocery store they owned together in Queens. While the deceased was away on a trip, the defendant came into the store and told the male friend that he wanted to buy a quantity of marijuana. They agreed on a price of $4,000, and the defendant later sent a man to pick up the drugs. The male friend soon discovered that the bills the man had given him in exchange for the marijuana were counterfeit. He called the defendant and demanded that he either return the drugs or bring the money. The criminal defendant did neither and, when the deceased returned from his trip, the male friend told him what had happened.

On the evening of January 19, 1993, the deceased was in the store with another friend. An associate of the defendant telephoned but the deceased hung up on him after saying only, that he doesn’t want to hear what he is to say. Another call came and the caller told him to bring the stuff back. Another call came in, this one from the defendant himself. Again, the deceased said that he doesn’t want to hear it, just bring it back.

A few minutes later, another man arrived at the store, followed soon after by the defendant and two other men. After one of the men asked the deceased why he had hung up on him, the defendant suddenly produced a gun, pointed it at the deceased, and said that he heard him telling the people what he is going to do him. The deceased replied that it is not true, but the defendant fired one shot at him from a distance of approximately four to five feet, striking him in the neck. After being shot, the deceased made an attempt to get out of the store through the back door behind the counter. He was unsuccessful.

Published on: August 7, 2014

Court found that it was legally sufficient to establish the defendant’s guilt

by Stephen Bilkis

An Appeal was filed by the defendant from a judgment of the County Court, Suffolk County, convicting him of criminal possession of a controlled substance in the fourth degree and failure to stop at a stop sign, upon a jury verdict, and imposing sentence.

A Suffolk County Drug Crime attorney said that the defendant’s motion to dismiss the indictment on the ground that he was not afforded the opportunity to testify before the grand jury, and that he was deprived of the effective assistance of counsel in that respect, was properly denied.

Viewing the evidence in the light most favorable to the prosecution, the Court found that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling the Court’s responsibility to conduct an independent review of the weight of the evidence.

Published on: August 7, 2014

V.T.L. § 1192

by Stephen Bilkis

In a civil forfeiture action, the defendant appeals from a judgment of the Supreme Court, Nassau County, which, upon an order of the same court, searching the record and granting summary judgment in favor of the plaintiff, declared that the defendant had forfeited all right, title, and interest in a certain 1996 Mazda automobile.

A Nassau County Criminal attorney said that the defendant was arrested for misdemeanor driving while intoxicated (hereinafter DWI). Incident to the defendant’s arrest, her 1996 Mazda automobile was seized. The defendant pleaded guilty to the lesser charge of driving while ability impaired (hereinafter DWI) as proscribed by Vehicle and Traffic Law 1192(1), a traffic infraction. Thereafter, the plaintiff, County of Nassau, commenced this action for the forfeiture of the defendant’s car

It is well settled that automobiles operated by intoxicated drivers may be seized and sold pursuant to civil forfeiture laws. Pursuant to section 8-7.0(g) of the Nassau County Administrative Code, “instrumentalities of a crime” seized incident to arrest, are subject to civil forfeiture upon conviction of a misdemeanor, crime, or petty offense. Notwithstanding that Vehicle and Traffic Law 155 provides that traffic infractions are not crimes, Criminal Procedure Law 1.20(39) defines a petty offense to include traffic infractions. The defendant’s sole contention that, because a traffic infraction is not a crime pursuant to the Vehicle and Traffic Law, it cannot serve as a predicate for civil forfeiture, is a non sequitur.

Published on: August 5, 2014

The People had an opportunity to establish that fact

by Stephen Bilkis

In May 1964 a search warrant authorizing a search of the person and the Queens County residence of the defendant was issued, based upon a supporting affidavit sworn to by a Detective. Armed with the warrant, the Detective and two other detectives took the defendant into custody in Manhattan, near his place of business. They frisked him but did not then open the attache case that he was carrying.

A Queens County Gun Crime lawyer said that the detectives informed the criminal defendant that they had the warrant and that with or without him they were going to proceed to Queens County to execute it. He apparently chose to accompany them. Just before entering the house, the detectives opened the attache case and discovered a loaded gun and a large quantity of airline tickets. The search of the house resulted in the seizure of another loaded gun, a pair of brass knuckles and a blackjack.

After the search was concluded, the officers asked the criminal defendant about the items found in the attache case and in the house, and he admitted ownership of the gun, brass knuckles and blackjack. According to the record, defendant made no statement until the weapon had been found.

Published on: August 5, 2014

A police officer and his partner received a radio transmission

by Stephen Bilkis

A man spent the evening of Saturday and the early morning hours of the next day in a basement apartment, smoking large quantities of crack cocaine and drinking large quantities of alcohol. As the night progressed, he also kidnapped and robbed at least two individual. After one of the said victims became very agitated, the man allowed him to leave on the condition that he will be back with money. The victim returned with his armed stepson and a friend. The man shot and killed the stepson, firing five rounds at him.

The man was then convicted of felony murder in the second degree, kidnapping in the second degree, robbery in the first degree, criminal possession of a weapon in the second degree, and two counts of criminal possession of a weapon in the third degree. He then filed an appeal, principally arguing that the trial court should have given a justification charge to felony murder.

At trial, a witness testified that at approximately 9:30 P.M., he went to a basement apartment to pick up a woman, whom he had recently met. Immediately upon entering the apartment, an individual whom he had never seen before and whom he identified at trial as the man, placed a gun at his back, searched him, took his money, keys, wallet, and other personal items, and ordered him to sit down. Also, inside the apartment at that time, there were the woman and two men that the witness had never seen before. The man, the woman, and the other individual then drank and did drugs, all of which they purchased with the witness’ money. At no time did the man put away the gun. During that time, the witness heard the man claim that when the drugs ran out, the woman would be the only witness.