New York Criminal Lawyer Blog

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.

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.