New York Criminal Lawyer Blog

Published on: August 4, 2014

CPL § 200.70(2)(b)

by Stephen Bilkis

This is a criminal case where Defendant, a former Police Chief of Metro-North Commuter Railroad Company, has been indicted and charged with computer trespass in violation of Penal Law § 156.10(2), unauthorized use of a computer in violation of PL § 156.05), falsifying business records in the first degree in violation of PL § 175.10 and official misconduct in violation of PL § 195.00(1). A New York Criminal lawyer said that All charges arise from the alleged misuse of the New York State Police Information Network (NYSPIN), a computer system containing individual criminal histories. Defendant moves for an order seeking dismissal of the indictment on multiple grounds.

A public servant, to be guilty of official misconduct, must intend to obtain a benefit to himself. While PL § 10.00(17) defines a benefit as “including a gain or advantage to [another] person”, a fair reading of these words compels the conclusion that the benefit to another person must be at least indirectly of benefit to the accused, as, for example, a benefit to the accused’s family, to a friend or to the accused’s business., by using the words “and includes” rather than the word “or” limits “benefit” to a gain or advantage to the beneficiary.

There is nothing in the case law that contradicts this construction of PL § 195.00. In 1969, an upstate trial court recited the history of the statute and its predecessor provisions and held that the crime of official misconduct requires “[a] culpable motive which must be directly connected with the duty which the public servant violated and such motive must be of a venal nature”. It is a specific intent to obtain a benefit or to injure another person or deprive another person of a benefit”. A few courts have fleshed out the statutory definition of “benefit” in the context of bribery and bribe receiving under Penal Law Article 200.

Published on: August 3, 2014

Article 14 of the Vehicle and Traffic Law

by Stephen Bilkis

The defendant is charged with violating the Vehicle and Traffic Law, which in part states that any person operating a motor vehicle, who knowing that damage has been caused to personal property of another, due to the culpability of the person operating such motor vehicle leaves the place where the damage occurred without stopping, and exhibiting his license, is guilty of a misdemeanor. He moves for a dismissal of the charge following a preliminary hearing.

The credible evidence at the hearing held disclosed that the defendant had, under circumstances which he did not choose to explain, left the automobile which he had been driving and that the automobile, with its engine running had then collided with a parked motor vehicle. The arresting officer testified that he had heard the noise of a collision between the driverless automobile and the parked automobile.

There is no question that, at the time of the impact, the defendant was not in the automobile which he had been driving up until a few seconds before the collision.

Published on: August 2, 2014

Sandoval ruling

by Stephen Bilkis

An appeal was made by the defendant from a judgment of the Criminal County Court convicting him of grand larceny in the third degree (four counts) and scheme to defraud in the first degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of 1 to 3 years, 1 1/3 to 4 years, 1 2/3 to 5 years, and 2 to 6 years imprisonment, respectively, on each of his convictions of grand larceny in the third degree, and an indeterminate term of 2 to 6 years imprisonment on his conviction of scheme of bank fraud in the first degree, to run concurrently with the terms of imprisonment imposed on the convictions of grand larceny in the third degree.

The judgment is modified, on the law, by reducing the sentence imposed on the conviction of scheme to defraud in the first degree from an indeterminate term of 2 to 6 years imprisonment to an indeterminate term of 1 1/3 to 4 years imprisonment; the judgment is affirmed.

The defendant contends on appeal that the jury verdict was not supported by legally sufficient evidence. This contention is unpreserved for appellate review as the defendant’s motion for a trial order of dismissal was general in nature. In any event, viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of factual review power, the verdict of guilt was not against the weight of the evidence.

Published on: August 2, 2014

On November 25, 1974 the defendant was sentenced to concurrent terms

by Stephen Bilkis

A Queens Criminal Lawyer said that, at about 3:30 A.M. on June 17, 1972, a girl of 15, was brutally knifed in the chest while sleeping in her ground floor bedroom. Before expiring, the girl told her parents (who had rushed to the room in response to her scream) that the assailant had stabbed her through an open window. Four days later, defendant was arrested for the crime and allegedly re-enacted the murder three times at the police precinct house and a fourth time at the scene of the crime itself. It was shortly discovered that defendant was being sought in connection with an existing indictment for attempted murder and some lesser crimes, that he had been adjudicated incompetent to stand trial on that indictment, and that following confinement to various mental institutions, he had been released in February of 1972 without the sanction of law enforcement authorities. Two weeks after the arrest for the slaying, the defendant’s appointed attorney agreed to the delivery of his client to the District Attorney’s office for further interrogation. During the course of two examinations at the prosecutor’s office, defendant is said to have re-enacted numerous murders and assaults. More than two years later, after trial by jury, the defendant was convicted on his earlier indictment. At a bench trial which followed, he was convicted of murder.

A Queens Criminal Lawyer said that, the first of the judgments appealed stems from events which occurred in Woodhaven in Queens County during the pre-dawn hours of September 5, 1971. The defendant originally was apprehended when two police officers, searching for a prowler, came upon him walking the street in dark clothes. When asked for identification, he allegedly responded by attempting to shoot one of the officers. The gun having misfired, the policemen wrestled the six-foot and four-inch defendant to the ground, disarmed him, and discovered that he possessed an automobile license, registration, and Social Security card in the name of a certain individual. Awakened by the police, the owner of the Social Security card related that before retiring she placed her purse containing the three documents on the dining room table next to a closed window. Not only was the purse missing, but the window was open and the table cloth had been pulled the length of the table toward it.

A Queens Petit Larceny Lawyer said that, the defendant was indicted for attempted murder, reckless endangerment in the first degree, burglary in the second degree, possession of weapons, etc., as a felony, criminal possession of stolen property in the third degree, and petit larceny, but after being jailed for 10 days and confined at the Kings County State Hospital for six to seven weeks, he was adjudicated incompetent to stand trial. Further successive confinements in two other mental institutions terminated with the defendant’s release by Mental Hygiene officials in February, 1972, without notice to the proper authorities.

Published on: August 1, 2014

This court has long expressed its intolerance of general search warrants

by Stephen Bilkis

A Suffolk Marijuana Possession Lawyer said that, the People appeal from an order of the County Court, Suffolk County, which, after a hearing, granted the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material. The order should be modified, by deleting so much thereof as suppressed the eight bags of plant material and substituting therefor a provision denying the motion as to the said evidence. Armed with an affidavit signed by a named informant who had been arrested on burglary charges, the police applied to a District Court Judge for a warrant to search the defendant’s home. The informant alleged in his affidavit that he had seen 12 bags of Marijuana in the defendant’s home the day before and that the defendant was known to the informant to be a dealer in marijuana. The affidavit described the bags, their location, the premises and the occupants of the premises in great detail.

A Suffolk Criminal Possession of Marijuana Lawyer said that, based primarily upon the informant’s signed affidavit, the District Court issued a warrant authorizing the search for, and the seizure of, “twelve large plastic bags containing marijuana and any other contraband which is unlawfully possessed”.

The issue in this case is whether the court erred in granting the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material.

Published on: August 1, 2014

Maryland Court of Appeals

by Stephen Bilkis

The defendant was indicted for Attempted Murder in the First Degree and other crimes. The defendant filed an omnibus motion requesting, inter alia, dismissal of the charge of Attempted Murder in the First Degree.

A Queens County Criminal lawyer said that the defendant was granted leave to reargue. Defendant claims on reargument that his conduct does not warrant a charge of Attempted Murder because, according to the defendant’s counsel, he “merely” pointed a gun at the officer and did not attempt to fire it.

To the contrary, the defendant’s assaultive behavior and his statement of intent, as discussed below, as well as the totality of the circumstances, supports a finding that there is a reasonable suspicion that the crime charged has been committed, and that the defendant committed said crime. The court therefore reaffirms its previous decision, and upholds the indictment of Attempted Murder in the First Degree.

Published on: July 31, 2014

People v. Durham

by Stephen Bilkis

People v. Durham

Court Discusses Whether the Trial Judge Improperly Allowed Unauthorised Information Prohibited by the Sandoval Hearing

The defendant was convicted of driving while intoxication, DWI, and appealed on the ground that he did not have a fair trial. The defendant’s contention was based on the ruling of the Sandoval hearing versus what took during trial. The hearing held that if the defendant were to testify, he could be testified about his previous conviction of criminal possession of stolen property in the third degree in 1979, criminal possession of stolen property in the third degree in 1984, and operating a motor vehicle while intoxicated as a felony in 1984. The court allowed the prosecution to make inquiries into fact that there was a conviction of a class E felony in 1984 for operating a motor vehicle while intoxicated, but there could be no inquiry into the underlying facts of that conviction. The prosecution was not permitted to cross-examine the defendant on previous uncharged crimes. When the defendant testified, he denied intoxication and stated that he had experienced a dizzy spell and pull over onto the roadside. The defendant further stated he was yanked from the vehicle and lost consciousness while the police office stuck his head to the roof of the vehicle. The prosecution asserted that the defendant was driving with a suspended license and he did not produce any indicia of ownership of the car when demanded by the arresting officer after the objection by the defendant’s Queens County Criminal Attorney. The court allowed the prosecution to question the defendant about the indicia of ownership of the car. The evidence of the uncharged crimes was not directly relevant to the question of whether the defendant committed the crime charged, and went only to credibility.

Published on: July 30, 2014

Code of Judicial Conduct

by Stephen Bilkis

In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the marijuana Possession and Assault in the Second Degree and Sexual Abuse in the First Degree.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case “in which his impartiality might reasonably be questioned where … he has a personal bias or prejudice concerning a party.”

A Suffolk County Criminal attorney said that in affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation “that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court’s impartiality might reasonably be questioned.”

Published on: July 30, 2014

Family Court Act § 311.4(3)

by Stephen Bilkis

Respondent’s background was obtained by means of questions put to TS who has supervised respondent’s foster care with New York Foundling since 2007. Criminal Respondent was referred to the Girls Education & Mentoring Services, a social services program offering counseling to young women who have been sexually exploited sometime in 2009. On October or November of 2009, respondent disappeared from the GEMS facility and she subsequently fabricated a kidnapping, stating that kids kidnapped her from GEMS. According to TS, respondent later recanted, stating it was made up and she was not kid-napped. Rather, she went off and spent some time with a young man. According to TS, respondent had been referred to the GEMS program by New York Foundling because BP has a history of prostitution. TS recalled that in 2007 respondent’s foster care case had come under her supervision and that respondent, who was then just 12 years old, was already introduced to the lifestyle and had been working with criminal adult pimps.

In October, 2009, respondent gave birth to her own daughter and she and the infant were initially placed in a “mother/daughter” foster home in Brooklyn. Since then, the infant has been removed from respondent’s custody and placed into a different foster home. Child protective proceedings have been commenced on behalf of the infant and against the respondent by the Administration for Children’s Services.

In arguing for the substitution of a PINS petition, respondent’s Law Guardian contended that respondent is a victim of sexual exploitation and is entitled to the relief requested. The Law Guardian observed that respondent has no prior juvenile delinquency adjudications for offenses based upon acts defined by article 230 of the Penal Law nor does she have any PINS history in the Family Court. In addition, the respondent is herself a child placed in foster care as the result of child protective proceedings and termination of parental rights proceedings which had been previously brought against her biological parents.

Published on: July 29, 2014

DPCA developed the form to remedy perceived shortcomings in the statute

by Stephen Bilkis

This matter is before the Court for sentencing under Leandra’s Law New York’s newest anti-DWI measure wherein the defendant pled guilty to DWI driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3).

One month after the DWI death of 11-year-old Leandra Rosado in New York City, the State enacted Leandra’s Law on 18 November 2009 requiring all first-time, misdemeanor DWAI https://dwi.1800nynylaw.com/new-york-dwai-lawyer.htmloffenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra’s Law exhibits numerous defects imperiling its constitutionality.

The court faces the issues to be considered from the State’s failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Moreover, the court will examine whether the lack of a statutory metric for determining a defendant’s ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.