New York Criminal Lawyer Blog

Published on: July 29, 2014

There had been a series of postponements

by Stephen Bilkis

A man filed an appeal from a judgment convicting him of burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the man’s motion which was to suppress physical evidence.

The appellate division stated that the hearing court’s denial of the man’s motion to suppress the items seized from his person should not be reversed. It was further stated that the decision was supported by the record, which established that the stop and inspection of the man at the scene of the crime was founded upon a reasonable suspicion that he had committed the crime and that he was armed and could be dangerous.

Sources revealed that to sustain a conviction based on circumstantial evidence, the facts from which the inference of the offender’s guilt is drawn must be established with certainty, be inconsistent with his innocence, and exclude to a moral certainty every hypothesis other than guilt.

Published on: July 29, 2014

Our constitution grants a fair trial, not a flawless past

by Stephen Bilkis

A Queens Criminal Lawyer said that, defendant seeks an order restraining the District Attorney from cross-examining him regarding specific prior convictions. A hearing was held on September 12, 1973 and the Court determined the facts to be as follows: The defendant herein was indicted by a Queens County Grand Jury and charged with two counts of robbery in the first degree, assault in the second degree and criminal possession of a dangerous drug in the sixth degree. His counsel has placed before the Court the fact that the defendant has a prior criminal history, alleging: 1. That defendant in 1967 was granted youthful offender treatment in connection with a charge of possessing a prescription unlawfully; 2. A year later, in April 1968, defendant was arrested for robbery in the first degree and pleaded guilty to petit larceny in November; 3. On February 14, 1972 defendant was arrested on a charge of possession of a weapon and loitering and was sentenced to a conditional discharge after pleading guilty to loitering.

A Queens Petit Larceny Lawyer said that, defendant now moves to ‘restrain the District Attorney and preclude the people from introducing any evidence’ with regard to the above convictions or the underlying acts which gave rise to them. It is his contention that, while the People would allegedly offer such convictions solely to impeach his credibility as a witness, the practical result would be to establish his guilt in relation to the present crimes. In effect, such evidence would influence the jury to believe that the man now on trial is either a habitual criminal or has a specific propensity for the crime of robbery with which he is now being charged. The defendant concludes that, because of this, the probative value of impeachment of his credibility is clearly outweighed by the prejudicial value before a jury. This, in defendant’s mind, constitutes a denial of the constitutional right to a fair trial.

A Queens Grand Larceny Lawyer said that, the People, first, dispute the facts of defendant’s final conviction, pointing out that their records show that defendant on February 14, 1972 was indicted for possession of a weapon, pleaded guilty to same and received a sentence of probation for three years. Next, they attacked the logic of his contentions, maintaining that the defendant has offered no legal basis to support them; nor cited any pertinent Supreme Court decision to establish the alleged violation of constitutional rights. Further, it is submitted that the defendant has presented no facts of any kind, other than the bare recital of his prior criminal history, which might indicate substantial prejudice or show unique harm by the admission of such crimes before a jury.

Published on: July 28, 2014

Family Court Act § 311.4(3)

by Stephen Bilkis

In this proceeding, the criminal respondent is charged with committing acts which, were she an adult, would constitute the crimes of Prostitution, Resisting Arrest, Obstructing Governmental Administration in the Second Degree, and False Personation. Respondent has moved pursuant to Family Court Act § 311.4(3) for an order directing the substitution of a petition alleging that she is a Person in Need of Supervision for the petition alleging that she is a juvenile delinquent.

The petition alleges that on 18 May 2010 in Queens County, the respondent, BP born 17 July 1994, offered to engage in sexual conduct with an undercover police officer in exchange for payment in violation of Penal Law § 230.00, that respondent resisted arrest by fleeing from police officers who intended to take her into custody for committing the sex crimes of Prostitution and that she obstructed governmental administration by physically resisting arrest and by refusing to follow the directives of police officers after she had been taken into custody.

The undercover police officer states that at approximately 6:50 A.M. in the vicinity of 111th Avenue and Sutphin Boulevard, Jamaica, Queens County, a known prostitution location, the respondent asked him what he wants and with a hand gesture indicating oral sex respondent asked if he wanted a blow job. The police officer asked the criminal respondent how much for the blowjob and she replied, in sum and substance, “fifty dollars”. Thereafter, respondent got inside the vehicle.

Published on: July 28, 2014

Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%

by Stephen Bilkis

This wrongful death action arises out of an automobile accident due to drunk driving that occurred sometime between the hours of 9 and 10 p.m. when a man went to a bar to celebrate the end of tax day. The celebration was for the employees and spouses of the man’s accounting firm. Ten to fourteen peopled attended the celebration. The owner of the bar and a waitress, who served drinks to the party, were also present. The record reveals that the celebrants ate appetizers and drank alcohol throughout the night. Prior to arriving at the bar, the man drank a beer at his office. After arriving at the party, the man continued to drink alcohol. Specifically, the waitress indicates that the man was served approximately six vodka and cocktails. Also, a complimentary bottle of Aguardiente Antioqueno, was served to the party. Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%.

At trial, two testified that the man took at least one shot of the Aguardiente on the night in question. Another testified that around 1:00 a.m., the criminal man appeared to be intoxicated. The wife of the man also attended the celebration to be her husband’s designated driver. However, she took shots of Aguardiente, drank vodka and cocktails. The woman subsequently appeared intoxicated. Based upon the time of the accident, it appears that the two left around 1:00 a.m.

The driver of the dump truck testified that he was transporting asphalt. Prior to starting the task, he performed a 20 to 25 minute inspection of the truck. Specifically, he examined the interior and exterior of the vehicle. He determined that the lights on the vehicle were in satisfactory condition, the tires did not have physical damage and had a satisfactory tread depth and pressure, the wheels and rims of the vehicle were in satisfactory condition, the steering was in satisfactory condition and there was no overdue preventive maintenance required on the vehicle. He completed three trips prior to the accident.

Published on: July 27, 2014

People v. Fountain

by Stephen Bilkis

People v. Fountain

Court Discusses Whether the Defendant Evinced a Depraved Indifference to Human Life

The defendant was indicted for manslaughter in the second degree and criminal negligent homicide in connection with the deaths of two pedestrians, assault in the first degree in connection with serious physical injuries inflicted upon another pedestrian and driving while intoxicated. At the trial the investigating officer testified that the defendant told him that he was driving thirty miles per hour when he hit the victims. Another officer testified that the defendant had a .23 blood alcohol content and he observed that the defendant had an unsteady on his feet, slurred speech and his breath smelled of alcohol. The surviving witness testified that he was struck by the defendant when he was in the crosswalk with the light in his favor. At the trial, it was brought out that the lighting conditions were good and the defendant car was in proper mechanical condition. Further, autopsy report revealed that victims who died injuries were consistent with being struck by an automobile. The defendant was acquitted of the manslaughter and criminally negligent homicide counts by the trial judge. The defendant was convicted in the Supreme Court, Queens County, of assault in the first degree and operating a motor vehicle while intoxicated, DWI, by a jury and driving while intoxicated by a non-jury trial. The defendant appealed.

Published on: July 25, 2014

Police Sergeant acted reasonably

by Stephen Bilkis

By petition, the respondent is alleged to have committed an act which, were he an adult, would constitute the crime of Criminal Possession of a Weapon in the Fourth Degree. The respondent is also alleged to be a juvenile delinquent by reason of his alleged violation of Penal Law which prohibits the possession of weapons by persons less than sixteen years of age.

Claiming to be aggrieved by an unlawful search of his person, the respondent has moved to suppress the introduction of tangible property recovered by police officers on the date of his arrest.

With respect to tangible evidence, the Presentment Agency has the initial burden of going forward to show the legality of the police conduct, while the criminal respondent bears the ultimate burden of proving that the evidence should be suppressed.

Published on: July 24, 2014

The prosecution’s intention to utilize the statements and identifications was unambiguously communicated to the defendant throughout the controlling time period, and was never withdrawn

by Stephen Bilkis

The prosecution’s intention to utilize the statements and identifications was unambiguously communicated to the defendant throughout the controlling time period, and was never withdrawn. To the extent that the formal notice portions of the VDF lacked certain talismanic details, the Court declined to read them in isolation. The information contained in the six-page VDF, of which the formal notices were a part, the oral notice provided at the arraignment on the felony complaint, and the 161 form provided thirteen days after arraignment, was sufficient to meet the requirement that the People “specify the statement or identification evidence intended to be offered” and included the specific information enumerated by the Court of Appeals in Lopez case.

The location at which the first statement was made can be determined by reading the VDF, which included the facts that the officer to whom it was made was involved in the arrest, and that the arrest took place five minutes after the statement was made. This information was sufficient to apprise the defendant that he had made the statement at the arrest scene. Similarly, although the exact hour and minute at which the defendant made his audio-taped statement was not included in the VDF, the information identifying the date, location, and ADA to whom he made his such statement was sufficient to identify the time at which the statement was made. The time was limited to that period of 4 January 1995 during which he was at the District Attorney’s Complaint Room and before he was taken to the court for arraignment. This information narrowed the time of the statement to a period sufficiently short so as to permit the defendant meaningfully to identify the exact statement he was alleged to have made. There was, after all, no allegation that the defendant made more than one statement to the ADA while at the complaint room on such date, which might give rise to a need for the prosecution to state the exact hour at which the statement was made.

As to the identification notice, the defendant argued that it was insufficiently specific both because it did not unambiguously state whether the identification procedure utilized in the emergency room of the hospital on the night of the assault was a lineup or a show-up, and because the names and exact number of the police witnesses who also identified him at the hospital were not specified. The People correctly responded that the type of identification procedure–a show-up–was unambiguously stated to the defendant when the original notice of the identification procedure was given at the arraignment on the felony complaint.

Published on: July 23, 2014

Chapter 785 of the Session Law

by Stephen Bilkis

Defendant was charged in 1974 with sale and possession of methadone, a Class A–II felony at the time of his indictment. Upon motion before the Court, the charge was reduced to a Class A–III felony.

A Queens County Criminal attorney said that prior to trial, the law respecting possession and sale of methadone was changed to lessen the severe penalties attached to such crimes. The legislature specifically provided for retroactive application of the new Penal Law sections. The court, over defendant’s objection, amended the accusatory instrument to reflect the newly instituted regulatory scheme. Thereafter, defendant was tried and convicted of criminal sale of a controlled substance in the fifth degree, a Class C felony under the amended section 220.34 of the Penal Law.

Defendant is a second felony offender. He claims that due to his predicate felony status, sentencing, pursuant to the recently enacted Penal Law provisions, might result in the imposition of a longer minimum sentence. This, he contends, would thus constitute harsher punishment in violation of the prohibition against ex post facto legislation. The People contend that the Penal Law revisions were designed to ameliorate the severe penalties imposed under the ‘Rockefeller Drug Law,’ and, consequently, would not be an unconstitutional retroactive application of the law.

Published on: July 22, 2014

C.P.L.R. (§510[3])

by Stephen Bilkis

This case involves for petitions pursuant to Article 10 of the Mental Hygiene Law. In April 2008, the State moved to transfer the venue of these proceedings from New York County, where they are currently located, to the jurisdictions where the crimes committed by the offenders in these cases occurred. Specifically, the State moves to transfer venue in the first matter from New York County to Chemung County, in the second matter from New York County to Oswego County, and in the third matter from New York County to Ulster County.

A New York Criminal attorney said that although each of these motions was brought separately and these cases have not been formally consolidated, the legal issues, procedural history, counsels for the parties and many of the factual issues in these motions overlap.

These cases all arose pursuant to a unique procedural history. In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of persons convicted of sex crimes for a number of years, the Governor charged state officials to “push the envelope” and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex offenders whose prison terms were ending.

Published on: July 22, 2014

Criminal Term, Part I

by Stephen Bilkis

A Queens Criminal Lawyer said that, on October 26, 1965, after having been adjudicated a Youthful Offender under indictment 411–65 which charged him with robbery in the second degree, defendant was sentenced to Elmira Reception Center for an indefinite term. On April 18, 1967 defendant was released on parole from that sentence.

A Queens Petit Larceny Lawyer said that, while on parole, and on May 6, 1967, defendant was arrested for robbery and he was subsequently indicted for that crime by indictment 1010–67. On October 27, 1967, on his plea of guilty to assault in the third degree and petit larceny to cover that indictment, defendant was sentenced to Elmira Reception Center for an indefinite term. Defendant was received at Elmira under the latter sentence on November 2, 1967. Thereupon the Parole Board, after a hearing, adjudged defendant a parole violator on the 1965 sentence. It charged him with 11 months and 27 days delinquent time on that sentence and ordered that he serve the full delinquent time (which would expire on October 29, 1968) before commencing service of the 1967 sentence imposed.

A Queens Criminal Lawyer said that, on May 29, 1968, after defendant had served a portion of the said delinquent time and before he had commenced to serve the 1967 sentence, the Court of Appeals decided defendant’s appeal from the 1965 judgment. That disposition created an anomalous situation and triggered the developments which led to the muddled situation which exists here.