New York Criminal Lawyer Blog

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.

Published on: July 22, 2014

People v Murphy

by Stephen Bilkis

People v Murphy

Court Discusses Whether the Sentence Imposed was Excessive in Driving While Intoxicated Offenses

The defendant was convicted of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2-a) (b), driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2), and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). The defendant was sentenced to a definite term of one year on each count that would run concurrently. The defendant appealed the sentence on the ground that it was excessive. The defendant was granted a stay of execution of the sentence pending decision of the Appellate Division.

Published on: July 21, 2014

Mental Hygiene Law

by Stephen Bilkis

Respondent is the subject of a sex offender civil management petition filed pursuant to article 10 of the Mental Hygiene Law. A hearing was conducted to determine whether probable cause exists to believe respondent is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06 (k). The petitioner called one witness, a Psychiatric examiner. Although the court did not credit certain aspects of her testimony, as explained infra, the court found her testimony to be credible. The respondent did not call any witnesses.

A New York Sex Crimes lawyer said that witness is employed by the New York State Office of Mental Health since August 2007 testified that she is both a psychologist and psychiatrist currently evaluating and diagnosing sex offenders. She testified that she had previously worked in New York State at the Central New York Psychiatric Center treating and evaluating sex offenders and had also worked at the Albany Correctional Facility, as the Acting Coordinator of the Mental Health Unit, where she did sex offender evaluation and provided some crisis intervention treatment while supervising a staff of eight. Outside New York State, She testified, she had evaluated criminal female offenders and juveniles in California as part of her doctoral program and did community mental health work in New Hampshire. She further stated that she had been to over 10 training sessions and conferences with experts in the field of sex offenders from March 2006 through August 2008.

The witness said she had evaluated or diagnosed criminal sex offenders with disorders related to thought, mood, substance abuse, sex and personality. She stated that she had evaluated over 40 sex offenders pursuant to article 10 and approximately 100 sex offenders in total. Additionally, she testified that she teaches developmental psychology and an undergraduate course in forensic behavioral science.

Published on: July 21, 2014

Rodriguez v. Wolfe

by Stephen Bilkis

Rodriguez v. Wolfe

Court Discusses Whether Forum Non Conveniens Precluded it from Exercising Quasi in Rem Jurisdiction

The decedent who was a passenger in one of the motor vehicles involved in a car accident died in Florida after the defendant was DWI driving while intoxicated. The defendant pled guilty and was sentenced for vehicular manslaughter. The administrator of the decedent’s estate sought to attach insurance policy issued to the defendant in connection with the cause of action arising out of accident in Florida. The decedent was a member of the United States Navy who resided in Florida but was a domiciled in New York prior to entering the Navy. The decedent’s administrator who was his father was a domicile of New York as well as the fact that the estate was being processed in New York, demonstrated that the estate was a resident of New York. The criminal defendant however opposed the motion on the ground that New York was not the appropriate forum but Florida was the forum to bring the motion.

Published on: July 20, 2014

70.25, subd. 2, of the Penal Law

by Stephen Bilkis

In April 1969, the relator was convicted in the Nassau County Court of one count of grand larceny in the third degree, and one count of forgery in the third degree, on the basis of his prior plea of guilty. He was sentenced, on each count, to imprisonment in the Nassau County Jail for a period of one year, said terms to be served consecutively.

A Nassau County Criminal lawyer said that in November 1968, the relator had falsely drawn four checks, all on the same bank account and to the order of the same payee, and that he had received from the payee named in the purported checks property and cash having an aggregate value of more than $250.00.

The Relator contends that since both of the offenses to which he pleaded guilty arose from the same transaction, the issuance of a forged instrument and the receipt of value therefor, the Court lacked power to impose consecutive terms of imprisonment.