New York Criminal Lawyer Blog

Published on: July 9, 2014

An appeal was made by the defendant from a judgment of the Queens County Supreme Court

by Stephen Bilkis

An appeal was made by the defendant from a judgment of the Queens County Supreme Court convicting her of forgery in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

The trial court, after conducting a Molineux hearing, did not improvidently exercise its discretion in permitting the prosecutor to present at trial evidence of the defendant’s prior conviction of attempted forgery. The conviction was clearly probative of the defendant’s intent to knowingly forge the instruments in this case. Further, the trial court properly weighed the relevant factors of probative value and prejudicial effect in reaching its determination.

Similarly, the trial court did not improvidently exercise its discretion in permitting the People to cross-examine the defendant, in the event that she testified, as to her prior convictions of attempted forgery, petit larceny and attempted petit larceny, as well as the underlying facts of the attempted forgery conviction. A defendant may be cross-examined as to the existence of prior criminal acts where the nature of such conduct or the circumstances in which it occurred, bear logically and reasonably on the issue of credibility. Further, the commission of crimes involving individual dishonesty, such as theft, fraud and forgery demonstrate the defendant’s willingness to place [her] own interests ahead of the interests of society, thereby impacting directly upon the issue of the defendant’s credibility. The mere fact that the prior crime is similar to the crime charged is not a basis for the preclusion of the evidence since a defendant who specializes in one particular type of crime is not shielded from cross-examination thereon. In the present case, it is clear that the defendant’s convictions of crimes involving individual dishonesty were highly probative on the issue of her credibility. Moreover, inasmuch as the trial court carefully weighed the probative value of the evidence against the potential for prejudice to the defendant, we discern no basis for disturbing its compromise ruling.

Published on: July 9, 2014

Matter of Wiebke v Wiebke and Matter of McFarland v Smith

by Stephen Bilkis

This is a custody and visitation proceeding pursuant to Family Court Act article 6 wherein the father appeals from an order of the Family Court of Kings County dated 9 November 2009, which awarded sole custody of the subject children to the mother and only awarded him visitation from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks, with additional visitation upon agreement of the parties.

The criminal court affirms the order, without costs or disbursements.

Friederwitzer v Friedewitzer and Matter of Francois v Hall held that an award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent. Eschbach v Eschbach established that in considering questions of custody, the court must make every effort to determine what is in the best interest of the child, and what will promote the child’s welfare and happiness. Moreover, it should be noted that he best interests of the child are determined by a review of the totality of the circumstances.

Published on: July 9, 2014

People v. Carroll

by Stephen Bilkis

People v. Carroll

Court Discusses Whether the Defendant was Permitted to Inspect Grand Jury Minutes

The defendant was indicted for driving an automobile in a reckless, culpable and negligent manner, thereby causing another’s death, and misdemeanor of driving automobile while intoxicated. The defendant requested an order granting him inspection of grand jury’s minutes or dismissing indictment filed on November 30, 1956.

Published on: July 8, 2014

Sources revealed that there is no proof that the man ever knew the owner of the gun

by Stephen Bilkis

A burglary and stealing of a revolver allegedly took place while the owner of the house was away from home while attending her husband’s funeral. The revolver was the only item stolen in the house. A man was arrested subsequently at which time he allegedly stated that he had bought the gun from another person. The possession of the revolver by the man is the only connection between the man and the crimes. Sources revealed that there is no proof that the man ever knew the owner of the gun, or knew that the owner had died, or knew that the person had a gun.

Consequently, the decision convicting the man for the crimes of burglary, larceny and possession of a loaded revolver and burglar’s instruments is affirmed

Another related appeal is also filed by the offender from the decision convicting him of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Published on: July 7, 2014

Family Court Act § 311.2(3)

by Stephen Bilkis

A Queens Drug Crime Lawyer said that, the appellant was arrested on July 13, 1989, in Jamaica, Queens. A petition filed the following day in Family Court, Queens County, alleged that he had committed acts that if engaged in by an adult would constitute criminal possession of a controlled substance in the third, fifth and seventh degrees. Attached to the petition was a supporting deposition in which Police Officer stated that he had observed appellant in possession of 33 vials of cocaine possession in crack form, and that “based upon his training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances,” he believed the substance to be crack possession cocaine.

A Queens Criminal Lawyer said that, the same day that the petition was filed, appellant’s counsel moved that it be dismissed as legally insufficient since there was no laboratory report attached to the petition and Officer Henry’s account in the supporting deposition constituted hearsay. The court denied the request at that time. By omnibus motion and accompanying affirmation dated August 7, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency. The presentment agency appended to its answering affirmation a laboratory report dated July 18, 1989, which showed that the 33 vials seized from appellant contained 2,648 milligrams of crack cocaine possession. At a hearing before the Judge on August 15, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency, arguing that the presentment agency could not amend its petition by attaching the laboratory report because Family Court Act § 311.5 provides that a petition cannot be amended to cure legal insufficiency. The court reserved decision and finally denied appellant’s motion to dismiss the petition on September 13, 1989.

A hearing was held on September 20, 1989, to consider appellant’s motion to suppress. At this hearing, the Police Officer testified that on July 13, 1989, he was working as a backup on an undercover narcotics operation. At about 3:25 in the afternoon, he received a radio message from his partner, who reported that he had observed a young male engaged in a number of transactions which appeared to involve vials of crack cocaine. Approximately two minutes after receiving this message, the Officer spotted appellant, who fit the description radioed in by the other police officer. The Police Officer approached and detained the appellant. His partner drove by and confirmed that the appellant was the person he had seen earlier. The Police Officer then arrested appellant and recovered 33 vials of a substance that appeared to be crack possession of cocaine from the pocket of appellant’s jacket. Appellant testified in his own behalf and denied having sold crack cocaine prior to his arrest.

Published on: July 6, 2014

Jamaica Avenue in Queens County

by Stephen Bilkis

By petition filed pursuant to Family Court Act §310.1, respondent is alleged to have committed acts which, were she an adult, would constitute the crimes of Robbery in the Second Degree, Grand Larceny in the Fourth Degree, Petit larceny and Criminal Possession of Stolen Property in the Fifth Degree.

A Queens County Criminal attorney said that the Presentment Agency intends to offer a statement she alleges was involuntarily made or obtained in violation of Family Court Act §305.2 by law enforcement personnel, respondent has moved for an order suppressing the introduction of her statement at the prospective fact-finding hearing.

Upon a motion to suppress an out-of-court statement as involuntarily made, or as obtained in violation of Family Court Act §305.2, the Presentment Agency bears the burden of proving beyond a reasonable doubt that the statement was voluntarily made and lawfully obtained.

Published on: July 5, 2014

Supreme Court recognized the fact

by Stephen Bilkis

In this Criminal action, Defendant challenges his arrest and the seizure of physical evidence. At issue is the right of the police to stop a taxi for the purpose of handing out safety pamphlets.

In July 1994, Police Officer and Detective, both of the same Robbery Squad Precinct, were on patrol duty in Queens. They were dressed in plainclothes and rode in an unmarked car. This team was temporarily assigned to the Taxi Livery Robbery Task Force. Their assignment, for a period of 30 days, was to conduct a safety check on cabs, giving them advice on the services rendered by the Police Department to taxicabs and advising them of hazardous conditions within their industry. Their major duty consisted of stopping cabs and issuing a departmental pamphlet, entitled “Safety Tips for Cab Drivers.” In addition, they would advise taxi drivers that plainclothes officers were present in the area and if assistance was needed, they could request help.

At approximately 3:00 A.M., the officers were in the vicinity of 113th Street and Farmers Boulevard performing their duty of stopping cabs. At that time, the Officer observed a moving 1986 Ford vehicle bearing a taxicab license plate. Two people were in the rear. The officers, who had previously stopped three other cabs, made a U-turn and drove behind the taxi. For a short while they flashed their lights and sounded their siren for the purpose of pulling the taxi over.

Published on: July 4, 2014

New York Sex Offender Registration Act (SORA)

by Stephen Bilkis

Effective 21 January 1996, the New York Sex Offender Registration Act (SORA), section 3 of Chapter 192 of the Laws of 1995, Correction Law Art. 6-C, sections 168-et seq., modeled after New Jersey’s Megan’s Law, requires that convicted criminal sex offenders register with the appropriate law enforcement agencies. On the basis of an assessment of risk, information pertaining to this offender may be disseminated by the appropriate law enforcement agencies to the public. Under SORA, there must be a determination of: whether a defendant is indeed “a sex offender or a sexually violent predator”; and, “the level of notification”.” These determinations are to be strongly based on the recommendations made by the Board of Examiners of Sex Offenders (the Board). The Board has promulgated a Risk Assessment Instrument (RAI), which is to be utilized by the courts, “to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety.”

Under the RAI, a numerical value to various factors is assigned, resulting in a “total risk factor score.” Based on this score, the offender is further categorized into one of three levels of notification. Where the risk of repeat offense is low, a level one designation (0 to +70) is assigned, and this requires that the appropriate law enforcement agencies are notified pursuant to SORA. Where the risk of repeat offense is moderate, a level two designation (+75 to +105) is assigned, and the appropriate law enforcement agencies “may disseminate relevant information which may include approximate address based on sex crimes offender’s zip code, a photograph of the offender, background information including the offender’s crime of conviction, modus of operation, type of victim targeted and the description of special conditions imposed on the offender to any entity with vulnerable populations” and “any entity receiving information on a sex offender may disclose or further disseminate such information at their discretion.” Where the risk of repeat offense is high, a level three designation (+110 to +300) is assigned, and the sex offender is deemed a “sexually violent predator.” In addition to all the requirements of a level two assignment, a level three sex offender’s exact address may be disseminated, and all of the pertinent information regarding the offender will be made available to the public through a subdirectory.

The RAI is not the sole criterion in determining: whether a defendant is a sex offender or a sexually violent predator”; and “the level of notification.” The sentencing court must also base its determinations on the victim’s statement and any materials submitted by the sex offender. Moreover, the sex offender must be allowed to appear and be heard. As clearly stated in the Risk Assessment Guidelines and Commentary of SORA, the risk factor calculated under the RAI is merely presumptive. If ‘special circumstances’ warrant a departure, the Court may depart from it. This ability to depart is based on the recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Thus, a court is permitted to bring its sound judgment and expertise to bear on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective. However, in People v. Ross, 1996, the court held that, “because the hearing was an ‘administrative function,’ it should ‘review the Board’s recommendations only for arbitrariness and capriciousness and otherwise uphold them.”

Published on: July 4, 2014

Assault in the 3rd Degree

by Stephen Bilkis

A New York Sex Crimes Lawyer said that, the Respondent is the subject of a sex offender civil management proceeding pursuant to Article 10 of the Mental Hygiene Law (“Article 10”). As noted in more detail infra, the Respondent admitted that he suffered from a Mental Abnormality under the statute and was given an agreed-upon disposition of Strict and Intensive Supervision and Treatment (“SIST”) on September 15, 2009. On November 15, 2010, the State brought a petition to revoke the Respondent’s SIST placement and instead have him confined in a Secure Treatment Facility. That petition was opposed by the Respondent.

A New York Criminal Lawyer said that, on December 9, 2008, this Court, in a detailed decision, found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality pursuant to Article 10. The facts relevant to the Respondent’s history prior to that date are fully recounted in that decision. The most relevant aspects of that history will be briefly outlined here. The “instant offense” which resulted in respondent’s being eligible for sex offender civil management occurred in 1993 and led to a conviction in 1994 for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree. In that incident, the Respondent had been on a rooftop where he was looking at a woman in an apartment across the street, using cocaine and masturbating. He entered the victim’s apartment through a window, took a knife from the apartment, got on top of the previously sleeping victim and placed her hand on his penis. The Respondent at this point indicated that he could not become aroused. The victim threw him off of her bed. He then fled from the apartment and took a purse from her. This was the only incident in which it was known, prior to the Respondent’s placement on SIST, that he had engaged in a sex offense involving physical contact with a victim.

A New York Sex Crime Lawyer said that, respondent did, prior to being placed on SIST, have an extensive history of exhibitionism. Typically, this would involve him masturbating in public places while his penis was partially exposed to public view. It is clear from his history that he has engaged in such conduct on a large number of occasions over an extensive period of time. Prior to this Court’s probable cause determination, he had been diagnosed as suffering from exhibitionism, voyeurism and cocaine dependence. This last diagnosis was found to be in sustained full remission. Prior to being placed on SIST, P.H. also had a long history of burglary, trespassing and theft related arrests and convictions.

Published on: July 3, 2014

Office of Mental Health (OMH)

by Stephen Bilkis

In January 1992, respondent pleaded guilty to two counts of first-degree robbery, and single counts of first-degree burglary, first-degree rape, and first-degree sodomy. This plea satisfied charges arising from two separate criminal incidents—the robbery of a gas station attendant and a home invasion—for which respondent was arrested and indicted separately in 1988. He was sentenced to an indeterminate term of imprisonment of 8 to 16 years, running from his arrest.

A New York Criminal attorney said that Respondent was released to parole supervision in July 1999, after serving 11 years and eight months of his sentence. But in May 2000, he was arrested and indicted separately for three robberies. Thereafter, he pleaded guilty to two counts of third-degree robbery, for each of which he was sentenced to an indeterminate term of 2 to 4 years, and one count of criminal possession of a weapon in the fourth degree, for which he was sentenced to prison for one year. The indictment satisfied by Respondent’s plea to the weapon-possession count also accused him of sexual abuse. These sentences ran concurrently to each other but consecutively to the undischarged portion of the indeterminate sentence imposed on Rashid in 1992. He was subsequently released to parole supervision thereafter.

Respondent was returned to prison for violating the conditions of his parole in July 2006. He was released to parole supervision again in April 2007, but went back to prison after violating the conditions of his parole in August of that year. He was next released to parole supervision in early 2008. He was arrested for the misdemeanor crimes of petit larceny and criminal possession of stolen property in the fifth degree. Upon pleading guilty to petit larceny,