New York Criminal Lawyer Blog

Published on: July 3, 2014

Criminal Procedure Law

by Stephen Bilkis

In this proceeding, a man seeks to enjoin the district attorney from prosecuting an indictment which was filed by the grand jury. The man asserts that the district attorney lacks jurisdiction to proceed.

The matter was started when the man was arrested and charged with assault in the second degree, a class D felony. He was also charged with two class A misdemeanors which includes resisting arrest and DWI and obstructing governmental administration in the second degree. The man was then arraigned upon the felony complaint in the criminal court.

The man’s attorney appeared in the court and the assistant district attorney made an oral application to the court for an order reducing the matter to a misdemeanor complaint by striking the charge. Then, the court responded by transferring the matter to a different part, and it is apparent that both the parties and the court itself took it to mean that the prosecution’s application had in fact been granted.

Published on: July 2, 2014

Finally, the sentence imposed was not excessive

by Stephen Bilkis

In this Criminal case, defendant filed an appeal from a judgment of the Nassau County Court, convicting him of rape and sodomy in different degrees.

A Nassau County Criminal attorney said that following defendant’s arrest in connection with the alleged sexual assault upon the 14 year old female complainant, the defendant gave a statement in which he admitted that he and the codefendant had, in one evening of January 1984, offered the complainant a ride in their car, given her alcoholic drinks, and then taken her to a secluded location where the two men had sexual intercourse with her in the back seat of the car. The defendant claimed, however, that he was not aware of the age of the complainant and that she had consented to sexual activities.

The Court addressed the defendant’s claim that the People failed to satisfy their burden of demonstrating that Nassau County had the necessary geographical jurisdiction over the prosecution of this case. The Court concluded that the evidence was sufficient to support the jury’s implicit finding that the exact location of the incident was unknown and that the People were entitled to rely upon the “private vehicle exception”. The defendant’s challenge to the propriety of the court’s charge on the issue of jurisdiction has not been preserved for review as a matter of law.

Published on: July 1, 2014

The California Supreme Court in March 1974

by Stephen Bilkis

The defendant is accused by indictment with various crimes associated with a controlled substance including the drug crime of Criminal Sale of a Controlled Substance in the Third Degree. He now moves for dismissal of this, the fifth count of the indictment, on the ground that Penal Law § 70.00, which provides the penalty for such crime, is unconstitutional, and alternatively, for dismissal of this count in the interest of justice.

A Suffolk County Drug crime lawyer said that the Defendant’s application is based upon the affidavit of a psychiatrist, who has examined the defendant and determined that the defendant is emotionally disturbed and in need of therapeutic intervention. The psychiatrist feels that unless the defendant receives appropriate treatment, suicide would be a distinct possibility. It is the doctor’s opinion that the intense psychiatric treatment and drug rehabilitation the defendant needs would not be available in a penal institution. The instant section, therefore, as defendant contends, is unconstitutional as to him in that it provides for a mandatory minimum period of incarceration of one year and constitutes cruel and unusual punishment.

The People cite s case, in opposition to this motion. In said case, the defendant leveled his attack upon the constitutionality of Article 220 of the Penal Law on the ground that cocaine, the substance the sale and possession of which the defendant was indicted for, was improperly classified by the legislature. It was the defendant’s contention that the improper classification violated the defendant’s right to equal protection.

Published on: July 1, 2014

The Court also rejected the claim of double jeopardy

by Stephen Bilkis

This is an appeal by defendant from a resentence of the District Court of Suffolk County, First District imposed on 17 June 2009 upon his admission to a violation of probation.

After being convicted of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), defendant was sentenced on 4 May 2006 to three years of probation. The condition provided in the probation was for a term of 60 days in jail, and a fine. He served the imprisonment term and was thereafter released. On 2 June 2009, he admitted to a violation of probation. During the course of the admission proceeding, the District Court promised the defendant that he would sentence him to an additional 60 days incarceration in addition to the first 60 days he already served because of drunk driving, and terminate him from probation. On 8 June 2009, the sentencing date, the District Court imposed on him the sentence as what promised on June 2. The criminal defense counsel asked the court for the possibility of the Stop DWI facility to which the court issued a commitment sheet dated 8 June 2009 that stated “count 1, 60 days in SCJ in Stop DWI”. On that day, the defendant was first taken to the Suffolk County Jail and then released. He was released because the jail personnel understood his sentence to be simply 60 days, as opposed to an additional 60 days, and credited him with the time applicable to his original 60-day jail term.

After learning of the defendant’s release, the District Court first held an informal hearing with defense counsel and the prosecutor on 11 June 2009, and then held a formal resentencing proceeding in the presence of the defendant on 17 June 2009. It resentenced defendant to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served”. The court imposed the resentence over a protest by the defendant that the resentencing violated CPL 430.10, and over the People’s agreement that the resentencing was improper. The court issued a new commitment sheet dated 17 June 2009 that stated “count 1. 120 days in SCJ with credit for time served”.

Published on: June 30, 2014

Warrants were lodged in Florida

by Stephen Bilkis

In an action against the property clerk of the Nassau County Police Department to recover possession of an automobile or, if possession could not be given, $1,000, its alleged value, together with $4,000 damages for its detention, a judgment was entered directing defendant to deliver to plaintiff the automobile, or $100, its value at the time of the trial, if possession could not be delivered, together with $151.75, the costs and disbursements of the action.

A Nassau County Criminal attorney said that in November, 1947 one was arrested in Nassau County on a warrant for the violation of his parole on a sentence imposed in Michigan on a conviction of rape. In Nassau County bail was fixed for his appearance on a hearing. When he failed to appear, the bail was forfeited and a warrant was issued for jumping bail.

Thereafter, or in March 1948 the Nassau County police were seeking to arrest a fugitive from justice, on those warrants. The police had received information that said criminal fugitive had a 1947 Cadillac sedan, the subject of this action. They found the plaintiff in possession of the car which bore Florida license plates. He had no registration or proof of ownership in himself but claimed that he had purchased the car. The police seized the car on that day and the property clerk has possession thereof.

Published on: June 29, 2014

Marijuana in the Fifth Degree (P.L. § 221.10(1))

by Stephen Bilkis

Here, the marijuana allegedly open to public view is not recovered and thus the sole allegation that the exchanged item was marijuana is conclusory. The deponent officer gives no description of the allegedly exchanged marijuana to support his conclusion. Further, it appears that the factual allegations regarding his conclusions based on his training and experience do not apply to the object that was allegedly exchanged with the other individual as he indicates that a field test was conducted on that marijuana and, as mentioned above, the marijuana allegedly exchanged in public view was not recovered. Simply, the police officer could not draw a conclusion based on the odor of a substance that he could not have smelled and he offers no physical description of the substance that was not recovered on which the court could reason he based his conclusion.

In addition, the allegations fail to establish any connection between the bag on the window sill and the defendant, or between the contents of the bag and the object that defendant allegedly exchanged with the other individual. Such connection would be needed for the court to reasonably infer from it that the exchanged object was marijuana. Faced with the bare facts in this accusatory instrument, the court is not able to infer that the item allegedly observed being exchanged by the defendant for money was marijuana.

Therefore, this court finds that the accusatory instrument fails to provide reasonable cause to believe that the defendant knowingly and unlawful possession of marijuana in a public place and open to public view. Accordingly, defendant’s motion to dismiss the charge of Criminal Possession of Marihuana in the Fifth Degree is granted.

Published on: June 29, 2014

People v Navarrette

by Stephen Bilkis

People v Navarrette

Court Discusses the Interpretation of the Word Operation in Section 600(2)(a) of the Vehicle and Traffic Law

The defendant was charged with a class B misdemeanor, attempted leaving the scene of an incident without reporting, under section 110.00 Penal Law and section 600 (2) (a)Vehicle and Traffic Law. The complaining witness testified that the defendant parked his car, turned off his engine. He further stated that he approached the motor vehicle as the defendant opened the door to exit; he was hit by the door, which flipped his bicycle over, and he was injured on the street. The complainant was hurt and bleeding and the defendant refused to give him his driver’s license information. The defendant left the scene, leaving his parked car without reporting the incident. At the close of the prosecution’s case, the defendant requested that the charge be dismissed pursuant to section 330.30 of the CPL. The defendant argued that the People failed to prove a substantial element, that is, he was operating the motor vehicle at the time of the accident. However, the People contended that the met their burden of proof once it was proven that the criminal defendant had recently operated the motor vehicle.

Published on: June 26, 2014

Court observed that there was no violation of procedural due process here.

by Stephen Bilkis

Defendant was indicted in January or February, 1974 for the crimes of criminal sale of a controlled substance (cocaine) in the third degree, criminal possession of a controlled substance (cocaine) in the third degree, criminal sale of a controlled substance marijuana in the fifth degree and criminal possession of a controlled substance marijuana in the sixth degree; in addition, in March, 1974 he was indicted for the crime of criminal possession of a controlled substance marijuana in the sixth degree.

A Suffolk County Criminal lawyer said that during his trial Defendant pleaded guilty to the crime of criminal possession of a controlled substance in the third degree in satisfaction of all counts of both indictments. At that time defendant was advised of the consequences of his plea and that the mandatory minimum sentence was one year to life. A month later, and before sentencing, his counsel moved to vacate the conviction and to substitute a youthful offender adjudication on the ground that the statute forbidding the application of youthful offender treatment to persons indicted for class A felonies was unconstitutional. The motion was denied and defendant received a sentence of one year to life.

On this appeal defendant contends that the statute is unconstitution and that he must be resentenced as a youthful offender.

Published on: June 26, 2014

People v. Philbert

by Stephen Bilkis

People v. Philbert

Court Discusses Whether the Defendant was given a Clear and Unequivocal Refusal Warning from a Warning Card

The defendant was charged with driving while intoxicated pursuant to section 1192 of the Vehicle and Traffic Law after the police officer observed the defendant’s slurred speech, bloodshot eyes and disheveled clothing. The defendant was read his Miranda rights and was then asked to submit to a chemical test. The defendant was read his refusal warning from a card and refused to do the test. The card stated that if the defendant refused to submit to a chemical test it may result in a revocation of the defendant’s license or operating privileges, whether or not he was convicted of the charges for which he was arrested for. He was further warned that the refusal would be introduced into evidence against him. The defendant after his refusal chose to submit to the test. However, the defendant eventually refused to submit to the chemical test after a failed attempt in taking the test according to the instructions of the officer. The defendant then sought to suppress the refusal warning.

Published on: June 25, 2014

Amsterdam Video plaintiffs

by Stephen Bilkis

This is a criminal proceeding wherein the appeal concerns the validity of New York City’s Amended Zoning Resolution governing the location of adult entertainment establishments throughout the five boroughs.

The court concludes that the Supreme Court correctly granted summary judgment declaring that the challenged ordinance does not violate plaintiffs’ constitutional rights of free expression.

The “adult” establishments at the center of this controversy offer various forms of sexual expression including bookstores, theaters, stores dealing in videotaped material and places of live entertainment. Over time, the industry has experienced a steady growth with sections of Manhattan and Queens showing the greatest development. By 1993, there were 177 adult establishments operating in New York City: 107 in Manhattan, 44 in Queens, 15 in Brooklyn, eight in the Bronx and three in Staten Island.