New York Criminal Lawyer Blog

Published on: June 25, 2014

Court must consider whether the defendant’s freedom of action was significantly restricted.

by Stephen Bilkis

The defendant moves to suppress physical evidence and his statements. He is charged in two (2) indictments as follows: the defendant is charged with the crimes of burglary 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 in October 2011 a Detective, of the 104th Precinct Detective Squad, a nineteen (19) year veteran of the NYPD and a detective for almost thirteen (13) years, was assigned to investigate a burglary that took place at Middle Village, Queens. Another Police Officer, an eight (8) year veteran of the NYPD and also working with the 104th Precinct Detective Squad, was assigned to investigate a burglary that took place a day earlier; at Middle Village, Queens. They worked together on these cases.

In October 2011, the Det. placed a telephone call to the defendant and speaking in English, asked him to come to the precinct and speak with him. The defendant spoke to him in English. They scheduled an appointment two (2) days later. The Det. did not recall telling the defendant why he needed to speak to him. The Det. did not tell the defendant that he would be coming in to surrender. The Det. had been given the defendant’s name, address and telephone number by the co-defendant, who had been arrested earlier that day. The Co-defendant had told the detective that the defendant was with him when he committed the burglaries and that he had driven the defendant’s minivan during the burglaries.

Published on: June 24, 2014

People v. LeBeau

by Stephen Bilkis

People v. LeBeau

Court Discusses Lesser Included Offenses of Vehicular Assault

The defendant was arrested and charged after he struck a pedestrian with his taxi after making a U-turn. The defendant admitted to the officer that the cause of the accident as a result of him drinking alcohol, taking cocaine and lack of sleep for a protracted period of time prior to the accident. The defendant was placed under arrest. The pedestrian was taken to the hospital after sustaining serious injuries. The officer also observed that the defendant had alcohol on his breath, bloodshot eyes and slurred speech during questioning. He submitted to a breathalyzer test where he registered a .08 percent blood alcohol content. The defendant was indicted for vehicular assault pursuant to section 120.03 of the Penal Law, DWI driving while impaired by drugs pursuant to section 1192.4 of the Vehicle and Traffic Law and DWAI driving while impaired by alcohol pursuant to section 1192.1 of the VTL.

Published on: June 22, 2014

The court further stated that the man has no basis to complain about the length of the sentence

by Stephen Bilkis

A man filed an appeal from the decision of the Supreme Court convicting him of rape in the first degree, two counts of criminal sexual act in the first degree and incest, upon his plea of guilty and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

With regards to the man’s contention that his plea was not knowing and voluntary, the court states that it is unpreserved for appellate review since he failed to move to withdraw his plea. Sources revealed that the narrow exception to the preservation rule, which arises when the offender’s plea recitation of the facts underlying the crime casts significant doubt on his guilt or otherwise calls into question the voluntariness of the plea, is inapplicable in the case of the man.

The court further stated that the man has no basis to complain about the length of the sentence imposed to him, since the sentence was part of the negotiated plea bargain. Contrary to the man’s contention, the Supreme Court did not inefficiently exercise its discretion in finding the duration of the final order of protection entered against him.

Published on: June 22, 2014

Court would sentence defendant to four months’ incarceration.

by Stephen Bilkis

A Queens Criminal Lawyer said that, defendant moves pursuant to Criminal Procedure Law §440.10(h) to vacate the judgments of conviction in six cases, arguing that his prior plea attorney failed to provide effective assistance of counsel during and prior to his guilty pleas in the Queens Misdemeanor Treatment Court (QMTC). Defendant, who is currently facing removal proceedings initiated by the United States Department of Homeland Security, claims that he advised his plea attorney that he was not a citizen but a lawful permanent resident, and that his plea attorney failed to advise him regarding the immigration consequences of his guilty pleas. Defendant, who was required to complete drug treatment as a condition of his pleas, also alleges that had plea counsel correctly advised defendant regarding the immigration consequences of his pleas, he would not have pled guilty and would have proceeded to trial on his six cases.

A Queens Drug Crime Lawyer said that, soon after defendant filed his motion, the United States Supreme Court decide the 2010 case, which held that counsel for criminal defendants are constitutionally obligated to advise their non-citizen clients regarding the adverse immigration consequences of their guilty pleas. Defendant’s motion to vacate raises important questions regarding, inter alia, the scope of defense counsel’s in the 2010 case-imposed duty to provide immigration advice to non-citizen defendants charged with removable/deportable offenses, particularly where, as here, such defendants enter drug treatment in exchange for a promise that the underlying pleas would be vacated and the charges dismissed. The motion to vacate also raises important questions regarding the scope of the Court’s review in determining whether there is a reasonable probability that defendant would have insisted on going to trial had he been properly advised as to the immigration consequences of his guilty pleas.

Defendant was arrested a total of six times over a nine month period in 2009. Initially, defendant had three open cases referred to the QMTC. The charges in those cases included Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40) (two counts), Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), Assault in the Third Degree (PL §120.00), Petit Larceny (PL §155.25) and Harassment in the Second Degree (PL §240.26). These cases were referred to the QMTC after the People offered a plea disposition which would have required defendant to plead guilty to an unspecified class A misdemeanor with a sentence of three years’ probation on one case; an unspecified B misdemeanor with a sentence of a conditional discharge and either five days of community service or a $250 fine on another case; and a violation, Disorderly Conduct (PL §240.20), with a sentence of a conditional discharge.

Published on: June 21, 2014

Application of Mackell

by Stephen Bilkis

Application of Mackell

Court Discusses Whether the District Attorney was Permitted to Request that the Defendant Shave for a Line up

The District Attorney made an application to the court requesting that the respondent be permitted to shave his beard under the direction of the prison warden for the purposes of appearing in a line-up. The respondent was alleged to be one of two men to have committed robbery. At the time of the arrest the respondent was clean shaven but since he was incarcerated the defendant grew out his facial hair and refused to shave. The District Attorney asserted that the respondent would be unrecognizable with his beard and he was using it as a disguise which would result in identification being difficult if not impossible.

Published on: June 20, 2014

2004 peer-reviewed Morgan Study

by Stephen Bilkis

In this criminal case, defendant was convicted, after a jury trial, of placing a six inch knife to the throat of a thirteen year old girl and then ripping the chain off her neck. The victim was the only eyewitness to the crime, which lasted only seconds. No other evidence, aside from the victim’s later identification, connected the defendant to the crime. The defendant’s principal contention on appeal was that the now retired trial judge abused his discretion by denying his application to elicit expert testimony with respect to the reliability of eyewitness identifications without first holding a hearing.

A Nassau County Criminal attorney said that in June 2005, a 13-year-old girl was on her way home from school, was descending well-lit stairs into the subway station when a man whom she did not know approached her and asked for “some change.” This man stood face-to-face with her, about two feet away. She initially did not think he intended to harm her and was not afraid. Looking him squarely in the face, she said she had no change.

A Nassau County Criminal lawyer said that after the victim “took a couple of steps forward,” the stranger wheeled in front of her, placed a knife with a six-inch blade and “a big curve on the end” near her throat, and asked her “a couple of times” to hand over her necklace, a gold chain with a locket. As this man stood close by her, she was “looking at his face”; she was “really scared” and “didn’t know what to do.” When she refused his demand, screaming “No,” he ripped the chain off her neck, and fled up the stairs. This entire encounter was fleeting.

Published on: June 20, 2014

People v Bain

by Stephen Bilkis

People v Bain

Court Discusses Whether the Evidence was Legally Insufficient for Conviction

The defendant indicted and convicted for manslaughter in the second degree, vehicular manslaughter in the second degree, and driving while intoxicated after an accident that resulted in his wife’s death. The appealed the conviction on the ground that the evidence was legally insufficient and that the People failed to establish the chain of custody for the blood evidence recovered.

Published on: June 19, 2014

Respondent has no insight into his various mental illnesses

by Stephen Bilkis

This is a recommitment proceeding wherein defendant was at the scene of a drug raid for the purposes of purchasing marijuana. He refused the order of a police officer to leave and was arrested for disorderly conduct. As he was being placed under arrest, he pulled out a six-inch hunting knife and attempted to stab the officer. As a result, he was also charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. Following arraignment on these charges, he was released on his own recognizance and then engaged in various criminal acts in New Jersey, which resulted in his arrest and confinement at a Psychiatric Center.

A Suffolk County Criminal attorney said that during his confinement, which lasted from May 1984 until April 1986, defendant reported aural and visual hallucinations, claiming in one instance that he was seeing snakes, bugs and images of Satan and was hearing voices telling him to get a gun and blow his brains out. He also claimed that he communicated with God, worked for God, was God, that he feared that Satan would kill him because he was an archangel, and that he was depressed and wanted to die.

As a result of the observations as well as examinations of respondent, he was diagnosed as a chronic undifferentiated schizophrenic with acute exacerbation. His treating psychiatrist prescribed a high dosage of anti-psychotic medication. The doctors agreed that he presented a danger to himself and others and thus, despite the medication’s beneficial effects, required continued hospitalization on a closed ward until he was stabilized on it.

Published on: June 18, 2014

He filed those documents knowing that they were forged.

by Stephen Bilkis

The defendant man contends that the evidence against him was insufficient, as a matter of law, to establish guilt beyond a reasonable doubt. Viewed in a light most favorable to the People, the record establishes that a woman, the complaining witness, lent money to the defendant. Concededly the defendant did not repay any part of the loan. Although the lender was motivated by a desire that the criminal defendant purchase a certain grocery store with the loan proceeds, the defendant’s failure to do so does not change the nature of the transaction.

The essence of the crime of larceny by embezzlement is the conversion by the embezzler of property belonging to another which has been entrusted to the embezzler to hold on behalf of the owner. There is a distinction between the refusal to pay a valid debt and the crime of larceny by embezzlement. If the money was not given to the criminal defendant in trust, he was free to use it for any purpose. On the record before us, the People failed to establish a fiduciary arrangement. As the record indicates, an interest bearing loan was intended by the parties, and upon delivery of the funds to the defendant they became his property. Thus there was no misappropriation of property from the owner and the mere failure to pay one’s debts is not a crime.

Accordingly the defendant’s conviction must be reversed and the indictment must be dismissed since the evidence is legally insufficient to establish beyond a reasonable doubt that the defendant was guilty of larceny by embezzlement.

Published on: June 18, 2014

4 of the youths were subsequently indicted by the Nassau County Grand Jury in July 1969

by Stephen Bilkis

In this Criminal case, defendants filed a motion for an order dismissing this indictment. The defendants contend the doctrine of collateral estoppel is applicable and would warrant a dismissal of these proceedings.

A Nassau County Criminal attorney said that in June 1969, five youths were arraigned upon a complaint in the First District Court, Nassau County, New York, charged with violation of New York State Penal Law § 105.The said defendants and each of them and each acting in concert with and aided and abetted by each other, with intent that conduct constituting a felony be performed did each agree with the other to engage in or cause performance of such conduct, to wit: the said defendants with the intent to violate § 130.35 of the Penal Law of the State of New York when by forcible compulsion they engaged in sexual intercourse with the complainant.’

4 of the youths were subsequently indicted by the Nassau County Grand Jury in July 1969 for the crimes of Rape in the First Degree and Sexual Abuse in the First Degree and arraigned in the Nassau County Court. The 5th boy was less than 16 years of age at the time of the alleged criminal acts and was charged with being a juvenile delinquent in the Family Court of Nassau County.