New York Criminal Lawyer Blog

Published on: June 18, 2014

Article 240 of the C.P.L.

by Stephen Bilkis

These are two unrelated proceedings joined for the purpose of this decision due to common questions of law and common prayers for relief under Section 240.70 of the Criminal Procedure Law. This decision is one of first impression dealing with the permissible sanctions for failure to comply with a Demand for Discovery under revised Article 240 of the Criminal Procedure Law (effective January 1, 1980).

A Queens Grand Larceny Lawyer said that, this case is a December 18, 1979 arrest for Grand Larceny in the Third Degree (Sec. 155.30 Penal Law), Criminal Possession of Stolen Property in the Second Degree (Sec. 165.45 Penal Law), Criminal Mischief in the Fourth Degree (Sec. 145.00 Penal Law) and Unauthorized Use of a Motor Vehicle (Sec. 165.05 Penal Law). The defendant was arraigned on a felony complaint for the above offenses on December 18, 1979. On January 31, 1980, the charges were reduced to Petit Larceny (Sec. 155.25 Penal Law) and Criminal Possession of Stolen Property in the Third Degree (Sec. 165.40 Penal Law), with the other two misdemeanor charges remaining. The defendant was arraigned on the reduced charges, and at that point was being prosecuted by information (a misdemeanor complaint coupled with a supporting deposition executed pursuant to Sec. 100.20 of the C.P.L. resulting in a conversion to an information under Sec. 170.65(1) of the C.P.L. 1). The case was a proper one for a demand for discovery since it was a prosecution by information as required by Sec. 240.20(1). 2

A Queens Petit Larceny Lawyer said that, at the initial arraignment and until March 24, 1980, the defendant was represented by the office of a Legal Aid Society. On the latter date, as a result of an application by the legal aid’s office, an attorney was assigned pursuant to Section 18-B of the County Law. Said attorney has made the instant motion, based upon the following chronology.

Published on: June 17, 2014

Penal Law § 70.25(1)(a)

by Stephen Bilkis

This is an Appeal by the defendant from a judgment of the Supreme Court, Suffolk County, convicting him of attempted robbery in the first degree, robbery in the first degree (two counts), and grand larceny in the second degree, upon a jury verdict, and imposing sentence.

A Suffolk County Grand larceny attorney said that in 1986, the defendant committed or attempted to commit a number of armed robberies at various locations in Suffolk County. Thereafter, the defendant was stopped by the police in Queens County on an unrelated matter and was subsequently charged in Queens with inter alia, criminal possession of a sawed-off shotgun and criminal possession of a stolen vehicle. As it happened, the weapon had been used in the Suffolk robberies and the vehicle had been stolen during the course of the last robbery.

The defendant pleaded guilty in Queens County to criminal possession of a weapon in the third degree and was sentenced to an indeterminate term of one to three years imprisonment. He was thereafter arraigned in Suffolk County on the instant charges. At the time of the trial, he had served 20 months in prison on the Queens County conviction.

Published on: June 17, 2014

People v Bici

by Stephen Bilkis

People v Bici

Court Discusses Whether the Defendant was Prejudiced with the Admission of an Abstract into Evidence

The defendant was arrested of driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree, and unlicensed operation of a motor vehicle. He was arrested after the police officer observed the criminal defendant weaving out of lanes and caused another driver to take evasive actions because of his driving. The defendant was pulled over by a police officer who discovered that the defendant had alcohol on his breath, slurred speech and bloodshot eyes. The defendant admitted to the police officer that he could drink and drive when the officer asked him if he was drinking. He was asked for his driver’s license and he provided the officer with a license from Connecticut. An investigation showed that the defendant had lost his driving privileges in New York a mere three days prior for driving while impaired DUI. The defendant was arrested and taken to testing facility. At the facility the defendant revealed that he would not submit to a chemical test. He was given the refusal warning and still refused to submit to the test. The defendant agreed to perform a series of coordination tests which were videotaped and both the arresting officer and the officer that administered the test were present. The tests concluded that the defendant was intoxicated. The defendant was requested that his arrest-scene statements, his refusal to submit to chemical testing, and a videotape of his physical coordination tests be suppressed as they were a product of an unlawful stop and arrest. The defendant’s motion to suppress the evidence was denied.

Published on: June 16, 2014

Appellate Division nor the Court of Appeals has reconciled the issue.

by Stephen Bilkis

On the evening, the defendant and three of his associates were engaged in a business transaction on a busy street in Queens County. The business being conducted was the illegal sale of cocaine and the purported buyer was an undercover police officer. Arrested shortly after the sale by a police field team, the defendant was found to be in possession of ten dollars of pre-recorded buy money and two additional packets of cocaine.

A Queens County Criminal lawyer said that the defendant was charged with the crime of Criminal Sale of a Controlled Substance in the Third Degree, a “B” felony which then carried a maximum indeterminate prison term of 8 -25 years. However, due to successful pre-trial plea negotiations undertaken by his attorney, the defendant, in February 1991, was offered and then accepted a highly favorable plea bargain: the defendant pled guilty to the lesser included offense of Attempted Criminal Sale of a Controlled Substance in the Third Degree and was promised a jail sentence of only six months, together with five years of probation.

In May 1991, the defendant was sentenced in accordance with the plea. Thereafter, a Violation of Probation was filed against the defendant by the Dept. Of Probation; due to the defendant’s subsequent non-appearance in court, a bench warrant was issued. In July 1993, the defendant was returned on the warrant, and thereafter, the defendant pled guilty to the Violation of Probation. The defendant’s probation was revoked and resentenced the defendant to a definite sentence of one year.

Published on: June 14, 2014

New York State Department of Corrections

by Stephen Bilkis

In this case, defendant man was indicted for two counts of Criminal Sale of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Fifth Degree, two counts of Criminal Use of Drug Paraphernalia in the Second Degree, and Unlawful Possession of Marijuana.

The defendant man pled guilty to Criminal Sale of a Controlled Substance in the Third Degree, a B felony. In exchange for his guilty plea, the defendant was to be sentenced to a term of incarceration of either two to six years, if a previous conviction was overturned by the Appellate Division, or a term of four and one-half to nine years, if the previous felony conviction was not reversed and he was considered a predicate felon. At the time of his plea, he was told by the Court that if he failed to return for sentencing he would face eight and one third to twenty-five years or twelve and one half to twenty-five years incarceration, depending on whether he was considered a predicate felon.

The defendant man failed to appear for sentencing and a bench warrant was issued for his arrest. On December 18, 2008, the defendant was returned involuntarily on the outstanding bench warrant after being arrested for burglary. At that time, the defendant also had a pending indictment for Bail Jumping in the First Degree, as a result of his failure to return for sentencing. The defendant man was finally sentenced in this matter to an indeterminate term of imprisonment of seven to twenty-one years. He is currently incarcerated pursuant to this sentence.

Published on: June 13, 2014

People v Dzvonyk

by Stephen Bilkis

People v Dzvonyk

Court Discusses Whether the Defendant’s Constitutional Right was Violated after Failure to give Refusal Warning in his Native Language.

The defendant, who was a Russian immigrant, was arrested and charged with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, two counts of Driving While Intoxicated DWI, and one count of Aggravated DWI. The defendant was arrested after the police came to the scene of an accident which the criminal defendant was involved in. One of the officer observed that the defendant’s breath smelled of alcohol, bloodshot eyes, slurred speech and was unsteady on his feet. The defendant was arrested and taken to the precinct. At the precinct, the defendant agreed to submit to a chemical test where he registered a .233 blood alcohol content. The defendant then requested to suppress the results of the chemical test because it was involuntary as the police officer did not give the warning in his native language, thus violating his federal constitutional rights.

Published on: June 12, 2014

Officer conducted his search of the Defendant’s vehicle at the scene

by Stephen Bilkis

A Suffolk Marijuana Possession Lawyer said that, the defendant is charged, with Criminal Possession of Marijuana in the Fifth Degree, in violation of Penal Law § 221.10(1), and, , with Driving While Intoxicated DWI, Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, Operating an Uninsured Vehicle, Operating Without a Seatbelt, and Unauthorized Possession of a License, in violation of VTL §§ 1192(2), 511(1), 319(1), 1229(c)(3)(a) and 509(6), respectively, as well as Possessing Alcohol while being under twenty-one (21) years of age, with intent to consume, in violation of Alcohol Beverage and Control Law § 65-c. All of these charges arise out of the same incident of October 14, 2007.

A Suffolk Criminal Lawyer said that, on October 14, 2007, at approximately 9:19 p.m., the Officer, an eleven (11) year member of the Nassau County Police Department, was on patrol in the vicinity of the South Gate Shopping Center located in Massapequa Park, New York. At that time, the Officer was alone, in uniform, and traveling in a marked police car, driving from the back to the front of the shopping center. As he came around to the front parking lot, Officer observed a dark vehicle parked approximately fifty (50′) feet away, within the confines of a parking space, in front of the King Kullen supermarket, with two (2) males standing outside the vehicle, one (1) of which he observed on the passenger’s side of the vehicle making the motion of throwing objects at the supermarket. Upon seeing this, Officer turned off his headlights so that he might further observe these individuals. Shortly thereafter, upon seeing the Officer, the two (2) individuals entered the vehicle by which they were standing and began to pull away. As the passenger got into the vehicle the Officer observed him place an object which looked like a beer bottle down beside the vehicle.

A Suffolk Drug Possession Lawyer said that, seeing this, the Officer pulled up behind the vehicle and activated his emergency lights and siren to effectuate a stop. The vehicle traveled a short distance, now no longer within a single parking space, but straddling the lines between two (2) spaces. Upon stopping the vehicle, Officer approached the driver, who he later identified as the Defendant, and asked for his license, registration and insurance card. The Defendant produced a license and registration, but not an insurance card. At that time, he also observed an open beer bottle next to where the vehicle had been parked; and, upon looking into the vehicle, saw an unopened bottle of beer on the floor behind the passenger. While standing next to the Defendant’s vehicle, approximately eighteen (18″) inches away from the Defendant, the Officer noticed the Defendant’s speech to be slurred, his eyes bloodshot and glassy and the odor of alcohol emanating from his breath. The Officer testified that as he spoke to the Defendant, the Defendant was relatively cooperative, but was not forthcoming with his answers to the officer’s questions. The Officer then asked the Defendant to step out of the vehicle for the purpose of conducting field sobriety tests (“SFSTs”).

Published on: June 12, 2014

People v Scott, 63 NY2d 518 [1984]

by Stephen Bilkis

At about 1:00 a.m. on 2 September 2007, defendant ND’s vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. For allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample. This resulted in a reading of a .13% blood alcohol content level.

Consequently, the criminal defendant was charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood pursuant to Vehicle and Traffic Law § 1192 [2] and operating a motor vehicle while in an intoxicated condition pursuant to Vehicle and Traffic Law § 1192 [3].

Defendant then moved to suppress any statement attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her; and, challenged the constitutionality of the checkpoint stop on the ground that the New York State Police failed to follow their own self-established, written guidelines.

Published on: June 11, 2014

Section 331.11 of the Postal Manual

by Stephen Bilkis

In this Drug crime, a motion to suppress physical evidence upon which a hearing was ordered. At the conclusion of the People’s proof the Defendant moved to dismiss and the Court directed that a memorandum of law be submitted as to the ‘standing’ of the defendant to suppress the evidence.

A Suffolk County Criminal lawyer said that in February 1968, a Detective attached to the Narcotics Squad of the Suffolk County Police Department, received a telephone call from a postal inspector at the Rocky Point, Suffolk County County, New York, Post Office.

The detective was advised that a package had been received addressed to an individual. This call was made to him pursuant to a prior request by the Narcotics Squad that it be notified if said individual received any packages since the Squad suspected him of dealing in criminal narcotics. Together with another detective, the detectives went to the Post Office at about 2:30 p.m. where he met with the postmistress and was shown a package consisting of brown paper covering a shoe box within which was newspaper and a brown paper bag containing a plastic bag which in turn contained approximately a kilo of marijuana. All of this was not visible to the detectives at that time. The package was received at the Post Office, and is so marked, in a damaged condition with the brown paper torn off one of the ends and the shoe box opened about 1 1/2 inches in width along the entire and of the shoe box.

Published on: June 10, 2014

Penal Law §70.25(1)(a)

by Stephen Bilkis

A Queens Criminal Lawyer said that, this is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of petitioner, including his June 23, 2010 Affidavit in Support of Order to Show Cause, verified on June 23, 2010 and filed in St. Lawrence County Clerk’s office on July 9, 2010. Petitioner, who is an inmate at the Riverview Correctional Facility, is challenging the time computation associated with his current incarceration in DOCS custody.

A Queens Drug Crime Lawyer said that, the Court issued an order to Show Cause on July 23, 2010 and has received and reviewed respondents’ Answer and Return, including confidential Exhibits B and C, verified on September 24, 2010. By Letter Order dated November 7, 2010 the respondents were directed to supplement their answering papers by addressing the issue of petitioner’s entitlement to parole jail time credit for the period from May 6, 2009 to June 8, 2009. In response thereto the Court has received and reviewed respondents’ Supplement to Verified Answer and Return dated December 1, 2010. The Court has also received and reviewed petitioner’s Reply, filed in the St. Lawrence County Clerk’s office on December 10, 2010.

A Queens Criminal Lawyer said that, on January 19, 2006 petitioner was sentenced in Supreme Court, Bronx County, to a determinate term of 2½ years, with 3 years’ post-release supervision, upon his conviction of the crime of Attempted Robbery. He was received into DOCS custody on February 8, 2006, certified by the New York City Department of Correction as entitled to 561 days of jail time credit (Penal Law §70.30(3) and Correction Law §600-a). At that time the maximum expiration date of petitioner’s 2½-year determinate term was calculated as January 21, 2007. On September 11, 2006 petitioner was conditionally released from DOCS custody to the judicially imposed 3-year period of post-release supervision. As of the September 11, 2006 conditional release date, DOCS officials calculated that petitioner still owed 4 months and 10 days against the 2½-year term of the determinate sentence. That time period was properly held in abeyance by DOCS officials pursuant to Penal Law §70.45(5)(a).