New York Criminal Lawyer Blog

Published on: June 3, 2014

On 23 October 2003 the Board of Examiners of Sex Offenders (“the Board”) submitted a Risk Assessment Instrument (RAI) and…

by Stephen Bilkis

On 23 October 2003, pursuant to the Sexual Offender Registration Act (SORA), the Board of Examiners of Sex Offenders (“the Board”) submitted a Risk Assessment Instrument (RAI) and recommended that defendant be designated as a Risk Level 2 Sexually Violent Offender upon his release from custody, based on his conviction for Attempted Sexual Abuse in the First Degree and on an assessed score of 95. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 20 points for being either a stranger to the victim or having a relationship established for the purpose of victimizing or a professional relationship; 5 points for a criminal history with no sex crimes or felonies; 15 points for a history of drug or alcohol abuse; and, 20 points for unsatisfactory conduct while confined or supervised including sexual misconduct.

The Board compiled a Case Summary “based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior.” This summary stated, in pertinent part, that:

“While incarcerated, defendant completed a sex offender counseling program. His final evaluation indicates that he accepted responsibility for his actions and demonstrated remorse and empathy. Defendant, who admitted to abusing alcohol and to drinking on the night of the rape, did complete a substance abuse program. His disciplinary history contains a sex offense wherein during a visit with his wife and mother, defendant was observed with his hand “in between his wife’s legs, outside of clothing, rubbing her crotch vigorously.” “He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity, i.e., unauthorized organization activity.”

Published on: June 2, 2014

Article 78 proceedings

by Stephen Bilkis

This is an Article 78 proceeding filed by petitioner UJC against the respondents, the New York Police Department (NYPD) and its commissioner, to compel the production of records relating to raids on certain bondage, dominance, sadism and masochism (BDSM) establishments, pursuant to New York’s Freedom of Information Law (FOIL) (Public Officers Law, “POL” §§ 84-90), and for attorneys’ fees and costs.

The background facts are as follows:

Petitioner UJC is a New York not-for-profit legal and social services corporation. It has several divisions and one of which is the Sex Crimes Workers Project. This division is engaged in protecting the rights of people referred to as “sex workers,” people profiled as “sex workers” and victims of human trafficking.

Published on: June 2, 2014

Risk Level 2 Sexually Violent Offender

by Stephen Bilkis

On 3 May 2000, at approximately 11:00 p.m. within the vicinity of East 23rd Street and White Plains Road in Bronx County, S was with her friend R. There they saw defendant, MW, whom R knew. R talked to him while S was standing close by. S and R then got into the back seat of defendant’s car. JS, defendant’s friend, was also inside the car. When R got out to purchase some cigarettes or marijuana, defendant drove off leaving R behind. Defendant and JS detained S in a car and refused to let her leave when she requested to do so. At that time, S called to R for help. When she attempted to get out, JS pulled her back inside the car and covered her mouth when she tried to scream for help. Defendant then proceeded to drive to a parking lot. Thereafter, he got into the back seat, grabbed S’ thigh and demanded that she place his penis into her mouth. Afterwards, defendant removed S’ pants, held her hands down, and engaged in a sexual intercourse with her against her will. Defendant and JS held S down while defendant inserted his penis into her vagina. JS then inserted his penis into S’ mouth and masturbated into her mouth while defendant held her hands down as she was repeatedly shouting, “No.” JS then struck S in the mouth. After that, S was driven and forcibly thrown out of the car one block from her home.

On 4 May 2000, defendant MW and co-defendant JS were arrested for acting in concert in committing the crimes of Kidnaping in the First Degree (Penal Law § 135.25 [1]), Rape in the First Degree (Penal Law § 130.35 [1]), Sodomy in the First Degree (Penal Law § 130.50 [1]), and Unlawful Imprisonment in the First Degree (Penal Law § 135.10). At the time of his arrest, when told that he was being charged with rape, defendant responded, “I kind of had that feeling.”

Subsequently, criminal defendant was identified by S and an eyewitness in separate corporeal lineups. DNA tests performed on the victim and defendant revealed that his semen and that of another male were found on a vaginal swab of the victim as well as on her panties.

Published on: June 2, 2014

The Court orally denied the defendant’s motion

by Stephen Bilkis

The defendant was charged with Driving While Intoxicated Per Se, Vehicle and Traffic Law, Driving While Intoxicated, Turning Movements and Required Signals, and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles. After a trial by jury, the defendant was convicted of Driving While Intoxicated Per Se, Driving While Intoxicated and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles.

The DWAI https://dwi.1800nynylaw.com/new-york-dwai-lawyer.htmldefendant moved prior to trial to preclude the People from eliciting the result of the defendant’s breathalyzer test for blood alcohol content as a three decimal point reading. The defendant contended that the New York Department of Health Rules and Regulations regarding the chemical analyses of blood, urine, breath or saliva for alcoholic content require that the result of a breathalyzer test be reported only to the second decimal point. The People did not oppose the defendant’s application and agreed to introduce evidence of the criminal defendant’s breathalyzer test result as a two decimal point reading. Thereafter, the video recording of the defendant’s breathalyzer test was admitted into evidence and published to the jury. The recording, however, displayed the defendant’s breathalyzer test result as a three decimal point reading. The defendant objected and moved for a mistrial, claiming that the error was so prejudicial that it deprived him of a fair trial. The Court orally denied the defendant’s motion, finding that the report of the defendant’s breath test to the third decimal point was a violation of a Department of Health rule which affected only the weight of the evidence and not its admissibility.

Unlike the 15 minute observation requirement, the rule that a breathalyzer test result be reported to the second decimal point does not implicate the reliability of the test. The failure to observe the defendant to ensure, for example, that he has not placed anything in his mouth before the test obviously may impact the accuracy of the result. In contrast, the report of a breathalyzer test result beyond the second decimal point is a ministerial error which is unrelated to the procedure or accuracy of the test. As such, the fact that a breath test result is reported to the third rather than the second decimal point is irrelevant to its admissibility. If anything, the failure to comply with the Department of Health reporting rule impugns the credibility of the witness who recorded the breath test result, not the test result itself. Consequently, the admission into evidence of the video recording displaying the defendant’s blood alcohol content as a three decimal point reading is not error which the fact finder is bound to disregard.

Published on: June 1, 2014

Mental Hygiene Law

by Stephen Bilkis

A Suffolk Criminal Lawyer said that, the defendant moves pursuant to Section 440.20 of the Criminal Procedure Law to set aside the sentence imposed upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. This is a case of ‘second impression’–the first time this precise issue has been raised in the First Judicial Department.

The issue in this case is whether he could properly be sentenced under the Penal Law without first having been examined pursuant to Section 81.19 of the Mental Hygiene Law (formerly Section 207) where he was charged with a violation of Article 220 of the Penal Law.

Section 81.19(a) states: ‘Every person charged with a violation of section seventeen hundred forty seven-e, section seventeen hundred fifty-one or section seventeen hundred fifty-one-a of the Former penal Law as in force and effect immediately prior to September first, nineteen hundred and sixty-seven, which was committed after April first, nineteen hundred sixty-seven, And every person charged with a violation of any offense defined in article two hundred twenty of the penal law, and every person charged with any felony or misdemeanor or the offense of prostitution, which was committed after October first, nineteen hundred sixty-seven, who, while in custody or when he appears before the court, shall state, indicate or show symptoms, or it otherwise appears, that he is a narcotic addict, shall undergo a medical examination to determine whether he is a narcotic addict. This section of the Mental Hygiene Law was originally enacted in April, 1966, as part of a comprehensive plan to provide care, treatment and rehabilitation of drug addicts.

Published on: May 31, 2014

Housing Authority does not have access to the files of the Criminal Court

by Stephen Bilkis

While it is true that the arresting officer filed reports with the Housing Authority and with the Criminal Court, those files and reports are not available to the Housing Authority at this time. The certificate of disposition submitted by the petitioner clearly indicates that the charges were dismissed and sealed.

It is clear, therefore, that the Housing Authority does not have access to the files of the Criminal Court, the District Attorney, or even the files maintained by the Housing Authority’s Police Department, since it is a police agency. Accordingly, the imputed knowledge which ordinarily would be the equivalent of a prompt investigation does not presently fulfill that function in this case. Furthermore, these sealed records may be made available only to the defendant or his designated agent. It would appear that under these circumstances, the Housing Authority’s contention that it would suffer substantial prejudice if the petitioner were granted leave to serve a late notice of claim is meritorious.

Published on: May 31, 2014

Ruggerio v. Aetna Life & Cas. Co.

by Stephen Bilkis

Ruggerio v. Aetna Life & Cas. Co.

Court Discusses Whether the Defendant was Indemnified against Liability arising from an Accident

The plaintiff was involved in an accident with a taxi operator at a time when the operator did not possess a license to operate a taxi and his operator license was suspended as a consequence of driving while intoxicated DWI. The plaintiff had obtained judgment on a previous occasion against the insurance company of the defendant based on two separate cause of action. The first cause of action involved vicarious liability of the insurance company as a result of the negligence of one of their drivers. The second cause of involved the negligence of the insurance company in failing to determine whether the driver was qualified to operate a taxi and assigning him with a taxi when he was intoxicated. The plaintiff initiated an action pursuant to the former section 167 (subd. 1, par. [b] ) of the Insurance Law to recover insurance proceeds pursuant to a judgment obtained by plaintiff against defendant’s insured. However, the Supreme Court held that the policy which the defendant possessed contained a standard exclusion for liability arising out of the ownership, maintenance, operation or use of an automobile as such the policy was inapplicable to both causes of action. There was no harm done to the plaintiff until the driver went behind the wheel of the taxi. The plaintiff appealed the decision.

Published on: May 30, 2014

Housing Authority does not have access to the files of the Criminal Court

by Stephen Bilkis

The petitioner man was arrested by a member of the Housing Authority Police Department in Queens. He was arrested for criminal contempt in the second degree (violation of an order of protection) and sexual harassment. The officer acted on the basis of information supplied to him by the person who was to be protected by the order of protection.

The petitioner was arraigned in the Criminal Court of the City of New York and remanded, apparently in default of bail. The charges were dismissed and all records sealed. While the certificate of disposition does not set forth the reason for the dismissal, the petitioner indicates that it was because he had never been served with the order of protection. The petitioner, acting pro se, served a notice of claim upon the City of New York in January 1992. Subsequently, according to the petitioner, the Comptroller’s Office advised him that the City was not the proper party to be given notice. The petitioner consulted with his attorney and promptly moved for permission to serve a late notice of claim against the Housing Authority, alleging false arrest, false imprisonment, and malicious prosecution resulting in mental anguish or suffering, shame and humiliation, ridicule and scorn, moral and mental degradation, loss of earnings, property loss and physical injury. Public Housing Law provides that all notices of claim relating to personal injuries must be presented to the Authority within 90 days and that all of the provisions of General Municipal Law shall apply to such notices.

The Supreme Court granted the application, and deemed the notice of claim to be timely served. This decision was predicated upon the finding that the Authority had actual knowledge of the facts constituting the petitioner’s cause of action. The court did not address the question of any possible prejudice to the Authority.

Published on: May 29, 2014

Consequently, the court granted the man’s motion and the information is dismissed.

by Stephen Bilkis

At approximately 3:30 a.m., a woman was sleeping in her apartment which she left unlocked because she was expecting her boyfriend to come over. She was then awoken by a knock and believed that it was her boyfriend at the door. She thought that he had forgotten the key she had given to him. She instructed the person to come in believing it was her boyfriend. After the light was turned on, the woman realized that the man was not her boyfriend but was his twin brother.

Afterwards, they talked shortly and the woman told her boyfriend’s twin brother to lock the door when he left. The complainant then went back to sleep but was again awoken at approximately 5:00 a.m. She heard a knock at the door and heard a man voice saying to open the door.

The woman believed the man was her boyfriend because it sounded like him. She got out of bed and, curiously enough, turned off the light located near the door rather than turn it on. She then opened the door and thought it was her boyfriend who entered the apartment, as it was dark and she couldn’t see.

Published on: May 28, 2014

People v Guaman

by Stephen Bilkis

People v Guaman

Court Discusses Whether the Judicial Hearing Officer at a Suppression Hearing was Biased

The defendant was charged with two counts of driving while intoxicated DWI and one count of aggravated driving while intoxicated. The defendant requested a suppression hearing to suppress the breathalyzer results. The hearing was presided over by a judicial hearing officer on May 10, 2007. The prosecution presented one witness and closed its case and the defense presented one and rested. The hearing officer credited the prosecution’s witness’s testimony and recommended that the defendant’s request to suppress the breathalyzer results be denied. The defendant informed the People and the officer of his intention to reopen the hearing upon receipt of the missing Rosario material. The case was adjourned to June 14, 2007 for further proceedings.