New York Criminal Lawyer Blog

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 This section of the Mental Hygiene Law was originally enacted in April, 1966, as part of a comprehensive plan to provide care, treatment and rehabilitation of drug addicts.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.

Published on: May 27, 2014

The court also noted that a high burden is placed on the action to establish non-responsiveness

by Stephen Bilkis

A man has been charged with grand larceny in the second degree and attempted assault in the second degree. The man is accused of attempting to cause physical injury to a peace officer with intent to prevent the said officer from performing his lawful duty.

The man was then arraigned on those charges at which time he was served with a notice of impending grand jury proceeding. The man thereafter advised the district attorney of his desire to testify.

Subsequently, the man and his attorneys appeared at the place and time specified in the notice of presentment. But, a dispute arose between the district attorney and the man’s attorney as to whether the man would be permitted to testify. The entire discussion was recorded outside the presence of the grand jury.

Published on: May 27, 2014

The issue in this case is whether the court erred in receiving the evidence of uncharged crimes.

by Stephen Bilkis

A Suffolk Grand Larceny Lawyer said that, this is an appeal by the defendant from two judgments of the Supreme Court, Suffolk County, both rendered July 20, 1988, convicting him of criminal possession of a controlled substance in the third degree (two counts), under Indictment No. 54/88, and forgery in the second degree (two counts), criminal possession of a forged instrument in the second degree (two counts), grand larceny in the second degree, attempted grand larceny in the second degree, and offering a false instrument for filing in the first degree, under Indictment No. 86/88, upon a jury verdict, and imposing sentences of (a) concurrent indeterminate terms of three to nine years imprisonment on each count of criminal possession of a controlled substance in the third degree, with these terms to run consecutively to (b) concurrent indeterminate terms of two to six years imprisonment on each count of forgery in the second degree and criminal possession of a forged instrument in the second degree, with these terms to run consecutively to (c) concurrent indeterminate terms of three to nine years imprisonment for grand larceny in the second degree and two to six years imprisonment for attempted grand larceny in the second degree, with these terms to run consecutively to (d) a term of one to three years imprisonment for offering a false instrument for filing in the first degree.

A Suffolk Robbery Lawyer said that, the defendant was tried, inter alia, on charges of criminal possession of a controlled substance in the third degree pursuant to Penal Law § 220.16(1). An element of this particular crime is that the defendant’s possession be accompanied by an intent to sell the controlled substance.

The issue in this case is whether the court erred in receiving the evidence of uncharged crimes.

Published on: May 26, 2014

People v. Condarco

by Stephen Bilkis

People v. Condarco

Court Discusses Whether Suspension of a Driver’s License is a Punitive or Remedial in Nature

The defendants were arrested and charged for driving while intoxicated DWI while having a blood alcohol level that is over the legal limit of .10. In each case, the defendant’s license was suspended at the arraignment pursuant to Vehicle and Traffic Law § 1193(2)(e)(7)(a) and (b). The defendants’ Queens County Criminal Attorney moved to dismiss the dockets on the ground of double jeopardy under section 170.30(1)(f) of the CPL as the suspension of the defendants license constituted as a penalty. The following issues were examined by the trial judge:

Published on: May 25, 2014

The Court of Appeals

by Stephen Bilkis

The complainant and the defendant dated periodically for a period of time encompassing the past 13 years. The instant charge stems when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx.

In support of their application, the People detail the complainant’s allegations of physical and psychological abuse by the criminal defendant over a prolonged period of time. Included are a litany of alleged violent acts directed at her by the defendant, from 1991 to 2003. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. All of the prior alleged violent acts were also the subject of the People’s Molineux application, which was separately decided.

The charges contained in the criminal complaint before the court allegedly occurred on August 25, 2003. The complainant did not report the alleged crime to the police on August 25, 2003. On October 19, 2003, after other alleged incidents, the complainant reported the charge to the police along with four additional charges. Thereafter, on November 6, 2003, the defendant was arrested for the above-listed crimes.