New York Criminal Lawyer Blog

Published on: April 25, 2014

Feng v. Tao

by Stephen Bilkis

Feng v. Tao

Court Discusses Summary Judgment Motion in a Four Chain Car Accident

The plaintiff was involved in a four-car chain car accident while stationary at the red light. The first defendant requested summary judgment as he asserted that he was not liable for the injuries the plaintiff suffered as his motor vehicle which was behind the plaintiff was propelled into the vehicle. The defendant also claimed that the fourth driver was convicted for driving while intoxicated DWI as a result the accident occurred because of his negligence in failing to maintain a proper lookout, failing to maintain a proper speed and failing to keep a safe distance from the vehicle in front. The third driver moved for a cross motion for summary judgment as they were not liable for the accident as the drunken driver struck their vehicle.

Published on: April 24, 2014

Nassau County Police Form 38

by Stephen Bilkis

In this Criminal action, at about 3:40 on the morning in October 1989, defendant was involved in an automobile accident on Grand Avenue in Balwin, Nassau County. A Police Officer responded to the scene and approached the defendant’s vehicle.

A Nassau County Criminal lawyer said that the Police Officer told the defendant to relax and not move because there was a piece of glass imbedded in his neck. When an ambulance arrived, defendant walked to the ambulance which drove him to the hospital. Defendant testified that he lost consciousness on his way to the hospital. Clearly, however, he was not handcuffed or in any other way restrained.

At the hospital, the defendant was taken to the Emergency Room. The Police Officer who rode with him in the ambulance accompanied him to the Emergency Room and remained with him. The Police Officer testified that there came a point at which he read the defendant the Nassau County Police Form 38 warning as to the consequences of his refusal to submit to a blood test and the defendant indicated that he understood. The defendant wrote “consent” on the form and signed it.

Published on: April 22, 2014

New York City Penitentiary

by Stephen Bilkis

A Queens Grand Larceny Lawyer said that, after a jury trial, appellants were convicted of grand larceny in the first degree (two counts), conspiracy to commit grand larceny, forgery in the third degree, and conspiracy to commit forgery; and appellant was convicted of conspiracy to commit grand larceny, forgery in the third degree, and conspiracy to commit forgery. In addition, the jury also found the Forest Hills General Hospital guilty, but acquitted three other codefendants.

A Queens Criminal Lawyer said that, the theory of the prosecutor’s case was that appellants, three of whom were officers and stockholders of the Forest Hills General Hospital and one of whom was its accountant, conspired to defraud and did defraud the Associated Hospital Service of New York (hereinafter referred to as ‘Blue Cross’) by misrepresenting the actual operating costs of the hospital. This scheme was accomplished by disguising dividend payments to the hospital’s stockholders as salaries for services performed, through false entries in the hospital’s books and records and by means of false financial statements filed with Blue Cross.

The issue in this case is whether appellants’ guilt was proven beyond reasonable doubt.

Published on: April 20, 2014

Consequently, the court ordered to deny the motion of the offender

by Stephen Bilkis

At approximately 3:00 P.M., three men wearing hooded sweatshirts entered a restaurant. The men waited by the door for a few minutes until all of the customers left. One of the men then approached the register and placed an order. After receiving the order, the three men went into the bathroom. A few moments later, two of the men returned to the register, and at that time, according to a cashier, the taller of the two men, who was wearing a gray hooded sweatshirt, pulled out a gun and instructed her to give them all of her money.

The cashier testified at the trial that she was approximately 5’6 1/2 tall and that the man was much taller than she was, probably about 6’2. She further stated that she did not saw the man’s face, however, because the robbers had instructed her not to look at them. The robbers also took money from another cashier.

While the holdup was in progress, the restaurant manager came downstairs from the second floor of the store and entered the area behind the register. From a distance of about six to nine feet, the manager was able to observe, for about five or ten seconds, the face of the man wearing the gray sweatshirt and holding the gun. The hood of his sweatshirt was drawn tightly around his head so that his hair and ears were not visible, and the shape of his head was obscured. But, the manager asserted that he saw their eyes, nose and mouth. At that distance, the manager, who testified that she was 5’6 or 5’7 tall, stated that she made eye contact with the robber with the gun. She later estimated his height at 5’7 or 5’8, and further described him as having a small goatee.

Published on: April 20, 2014

State of Massachusetts

by Stephen Bilkis

In this DWAI case, defendant was convicted of driving while intoxicated per se and speeding. At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, in March 2007 at 4:58 A.M., he observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had “one drink.” The officer administered a series of field sobriety tests, all of which defendant failed.

A Nassau County DWI lawyer said that the officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department’s Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of .11 per centum by weight.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2,100:1 “conversion” or “partition” ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person’s blood from the quantity of alcohol vapor detected in a breath sample.

Published on: April 19, 2014

Ventimiglia hearing

by Stephen Bilkis

A Queens Gun Crime Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered July 15, 1999, as amended December 2, 1999, convicting him of murder in the second degree (two counts), attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

A Queens Criminal Lawyer said that, on November 30, 1981, the victim was shot and killed after he confronted a thief in the vicinity of his car. The witness an admitted car thief, testified at the trial that he drove the defendant to the scene, so the defendant could go to a marijuana store referred to as “Star Wars.” He saw the victim’s car up the block, and decided to steal its radio. The victim interrupted him, and a struggle ensued. The victim reached for his ankle, to pull a gun out of his ankle holster. The defendant, whom he testified was not a car thief and not a participant in his attempt to steal the car radio, approached with a gun. At that point, he fled, and heard gunshots. The victim shot the defendant in the foot, and the defendant shot the victim in the face. The victim died from his injuries. The bullet that killed the victim came from either a.38 caliber or nine-millimeter automatic weapon.

A Queens Criminal Possession of Weapon Lawyer said that, five years later, in 1986, the defendant allegedly described his participation in the crime to his childhood friend and long-time criminal associate. He became a government informant after he was sentenced to 50 years imprisonment for an unrelated federal conviction. According to Blake, the defendant claimed that he was stealing the victim’s car in order to drive to Long Island to commit a burglary. When the victim approached, the defendant walked away. The victim followed the defendant, firing gunshots. The defendant returned the fire. These sharply divergent versions of the crime were presented to the jury at the trial. The witness version of the events was supported by three other witnesses who testified that the man who shot the victim was standing outside of and away from the victim’s car. None of these witnesses were able to identify the defendant as the man who shot the victim.

Published on: April 18, 2014

CPL § 210.25

by Stephen Bilkis

A Queens Criminal Lawyer said that, the issue relates to the remedy to be imposed for the improper joinder of counts in an indictment. Defendant moves to dismiss the indictment as a result of the misjoinder of certain counts, namely, the murder charge, which occurred December 30, 1991, and the unrelated charge for possession of a controlled substance on April 23, 1992, when he was arrested. In opposition, the People claim that, even if there was a misjoinder, the proper remedy is a severance or dismissal of the additional count, not dismissal of the indictment.

A Queens Grand Larceny Lawyer said that, defendant is charged, inter alia, with Murder in the Second Degree, in that, on December 30, 1991, he allegedly shot the victims with a pistol, thereby causing their deaths. On April 23, 1992, at the time of his arrest, defendant was found to be in possession of a small quantity of cocaine. This possession is the basis of the ninth count of the indictment, a misdemeanor for criminal possession of a controlled substance in the seventh degree. Defendant claims that this count was improperly included in the indictment with the remaining counts, all of which relate to the homicide charges, and that this misjoinder necessitates dismissal of the indictment.

The issue in this case is whether there has been an improper joinder of counts in an indictment on the defendant’s case.

Published on: April 18, 2014

CPL 440 motion

by Stephen Bilkis

On 24 May 2006 defendant JG, a lawful permanent resident of the United States since 2005, but a native citizen of the Dominican Republic was alleged to have been caught by detective R with cocaine possession and selling the same to two apprehended buyers in Kings County. Defendant was indicted on two counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Initially, defendant was represented by two different attorneys: one at arraignment and another one who unsuccessfully moved to dismiss the indictment pursuant to CPL 30.30 and to suppress the recovered physical property. On 27 February 2008, now represented by AS, Esq., defendant accepted the People’s offer to plead guilty to a single count of criminal possession of a controlled substance in the seventh degree with all the felonies having to be dismissed on the People’s motion. This is in full satisfaction of the above-captioned indictment, in exchange for a promised sentence of a conditional discharge and forfeiture of $4,335, which had been recovered from him. In the plea minutes, AS assured the court that after an extensive discussion with the defendant and his immigration attorney, they accepted the offer. The court noted the independence of immigration authorities in implementing immigration laws and reiterated that a drug possession conviction can certainly lead to deportation. Thus, the defendant was then sentenced immediately. Thereafter, he has not appealed his judgment of conviction or engaged in any other post-conviction litigation.

Subsequent to his plea and sentence in the drug possession case, believing that his 2008 plea would not cause any immigration issues, he traveled outside the United States and attempted to re-enter at JFK International Airport on 13 April 2010. On April 14 2010 he was arrested by officials of Immigration and Customs Enforcement of the United States Department of Homeland Security (“ICE”) and charged him with violating sections 212(a)(2)(A)(i)(I): commission of a crime of moral turpitude and 212(a)(2)(A)(i)(II): commission of a crime relating to a controlled substance, of the Immigration and Nationality Act (“INA”). In defense, the defendant’s present attorney, AF, Esq., argued that the charge relating to the commission of a drug crime of moral turpitude for defendant’s 1996 New York attempted assault conviction, was improperly brought because defendant had previously obtained a waiver of that conviction when he obtained a green card in 2005. On 9 August 2010, at defendant’s first scheduled Executive Office for Immigration Review (EOIR) hearing date, the Immigration Court dismissed section 212(a)(2)(A)(i)(I) of the INA from the charging instrument. Here, he also insisted that in his CPL 440 affidavit, he would never have taken the plea had he been correctly informed by his counsel about the immigration consequences of that plea. The defendant was detained at that time by ICE in a York County Prison in Pennsylvania, pending the completion of deportation proceedings.

In the meantime, on 30 June 2010 the defendant through his newly retained counsel, AF filed a Criminal Procedure Law 440 motion (1) praying the Court for retroactive application to his case of a recent United States Supreme Court’s decision in Padilla v. Kentucky, 2010 addressing this counsel’s obligations of informing his client about deportation consequences of a guilty plea, and (2) seeking to vacate the judgment of conviction on the ground of ineffective assistance of previous counsel for his failure to advise the defendant about the immigration consequences triggered by his 2008 guilty plea to a controlled substance offense.

Published on: April 16, 2014

Memorandum in Support

by Stephen Bilkis

A New York Criminal Lawyer said that, the New York State recently enacted an amendment to its Criminal Procedure Law granting victims of certain sex crimes the right to require the convicted defendant to submit to HIV related testing and the complainant in this case has applied for an order directing that the defendant submit to human immunodeficiency (HIV) related testing.

A New York Sex Crime Lawyer said that, the defendant was indicted for Rape and Sodomy in the First Degree, “by forcible compulsion”, in violation of PL 130.35(1) and 130.50(1) and Sexual Abuse in the First Degree PL 130.65(1). Defendant testified at the Grand Jury inquiry and admitted that he and the complainant engaged in unprotected sexual intercourse and other sexual conduct but that it was consensual. Pursuant to a plea agreement, the defendant was permitted to enter a plea of guilty to Attempted Sexual Abuse in the First Degree as a reduction of the Sexual Abuse count and the first two counts alleging forcible sexual and deviate intercourse were dismissed by the People as unprovable.

A New York Sex Crime Lawyer said that, the defendant thus stands convicted of a criminal felony offense enumerated in Penal Law Article 130, in which an act of sexual intercourse is part of the underlying conduct, but for which “sexual intercourse” is not an essential element in its commission. The issue to be resolved is whether this factual scenario is encompassed by the mandate set forth in CPL 390.15(1)(a).

Published on: April 14, 2014

The record is clear that he obtained $450

by Stephen Bilkis

A Queens Grand Larceny Lawyer said that, this is an appeal by defendant: (1) from a judgment of the Supreme Court, Queens County, entered October 3, 1963, after a nonjury trial, convicting him of two counts of grand larceny in the second degree and of conspiracy as a misdemeanor, and suspending sentence; and (2) from an order of the Supreme Court, Queens County, dated January 24, 1964, which denied his motion for a new trial on the ground of newly-discovered evidence. No appeal lies from the order denying the motion for a new trial. Nevertheless, such order has been reviewed on the appeal from the judgment. In our opinion such order was properly made.

A Queens Criminal Lawyer said that, defendant is a lawyer who was convicted of obtaining a $450 settlement in his client’s personal injury action by submitting to an insurance company a fictitious medical bill allegedly showing that his client had been treated fifteen times by a certain doctor, even though the client never in fact saw that doctor. Defendant was tried by the court without a jury under an indictment charging grand larceny by false pretenses, common law larceny and conspiracy as a misdemeanor. The court found the defendant ‘guilty of the crimes as charged in the indictment.’

The issue in this case is whether the criminal court in denying defendant’s motion for a new trial on the ground of newly-discovered evidence.