New York Criminal Lawyer Blog

Published on: April 14, 2014

Commissioner of Motor Vehicles

by Stephen Bilkis

In this Criminal action, DWI charges were commenced by filing simplified traffic informations and supporting depositions rather than misdemeanor informations. Under our law as it applies in this case, simplified information is “a written accusation by a police officer filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.”

If requested, sworn facts will be provided in a supporting deposition from the arresting officer which must “contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.”6 Importantly, this deposition must be “subscribed and verified.”7 The facts, however, need not be handwritten. Our highest court has sanctioned the use of “fill in the blank” supporting depositions in DUI cases noting that “the factual statements in the deposition are communicated by check marks made in boxes next to the applicable conditions and observations signifying the complainant’s allegations as to the existence of those conditions and the truth of those observations.”

It is within this legislative and common-law context that, as the millennium approached, several segments of state government began thinking about the opportunities presented by maturing computer technologies. The New York State Police and Department of Motor Vehicles started studying e-tickets and the efficiencies of data entry, transfer and retrieval which they presented.

Published on: April 14, 2014

There does not appear to be any reported New York case

by Stephen Bilkis

In this Criminal case, this suppression motion places in question the propriety of a lineup identification procedure that involves a suspect with a distinctive facial deformity: a glass eye. This motion also challenges the propriety of conducting a lineup in the absence of counsel, prior to the start of adversarial judicial proceedings, when the suspect’s counsel in an unrelated case has requested an adjournment of the lineup to the next day.

The Grand Jury of Queens County by two separate indictments charges the defendant with Robbery in the First Degree and with Grand Larceny in the Third Degree. Defendant moves to suppress evidence of all identification testimony connected to these two indictments which could potentially be offered against him at trial. The court conducted a joint Wade hearing to make findings of fact essential to a determination of that motion.

Defendant, claiming to be aggrieved by the improper and suggestive identification procedure utilized, and having a reasonable belief that the identifications thus obtained will be used against him at trial, seeks an order suppressing all such identification testimony. In particular, he contends that the lineup identifications utilized in both proceedings should be suppressed because they were the “fruit” of an illegal seizure of him. In addition, he contends that because of his uniquely distinguishing facial appearance, the same lineup shown to both complainants, was impermissibly suggestive and conducive to irreparable misidentification. Finally, he argues that the lineup identification testimony must be suppressed since his counsel in another pending case was not given a reasonable opportunity to attend the lineup shown to both complainants.

Published on: April 13, 2014

Law enforcement officers should not be restrained

by Stephen Bilkis

A New York Marijuana Possession Lawyer said that, criminal defendant makes this motion to suppress as evidence the marijuana seized by the police which is the basis of the indictment here. The record discloses that about 3:30 A.M. on May 12, 1966 a Detective of the Narcotic Squad received a telephone call from the supervisor of the Railway Express at Kennedy Airport. The supervisor, who had previously given the detective information in a marijuana possession case which resulted in a conviction, told him that there was a package in the baggage room which he suspected contained marijuana. The detective and his partner arrived at Kennedy Airport about 5 A.M., and the supervisor showed them a cardboard box which was sealed with gummed tape and which had defendant’s name on it. There was a hole in the box from which grains of marijuana were seeping. The box gave off a distinct odor of marijuana.

A New York Unlawful Possession of Marijuana said that, the detective, who had no search warrant, thereupon slit open the bottom of the carton. It contained ten packages of marijuana, two or three of which were broken and one of which was punctured. He then resealed the carton, and his partner and he waited for the owner to arrive. At 3:30 in the afternoon, defendant came to the baggage room and asked if there were a package for defendant. At the detective’s request, criminal defendant pointed out the package as his and signed for it. He was then placed under arrest.

The issues in this case are whether the Fourth Amendment constitutional guarantee against unreasonable searches and seizures extends to a package such as the one here involved, and the other is whether the surrender of custody of such a package to a common carrier forfeits the owner’s right to privacy therein and deprives him of standing to seek a suppression order.

Published on: April 13, 2014

Concededly, no description was furnished with that radio message

by Stephen Bilkis

This is an Appeal by defendant from a judgment of the Supreme Court convicting him of attempted criminal possession of a weapon in the third degree, upon his guilty plea, and imposing sentence. The appeal brings up for review the denial of defendant’s motion, to suppress physical evidence and an incriminating statement.

A Queens County Criminal attorney said that in On May 1981, a police officer received a radio run of a “burglary in progress possible man with a gun” Upon reaching that address in his marked patrol car, he observed defendant in the driveway, gesturing with his hands and arguing with a man on the stoop about 10 feet away. According to the officer, the defendant appeared a little “restricted” and “self-conscious in his motioning”. The officer stepped between the two men and asked them to quiet down. Defendant brushed into the officer, and the officer pushed him back.

Thereupon, the officer patted the defendant down, because he was allegedly concerned with his physical safety. In his direct testimony, the officer testified that during the pat down, he felt the shape of a gun, but on cross-examination he testified that he only felt the shape of a holster. He then unzippered defendant’s jacket, and saw an empty shoulder holster. He removed the holster, placed the defendant against the wall under the guard of another police officer and proceeded to search the area.

Published on: April 12, 2014

X was the only defendant to take the stand

by Stephen Bilkis

This is a proceeding wherein the defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged criminal defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State’s “rape shield law” under CPL 60.42 to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court’s refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations.

The Appellate Division affirmed the judgments.

The court affirms the Appellate Division’s order in each case.

Published on: April 12, 2014

There is no indication that the Legislature intended to bifurcate the hearing process

by Stephen Bilkis

In this Criminal case, the defendant was arrested in September 1978 and charged in one accusatory instrument, a felony complaint, with two crimes, i. e., Violation of Sections 265.02 (a felony) and 240.50 (a misdemeanor).

A Queens County Criminal attorney said that a preliminary hearing was held by this Court in November 1978. The People offered the testimony of an officer and a forensic report prepared by the New York City Police Department attesting to the operability of the weapon.

A Queens County Criminal lawyer said that the defendant was standing on 107th Avenue and New York Boulevard in Queens County at about 6:30 A.M. on September 16, 1978, when he flagged down a police patrol car. A distance away from the defendant were a group of five males. The defendant informed the police officers that he was an “undercover man” in the District Attorney’s office and that the group of males had just robbed him and taken his gun. At the time of this conversation, the defendant was holding a black leather holster in his hand. The police arrested the five males at the scene and recovered a gun on the sidewalk from the area in which they were standing. The defendant identified the gun as his; it was a twin barrelled Derringer with two live rounds in its chambers.

Published on: April 9, 2014

People v. Tolentino

by Stephen Bilkis

People v. Tolentino

Court Discusses Suppression of Evidence and Probable Cause

The criminal defendant requested that the finding from the search of his automobile be suppressed. The defendant was arrested after an informant told the police that the defendant and his accomplice would be at a train station with heroin. The defendant was under extensive surveillance and a search warrant was obtained to search him and his accomplice. The defendant and his accomplice arrived at the train station and were searched but no controlled substances were found on his person but his car keys were found. The defendant permitted the officers to search his car and ten ounces of heroin was found in the trunk. The Huntley hearing concluded that finding were to be suppressed as the search flowed directing from the questions and answers which was previously suppressed by an order. The People appealed the finding of the hearing.

Published on: April 8, 2014

The aforesaid charge is dismissed summarily

by Stephen Bilkis

In this case, two offenders moved to dismiss the misdemeanor charges of criminal possession of a weapon and criminal possession of marijuana on speedy trial grounds.

They were arraigned on the said complaints and after two days, the complainant allegedly obtained a copy of the ballistics report. The report states that the .32 caliber pistol seized from the offenders is operable. The report was deposited in the complainant’s case file, where it faded for many months.

Afterwards, in a written response to a discovery motion, the complainant invited the offenders to inspect the ballistics report in the file. It does not appear that the offenders ever availed themselves of the opportunity. The complainant then announced their readiness on the record. However, the ballistics report was not filed in the court.

Published on: April 8, 2014

New York Vehicle and Traffic Law 1192

by Stephen Bilkis

The matter at bar is a civil forfeiture proceeding wherein the complainant woman who is claiming authority also happens to be a Suffolk County Attorney seeking the forfeiture of a 1967 Chevrolet owned by the defendant man.

The defendant man was arrested on June 23, 2006 for driving while intoxicated (DWI). He submitted to a blood test after being transported to the Hospital and it was determined that his blood alcohol level was 19%. Prior thereto, on January 11, 1984, the defendant man was convicted of driving while intoxicated (DWAI) in violation of Vehicle and Traffic Law section 1192.2. The said law prohibits any person to operate a motor vehicle while such person has 0.08 alcohol level in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. On October 26, 2006 he pled guilty to driving while intoxicated (DWI) and was sentenced to sixty days incarceration.

Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

Published on: April 5, 2014

District Attorney of Queens County

by Stephen Bilkis

A Queens Criminal Lawyer said that, the defendants, through their respective counsels, move for an order dismissing this indictment for lack of prosecution. These defendants, together with two other defendants, were indicted for the crimes of robbery in the first degree; grand larceny, first degree; grand larceny, second degree, three counts; assault, second degree; kidnapping and burglary, third degree by an indictment filed April 29, 1959. At that time these defendants were in the custody of the San Francisco Police Department upon charges pending against them by the State of California. During the month of April 1959 these defendants were indicted by a Federal Grand Jury in the Northern District of the State of California charged in a three count indictment with interstate transportation of stolen property, concealment of that stolen property and with conspiracy.

A Queens Grand Larceny Lawyer said that, on May 1, 1959 the New York City Police Department sent a telegraphic warrant to the San Francisco Police Department requesting that these defendants be held in $50,000 bail. Thereafter on May 14, 1959 the District Attorney of Queens County communicated with the San Francisco Police Department and agreed to reduction of the bail on these defendants to $10,000 each if the criminal defendants executed waivers of extradition as promised by their attorneys. On May 20, 1959 both these defendants executed extradition waivers whereby they waived the service of the warrant of the Governor of the State of California and further agreed to accompany a duly authorized agent of the State of New York to the City of New York. This waiver only applied to the jurisdiction of the State of California and was not a waiver as to the jurisdiction of the United States Government under the Federal indictment.

A Queens Robbery Lawyer said that these defendants pleaded guilty before the Federal Court and were sentenced on July 28, 1959 to serve extensive terms in the Federal Penitentiary at McNeil Island in the State of Washington. Thereafter a superseding indictment was filed in this court against these two defendants together with two others for the same crimes as set forth in indictment 494-59. On December 11, 1959, indictment was dismissed on motion of the District Attorney of Queens County because of said superseding indictment.