New York Criminal Lawyer Blog

Published on: March 7, 2014

The Court had reserved decision on the motions

by Stephen Bilkis

A Queens Criminal Lawyer said that, these are motions by defendants, made initially at the close of the People’s case and renewed before submission to the jury, inter alia, to dismiss the first two counts of the indictment for Kidnapping in the First Degree. Although the criminal defendants were acquitted of these charges and the lesser included counts of Kidnapping in the Second Degree, the importance of the issue in relation to the improper conduct by the District Attorney in attempting to foreclose application of the merger doctrine warrants consideration of the motion on the merits.

In the morning hours of September 22, 1992, at about 8:20 a.m., the victims left their home on 112th Street and 68th Drive, in Forest Hills, a quiet, residential street, preparing to go to the subway at Queens Boulevard. One was on his way to work in downtown Manhattan, the other to school at New York University. As the two left their home and crossed the street, they were accosted by five Asian males, with guns and knives, who forced them back into the house.

A Queens Gun Criminal Lawyer said that, once inside, the victim was directed to open the front door, at which point two of the five who had stopped him on the street, entered. He and his mother, were taken to the living room, where they were forced to lay on the floor, his hands bound with a dog’s leash and both covered with a blanket or cover, guarded by three of the intruders, one with a knife and one with a gun, while the other victim was taken by the other two to the basement. They told him to cooperate with us, otherwise we are going to kill all of you.” After he opened the safe, on finding no money, only jewelry, defendant told him, “You play game with me? Want money! Money! If you play games with me I’m going to kill all of you.”

Published on: March 7, 2014

The defendant sought to suppress the gun and marijuana

by Stephen Bilkis

A police officer and a sergeant received two radio reports about a gunpoint robbery involving three black men, two of whom had bicycles. According to the first radio report, the victim, a black man dressed in all white, was waiting for them on the corner of Mott and Central Avenues in Queens County. The second radio report related that a gun was involved in the robbery.

Upon arriving at that location, the police officer observed the defendant, a black male, dressed in white and carrying a white jacket. The police officer exited the car, approached the defendant, asked him if he was okay, and in which direction the perpetrators fled, and asked him to enter the police car to help them canvass the area. Instead of answering, the defendant fled down the block. The police officer, thinking that the defendant was a perpetrator, chased him in his car, and saw him throw a jacket to the ground. He blocked the defendant’s path with his car, wrestled him to the ground, and handcuffed him. The police officer recovered the jacket and felt a heavy object therein which was determined to be a loaded.32 caliber revolver. Upon further search, 20 bags of marihuana were discovered in the defendant’s right jacket pocket. The defendant was charged with criminal possession of a weapon in the third degree and criminal possession of marijuana in the fifth degree.

The defendant sought to suppress the gun and marijuana, and, after a Mapp hearing, the court denied the defendant’s motion. He was convicted of criminal possession of marijuana in the fifth degree and criminal possession of a weapon in the third degree. The defendant contends that the hearing court should have suppressed the gun and marijuana because the police did not have reasonable suspicion to chase him and the property was abandoned as a result of their unlawful pursuit.

Published on: March 5, 2014

United States Post Office

by Stephen Bilkis

The criminal defendant was indicted for possession of a weapon as a class D felony on the charge that he had possessed an operable revolver and a quantity of ammunition and that such drug possession was not in his home or place of business. He was allowed to plead guilty to attempted possession of a weapon as a class E felony in satisfaction of the indictment. He was then sentenced to a six-month term and he was incarcerated until when he was released on bail with the consent of the District Attorney.

The principal question presented is whether the firearm here possessed was in the defendant’s place of business within the exception set forth in Penal Law. Subsidiary questions presented are whether the court’s stated policy at the time of sentence to impose a term of incarceration in such cases was improper in the light of his previous statement, at the time of accepting the guilty plea, that he would make no commitment as to sentence prior to reading the probation report; and whether the sentence imposed was excessive.

The facts are not in dispute. The defendant, an employee, was arrested while on his job in the United States Post Office attached to the John F. Kennedy Airport. Special Police Officer alleged that he had been informed that the defendant was carrying a gun. When the officer approached the defendant, he observed a bulge on his left side and removed there from in holster a .38 cal. revolver. The officer arrested the defendant and, upon a search of his person, discovered five rounds of live ammunition which could be used to discharge this firearm. The defendant had no permit for the gun.

Published on: March 4, 2014

Buffalo traffic lights

by Stephen Bilkis

The claims on which the instant motions are based developed from an automobile accident, when a car driven by the accused struck a vehicle operated by the victim. His wife was a passenger in the vehicle. She died as a result of injuries received in the accident. The gravamen of both claims is that the State, through its agents, or employees, was at least partially and proximately at fault for the accident because the Motor Vehicle Department negligently and without authorization issued a temporary driver’s license to the accused in August 1973 under its experimental DWI Counter-Attack Program in Onondaga County.

A New York DWI lawyer said that after filing the Notices of Claim, Claimant moved for an examination before trial of the District Director of the DWI Counter-Attack Program; for the discovery and inspection of various State documents; and, for permission to correct the date of the occurrence of the accident. The State then filed a cross-motion to dismiss both claims, alleging that they failed to state a cause of action and that the Court lacked jurisdiction over the subject matter.

Both counsel provided the Court with briefs and factual evidence through affidavits. The Court considers and weighs evidence submitted with or in opposition to a motion to dismiss. Courts utilize two standards for deciding motions to dismiss for failure to state a cause of action depending on whether or not extrinsic evidence is offered with the motion. If no evidence is presented, the Court construes the pleading liberally and presumes that the DUI allegations pleaded are true. The sole question is whether the pleading states a cause of action. However, if evidence is offered, as was the case herein, the test used is not whether the pleading states a cause of action but whether a cause of action exists.

Published on: March 4, 2014

Supreme Court, Queens County

by Stephen Bilkis

A Queens Criminal Lawyer said that this is an appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 11, 1982, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial of the defendant’s motion to suppress physical and testimonial evidence.

A Queens Gun Crime Lawyer said that, defendant was indicted for criminal possession of a weapon in the third degree as the result of an incident which occurred on the premises of the Four Towns Auto Body Shop in Queens County on December 30, 1981, in which a gun was recovered from the confines of a trailer located thereon. In the ordinary course of events, a motion to suppress the gun and certain allegedly incriminating statements was made by the defendant, and on April 6, 1982 the matter came on for a combined Mapp and Huntley hearing.

A Queens Felony Lawyer said that, at the hearing, the People produced but a single witness, Detective who testified, inter alia, that on the evening in question, he and his partner, were engaged in narcotics surveillance when a car that they had been following led them to the Four Towns Auto Body Shop in Queens. At this point, two individuals exited the car and entered a small work shack or trailer which was located on the premises. Notably, one of these two individuals was carrying a brown paper bag.

Published on: March 3, 2014

Blackberry capable with internet and email capability was recovered

by Stephen Bilkis

July 7, 2010, the Judge of the New York City Criminal Court reviewed and approved a warrant authorizing the search of 105 West 128th Street, Apartment 4, New York, New York and seize cocaine and crack/cocaine and drug paraphernalia as well as any records and currency that would be indicative of drug trafficking. A New York Drug Possession Lawyer said that, defendant is charged with Criminal Possession of a Controlled Substance in the Third and Fifth Degrees, two counts of Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana. Defendant moves to controvert the search warrant on the ground that it was issued without reasonable cause. Specifically, defendant claims that there is no nexus between the apartment that is the subject of the search warrant and the facts upon which the search of the apartment was ordered. Defendant also moves, pursuant to CPLR 2221(d), for leave to reargue the Court’s Order which granted the People’s ex-parte motion for a Protective Order pertaining to paragraphs 6 and 7 of the search warrant affidavit.

A New York Criminal Lawyer said that, according to defendant, he resided at 105 West 128th Street, Apt. 4, New York, New York for the past ten years. On July 8, 2010, at approximately 12:45 a.m., as defendant entered the ground floor lobby of 105 West 128th Street, the police rushed into the building and summarily seized and searched him. Two cellular phones, two keys to defendant’s apartment and $26.00 in United States currency was recovered from defendant. He was then handcuffed and subjected to a custodial interrogation in the lobby of his residence, which resulted in defendant making a statement to the police. The police had a search warrant for defendant’s apartment. However, defendant was not the subject of the warrant and the warrant did not authorize the search or seizure of any person “thereat or therein.”

A New York Drug Possession Lawyer said that, upon execution of the search warrant, the police recovered 3,104 mg. of marijuana, 3,278 mg. cocaine, a .32 caliber magazine, six .32 caliber bullets, scales, zip lock bags, $70.00 in United States currency, an identification card in defendant’s name, a letter addressed to defendant and a computer. According to defendant the police recovered a total of $889.00 in this case. The warrant affidavit basically sets forth in substance, the following facts, namely, that the Detective received information from an undercover police officer relating to the sale of cocaine at the barber shop located on the ground and first floor level of 237 Lenox Avenue. Those observations were set forth in the affidavit for a search warrant.

Published on: March 3, 2014

Officer saw the defendant’s hands near the trigger housing of the gun

by Stephen Bilkis

A Queens Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered September 23, 1982, convicting him of attempted murder in the first degree (two counts), upon a jury verdict, and imposing sentence.

A Queens Gun Crime Lawyer said that, on June 25, 1981, police officers received a radio transmission directing them to an address in Queens where a man was reported to be harassing two women with a gun. The uniformed officers proceeded to that address and knocked on the door. In response to an occupant’s query, the officers identified themselves as police officers. After a brief pause, the door of the apartment abruptly swung open revealing a man holding a shotgun which pointed towards the floor. Before the officers could draw their own weapons or take cover, the defendant raised the gun to shoulder level and aimed it at their heads. The other Officer saw the defendant’s hands near the trigger housing of the gun and heard a sound he associated with the trigger being pulled on a gun that misfires. Although the first Officer’s eyes were transfixed on the barrel of the gun, he heard the familiar click of a trigger being pulled. The defendant’s female companion testified that she watched as the defendant jumped up and back while pulling the trigger with his right forefinger. She also heard the resultant metallic click. The shotgun, however, failed to fire. As the officers retreated in an attempt to protect themselves, the criminal defendant escaped out of a rear window, taking the gun with him.

The issue in this case is whether the court erred in convicting defendant of attempted murder in the first degree.

Published on: March 2, 2014

New York Public Health Law § 2805-d

by Stephen Bilkis

A New York Criminal Lawyer said that, in this action, the plaintiffs seek to recover damages for medical malpractice and lack of informed consent. They allege that the defendants were negligent in failing to timely diagnose and treat the plaintiff stroke symptoms as a result of which she suffered a stroke which has left her with permanent “locked-in” syndrome, a condition which renders her unable to speak or to move below the neck. The defendants seek summary judgment dismissing the complaint. They maintain that when they treated her, plaintiff did not present with stroke symptoms which are required before the drugs tissue Plasminogen Activator (“t-PA”) can be administered intravenously and that by the time that her stroke was diagnosed, the three-hour window of time in which that drug could have been given expired. In addition, a number of the defendants allege that they had no contact with her until after the three-hour window for the administration of t-PA expired, thus requiring dismissal of the complaint against them. As for their failure to administer the drug t-PA intra-arterially which has a six-hour window for its administration, the defendants maintain that that drugs was experimental and had not been approved by the Federal Drug Administration and accordingly, their failure to administer it cannot serve as grounds for a finding of malpractice.

A New York Drug Crime Lawyer said that, the plaintiffs maintain that the defendants unreasonably delayed in diagnosing her stroke in light of which the time in which both intravenous as well as intra-arterial t-PA could be administered expired with devastating consequences. The plaintiffs also maintain that the hospital, per the defendant failed to establish appropriate protocols and procedures for caring for a patient who presents with possible stroke symptoms and that the hospital also failed to enforce them which contributed to their failure to timely diagnose and treat plaintiff.

A New York DWI Lawyer said that, in their complaint and Verified Bills of Particulars, the plaintiffs fault the defendants for failing to be aware of or recommend that plaintiff discontinue Ephedra; failing to recognize the significance of her heaviness and tingling; failing to refer her to an appropriate specialist; failing to obtain a complete history regarding the onset of her symptoms; failing to appreciate the significance of blood pressure readings and the toxicology report; and, failing to timely diagnose her stroke and to administer t-PA. On their Amended Bill of Particulars, the plaintiffs fault the defendants for not following the doctor’s recommendations, failing to order further diagnostic tests, attributing the plaintiff’s condition to a drug overdose and failing to obtain appropriate consults by specialists. The plaintiffs also allege that the doctor failed to diagnose a stroke on the December 12, 2003 MRI/DWI. The plaintiffs also fault the doctor and the hospital for not establishing and/or following appropriate standards and protocols for treating patients with stroke symptoms.

Published on: March 1, 2014

Violation of the Fourth Amendment

by Stephen Bilkis

A New York Criminal Lawyer said that, the People’s evidence consists mainly of testimony by the Police Officer that on June 12, 1977, he peered through the partially opened window of the brightly lit rest room at the rear of premises used as a bar. He observed the defendant enter with three or four other individuals. Defendant took a clear plastic bag containing white powder from the crotch of his pants and used a silver plastic spoon to scoop powder out of the bag. Although their backs faced the window, the Officer concluded that the defendant’s companions were snorting, i. e., partaking of the white powder the defendant offered to them. Defendant spooned the white powder from the bag separately for each of his companions. As defendant raised the spoon to each man’s face, the Officer could see the powder in the spoon. As defendant withdrew the spoon after the powder had been “snorted,” Anderson saw that the spoon was empty. He drew his conclusion from the motions they made with their hands, as well as from the noises they made.

A New York Drug Possession Lawyer said that, the Officer radioed his observation, including a description of defendant, to back-up officers who then entered the tavern. then observed a fellow officer enter the rest room and direct defendant and his one remaining companion (the others having left in the interim) to place their hands on the wall. Defendant dropped the contraband as he complied with this directive. The Officer then left his observation post, entered the tavern, proceeded to the rest room, and upon entering the latter, retrieved the bag of narcotics (cocaine) from the floor. He preliminarily frisked defendant for weapons in the rest room. At the station house, he searched the defendant and found a silver quarter teaspoon (measuring spoon) and $1,111 cash 1 in defendant’s pocket. The police testimony was credited by the Justice presiding at the Suppression Hearing and subsequently by the jury at trial, resulting in a judgment convicting defendant of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree.

A New York Cocaine Possession Lawyer said that, on appeal, defendant urges that the Officer’s surveillance of the rest room constituted a search within the meaning of the Fourth Amendment not justified by exigent circumstances and without benefit of a warrant. He concludes that since the narcotics, the spoon and the money were seized as a result of the surveillance, these items should be suppressed.

Published on: March 1, 2014

A valid contract requires a meeting of the minds

by Stephen Bilkis

A man seeks to recover $1,492 from his opponent for damages obtained of his automobile while in their exclusive possession and control. The opponent then interposed an application, seeking dismissal to the complaint upon the sole ground of release of liability.

The matter started when the man was sleeping in his car while parked on the roadside. A county police officer arrested him under suspicion of DWI driving while under the influence of alcohol. The officer subsequently breathalyzed the man on the roadside and on the precinct with a 0.00 reading results.

The officer disputed the sufficiency of the breath samples provided and the accuracy of the <a breathalyzer results, and reported that the man refused to properly submit to a breathalyzer test.