New York Criminal Lawyer Blog

Published on: January 31, 2014

1972 Interim Report of the Temporary State Commission

by Stephen Bilkis

By order to show cause, the defendants move for renewal and re-argument of so much of the Court’s prior decision and order, entered December 2, 1993 as denied, after an inspection of the Grand Jury minutes, that branch of their respective omnibus motions to dismiss or reduce the first count of the indictment, predicated upon the argument that it was not supported by legally sufficient evidence. Relying upon the Court of Appeals’ recent decision, the defendants request the Court to re-inspect the Grand Jury minutes and to reduce the first count of the indictment, charging the defendants with criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree upon the ground the People failed to adduce legally sufficient evidence establishing that each had knowledge of the weight of the cocaine. The People oppose the application.

The motion, properly designated as one to reargue based upon a subsequent authoritative decision clarifying the mensrea element for drug possession offenses which require a minimum quantity of the drug, is granted and, upon re-argument, the motion to dismiss or reduce the first count of the indictment is denied.

Criminal possession of a controlled substance in the first degree, as defined in Penal Law requires proof that the defendant knowingly and unlawfully possessed substances of an aggregate weight of four ounces or more containing a narcotic drug such as cocaine. As was acknowledged, there is a distinction between inferences that may reasonably be drawn regarding a person’s knowledge of the pure weight of a controlled substance, when it is mixed with other materials in amounts not ascertainable except by the person who created the mixture or by chemical analysis, and inferences that may reasonably be drawn by direct sensory perception. The charged offense in this case is one of aggregate weight and the amount of cocaine discovered in the trunk of the vehicle, which was occupied solely by the defendants, was almost 18 times the requisite statutory weight.

Published on: January 29, 2014

The new pimp was very violent

by Stephen Bilkis

A woman moves to vacate her plea of guilty to disorderly conduct, the judgment of conviction and sentence rendered on her. She asserts that her prior convictions are directly related to her arrests for prostitution offenses, and that because she is a victim of human trafficking.

At trial, the woman testified that she was forced into prostitution when she was only twelve years old. She stated that she lived with her grandmother until she was eight years old. While living with her grandmother, she further stated that she was sexually abused by her uncle, but she never received any medical attention even though an institution for children was involved and informed about the abuse.

Following her grandmother’s death, she avers that she was placed into foster care and over the next few years, she was bounced around different foster homes until she was twelve years old.

Published on: January 29, 2014

ADJUDGED and ORDERED

by Stephen Bilkis

Respondent, a Housing Authority was created by the Legislature to, inter alia, build and operate low-income apartments in New York City. Respondent is required by federal and state law to provide safe, decent, and sanitary housing to public housing tenants. Pursuant to 42 USC § 1437d(l)(6), leases must include the following provision: Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.

A New York Criminal lawyer said that, by lease, petitioner agreed that in exchange for residing in apartment located at Bronx, New York, neither she nor any member or guest would engage in “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the development by other residents or by the landlord’s employees” or “any violent or drug-related criminal activity on or off the leased premises or the development,” and that respondent may terminate the lease for “violation of its material terms.”

Thereafter, New York City Police Department Detective searched petitioner’s apartment pursuant to a warrant issued upon proof of secured drug buys from petitioner and her brother, a member of her household. The search yielded two ounces of marijuana split among 37 small plastic bags and two larger bags, $419.00 in cash, all of which were found in a safe in petitioner’s bedroom, and codeine pills, which were found on petitioner’s night stand. He arrested petitioner, who pleaded guilty to disorderly conduct and was sentenced to two days of community service.

Published on: January 29, 2014

CPLR Rule 4518

by Stephen Bilkis

The defendant, during his alcohol related driving trial, opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation. The defendant’s basis for the objections was his inability to exercise his constitutional right to confront the witnesses against him as outlined by the Supreme Court in Crawford v. Washington. As this was a bench trial, the court reserved decision and in the interests of judicial economy allowed the evidence to be introduced subject to submission of papers and rendering of this opinion. Following the trial, the court reached a partial verdict on all charges except the per se DWI or Driving While Intoxicated charge.

The court overrules the defendant’s objections to the admission of the breath test documents, allows their introduction into evidence and permits the breath test results to be considered by the court as fact finder.

Criminal defendants in New York enjoy co-existing state and federal constitutional rights to confront their accusers. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him in accordance with the US Constitution, 6th Amendment, NYS Constitution Article 1, § 6. Since 1939, the state’s similar constitutional provision has provided that in any trial in any court whatever the party accused shall be confronted with the witnesses against him. This limited right of “confrontation” gave the defendant the opportunity to “reproach” or object to the testimony of a potentially biased witness.

Published on: January 28, 2014

The juvenile was then released from custody

by Stephen Bilkis

One evening, police officers were called to an alleyway and found a lifeless body of a man, who had been fatally shot in the right temple with a .25 caliber pistol.

At trial, evidence revealed that the owner of the caliber pistol, the alleged offender, was a member of a neighborhood youth gang, while the victim was a member of the rival gang with which the offender had previously been associated.

A week or two before the murder, the offender told another member of the gang that he wants to kill the victim because he believed that the victim had assault his girlfriend.

Published on: January 28, 2014

Before the police may stop a person

by Stephen Bilkis

The People appealed from an order of the Supreme Court, in this Criminal case, which, after a hearing, suppressed the use of a gun and a cartridge as evidence against the defendants. The indictment charges the defendants with the crime of criminal possession of a weapon in the third degree, a class D felony.

A Queens County Criminal attorney said that in one morning in November 1975, an Officer was operating a police car on radio motor patrol westbound on Jamaica Avenue, when he heard a shot. He stopped the car and rolled down the window. Three minutes later he heard another shot. Several seconds later he saw the defendants’ vehicle proceeding eastbound on Jamaica Avenue, three short blocks away, coming from the direction of the shots.

There were no other vehicles or pedestrians in sight. He did not attempt to block the vehicle. Instead he allowed it to pass. As he was bringing his own car to a stop some 12 feet behind the defendants’ car, he “stepped on his brights and observed an object, which he identified as a gun, being dropped to the ground from the passenger side of defendants’ vehicle.” He was then still in his police car.

Published on: January 27, 2014

A contractor testified that he was procured

by Stephen Bilkis

In this criminal action, a demurrer was duly filed to an indictment charging this defendant with the crimes of robbery in the first degree, grand larceny in the second degree, assault in the second degree (nine counts), and carrying a dangerous weapon as a felony. The demurrer states that the grand jury which found this indictment had no legal authority to inquire into the crimes charged.

A Queens County Grand larceny lawyer said that defendant was arrested and was sent to a Hospital for a psychiatric examination, found insane and committed to a State Hospital. Thereafter, he was indicted for the crimes of robbery, first degree; grand larceny, second degree; assault, second degree and carrying a dangerous weapon as a criminal felony.

He was declared recovered in February 1968 at the hospital and returned to this Court.

Published on: January 27, 2014

Memorandum Decision

by Stephen Bilkis

A New York Criminal Lawyer said that, petitioners, Property Clerk of the Police Department of the City of New York and the New York City Police Department commenced this Article 78 proceeding by order to show cause seeking to annul as arbitrary, capricious and contrary to law a Memorandum Decision issued March 11, 2004 (“OATH decision” as Exhibit 3 to Verified Petition) by respondent, New York City Office of Administrative Trials and Hearings (“OATH”), wherein an Administrative Law Judge directed the NYPD to return a motor vehicle the police seized from respondent, as an instrumentality of a crime and which is being held for forfeiture pursuant to N.Y.C. Adm. Code §14-140.

A New York DWI Lawyer said that, upon signing the order to show cause on March 25, 2004, this Court stayed the effect of the OATH decision pending the hearing. On the March 30th return date, this Court continued the stay pending its determination. At the same time, this Court granted the respective parties’ oral application for more time to file additional papers as well as copies of briefs filed in a federal appeal perfected this year which will examine an issue not implicated in the OATH decision now under review (i.e., seizure of a vehicle as arrest evidence). Parenthetically, this 2004 federal appeal involves the same parties who participated in an earlier, related appeal of a federal court determination, which had initially granted the City of ‘New York’s motion to dismiss.

A New York DUI Defense Lawyer said that, in reversing the district court, the 2nd Circuit Decision, inter alia, ruled that due process requires the NYPD to afford any defendant whose motor vehicle was seized at the time of arrest with the opportunity for a prompt, post-seizure hearing to determine the probable validity and justification for the pre-judgment retention of the vehicle, pendente lite.

Published on: January 26, 2014

People v. Allison

by Stephen Bilkis

People v. Allison

Court Discusses the Interpretation of the term “Duly Licensed” Under Sections 220.25(1) and 265.15(3) of the Penal Law

The defendant was arrested and charge for criminal possession of controlled substance in the first degree and criminal possession of a weapon in the third degree. The defendant who was taxi and limousine driver was searched where a loaded 38 caliber revolver and more than four ounces of heroin was recovered on the floor of the car driven by the defendant. The defendant had no permit to carry a gun and at the time of his arrest his chauffeur license was temporary suspended because of traffic ticket. The defendant requested that the indictment be dismissed the against him on the basis that at the time of his arrest he was a “duly licensed” operator of an automobile for hire and was exempt from statutory presumptions under sections 220.25(1) and 265.15(3) of the Penal Law governing possession of controlled substances and weapons found in automobile.

Published on: January 25, 2014

Level III assessment

by Stephen Bilkis

A New York Police Department (NYPD) undercover detective posing as a participant in an Internet chat room was contacted by another chat room participant known by the alias website. The alias website engaged in several exchanges with the detective, stating that he wanted to engage in sexual acts with underage children, that he possessed child pornography both at home and at his workplace, and that he shared such pornography through Web sites. The alias website also electronically transmitted a video image and still image of child pornography to the detective.

The NYPD identified the alias website’s username of and obtained a warrant to search his workplace and residence. While executing the warrant, the detective observed the man using the screen name of the alias website, and he was arrested. A digital video disc (DVD) containing offending images was seized.

In his videotaped statement after arrest, the arrested man admitted his use of the alias website to view pornographic images of underage girls. Approximately two and a half hours into his interview, he also confessed to having sexual relations with five underage girls, but added that he only saw each of such girls once because he did not perform well and was embarrassed.