New York Criminal Lawyer Blog

Published on: January 18, 2014

Reasonable or probable cause to arrest

by Stephen Bilkis

Charged by information with criminal sale of marijuana in the fourth degree and criminal possession of marijuana in the fifth degree, defendant previously moved to dismiss both counts of the accusatory instrument for facial insufficiency.

A New York Criminal attorney said that in order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant. In effect, defendant contends that the facts alleged in the accusatory instrument do not provide reasonable cause to believe that what was sold here was marijuana.

The misdemeanor complaint alleges that defendant was observed by a police detective handing “a small object” to an identified, separately charged individual, in exchange for which the second individual handed United States currency to defendant. Thereafter, the detective is alleged to have recovered four bags of marijuana from the ground where defendant was seen to throw them, 32 bags of marijuana from defendant’s pants pocket, and, most significantly, two bags of marijuana from the second individual’s jacket pocket.

Published on: January 17, 2014

Grand Jury’s deliberations was impaired

by Stephen Bilkis

A Queens Criminal Lawyer said that, defendant was originally charged by a Queens County Grand Jury with one count of murder in the second degree, two counts of criminal use of a firearm in the second degree and criminal possession of a weapon in the second degree emanating from the shooting of the victim with a handgun on May 19, 1982. On the People’s motion, the criminal use of a firearm counts were dismissed. After two trials on the murder and criminal possession counts, defendant was convicted of the lesser included offense of manslaughter in the first degree. The fact that the victim died at defendant’s hands is beyond dispute. By defendant’s own admission, he shot the victim in the course of an altercation. According to competent medical authority, the victim sustained five gunshot wounds and died as a result of internal hemorrhaging caused by those wounds.

A Queens Criminal Possession of a Weapon Lawyer said that, after advising the defendant of his rights, the police took a statement from him at the precinct on the day of the incident. Defendant at that time informed the police that on the afternoon of the shooting he had received a telephone call from the victim, with whom he had been acquainted for approximately two years, with regard to a burglary of defendant’s apartment which had occurred some two to three weeks previously. Defendant permitted the victim to come to his apartment in order to discuss the burglary. The victim apparently intended to obtain money from defendant in exchange for his information concerning the burglary. To the Officer who had responded to the scene and traced a trail of blood from the pizza shop where the victim was found back to defendant’s apartment, defendant initially stated “I caught the guy” and motioned to a pair of pliers lying at the base of the stairway leading to his apartment.

Defendant later made the following admission: “I knew the guy. We argued, we fought. I shot him” and pointed to a gun which was lying on a couch in his apartment.

Published on: January 13, 2014

The child’s father also has no history

by Stephen Bilkis

A single woman, forty-year-old, currently employed at a large children’s media company as a vice president for event marketing, and earns over $200,000 per year. She has appreciable savings and assets. She also volunteered mentoring young girls.

She decided to pursue a family by way of adoption. She then contacted a social worker, and commenced the home study process. She originally wanted to adopt a child from other country, however she decided to adopt domestically because of the lengthiness of the international process.

Subsequently, the woman placed an adoption advertisement in a newspaper and a mother responded to it. The woman sent the mother an adoption profile and they communicated regularly via telephone and e-mail. The mother found the woman to be warm and chose her to be her child’s adoptive parent.

Published on: January 12, 2014

Penal Law § 155.30]

by Stephen Bilkis

A Queens Grand Larceny Lawyer said that this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered August 23, 1984, convicting him of grand larceny in the third degree and petit larceny, upon a jury verdict, and imposing sentence.

A Queens Criminal Lawyer said that, the defendant was a police officer whose primary duty was to respond to the scene of past burglaries to search for fingerprints left by the intruders. The People alleged that during the course of his duties, on two separate occasions, the defendant entered the residences of the complainants and stole property therein. The defendant contends that the evidence adduced at trial, which was totally circumstantial, was legally insufficient to prove his guilt because it did not exclude to a moral certainty every reasonable hypothesis of his innocence.

A Queens Petit Larceny Lawyer said that, in the first of two incidents on which the indictment is premised, the victim returned home to her apartment to discover the door unlocked and her mother’s jewelry scattered around the bedroom. Although it appeared that some of the jewelry was missing, she did find that several hundred dollars in cash, which her mother kept in an envelope in her dresser drawer, was still intact. The victim waited for her father to return home and then left. He called the police and shortly thereafter the defendant and his partner Officer arrived, ostensibly to locate fingerprints. Although the defendant and the Officer testified that neither of them was ever alone in the bedroom, he testified that the criminal defendant was in the bedroom by himself for about 15 minutes while he and the Officer filled out a complaint report. The defendant thereafter informed him that he could not locate any prints and the officers left. The mother arrived home at about 6 p.m. and discovered that the cash in the dresser was gone.

Published on: January 11, 2014

Attempted Sexual Abuse

by Stephen Bilkis

This is a proceeding wherein the defendant, MW, moves, pursuant to CPL § 410.90(1), for an order granting early termination of his ten-year sentence of probation, on the ground that he is rehabilitated.

On 10 May 2012, the court held a hearing wherein Rabbi EZ testified on defendant’s behalf, as did defendant. The court finds Rabbi EZ to be a credible witness but rejects his conclusion that defendant’s practice of Orthodox Judaism nearly eliminates the risk that defendant will commit future sexual assault and obviates the need for ongoing monitoring of defendant by the Department of Probation.

The court is faced with the task of determining whether defendant is rehabilitated and whether continued supervision is warranted. In order to make that assessment, the defendant’s current “conduct and condition” (CPL § 410.90[3][a] ) as compared to his status in 2004 shall be considered. Accordingly, I have examined the information available to the sentencing court eight years ago (gleaned from transcripts and other court records), along with the evidence presented at the hearing of this motion. Following are my findings of fact and conclusions of law.

Published on: January 11, 2014

Commentary to the RAI

by Stephen Bilkis

The Court conducted a SORA risk assessment hearing in this criminal case. Defendant was convicted by plea of guilty in July of 2009 of one count of possession of child pornography under federal law for which he received a sentence of two years imprisonment and five years of supervised release. Defendant was apprehended in a “sting” operation in which he responded to a solicitation to buy child pornographic videos by postal inspectors. He was subsequently arrested and a search of his home computer uncovered 300–600 images primarily of pre-pubescent girls clothed, naked or being sexual abuse. He was released from prison to federal supervised release in December of 2011.

A New York Child pornography attorney said that defendant is 33 years old and has had no other contacts with the criminal justice system. He has suffered from severe problems with depression and social anxiety arising from prior physical abuse by his father. Psychiatric evaluations indicated that he posed little risk of committing a contact sex offense. His prospects for committing another child molestation crime, however, were less certain. Defendant’s counsel argued that the Defendant did not view the child pornographic images on his computer for sexual pleasure but rather because he identified with the pain and abuse the children in the videos had suffered. In the Court’s view, however, the evidence indicated that the Defendant also may well have been motivated at least in part by sexual desire.

The evidence indicated that although defendant could not be diagnosed with pedophilia, such a diagnosis could also not be ruled out. Defendant has expressed remorse for his crime. He currently lives and cares for his ailing mother in public housing but would apparently have to move out of his mother’s apartment if he were designated as anything other than a level 1 offender. He has been complying with the requirements of his supervision.

Published on: January 9, 2014

Murder in the First Degree

by Stephen Bilkis

In this Criminal case, the Defense Counsel moved for the dismissal of the Indictment upon the grounds of: Multiplicity, Duplicity, Double Counting; Vagueness and Resulting Insufficiency, and Sufficiency.

A Queens County Criminal attorney said that the Assistant District Attorney opposed such motion and this Court then calendared oral argument. On the same hearing, Defense Counsel served upon the Court a request to adjourn oral argument in order to afford Counsel an opportunity to submit a written reply to the District Attorney’s Memorandum of Law. The Court denied in part and granted in part such request and thereafter, entertained oral argument on the issues hereunder. The Court was in receipt of Defense Counsel’s supplemental reply affirmation in support of the motion to dismiss the indictment.

Defense Counsel alleges that when death is a possible outcome of a criminal prosecution, state and federal law demand a heightened standard of due process at every phase of a capital case, from indictment to appeal. Specifically, Defense alleges that the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment, requires a more stringent standard of due process in capital cases. Defense further contends that the New York State Constitution expands that requirement and includes several provisions which specifically augment protection for a capital-eligible defendant.

Published on: January 8, 2014

Manhattan Psychiatric

by Stephen Bilkis

This is a proceeding wherein the State of New York moves to establish probable cause to believe that K.A. is a “sex offender requiring civil management” pursuant to Mental Hygiene Law (“MHL”) Article 10, §10.06(k). K.A. opposes the motion.

Mental Hygiene Law Article 10 provides that after a case review team, consisting of at least two mental-health professionals, finds that an individual is “a sex offender requiring civil management,” the Attorney General may file a sex offender civil management petition in Supreme Court. The petition must “contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil management.

After a burglary petition is filed, the act directs that Supreme Court “shall conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.”

Published on: January 7, 2014

The judge did not mention any particular potential conditions of probation

by Stephen Bilkis

A New York Sex Crimes Lawyer said that, by indictment filed on February 6, 2007, first defendant was charged with rape in the second degree, endangering the welfare of a child, and unlawfully dealing with a child in the first degree (two counts) for providing alcohol to underage children and having sex with a 14-year-old boy. First defendant was a 34-year-old mother of six in September 2006, when the events underlying the indictment took place. After unsuccessfully moving to suppress a statement in which she made an admission, defendant pleaded guilty on August 16, 2007 to one count of third-degree rape in exchange for a sentence of 1½ to 3 years in prison. During the plea colloquy, defendant told County Court that she was satisfied with her attorney. The judge did not inform her that she would have to register as a sex offender under the Sex Offender Registration Act (SORA) as a consequence of her conviction.

A New York Criminal Lawyer said that, the County Court denied her application. He advised her, however, that she could later move for post conviction relief, for which he would assign her new counsel. Next, the judge sentenced her as promised. The clerk then brought up the sex offender registration fee of $50 and the supplemental sex offender fee of $1,000, which the judge imposed; and the prosecutor asked the judge to certify her as a sex crime offender, which he did. On appeal to the Appellate Division, defendant argued that County Court should have conducted an inquiry after she moved to withdraw her guilty plea on conflict-of-interest grounds; and that her guilty plea was involuntary because the judge did not tell her that she would have to register as a sex offender.

A New York Criminal Lawyer said that, by indictment filed on October 5, 2006, second defendant who was then 39 years old, was charged with one count of course of sexual conduct against a child in the first degree and one count of first-degree rape , based on allegations that he sexually abused a young girl from the age of seven until she reported the abuse at the age of 10. On April 10, 2007, second defendant pleaded guilty to one count of course of sexual conduct against a child in the second degree in exchange for a split sentence of six months in jail and 10 years of probation. At the time, he resided with his girlfriend and several children (although not the alleged victim) younger than 18 years old. The judge did not mention any particular potential conditions of probation during the plea colloquy.

Published on: January 7, 2014

New York State Division of Probation

by Stephen Bilkis

Defendant, in February of 1995, in the Supreme Court, Suffolk County, entered pleas of guilty to sodomy in the second degree and sexual abuse in the first degree. The initial charges arose when defendant, during the summer of 1992, lured two young boys into his home for the purpose of engaging in sexual relations. The defendant took photographs of the victims.

A New York Criminal lawyer said that in January 1996, while defendant remained on probation, the Sex Offender Registration Act (hereafter referred to as SORA), became effective. The act requires convicted sex offenders, including those on probation at the time of its enactment, to register with the Department of Criminal Justice Services. Sodomy in the second is designated a “sex offense” while sexual abuse in the first degree is designated a “sexually violent offense”. A “sexually violent predator” is defined as any person convicted of a “sexually violent offense” or a sex crimes offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct.

The law establishes three levels of community notification. A level one designation is the lowest level and provides for information to be given only to the enforcement agencies having jurisdiction over the individual. A level two, or moderate, designation provides notification similar to level one along with authorization to said agencies to disseminate relevant information including approximate address based on zip code, a photograph, background of the crime, type of victim and any special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Level three, the high risk category, provides for the dissemination of the same information as for level two offenders, as well as the dissemination of the offender’s exact address. In addition, the information is required to be recorded in a subdirectory which, upon request, will be made available to the public.