New York Criminal Lawyer Blog

Published on: January 7, 2014

Brighton Henrietta Town Line Road

by Stephen Bilkis

This is a proceeding wherein on appeal, the court holds that the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

On 20 September 2004 at 3:57 p.m., the defendant, JD, a road patrol deputy in the Monroe County Sheriff’s Office, was on routine patrol for DWI in a marked police vehicle when he received a radio dispatch from the Office of Emergency Communications dispatch or “911 center” directing him to respond to a stolen vehicle report at an address in Henrietta, New York. When he received the call, he was heading south on West Henrietta Road, nearing a traffic light at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, which marks the border between the Towns of Brighton (on the north side) and Henrietta (on the south side). No Drunk Driving.

Thereafter, JD received a second radio dispatch which requested backup for another officer who was responding to a burglary alarm at a location in Henrietta. Because the 911 center categorized the burglary alarm as “classification one”, meaning, “a serious call that needs immediate attention”, JD acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report which was assigned a higher classification and therefore a lower priority. At 4:02 p.m., the dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy’s vehicle. DUI was not an issue.

Published on: January 6, 2014

Confrontation Clause

by Stephen Bilkis

This proceeding is an appeal from a judgment of the Yates County Court rendered 8 December 2009. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired and driving while intoxicated.

The court affirms the judgment appealed from.

On appeal from a judgment convicting him following a jury trial of, inter alia, felony driving while intoxicated DWI Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [ii], defendant contends that County Court erred in admitting in evidence breath test calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. According to defendant, the admission of those records in evidence violated his rights under the Confrontation Clause of the Fifth Amendment to the United States Constitution under Crawford v Washington.

Published on: January 6, 2014

A felony murder is committed

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 March 5, 1984, convicting him of murder in the second degree, and robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to law enforcement authorities.

A Queens Criminal Lawyer said that, on January 28, 1983, the defendant, his brother traveled from their neighborhood in Brooklyn to Liberty Avenue in Queens looking for a store to rob. The defendant was armed with a can of mace and one of his companions was carrying a gun. After checking out several stores, the defendant and his accomplices decided to rob a Clothing Store because the proprietor was an elderly gentleman who they believed would be “easy to take off”.

A Queens Criminal Felony Lawyer said that, after the trio entered the store, the defendant immediately assaulted the victim by spraying him in the face with mace. One of his accomplices then pulled out the gun and announced a stickup. The victim came out from behind a counter and a struggle ensued; defendant’s brother grabbed the man and started choking him. The defendant proceeded to the cash register and emptied its contents while his accomplices continued the fatal struggle with the victim. As he was taking the money out of the cash register, the defendant saw his brother hit the victim in the head with a hammer. The victim’s death was due to asphyxiation by strangulation, and multiple wounds to the head and face inflicted during the course of the robbery. In a videotaped statement the defendant admitted knowing that one of his criminal accomplices was armed with a gun prior to entering the store, and he acknowledged spraying the victim in the face with mace. He also admitted removing money from the cash register as his accomplices continued the fatal assault.

Published on: January 4, 2014

The FBI furnished two important leads

by Stephen Bilkis

A Queens Criminal Lawyer said that, while the delay has been extensive, the other factors favor the prosecution. Two bar owners were shot point blank after defendant’s cohort allegedly became enraged over a spilled drink, resulting in second degree murder charges. There was virtually no pretrial incarceration. The defense has not been impaired; to the contrary, defendant has enjoyed significant freedom with no public suspicion attendant upon an untried accusation of crime, and the record does not demonstrate undue prejudice to the defense. Far from giving the People an unfair tactical advantage, the delay here has made the case against defendant more difficult to prove beyond a reasonable doubt. In any event, a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant.

A Queens Criminal Lawyer said that, the Homicide Bureau of the Queens County District Attorney’s Office applied in a written memorandum dated March 25, 1982, for authority to present “the case for Grand Jury consideration of two counts of murder in the second degree. As the foregoing discussion demonstrates, the evidence against defendant at that time was indistinguishable from that against him and only differed from the proof inculpating him in the respect that he was the only one of the three suspects arrested and, following the arrest, put in a lineup and identified as a participant in the shootings by the victim.

The issue in this case is whether the constitutional rights of the defendant have been impaired due to denial of speedy trial.

Published on: January 3, 2014

The aforesaid search was in the first of the two indictments

by Stephen Bilkis

After trial by jury, a man was convicted on a consolidated indictment of promoting prostitution in the first degree, endangering the welfare of a child, sodomy in the second degree and eleven counts of sodomy in the third degree.

He filed an appeal and claims that it was an abuse of discretion for the trial court to have denied his motion, that his due process rights were violated and that the interfering orders secured by the police were invalid because they exceeded the bounds set by the governing federal wiretapping law.

The man was accused of engaging repeatedly in a course of homosexual sodomitic acts on various occasions over a seventeen month period with eight different high school boys each of whom was under the age of seventeen. Despite the fact that it developed at trial that each of the youths had received money from the offender, it was never claimed that force of any kind was employed to obtain their participation. Sources revealed that the accusation embraced a total number of 64 criminal counts.

Published on: January 1, 2014

Penal Law § 265.15(3)

by Stephen Bilkis

A Queens Criminal Lawyer said that, the testimony before the Grand Jury indicated that on February 4, 1986, at about 9:15 P.M. at the Highland Park parking lot in Queens, Police Officer observed a parked 1975 vehicle. The defendant was in the driver’s seat, and the other defendant was in the front passenger seat. The officer approached the vehicle and asked the occupants to exit the vehicle and to produce identification. After the occupants had exited the vehicle, the officer observed a .38 caliber gun, on the floor, partially under the driver’s seat. The gun was seized and the occupants of the car were arrested. Before sending the gun to the police laboratory, the officer noted that it was loaded. The certified ballistics report, submitted as Exhibit 1, indicated that the gun’s serial number had been defaced and that the gun and ammunition were operable.

A Queens Criminal Lawyer said that, the owner of the vehicle, after waiving immunity, testified that the defendant had her permission to drive the car. The owner had reported the car stolen because after defendant had taken the car, she had been unable to locate him, and she became concerned about his welfare. The owner further testified that her late husband, who had died on March 21, 1985, had owned the gun, and that the gun had been in the car, on the floor under the driver’s seat, for approximately one year because she had forgotten about it. Jenkins stated that she had neither shown the gun to defendant nor had she told him about the gun.

A Queens Criminal Possession of a Weapon Lawyer said that, the prosecutor first told the Grand Jurors that they were to consider the same charges against the owner of the vehicle as those to be considered against the defendants. The Grand Jury was then instructed by the prosecutor concerning the applicable law by the recitation of the statutory language of the following provisions of the Penal Law: acting in concert; those subdivisions of the crime of criminal possession of a weapon in the third degree concerning possession of a defaced weapon and possession of a loaded weapon outside a person’s home or place of business; and the presumption of possession of a weapon in an automobile. The prosecutor did not otherwise instruct the Grand Jury concerning the presumption.

Published on: December 30, 2013

Confrontation is one means of assuring accurate forensic analysis

by Stephen Bilkis

Defendant, charged with driving while intoxicated (DWI) and aggravated driving while intoxicated (Aggravated DWI) per Vehicle & Traffic Law § 1192-2 and 1192-2(2)(a), moved pretrial to preclude on Confrontation Clause grounds intoxication evidence from the Datamaster intoxilyzer showing her blood alcohol level to be .23.

A New York Criminal attorney said that she objects to the People’s attempt to establish the Datamaster’s reliability by using written certifications in lieu of live testimony. The first document in question is a “CERTIFICATE OF PHOTOSTATIC COPY OF RECORD OF ANALYSIS — SIMULATOR SOLUTION signed by an Inspector of the State Police Crime Laboratories, Forensic Investigation Center, attaching a “CERTIFICATION OF ANALYSIS 0.10% BREATH ALCOHOL SIMULATOR SOLUTION” and purporting to establish that the simulator solution document is an exact photocopy of one made in the regular course of business of the Crime Laboratory and that it is the Crime Laboratory’s regular course of business to make such records at the time the events recorded in them occur or “within a reasonable time thereafter.”

The simulator solution certificate provides that, “[s]imulator solution lot number 08370 has been certified to contain the appropriate concentration of ethyl alcohol and is hereby approved for use” and is signed by the operatives of the New York State Police Forensic Investigation Center.

Published on: December 28, 2013

DOCS

by Stephen Bilkis

This is a proceeding involving Article 10 of the Mental Hygiene Law, enacted in 2007, which provides that certain imprisoned sex crimes offenders may be transferred to mental hospitals, rather than being released, when their prison terms expire. The statute raises important questions concerning the procedural and substantive rights of the prisoners to whom it applies, but those questions are not before us in this case. The court is faced with the issue of whether the statute applies to a particular class of prisoners: those who were incarcerated for violating the conditions of a term of postrelease supervision (PRS) that was improperly added to their sentences by the Department of Correctional Services (DOCS) without court authorization. The court holds that these prisoners are within the coverage of the statute even if the procedure that led to their imprisonment was flawed.

Both of these cases involve men convicted of serious sex crimes – assaults of vulnerable strangers on the street. JJ assaulted a child while HH assaulted a developmentally disabled adult. Both were sentenced to imprisonment. Both were required by statute to be sentenced also to a term of PRS. However, as happened in a number of cases before our decisions in Matter of Garner v. New York State Dept. of Correctional Servs., and People v. Sparber, the sentencing court failed to impose the PRS term. DOCS nevertheless included PRS in its record of each man’s sentence-a practice the court decided in Garner was unlawful.

JJ completed his prison sentence in August 2006, and HH completed his in January 2007. Both men began their improperly-imposed PRS terms-not in the community, but in a psychiatric hospital. Mental Hygiene Law article 10 had not then been enacted, but JJ was involuntarily committed to a hospital under article 9 of the Mental Hygiene Law and HH committed himself voluntarily, also under article 9 of the Mental Hygiene Law § 9.13). Both, while in the hospital, violated the terms of their PRS-JJ by an escape attempt and HH by an assault to a fellow patient-and both were returned to prison.

Published on: December 27, 2013

New York State Route 104

by Stephen Bilkis

A New York Drunk Driving Lawyer said that, the defendant was charged with common-law (DWI) driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) on September 14, 2002 at 12:48 A.M. The defendant was arrested after entering a sobriety checkpoint operated by the Webster Police Department on the eastbound section of New York State Route 104 just prior to the Dewitt Road overpass. A Scott hearing was conducted on June 18, 2003 to determine if the sobriety checkpoint was properly conducted. More particularly the defense argues that the location of the sobriety checkpoint was not properly selected.

A New York DWI Lawyer said that, in his memorandum of law defense counsel states that “Sergeant SMALL testified that although WEBSTER POLICE Chief authorized the checkpoint, there was no discussion between himself and the chief as to exactly where the checkpoint would be placed. That was left to the unfettered discretion of Sergeant SMALL as supervisor of the checkpoint detail. “Sergeant SMALL allegedly selected the location according to the Directive, based upon the history of past violations, as well as safety considerations.”

The issues in this case are whether the location of a sobriety checkpoint be based on empirical evidence of prior driving while intoxicated arrests and whether the location of a sobriety checkpoint be specifically authorized by the chief of police.

Published on: December 26, 2013

Correction Law § 168-d(3)

by Stephen Bilkis

This is a proceeding wherein the defendant was charged under Indictment number 98027 with two counts of Sexual Abuse in the First Degree under PL § 130.65, a D violent felony, and Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor.

The defendant pled guilty on 23 January 1998, pursuant to a plea bargain agreement under count one to the lesser charge of Sexual Abuse in the Second Degree under PL § 130.60, an A misdemeanor, and under count three to Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor, in satisfaction of the indictment.

The Court notified the defendant on 11 May 1998, prior to sentence, that based upon his conviction for Sexual Abuse in the Second Degree and in accordance with the public notification and disclosure provisions of the New York State Sex Offender Registration Act. The Court intended at the time of sentence to certify the defendant as a sex offender as required by Correction Law § 168-d and to assign a risk assessment level of 3 to the defendant using override provision (iv) of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-1(5).