New York Criminal Lawyer Blog

Published on: November 26, 2013

Board’s Risk Assessment Guidelines

by Stephen Bilkis

This is a proceeding wherein the defendant, RJ, is a convicted sex offender pursuant to Correction Law § 168-a having pled guilty on 6 April 1994, to one count of Attempted Rape in the First Degree, a lesser-included crime of Count I of the Indictment charging Rape in the First Degree under Penal Law § 130.35(3), commonly known as “statutory” rape. All other charges in the Indictment, one count of Sexual Abuse in the First Degree under PL § 130.65(3) and 2 counts of Endangering the Welfare of a Minor, are also based upon the age of the victim. There are no allegations of forcible compulsion per se. Defendant has challenged his proposed “moderate” risk level designation under the Sex Offender Registration Act as not consistent with the facts of his case and his due process rights.

Correction Law Article 6-C, the Sex Offender Registration Act, effective 21 January 1996, modeled after New Jersey’s “Megan’s Law”, was meant to address the need to protect the public from the risk of repeat offenses by perpetrators of sex crimes, deemed inherently susceptible to recidivism as held in People v. Cropper.

The Act requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from incarceration. The sentencing court bears the responsibility to make such determination either initially or, for incarcerated offenders, following receipt of the recommendation of a statutorily-created Board of Examiners of Sex Offenders whose duty it is to evaluate the probability of recidivism on the part of the offender based on certain statutory criteria contained in Correction Law § 168-l(5). The offender is entitled to notice of the risk evaluation proceeding and may request a hearing.

Published on: November 26, 2013

Subdivision (e) of section 1104

by Stephen Bilkis

Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others”. Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “the foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have “interpreted Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others’ ”. The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “the foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

Published on: November 25, 2013

Supreme Court upheld a comparable Kansas civil commitment

by Stephen Bilkis

In July 2010, the Attorney General, filed a petition contending that Respondent is a detained sex offender who has a mental abnormality, as that term is defined in Article 10 of the New York State Mental Hygiene Law (“MHL” or “Article 10”), § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

A Bronx County Criminal attorney said that, in July 1995, Respondent pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, and one count of Escape in the First Degree, each charged out of four separate dockets. Thereafter, Respondent was sentenced on those separate dockets to three indeterminate terms of incarceration in a New York State Correctional Facility from 8 to 16 years, and one indeterminate term of incarceration of 2 to 4 years, with all sentences to run concurrently.

Respondent, who was incarcerated had served almost 15 years of his concurrent sentences and was nearing the end of his term of imprisonment when the Attorney General filed the petition at issue in July 2010.

Published on: November 24, 2013

People opposed a downward departure

by Stephen Bilkis

This is a proceeding wherein the defendant challenges a determination of the Supreme Court, Kings County, designating him a risk level two sex offender pursuant to Correction Law article 6–C, the Sex Offender Registration Act upon the Supreme Court’s denial of his application for a downward departure to risk level one.

The criminal court concludes that the Supreme Court properly denied the defendant’s application and affirms the risk level designation.

In a multiple-count indictment, the defendant was charged with committing various sex crimes against a single complainant between December 2005 and March 2006, when the ages of the defendant and the complainant were 27 and 14, respectively. On 3 November 2006, pursuant to a negotiated disposition, the defendant pleaded guilty to one count of attempted rape in the second degree under Penal Law §§ 110, 130.30[1], sexual intercourse between a defendant 18 or older and a complainant younger than 15]. On 6 December 2006, he was sentenced as a second felony offender to an indeterminate term of imprisonment of 1 1/2 to 3 years.

Published on: November 22, 2013

People v Stone (1974)

by Stephen Bilkis

The case involves a respondent named PH who is the subject of a sex offender civil management petition filed pursuant to article 10 of the Mental Hygiene Law.

On 22 September 2008, a hearing was conducted to determine whether probable cause exists to believe that PH is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06 (k).

The petitioner called one witness, Dr. EF. While the court did not credit certain aspects of her testimony, her testimony in general was still found to be credible. The respondent did not call any witnesses.

Published on: November 22, 2013

Appellate Division reversed

by Stephen Bilkis

A New York DWI Lawyer said that, at 3:57 p.m. on September 20, 2004, defendant a road patrol deputy in the Monroe County Sheriff’s Office, was on routine patrol 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. At the time, 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).

Defendant soon 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” the deputy 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.

A New York Drunk Driving Lawyer said that, defendant did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40–mile–per–hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch. The deputy explained that he was not familiar with the location of the burglary alarm, and “due to the amount of traffic during that time of day, he didn’t want to initiate any emergency equipment without knowing where he was positively going.” He therefore touched the terminal and “looked down for two to three seconds” at the display “to view the names of the cross streets.” When the deputy lifted his gaze, he realized that “traffic had slowed.” Although he immediately applied his brakes, he was unable to stop before rear ending the vehicle in front of him, which was driven by plaintiff. There are three southbound lanes—two through lanes and a left-hand-turn lane—at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road. Plaintiff testified that she was traveling in the left travel lane. She had stopped for a red traffic light, and was just beginning to move forward slowly toward the congested intersection when her car was hit.

Published on: November 20, 2013

Penal Law § 110.00

by Stephen Bilkis

In this criminal case, defendant was arraigned on a felony complaint and charged with assault in the second degree, assault in the third degree, criminal possession of a weapon in the fourth degree, menacing in the third degree, and harassment in the second degree. The case was later adjourned for Grand Jury action.

A Kings County Criminal attorney said that the felony charge of assault in the second degree was dismissed leaving the misdemeanor charges pending. The People served and filed the supporting deposition converting the complaint into an information and declared their readiness for trial. The court adjourned the case.

Thereafter, the case was adjourned for discovery by stipulation (DBS) to April 2000, when DBS was served and filed and the matter was adjourned for hearings and trial.

Published on: November 17, 2013

VCR was hidden in the ceiling

by Stephen Bilkis

It is alleged that on April 12, 2006, the three defendants were part of an undercover enforcement operation which, at the time, was a purported unlicensed massage parlor. After the defendants and other police officers arrested the owner of the establishment and seven of his female employees, those individuals were brought to the 72nd Precinct for processing. All individuals under arrest were to be charged with prostitution-related offenses that ostensibly occurred at the establishment.

While at the 72nd Precinct, the owner spoke with the third defendant Police Officer. The owner informed the Police Officer that he had a video surveillance system in his establishment. The Police Officer was told by the owner that this video system recorded the activity in the establishment at the time of the alleged sex crimes and that these recordings would exculpate him and his co-arrestees.

The individuals arrested for prostitution-related offenses were arraigned upon misdemeanor complaints in a Community Court in Brooklyn. Supporting depositions were filed in connection with their respective misdemeanor complaints. The supporting depositions, allegedly signed by the Lieutenant in an undercover capacity, affirm that the females charged in the complaint engaged an undercover — the Lieutenant — in conversations through which they offered him sex acts in exchange for money. All the criminal individuals arrested refused plea offers at their arraignment.

Published on: November 17, 2013

Due Process Clause

by Stephen Bilkis

In this DWI case, defendant was originally charged with common law driving while intoxicated (DWI), but he waived his right to trial by jury on that charge and was convicted after a bench trial of the offense of driving while his ability to do so was impaired by alcohol (DWAI).

Following the verdict and before sentencing, it was brought to the court’s attention that in the past 10 years the defendant had been convicted twice of DWAI. Since our law provides that a third violation of any subdivision of Vehicle and Traffic Law § 1192 within such a time period may constitute a crime, and because no accusatory instrument charging the defendant with misdemeanor DWAI (third DWAI) had been filed with the court, an issue arose regarding whether the court had the authority to consider sentencing the defendant as a third DWAI offender.

This court finds neither federal nor state constitutional provisions preclude the entry of such a misdemeanor conviction following a trial verdict. In addition, while New York’s commonlaw tradition and its statutory scheme both reflect a historical sensitivity to issues connected with the use of prior convictions in criminal prosecutions, the New York Legislature has chosen to balance due process interests by allowing the issue of recidivist sentencing to be addressed postverdict by the judge in local court cases such as this. Thus, while the court is aware of several decisions which have reached a contrary conclusion, this court holds that when a defendant with two Vehicle and Traffic Law § 1192 convictions within the past 10 years is tried on a DWI charge resulting in an acquittal and a verdict of guilty is returned as to DWAI, it is appropriate to follow the provisions of Criminal Procedure Law § 400.40 in determining whether the DWAI conviction is one for a violation or a misdemeanor.

Published on: November 16, 2013

People v. McNair

by Stephen Bilkis

People v. McNair

Criminal Court Discusses Electronic Monitoring as a Special Condition to a Probation Sentence

On October 27, 1993 at approximately 2:30 in the morning, a police officer pulled the appellant’s car over for speeding and running a red light Poughkeepsie, New York. The appellant was subsequently arrested for driving while intoxicated DWI, and aggravated unlicensed operation of a motor vehicle in the first degree, both felonies. On January 11, 1994, the appellant waived his right to be prosecuted by indictment and pled guilty under Superior Court Information in Dutchess County Court to driving while intoxicated as a felony in satisfaction of the pending charges against him. On February 24, 1994, County Court sentenced the appellant to five years probation which included six months imprisonment. A special condition of the probationary sentence imposed that appellant serve up to one year of electronic monitoring following the completion of his jail term. The trial judge advised the defendant at sentencing that the electronic monitoring could be terminated by the appellant’s probation officer prior to the completion of one year. The court also directed that the appellant attend the Victim Impact Panel at the earliest opportunity following his release from jail, pay a $1,000.00 fine, a $150.00 mandatory surcharge and the $5.00 crime victim’s assistance fee. The appellant took an appeal to challenge the electronic monitoring portion of his probationary sentence as it was unauthorized and illegally imposed. On February 6, 1995, the Appellate Division, Second Department affirmed in a memorandum decision. The Appellant then appealed to the Court of Appeals on the ground that the court was not empowered to highly restrict a defendant’s freedom of movement for substantial periods of time in the absence of any statutory authorization.