New York Criminal Lawyer Blog

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.

Published on: November 16, 2013

New York continues to rely on the Frye test

by Stephen Bilkis

Defendant was indicted for two counts of first degree rape, two counts of endangering the welfare of a child, and one count of unlawfully dealing with a child pornography, and defendant moved to suppress a statement he made to Sheriff’s Department Investigator and a letter he wrote to the victim. A hearing was held thereafter.

A Nassau County Criminal attorney said that in June 2006, an Investigator was contacted at home and asked to go to a General Hospital to begin a rape investigation. After speaking with the victim, he went to defendant’s residence and asked if he would talk with the detective about the incident. Because there were other people present in defendant’s home, the investigator and defendant went to a restaurant in Olean. Defendant rode in the front of the car, uncuffed and unshackled. At the restaurant, they spoke about the incident and investigator took down the information on his laptop. Before they left, Investigator told defendant not to have any contact with the victim but if defendant wanted to write the victim, the Investigator would insure that she received whatever defendant wrote. Defendant then wrote a note to the victim and gave it to the Investigator.

After the hearing, the court denied the motion to suppress the statements and scheduled a trial. Defendant has since served notice that he intends to call as a witness who will testify that defendant’s statement is false “in whole or part,” and that the investigator’s techniques and methods were “defective” and “likely to produce inaccurate statements.” Significantly, there was very little cross-examination at the hearing about any techniques or methods employed by Investigator. The District Attorney has now moved to preclude the witness’ testimony on the grounds that it has not gained general acceptance in the scientific community, is irrelevant, and would usurp the jury’s fact finding function.

Published on: November 15, 2013

At R–194 there appears the testimony of witness

by Stephen Bilkis

In this Criminal case, the Court is unanimous in its determination that the doctrine of res ipsa loquitur is applicable to this case and, therefore, the court discussed only the arguments advanced in the dissent.

A New York Criminal lawyer said that the dissent contends that the Trial Court erred in refusing to admit into evidence a certain paper, claimed to be a report of the accident, written out by the witness after a conversation with a fellow-employee. The latter was not produced by the defendant at the trial and his address is claimed to be unknown to the defendant. It is conceded witness did not see the accident.

It is clear from the record of this trial that the paper does not qualify as a record made and kept in the regular course of business, as contemplated by CPLR § 4518(a). After having asked the witness the question as to whether this paper was kept in the regular course of business, to which there was no answer, trial counsel for the defendant made no further effort in this regard and, as a result, there was a complete failure to establish the necessary foundation, as required by the section. Its exclusion was proper. There was no arson involved and also no assault in the case.

Published on: November 15, 2013

Post-Offense Behavior

by Stephen Bilkis

Bronx Sex Crimes Lawyer said that, following a jury trial in which he was found guilty of six counts of sodomy in the first degree , one count of attempted sodomy in the first degree , two counts of sodomy in the second degree , and one count of sex abuse in the first degree , pursuant to the Sexual Offender Registration Act (hereinafter SORA), the Board of Examiners of Sex Offenders recommends designating defendant as a risk level three sexually violent offender upon his release from custody. Although conceding that his total risk factor score is correct, defendant argues at a risk assessment hearing that the totality of the circumstances warrants a departure to a risk level two.

A Bronx Sex Crime Lawyer said that, on October 23, 2003, the Board submitted a risk assessment instrument. It recommends designating defendant as a sexually violent offender based on his convictions for sodomy in the first degree, attempted robbery in the first degree, and sex abuse in the first degree. It also recommends classifying defendant as a risk level three based on an assessed score of 165. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 30 points for three or more victims; 20 points for engaging in a continuing course of sexual misconduct; 20 points for the age of the victims being between 11 and 16; 10 points for defendant being 20 years of age or less at the time of his first act of sexual misconduct; 30 points for a criminal history consisting of a prior violent felony, misdemeanor sex crime or endangering the welfare of a child; 10 points for the prior felony or sex crime occurring less than three years before the current incidents; and 10 points for unsatisfactory conduct while confined or supervised.

The Board then compiled a case summary “based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior”. This summary stated, in pertinent part, that: “In 1986, defendant was adjudicated a Youthful Offender for Criminal Possession of a Loaded Firearm, a sawed off rifle, and Theft of Services. As a result, he was placed on five years probation. While on probation for that offense, he was arrested for the instant sex offense for which he was convicted after trial. Regarding the sex offenses, [defendant], who was nineteen years old at the time, sodomized and sexually abused five young, runaway, boys who were between the ages of eleven and fifteen.

Published on: November 14, 2013

People v Leone

by Stephen Bilkis

This is a proceeding wherein the defendant appeals from a judgment of the County Court, Nassau County, rendered 1 February 1971, which convicted him, upon a jury verdict, of the crime of rape and sexual abuse, both in the first degree, and imposed appropriate sentences.

The court reverses the judgment, on the law, and remands the case to the Nassau County Court for a new trial not inconsistent with this memorandum.

At the trial, the County Court permitted RC to testify that he was a probation officer over defense counsel’s vigorous objection and demand for a mistrial. Thereafter, RC stated that defendant came to his office and told him that he was wanted by the police for his alleged commission of an act of rape upon the complainant and that he had, in fact, engaged in consensual sexual intercourse with the complainant. There was no domestic violence.