New York Criminal Lawyer Blog

Published on: October 7, 2013

Family Court dismissed the petition

by Stephen Bilkis

The defendant’s written a Criminal Procedure Law (CPL) application to set aside one count of the jury trial verdict which convicted him of criminal mischief was granted by the County Court, over the written and oral opposition, on the record in open court. The written decision expounds in greater detail upon the County Court’s determination of the defendant’s motion, which appears to raise an issue of first impression.

The novel issue in this case is whether the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief. The statute requires that the defendant intentionally disable or remove the telephonic equipment while the complaining witness was attempting to call 911, in an effort to seek emergency assistance from the police during an alleged domestic violence assault upon her. The trial evidence did not satisfy this statute.

The Prosecutor’s Information in this case accused the defendant of assaulting his former girlfriend in the presence of their three children. The trial testimony established that during the assault the victim attempted to call 911 for police assistance (using a land-line telephone) and she made a very brief initial contact, but was then immediately thwarted by the defendant, who bound the victim’s wrists with the telephone cord and then slammed the telephone on the victim’s hands/fingers as she tried again to dial 911. At some point, however, during the incident the abused victim was able to complete a 911 call using the same telephone.

Published on: October 6, 2013

Philadelphia County Grand Jury

by Stephen Bilkis

In this Criminal case, a jury has found the defendant guilty of assault, second degree, with intent to rape. He is now before me for sentence and in connection therewith the District Attorney has filed a prior offense information which alleges that the defendant is now a second felony offender by reason of the fact that he was previously convicted, after trial, in the Commonwealth of Pennsylvania, of three crimes, viz., (1) aggravated assault and battery, (2) assault with intent to ravish and (3) rape.

A Queens County Criminal lawyer said that the defendant denies his status as a second felony offender. Defendant’s identity as the Pennsylvania convict is conceded but he contends that the prior acceptance by the same court of a plea of guilty to the crime of fornication makes it legally impossible for the crimes alleged in the information now before this court to be considered felonies if committed in New York and that therefore he is not legally a second felony offender. The fact that he was convicted, by the same court, upon his plea of guilt of the crime of fornication based upon a single incident, involving the same woman is claimed to obliterate the effect of the convictions of the rape, and the assault with intent to commit it, as felonies, it being contended that the crimes of fornication vis-a-vis the crimes of rape and assault with intent to commit rape are mutually exclusive.

The essence of the argument is that under Pennsylvania Law, adultery or fornication is consensual sexual intercourse, so that the yielding of consent was necessarily adjudicated by the Court when it accepted defendant’s guilty plea on the fornication charge and entered a judgment thereon. However, neither actual nor implicit ‘consent’ appears within the framework of the operative facts of record, and the defendant is limited to those facts.

Published on: October 4, 2013

Total Risk Factor Score

by Stephen Bilkis

The criminal defendant is adjudicated to be a Level Three Sex Offender after a Sex Offender Registration Act hearing held on 5 August 2008.

The defendant was charged under this indictment with Rape in the First Degree stemming from an incident that occurred on 18 February 1976. He was convicted and sentenced to an indeterminate period of incarceration of from 8½ to 25 years. In 1996, the defendant was classified as a level three sex offender. Thereafter, as a result of the Stipulation of Settlement in Doe v Pataki, he was afforded a new hearing on his sex offender status, utilizing a new risk assessment instrument.

In December 2004, a SORA hearing was conducted before this Court, which designated the defendant a level three sex offender. The defendant appealed from this adjudication and on 13 November 2007, the Second Department reversed it and remitted the matter for a new hearing and determination based on the untimely notice of the new risk assessment instrument, which the defendant did not receive until the day of the hearing.

Published on: October 4, 2013

CPL 530.12(5)

by Stephen Bilkis

A Kings Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered April 22, 2009, in Kings County, convicting him of burglary in the second degree, criminal contempt in the first degree, and criminal contempt in the second degree, upon his plea of guilty, and imposing sentence. Upon the appeal from the judgment, the duration of a final order of protection issued at the time of sentencing will be reviewed as a matter of discretion in the interest of justice.

A Kings Domestic Violence Lawyer said that, in July 2006 the Legislature amended Criminal Procedure Law § 530.12(5) to increase the maximum duration of a final order of protection issued in favor of the victim of a felony family offense from five years to eight years. The clear purpose of the amendment was to enhance the protection available to victims of domestic violence. On this appeal, the court is asked to determine whether the duration of the final order of protection issued in favor of the victim should be reduced from eight years to five years because the subject offenses were committed before the amendment of CPL 530.12(5) became effective.

A New York Order of Protection Lawyer said that, between July 5, 2004, and December 23, 2004, the defendant assaulted his former girlfriend on several occasions, broke into her apartment, and repeatedly harassed and stalked her in violation of temporary orders of protection. For these acts, the defendant was charged in two separate indictments with multiple crimes, including burglary in the second degree, attempted assault in the third degree, criminal contempt in the first degree, criminal contempt in the second degree, aggravated harassment in the second degree, stalking in the fourth degree, and menacing in the second degree. The two indictments were consolidated on October 24, 2005. Shortly thereafter, on November 16, 2005, the defendant agreed to plead guilty to burglary in the second degree, criminal contempt in the first degree, and criminal contempt in the second degree, in full satisfaction of the consolidated indictment.

Published on: October 4, 2013

The defendant was charged with attempted murder

by Stephen Bilkis

The defendant moves for an order vacating the judgment of conviction on the ground that he was denied effective assistance of counsel in that his attorney failed to advise him of the risk of deportation when he pled guilty. The Probation Department opposes the motion. For the reasons stated below, the motion is denied.

The defendant was charged with attempted murder in the second degree, attempted assault in the second degree and assault in the second degree, for acts committed against his wife. After extensive negotiations and after a pre-trial suppression hearing, the defendant pled guilty, before another judge of the County court, to one count of robbery in the second degree, in full satisfaction of all the charges contained in the indictment. The agreed upon sentence was a term of imprisonment of six (6) months, followed by a period of five (5) years probation, with intensive supervision as a domestic violence offender. An order of protection was issued for a period of five (5) years. On April 4, 2005, the negotiated sentence was imposed.

The defendant remained under intensive probation supervision and the court received updates, until a domestic violence incident occurred on November 3, 2005. A violation of probation was filed and a warrant was issued. The defendant was arrested and indicted for assault in the second degree and criminal contempt in the first and second degree (for violating the order of protection issued on April 4, 2005). After a jury trial, the defendant was convicted of criminal contempt in the first degree. Thereafter, the court imposed a sentence of a term of imprisonment of 2-4 years. Further, on the violation of probation, the court imposed a term of imprisonment of two (2) years to run consecutive to the other sentence, and a 2 year period of post release supervision.

Published on: October 3, 2013

VTL § 1194(2)(f)

by Stephen Bilkis

A defendant is arrested for driving while intoxicated. He is not given Miranda warnings. He is given inadequate “refusal” warnings in connection with a request by the police that defendant consent to submit to a chemical “breathalyzer test” for the presence of alcohol in his system. Defendant answers (while videotaped) the inadequate refusal warnings by making several non-responsive but incriminatory remarks in what appears to be a mildly drunken fashion. All concerned agree that evidence of the defendant’s refusal to take the chemical test is barred at trial by Vehicle and Traffic Law (“VTL”) Section 1194(2)(f) because of the inadequate refusal warnings.

A Queens County DWI lawyer said that the open question presented is this: Can the People nevertheless properly present select portions of the videotape at trial in order to prove defendant’s DUI intoxication, provided that the videotape is redacted so as to eliminate those passages that indicate that defendant was asked and refused to submit to the chemical test? Or would the presentation of the redacted videotape at trial violate either 1) the statutory bar against evidence of refusal established by VTL § 1194(2)(f), or 2) defendant’s right against self-incrimination?

It is now well-settled that where a defendant has been properly arrested based on probable cause for the crime of driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the defendant’s system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendant’s right against self-incrimination.

Published on: October 2, 2013

It is also anticipated that the defendant will interpose an alibi defense.

by Stephen Bilkis

A Nassau Rape Lawyer said that, the defendant is accused of the crimes of rape in the first degree and sexual abuse in the first degree. He was acquitted in the first trial of this matter of the crimes of robbery in the first degree, petit larceny, and criminal use of a firearm in the first degree. The jury was unable to reach a verdict with respect to the rape and sexual abuse counts and the case is before this Court for retrial. The prosecution case rests primarily upon the testimony of the complainant, including her identification of the defendant as her attacker. It is anticipated that there will be some extrinsic evidence of defendant’s culpability, none of which will conclusively establish the defendant’s commission of the crime. It is also anticipated that the defendant will interpose an alibi defense.

A Nassau Sex Crimes Lawyer said that, the defense offer of proof indicates that a psychologist specializing in the field of memory and perception, will testify, if permitted, to the factors which studies have shown are relevant to the reliability of an eyewitness identification. These factors include: (1) the delay between the event and the identification; (2) stress; (3) the violence of the situation; (4) assimilation of post-event information; (5) the cross-racial aspect of the identification; (6) the selectivity of perception; (7) the “filling in” phenomenon; (8) expectancy; (9) the effect of repeated viewings; (10) the lack of a correlation between confidence and reliability; (11) the motivation of the victim to make a correct identification; (12) the motivation of the police to make an arrest; (13) the introduction of suggestiveness through photo arrays; (14) the availability of a “zero option;” and (15) the effect of what a witness is told after the identification is made.

A Nassau Rape Lawyer said that, he is also prepared to testify that laymen place an undue emphasis on identification testimony in general and that cross-examination is not effective to discredit a mistaken identification because the witness truly believes that his testimony is accurate, even if it is not. According to the defense memorandum of law, the expert witness will specifically not venture any opinion as to the validity of eyewitness identification testimony in general or as to the reliability of the identification testimony in the case at bar.

Published on: October 2, 2013

CPC directed the DCP in November of 1994

by Stephen Bilkis

A Queens Sex Crimes Lawyer said that, the “adult” establishments at the center of this controversy offer various forms of sexual expression. These businesses include bookstores, theaters, stores dealing in videotaped material and places of live entertainment. In 1965, there were only nine such establishments in New York City. That figure has fluctuated over the past 30 years, but the last decade has experienced a steady growth in the industry, with sections of Manhattan and Queens showing the greatest development. By 1993, there were 177 adult establishments operating in New York City: 107 in Manhattan, 44 in Queens, 15 in Brooklyn, eight in the Bronx and three in Staten Island.

A Queens Criminal Lawyer said that, on February 27, 1996, the Amsterdam Video plaintiffs, consisting of more than 100 owners and operators of adult establishments in the City, and the plaintiffs, consisting of four patrons of such establishments, commenced actions in Supreme Court, New York County, against the City and related officials. Plaintiffs alleged that the Amended Zoning Resolution deprived them of their right to free expression protected by article I, § 8 of the New York State Constitution and the First Amendment to the United States Constitution. Plaintiffs sought relief in the form of a judgment declaring the zoning amendments unconstitutional and enjoining their enforcement.

Defendants removed the case to the United States District Court for the Southern District of New York, but on plaintiffs’ application the court remanded plaintiffs’ causes of action grounded in the State Constitution, retaining jurisdiction over the Federal claims. Subsequently, a cabaret featuring topless dancers separately challenged the constitutionality of the amendments and sought injunctive relief. Supreme Court then granted the intervention motions of TSBID, the Center for Community Interest, and 45 other community groups, business organizations and local elected officials and consolidated the actions for hearing.

Published on: October 1, 2013

Grand Jury which returned said indictment was unconstitutionally selected

by Stephen Bilkis

In this Criminal action, defendants filed a motion for ‘an order directing the dismissal of the indictment herein upon the ground that the Grand Jury which returned said indictment was unconstitutionally selected and therefore did not acquire jurisdiction to charge the defendants. Before dealing with the merits it is necessary to point out some procedural defects in the making of the motion.

A Queens Criminal attorney said that the legend indictment is endorsed on the back of the motion papers and on the face of the notice of motion. That indictment, however, does not list the persons above-named as defendants. It names only 2 defendants and charges them with one crime, to wit: conspiracy to commit murder. However, the caption on the motion papers here names as defendants, in addition to the two, the five other persons above-named. The title on these motion papers is therefore clearly incorrect and is doubtless due to the fact that all seven defendants listed in these motion papers, together with ten other defendants, are named as defendants in another indictment (which charges the defendants with conspiracy to commit criminal anarchy and which was handed down simultaneously). The moving defendants no doubt desire to have this one motion apply to both indictments. Therefore, despite the faulty procedure, the decision rendered on this motion will be considered to apply to both of said indictments.

The Court held that the motion to dismiss the indictments is bottomed upon the postulate that the grand jury which returned the indictments was unconstitutionally selected. As the predicate of this postulate, defendants contend that the provisions of the Judiciary Law dealing with the qualifications of grand jurors in New York City are unconstitutional because the provisions therein that a juror to be qualified to serve must be intelligent; of sound mind and good character; well informed and a person who has not been convicted of a ‘misdemeanor involving moral turpitude’ set up an impermissible subjective test for qualification of a juror to be applied by the jury clerk.

Published on: September 29, 2013

DNA tests performed … con’t

by Stephen Bilkis

In response, the People contend that the facts alleged make out a completed rape and Defendant’s own statements and DNA testing confirm that he had sexual intercourse with the victim. The People then claim that, pursuant to another case, Courts are not limited to the single charge to which Defendant pled guilty, but rather, may rely on the victim’s sworn testimony, Defendant’s plea, Grand Jury testimony, Defendant’s statements and DNA evidence.

The sentencing court is charged with making the actual determination regarding whether a defendant is a Sexual Predator, Sexually Violent Offender or Predicate Sex Offender, and if he is to be designated as a Risk Level 1, 2 or 3. The sentencing court is to use the same factors as the Board in making its determination. However, the ability of the sentencing court to depart from the recommendation is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Therefore, the court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines.

At the hearing, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence and in making the determinations the court shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determination. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be religitated.