New York Criminal Lawyer Blog

Published on: September 29, 2013

CPL 210.05

by Stephen Bilkis

A Kings Domestic Violence Lawyer said that, the defendant was charged with, inter alia, harassment in the second degree based on numerous harassing and threatening telephone calls he allegedly made to his former paramour, with whom he had two children. On January 18, 2007, a misdemeanor complaint was filed charging the defendant with, inter alia, aggravated harassment in the second degree (three counts). By order dated January 31, 2007, the action was transferred from the Criminal Court, Kings County, to the IDV Part of the Supreme Court, Kings County. A Kings Criminal Lawyer said that, the misdemeanor complaint was converted to information by the complainant’s attestation dated February 7, 2007. After a nonjury trial, the court convicted the defendant of three counts of attempted aggravated harassment in the second degree.

A Kings Criminal Defense Lawyer said that, the defendant argues for the first time on appeal that the IDV Part of the Supreme Court, to which his case was transferred from the Criminal Court, lacked jurisdiction over the instant matter because neither a grand jury indictment nor a superior court information was filed by a district attorney, as required by CPL 210.05, and he never waived his right to an indictment by a grand jury. Moreover, the defendant contends that there was no legislative mandate authorizing the transfer.

The issue in this case is whether CPL 210.05 precludes the Integrated Domestic Violence (hereinafter IDV) Part of the Supreme Court from exercising its jurisdiction under the New York State Constitution to try misdemeanor charges against a defendant in the absence of an indictment or a superior court information.

Published on: September 28, 2013

DNA tests performed on the victim

by Stephen Bilkis

Defendant was arrested for acting in concert with co-defendant in allegedly committing the crimes of Kidnapping in the First Degree, Rape in the First Degree, Sodomy in the First Degree, and Unlawful Imprisonment in the First Degree, against a lady victim. Defendant and co-defendant were subsequently indicted for all of the above charges.

A Queens County Criminal lawyer said that Defendant and co-defendant detained Victim in a car and refused to let her leave when she requested to do so. Further, when she attempted to get out, she was pulled back inside and her mouth covered when she tried to scream for help. Defendant and Co-defendant then held Victim down while Defendant inserted his penis into her vagina and Co-defendant inserted his penis into her mouth, both without her consent. At the time of his arrest, when told that he was being charged with rape, Defendant responded, “I kind of had that feeling.” He was subsequently identified by both Victim and an eyewitness in separate corporeal lineups.

In the course of the Grand Jury presentation, it was established that Victim was with her friend. The latter knew Defendant and talked to him while Victim was standing close by. Victim and friend got into the back seat of the vehicle. When the friend got out to purchase some cigarettes or marijuana, Defendant drove off with Victim. Victim called to her friend for help. However, Co-defendant pulled her back into the car. Defendant proceeded to drive to a parking lot. He then got into the back seat, grabbed Victim’s thigh and demanded that she place his penis into her mouth. Thereafter, Defendant removed Victim’s pants, held her hands down, and engaged in sexual intercourse with her against her will. Co-defendant then inserted his penis into Victim’s mouth and masturbated into her mouth while Defendant held her hands down as she was repeatedly shouting, “No.” Co-defendant then struck Victim in the mouth. Afterwards, Victim was driven to within one block of her home and forcibly thrown out of the car.

Published on: September 27, 2013

The charges arose out of an incident which took place on May 23, 1992

by Stephen Bilkis

The defendant was convicted after a jury trial of Kidnapping in the First Degree, Rape in the First Degree (five counts), Sodomy in the First Degree (four counts), Robbery in the Third Degree, and Assault in the Second Degree. He was sentenced to an aggregate indeterminate term of incarceration amounting to 119 1/2 years to life.

The defendant appealed the convictions and by order, the convictions were affirmed by the Appellate Division, Second Department. The defendant then appealed to the Court of Appeals which unanimously affirmed the order of the Appellate Division.

The charges arose out of an incident which took place on May 23, 1992. Although this court did not preside over the trial, the facts have been gleaned from the affirmations submitted with the motions, from the records contained in the court file, and from the decisions of the appellate courts.

Published on: September 27, 2013

The court agrees…. con’t

by Stephen Bilkis

In the case at bar, the criminal court assumes the most stringent standard in People v Vilardi, that is, the “reasonable possibility” standard to apply.

Defendant’s contention fails because of the lack of evidence that DM’s suspicion predated his decision to accuse defendant and to cooperate with the D.A.’s office. There was no evidence at the hearing that on 27 February 2006, DM harbored either the suspicion suggested to him by F or the suspicion that defendant purposely set him up for a violation of probation. The defense post-hearing memorandum recognizes the crucial importance of this evidence; without it, the Brady violation is not material.

At trial, the major argument in the defense summation about DM and CB’s motive began with the proposition that once they made up the story there was no taking it back but then on 27 February 2006, he completely abruptly changed his story. The real motive at issue at trial, from the defense point of view, was the one at the time DM first made his accusation. Subsequent motivations were of course relevant, but diluted by the prior consistent accusation, made on February 27.

Published on: September 27, 2013

The motion to quash the subpoena is granted.

by Stephen Bilkis

A Kings Domestic Violence Lawyer said that, defendant move to have the People produce specified documents. Defendant claims that the records are vital to the preparation of her defense based upon the “Battered Woman’s Syndrome” (BWS). Defendant has commenced three separate proceedings for the documents. Defendant has issued a subpoena for these documents, requested the material under the Freedom of Information Law (FOIL; Public Officers Law § 87), and requested the material under CPL article 240.

On or about January 1, 1988 at approximately 11:00 A.M., at 106 Steuben Street in Kings County, the defendant stabbed her boyfriend to death. Defendant was apprehended at the scene of the crime. Defendant gave three oral statements, one written statement, and a videotaped statement to law enforcement agents. All five statements tell essentially the same story. Shortly before midnight New Year’s Day 1998, defendant attempted to enter her paramour’s apartment with her key. Upon unlocking the door, defendant was able to open the door slightly, but not enough to gain entry. Seeing that the couch blocked the doorway, she believed her boyfriend to be asleep. She pushed the door gently so as not to disturb her paramour. Upon gaining entry into the apartment, defendant observed the victim “having sex” with another person (a person apparently known to defendant). Defendant had an argument with the said person and ordered her to leave the apartment. She left, and an argument ensued between defendant and her boyfriend. At the conclusion of the argument, the victim and defendant went to sleep in different rooms. During the course of the evening, defendant woke up her boyfriend to talk about the evening’s events, but he did not wish to talk about the matter. In the morning after both parties were awake, defendant continued to argue with her boyfriend. At about 11:00 A.M., during an argument, the victim was close to the defendant’s face. The defendant pushed the victim who, in turn, pushed defendant off her chair. Defendant grabbed a knife and stabbed the victim, killing him.

A Kings Criminal Lawyer said that, for this incident, defendant has been indicted on two counts of Murder in the Second Degree. At oral argument on August 18, 1998, defendant represented that an examination of the defendant had been conducted and defendant was found to suffer from Battered Woman’s Syndrome. The court’s records show that defendant received an order of protection against the deceased on October 9, 1996, which expired April 8, 1997. The record also shows that defendant is registered with the Family Protection Registry under Case # 96R072716 and order of protection # 1996-R00465. There is thus a basis to believe that there were prior incidents between defendant and the deceased.

Published on: September 26, 2013

In the instant case, the accusatory instrument accuses the defendant of violating HPC §108-2

by Stephen Bilkis

This is a proceeding wherein the defendant, J, is charged with eleven counts of having multiple unregistered, unlicensed motor vehicles on his property at 2401-2403 Route 9G in the Town of Hyde Park without site plan approval to operate a junkyard in violation of Hyde Park Code (HPC) §108-2, §108-23, §108-32, §108-33 and §108-39.

The criminal defendant was served with an Order to Remedy Violation on or about 12 July 2005 issued by A, the Deputy Zoning Administrator. The Order cited defendant for business related activities occurring at the above premises by the storage of unregistered and unlicensed motor vehicles without prior site plan approval and directed defendant to comply with the law and to remedy the condition on or before 26 July 2005. Subsequently, A issued an appearance ticket, dated 27 July 2005, made returnable on 8 September 2005, on which date a twelve count Information was filed on his complaint. The arrest was made.

Defendant appeared by counsel who orally moved to dismiss the Information on facial sufficiency grounds. The motion was denied without prejudice to renew in writing. The case was adjourned to September 22nd for trial.

Published on: September 26, 2013

Housing Authority Police Officers

by Stephen Bilkis

A boy, 10 years old, had just finished his lunch, his mother had left the room to go visiting and he was all alone in their fifth floor apartment watching television. He heard a scream and, as he looked out the living room window onto the third floor roof of the adjacent building, some 50-100 feet away, he saw a man wearing blue Lee pants and a plaid shirt, dragging a little baby across the roof. As he watched, they disappeared for a few minutes behind an incinerator but soon reappeared and as he looked on the man pushed the now naked child off the roof and then ran back into the building.

A Queens County Rape lawyer said that within five or six minutes, according to his testimony, the boy saw Housing Authority Police Officers, whom he knew, arrive at the scene on the third floor roof and, at his call, they came over to the apartment and questioned the boy. In substance the tragic events he had just witnessed and offered a description of the perpetrator that he repeated the following day to New York City Police Detective of the Queens Sex crime Squad. That description would fit innumerable young black males, but is at substantial variance with the actual physical appearance of the defendant, who at the time, was 35 years old and who then wore a large “wild” Afro hair style “sticking all up” in a very unruly and lewd messy fashion.

In the days that followed, the boy was interviewed at both the local police precinct where he viewed police photographs on a machine and at another location in the county. He did not, however, recant the description he had given, but instead said that he did not know the perpetrator’s name, and, in fact, told Detective twice that he had never seen the perpetrator before.

Published on: September 26, 2013

The court agrees that there should have been disclosure.

by Stephen Bilkis

This is a proceeding wherein the defendant has moved for relief pursuant to C.P.L. §440.10(1)(b),(c),(f),(g) and (h). She was convicted after a jury trial of one count of sodomy in the second degree, one count of sodomy in the third degree (both as to complainant CB), bribing a witness (DM), and four counts each of criminal impersonation and falsely reporting an incident. The jury acquitted with respect to a second bribery charge and a charge of tampering with a witness both relating to DM and was unable to reach a unanimous verdict as to alleged sexual offenses against DM.

The court denies the motion to vacate judgment.

In November 1082, CB was born. According to his testimony, defendant’s sex relationship with her began when he was thirteen, as he was graduating from the Montessori school owned by defendant’s family. Defendant, on the other hand, argued that her sexual relationship with CB began only after he reached the age of consent. According to DM, defendant’s sexual relationship with him began in 2001, when he was twelve, shortly after he arrived at the school. DM left the school in March 2002.

Published on: September 26, 2013

As stated herein the mother has, as it relates to custody and visitation, met the threshold of excusable default and a meritorious defense

by Stephen Bilkis

The parties were married in New York in May 2002. While married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The criminal parties knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with the parties’ child. In December 2002, the mother gave birth to a son. At the time of the son’s birth the parties were living separately; however, during the early days of the marriage, the parties lived at the mother’s relative’s residence in Brooklyn. A great amount of the parties’ marriage can be characterized as tumultuous and there were incidents of domestic violence.

A Kings County Domestic violence lawyer said that In support of her request that she be awarded full legal custody of the child, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about custody. She argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego custody of the child, in favor of the mother.

The mother argues that if the father is awarded custody, he will limit access between her and her child. The mother contends that the father will be influenced by his parents, who do not like her, and that they would encourage him to keep the child from her. The mother further contends that while the child was living with the father, her sister who was visiting from California called the father hoping to see the child. In contrast, the mother testifies that she will allow the father to see the child as she did in December 2004 when she complied with court orders and flew the child from California to New York to see his father.

Published on: September 25, 2013

People choose to renew the application for a proposed amendment

by Stephen Bilkis

It is the defendant’s argument that the proposed amendment would, indeed, change the theory of the prosecution because the indictment specifies CB as the specific person about whose “race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation” the defendant had formed beliefs or perceptions which allegedly motivated the underlying crime of Criminal Mischief.

Further, the defendant claims that the Sex Crimes statute, Penal Law section 485.05, specifies that the hate crime “must be directed at a person.” Hinged on that ground, the defendant argues that the focus of a hate crime is limited to single, specific individual not a group of individuals unless it is directed at an entity or organization that is homogeneous in nature.

Section 485.05 (1) (b) of the Penal Law provides, in pertinent part: