New York Criminal Lawyer Blog

Published on: September 17, 2013

The court finds that the original order clearly contemplated and provided for therapeutic visitation only,

by Stephen Bilkis

These are appeals from an amended order of the Family Court of Columbia County entered 3 December 2009, which, in proceeding No. 1 pursuant to Family Ct. Act article 6, clarified a prior order of custody and from an order of said court, entered 3 May 2010, which dismissed petitioner’s application in proceeding No. 2 pursuant to Family Ct. Act article 6 to modify a prior order of custody.

The petitioner, the father, has a daughter born in 1995 to respondent KR and a son born in 1999 to respondent LB. In July 2009, the father separately petitioned to modify prior visitation orders entered on consent as to each child. After a combined hearing, Family Court granted a motion by the attorney for the daughter to dismiss the petition as to her for failure to allege a sufficient change in circumstances. The father withdrew his petition at the hearing and the court issued an amended order. The father now appeals from both orders.

During the hearing, it was established that the 42 year old petitioner criminal father is a convicted sex offender. Petitioner pleaded guilty in 1990 when he was aged 22 to sexual abuse of a 16-year-old girl. Again, he pleaded guilty in 2000 when he was aged 32 for statutory rape of a 16-year-old girl

Published on: September 17, 2013

Plaintiff has made a prima facie showing of entitlement

by Stephen Bilkis

A Queens Sex Crime Lawyer said that, on August 19, 2008, plaintiffs jointly commenced the instant action by filing a summons and complaint with the King’s County Clerk’s office under index number 23739/08. The defendants joined issue by answer dated September 8, 2008. On August 20, 2008, the other plaintiff commenced her own separate action by filing a summons and verified complaint with the Nassau County Clerk’s office under index number 11424/2009. The defendants joined issue by verified answer dated September 4, 2008. On April 21, 2009, the two complaints were consolidated for joint trial in Kings County Supreme Court.

A Queens Criminal Lawyer said that, the first action alleges forty-six allegations of fact in support of three causes of action. Their first two causes of action claim violations of Executive Law 296(1): the first for sex harassment by the creation of a hostile work environment; and the second for constructive discharge. The third cause of action is for intentional infliction of emotional distress. All plaintiffs in the first action seek summary judgment on liability on the entire complaint. With the exception of plaintiff the complaint alleges that each plaintiff worked at MCPC up until June 13, 2008, when they discovered that defendant had installed and used a hidden camera in the only working restroom.

A Queens Sex Crime Lawyer said that, the second complaint alleges thirty-eight allegations of fact in support of five causes of action. The first two causes of action claim violations of Executive Law Section 296(1): the first for sexual harassment by the creation of a hostile work environment; and the second for intentional discrimination and constructive discharge. The third cause of action is for violation of the right to privacy. The fourth cause of action is for intentional infliction of emotional distress. The fifth is for prima facie tort. The second action seeks summary judgment on liability on the first, second and fourth causes of action.

Published on: September 17, 2013

The court, however, grants probationer a CRD for employment purposes only.

by Stephen Bilkis

This proceeding is an application by the defendant probationer through the Probation Department, for a limited certificate of relief from disabilities pursuant to Correction Law § 702 which would authorize him to apply for hunting licenses and use long gun solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons.

The defendant has completed his community service with high praise from the office where he had worked and is a first time offender who would otherwise be eligible for a CRD pursuant to Correction Law § 700. He continues to serve his probationary sentence.

This application for a CRD requires the court to consider three federal criminal statutes, contradictory United States Court of Appeals decisions, contradictory New York lower court decisions, and novel issues apparently not decided by any court.

Published on: September 16, 2013

Two cases are before the court for resolution.

by Stephen Bilkis

Two cases are before the court for resolution.

The first case is an appeal by the defendant, by permission, from an order of the County Court, Nassau County entered 31 January 2003, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered 10 April 2000, convicting him of rape in the first degree, sodomy in the first degree (two counts), and attempted sodomy in the first degree, upon his plea of guilty, and imposing sentence.

The court affirms the order.

Published on: September 16, 2013

A complainant woman submits an application for an order of grant to leave

by Stephen Bilkis

A complainant woman submits an application for an order of grant to leave to amend her complaint by bringing a sixth cause of action against a man and adding causes of action against him in negligence, negligent criminal representation and fraudulent concealment. She also submits an application for the modification of her cause of action against the principal of the school, adding another person as an additional opponent.

The opponents however oppose the applications and cross move it. They seek for an order to dismiss the complainant’s sex complaint in its entirety with prejudice, for the complainant’s failure to prove negligent misrepresentation, wrongful conduct or any other breach of duty on the part of the opponents. They also request the granting of an award of sanctions and/or attorneys fees for the complainant’s playful and merit less motion practice, as well as for the complainant’s unfounded, disciplinary, inappropriate and egregious statements made both by the complainant’s attorney and the complainants in their application. They also seek to deny the complainant’s motion to modify her complaint, as such application is without merit, improper and barred by the law.

The aforementioned action arises from the complainant’s alleged wrongful termination from her employment as a teacher in the school run by the man and other opponents. Sources revealed that the complainant worked at the said school as a remedial reading and social studies teacher for almost thirteen years.

Published on: September 16, 2013

Many different cases invoked

by Stephen Bilkis

This proceeding involves an appeal by the defendant from a judgment of the Supreme Court, Queens County rendered 17 June 2002 convicting him of rape in first degree, sodomy in the first degree, sexual abuse in the first degree (three counts) and burglary in the second degree, upon a jury verdict, and imposing sentence.

The court affirms the judgment.

Contrary to the defendant’s contentions, the Supreme Court correctly denied that branch of his motion which was to compel the complainant to submit to a psychiatric examination by a defense expert. It is well settled that a criminal defendant has no statutory or constitutional right to compel a complainant to undergo a pretrial psychological examination as ruled in the landmark cases of Matter of Brown v Blumenfeld and People v Kemp. While a court may possess the discretion to permit such an examination under appropriate circumstances, the defendant failed to demonstrate that such circumstances were present here akin to the cases of People v Earel and Peole v Jones.

Published on: September 16, 2013

The issue in this case is whether the court erred in convicting appellants of conspiracy in the second degree.

by Stephen Bilkis

A Bronx Grand Larceny Lawyer said that, defendants-appellants, members of the New York City Police Force, were indicted, together with another, for the crime of conspiracy in the second degree, (Penal Law 105.10) grand larceny in the first degree (extortion), bribe receiving, receiving reward for official misconduct and official misconduct. At the trial, the latter two counts on official misconduct were removed from jury consideration. The jury acquitted on the charges of grand larceny and bribe receiving, but convicted on the charge of conspiracy in the second degree.

A Bronx Criminal Lawyer said that, also defendant was convicted of first degree murder. Defendant appealed to the Court of Appeals, contending that the People failed to establish that the killing took place during the commission of the crime of burglary in the third degree, and that the People failed to establish that the killing took place during the commission of the crime of grand larceny in the second degree, and that the County Court erred in submitting to the jury the theory of murder during the commission of the crime of burglary in the third degree and grand larceny in the second degree, and that verdict of jury could not stand if the People only established one of the felonies, either burglary in the third degree or grand larceny in the second degree, because both theories were submitted to the jury as the basis of a finding of felony murder, inasmuch as there was nothing in the record to indicate which felony was used by the jury as the basis of the finding of guilty of felony murder.

The issue in this case is whether the court erred in convicting appellants of conspiracy in the second degree.

Published on: September 15, 2013

The court finds that the 15 points assessed for this risk factor is appropriate.

by Stephen Bilkis

A Queens Sex Crimes Lawyer said that, the defendant was charged by a felony complaint with Rape in the Second Degree (Penal Law § 130.30) and Endangering the Welfare of a Child (PL § 260.10(1)). Pursuant to a plea bargain, the defendant pleaded guilty to one count of Attempted Rape in the Third Degree (PL § 110/130.25) and was sentenced to six months in jail. As required by the Sex Offender Registration Act (Art. 6-C of the Correction Law), the Board of Sex Examiners submitted a Risk Assessment Instrument finding that the defendant was at level 2 or at a moderate risk of reoffending. The defendant challenges that finding.

A Queens Criminal Lawyer said that, in the felony complaint, a detective who signed the document alleged that he was informed by the 12-year-old complainant, inter alia, that the 39-year-old defendant had sexual intercourse with her between April 1st and April 15th, 1997, laying on top of her in her bed and holding her down with his body. Additionally, he told her that if she told anyone what he had done, he would kill her. The complaint also alleged that on several occasions ending in mid-April, 1997, he sexually abused the complainant by repeatedly placing his finger in her vagina and on her breasts.

A Queens Sex Crime Lawyer said that, on August 12, 1997, the defendant pleaded guilty to the reduced charge of Attempted Rape in the Third Degree (PL § 110/130.25), an A misdemeanor, and allocated to one incident of sexual intercourse with the complainant. There was no provision in the plea agreement that the defendant submit to any treatment or therapy. Prior to sentence, he was interviewed by a representative of the Department of Probation, during which interview he admitted to having “sex with his 12 year old niece. He stated that he feels terrible about what he has done. He further stated that it should never have happened.”

Published on: September 15, 2013

Claimant relies on the testimony of his economist

by Stephen Bilkis

Claimant ABA was wrongfully convicted on charges that he sexually abused his four-year-old daughter, including rape and sodomy. He was imprisoned for over two years—783 days—on multiple concurrent sentences, the longest of which was for 8 1/3 to 25 years, primarily in maximum security prisons, before his conviction was reversed on grounds of ineffective assistance of counsel and prosecutorial misconduct.

As prosecutors prepared to re-try ABA, it was confirmed that the only witness who had presented evidence of such abuse had lied and, in fact, that there was no credible evidence his daughter ever had been molested. The sex indictment against claimant then was dismissed. He subsequently commenced this action for unjust conviction pursuant to Court of Claims Act § 8-b.

Defendant moved pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action and claimant cross-moved for summary judgment. The Appellate Division, Second Department, granted claimant’s motion for summary judgment, reversing the trial court and finding the State liable. This was the first time in the history of the unjust conviction statute since it was enacted in 1984 that the Appellate Division, on a motion record, found that claimant had satisfied all requirements of section 8-b—including, of course, his innocence—by clear and convincing evidence without defendant having raised an issue of fact warranting a liability trial. That this appellate court finding was made in a case that did not involve DNA evidence is all the more remarkable. The Appellate Division’s observations pertaining to liability bear repetition as this court turns to the issue of damages here:

Published on: September 15, 2013

As part of a scheme to steal money from a customer, the defendant, an insurance agent, forwarded a false document to her employer

by Stephen Bilkis

The judgment of the Bronx County Supreme Court rendered May 12, 1986, convicting the defendant man on a plea of guilty of robbery in the first degree, burglary in the first degree, criminal use of a firearm in the first degree, robbery in the second degree, criminal mischief in the fourth degree and grand larceny in the third degree, and sentencing the defendant to indeterminate terms of from 3 to 9 years imprisonment on his convictions for robbery in the first degree, burglary in the first degree, criminal use of a firearm in the first degree and robbery in the second degree, one year on his conviction for criminal mischief, and one to three years on his conviction for grand larceny, all sentences to run concurrently, unanimously modified, on the law, to reduce the sentence imposed on the conviction for robbery in the second degree to a term of 1 1/2 to 4 1/2 years, and to reduce the sentence imposed on the conviction for grand larceny in the third degree to one year, and otherwise is affirmed. As the State of New York appropriately acknowledge, there was an inadvertent failure in the sentences imposed on the defendant for robbery in the second degree and for grand larceny in the third degree to conform to the sentencing promises made at the time the defendant entered his plea. Accordingly, the sentence imposed with respect to those charges must be modified as indicated. There is no merit in the defendant’s further contention that the plea allocution, which was quite detailed and comprehensive, was defective because of a failure specifically to inform the defendant that he was entitled to representation by counsel at the trial.

In another grand larceny case, the judgment of the Bronx County Supreme Court rendered on May 21, 2007, convicting the defendant, after a jury trial, of criminal possession of stolen property in the third degree and falsifying business records in the first degree, and sentencing her to an aggregate term of 3 days, with 5 years probation, a $5,000 fine and restitution, is unanimously affirmed.

The defendant’s argument that her conviction of possession of stolen property was against the weight of the evidence was rejected. There is no basis for disturbing the jury’s credibility determinations. The jury’s mixed verdict, which convicted the defendant of possessing stolen property but acquitted her of third-degree grand larceny related to the same property, does not warrant a different result. The defendant argues that the verdicts were inconsistent because the evidence that she possessed stolen money was also evidence that she stole it, but when a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict. The verdict was not inconsistent because, as charged by the court, acquittal on the crime of grand larceny was not conclusive as to a necessary element of the crime of. Moreover, the jury could have determined that the defendant did not commit the crime of grand larceny because she did not intend to convert the money when she accepted it from the victim, but committed the crime of possession of stolen property because she later decided to keep the money for herself. The jury also could permissibly split its verdict as a compromise or act of leniency.