New York Criminal Lawyer Blog

Published on: September 15, 2013

The daughter reported that her mother had used corporal punishment with her

by Stephen Bilkis

Respondent is the mother of the two subject children. Respondent also has an older daughter, currently a third year student at Princeton University, visits the home on some weekends and during school vacations.

In February 2008, respondent was arrested and her children were removed from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. Thereafter, the Children Services filed petitions against respondent in kings County Family Court.

A Kings County Criminal lawyer said that the petitions allege that the mother neglected her son, by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, the police responded to a 911 call made from a business near the case address after the son left the home because his mother beat him with a belt. The petitions further allege that the son reported that the beating took place after his mother learned that he had failed a number of classes. When the son tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again. He also reported that his mother had used physical discipline in the past although this time was worse than other times. Finally, the petitions allege that the daughter is a derivatively neglected child by virtue of the neglect of the son.

Published on: September 14, 2013

he defendant was charged with harassment based on numerous harassing and threatening telephone calls

by Stephen Bilkis

The defendant was charged with harassment based on numerous harassing and threatening telephone calls he allegedly made to his former paramour, with whom he had two children. Specifically, a misdemeanor complaint was filed charging the defendant with harassment and aggravated harassment. By order, the action was transferred from the County Criminal Court to the Integrated Domestic Violence (IDV) Part of the County Supreme Court. The misdemeanor complaint was converted to information by the complainant’s attestation. After a nonjury trial, the court convicted the defendant of three counts of attempted aggravated harassment.

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 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.

As a threshold matter, the County Court agrees with the defendant that his contention regarding the jurisdiction of the IDV Part may properly be raised for the first time on appeal. The preservation rule does not apply to errors that affect the organization of the court or the mode of proceedings prescribed by law. Such errors fall into a very narrow category of cases. The Court of Appeals has held that, in general, errors that fall under the exception exist where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, non-waivable defect in the mode of procedure. The exception to the general rule was created to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute. However, the exception only applies to errors that go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.

Published on: September 14, 2013

The court requested the presence of a Child Services attorney

by Stephen Bilkis

In April 2006 respondent father filed a motion requesting that this court enter a dispositional order dismissing the neglect petition pursuant to Family Court Act § 1051 (c) or, in the alternative, suspending judgment of the neglect finding, pursuant to Family Court Act § 1053. The Children’s Services, the law guardian for the children, and the respondent mother have filed opposition papers thereto.

A Kings County Domestic violence lawyer said that the court proceedings began when the respondent father filed a petition in Kings County Criminal Court in January 2005 seeking custody of the subject children. His petition alleges that he is the father of the children, and it would be in the best interests of the children to be in his custody because the children are suffering mysterious burns and accidents in the care of their mother. The respondent father requested sole custody of the children. Due to the child protective allegations in the petition, the judge ordered an emergency investigation, pursuant to Family Court Act § 1034.

Thereafter, the respondent mother filed a family offense petition in Kings County Family Court seeking an order of protection against the respondent father for herself and the subject children. Her petition alleges that the respondent father pushed and hit the respondent mother in her mouth with his elbow in the presence of the children. Her petition also alleges prior incidents of abuse, including that he has thrown things at her, and has choked her until she was gasping for air. She also alleged that he uses drugs, carries a knife and has access to guns. At the same time, the respondent mother also filed a petition for custody of the subject children, seeking sole custody, alleging that the respondent has been physically abusive to her in the presence of the child.

Published on: September 14, 2013

The assailant implored his former schoolmate to let him go

by Stephen Bilkis

A man was indicted for robbery in the second degree and grand larceny in the third degree. He was acquitted on the robbery charge, found guilty of the count charging grand larceny in the third degree and sentenced to five years probation and a fine of $100.

The criminal charges stemmed from an incident were a woman entered the courtyard together with her small son. As the two were walking toward east, three black youths attack her, knocking her to the ground and grabbed her purse. Her screams attracted the attention of a man, who turned to see three men running. While he could not identify any of the attackers, he came upon man hiding behind a hedge and stood guard over him until the police came.

The effort to escape was observed by the man in his continuous pursuit and he confronted the assailant who recognized him as a former schoolmate. The assailant implored his former schoolmate to let him go, but the latter rejected the request and called the victim.

Published on: September 13, 2013

The novel issue in this case is whether the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief

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 the child 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: September 12, 2013

On 23 November 2003 the court issued an order granting the petition

by Stephen Bilkis

This is a proceeding wherein the petitioner seeks leave pursuant to article 6 of the Civil Rights Law to change her surname to that of her same-sex life partner. Her partner has consented to the application before a notary public. The court’s research does not reveal any published New York cases directly on point.

However, the court grants the petition.

Under the common law, a person can simply assume any name, absent fraud or an interference with the rights of others as held in Matter of Anonymous. Article 6 of the Civil Rights Law provides a formal procedure for changing a name, which provides the advantages of being speedy, definite and a matter of record as was done in Smith v United States. Article 6 allows both adults and infants to petition to change their names, the latter generally through a parent or guardian in accordance to Civil Rights Law § 60.

Published on: September 12, 2013

The charges arose from an alleged scheme that defrauded the New York State

by Stephen Bilkis

The defendant doctor was indicted for grand larceny in the second degree and conspiracy in the first degree. A man was also indicted and is a fugitive. The charges arose from an alleged scheme that defrauded the New York State medical aid system of over $500,000. The theory of the State’s case was that the defendant doctor helped cause the submission to the medical aid system of claims for payment that were based on false statements that sonograms had been taken and then read by the radiologists in connection with the diagnosis and treatment of thousands of medical aid system patients. In reliance on these false statements, the State paid the claims. The indictment asserted that the scheme to defraud was carried out by the defendant doctor and others who made multiple sonograms of the same person, attributed the names of real medical aid system patients to the sonograms of a person who was not a medical aid system patient, and used without permission physicians’ names as having referred patients for sonograms when no such referrals had been made.

On January 12, 1995, the State advised the Court that a key witness had changed his testimony and that the defendant’s participation in the criminal activities within the statute of limitations period could not be proven. The State requested that the case be dismissed and their motion was granted.

At the same proceeding, the prosecutor filed a motion asking that the records of the proceeding not be sealed. The basis of the prosecutor’s application was that the Civil Recovery Unit of the Office of the Special Prosecutor for the medical aid system fraud wants to use the records obtained by the State during its investigation and prosecution of the case to recover, through a civil action pending against the defendant, the money that the State allege was stolen by the defendant. The Court ordered that all sealing be stayed on January 12th and then extended the order on March 17, 1995.

Published on: September 11, 2013

The court set a proposed trial date

by Stephen Bilkis

The complainant allege that a pharmacist, acting both individually and as an agent of a pharmacy, submitted a number of claims for prescription refills for various recipients, which refills had not been authorized by the prescribing physicians.

Later, witness appeared before the grand jury, which returned the instant indictment, at which appearance she was represented by an attorney, and testified under transactional immunity.

After a year, the court set a proposed trial date with the understanding that if pretrial discovery had not been completed by that time the trial date would be postponed.

Published on: September 11, 2013

On 16 November 2006, the People served and filed a statement of readiness

by Stephen Bilkis

Originally, defendant was charged by complaint dated 4 November 2006 with assault in the third degree in accordance with Penal Law § 120.00 [1], a class A misdemeanor; menacing in the third degree in accordance with Penal Law § 120.15, a class B misdemeanor; criminal mischief in the fourth degree in accordance with Penal Law § 145.00 [1], a class A misdemeanor; resisting arrest under Penal Law § 205.30, a class A misdemeanor; unlawful possession of marijuana under Penal Law § 221.05, a violation; and harassment in the second degree under Penal Law § 240.26 [1], a violation.

It was alleged in the complaint that the defendant punched the complaining witness several times and damaged the complaining witness’ car and cell phone. The complaint further alleges that the defendant resisted arrest by going limp and kicking at the arresting officer, and that the defendant had a quantity of the drug marijuana in his pocket.

The People concede that speedy trial time has elapsed as to the counts of assault in the third degree, harassment in the second degree and menacing in the third degree. The defendant argues that the People cannot be ready to proceed to trial on only part of a complaint. The issue in this case is whether the People can be ready for trial on some of the counts in a complaint, but not on others, under the method generally referred to as partial conversion.

Published on: September 10, 2013

While the delay here was unusually long, appellant has not established prejudice based upon a deprivation of his liberty

by Stephen Bilkis

In this criminal case, appellant, who was 15 years old at the time of the offense, was charged, along with three other youths, with acts which, if committed by an adult, would constitute robbery in the second and third degrees, attempted robbery in the second degree, assault in the second and third degrees, grand larceny in the fourth degree, unlawful imprisonment in the second degree, petit larceny, criminal possession of stolen property in the fifth degree, attempted assault in the third degree, and menacing in the third degree.

A Bronx County Grand Larceny lawyer said that the affidavit of the victim stated that, he was approached by one of the four boys and pulled over to where the other three stood, where one of them threatened him, and then reached into his pocket and took his money. When he asked for his money back, the boy pushed him, causing him to fall to the ground and twist his wrist. All four boys kicked and punched him in the stomach while he was on the ground. His wrist was swollen for three days and sore for seven days.

At a court appearance, appellant and one correspondent appeared before the court, each with his own lawyer and his mother. Appellant’s counsel told the court that his client was willing to admit to the top count, in exchange for the dismissal of a separate accusatory instrument against him on an unrelated charge, and the release of appellant to his mother instead of his being remanded. Appellant’s counsel noted that he had explained to him that he could face 18 months in a juvenile correctional facility.