New York Criminal Lawyer Blog

Published on: September 6, 2013

The petitions alleged that the mother and father failed to provide a minimum degree of care to their three children

by Stephen Bilkis

A Kings Family Lawyer said that, this proceeding was initially commenced on June 3, 2010, when NYCCS filed petitions against respondent mother and respondent father pursuant to Article 10 of the Family Court Act. The petitions alleged that the mother and father failed to provide a minimum degree of care to their three children since the father committed acts of domestic violence against the mother in the presence of the children and both parents failed to ensure that the school-aged children attended school regularly.

A Kings Domestic Violence Lawyer said that, upon the filing of the petition, the court granted NYCCS’s request for a removal of the children and directed that they be restrictively placed with the maternal grandmother. In addition, the court entered a temporary order of protection against the father. That order directed the father to refrain from committing any family offenses against the children or the maternal grandmother and stay away from them except for visitation supervised by the grandmother or the agency. Shortly thereafter, the grandmother and the children traveled to Pennsylvania to visit with relatives. When she and the child subsequently returned to New York City, the other children remained in Pennsylvania with family members. Although NYCCS was apparently aware of this arrangement, the record fails to establish whether or not they actually agreed to it.

A Kings Criminal Lawyer said that, on August 13, 2010, the mother requested a FCA § 1028 hearing for the child. She did not request the immediate return of the other children because they were staying with relatives where they were safe, happy and attending school. The hearing, concluded on August 20, 2010, when the court granted the mother’s application and directed that the subject be returned to her. The Judge issued a temporary order of protection against the father on behalf of the mother and the subject child. That order directed the father to refrain from committing any family offenses against the child or the mother and to stay away from them, except for visitation supervised by the agency. The Judge ordered that the mother enforce the terms of the temporary order of protection, comply with NYCCS referrals for a confidential domestic violence family shelter, comply with ongoing domestic violence counseling and cooperate with NYCCS supervision, including announced and unannounced visits.

Published on: September 6, 2013

Such questions are clearly relevant to the alleged cause of action for negligent retention.

by Stephen Bilkis

A Kings Order of Protection Lawyer said that, in this police misconduct action, plaintiff seeks an order pursuant to CPLR 3124 compelling defendant Police Officer to appear for a further examination before trial to answer questions that he was instructed by his counsel not to answer at an examination held on July 31, 2006. Although not included in the Notice of Motion, Plaintiff also asks for copies of documents related to the subject matter of certain unanswered questions, and, because addressed in the opposition of defendant and co-defendants City of New York, Police Officers the requested documents will be addressed by the Court as well.

A Kings Criminal Lawyer said that, plaintiff’s Complaint arises out of an incident on May 2, 2004, when the vehicle Plaintiff was driving was stopped, and Plaintiff was arrested and charged with criminal possession of a weapon, assault, forgery, and resisting arrest. The Complaint seeks compensatory and punitive damages for battery, negligence, negligent hiring and retention, false arrest, false imprisonment, malicious prosecution, and for Federal civil rights violations under 42 USC § 1983. The City has answered for itself and for said defendant Police Officers. The Police Officer was produced for deposition as a witness on his own behalf and as a witness for the City.

The issue in this case is whether defendant should be compelled pursuant to CPLR 3124 to appear for a further examination before trial to answer questions that he was instructed by his counsel not to answer at an examination held on July 31, 2006.

Published on: September 6, 2013

No testimony was offered independent of the defendant’s statements to show that the robbery did not occur.

by Stephen Bilkis

On 16 September 1978, the defendant was arrested and charged in one accusatory instrument, a felony complaint, with two crimes, i. e., Violation of Sections 265.02, a felony and 240.50, a misdemeanor. On 21 November 1978, a preliminary hearing was held by the court. The people offered the testimony of officer GA and a forensic report by the NYPD attesting to the operability of the weapon pursuant to 180.60, (8) CPL, 190.30, (2), CPL.

To justify the granting of a preliminary hearing on the misdemeanor charge, it must be determined that the repeal of 170.75 CPL rescinding the right of a defendant to a preliminary hearing in a misdemeanor case is inapplicable in any case where a defendant is properly charged in a felony complaint with a misdemeanor and a felony.

The court finds it proper to review the statutes governing preparation of accusatory instruments.

Published on: September 5, 2013

Petitioner’s competence as a nursing home operator does not preclude the board from exercising its responsibility to punish clear misconduct

by Stephen Bilkis

In this criminal action, a proceeding pursuant to CPLR article 78 was filed to review a determination of the Board of Examiners of Nursing Home Administrators which suspended petitioner’s license as a nursing home administrator.

As a result of a nursing home criminal investigation, petitioner, a nursing home administrator for 11 years, was indicted for grand larceny in the second degree, attempted grand larceny in the second degree, and two counts of offering a false instrument in the first degree. Petitioner signed a plea agreement in this matter with the Bronx County District Attorney’s office.

According to the agreement, in return for cooperating in an investigation of loan sharking operations by organized crime in The Bronx, petitioner would receive, inter alia: a misdemeanor plea, a sentence of probation on condition that he make full restitution, and a recommendation that his license be continued and complete assistance with regards to any license revocation proceedings. Petitioner assisted in the loan sharking investigation by gathering information and testifying against him at a trial, petitioner was permitted to plead guilty to petit larceny, a class A violence misdemeanor, in full satisfaction of the four felony charges. He was sentenced to three years’ probation and restitution. Thereafter, respondent Board of Examiners of Nursing Home Administrators charged him with having engaged in unethical conduct in that he had been convicted of crimes. Following a hearing, the hearing officer issued a decision recommending that the board reprimand petitioner, but not suspend or revoke his license. The board subsequently adopted the findings of fact and conclusions of the hearing officer; however, it suspended petitioner’s license for 16 months and 25 days. The instant review proceeding ensued.

Published on: September 5, 2013

Family Court’s order of disposition

by Stephen Bilkis

In this criminal case, respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Escape in the First Degree, Escape in the Second Degree, and Escape in the Third Degree. The petition alleges that by order of the Family Court, Bronx County, respondent was adjudicated a juvenile delinquent, and placed in the custody of the New York State Division for Youth for a period of up to eighteen months upon the court’s finding that he had committed a felony. In accordance with the Family Court’s order of disposition, the Division for Youth placed the respondent with the Berkshire Farm 2 facility for a period of up to six months.

A Bronx County Criminal lawyer said that the petition further alleges that while respondent was placed with the Division for Youth and in the custody of Berkshire Farm, he was transported to the New York County Family Court by Berkshire Farm staff members, in accordance with a court order, so that he could be present for an initial appearance upon a juvenile delinquency petition, arising out of an incident which occurred in July 1996, where it is alleged that respondent committed acts which would constitute, inter alia, Grand larceny in the Fourth Degree, a class E felony.

According to a supporting deposition of an employee of Berkshire Farm, he and other staff members arrived at the New York County Family Court building in the morning. Shortly after their arrival, respondent requested breakfast and was escorted from the building to a sidewalk vendor who was located in front of the courthouse. Then the employee and the respondent reentered the courthouse and stood side by side as they waited on line to enter the metal detectors.

Published on: September 5, 2013

The issue in this case is whether the court erred in convicting the defendant

by Stephen Bilkis

This is an appeal from the judgments of the Supreme Court, Bronx County, rendered March 26, 1992, convicting each defendant of two counts of robbery in the first degree, and one count each of assault in the first degree, grand larceny in the third degree, and criminal possession of stolen property in the third degree, and sentencing each defendant (Defendant-Appellant as a second violent felony offender and the other Defendant-Appellant as a second felony offender) to concurrent terms of 12 1/2 to 25 years, 12 1/2 to 25 years, 7 1/2 to 15 years, 3 to 6 years, and 3 to 6 years, respectively, unanimously modified, on the law, to the extent of reducing each defendant’s conviction of grand larceny in the third degree to grand larceny in the fourth degree, and reducing each defendant’s conviction of criminal possession of stolen property in the third degree to criminal possession of stolen property in the fourth degree, and reducing each defendant’s sentence on each of those counts to 2 to 4 years.

The issue in this case is whether the court erred in convicting the defendant.

The Court held that, except as discussed infra, the jury’s verdicts were neither based on insufficient evidence nor were they against the weight of the evidence. Specifically, there was ample evidence that defendants’ use of force was for the purpose of taking property, in that car keys were taken during defendants’ sudden, unprovoked assault upon the victims, notwithstanding that the car itself was not taken until shortly thereafter. However, there was insufficient evidence that the car’s value was over $3000, and we accordingly modify by reducing the convictions of grand larceny and criminal possession of stolen property from third to fourth degree. In view of the remaining concurrent sentences, we see no need to remand for resentencing, and instead reduce the sentence on each of the reduced counts to 2 to 4 years.

Published on: September 4, 2013

People v Estevez

by Stephen Bilkis

Criminal law is an area can be rather complex especially where there are several charges against a person arising out of one event or the alleged acts were committed against the same person or group of persons. This issue arose in the People v Estevez where there was an issue of consolidation versus severance.

In the People v Estevez, the defendant was charged with three crimes occurring on three separate dates at the same location and involving the same complaining witness in a first docket. He was then charged with three counts of criminal contempt in the second degree, a class A misdemeanor for violating an order of protection issued by the court on the first docket and harassment in the first degree, a class B misdemeanor. The People then sought to consolidate the two matters which is a procedure by which the prosecutor or defendant attempts to have two or more separate offenses combined for a single trial. Additionally upon consolidation the prosecution stated that the criminal contempt charge would be reduced to attempted criminal contempt, a class B misdemeanor.

The prosecution sought to consolidation the charges because the alleged facts showed pattern of harassment of same complainant and all charges were same or similar in law. In this case, the three counts of contempt of court flowed from the first charges as such consolidation would be appropriate. The defendant however, opposed motion and asserted that, if consolidation were granted, defendant would be exposed to more than six months imprisonment, which would entitle him to trial by jury. The prosecutor could not act in good faith by reducing several “serious charges” to which defendant would be entitled to jury trial to “petty offenses” and then move to consolidate them for purpose of joint trial in which the potential sentence would be that of “serious offense” that is more than six months of imprisonment may be imposed, while denying defendant right to trial by jury.

Published on: September 4, 2013

The charges were dismissed and the minutes sealed

by Stephen Bilkis

Defendant is charged with Robbery in the First Degree, Robbery in the Second Degree (two counts) and Grand larceny in the Third Degree. Thereafter, he testified under a waiver of immunity before another grand jury concerning unrelated crime. The charges were dismissed and the minutes sealed.

A Bronx County Grand Larceny attorney said that the People allege that the events which were the subject of that proceeding occurred “within hours” of the incident that supports the current indictment. Accordingly, they move to unseal the minutes so that defendant’s testimony can be used to impeach him if he testifies in this case and offers an alibi which is inconsistent with “his testimony concerning his actions and whereabouts at approximately the same date and time”. The defendant opposes the motion. He argues that public policy in general protects an accused who is later exonerated of criminal charges from adverse consequences resulting merely from an accusation. The grand jury minutes were sealed pursuant to CPL Section 160.50, which provides that upon termination of a criminal action in one’s favor–including dismissal of the charges and acquittal, for example, –all official records and papers, including the grand jury minutes relating to the arrest or prosecution of that charge, be sealed. The sealing statute is intended to insure that “one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation”, or, as in this case, to protect one from unfounded accusations, if, in fact, no indictment is returned.

That rule of secrecy, however, is not absolute. For example, the CPL provides for disclosure of sealed materials to prosecutors, and law enforcement agencies, and the purposes for which their applications will be granted. None of those narrowly defined exceptions support the People’s application herein.

Published on: September 4, 2013

Marijuana possession laws

by Stephen Bilkis

A Kings Criminal Lawyer said that, defendant was issued three summonses on December 18, 2005. When Defendant failed to appear for arraignment, the People requested the court to issue an arrest warrant for her appearance pursuant to section 120.30 of the CPL. In deciding whether or not to issue the warrant, the court must determine whether the summonses in question are legally sufficient to proceed with prosecution. The offenses charged in the summonses will be analyzed seriatum.

A Kings Drug Possession Lawyer said that, on the first summons, Defendant is charged with violation of section 240.35(3) of the Penal law, which states: A person is guilty of loitering when he loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of a deviate nature. In the portion of the summons in question the police officer wrote: At T/P/O Deft. Was in a known prostitution prone location and was observed by P.O. soliciting sexual favors.

A Kings Marijuana Possession Lawyer said that, the second summons issued to Defendant is based on section 221.05 of the Penal Law, Unlawful Possession of Marijuana, which states: A person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possesses marijuana.

Published on: September 3, 2013

Under Kings County Indictment No. 3098/93, the defendant was charged with multiple crimes arising out of two separate incidents

by Stephen Bilkis

A Kings Grand Larceny Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered May 16, 1994, convicting him of robbery in the first degree, criminal possession of a weapon in the third degree, and grand larceny in the fourth degree (two counts), upon separate jury verdicts, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

A Kings Criminal Lawyer said that, under Kings County Indictment No. 3098/93, the defendant was charged with multiple crimes arising out of two separate incidents in which he allegedly robbed two different victims on different dates. On March 6, 1993, the defendant allegedly robbed the complainant at knifepoint (hereinafter the first incident), and on March 10, 1993, he allegedly robbed another complainant (hereinafter the second incident). A Kings Robbery Lawyer said that, with respect to the first incident, the defendant was charged with two counts of robbery in the first degree, and one count each of grand larceny in the fourth degree and criminal possession of a weapon in the third degree. With respect to the second incident, he was charged with robbery in the first degree and grand larceny in the fourth degree. The court severed the counts relating to the first incident from the counts related to the second incident, and separate trials were held before different juries. After trial on the first incident, a jury found the defendant guilty of criminal possession of a weapon in the third degree and grand larceny in the fourth degree. After trial on the second incident, a jury found the defendant guilty of robbery in the first degree and grand larceny in the fourth degree. On May 16, 1994, the court sentenced the defendant on all of the convictions arising out of both incidents.

The issue in this case is whether the court erred in convicting defendant of robbery in the first degree and grand larceny in the fourth degree, despite of the ground to suppress the evidence presented against him.