New York Criminal Lawyer Blog

Published on: July 31, 2013

The Court takes judicial notice of the fact

by Stephen Bilkis

A case has been filed against the defendant. He is accused of the crimes of Rape in the First Degree (2 Counts), Sodomy in the First Degree (2 Counts), Sexual Abuse in the First Degree (2 Counts), and Burglary in the Second Degree.

The charges are that defendant on 18 November 1987 knowingly entered unlawfully in a dwelling with intent to commit the crimes of Rape and Sodomy therein, and engaged in sexual intercourse and deviate sexual intercourse with a female by forcible compulsion not prostitution.

On 21 April 1988 the criminal defendant entered a plea of guilty to Attempted Rape in the First Degree in Violation of Sections 110/130.35(1) of the Penal Law, a Class “C” violent felony, in full satisfaction of the charges against him. The defendant will be sentenced as a second violent felony offender to an indeterminate sentence of imprisonment having a maximum term of 15 years and a minimum of 7 years 6 months.

Published on: July 31, 2013

To commit stalking in the first degree there is a requirement of injury

by Stephen Bilkis

In this Criminal action, petitioner initially filed a petition, alleging a family offense. This petition alleges the respondent committed the acts of aggravated harassment in the second degree, stalking in the first degree and disorderly conduct. The entirety of petitioner’s allegations are that respondent: continues to harass, aggravate, intimidate, frighten and stalk Petitioner. The Petitioner discovered the Respondent hiding behind bushes around her home. She was so frightened that the police notified and she was advised to file this petition. The petitioner obtain a Temporary Order of Protection against the respondent for his negative behavior that was dismissed. The petitioner is afraid of the respondent and fears for her life, she is also concerned for the safety, mental and emotional stability of their child. The Respondent abuses alcohol. The Petitioner requested custody of their child. A weapon was not found.

A Nassau County Criminal attorney said that on the date Petitioner appeared before a Judge of this Court, after arrest, petitioner was granted an ex-parte temporary order of protection against the respondent. The order of protection was a “stay away” while under the influence of illegal drugs, alcohol or other intoxicant. Thereafter, the within motion ensued. While respondent does not cite a theory under which the dismissal should occur, the moving papers seem to allege a failure by petitioner to state a cause of action.

The respondent alleges, in his motion, that the allegations contained in the petitioner’s family offense petition, even if true, do not rise to the level of family offenses. The Family Court Act § 812 defines a family offense, as those acts that would constitute: disorderly conduct,

Published on: July 31, 2013

The People contend that the Board properly assessed 20 points against defendant

by Stephen Bilkis

In this Sex Crime case, Defendant was convicted upon his plea of guilty of criminal sexual act in the second degree as the result of his admitted sexual conduct with a 14-year-old girl. He was sentenced to a term of incarceration and, upon his anticipated release, the Board of Examiners of Sex Offenders (Board) prepared a Risk Assessment Instrument (RAI).

Based upon the total risk factor score of 85 on the RAI, defendant was presumptively classified as a level two risk pursuant to the Sex Offender Registration Act (SORA). All of the points were assessed under the category of “CURRENT OFFENSE(S)” and included 25 points under risk factor 2, “Sexual Contact with Victim,” 20 points under risk factor 4, “Duration of Offense Conduct with Victim,” 20 points under risk factor 5, “Age of Victim,” and 20 points under risk factor 7, “Relationship Between Offender and Victim.” The Board did not find that any overrides were applicable, nor did it recommend a departure from defendant’s presumptive level two classification.

A Nassau County Criminal lawyer said that, at the SORA hearing, the People agreed with the Board’s assessment and asked County Court to determine that defendant is a level two risk. Defendant, however, challenged the assessment of 20 points under risk factor 7, “Relationship Between Offender and Victim,” on the ground that his relationship with the victim was not that of a stranger or established for purpose of victimizing or professional relationship,” as set forth in the RAI. In its case summary, the Board indicated that points were assessed under that risk factor because the victim was defendant’s foster child and the offense arose from the “abuse of a professional relationship.”

Published on: July 30, 2013

None of the defendants were charged with any sex crime

by Stephen Bilkis

A Nassau Criminal Lawyer said that, this is a proceeding involving eight separate information charging the separately named defendants with a violation of Section 722-b of the Penal Law of the State of New York. Section 722-b reads as follows: § 722-b. Loitering in school buildings. ‘Any person not the parent or legal guardian of a pupil in regular attendance at said school who loiters in or about any school building or grounds without written permission from the principal, custodian or other person in charge thereof, or in violation of posted rules or regulations governing the use thereof, shall be guilty of disorderly conduct.’.

A Nassau Sex Crimes Lawyer said that, on September 21, 1960 defendants and the six additional named defendants, together with others, entered upon the property of the a certain Elementary School in the City of New Rochelle, New York. None of the defendants was a parent or legal guardian of a pupil in regular attendance at the school and none of the defendants had written permission from the Principal, Custodian or other person in charge thereof. The eight defendants were accompanied by a group of children. With the exception of the first defendant, all of the remaining seven defendants were parents of one or more children in the group. Thus, the only factual distinction between the defendant case and the second case is that it is conceded on the record that defendant did not have a child in the group at the School, and that as a matter of fact, defendant’s child was regularly enrolled at the Mayflower Elementary School in the City of New Rochelle, New York, and was in fact in attendance at the said Mayflower Elementary School at the time of the acts set forth in the information. There was no robbery or DWI in this case.

The City of New Rochelle is divided into twelve elementary school districts. The Board of Education of the City of New Rochelle has assigned to each of these districts a specially designated geographical area and children in the City wishing to attend elementary schools (kindergarten through sixth grade) are required to attend the elementary school to which their residential district has been assigned. The Superintendent of Schools testified the children are not permitted to attend elementary schools outside of their designated residential districts. The Superintendent further testified that the City contains two junior high schools, whose districts are also designated by the Board of Education, and that at the completion of the sixth grade of instruction at an appropriate elementary school a pupil is assigned to one of the two junior high schools, depending upon the residence of the pupil. The City School District operates a single senior high school (grades ten through twelve) which operates on a city-wide basis.

Published on: July 30, 2013

The court stated that the woman committed the act or acts

by Stephen Bilkis

A woman is accused in the indictment with four crimes which includes criminal mischief in the fourth degree, as a hate crime, criminal mischief in the fourth degree, making graffiti and possession of graffiti instruments. It is alleged that the woman, a teacher, wrote with a black marker the three unpleasant words on the walls of a female bathroom on the third floor of their school.

The grand jury accuses the woman of the crime of criminal mischief in the fourth degree as a hate crime. It was committed when the woman, having no right to do so nor any reasonable ground to believe she had such right, intentionally selected a girl in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sex orientation of the girl, regardless whether the belief or perception was correct or intentionally committed the act or acts constituting the offense in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation regardless of whether the belief or perception was correct.

The woman argues that the proposed modification would change the theory of the trial because the indictment specifies the girl as the specific person about whose race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation the woman had formed beliefs or perceptions which allegedly motivated the underlying violence and criminal mischief.

Published on: July 30, 2013

The order of the County Court is modified on the law and the facts

by Stephen Bilkis

The Appellate Division denied the writ, stating that the defendant failed to establish that he was denied the effective assistance of appellate counsel. The defendant thereafter applied for a writ of error coram nobis, alleging that he had been deprived counsel on the State’s appeal.

Although a writ of error coram nobis generally raises the claim that the defendant received ineffective assistance of appellate counsel, the writ is also a proper vehicle for addressing the complete deprivation of appellate counsel that occurred here. Accordingly, the Appellate Division should have granted the defendant’s application for a writ of error coram nobis. Because the defendant’s trial counsel failed to comply with the terms of NYCRR (New York Codes Rules and Regulations), the defendant was deprived of appellate counsel to which he was entitled.

The Appellate Division, apparently unaware that the defendant had been represented by assigned trial counsel, determined the Sate’s appeal, noting no appearances by the defendant. Although the assigned trial counsel informed the defendant of the State’s appeal, the defendant’s counsel failed to represent the defendant on that appeal. If a defendant was represented by assigned counsel at the trial court, such assignment shall remain in effect and counsel shall continue to represent the defendant as the respondent on the appeal until entry of the order determining the appeal and until counsel shall have performed any additional applicable duties imposed upon him by these rules, or until counsel shall have been otherwise relieved of his assignment. Prostitution was not involved and prostitution was not charged.

Published on: July 29, 2013

Confidentiality is the exception and not the rule

by Stephen Bilkis

A Nassau Sex Crime Lawyer said that, the petitioners had moved by order to show cause for a court order permitting petitioners to serve and file a notice of claim using pseudonyms to conceal the identity of the infant petitioners who are alleged victims of sex crimes. At this juncture, the actions have not been commenced since pleadings were not filed and served, and issue has not been joined. On the return date of the applications, the parties named in the captions of the notice of claims stipulated that petitioners are permitted to serve and file a notice of claim in the names of “John Doe 1,” “John Doe 2,” and “John Doe 3” as pseudonyms to protect the identity of the infant petitioners in the above-entitled actions.

A Nassau Criminal Lawyer said that, the respondent, cross-moved to seal the entire court record in the impending actions, and a news company has moved to intervene in opposition to respondent’s motion for a sealing order. The petitioners have submitted papers opposing the sealing of the entire court record in the interest of the public. As an alternative, counsel for “John Doe 1 and 2” requests in his opposition papers that “the court order that all documents filed with this court be redacted to the extent necessary to preserve the identity of the infant claimants and their families.”

The issue in this case is whether respondent motion for the sealing of the entire court record should be granted. A drug charge was not made nor was there any burglary.

Published on: July 29, 2013

The boy’s attorney contends that his client is not a risk to society

by Stephen Bilkis

In this case, the complainant is a six years old boy and his opponent is a twelve years old boy, whom were alleged to have been caught in a sex act.

The twelve years old boy was born by a cocaine-addicted mother and subsequently adopted by a couple days after his birth. The boy has special needs and since birth he experienced both developmental and medical difficulties. Since infancy, the boy received physical, occupational, speech, feeding, and vision therapies. He also suffers from decreased muscle tone and chronic constipation. He has been classified by his local school district as multiply disabled and attends an integrated educational program which includes speech, therapy and counseling. The boy has an I.Q. of 69, which places him in the mildly retarded range of intellectual functioning. No criminal charges were made for drug possession.

Afterward, the court ordered an out-patient evaluation of the twelve years old boy to determine whether he is an incapacitated person within the meaning of the law. The boy was then evaluated by two court appointed mental health professionals. Their reports were submitted to the court. The reports explained that the boy was an incapacitated person stemming from cognitive difficulties, and lack the capacity to understand legal proceedings. It was further indicated in the reports that treatment would not improve the boy’s ability to comprehend his legal situation. Robbery was not an issue nor was burglary.

Published on: July 29, 2013

The Appellant argues in this Court that he is not subject to SORA

by Stephen Bilkis

In this Sex Crime, following a March 1983 incident in which he violently assaulted a neighbor, Appellant pleaded guilty to one count of sex abuse in the first degree and one count of assault in the second degree, in satisfaction of all charges. He was sentenced to 2 to 6 years’ imprisonment on each criminal count, to run concurrently.

In February 1987, while on parole supervision, Appellant attacked and stabbed an acquaintance in her home. He pleaded guilty to attempted murder in the second degree, in full satisfaction of an indictment that included first-degree rape and first-degree sodomy counts. He was sentenced, as a second violent felony offender, to 10 to 20 years’ imprisonment.

According to a Nassau Sex Crimes lawyer, when Appellant was released in 2002, the Board of Examiners of Sex Offenders (the Board) determined that he was required to register under the Sex Offender Registration Act (SORA), citing his 1983 sex abuse conviction. The Board calculated a total risk assessment score of 80 points, on the basis of the 1983 incident, making Appellant presumptively a level two (moderate risk) offender. The Board however recommended an upward departure to level three, because of “the brutal sexual and physical assault” Appellant committed in 1987. He filed an objection to the Board’s recommended SORA assessment level, arguing, among other things, that SORA does not apply to him because his sentence for the sexual abuse conviction “was due to expire” before SORA became effective in 1996.

Published on: July 29, 2013

Family Court acquired personal jurisdiction over the appellant

by Stephen Bilkis

On March 4, 2009, a woman and her sons (hereinafter collectively the respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against the appellant, the woman’s mother and her sons’ grandmother. The alleged family offenses included assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondent children, their grandmother pushed their mother to the floor twice, causing her to hurt her back and hit her head. The grandmother allegedly was screaming, yelling, and cursing at the woman during the criminal assault. In addition, the grandmother allegedly used a glass bowl to strike a child on the head, causing injuries. Further, the grandmother allegedly chased the younger son with a meat cleaver and threw an ashtray at him, which hit him in the back.

Thereafter, on March 6, 2009, the appellant grandmother filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. She alleged that on or about February 14, 2009, also in Anguilla, her daughter and her grandsons committed the family offenses of aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. Domestic violence all.

During an initial appearance before the Family Court, the grandmother’s counsel objected to the court’s exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that the fact that the event took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They’re all residents of Nassau County and they’re entitled to protection from future occurrences. Family Orders of Protection are to prevent further hostility and further assault, attempted assault, etc.