New York Criminal Lawyer Blog

Published on: July 28, 2013

The issue in this case is whether respondent had failed to properly care for or supervise his four year old son.

by Stephen Bilkis

In this Child Neglect proceeding under Article 10 of the Family Court Act (“FCA”), Petitioner Department of Social Services brought a Petition in December 2010 charging that the Respondent had failed to properly care for or supervise his four year old son. The subject child was placed with Respondent pursuant to FCA § 1055 and, until late October, 2010, resided with Respondent at his home in Mount Vernon, New York.

A Nassau Criminal Lawyer said that, the fulcrum of the Petition is an incident that took place at Respondent’s Mount Vernon apartment during the evening of October 29, 2010. The subject child was then residing with Respondent in that apartment. According to the Petition, on the afternoon of October 29 Respondent was observed to be intoxicated to the point of impairment when he arrived to pick the subject child up from school, such that “his speech was slurred and he was stumbling.” That evening, the DSS Emergency Services Unit responded to Respondent’s home; he refused to allow them to enter. Subsequently, the Mount Vernon Police forced entry into the apartment for domestic violence. Once inside, DSS found the child to be safe, but discovered a baseball bat and knife with a “10 inch blade” underneath a bed, and “readily accessible to the four year old subject child.” In addition, as soon as DSS had an opportunity to carefully observe the child, DSS workers allegedly observed a discoloration under one of his eyes which, according to Joshua, had been caused when his father struck him when he dropped a toy. Immediately following the October 29 incident, the child was removed from Respondent’s care and placed with a foster family.

A Nassau Sex Crime Lawyer said that, respondent entered a general denial to the allegations of the Petition, and a fact finding hearing was commenced on February 4, 2011 and continued intermittently for several days thereafter until May 7, 2011. Petitioner called several witnesses, including the DSS Emergency Services workers who arrived at Respondent’s apartment on October 29; a DSS Child Protective Services worker who spoke to and observed the child shortly after the October 29 incident; and the child’s teacher, who testified as to Respondent’s conduct and apparent condition when he picked the child up from school on the afternoon of October 29. Petitioner also adduced documentary evidence including photographs of the subject child allegedly depicting an injury to his eye, and an indicated report describing Respondent’s behavior during the afternoon of October 29. That report, when received by DSS, prompted their visit to Respondent’s home that evening. Respondent testified on his own behalf. In essence, he denied any intoxication or that he had struck his son; Respondent did concede, however, that he failed to provide DSS with access to his apartment, but sought to justify his conduct on the grounds of an overarching concern for his and the child’s personal safety.

Published on: July 28, 2013

On appeal, the Appellate Division, Second Department, reversed defendant’s conviction

by Stephen Bilkis

Defendant agreed to assist a confidential informant in obtaining a substantial quantity of peyote, a controlled substance. The confidential informant telephoned defendant and arranged the sale which formed the basis of the instant criminal charges. Thereafter, the informant and an undercover police officer drove to defendant’s home in Nassau County, picked up defendant and then proceeded, in the officer’s car, to New York County where the actual sale was to occur. Upon arrival in New York County, the officer gave criminal defendant $120, the agreed purchase price of the drugs. The officer and the informant then waited in the officer’s car while defendant went to an undisclosed location to make the purchase. Defendant returned with the drugs a short time later and gave them to the officer. The three men then returned to Nassau County.

Later, defendant was indicted by a Nassau County Grand Jury and charged with criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree.

Prior to trial, defendant moved to dismiss the indictment upon the ground that the Nassau County Court lacked geographical jurisdiction of the offenses charged. This motion was denied. At the close of the People’s case and again at the close of all the evidence, the defendant renewed his motion to dismiss. Each time the trial court denied the motion, ruling that it was for the jury to determined whether facts sufficient to support jurisdiction in Nassau County had been demonstrated.

Published on: July 27, 2013

The United States Court of Appeals for the Ninth Circuit reversed and remanded

by Stephen Bilkis

Sometime in 1970, Congress enacted the Securities Investor Protection Act (SIPA), as amended, which authorized the formation of respondent corporation, a private nonprofit corporation, of which most broker-dealers registered under § 15(b) of the Securities Exchange Act of 1934, § 78o(b), are required to be members. Whenever respondent determines that a member has failed or is in danger of failing to meet its obligations to customers, and finds certain other statutory conditions satisfied, it may ask for a protective decree in federal district court. Once a court finds grounds for granting such a petition, it must appoint a trustee charged with liquidating the member’s business. After returning all securities registered in specific customers’ names, the trustee must pool securities not so registered together with cash found in customers’ accounts and divide this pool ratably to satisfy customers’ claims. When the extent the pool of customer property is inadequate, respondent must advance up to $500,000 per customer to the trustee for use in satisfying those claims. Bank fraud was not charged and neither was grand larceny or petit larceny .

On 24 July 1981, respondent sought a decree from the United States District Court for the Southern District of Florida to protect the customers of corporation-one, a Securities Corporation, a broker-dealer and a member of respondent. Three days later, it petitioned the United States District Court for the Central District of California, seeking to protect the customers of corporation-two, also a broker-dealer and a member. Each court issued the requested decree and appointed a trustee, who proceeded to liquidate the broker-dealer.

After two years, respondent and the two trustees brought a suit in the United States District Court for the Central District of California, accusing some 75 defendants of conspiracy in a fraudulent scheme leading to the demise of corporation-one and corporation-two. It was alleged that, insofar as they are relevant: from 1964 through July of 1981, the defendants manipulated the stock of six companies by making unduly optimistic statements about their prospects and by continually selling small numbers of shares to create the appearance of a liquid market; the broker-dealers bought substantial amounts of the stock with their own funds; the market’s perception of the fraud in July 1981 sent the stocks plummeting; and this decline caused the broker-dealers’ financial difficulties resulting in their eventual liquidation and respondent’s advance of nearly $13 million to cover their customers’ claims. The criminal complaint described petitioner’s participation in the scheme by alleging that he made false statements about the prospects of one of the six companies, corporation-three, of which he was an officer, director, and major shareholder; and that over an extended period he sold small amounts of stock in one of the other six companies, corporation-four, to simulate a liquid market; the conspirators were said to have violated the Securities Exchange Act of 1934, SEC Rules, and the mail and wire fraud statutes; and the complaint concluded that their acts amounted to a pattern of racketeering activity within the meaning of the RICO statute, so as to entitle the plaintiffs to recover treble damages. In other words, respondent alleged that petitioner conspired in a stock-manipulation scheme that disabled two broker-dealers from meeting obligations to customers, thus triggering respondent’s statutory duty to advance funds to reimburse the customers.

Published on: July 27, 2013

Serrano-type guilty plea

by Stephen Bilkis

The defendant father was indicted in 1994 in a twenty-eight count indictment charging that he engaged in sexual relations with his 15 year old daughter, during a three month period. He entered into a negotiated Alford-Serrano plea to one count of rape in the third degree with the assistant district attorney, with the knowledge and consent of the victim’s mother. The court in view of the representations of the prosecutor, and the defense along with the victim’s mother, accepted the plea bargain based on the fact that the victim was of limited intelligence and would be unduly traumatized by testifying in court against her father. While the father maintained his innocence he claimed that a jury might convict him of rape in the first degree rather than the statutory rape charge to which he pled. These are sex crimes.

The defendant father argues that since he took an Alford-Serrano plea, whereby he maintained his innocence, yet acknowledged that the prosecutor may have been able to obtain a conviction, it should not be used against him in calculating his classification as a sex offender.

After the plea, the assistant district attorney moved pursuant to Criminal Procedure Law that the defendant submit to a human immunodeficiency virus (“HIV”) test. Attached to the motion was an application for HIV testing signed by the allege victim. The defendant father steadfastly refused to take the HIV test on the ground that he still maintains his innocence and no proof otherwise was ever presented to the court. He also argues that the disclosure of a positive test result if it occurred would harm his reputation in the community since the victim’s family has in the past proliferated defamatory written materials attacking him and his employer.

Published on: July 27, 2013

Defendant offered no explanation for the delay.

by Stephen Bilkis

Defendant was charged with felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s criminal attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, defendant’s allegations ring false, and he does advise all his clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future.

Published on: July 27, 2013

The issue to be resolved in this case is whether the Court has jurisdiction over the case.

by Stephen Bilkis

A company provides services as a third party benefits administrator of health benefit plans. The petitioner is the former principal owner and Chief Executive Officer of this company. In July 1995, Respondents purchased said benefit plans company from Petitioner. To ensure an orderly transition, the parties agreed that petitioner was to continue managing it, as CEO, and executed an agreement, pursuant to which petitioner would be paid a salary and incentive bonus based on the increase in the Company’s future earnings. There was a provision in the agreement for arbitration under the Rules of the American Arbitration Association.

A Nassau County Criminal lawyer said that during 1996 and 1997, the parties executed four different amendments to the 1995 Employment Agreement. None of these amendments changed the arbitration provision. Later, petitioner filed a Demand for Arbitration against the company, based on its failure to use diligent efforts to guarantee payment of the Incentive Bonus as required by the Fourth Amendment to the 1995 Employment Agreement. In resolution of this dispute, the parties executed a Settlement Agreement, which provided, among other things, that petitioner would discontinue the arbitration and would execute an Amended and Restated Employment Agreement, which was to amend the 1995 Employment Agreement, and contained a general merger clause.

In compliance with the Settlement Agreement, the parties executed the Amended and Restated Employment Agreement, which included the same arbitration provision of the 1995 Employment Agreement. Thereafter, Nassau County and BPA (represented by petitioner) entered into a contract entrusting BPA with the administration of the employee health benefits plan for Nassau County’s 26,000 workers. The net result of this new contract was to immediately increase petitioner’s incentive bonus to a total of $9 million dollars, payable by the company. No fraud was involved.

Published on: July 26, 2013

The defendant was originally apprehended in New Jersey

by Stephen Bilkis

On 1 December 1983, the County Court of Suffolk County rendered judgment convicting a certain defendant of attempted rape in the first degree and attempted rape in the second degree, after a nonjury trial. Criminal sex crimes.

On appeal, the Appellate Court affirmed the County Court’s decision.

Here, the proof adduced at trial established beyond a reasonable doubt that on 4 May 1982, at approximately 7:30 A.M., the defendant, who was well known to the 11-year-old victim, went into the victim’s bedroom, hit her with a belt and attempted to rape her. The defendant wiped his penis on the victim’s jeans. The victim’s testimony describing this incident was independently corroborated by her mother’s testimony that the defendant was the only adult in the house the morning of the incident, as well as by the testimony of her two brothers who saw the defendant go into the victim’s bedroom that morning with a belt and heard her crying from behind closed doors. What’s more, the Deputy Director of the Suffolk County crime laboratory testified that he analyzed the stains found on the child’s jeans and panties as well as samples of the defendant’s blood and saliva and the tests revealed that the same enzymes were present. The expert offered the opinion that the enzymes found in the panties stain matched only 3.8% of the population, while those found in the jeans stain matched only 8.6% of the population. This is domestic violence.

Published on: July 26, 2013

FBI uses email as evidence

by Stephen Bilkis

The court denies the motion by the plaintiff K, pro se, for an order, inter alia, pursuant to CPLR 3120, directing the defendant, H, an Illinois Corporation, to comply with his Notice to Produce all documents, records and any other information in the possession of said defendant, relating to the identification of the author of the article titled “You’re a Mean One, Mr. K” which appeared in the “Readings” section of the December 2009 edition of the H Magazine.

Further, the court grants in part and denies in part the second motion by defendant, H for an order pursuant to CPLR 3211(a)1 and 7. The court dismisses the plaintiff’s Amended Complaint in its entirety and grants sanctions of costs and attorneys’ fees pursuant to CPLR Rule 8303-a.

This libel action arises out of a column published in the December 2009 issue of H Magazine (the “Column”) that consisted almost entirely of excerpts of a letter and all but two emails that were quoted in full in the criminal complaint filed against the plaintiff herein, K.

Published on: July 26, 2013

This appeal is dismissed without prejudice

by Stephen Bilkis

The defendant, charged with two misdemeanor violations of the Vehicle and Traffic Law, appeals from an order of the Nassau County District Court, sitting as a Court of Special Sessions, which denied his application for youthful offender treatment. When the application was made to the District Court, the Presiding Judge ordered that an investigation be made for the purpose of determining the defendant’s eligibility for youthful offender treatment. No examination or investigation was conducted, although ordered, and the court subsequently denied the defendant’s application. An immediate appeal has been taken to this Court, and the sole question presented at this time is whether an immediate right of appeal lies from the refusal by a court of special sessions to grant youthful offender treatment before there has been a criminal judgment of conviction.

The right to an appeal is unknown in common law. It is a creature of statute and does not exist without statutory authority therefor. The sole statutory provisions which may be deemed applicable to the within appeal are contained in sections 749 and 913-r of the Code of Criminal Procedure and in section 251 of the Nassau County District Court Act, Laws 1939, c. 274.

Section 913-r of the Code of Criminal Procedure provides that a defendant adjudged a youthful offender shall be entitled to an appeal in accordance with the provisions of the Code. Section 749 of the Code of Criminal Procedure entitled ‘Review on appeal from minor courts’ states, in part: ‘In counties other than the counties included within the city of New York, a judgment upon conviction, rendered by a court of special sessions in any criminal action or proceedings or special proceeding of a criminal nature may be reviewed by the county court of the county, upon an appeal as prescribed by this title. These two sections clearly indicate that the right to appeal, as contained therein, arises only after there has been an adjudication of guilt.

Published on: July 25, 2013

AF’s son, JF, had been sexually abusing the young boys

by Stephen Bilkis

Defendant appeals from the judgment rendered on 3 May 1989 of the County Court, Nassau County convicting him of sodomy in the first degree and use of a child in a sex performance, upon his plea of guilty and sentencing him to four concurrent indeterminate terms of 2 years imprisonment.

AF is a retired high school teacher. He was under arrest in 1987 on Federal criminal charges for using the mails to send and receive child pornography. A subsequent investigation disclosed that AF ran an after-school computer program in his Great Neck home. AF’s son, JF, had been sexually abusing the young boys who had been regularly attending the computer classes. AF was arrested on State charges with respect to the sexual abuse crimes, and upon his guilty plea, was sentenced, inter alia, to 8 1/3 to 25 years imprisonment in addition to his sentence on the Federal charges. In connection with the investigation of the AF and JF, police were led to the defendant, a friend of JF, who had also sexually abused some of the boys who had been attending the computer classes. The defendant, who was 15 and 16 years old when he committed the crimes, became repulsed by them, and six months before the AF and JF were arrested, the defendant disassociated himself from JF and his activities. Following the defendant’s indictment for a number of sex crimes, including class B violent felonies, the prosecution, with the approval of the victims’ families, approached the defendant’s counsel and sought the defendant’s assistance in strengthening the case against JF and in providing information concerning two other individuals suspected of being involved in the crimes. Domestic Violence could be involved.

The defendant agreed to cooperate on 8 September 1988. The terms and agreement between the defendant and the prosecution were placed on the record. In exchange for defendant’s testimony, it would recommend to the sentencing court that defendant will receive a sentence no more than six months in jail, youthful offender status, probation and any and all therapy contingent upon that probation which the probation department deems is necessary. There was not a drug charge made.