New York Criminal Lawyer Blog

Published on: July 21, 2013

The Attorney General then must decide

by Stephen Bilkis

Complainant is a heart transplant nurse at a certain hospital who sued eight defendants for having allegedly violated the False Claims Act (“FCA”) by defrauding and conspiring to defraud the United States Treasury. She brought her suit under the qui tam provisions of the FCA which allow individual citizens to sue for fraud on behalf of the government and collect part of the government’s recovery. Pursuant to the procedures established in the qui tam provisions, Complainant filed a preliminary statement under seal which the United States reviewed at length. The government eventually decided not to intervene under 31 U.S.C. 3730(b)(4)(B), so complainant proceeded in the district court on her own.

After complainant filed her original complaint, the criminal defendants moved to dismiss under FED. R. CIV. P. 12(b)(6) for failure to state a claim. The district court denied each motion but requested additional briefing to address complainant’s standing under Article III of the United States Constitution. Complainant, the University of Texas Health Science Center at Houston, and the United States as intervenor for the limited purpose of defending the FCA’s constitutionality, briefed the standing issue. Complainant then filed a second amended complaint which was met with another round of motions to dismiss. Among the grounds for dismissal was an assertion by the University of Texas Health Science Center at Houston that the Eleventh Amendment bars complainant from suing it, because it is an arm of the state. The district court dismissed complainant’s claims on jurisdictional grounds, concluding that she had suffered no injury-in-fact and therefore lacked standing to sue. Because the court dismissed on standing grounds, it did not reach the arguments presented in the motions to dismiss, including the Eleventh Amendment defense. Assault was not charged.

On appeal, the defendants maintain that complainant lacks standing, and they assert two other constitutional arguments that they presented to the district court in their motions to dismiss: (1) that the qui tam provisions of the FCA violate the Constitution’s Appointments Clause and (2) that qui tam actions in which the government does not intervene violate the Take Care Clause and the constitutional doctrine of separation of powers. The United States continues its intervention for the limited purpose of defending the constitutionality of the qui tam provisions.

Published on: July 21, 2013

On appeal, it was found that the Superior Court information was properly dismissed

by Stephen Bilkis

Sometime in January 2005, the defendant allegedly engaged in a sexually explicit textual internet communications with an undercover police officer posing as a 14-year-old girl. In June 2006, the defendant purportedly waived indictment and entered a plea of guilty to the sex crime of attempted rape in the third degree in satisfaction of a Superior Court information, which also charged two counts of attempted disseminating indecent material to a minor in the first degree. The transcript of the plea hearing disclosed that there was a pending indictment, at the time of the waiver and plea. That criminal indictment charged the defendant with two counts of attempted disseminating indecent material to minors in the first degree, arising out of the January 2005 textual internet communications. At the plea hearing, the People stated that the defendant’s plea was also in satisfaction of the indictment and moved for its dismissal, which motion was granted by the County Court. Shortly after the defendant’s plea, and prior to the imposition of sentence, the Court issued its decision and order, holding that the offense or criminal act of disseminating indecent material to a minor in the first degree required the communication of visual sexual images, and not merely sexually explicit text. The defendant then moved pursuant to CPL 220.60 (3) to withdraw his guilty plea and to dismiss the Superior Court Information pursuant to CPL 210.20. The County Court granted the defendant’s motion on the ground that there were insufficient factual allegations to support any of the counts in the Superior Court Information. A weapon was not involved.

On appeal, it was found that the Superior Court information was properly dismissed, albeit for a different reason. The order was modified, on the law, by adding a provision thereto reinstating the indictment, and, as so modified, the order was affirmed, and the matter was remitted to the County Court of Suffolk County, for further proceedings on the indictment.

In the landmark case of People v Kozlow in 2007, the Court of Appeals reversed the Court’s decision and order, holding that a defendant could be convicted under Penal Law former § 235.22, which was applicable to the defendant’s conduct here, even though his or her communications contained no nude or sexual images. Applying the statutory interpretation employed by the Court of Appeals in that case, the two counts of attempted disseminating indecent material to a minor in the first degree are, by definition, supported by legally sufficient allegations. However, based on the records of the case, the procedure utilized by the County Court and the People in securing the defendant’s plea of guilty was in contravention of article 195 of the CPL and the holding of the Court of Appeals in the case of People v Boston in 1990. CPL 195.10 (2) (b) specifically provides authority for a defendant’s waiver of an indictment and entry of a plea under a Superior Court information in a superior court only prior to the filing of an indictment by the grand jury. According to the Court of Appeals, in the case of People v Boston, the failure to adhere to this statutory procedure was jurisdictional, affecting the organization of the court or the mode of proceedings prescribed by law. The Court there held that the waiver and the plea made in satisfaction of the relevant Superior Court information had to be nullified. Clearly, the defendant’s waiver of indictment here was similarly a nullity, and the Superior Court Information was thus properly dismissed. Since the defendant’s waiver of indictment was jurisdictionally defective, the subject indictment must be reinstated, and the matter must be remitted to the County Court of Suffolk County, for further proceedings on the indictment. The People’s remaining contention was without merit.

Published on: July 21, 2013

The Sixth Amendment to the United States Constitution

by Stephen Bilkis

A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Robbery was not charged and neither was domestic violence.

The issue in this case is whether the Court should accept for filing the application for leave to appeal filed by the defendant in his criminal indictments.

Published on: July 20, 2013

Parole is available after two years

by Stephen Bilkis

This proceeding originated from an appeal filed by a man. A man, who is an inmate at one of the correctional facility, is challenging an officer’s failure to enroll him in the treatment program despite the alleged order of the man’s sentencing court.

The man was sentenced as a second felony offender, to a determinate term of imprisonment of five years upon his conviction of the crime of criminal possession of a controlled drug substance in the third degree. On that same day, the court issued an order directing to enroll the man in a treatment program, provided that the man will satisfy the legal eligibility criteria for participation in such program.

Sources revealed that the treatment program was designed to prepare chemically dependant inmates for a return to the community, to reduce recidivism, by providing them education and counseling focused on continuing abstinence from all mood altering substances, and to encourage participation in self-help groups. There was no arrest for the crime of arson.

Published on: July 20, 2013

The psychiatrist has known respondent since October 2005

by Stephen Bilkis

In 1998, respondent was charged in two criminal indictments with breaking into four different homes and attempting to rape or sexually abuse the female occupants of each. In January 2000, he entered guilty pleas under both indictments in exchange for concurrent sentences of eight years imprisonment in each case. Specifically, respondent pled guilty to Burglary in the Second Degree and Sexual Abuse in the Second Degree and pled guilty to Burglary in the Second Degree and Sexual Abuse in the First Degree, and the promised sentences were subsequently imposed. The victim in one of the cases was a five-year old girl.

A Nassau County Sex Crime attorney said that at the probable cause hearing, petitioner presented the testimony of a psychiatrist licensed to practice in the State of New York since 1974. According to the reports of the psychiatrists who evaluated him, respondent suffered from severe physical and sexual abuse as a child, and eventually began to use and abuse marihuana. Before being convicted of the felonies that led to his lengthy incarceration, respondent was arrested various times for indecent exposure. The certificates of conviction introduced into evidence at the hearing confirm that, in addition to the felonies described above, respondent was convicted of Criminal Possession of Marihuana in the Fifth Degree, Public Lewdness, and Public Lewdness and Exposure of a Person.

The psychiatrist has known respondent since October 2005, when respondent was first civilly confined at the hospital after being incarcerated. In addition, he interviewed and evaluated respondent and reviewed several documents in connection with the evaluation: respondent’s medical records, respondent’s pre-sentence report, respondent’s criminal history, and the reports of the other psychiatrists who had evaluated respondent. The psychiatrist relied on these materials in diagnosing respondent, and testified that mental health professionals regularly rely upon such materials in diagnosing and treating psychiatric disorders.

Published on: July 19, 2013

Two New York State Police Troopers observed the defendant

by Stephen Bilkis

The defendant pleaded guilty to conspiracy in the fifth degree in connection with his purchase of cocaine from another individual. At sentencing, the court suspended the defendant’s driver’s license for a period of six months, in accordance with the Vehicle and Traffic Law because the defendant’s conviction was drug-related.

On appeal, the defendant argues that the court improperly suspended his driver’s license because Vehicle and Traffic Law provides for such suspensions where one is convicted of the crimes defined in article 220 or 221 of the Penal Law, and he was not convicted under either article.

At the outset, it is not the Penal Law, but the Vehicle and Traffic Law which requires construction in this case. It is well settled that suspension or revocation of a driver’s license is a civil, not a criminal, sanction. Thus, the statute at issue is construed so as to give it a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions.

Published on: July 19, 2013

Officer’s testimony is heard again

by Stephen Bilkis

A man initiated an appeal from a decision convicting him of criminal possession of marijuana in the first degree, upon his plea of guilty and imposing sentence. The appeal brings up for review the denial of the branch of the man’s motion which sought suppression of physical evidence.

Consequently, the court ordered to reverse the previous decision and the branch of the man’s motion is granted while his indictment is dismissed. The case then was remitted to the Supreme Court. There was no bail.

The complainant’s evidence revealed that the man’s car was stopped by two police officers. Soon after, another officer, who was also patrolling the area, arrived at the scene. Even if the officers had not called for assistance, the officer who recently arrived testified that he left his car and walked towards the man’s car in order to check the inspection sticker on the windshield. As he walked from the back to the front of the man’s car, on the driver’s side, he happened to look down and saw a bag, lying on its side on the floor behind the driver’s seat. He noticed a white substance and some pills protruding from the top of the bag.

Published on: July 18, 2013

A resentence of another defendant was imposed

by Stephen Bilkis

On 10 March 2003, the County Court of Suffolk County rendered judgment convicting defendant of rape in the first degree (five counts), sexual abuse in the first degree (seventeen counts), and endangering the welfare of a child in the first degree (two counts), upon a jury verdict. The criminal defendant filed an appeal from the said judgment and brought up for review the denial of the defendant’s motions to suppress the testimony of the complainants, and the denial of his separate motion to sever the counts as to one complainant from the counts as to the other complainant.

The Appellate Court affirmed the County Court’s decision.

Here, the defendant was tried under a multi-count indictment on charges of rape in the first degree, sexual abuse in the first degree, and endangerment of one child, and on charges of sexual abuse in the first degree and endangerment of another child. Based on the records of the case, the County Court providently exercised its discretion in denying the defendant’s motion to sever the charges in the indictment pertaining to each child since the charges involved the same or similar law, and there was nothing in the record indicating that the jury was unable to separately consider the discrete charges, as held in the cases of People v Berta in 1995; People v Prezioso in 1993; and People v Nickel in 2005. The County Court also properly denied the defendant’s motion to suppress the testimony of the complainants. Pursuant to the court’s ruling in the cases of People v Kemp in 1998; People v Alvarez in 1993; and People v Michael M. in 1994, in the absence of any non-speculative evidence that the children’s testimony resulted from undue suggestion by persons who interviewed them, the motion was properly denied. The County Court also correctly concluded, following an in-camera inspection, that the complainants’ school records and Suffolk County Child Protective Services files were neither exculpatory nor material. This was the ruling in the cases of Pennsylvania v Ritchie in 1987; People v Vilardi in 1990; and People v Gissendanner in 1979. With regard to the defendant’s contention that the prosecutor’s summation required a reversal of the conviction, this was unpreserved for appellate review since the defendant failed to object or raised only general objections to the prosecutor’s remarks. The defendant did not request curative instructions when his objections were sustained, and only belatedly moved for a mistrial after the case was submitted to the jury. In any event, the challenged remarks were either responsive to the defense counsel’s summation or fair comment upon the evidence. With regard to the defendant’s contention that he was denied the effective assistance of counsel, this was bereft of merit. As held in the cases of People v Gonzalez in 2005 and People v Benevento, unsuccessful trial strategies and tactics do not constitute ineffective assistance of counsel. With regard to the defendant’s remaining contentions, these were unpreserved for appellate review and, in any event, were without merit. No robbery was involved.

Published on: July 18, 2013

Druggie sentenced to six months

by Stephen Bilkis

In March 1983, the respondent New York State Liquor Authority (the Authority) issued an on-premises liquor license to the petitioner for its premises. Thereafter, the license was renewed annually upon application. By notice, the Authority instituted a proceeding pursuant to Alcoholic Beverage Control Law § 118 to revoke petitioner’s license, upon charging him of permitting the storage, possession, trafficking or sale of a controlled substance on the licensed premises in violation of subdivision 6 of Section 106 of the Alcoholic Beverage Control Law and of four counts of the crime of Cocaine Sale of a controlled substance in the Third degree, New York Penal Law, Section 220.39, a Class B Felony, was of such improper nature as to warrant revocation, cancellation, or suspension of its license in accordance with Rule 36.1(n) of the Rules of the State Liquor Authority.

A Suffolk County Criminal lawyer said that the petitioner entered a plea of “not guilty” to the charges and a statutory hearing was held before an Administrative Law Judge. The only witnesses to testify at the hearing were an undercover police officer and the principal stockholder of petitioner corporation. The undercover officer testified that on the four dates in issue cocaine was purchased on the premises and that on the initial date, defendant identified himself as the owner of the premises. The officer further testified that defendant was arrested for cocaine sale of a controlled drug substance in the third degree.

Admitted into evidence was a Suffolk County Police Department Court Disposition Report indicating that defendant pleaded guilty to attempted cocaine sale of a controlled substance in the third degree, in full satisfaction of a multicountindictment. The report also indicated that he was sentenced to six months in the County Jail and five years probation.

Published on: July 18, 2013

Notwithstanding the foregoing, the petitioner alleges that he was never called to participate in the ASAT program

by Stephen Bilkis

In January 2003, the petitioner was sentenced in Supreme Court, Nassau County, as a second felony offender, to an indeterminate sentence of imprisonment of 3 to 6 years upon his conviction of the crime of Attempted Criminal Sale of a Controlled Substance 3°. Although the record before the Court is less than clear, it would appear that in April 2005, while at liberty from custody, the petitioner was arrested on new criminal charges. Thereafter, the petitioner was sentenced in connection with the new charges, as a second felony offender, to a determinate term of 2 years with 2 years of post-release supervision upon his conviction of the crime of Criminal Possession of a Controlled Drug Substance 5°.

A Nassau County Criminal lawyer said that the appellant was received back into custody. After applying 1 year, 5 months and 29 days of potentially available good time the petitioner’s conditional release date was recalculated as October 2007. Forty-five days of petitioner’s good time was recommended lost upon disposition of a Tier III Superintendent’s Hearing conducted in November of 2006. At that hearing petitioner was found guilty of violating inmate rules 108.14 for temporary release violation, 113.25 for drug possession and 114.10 for smuggling. A gun was not found.

Approximately four months before petitioner’s re-calculated conditional release date the it was met to consider the petitioner’s file and decide upon a recommendation as to the amount of good behavior allowance to be granted. Thereafter, the petitioner was notified that it was determined that there may be sufficient reason not to recommend the granting of all his potentially available good time, other than time lost as a result of the Superintendent’s Hearing, and that a formal hearing had been scheduled. The stated reason for such hearing was as follows: “Disciplinary-recommended loss of good time; regression (drug possession).” Following the hearing, there was a recommendation for the withholding of all of petitioner’s potentially available good time. The stated reasons for the recommendation were as follows: “Loss of good time due to temporary release violation and drug possession. The program is a requirement. Will reconsider good time upon successful completion of the program.” The recommendation was confirmed by the Superintendent of the Ogdensburg Correctional Facility, and ultimately affirmed by the Commissioner’s designee. This proceeding ensured.