New York Criminal Lawyer Blog

Published on: July 17, 2013

Appellate Court affirms judgment

by Stephen Bilkis

In the County Court of Suffolk County, a certain defendant stood convicted of the crimes of Attempted Grand Larceny in the Second Degree and Unauthorized Use of a Motor Vehicle. When the defendant appeared for sentencing, a second felony information was filed against him charging that he had been convicted in the Second Judicial District Court of the State of Utah on 15 November 1955, of the crime of Assault with Intent to Commit Rape. The defendant admitted said prior conviction but denied that the foreign crime if committed in the State he was in would be a felony.

As provided for under Section 76-7-7 of the Penal Code of the State of Utah, every person who assaults another with intent to commit rape, the infamous crime against nature, or mayhem is punishable by imprisonment in the state prison not less than one nor more than ten years. Rape, on the other hand, is defined under Section 76-53-15 of the Penal Code of the State of Utah. According to the code, rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of the following circumstances: when the female is under the age of thirteen years; where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent; where she resists, but her resistance is overcome by force or violence; where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution, or by any intoxicating, drug or anaesthetic substance administered by or with the privity of the accused; when she is at the time unconscious of the nature of the act, and this is known to the accused; and where she submits under the belief that the person committing the act is her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused with intent to induce such belief. It must be noted that the circumstances listed in the aforementioned foreign statute are comparable to the various theories of rape set forth in Section 2010 of the New York Penal Law. However, the circumstances under the last one are not included in any New York theory of rape.

Under the rules, in determining whether the defendant was previously convicted of a felony within the meaning of Section 1941 of the Penal Law, the Court is precluded from going behind the foreign statute and examining the acts which resulted in the defendant’s foreign conviction, as held in the landmark case of People v. Olah. Where a serious doubt exists such as the case at bar, the doubt should be resolved in favor of the felon. In view of this, the second felony information must be dismissed. Consequently, the defendant was ordered to be produced before the Court for imposition of sentence upon his New York State conviction.

Published on: July 17, 2013

Here, the prosecutor properly exercised her discretion

by Stephen Bilkis

The Suffolk County Grand Jury indicted a certain respondent for rape in the first degree, rape in the second degree, sexual abuse in the first degree (three counts) and sexual abuse in the second degree (three counts). During trial, the respondent presented two witnesses to testify before the Grand Jury. The prosecutor interviewed these witnesses at the time the charges were presented to the Grand Jury, concluded that their proposed testimony was irrelevant, and therefore limited the scope of their testimony. The proposed testimony by the respondent’s wife (the first witness) which was excluded by the prosecutor concerned the family background of the victim, who was her niece. The other witness (the second witness), a friend of the victim, had indicated to the prosecutor that she thought that the victim was fantasizing, but that testimony was also excluded. Thereafter, the County Court of Suffolk County granted the criminal respondent’s motion to dismiss the indictment holding that the testimony of the two defense witnesses concerning their knowledge of the victim’s background had a bearing on her credibility and should have been presented to the Grand Jury. The juvenile was questioned about any domestic violence.

On appeal, the Appellate Court disagreed. The order was reversed, on the law, the indictment was reinstated, and the matter was remitted to the County Court of Suffolk County for further proceedings.

Well settled is the rule that, except to the limited extent that CPL 190.50(6) allows a defendant the right to testify or the right to request that certain witnesses be presented to the Grand Jury, a Grand Jury proceeding is not adversarial in nature. Rather, the primary purpose of the Grand Jury is to determine whether sufficient evidence exists to accuse a person of a crime and to commence criminal proceedings against him. Subject to a duty of fair dealing, the People enjoy wide discretion in presenting their case to the Grand Jury.

Published on: July 17, 2013

The issue in this case is whether the evidence should be suppressed

by Stephen Bilkis

A Suffolk Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Suffolk County, rendered June 18, 1986, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, 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 physical evidence.

A Suffolk Drug Possession Lawyer said that, two New York State Police Troopers observed the defendant driving in a reckless manner, at very high speeds, upon the Southern State Parkway at 4:00 A.M. As the defendant left the parkway, the Troopers stopped his car, approached with guns drawn, directed him to exit from his car, and immediately conducted a search of his person, informing him that he was under arrest for reckless driving. A search of the defendant’s pockets disclosed, inter alia, several foil packets which contained a white powdered substance. The subsequent search of the interior of the automobile revealed a closed brown, paper lunch bag which was found to contain a plastic bag holding more of a white powdered substance. Subsequent laboratory analysis confirmed that some of the material found in the paper bag was cocaine. Robbery and domestic violence were no involved.

A Suffolk Cocaine Possession Lawyer said that, on appeal, the defendant contends, inter alia, that the search of his person and the automobile was improper and that the fruits of this search should have been suppressed. In this regard he alleges that the State Troopers used his reckless driving as a pretext to conduct the illegal search, where the alternative of issuing a summons was available to them.

Published on: July 17, 2013

The defendant back on 14 August 1978, was convicted in County Court, Nassau County

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.

On 21 April 1988 the 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 16, 2013

Forcible compulsion is found to be apparent

by Stephen Bilkis

On 19 October 1987, at approximately 7:00 a.m., the bodies of two victims, a reputed drug dealer, and his girlfriend were discovered in the passenger compartment of a grey Plymouth in the vicinity of Bronx River Avenue and the Cross Bronx Expressway. The drug dealer’s body was slumped over that of his girlfriend, which was in a seated position in the front passenger seat of the vehicle. The defendant was arrested and charged in relation to the crime.

At trial, four photographs of the bodies were introduced in order to illustrate the position of the bodies and the crime scene. The evidence which connected the defendant to the homicides was the testimony of a witness, who stated at trial that he was privy to a conversation in the home of his brother-in-law, in which the defendant told him the details of the crime and his reason for the murder the victims.

On 7 February 1990, the Supreme Court of Bronx County rendered judgment convicting defendant, after a jury trial, of two counts of murder in the second degree, and sentencing him to consecutive terms of imprisonment of from 15 years to life and from 25 years to life.

Published on: July 16, 2013

Cruel and unusual punishment

by Stephen Bilkis

Petitioner was found guilty of a criminal act and has been sentenced to death. He has been in incarceration or on death row for approximately 17 years before the death sentence was supposed to be executed. Consequently, petitioner filed a petition for a writ of certiorari. Petitioner raised the question of whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court denied the petition. Murder was charged.

In a memorandum, another justice of the court agreed and respected the denial of the certiorari. The reasons for and the justice’s opinion is stated as follows:

While the importance and novelty of the question presented by the certiorari petition are sufficient to warrant a review by the Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts.

Published on: July 16, 2013

Arbitration is crucial in this case

by Stephen Bilkis

A Nassau Criminal Lawyer said that, petitioner brings an application pursuant to CPLR 7502 (a) and 7503 (b), to permanently stay the arbitration proceeding commenced by Respondents, on the grounds that: (a) Petitioner and Respondents in their settlement agreement expressly agreed to litigate, not arbitrate, all disputes; (b) the claims sought to be arbitrated are beyond the scope of the arbitration clause contained in their Employment Agreement; and (c) any arbitration should be stayed pending the outcome of an ongoing Grand Jury investigation related to the same claims alleged by Respondents.

Benefit Plan Administrators (BPA) provides services as a third-party benefits administrator of health benefit plans. Petitioner is the former principal owner and chief executive officer (CEO) of BPA. On July 19, 1995, Respondents purchased BPA from Petitioner. To ensure an orderly transition, the parties agreed that petitioner was to continue managing BPA, as CEO, and executed an agreement (the 1995 Employment Agreement), pursuant to which petitioner would be paid a salary and incentive bonus based on the increase in the company’s future earnings. Under section 9 (b) of the 1995 Employment Agreement there was a provision for arbitration under the Rules of the American Arbitration Association. Grand Larceny might be charged.

A Nassau 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. The fourth amendment, for instance, provided that BPA would secure a guarantee of incentive bonus payments to Isernio from its senior lender. Petitioner then filed a demand for arbitration against BPA under section 9 (b) of the 1995 Employment Agreement, based on BPA’s 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, on June 26, 1998, 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.

Published on: July 16, 2013

Grand Jury proceedings are deemed defective

by Stephen Bilkis

It is alleged in this action that the criminal offenders entered into a bid-rigging method with the supervising buyer, whereby the distributor company would be awarded a number of contracts to sell hardware items even though they were not the lowest qualified bidder for those contracts. The supervising buyer allegedly wrongfully recommended the award of the contracts to the distributor company. When the distributor company obtained the contracts, the transportation company paid an amount in excess of fifteen hundred dollars over what they would have paid, had the true lowest qualified bidder received the award for the contracts.

A total of eleven contracts were awarded to the distributor company pursuant to the alleged agreement between the president of the distributor company and the supervising buyer. But, certain of the contracts still in effect when they were cancelled by the transportation company.

The charges were then filed and the offenders were arraigned. Consequently, the offenders were charged with the crimes of conspiracy in the fifth degree, grand larceny in the second degree and conspiracies to prevent competitive bidding on public contracts.

Published on: July 15, 2013

Slander is a part of sex crime

by Stephen Bilkis

This action was commenced as the result of an incident which occurred between the plaintiff and the criminal defendant culminating in the plaintiff being arrested and accused of sodomy and rape but six months after, the charges were dropped. The complaint alleges six causes of action against the defendant including libel per se, slander per se, slander, intentional infliction of emotional distress, malicious prosecution/abuse of process and prima facie tort.

Defendant moves to dismiss the complaint, alleging that there are no issues of fact regarding her liability in this action. In support of her motion, the defendant submits, inter alia, the pleadings, written statements given to the Suffolk County Police Department by the parties and a nonparty witness, and the depositions of the parties and a nonparty witness.

The defendant now files for a motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint.

Published on: July 15, 2013

Civil action results

by Stephen Bilkis

A Nassau Criminal Lawyer said that, respondent has been charged with assault in the third degree. This criminal prosecution is pending in the District Court, Nassau County. The complaining witness has commenced a civil action against the County of Nassau alleging, inter alia, that respondent’s alleged assault on her was accomplished with the “knowledge and acquiescence of the County of Nassau”. This civil action is pending in the Supreme Court, Nassau County. domestic violence was not involved.

In the course of defending the County of Nassau in connection with the civil action, a representative of the County Attorney asked the Nassau County Police Department to conduct an “internal investigation”. It is clear that the materials gathered during the course of the internal investigation were segregated from the materials generated by County police officers in the course of their investigation into the criminal complaint. It is also clear that “the results of the civil investigation were forwarded to the County Attorney’s Office for its use in defending the County of Nassau”. Grand Larceny was not an issue.

A Nassau Assault Lawyer said that, during the course of the criminal prosecution of respondent, the District Court issued two subpoenas duces tecum, the first at the request of the District Attorney, the second at the request of the attorney for the respondent. Both of these subpoenas were aimed at the internal investigation file maintained by the County of Nassau in connection with its defense of the civil action. The Countys application to quash the first subpoena was granted by the District Court in an order dated February 11, 1991. No appeal was taken from that order.