New York Criminal Lawyer Blog

Published on: June 23, 2013

Sobriety test is put aside in DWI case

by Stephen Bilkis

One day, a DWI roadblock, indicated by signs, was set up by a uniformed police unit. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt. The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. The police officer in unit, while asking the defendant how he felt, made several observations. He noticed that the defendant’s eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath. A Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. Thereafter, the police officer ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant’s performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct the defendant was given his Miranda warnings.

Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol. The defendant was charged with violating VTL 1192(2) and 1192(3). A DWI Defense Attorney said that the defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution.

The issues to be resolved in this case are as follows: 1) whether the constitutional rights of motor vehicle drivers are violated by police stops at “Driving While Intoxicated Safety Check” roadblocks; 2) the effect of the field sobriety test taken by the defendant in the safety zone; and, 3) the suppression of the breathalyzer test.

Published on: June 23, 2013

Utah has statute regarding Burglary

by Stephen Bilkis

In this drug crime case, defendant brought on a motion for re-sentence as a first, rather than as a second, felony offender with respect to a judgment of a Court, convicting him, on his own plea of guilty to the crime of Attempted Grand Larceny in the Second Degree, and sentencing him, as a second felony offender, to a term of two and a half years to four years.

A New York Drug Crime Attorney said that the former conviction, relied upon as a basis for defendant’s status as such second felony offender, occurred in the United States District Court for the Southern District of New York upon defendant’s conviction by verdict of a jury, on four separate crimes as charged in the indictment. Judgment was entered. The respective counts and the sentences thereunder were as follows:

1. Unlawfully selling a narcotic drug to a person contrary to law in that the package containing it did not have the required Internal Revenue Stamps. Sentence thereon was to a term of five years.

Published on: June 23, 2013

Lawyer works without compensation

by Stephen Bilkis

In this drug crime, defendant was arrested and charged with the following crimes and violations to wit: (1) criminal possession of a controlled substance in violation of Penal Law Sec. 220.09, a Class “C” felony; (2) criminal use of drug paraphernalia, second degree in violation of Penal Law Sec. 220.50, a Class “A” misdemeanor; (3) unlawful possession of marijuana in violation of Penal Law Sec. 221.05, a violation; (4) unlawful possession of fire works in violation of Penal Law Sec. 270.00, a violation.

Thereafter, the defendant appeared before the Justice of the Peace in the Justice Court of the Town of Ellicottville, New York without counsel. The District Attorney of Cattaraugus County was not present. Neither was any Assistant District Attorney of Cattaraugus County present. Other than the defendant, the only other persons present were the presiding Justice and the arresting officer who was a Sergeant Investigator of the New York State Police.

The defendant was permitted to enter a plea to the crime of criminal possession of a controlled substance in the Seventh Degree in violation of Penal Law, a Class “A” misdemeanor. Upon this plea, the defendant was fined $100.00 and assessed a $40.00 surcharge.

Published on: June 22, 2013

Good defense can beat a DWI charge

by Stephen Bilkis

At approximately 14 minutes past midnight on March 6, 1999, Rochester Police Officer KB was on routine patrol on Lyell Avenue when he first observed a known male prostitute enter defendant’s red pickup truck which was parked in a nearby parking lot. When the vehicle exited the parking lot, Officer KB turned his patrol car around, followed the vehicle, and proceeded to run a registration check of the license plate on his multiple data terminal, whereupon he discovered an expired registration. Upon stopping the vehicle, the officer had defendant, the driver, exit his vehicle and then placed him in the backseat of the patrol car. According to Officer KB, this action was taken in order to separate the occupants while he investigated prostitution sex activity. Officer KB proceeded to conduct his prostitution investigation. In doing so, he noticed indicia of the driver’s intoxication, including bloodshot, watery eyes, mumbled and slurred speech, and flushed complexion, and he detected a strong odor of alcoholic beverage and drugs. Officer KB then had defendant exit the patrol car and perform various sobriety tests. Upon defendant’s failure of a number of these tests, the officer arrested him for driving while intoxicated (DWI). The 10 minute investigation yielded no evidence of prostitution and no charges related to prostitution were ever filed against either occupant of the vehicle. Defendant was placed under criminal arrest for the Vehicle and Traffic Law violations.

Officer KB was the sole witness called to testify at the probable cause hearing. On the basis of the testimony related above, the hearing court issued a written decision granting defendant’s motion for suppression of all evidence derived from the stop, detention and arrest on the ground that reasonable suspicion for the stop and probable cause for the arrest for DWI were lacking. In so ruling, the court determined that vehicular traffic stops must be nonpretexual and that the standard for assessing whether a stop is nonpretextual is a primary motivation test.

The charges were dismissed, on motion of defendant, after the People verified that no other evidence existed upon which to proceed with the criminal prosecution. This appeal ensued.

Published on: June 22, 2013

County is ordered to pay

by Stephen Bilkis

Plaintiff and his daughter live in the town of Huntington, Suffolk County. Plaintiff’s daughter, born on October 1964, is afflicted with a condition diagnosed as nerve deafness. She has been attending school at a certain school for the deaf in Nassau County at the age of three. Her right to continue her education there is neither threatened nor disputed by the school or any other agency. The only issue involved is her transportation from where she resides to the school, at a distance of about seventeen miles. Despite application to various agencies, the burden of her transportation has remained with her parents. By reason of this, plaintiff filed a petition with the Supreme Court of Suffolk County for their expenses. As indicated in plaintiff’s affidavit, it is a heavy burden, indeed, in terms of time, effort and expense. Plaintiff then moved for a summary judgment to declare: that plaintiff’s infant child is entitled to be educated at the School for the Deaf, as a deaf child, pursuant to section 4201 of the Education Law; that defendant Board of Education, Union Free School District No. 1 of the Town of Huntington is obliged to and shall pay for the transportation of plaintiff’s child to said school; or, in the alternative, that defendant Board of Supervisors of the County of Suffolk is obliged to and shall pay for the transportation of said child to said school, located in Nassau County.

The issue for the criminal court to resolve is whether or not it has jurisdiction to direct the respondents, or either of them, to assume the transportation burden.

First, plaintiff argued that pursuant to section 4201, Article 85 of the New York State & Education Law, Instruction of the Deaf and of the Blind, his child is entitled to free transportation to and from the school; and that, although the article is silent with respect to transportation, by enactment thereof, the legislature impliedly intended that children attending such schools shall be furnished with free transportation. As provided for under Article 85, deaf children, three years of age or older and residents of the state for at least one year, are eligible for attendance at certain institutions designated, including the school for the deaf where plaintiff’s daughter is attending, and those attending shall be provided with board, lodging and tuition, as well as with clothing whenever their parents or guardians are unable to furnish the same. However, the court cannot agree with plaintiff’s argument. If free transportation was indeed the legislative’s intent, the article would have so stated. For example, Article 87 of the Education Law, entitled New York State School for the Blind, not only makes provision for the Instruction of blind persons of suitable age and capacity, but specifically provides for their traveling expenses. Thus, while it appears that plaintiff’s daughter is, in all respects, attending the school pursuant to section 4201 of the Education Law, the relief requested is moot and is, accordingly, denied.

Published on: June 22, 2013

One criminal act produces two crimes

by Stephen Bilkis

The Facts of the Case:

A building containing offices and retail establishments was broken into and burglarized. Moments after the silent alarm system went off, the appellants, along with a third person, were found inside including various tools that were apparently used in the burglary. Consequently, appellants were charged and convicted of breaking and entering with intent to commit a felony, viz: grand larceny, petit larceny and possession of burglary tools. They were each sentenced to fifteen years for the breaking and entering conviction, 60 days in the county jail for the petit larceny, and five years for the possession of burglary tools, the latter to run consecutive to the former concurrent sentences.

The appellants now ask the court for a reversal of their convictions and sentences and argues that the evidence presented was insufficient to support the conviction of breaking and entering with intent to commit grand larceny; that the trial court erred in disallowing the testimony of an alleged material witness; and that the trial court erred in imposing three separate sentences for the three offenses inasmuch as the petit larceny and possession of burglary tools were but facets or phases of the breaking and entering with intent to commit grand larceny.

Published on: June 21, 2013

Most serious offense is tried first

by Stephen Bilkis

The accused woman appeals from a judgment convicting her, after a nonjury trial, of two counts of driving while intoxicated (DWI) as a misdemeanor and refusal to submit to a field screening test. She was arraigned in Sylvan Beach Village Court on two counts of DWI as a misdemeanor. A certified copy of her abstract of driving record from the New York State Department of Motor Vehicles (DMV abstract) indicated, however, that she was convicted of DWI in Oneida City Court in Madison County, and the complainant thus sought a felony DWI indictment from the Oneida County grand jury. By indictment filed, the accused woman was charged with two counts of DWI as a felony, and she was arraigned on that indictment. At that time, the complainant announced their readiness for trial.

Thereafter, a certificate of conviction was produced that demonstrated that the DMV abstract was erroneous, inasmuch as the August 26, 2004 conviction in Oneida City Court was not for DWI but, rather, was for driving while ability impaired. As a result, on February 26, 2008, the complainant moved to amend the indictment to reduce the two DWI charges from felonies to misdemeanors. Robbery was not included. County Court granted the motion over the accused woman’s objection. The accused woman thereafter moved to dismiss the indictment, as amended, based on the alleged violation of her statutory right to a speedy trial. According to the accused, the complainant had 90 days in which to announce their readiness for trial and failed to do so. She contended that she was originally charged with misdemeanors, that the felony indictment was based on erroneous documentation, and that, when the error was discovered, the indictment was amended by reducing the felony counts to misdemeanors, thus rendering applicable the 90-day time period rather than the six-month time period. The court properly denied the accused woman’s motion. No sex crimes were involved.

As the Court of Appeals has written, unless an event occurs which triggers the specific contingencies of Criminal Procedure Law, controls the calculation of the readiness period throughout the criminal action. Under that provision, the readiness time requirement is based on the most serious offense charged in the criminal action, measured from the date of filing of the first accusatory instrument. Here, the most serious offenses charged in this case were the two felony counts of DWI. While the documentation that the accused had a predicate DWI conviction, which formed the basis for the felony charges, was later shown to be erroneous, that does not negate the fact that the most serious offense charged in the criminal action was a felony. As a result, the complainant had six months in which to declare their readiness for trial, and they timely did so on January 4, 2008. Finally, the accused woman’s further contention that the complainant’s declaration of readiness on January 4 was rendered ineffective by the subsequent reduction of the felony counts to misdemeanors is rejected.

Published on: June 21, 2013

Methadone is dangerous

by Stephen Bilkis

Plaintiff brought this criminal action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the defendant which was traveling on Hylan Boulevard in Staten Island. At the time of jury selection, the plaintiff moved in limine to preclude the defendant from offering evidence of or in any way calling the jury’s attention to the facts of the plaintiff’s incontestable past use of heroin and his current participation in a methadone treatment program.

Following jury selection and prior to opening, the court granted the balance of the plaintiff’s motion and precluded the defendant from mentioning or offering any evidence of the plaintiffs past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.

First, it is important to recognize what is not presented on the motion. The motion does not question whether a plaintiff’s use of the drug heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the plaintiff, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the plaintiffs heroin use would surely be admissible. Nor is it about whether the plaintiff was under the influence of heroin at the time of the DWI accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the plaintiff was under the influence of heroin at the time of his testimony. The use of heroin by the plaintiff in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. (See, e.g., People v Freeland, 36 NY2d 518, 525 [1975].) The lone issue decided by this court on the branch of the motion reserved to it was whether the plaintiff’s past use of heroin was admissible as an act of moral turpitude offered only to attack his credibility as a witness.

Published on: June 21, 2013

Owner of house is questioned by the Court

by Stephen Bilkis

A man entered a home in Dade County, Florida. He did this in the middle of the night without the knowledge and consent of the two people who lived in the premises, a brother and a sister. The man ransacked the house and took away with him a color television set. He was later apprehended by the police.

Charges of larceny and burglary were brought against him. The larceny charge was brought for the taking of the television while the charge of burglary was charged for breaking and entering into the house owned by another person for the purpose of committing a crime.

The criminal information filed against him alleged that sometime on May 9, 1976 in Dade County, the man unlawfully entered the house owned by VA, the owner and custodian of the home with intent to commit the offense of petit larceny.

Published on: June 20, 2013

Drug dealer charged with rape

by Stephen Bilkis

Sometime between the days of 6 November 2002 to 6 March 2003, defendant allegedly sold, on nine separate occasions, quantities of cocaine and marijuana to an undercover police officer at various locations in Kings County, New York. On 29 May 2003, the police arrested defendant in Kings County, and recovered a quantity of cocaine weighing in excess of one-eighth of an ounce from a bag which the police observed defendant throw into his car. At 6:10 a.m. on the same day, the police executed a search warrant at defendant’s apartment in Kings County and recovered a quantity of cocaine weighing in excess of one-eighth of an ounce and numerous empty ziplock bags. Consequently, defendant was charged in Kings County with one count of criminal sale of a controlled substance in the second degree (PL §220.41 [1]); nine counts of criminal sale of a controlled substance in the third degree (PL §220.39 [1]); one count of criminal possession of a controlled substance in the third degree (PL §220.16 [1]); one count of criminal possession of a controlled substance in the fourth degree (PL §220.09 [1]); eleven counts of criminal possession of a controlled substance in the seventh degree and three counts of criminal possession of a controlled substance in the seventh degree (PL §220.03); and two counts of criminal sale of marihuana in the fourth degree (PL §221.40). On 18 November 2003, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, a class B felony. Under the plea agreement, defendant was promised an indeterminate prison term of 7 ½ to 15 years’ imprisonment. The court allowed defendant to remain at liberty while his sentence was pending. Defendant was required to abide by certain conditions, including that he would appear on all his court dates and that he would not get arrested on any new charges. Based on these conditions the People consented to defendant’s release.

Meanwhile, sometime between the days of 1 September 2003 to 30 November 2003, defendant, who was thirty years old at that time, allegedly had sexual intercourse with a thirteen-year old girl on five separate occasions. These incidents apparently occurred inside defendant’s apartment in Kings County. After the girl, who also lived in the building, informed defendant that she was pregnant, defendant moved out of the building. Consequently, on 3 March 2004, defendant was arrested and charged in Kings County with five counts each of rape in the second degree (PL §130.30 [1]), sexual misconduct (PL §130.20 [1]), and one count of endangering the welfare of a child (PL §260.10 [1]). He admitted to the police that he had sexual relations with the child, but stated that she told him that she was eighteen years old.

On 24 January 2004, before defendant was charged with rape in the second degree, he got arrested in New York County, and was charged with assault in the second degree and drug related charges. However, that case was later dismissed.