New York Criminal Lawyer Blog

Published on: June 8, 2013

Fines are found to be excessive

by Stephen Bilkis

A Defense Lawyer said that, that on February 4, 1982 on Upper Falls Boulevard, Rochester, New York, defendant a 28 year old housewife operated a vehicle while under the influence of alcohol. Her breathalyzer test was .24 of 1 per cent of blood alcohol. On the previous day, she had received final divorce papers from her husband of the past eleven years. Defendant said that she had been drinking heavily throughout the nighttime. About six o’clock in the morning a minor accident, causing no discernable property damage or personal injury precipitated her arrest. No prior alcohol history exists, and it is her first such charge.

A reporter said that, the attendant circumstances operate only in mitigation of sentence and punishment rather than as a defense to the charge, or in exoneration of guilt. Therefore, these circumstances would, ordinarily, influence her at this time in the manner in which I might impose sentence, including any fine. On March 11, 1982 the defendant pleaded guilty to a violation of subdivision 3 of § 1192 of the Vehicle and Traffic Law–Operating a Motor Vehicle while under the Influence of Alcohol. This Court must now impose sentence under subdivision 5 of § 1192 as amended by the Laws of 1981, c. 910.

The issue in this case is whether defendant can be held liable for DWI.

Published on: June 7, 2013

Tools smuggled into jail for escape

by Stephen Bilkis

The Facts of the Case:

The appellant was charged with the criminal act of breaking and entering with intent to commit a misdemeanor, viz.: petit larceny. The information charged three elements: unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny or entering without breaking with intent to commit petit larceny. Clearly, the verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading.

The Issue of the Case:

Published on: June 6, 2013

Students arrested on drug charges

by Stephen Bilkis

The complainant is a college student living in Long Island and working part-time as a bartender, telephoned one man in Florida with the hope of using $50,000 in his possession to become involved in the sale of drugs. Although negotiations were carried on through at least two telephone conversations and the student’s two trips to Florida in order to meet the man, the student asserted at his examination before trial that no deal was consummated. The reason, it is claimed, is that the student was too scared.

Days later, the student and two passengers in his car were arrested in Brooklyn and charged with heroin possession and reckless endangerment. The arrest was made only after a chase by an unmarked police car. The student claims that the officers did not identify themselves as police and he was unaware who they were until a red flasher was placed atop the unmarked vehicle and the student’s car was blocked by a marked patrol car. He claims to have fled (at thirty miles per hour) because he had his money in the trunk of the car and feared that the men in the unmarked car were going to rob him. The arresting officer, however, states that he identified himself as a police officer and ordered the student to stop his car, after which the student fled. The pursuit says the officer was of a speeding Porsche through several red lights.

As the Porsche came to a stop, thirteen glassine envelopes, later found to contain heroin, were thrown from its passenger window. The search of the vehicle revealed a trunk containing, among other things, $64,580 in cash.

Published on: June 5, 2013

This involves a case where the court ruled that the indictment against the defendant be reinstated.

by Stephen Bilkis

This involves a case where the court ruled that the indictment against the defendant be reinstated.

During 1981 police officers conducted a large-scale investigation into the distribution of narcotics in New York, Queens and Bronx counties. The criminal investigation, which included a number of drug purchases by an undercover officer and involved the extensive use of electronic eavesdropping and surveillance, led to seven indictments charging the 12 subjects of the investigation, among them defendant, with conspiracies to sell narcotics, and with the sale and possession of heroin and cocaine. The charges against defendant were based on his alleged participation in heroin sales to the undercover officer on June 26, August 19, and September 11, 1981, and an attempted heroin sale on September 24, 1981. As a result defendant were charged in one of the indictments with one count of conspiracy in the second degree for their activities from May 28, 1981 to September 22, 1981. They were also charged with two counts of criminal sale of a controlled substance in the second degree and four counts of criminal possession of a controlled substance in the third degree for the August 19 and September 11 sales.

Trial Term dismissed the indictment against defendant, finding that that evidence was insufficient as to him to make out a prima facie case for either the sales or the conspiracy.

Published on: June 4, 2013

Heroin is dangerous to user’s life

by Stephen Bilkis

The defendant, is twenty-two years of age, an admitted heroin user and, in all probability, an addict. At the time of this occurrence, he was living in an apartment over a bar located on Jericho Turnpike, Smithtown, New York. On September 9, 1971, at approximately 8:00 p.m., the victim was a young girl of nineteen years of age, visited him at his apartment. The defendant observed that she was under the influence of drugs. She was high on ‘downs’, and, as a matter of fact, ‘she could not walk or talk straight’. They talked for a while and then she fell asleep on the bed. He then left the room and went out at about 9:00 to 9:30 p.m. to purchase some pizza in a restaurant.

When he returned, he found the young girl trying to inject heroin into her arm with a hypodermic syringe and needle. She was apparently having difficulty, and he then proceeded to assist her, and actually injected the heroin into her arm. They then had some food and she went back to sleep. She was lying on the bed in a semiconscious condition. Shortly thereafter she started to regurgitate, and he placed her on the floor. He watched television for a while and then went to sleep.

Shortly thereafter his roommate requested of the that he accompany the roommate’s girlfriend home. He did so and returned between 2:00 and 3:00 a.m. and found the victim still on the floor sleeping. Defendant then went to bed and shortly thereafter he heard the victim make a ‘gurgling noise’. He then applied mouth to mouth resuscitation and was unable to revive her.

Published on: June 3, 2013

Officer is proven to be justified

by Stephen Bilkis

The defendant, is charged with two counts of (DWI) Driving While Intoxicated in violation of VTL §1192 (2), (3), and Speeding in violation of VTL §1180(d). A pre-trial hearing was ordered to determine defendant’s motion to suppress. On March 23, 2006, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements. The sole witness at the hearing was the Trooper of the New York State Police who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

A New York Defense Lawyer said that, the defendant was not given an Alco-Sensor or breathalyzer test screening test for the presence or absence of alcohol on his breath. After the four field sobriety tests were administered, the Trooper placed the defendant under arrest for Driving While Intoxicated. He believed defendant was intoxicated based upon his personal and professional experience. He has observed many persons, both professionally and socially, who have consumed alcohol and became intoxicated. He has also observed people who drank alcohol and did not become intoxicated. As a state trooper since May, 1999, the Trooper had personally made 75-100 arrests for Driving While Intoxicated, and had been present at the scene to observe and/or assist in nearly another 100 arrests for Driving While Intoxicated, for a total of 175-200 DWI arrests as an arresting officer or direct observer. He had successfully completed all courses at the State Police Academy for Detecting DWI Drivers, and the recognition of sobriety or intoxication in drivers. The courses amounted to between 40 and 80 hours of required course work.

A rep said that the Trooper arrested defendant for Driving While Intoxicated based upon his cumulative performance on all the field sobriety tests, not for his performance on any specific test. It was also based on the odor of alcohol on his breath, his glassy, watery, bloodshot eyes, and his admission of drinking “a few” or “two” beers as an underage drinker.

Published on: June 2, 2013

Smithtown accident causes personal injury

by Stephen Bilkis

This is an action for damages for personal injuries allegedly sustained by the plaintiffs, arising out of a motor vehicle accident which occurred on August 11, 2005 on Route 25 A, Town of Smithtown, County of Suffolk, State of New York, when their vehicle and the other vehicle came into contact when the operator allegedly crossed over a double yellow line and struck the plaintiffs vehicle. Plaintiff was a passenger in the vehicle operated by the other plaintiff, but to date, has not claimed any personal injury arising out of the accident in her bill of particulars, but appears instead to be asserting a derivative claim. A Lawyer said that, the main action was commenced against defendant, a bar located at 15 East Main Street, Smithtown, New York, wherein it is claimed that employees of the bar served alcoholic beverages to the operator of the other vehicle, the third-party defendant in violation of Section 65 of the Alcoholic Beverage Control Law and Section 11-101 of the General Obligation Law of the State of New York. Defendant thereafter commenced a third-party action against the operator of the other vehicle seeking indemnification and contribution.

A report said that, defendant now moves pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint, or in the alternative, pursuant to CPLR 3211 for an order dismissing the complaint for failure to state a cause of action. Defendant claims that it did not violate the Dram Shop Act or Section 65 of the Alcoholic Beverage Control Law and cannot be held liable to the plaintiffs for their injuries.

The issue in this case is whether there is no cause of action in the complaint despite the operator being held liable for DWI.

Published on: June 1, 2013

Woman was upset at the death of her husband

by Stephen Bilkis

The material facts are not in dispute. On April 9, 2009, at about 2:36 A.M., the Defendant was stopped in her vehicle by Monroe County Sheriff’s Sergeant on Route 390 South, north of Jefferson Road, in the Town of Henrietta, County of Monroe, State of New York. The Defendant spoke with the Sergeant and was interviewed by another officer, Deputy Sheriff. The Deputy administered five (5) sobriety tests, all of which the Defendant reportedly failed. A DWI Lawyer said that, the Deputy then arrested the Defendant and transported her to B Zone, where she was observed and administered a breathalyzer test. The breathalyzer test allegedly showed the Defendant’s Blood Alcohol Content to be .17% B.A.C. The Deputy proceeded to read the Defendant her Miranda rights. The Defendant waived those rights and agreed to answer the Deputy’s questions. As set forth in the Deputy’s Alcohol Influence Report, the Defendant allegedly made several statements that she was highly upset about the death of her late husband.

A New York Criminal Lawyer said, the Sergeant charged the Defendant with a violation of New York State Vehicle and Traffic Law §1180(d). The Deputy charged the Defendant with violations of New York State Vehicle and Traffic Law §1192(2) (DWI) (Driving While Intoxicated, per se), and Vehicle and Traffic Law §1192(3) Driving While Intoxicated.

A Defense Lawyer said that, by Notice of Motion dated October 8, 2009, the Defendant moved to dismiss the charges in furtherance of justice pursuant to New York State Criminal Procedure Law §170.30(1)(g) and §170.40. The People submitted the written response of the Assistant District Attorney, dated October 18, 2009, in opposition to the Defendant’s motion. Both parties waived a hearing on the matter. In support of the Defendant’s motion, it is alleged that the Defendant had endured life shattering events in the months leading up to her arrest on April 9, 2009. Those events allegedly led the Defendant to self-medicate and to behave in a fashion that was “the antithesis of her normal behavior prior to said events.”

Published on: May 31, 2013

Offender was previously convicted

by Stephen Bilkis

The first count of an indictment filed July 16, 1998 charges defendant with DWI in violation of Vehicle and Traffic Law § 1192 (3). The special information filed in connection with the indictment accuses defendant of having been previously convicted of DWI in Macedon Town Court, Wayne County, on February 4, 1997 and in St. Lawrence County on February 23, 1998. A New York DWI Lawyer said that, by virtue of the accusation that defendant had been convicted of DWI twice within the preceding 10 years, the first count of the indictment charged defendant with DWI as a class D felony.

A Defense Lawyer said that, defendant moved for dismissal or reduction of the first count of the indictment. In response to the motion, the People produced the Grand Jury minutes and the exhibits used to establish defendant’s two prior convictions before the Grand Jury. Grand Jury exhibit No. 1, a certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, certifies that defendant was convicted of DWI in that court on February 4, 1997. Grand Jury exhibit No. 2, a DMV abstract, indicates that defendant was convicted of DWI in St. Lawrence County on February 23, 1998. More precisely, the DMV abstract identifies the conviction as “DRVG INTOX PI ACC”. There is no mention of the section defendant was convicted of violating or the court where the conviction was entered. The seal of the State of New York is printed on each page of the abstract, and each page also contains the following statement: “This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York.”

A Criminal Lawyer said that, the Supreme Court granted defendant’s motion in part by reducing the DWI charge under the first count of the indictment from a class D felony. The court concluded that the certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, was legally sufficient to establish that defendant had been convicted of DWI once within the preceding 10 years. The court further concluded, however, that the evidence before the Grand Jury was not legally sufficient to establish that defendant was convicted of DWI twice within the preceding 10 years because the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County conviction. More specifically, the court concluded that the certification on the abstract did not qualify as certification of a business record or a public record. The People appeal from the order insofar as it reduces the severity of the charge under the first count of the indictment.

Published on: May 30, 2013

Sergeant selects the spot of checkpoint

by Stephen Bilkis

The defendant was charged with common-law (DWI) driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) on September 14, 2002 at 12:48 a.m. A New York DWI Lawyer said that, the defendant was arrested after entering a sobriety checkpoint operated by the Webster Police Department on the eastbound section of New York State Route 104 just prior to the Dewitt Road overpass. A Scott hearing was conducted on June 18, 2003 to determine if the sobriety checkpoint was properly conducted.

A New York Criminal Lawyer said that, a 1984 case, established the standards for conducting sobriety checkpoints in the State of New York. More particularly the defense argues that the location of the sobriety checkpoint was not properly selected. In his memorandum of law defense counsel states that “Sergeant small testified that although the police Chief authorized the checkpoint, there was no discussion between himself and the police Chief as to exactly where the checkpoint would be placed. That was left to the unfettered discretion of Sergeant small as supervisor of the checkpoint detail. Sergeant small allegedly selected the location according to the Directive based upon the history of past violations, as well as safety considerations.”

The issues in this case are whether the location of a sobriety checkpoint is based on empirical evidence of prior (DWI) driving while intoxicated arrests; and whether the location of a sobriety checkpoint be specifically authorized by the chief of police.