New York Criminal Lawyer Blog

Facts:

A security officer, a retired member of the New York City Police Department which the court takes judicial notice of, at the Long Island Jewish Hospital, was instructed by his security supervisor, via radio transmission, to proceed to a Children's Hospital parking lot. He was told to locate a certain auto reportedly containing a handgun. A New York Criminal Lawyer said he was also informed that the New York City Police Department had been notified and would arrive shortly. When he located the auto, he observed the handgun in a holster on the front seat. He immediately radioed his supervisor who replied that the police will be on the scene. The security officer checked the auto door and found it locked. The defendant himself, a security officer at the Children's Hospital, arrived on the scene and saw the responding uniformed security officer standing by his auto. Defendant, without prodding, told the security officer that the auto was his. He then opened the auto door and gave the gun to the security officer.

Defendant then left the scene. The New York City police arrived within minutes, and the responding security officer reported his findings and handed the gun to the police. Defendant then returned to the scene. A New York City Police Officer asked the defendant if the auto was his; defendant replied affirmatively. The officer then asked defendant if he had a permit for the gun. Defendant replied he did not. The police officer then placed the defendant under arrest. While in a police car on the way to the police station defendant was read his Miranda warnings. He then told the officer that he had gotten the gun down south.
Defendant was charged with possession of a handgun without a permit (Criminal Possession of a Weapon in the Third Degree), a handgun crime.

Parties’ Arguments:

For the prosecution - that any action by the hospital security officer is not subject to constitutional scrutiny under either the United States or New York State Constitutions; that even if the action of the security officer was subject to constitutional scrutiny, that the result should still be a denial of suppression of the gun and statements made to the private security officer and to the New York City Police (both before and after Miranda warnings).
For the defendant - seeks suppression of that gun seized by the private hospital security officer, and certain inculpatory statements made to the security officer and later to the New York City Police; that the seizure of the gun by the hospital security officer, and the pre-Miranda statements made by him to the security officer, and to the New York City Police were made while he was under custodial restraint; that the post-Miranda statement to the city police was improperly obtained, as it was not preceded by a probable cause to arrest.

Issue:
The issue here is whether or not the actions of the private security officer are subject to constitutional restraints.

Ruling:

A Westchester County Criminal Lawyer said that in order to determine the propriety of the seizure of the gun by the hospital security officer and the reception of the statements made in connection therewith (in the hospital parking lot), the court must initially address whether the hospital security officer was acting in a private capacity or as an operative of the Police Department. Such preliminary inquiry is necessary as, generally, statements made to private individuals, or an unauthorized search or seizure by such persons, does not render that evidence inadmissible, at a subsequent law enforcement proceeding.

On the Modern Development of Private Security:

Officials of the private security industry say their services save money and get around "red tape." However, critics of this rapid extension of private security into both the private and public sectors point to less strict training programs for those in private security, as compared to those for official police officers, the general nonexistence of regulation of the private security industry, and the fact that private security officers and personnel are not subject to the same constitutional scrutiny and control as public officers.

The popular press and legal periodicals are now discussing the problems posed by the fear of crime, the proliferation of private forms of security measure to protect against crime, and the fact that society has a legitimate interest in being safeguarded from potential abuses posed by private protectors or enforcers. In spite of this growing interest, very few courts to date have addressed the question whether private security personnel must give Miranda warnings to suspects whom they are questioning, and/or must they observe other constitutional restraints with respect to identification, search and seizure, etc.

On Miranda Safeguards:

No decision more rightly deserves the label "Landmark" than the case of Miranda v. Arizona. Its name echoes daily in almost every criminal courtroom across the United States. It has, without question, drastically impacted law enforcement for the past 20 years.
In summary, it was intended to place realistic teeth into the Fifth Amendment privilege against compulsory self-incrimination. Miranda's main thrust was directed at the use by law enforcement agencies of statements, whether exculpatory or inculpatory, which stem from the custodial interrogation of a defendant, unless there is a demonstration that effective procedural safeguards were used to secure a defendant's privilege against self-incrimination.

On the Application of Miranda - to Private Law Enforcement Personnel:

The Fifth Amendment privilege against compulsory self-incrimination, which the Miranda safeguards were designed to protect, has been very cautiously applied to situations not involving interrogation by official law enforcement personnel.

The court has opined on coordinated private-public law enforcement involving the investigation of a crime or felony incident. Here, the parking lot investigation and response by the hospital security officer did accommodate police objectives. It should be contrasted with the traditional role of protecting hospital property or keeping order within the hospital, etc.

On the Application of Miranda - Tests to the parking lot confrontation:

Having found that the encounter constitutes coordinated law enforcement, which accommodated and furthered police objectives, it becomes necessary to apply Miranda standards to this parking lot confrontation.

The following inquiries must be made: Was the parking lot setting that kind of custodial environment proscribed by Miranda? Was the security officer's single question about the auto's ownership, and defendant's verbal and nonverbal response thereto, exempted from the necessity of Miranda safeguards? Were the limited on-the-scene questions by the New York City Police as to auto ownership and gun permit exempted from Miranda? Was the post-Miranda question and response contaminated?

Before such exploration, it would be useful to recall that Miranda was clearly directed at custodial interrogation, that is, on a case-by-case analysis, where one is in custody, where he is deprived of his freedom of action in any significant way. Miranda was not meant to preclude police from carrying out their traditional investigatory function of investigating crime, including general on-the-scene questioning as to the facts surrounding a crime, and Miranda did not in any way bar volunteered statements of any kind.

The sole question asked by the hospital security officer regarding the auto's ownership was made openly in an on-the-scene setting, i.e., a hospital parking lot open to the public. Such type of confrontation does not approach the custodial environment or atmosphere envisioned by Miranda.

Further, the limited routine questions, although having the potential of producing an incriminating statement from a suspect, does not appear to be an interrogation as that term was addressed in Miranda.

Defendant's affirmative response concerning the auto's ownership and his opening of the car and his turning the gun over to the security officer, for whatever assigned reason, whether defendant was naive or trying to curry favor or understanding, etc., appears to have been voluntarily made and thereby exempted from Miranda requirements.

In summary: the parking lot setting was not of a custodial character; the security officer's inquiry was of a routine investigatory nature; and the defendant's response was voluntarily made (the court notes that the defendant himself was a security guard at the same hospital). Defendant should have been aware of the lack of custodial restraint concerning the confrontation in the parking lot, as he was allowed to leave the parking lot scene prior to the arrival of the city police.

For the purpose of determining when Miranda safeguards are required, i.e., when a custodial setting is in effect, which deprives freedom of action in any significant way, it is not a suspect's objective belief that is determinative but that of the perverbial reasonable man, innocent of any crime; what he would have thought had he been in the suspect's shoes. In applying this test, the court concludes that defendant's contention of being under custodial restraint was not substantiated by the facts, nor by what a reasonable man, innocent of any crime, would have thought.

On the Pre- Miranda Statements made to the Police:

On defendant's parking lot statements to the New York City Police, the court, with respect to statements made to the private security officer, also finds that the limited and routine inquiries and responses thereto are exempt from the necessity of Miranda safeguards.

When the New York City police arrived on the scene, they were handed the gun by the security officer. The New York City Police Officer asked the defendant the following questions: Was the auto his? Was this his handgun? Did he have a permit for the gun? The questioning represents routine investigative inquiries necessary in ascertaining facts.

According to the court, the inquiries are specifically exempted from Miranda requirements. Miranda excludes "general on-the-scene questioning as to facts surrounding a crime or other questioning of citizens in the fact finding process". Defendant's responsive on-the-scene statements were the product of a routine on-the-scene fact-finding inquiry. Until defendant's responses were made, he was not in custody and any of his statements were voluntarily made. The court notes that the officer, upon receipt of affirmative replies to his routine inquiries, arrested the defendant, he placed him in the police car and read him his Miranda safeguards.

Defendant's statement, after receiving his Miranda warnings, about having gotten the gun down south, does not seem improper or contaminated in any way as it was preceded by probable cause to arrest.

On the Seizure of the Gun by a Private Security Officer:

Here, the hospital security officer was involved in a coordinated law enforcement objective with the New York City Police and, therefore, his behavior must stand the muster of constitutional scrutiny. The court must now examine the defendant's turning over of the gun to him.

On the issue concerning the voluntarily made statements, etc., the court concludes that the seizure of the gun from the auto in the parking lot after the car was opened by defendant, it was made with defendant's full consent, the consent to the search and seizure by the security officer was given fully and voluntarily in all, and the seizure by the security officer was made incidental to defendant's lawful arrest by the police.

In conclusion:

Under circumstances evidencing a simple and brief but coordinated police-private investigation venture, involving hospital security officers and the New York City Police Department, the court concludes that the action by the hospital security officer should be subject to federal-state constitutional scrutiny.

Even though the action is found subject to constitutional scrutiny, it is determined by a showing of clear and convincing evidence that the seizure of the gun by the hospital security officer was not improper but rested upon defendant's consent freely and voluntarily made and was incidental to a lawful arrest made shortly after seizure by the New York City Police. It is further determined, beyond a reasonable doubt, that the limited on-the-scene investigatory questions (one by the security officer and three by the New York City Police) and defendant's responses thereto, were voluntarily made within the meaning of the rules and were not made in a custodial setting or under other circumstances requiring the administration of Miranda warnings. Further, that the post-Miranda question and response was properly made and was preceded by a probable cause to arrest.

Henceforth, the motions to suppress physical evidence and statements are denied.

To know more of the legal nuts and bolts on arrests involving Miranda issues, get in touch with a Queens County Arrest Attorney. Enlighten yourself of the legal remedies available in these types of situations by seeking legal advice with a Queens County Criminal Attorney. Whether you have been charged with theft, drugs or sex crimes, contact Stephen Bilkis & Associates for the assistance you need and have a free consultation with our lawyers.

A cab driver was caught with a loaded .22 caliber revolver while in his taxicab on February 24, 1978. The District Attorney convened a Grand Jury to deliberate on whether or not to issue an indictment against the cab driver.

A New York Criminal Lawyer said the District Attorney accused the cab driver of criminal possession of a weapon in the third degree (a Class D felony) when he possessed a loaded firearm and his possession does not take place in his home or place of business.

When the District Attorney gave the Grand Jury instructions, he did not inform the Grand Jury that there is an exception to the crime of criminal possession of a weapon in the third degree: that if the man possessed the loaded weapon in his place of business, he can be charged with a lesser offense of criminal possession of a weapon in the fourth degree which is a misdemeanor.

The District Attorney did not inform the Grand Jury that since the cabbie drove a cab for a living, his taxicab may be considered his place of business. And this fact alone will entitle the cab driver to be indicted on a lesser offense of criminal possession of a weapon in the fourth degree.

The Grand Jury returned the indictment and the cab driver was charged and arraigned. He was later found guilty on that charge of criminal possession of a loaded weapon in the third degree. He appealed his conviction on the ground that the indictment should be dismissed because the Grand Jury proceeding was defective and evidence presented to the Grand Jury was legally insufficient.

The cabbie contended that the District Attorney did not even mention to the Grand Jury that at the time that he was apprehended and the loaded weapon was discovered in his possession, he was seated inside his cab. He did not display his weapon instead, he just had it in the cab with him as he was driving.

In considering the appeal, the Court noted that the law was enacted to discourage people from carrying firearms outside their homes and their places of business. A Westchester County Criminal Lawyer the firearm is in the home or in the place of business, then a presumption arises that the possession of the firearm is only for defense of the possessor’s person and property and not to accomplish any illicit purpose.

The Court also conceded that the statute is vague as to what it means by the phrase “place of business” and it is even more unclear what the exceptions to the “place of business” are.
The question of whether or not the cabbie merely had the gun for his personal protection or if he had the gun for some illicit purpose is an issue of fact that must be determined by a jury.

The Court also noted that the statute was unclear as to who has the obligation of adducing evidence of the exception. The statue is also vague as to whether or not the District Attorney has the responsibility to inform the Grand Jury that the cabbie’s factual circumstances may fall under the exception. As it was, the Grand Jury had the duty under the law not only to allege that the crime was committed, how the crime was committed, and that the crime does not fall within the legal exceptions.

When analyzed this way, it is clear that the Grand Jury could not have made the allegation in the indictment that the cabbie does not fall under the exception if the Grand Jury was not informed that the cabbie may fall under the exception.

Clearly, the District Attorney did not do his job to inform the Grand Jury of all matters of fact applicable to the determination of whether or not the cabbie did commit the crime of criminal possession of a weapon in the third degree because he failed to inform the Grand Jury that exceptions exist and that the cabbie may fall under the accepted exceptions.

The Court resolved to dismiss the indictment but gave the District Attorney the opportunity to ask leave of court to convene another Grand Jury to determine if the cabbie should be charged with criminal possession of a weapon in the third degree.

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On this proceeding, the man moves to be granted judgment without trial to dismiss the complaint against him.

The man is the brother of the complainant woman. The siblings separated since an event that occurred during mother's day at a family gathering. Based on records, there have been numerous family court matters involving their family.

On the said event, a New York Criminal Lawyer said a sixteen year old nephew of the complainant and the man exposed himself and masturbated in front of the man's five year old daughter. The said incident caused a huge schism in the family, with various family members taking sides against each other. At some point after the incident, the complainant, who was a hall monitor at an old elementary school, confronted the daughter of the man. According to the man, the complainant cross examined his daughter about the incident. As a result on the said confrontation to the child, the man alleged that her daughter became frightened and did not want to see or speak to the complainant.

Consequent to the incident, an action was filed in court under the original complaint of that sought damages for defamatory comments and tortious interference. The man and his wife, as opponent, filed a motion to dismiss the complaint. The court issued an order granting the motion to dismiss the complainants’ entire complaint. The complainant appealed the court's decision and affirmed it. The court also modified the Supreme Court's order such that the allegations concerning the alleged filing of a false police report against the man was allowed to continue.

Subsequently, a motion was filed to the only remaining defamatory comment against the only remaining opponent. A Queens Criminal Lawyer said the complainant alleged that the man is accused by a complaint to the county police department for pulling a gun on the complainant. Upon information and belief, the man repeated the alleged gun crime with the woman's aunt, and several other members of her family.

The appellate division’s decision which sent the remaining reason of action against the man was served with notice of entry. After the appellate division had suggested the man's proof was more appropriate for a judgment without a trial, the man did file a motion. The complainant filed a revised complaint. A Westchester County Criminal Lawyer said the revised complaint contained the only allegation which survived the decision of the appellate division, as well as, two additional claims. One is for slander regarding a protective order and the other is for intentional infliction of emotional distress.

On the first reason for the legal action filed, it alleges that the man has falsely accused the complainant of a serious crime, namely filing a false police report, a criminal violation. The accusation by the man was a false and defamatory statement concerning the woman specifically that she had filed a false criminal complaint against him for threatening her by brandishing a gun. The man made a false accusation to third parties, including but not necessarily limited to the family members.

On the second reason, it alleges that the man has falsely accused the woman of being the subject of a protective order regarding the man's children. The false accusation criticizes the woman in her trade, business, and/or professional reputation as an educational professional who works with children. The allegation by the man was a false and defamatory statement concerning the woman, specifically and falsely suggesting that the woman personally had engaged in improper behavior relative to the man's children.

The man is also alleged of displaying a harassing conduct toward the woman and her family and that it was extreme and outrageous. The man intentionally or recklessly engaged in that harassment as part of his continual emotional assault on his sister. As a result of the extreme and outrageous, intentional conduct, his sister suffered severe emotional distress.

After the proceedings, the court finds that the final action in the revised complaint is dismissed. Further, the man's motion for judgment is granted and his motion to dismiss the complaint is also granted.

A negative outside influence to a person could result into legal actions. If you feel you are wrongfully accused of a crime, whether it is a drug possession charge, sex crimes or theft, a Nassau County Criminal Lawyer can provide you legal options to pursue in court. If your family member needs a Nassau County Arrest Lawyer at Stephen Bilkis and Associates, don’t hesitate to call the office in its metropolitan branches during office hours.

On 10 November 1988, early in the evening, A New York City Police Officer and his partner, both assigned to the 34th Precinct, were on routine motor patrol, when they received a radio message directing them to the corner of 213th Street and Broadway, New York County.
As the officers were approaching the location, one of the officers saw one man holding another man, with a woman standing nearby.

A New York Criminal Lawyer said one of the men, informed the officer that, after he had heard a woman screaming, he saw the man, who he was now holding and who was later identified as the defendant, running from Inwood Park, carrying a brown pocketbook, and he responded by seizing and holding the defendant, while a bystander summoned the police. At that point, the man gave the officer a rubberized hammer handle, as well as the pocketbook, and he told the officer that he had taken both of those items from the defendant. Further, the man explained to the officer that the defendant had attempted to strike him with the hammer handle.

The aforesaid woman who was standing nearby told the officer that the defendant had punched her in the lip, grabbed her pocketbook inside the park and fled towards Broadway. Also, the victim informed the officer that the pocketbook, which they had recovered from defendant, belonged to her.

After listening to the statements, the officer arrested, handcuffed, and searched the defendant, who was subsequently transported to the 34th Precinct.

Meanwhile, in November 1988, a New York City Police Officer (or “investigating officer”) was assigned to the Robbery Identification Program (RIP), located at the 34th Precinct. On the evening of defendant's arrest, he received a telephone call at his residence requesting him to return to the precinct since a person who had just been apprehended for a robbery appeared to fit a robbery pattern which he was investigating.

On or about 7 November 1988, three days before defendant's arrest, the investigating officer’s pattern sheet, containing details of the robberies, was circulated to other precincts, and said sheet came to the attention of a New York City Police Detective (or “detective”) assigned to the Manhattan Robbery Squad.

The detective, after examining the pattern sheet, concluded that the pattern of park robberies committed in the 34th Precinct was very similar if not identical to several robberies committed in Central Park, which he was investigating.

Prior to defendant's arrest, the detective contacted the investigating officer and advised him that there were similarities between the 34th Precinct robberies and the Central Park robberies.

On the evening of defendant's arrest, at approximately 7:30 p.m., the investigating officer arrived back at the precinct in time to witness a Spanish speaking officer administer Miranda warnings to defendant in Spanish from a bi-lingual Miranda warnings form. A Westchester Criminal Lawyer said after defendant acknowledged receiving those warnings, the investigating officer, using the Spanish speaking officer as a translator, asked the defendant what happened with regard to the robbery that he was arrested for and defendant admitted that he robbed her, got nervous and scared, punched her and grabbed her bag.

Following defendant's admission of committing the crime, the investigating officer Davis, together with other officers, arranged for a line-up to take place later that evening at the 34th Precinct.

Five stand-ins (fillers) were assembled, who resembled the defendant, in that they were of similar age, race, height, weight, facial hair and skin-tone. While three fillers had salt and pepper colored hair like defendant, two fillers had dark hair. And in view of the fact that defendant was clean-shaven at the time of his arrest, so were all the fillers. The defendant was given his choice of number and he chose to be number one.

Sometime after 11:00 p.m. that evening, fourteen victims, of the robberies set forth on the pattern sheet of the 34th Precinct, viewed the investigating officer’s line-up, and seven persons, were robbed as well as sexually abused, identified defendant as the robber.
Since the detective had been informed by the investigating officer that the defendant had been arrested and identified as the perpetrator of the 34th Precinct robberies, on the evening of 11 November 1988, in the offices of the Manhattan Robbery Squad, the detective arranged for the defendant to be part of a second line-up, which was to be viewed by victims of the Central Park robberies.

The detective directed the selection of the five fillers for that line-up.

Although the defendant was 41 years of age, the detective decided to use fillers whose ages ranged from 26 to 29. The detective reasoned that the age difference was not significant since some of the victims of the Central Park robberies had indicated that the perpetrator's age was anywhere between twenty five and forty and the detective believed that defendant looked very young for his age. Further, while defendant appears to be a black Hispanic, the detective used fillers who did not have Latino-sounding names, since the appearances of those fillers indicated they could be black Hispanic or black.

Before the victims were allowed to view the six-person line-up, the defendant was given his choice of number and where he wanted to sit. Defendant selected number five and decided to sit between fillers numbered four and six.

Three Central Park victims who examined the line-up positively identified defendant as the robber while one identified defendant but later pointed to another one who also looked similar to her. One of the victims who positively identified defendant from the lineup has requested that all of the men in the line-up put on caps since the man he saw in the park had been wearing a cap.

Subsequently, two indictments were returned against defendant.
On 1 December 1988, the first indictment was filed and defendant was charged with committing the crimes of robbery in the first degree (twelve counts), attempted robbery in the first degree (four counts), sexual abuse in the first degree (two counts), attempted sodomy in the first degree, and coercion in the first degree.

On 19 April 1989, the second indictment was filed and defendant was charged with committing the crimes of robbery in the first degree (two counts), and attempted robbery in the first degree (three counts).

Defendant entered pleas of not guilty to both indictments, and his counsel moved to suppress, inter alia, defendant's statements made to the police and all identification testimony.
Thereafter, in May and June 1989, inter alia, a combined Huntley and Wade hearing were held.

Several New York City police officers and detectives, as well as a robbery victim, testified for the People.

The defense did not present any witnesses at the hearing.

Subsequent to the receipt of the evidence, Criminal Term found that the arrest of defendant for the robbery was based upon probable cause. Further, Criminal Term found the People's hearing witnesses to be credible.

Criminal Term found the second line-up to be neither suggestive nor violative of the defendant's right to due process. The detective followed correct procedures in assembling the line-up, and there is no Constitutional requirement that a defendant in a line-up must be surrounded by people nearly identical in appearance. Much weight is to be accorded to the determination of the suppression court with its peculiar advantage of having seen and heard the witnesses.

Shortly before the trial was to begin, defendant, after consulting with counsel, pleaded guilty to committing the crime of robbery in the first degree (four counts), in full satisfaction of the twenty count indictment, 1st indictment, and of the five count indictment, 2nd indictment. He pled guilty to two first degree robbery counts under each indictment.

On 17 October 1989, defendant was sentenced, as a predicate felon, to indeterminate concurrent prison terms of from seven to fourteen years on two counts contained in the 1st indictment, and from six to twelve years on two counts contained in the 2nd indictment, with the latter sentence to run consecutively to the first sentence. Pursuant to that judgment, defendant is currently incarcerated.

Defendant appeals the decision.

The defendant's first contention is that the second line-up was improperly suggestive since race and age differences between the defendant and the fillers combined to focus undue attention on him in the lineup.

The fundamental issue involved in ascertaining the validity of a lineup identification concerns undue suggestiveness which is determined by considering the totality of the circumstances surrounding the lineup.

It is well established in law that there is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance.

When a Court evaluates the fairness of a line-up, some of the factors to be considered are physical characteristics of the subject such as skin color, height, weight, clothing, hairstyle, age, and whether the subject is clean-shaven or has facial hair.

Differences between a defendant and the fillers do not make a line-up suggestive, unless those differences were highlighted in the description by the victims of the perpetrator.
Upon the court’s examination of the photographs of the subject second line-up of the detective indicates many similarities between the defendant and the fillers, in that every participant had dark skin, had dark short head hair, all appeared slimly-built, and height differences were minimized by having them seated.

In view of the fact that the Central Park victims did not have an agreement on the perpetrator's race or age, in that some indicated it was black, some indicated it was a Hispanic, and some of the victims indicated that the perpetrator's age was anywhere between twenty five and forty, the court does not find that the detective’s use of dark skinned fillers whose ages were between 26 and 29 made that line-up unduly suggestive, since neither the perpetrator's race or age were highlighted in those victims' descriptions.

The court finds that the 2nd line-up did not create a substantial likelihood of irreparable misidentification. The fill-ins for the lineup were sufficiently similar in appearance to the defendant such that the viewer would not have been oriented toward selecting the defendant as a participant in the crimes charged.

In fact, one of the victims who had a four minute encounter with defendant testified that the most significant factor in her identification of defendant as the perpetrator was neither race nor age, but the fact that she would not make an identification until, at her request, the detectives had the men in the line-up put on baseball caps where she then selected the defendant. Clearly, age and race of the defendant did not single him out from the other participants.

Moreover, another victim identified defendant from the line-up.

Further support for the conclusion that the line-up was not unduly suggestive is from the fact that another one of the victims could not make a positive identification since she was not sure between the defendant and one other person from the lineup. The witness stated that they both looked similar to her.

In conclusion, based upon the records and the court’s examination of the photographs of the line-up, the hearing court properly concluded that under the totality of the circumstances the pretrial lineup conducted was not unduly suggestive.

Next, the defendant’s second contention is that the judgment should be reversed and leave granted to withdraw the plea, on the ground that Criminal Term allegedly coerced him to plead guilty, by threatening to sentence defendant to a much higher sentence, if he proceeded to trial and was convicted.

Since defendant neither moved to withdraw his plea before sentencing nor raised that issue in a motion, pursuant to Criminal Procedure Law, to vacate judgment, he has failed to preserve such claim for appellate review.

Moreover, the court’s examination of the record indicates no reason to review the issues in the interest of justice. The court finds that the defendant's plea of guilty was freely, voluntarily and knowingly given.

Accordingly, the judgment of conviction upon defendant’s plea of guilty is affirmed.

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The appellant of the case is Dude Emshwiller. The appellee in the case is the State of Florida. The case is being heard in the second district of the District Court of Appeal in Florida.

Appeal

Dude Emshwiller, the appellant is appealing his original judgment and sentencing. The original sentence is for three years on the charges of grand theft.

Case Discussion

A New York Criminal Lawyer said the appeal that is presented to the court comes with a confused record of what exactly the appellant was charged with and convicted for. When discussing the case, we must determine the differences between retail theft as defined in the Florida Statutes 812.015 is a different offense than theft as described in the Florida Statutes under 812.014. We find that they are not separate criminal offenses and for this reason are in conflict with a previous case “Tobe versus State.”

The information that has been provided to us in this case states that the appellant unlawfully took possession of merchandise that was valued at over $100. Through the proceedings that took place, it is our understanding that the State of Florida, appellee, and appellant considered the appellant being charged with grand theft in the second degree. The appellant agreed to a form provided to the jury that offered the choices of guilty of grand theft, guilty of petit larceny, or not guilty. The jury came to the conclusion that the appellant was guilty of grand theft as charged.

When the jury came back with its verdict, the trial judge also entered a judgment. The judgment entered by the judge stated he was guilty of retail theft with grand theft entered in parenthesis. The sentencing was continued pending the completion of the presentencing investigations. When the appellant was sentenced another judgment was entered that only charged the appellant with retail theft and there is no reference to grand theft.

The problem with the sentencing comes into the fact that in a retail theft where the sale value of the merchandise can be proven is considered to be a second degree misdemeanor and is separated from a theft under the Florida statute 812.014. A Westchester County Criminal Lawyer said the jury instructions in a misdemeanor case are provided in this type of case. However, we are unable to find any evidence of the sale value of the merchandise being proven.

Court Opinion and Ruling

While we do not agree with the statement provided by the trial judge that states he did not believe that market value was being dealt with, we do find that the instructions that were given to the jury were sufficient. The judge instructed that the defendant was accused of retail theft and explained that the punishment for such a crime was based on the value of the merchandise that was stolen. He also went on to explain the differences between the terms of grand theft and petit theft. He also explained that the value of the property was the price it could be sold for at the time it was stolen.

After reviewing the case, we believe that there should not be a separate retail theft charge, but rather that the appellant was simply charged with grand theft. For this reason, the court will uphold the sentencing and conviction, but remand that the judgment be changed to reflect that the appellate was charged with grand theft and not retail theft.

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The plaintiff and appellant of the case is Jacqueline E. Morris. The defendant and appellee in the case is Albertson’s Inc. The case is being heard in the eleventh circuit of the United States Court of Appeals.

Case History

A New York Criminal Lawyer said that on the sixteenth of October in 1980, around 5:15 pm, Thelma Powell, who was an employee of Albertson’s saw a young black lady opening the cellophane wrappers of cosmetics and placing the items in her purse (petit larceny). Powell continued to watch the woman throughout the store.

Around thirty minutes later at about 5:45 pm, Morris, another black woman came into the store. She went to the display of gospel albums and began to browse.

During this time, Powell went to her manager, Miles Durrant and told him about her observations of the young black woman that she thought to be stealing cosmetics. The two went to a section of the store to observe the woman so Powell could identify her to Durrant. They hid in an aisle and viewed the magazine aisle. Powell looked around the corner and told Durrant that the suspect was the black woman standing by a magazine rack. When he peered around the corner he was unaware that there was more than one black woman standing in the aisle. He only noticed Morris who was standing at the display of albums located near the magazine rack. The suspect had actually left the area.

Durrant took over the watch and kept surveillance over Morris as opposed to the real suspect. Morris bought some groceries and when she tried to leave, Durrant detained her and accused her of stealing. A Westchester County Criminal Lawyer said Morris was asked to come upstairs for questioning. Morris denied the charges, but agreed to go upstairs with him to avoid further embarrassment.

Durrant proceeded to call the police and then paged Powell to confirm that Morris was the suspect. Powell told Durrant that he had taken the wrong person. Durrant apologized to Morris and told her that she was free to leave. Morris refused to leave and called the police station to make sure they were coming. Morris also called her husband and they both discussed the case with the police. Morris then left the store.

Case Discussion and Ruling

Morris then brought a case for false arrest against Albertson’s. Albertson’s has denied liability in the case stating that it is immune from a suit based on the statute of Florida law 812.015. This particular statute protects merchants from suits pertaining to detentions when probable cause is at hand.

However, in this particular case there was no probable cause identified in the detainment of Morris. The only evidence was an eyewitness account given by Powell. However, she failed to tell Durrant that there were two black women in the aisle and did not give an accurate description of the suspect. In addition, Powell failed to stay with Durrant during this time and thus the wrong person was accused of the crime.

For these reasons, the court finds that there is a lack of probable cause for the detainment of Morris. We are reversing the previous order from the district court. We find in favor of the appellant, Morris, and move to remand this case to the district court for a ruling that will determine the amount in damages that the appellant shall receive for the wrongful detainment case.

With offices located conveniently throughout New York City, Stephen Bilkis & Associates can help you through your current legal situation, whether you have been charged with shoplifting, sex crimes or a drug offense. If you need advice from an expert lawyer, call one of our offices today to set up a time to meet for your free consultation.

Defendant was convicted of murder in the second degree, burglary in the second degree, grand larceny in the second degree, possession of burglar's tools, possession of a weapon in the third degree and unlawful possession of noxious materials.

A New York Criminal Lawyer said that the crime started out as a simple burglary but led to the death of a police officer.

The facts dictate that a police car pulled into an alleyway and a police officer shone a flashlight at defendant. She then got up and walked over to the police officer who asked her what she was doing there. She replied that she was looking for her cat. The police then asked for some identification and she presented an address book, but her name was not in it.

According to defendant, while she was being questioned, her boyfriend yelled to her to "run"; she thereafter heard a shot. The officers immediately ran around to the front of the store, with her following behind them, and in the ensuing confusion, she ran away.

Apparently, a Westchester County Criminal Lawyer said that the other police officer who was told to go to the front of the store has been shot by the boyfriend upon leaving.
Two witnesses, both bystanders, testified to the shooting of the police officer but with contradictory details.

The police officer subsequently died.

The record further makes it clear that what had happened was that the burglary had been interrupted by the arrival of the police officers while on a motor patrol.

A Queens Personal Injury Lawyer said that shortly after the shooting, the Police conducted an extensive dragnet. The defendant's description was circulated by the police to the various motel attendants in the area. Consequently, the defendant was apprehended. The defendant was placed into a police vehicle and given her four-fold Miranda warnings, which she said she fully understood. The police wanted to know the identity and whereabouts of her male accomplice. The defendant responded that she and her boyfriend had been forced at gunpoint to do the burglary by an unknown White male.
The defendant was then transported to the police mobile command bus where she was again given her four-fold Miranda warnings, which she said she completely understood. She indicated that she would talk to the detective without an attorney being present. The defendant then repeated the story she had given the arresting officers to the effect that she and her boyfriend had been forced to commit the burglary. The detective interrogating the defendant replied that defendant was lying; that he had witnesses to show otherwise and that she should tell the truth. The defendant then gave the detective an oral statement. She now claimed that she had not known that her boyfriend was armed and that he forced her to participate in the burglary by slapping her. Her oral statement was reduced to writing and signed by her. While being questioned, the defendant identified certain articles recovered at the crime scene, to wit, a bent screwdriver, gloves and a can containing mace, as belonging to her boyfriend. She also admitted that she, too, had possessed mace.

Is the defendant guilty of the crime of felony murder (murder in the second degree)?

A fair question as to this issue was presented, inasmuch as defendant was in temporary police custody just prior to the shooting and this could conceivably have both terminated the underlying felony and severed the felony murder connection and that, therefore, the failure to so charge constituted a fundamental denial of the right to a fair trial.

The question of when the underlying felony ends, so as to sever its connection with a subsequent murder, and what a trial court must charge as factual considerations was, quite recently considered by the Court of Appeals.

In deciding whether a felony murder has been committed, it makes no difference whether the shooting actually occurred in the course of or in the furtherance of the burglary alleged, or whether it occurred in the immediate flight therefrom.

The elements of the crime of murder in the second degree under this count of the indictment are: (1) That at the time and place set forth in the indictment the defendant either acted alone or with one or more persons, each aiding and abetting the other, committed or attempted to commit a burglary; (2) That in the course of and in furtherance of the burglary, or of the immediate flight therefrom, the defendant, or another participant in the crime, caused the death of the victim; (3) That the victim was not a participant in the underlying crime of burglary.

Here, the shooting occurred at the very scene of the burglary; the shooting occurred with the fruits of the crime in the trunk of the automobile and therefore at least in defendant's constructive possession; the defendant was never in custody but was merely questioned by the police for about three minutes and this fact is made unmistakably clear when it is recalled that there is no dispute that she was left unattended when the police heard the shot.

Under the aforesaid circumstances to argue that the questioning of defendant by the police for at the most three minutes terminated her participation in the underlying felony and severed the felony murder connection is a futile attempt to split into unrelated parts an indivisible transaction. No amount of intellectual quicksand reasoning can change the fact that successful escape is obviously contemplated as part of a felony endeavor and that although defendant didn't shoot the police officer, she escaped in the course of the burglary and shooting.

The further contention urged by the defendant, that her boyfriend was in temporary custody so as to sever his part of the felony, is belied by the record. The boyfriend was never in custody; the apparent and chilling ease with which he fatally wounded the police officer makes this inescapably clear. To accept the defendant's narrow interpretation of the concept of a felony being committed in the course of the burglary or of "immediate flight therefrom" would do violence to the intent of the Legislature as evinced by the language of the statute. Thus, the court's charge on this issue which, in effect, left the issue of "termination" and "flight" to the jury as a question of fact was more favorable to her than the record warranted.

Is the affirmative defense of duress warranted?

The defendant claims that she was coerced into helping her boyfriend by the latter's various threats.
The argument does not bear close scrutiny. It is well settled that the trial court's obligation to charge a particular factual question does not arise until there exists a minimal threshold of evidence which points to this conclusion and which would allow a reasonable jury to so determine. This is particularly true with an affirmative defense, which the defendant must raise during the course of the trial, and prove by a preponderance of the evidence.

The record reveals that: defendant acted as "chickie" or lookout for her boyfriend to forewarn him of the approach of the police; defendant took the stolen goods and neatly stacked them in the trunk of her boyfriend’s car; when the police car approached, the defendant hid behind the alleyway trashcans and emerged only when one of the police officers shone his flashlight at her; and upon inquiry as to what she was doing there at 2:30 A.M., she gave the false and misleading answer that she was looking for her "calico cat"; upon the shooting, she fled.

Whether the defendant lacked the subjective intent to aid and abet her boyfriend because he allegedly coerced and "smacked" her can only be determined by the objective manifestations of her actions; every single one of her actions were unequivocally and thoroughly referable only to an intent to aid and abet her boyfriend and demonstrated that she was not acting under the siege of "duress".
Under the circumstances, the refusal to charge the defense of duress was proper.

Moreover, it is now well settled that the affirmative defense of duress must be raised or asserted during the course of the trial in order to give the prosecutor a fair opportunity to rebut the evidence, or cross-examine any defense witnesses on that issue. Since the defendant flatly refused to state that she was relying on the defense of duress until after the court had charged the jury, it would have unfairly prejudiced the People to submit that issue to it since it was then too late for them to submit evidence on that issue. This was a trial a search for a just result and not a poker game in which players enjoy an absolute right always to conceal their cards until played. In any event, it is clear that the court could properly have refused to charge duress because that defense is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.

Accordingly, defendant is guilty of the crimes charged.

If you are faced with a similar situation as the above, get in touch with Stephen Bilkis & Associates. Have a talk with our exceptional lawyers for a free consultation and be advised by the best Nassau County Criminal Attorney or Nassau County Arrest Attorney in all of New York City.

Driving while Intoxicated or Driving Under the Influence of alcohol or drugs has become a more commonly charged offense than it has ever been. The reason for this is that the legally intoxicated limit has been substantially reduced in recent years. A New York Criminal Lawyer said the current intoxicated level is .08, but someone with an even lower limit can be charged with DUI if there are circumstances where the officer can prove that the driver was acting in a less safe manner. What that means is that even if the person exhibits no symptoms or behaviors of being intoxicated, the officer can charge them with DUI if they can show that the driver was less safe. What does a court consider less safe? It can be anything from missing a stop sign to having a fatal car accident. Less safe has not been sufficiently defined so that anyone can reasonably protect themselves from this type of charge.

There are several rules that anyone should know when it comes to being charged with DUI or DWI. The first is that the officer is supposed to have articulable suspicion to stop your car. Articulable suspicion means that the officer has observed driving mannerisms that either do constitute a traffic violation, or indicate that the driver may be impaired. Either way, the officer must show that he or she had a reason to stop the car. If there is no reason, or the reason is improper, everything after the stop is inadmissible in court.

Also, as soon as a police officer makes contact with a driver, they are attempting to determine if that driver is intoxicated or not. In order for a police officer to arrest a person for an offense, they must have probable cause to believe that that person is involved in a criminal pursuit. In the case of DUI, the officer must prove that he has probable cause to believe that the driver is intoxicated and less safe to drive the car.A Queens Criminal Lawyer said that means that all voluntary tests requested of you on the side of the road, are designed not to prove your innocence, but rather to obtain probable cause to place you under arrest.

These field tests are voluntary. No one has to take them. They are not the state administered test requested after you are arrested. Only after an arrest, does the officer have to inform a driver that they are being taken to a breathalyzer machine or the hospital in order to perform the state administered test of their blood, breath, urine, or other bodily substance for the purpose of determining alcohol or drug content. Some police officers now carry a small portable machine called an Alco sensor. A Westchester Criminal Lawyer said this machine is less accurate than the breathalyzer. For that reason, courts have repeatedly ruled that the results of a roadside Alco sensor test can only be used to state that the driver tested positive or negative for alcohol. The actual results that read on the display of the machine are not admissible.

The question arises when a person is given the Alco Sensor test and tests not only positive, but well over the legal limit, then refuses the breathalyzer test. The courts have ruled that the numerical results that were displayed on the roadside test are not admissible in court. The only thing that the officer can testify to is that the driver tested positive for alcohol.

Statements made by a driver in this type of arrest are also different. Anything that a person says to a police officer on a traffic stop is voluntary. Any questions that the officer asks a driver are voluntary questions. If the officer asks where the driver has been and where they are going, the driver can say whatever he wants. He is not under oath and he is not under arrest. That being said, because he is not in custody, he does not have the right to an attorney at that time. So, if an officer stops someone for suspected DUI and asks them where they have been and where they are going and the driver says that he left one bar and is headed to another; he has just provided the officer with information that could lead to probable cause for an arrest. Because he is not in custody and being questioned, the Miranda ruling does not protect him. The Miranda ruling protects people from being questioned without the presence of an attorney to advise them. The Miranda rule only applies after a person is in custody and only when they are questioned while in custody. There have been some cases, which argued that a person is reasonably in custody on a traffic stop because they do not have the right to leave. That means that if the officer asks them any questions once they have established that they are not free to drive away, then the officer must read them their rights under Miranda. Under Miranda, questioning must stop the moment that the person in custody and being questioned requests an attorney.

Obviously, the issue of custody and questioning is important in the determination of the right to an attorney. Any statements made after an arrested person has requested their attorney, must be considered questionable. Questioning of a suspect is required under Miranda to cease the minute that the person requests the presence of their attorney.

That being said, when is a person in custody on an accident scene? The following case raises several questions in reference to these legal issues. On July 14, 2003 at 12:20 AM, a patrol officer in a double car with a partner, answered a call at Coop City Boulevard and Bartow Avenue in reference to a traffic accident. When they arrived, they discovered that a pedestrian had been hit by a car and was lying on the ground. The officer observed a silver Mitsubishi car with extensive front end damage. He walked over to a man who was standing near the car and asked him if he had been driving the car. The man stated that he had. The man had no trouble standing, he showed no indications that he had been drinking alcohol that night. The police officer left the man and followed the ambulance with the pedestrian to the hospital. The pedestrian died at the hospital and the officer returned to the accident scene at around 2:40 that morning. When he arrived at the scene, he was informed by another officer that the driver had been arrested for DUI when he registered a .166 breath alcohol on the Alco Sensor. The police officer stated in court that at that time, he noticed signs that the driver had been drinking such as the odor of an alcoholic beverage about his person and that he had red, bloodshot eyes. The officer took the driver to the 45th Precinct and asked another officer to run a breathalyzer test on him. The time was 3:38 a.m. The reason that the timeliness of the test is critical is because by law, the police have only two hours from the time of arrest to run the test. In this case, the first officer approached the driver at 12:20 a.m., the test was not requested until 3:38 a.m. That is more than three hours from the time that the man had been driving the car. The man initially agreed to take the breath test, but then asked the officer running the test if he should do it before he checked with his lawyer. The police officer told the man that it was his choice, but that a lawyer would not be allowed in the testing room.

This is a true statement, the lawyer is not allowed in the testing room; however, was this a request for a lawyer in essence a request under Miranda? In most law enforcement agencies, the officers specifically refrain from asking any questions of a person arrested for DUI other than to read the implied consent warnings that state any test refusal can result in the suspension or revocation of their driver’s license. The reason that they speak in commands during this time and not questions is so that they do not have to read Miranda rights and the subject does not have to be told that they have the right to have an attorney. If they are not being questioned then they do not have the right to an attorney. However, as soon as a question is asked, they must be Mirandized. Either way, as soon as the arrested person requests a lawyer, no questions can be asked of him without one.

It was at this point, that the officer read the implied consent warnings to the driver about the possible consequences of refusing the state mandated test. The defendant did not respond when asked if he was going to take the test. After several minutes, the officer asked him again and told him that he needed a yes or no answer. The driver stated that the wanted to talk to his lawyer first. At that point, the videotape of the breath test procedures was stopped. The driver was permitted to use the phone to locate an attorney. He called some relatives, but was unable to locate an attorney. The police did not ask any more questions of the driver, but determined that he had refused to take the test. He was reported to the driver’s license bureau as a refusal.

The defendant brought three questions of law before the Supreme Court. The first was that there should be no admissibility of the field test; the second that all statements made by the driver be excluded from court because he did not have an attorney; and lastly, that all evidence of his refusal to submit to a chemical test be suppressed.

The results of the Alco Sensor test according to all case and statutory constraints cannot be used in court as chief evidence of the driver’s intoxication. This has been ruled on repeatedly and was not changed here. The defendant wins this motion to preclude the numerical results of the field test.

Secondly, Under People v. Gursey (1968), it was established that a person who has been arrested for DUI has the right to speak to an attorney before deciding if he wants to take the test, provided of course, that the request does not cause such a delay that the test would not be performed in the two hour window. The court ruled that the driver’s response that he wanted his attorney was correctly deemed a refusal and is admissible in evidence.

Lastly, the defendant’s motion to preclude all statements that he made was denied. The court found that there was ample time to determine a response before court and that the driver was given notice at arraignment that they would be used. The people provided sufficient notice and the request is denied. However, a Huntley/Dunaway hearing was ordered to address the issues with the statements.

It is important that anyone who has been arrested for domestic violence contact a New York Criminal Lawyer. A New York DUI Lawyer can advise you of your rights and help you regain your freedom.

A telecoms company owns the premises leased by an out of possession landlord. The telecoms company contracted a security agency for their security services including the presence of a security guard in the premises. The premises had been a victim of gun crime robbery and homicide. A New York Criminal Lawyer said the assigned security guard was shot in his stomach, inside the premises, by an unknown attacker during a robbery and died of his wounds later that evening. He was employed by the telecom’s parent company. The security guard’s estate sued the landlord and the telecoms company for negligent security and wrongful death, and the security guard’s father sued for loss of his son's services.

The assailant was forcing a customer and the security guard to the rear of the store with the gun in the back of the customer, when the gun went off grazing the customer and hitting the security guard. He died shortly after arriving at the Hospital.

According to the depositions of the store manager, everyday during closing time, a cashier at the store followed various procedures, which included bringing into the store a coin-operated kiddie rides about 30 minutes prior to closing, and then lowering various gates about 15 minutes prior to closing.

The store manager testified that there was a central alarm system in her office, at the rear of the store. She said that the security agency had a guard stationed by the door, checking bags, overseeing the floor and making sure that everything goes smoothly. The guard usually was an unarmed and uniformed man. The security guard’s duties included assisting with closing procedures, making sure that customers left the store and bringing down and locking gates in the front of the store. At the time of the incident, the store manager was behind a cash register when she saw fighting in the front of the store. A Queens Criminal Lawyer said she stated that she believes there were three males wearing yellow rain jackets, masks on the faces and duct tape on them, and she saw her security guards were fighting with the males. She described the three perpetrators as wearing black ski masks, having hoods covering their heads, and their mouths covered with duct tape. She subsequently ran to her manager's office in the rear of the store, locked the door behind her, rang the alarm button and called the police. The security guard reported to the telecom supervisor who controlled and directed his work duties. He worked at the telecom company to further the needs of its mother company who had the power to reassign him and terminate him. The telecom company had no supervisors present at the premises. In fact, the telecom company, the corporate shell, had no employees. The mother company who owned the telecom company created it to limit its liability at the premises. Thus, the telecom company cannot be the special employer of the security guard or any of its company’s employees at the telecom store.

There are no triable issues of fact as to whether the security guard was the telecom company’s special employee. The security guard, as a matter of law, was not a special employee of the telecom company. He was only a general employee of the mother company. Therefore, the accused companies are not precluded by the Workers' Compensation Law from suing the telecom company.

The telecom company’s attempts to provide security at the premises has issues capable of trial of fact as to whether the telecom company, the lessee in possession, had a duty to provide security because of its knowledge of prior criminal activity at the premises. Further, a Westchester County Criminal Lawyer said in providing security personnel for the premises, there are issues capable of trial of fact as to whether the telecom company provided premises security with due care.

The landlord established its legitimate entitlement to summary judgment and dismissal of the complaint and all cross-claims against it by demonstrating that it relinquished control of the leased premises to the telecom company and that no statutory violations existed. In opposition, the telecom company and the landlord failed to demonstrate the existence of issues of material fact as the out of possession landlord bearing any responsibility for premises' security.

Employers expect their employees to do everything for the sake of the company. In return, employees expect their employers to take care of them and their families in times of work-related troubles. If you are become a victim of crime, whether it involves gun possession, drug possession or assault, feel free to contact the Nassau County Criminal Lawyers. When you are wrongfully detained, call the office of Stephen Bilkis and Associates to speak with a Nassau County Arrest Attorney.

A woman from New York filed an action against the Chairman of the Housing Authority that owns and operates her apartment. The woman challenge certain policies, proceedings and practices of the Housing Authority and to compel them to establish specific criteria and definitions of non-desirability and clear guidelines and criteria for deciding to terminate, transfer or continue the tenancies of certain tenants. A New York Criminal Lawyer the petition filed by the woman also seeks to dismiss the charges pending against her in a Housing Authority hearing that terminated her tenancy.

Following a disturbance in the woman’s apartment allegedly caused by her onetime and allegedly current boyfriend, the Housing Authority gave a notice to the woman that it would commence a proceeding to terminate her public housing tenancy because she never obtained permission for her boyfriend to live in her apartment. The Housing Authority also said that the woman’s boyfriend had committed domestic violence in the apartment and the woman refused to exclude his boyfriend from the building. Prior to the adjourned date for the hearing on the charges, the woman commenced a proceeding to prevent the Housing Authority from proceeding and asserting various lawful grounds. The Court initially stayed the Housing Authority hearing for a fixed period to consider the woman’s assertions but after subsequently considering the submissions of the parties, the Court did not extend the stay after such period and the stay has expired.

The Housing Authority claims in their petition that multiple dwellings such as the project in which the Apartment is located are densely populated, unacceptable behavior of tenants can have a serious impact on the ability of other tenants to be secure in and enjoy their homes. To prevent disruptive tenants from adversely affecting the other tenants in its projects, the Housing Authority has developed a series of criteria relating to tenant behavior and conditions the continuation of a tenant's tenancy on adherence to these rules. Serious violence and material criminal activity by a tenant or a member of a tenant's household in a tenant's apartment are generally proscribed and their occurrence will support a tenancy termination.

A Westchester County Criminal Lawyer said a different issue arises when the proscribed behavior is not that of the tenant but that of a family member, a guest or invitee of a tenant. When the tenant aids, abets or indulges such a person in the performance of such behavior, such non-tenant's behavior will be ascribed to the tenant and will constitute grounds for termination of the tenancy. A Queens Criminal Lawyer said recognizing that it may be unfair to penalize a tenant for behavior over which the tenant has neither control nor notice, the Housing Authority does not remove a tenant who takes appropriate steps to exclude a misbehaving family member invitee or guest, as soon as the tenant has or should have had notice of the misbehavior.

Because tenants of the housing have deeply subsidized rents for apartments of a quality and value far above that available to them in the market, resulting in a high demand and long waiting list for the Housing Authority apartments, such tenants are loath to surrender their apartment and accordingly, actions by the Housing Authority to terminate a tenant's lease have led to much litigation.

The woman does not challenge in concept that the Housing Authority may terminate a tenant for undesirability, but challenges instead the present specific criteria and definitions of non-desirability in the context of her case and whether the Housing Authority uses appropriate guidelines and criteria for deciding which tenancies the Housing Authority seeks to terminate. The woman also claims that the Housing Authority has made on a racially biased basis in the context of her case.

The record shows that the woman has been a victim of domestic violence inflicted by her boyfriend. Although she alleges that she is also a battered woman, such assertion has not yet been established in the record. A battered woman is a female victim of domestic violence who has been so adversely impacted by her battering that she is unable to extricate herself from the relationship or respond appropriately, the woman alleges she is such a victim, and thus being incapable of action, must be excused from certain consequences to which a non-battered woman might be subject. The record does not establish that the woman is a battered woman, it does not establish, even if she were, her ability or capacity or lack thereof, to take action to exclude her boyfriend from the apartment.

The woman also asserts that the Housing Authority’s decision to proceed against her was made in a racially biased manner since she is an African American and that the woman’s counsel has made legal inquiry practitioners in all of the branch offices in the five boroughs in the City of New York that handle Authority victim proceedings. The woman also asserts that none of the practitioners contacted reported cases of eviction proceedings brought against while female victims of domestic violence, for incidences of domestic violence, however the inquiry yielded multiple instances where the tenancies of minority women were terminated for non-desirability and breach of the Authority rules and regulations after having suffered domestic violence assaults, the Court will first address the second contention. Clearly, the Housing Authority cannot use race as a basis upon which to make decisions to evict. The court has the obligation to consider such a claim carefully, and to make searching inquiry into air appropriate allegation of discrimination.

By claiming that the Housing Authority’s termination proceedings against domestic violence tenant-victims are conducted in an arbitrary and capricious manner, the woman ostensibly invokes the law which requires that there should be a determination which has been applied in improper manner. However, there has been no determination, and therefore the Court lacks jurisdiction over the matter in accordance to the law as well. The woman may not use an Article proceeding to challenge a non-final determination but she must first exhaust her administrative remedies. When and if the Housing Authority issues a determination on the woman’s tenancy, if that determination is adverse to her, the woman may seek review of such determination by an Article proceeding. Until the Housing Authority has issued a determination, the proceeding is not ripe for review.

Although adamantly denied, the woman is also ostensibly seeking to prohibit the Housing Authority from proceeding against the woman as well as any other alleged tenant-victims of domestic violence. The woman avoids calling the action a writ of prohibition to evade the strict rule of the State law that prohibition does not issue when the grievance can be redressed by ordinary proceedings at law or in equity such as by appeal, motion, or other ordinary applications.

The woman has failed to show that no adequate remedy at law exists to redress any potential errors of law by appeal or judicial review. Thus, before the Court can address her grievance, a hearing must be held before a hearing officer, where the burden is on the Housing Authority to present witnesses. The witnesses may be cross-examined by the woman. After considering the evidence the hearing officer must make findings of facts and recommendations to the housing Authority. Once reviewed, any number of resolutions is possible and if adverse to the woman, they may be appealed in accordance to the law. The woman cannot avoid an Article proceeding by simply stating that the administrative procedure would affect her rights because she is a battered woman. The record to date, other than her assertion, does not show she has been so determined. In fact, she seems to argue that the assault against her was a unique experience. The factual predicate for an Article review must be found either in the record of the administrative proceeding or determination. Allowing such an assertion, so that review may be had under the law, on whether such exclusion was permissible under the standards to be applied in an administrative proceeding, would result in a back door nullification of the rule requiring the Court to rule on the record before it. The petitioner's motion is denied.

Women and children are always the victims of violence inside the house. The first time that we allow other people to harm us, we expose ourselves to being harmed infinitely. To keep ourselves away from violence, the first time that we are violated should be the last time and to make this possible, you can consult a New York Domestic Violence Lawyer from Stephen Bilkis and Associates. If violence in your homes resulted to more serious case, make sure that you call a NY Criminal Attorney.

A 22-year old black woman became pregnant by her 23-year old boyfriend. At that time, the mother was teaching at a Christian school by day and she was studying at a community college to earn a degree as a medical assistant. Her boyfriend was working for a large retail company but he was working toward a degree in automotive mechanics.

A New York Criminal Lawyer said both the woman and the man lived with their families. The woman had a two-year old daughter who lived with her and the man had a three year old son who lived with his ex-girlfriend but the man enjoys joint custody and regularly paid child support for his son.

While the woman was pregnant, she responded to a personal advertisement in a newspaper placed by a single woman who wanted to adopt a baby. The woman and the pregnant lady spoke to each other over the phone and they met several times. Both the pregnant woman and her boyfriend liked the woman and were willing have their baby adopted by the single woman.

The single woman had an adoption lawyer who recommended that the pregnant lady and her boyfriend also retain the services of their own lawyer. Their lawyer’s fees will be paid for by the single woman. The lawyer the couple chose went through the adoption process with them. He explained to them what they were giving up and explained to them the legal consequences of the consent they were giving to the adoption.

The couple fully understood what they were giving up when they signed the consent. But when the woman gave birth, she held the baby in her arms and the baby spent the night with them in the hospital. The baby’s father was there and he assisted in bathing her and changing her. Both of them felt that they had made a mistake putting up their baby for adoption. They still turned over their baby to the adoptive mother who brought the child from Maryland where the baby was born to Brooklyn, New York where she lived. From that time, the parents revoked their consent to the adoption within five days from executing it and filed a case in New York to revoke the adoption.

At the trial, the adoptive mother testified and it was found that she was more than able financially to take care of the baby. She rented an apartment and had a successful career. However, the family court discovered that there had been undisclosed marijuana use and an undisclosed diagnosis and treatment for mental illness which would affect a determination of her fitness to be a mother to the baby she adopted.

On the other hand, the biological father of the baby also testified and candidly disclosed that he had been involved in a domestic violence dispute with his former girlfriend who was the mother of his son. He testified that he and his girlfriend had an argument and the argument ended up with physical violence being inflicted by the two of them against each other. The police who arrived in response to a 911 call had to physically pull them apart. Mutual orders of protection had been issued in their favor against each other.

The ex-girlfriend of the biological father of the baby testified also. A Westchester Criminal Lawyer said she portrayed the biological father as abusive and violent and cast aspersions on his person and fitness to be a father. She claimed that he assaulted her several times. She claims that she filed police reports about these separate incidents but there was evidence only of one incident.

The neighbor of the biological father testified as to the domestic violence incident. She claims to have also testified in the criminal court as to what really transpired during that one documented domestic violence incident. She claims to have been alerted when she heard two people arguing just in front of her house on the street. She saw the girlfriend of the biological father take things out of the car of the biological father. The biological father then started taking things out of his girlfriend’s car. She saw the girlfriend run toward the biological father and jump on him from behind, biting him on the shoulder and clawing him on his back. The boyfriend tried to push off the girlfriend from his back so that she fell on the pavement. She then got up again and jumped on the biological father again and slammed him down. The police came and pulled the two apart.

The Court ruled that the revocation of the consent shows that the written revocation was timely made and that it was received by the adoptive mother within the time required by the law. There is no question that the consent signed by the couple was valid. A Queens Criminal Lawyer said the only issue for determination before the family court is the best interest of the child.

It shows that from the evidence presented, the couple decided to give up their baby for adoption because they were convinced at the time that it was in the best interest of their baby to be adopted. They had no financial means by which to support another child and they did not enjoy the support of their parents.

The Court also noted that they were attentive parents who spent time, money and effort to see their baby in New York every week during the pendency of these proceedings. They were both concerned and diligent parents who worked hard to give both their children the love and support they need. They seemed to come from stable and supportive homes with the presence of extended families (grandparents and great grandparents) who all extend support for the raising of both their biological children.

The Court notes that the adoptive mother, while she is financially more able to care for the baby is a lot older and has had more time to earn and to save up for her future. The Court however did not find the adoptive mother’s non-disclosure of her past drug use and her past diagnosis for mental illness a good indication of her moral fitness to raise the baby. She should have been forthright with the Court.

The Court compared this with the candidness with which the biological father disclosed his conviction for assault. He testified truthfully about the circumstances surrounding his domestic violence misdemeanor conviction. The Court was impressed with his lack of bitterness and vindictiveness against his former girlfriend. The Court also noted that he expressed regret that his son had witnessed the domestic violence.

The Court compared his behavior with that of his former girlfriend who displayed animosity toward him and refused to admit that the assault inflicted upon her was precipitated by the assault committed by her against her boyfriend.

The Court determined that the best interest of the adopted baby was to remain in the custody of her biological parents who are granted joint custody of their baby.

A domestic violence conviction has consequences that affect your fitness to be a parent or an adoptive parent. A New York City Domestic Violence lawyer should be able to help present facts that show, as in this case, that the assault relative to the domestic violence t mutually inflicted between you and your partner. A New York Domestic Violence attorney can present evidence in your favor and argue your case to show that you were as much a victim as a perpetrator of the domestic violence. Call Stephen Bilkis and Associates today. Go and speak to any of their New York City Domestic Violence attorneys at any of their offices in the New York Area.

A lawyer was admitted into the practice of law in New York in December 7, 2006 and he has been practicing as a lawyer in New York since that tiime . Sometime in October 4, 2007, he assaulted his live-in girlfriend. He threw her repeatedly onto the floor. He slapped her on the face repeatedly while screaming that she was a slut and a whore. The girlfriend sustained injuries that required a medical attention.

A New York Criminal Lawyer said after he assaulted his girlfriend, he smashed her Cartier watch with a hammer. He took her designer purse and filled it with water. He punctured a painting that belonged to her and he sprayed her couch with water and oil.

He was charged with assault and with criminal destruction of property. He pleaded guilty to the assault and entered a plea bargain agreement where he promised to pay the damage to his girlfriend’s property in the amount of $8,000.00. He was sentenced to ten months imprisonment and he served six months of that sentence in jail. A final order of protection was entered against him.

The girlfriend also filed a complaint with the Departmental Disciplinary Committee. She alleged that he was guilty of professional misconduct. The first charge was that the acts of domestic violence he committed adversely reflect on his honesty and trustworthiness as a lawyer. A second charge of intentionally inflicting physical harm on and assaulting another also reflects upon his fitness as a lawyer.

The charges were referred to a Referee. A Queens Criminal Lawyer said the lawyer testified that he has always had a temper but he began therapy and counseling soon after his arrest. His therapist also testified that the lawyer had an intermitted explosive disorder and that he was already being treated for this disorder.

The Referee sustained the charges but dismissed the third charge. The Referee ruled that the destruction of his girlfriend’s property occurred at the same time as the assault and was part of the same violent conduct. The Committee recommended a one-year suspension from the practice of law despite the Referee’s recommendation of only sixty days suspension as he has already been imprisoned for six months and has paid for the damaged properties of his girlfriend.
A Hearing Panel confirmed the findings of fact of the Referee but they found that the third charge should not have been dismissed. A Westchester County Criminal Lawyer said the panel ruled that the destruction of property was an escalation of the violent tendencies of the lawyer.

The only question before the Court is whether or not the one year suspension should be upheld.
The Court ruled that the purpose of a disciplinary proceeding is not to punish a lawyer but to determine his fitness as an officer of the court so that the courts and the public can be protected from lawyers who are unfit for practice.

The Court held that the lawyer here engaged in a calculated pattern of violence and cruelty that cannot be explained away by an intermittent explosive disorder. The abuse occurred over a prolonged period of time. There had been prior episodes of violence committed by the lawyer against his girlfriend. Thus, his actions were serious and should be penalized with a three year suspension.

The Court affirms the findings of fact by the hearing panel and its conclusions of law but reverses and sets aside its ruling of a one-year suspension from the practice of law and orders that the lawyer be suspended from the practice of law for three years.

A New York Domestic Violence lawyer should advice you that an arrest and conviction for domestic violence or assault have legal consequences beyond just imprisonment. A New York Domestic Violence attorney will advice you also that if you are a professional your license to practice your profession may be revoked upon a showing that you are morally unfit to practice your profession. Lawyers are not an exception. The attorneys at Stephen Bilkis and Associates are willing to advice you and assist you in preparing your defense. Confer with any of the experienced lawyers at Stephen Bilkis and Associates at any of their offices conveniently located around the New York area.

On October 23, 1974, a resident of 272 Pennsylvania Avenue , in the County of Kings, stated that he returned home from work at about 12:05 AM. He stated that he parked his car in his parking spot and started to walk towards the side entrance of his building. He stated that as he approached the door, the defendant came out from behind another car and started to follow him. He stated that the defendant threatened him and he began to run. The defendant chased him and put a knife to his throat. He forced the man into the lobby of the building. Once in the lobby, the defendant removed the victim’s ring, watch and money from his wallet. They were in the lobby for about five minutes before the victim’s wife came in. The defendant told the victim that he was going to have to get him out of the situation.

A New York Criminal Lawyer said the defendant then forced the victim and his wife back out to their car by holding the knife to the victim’s chest. He forced them in to the car and drove away with the victim’s wife driving. The defendant told them that he had six or seven children that he could not take care of and that was why he was robbing them. The wife began to cry and he told her to pull over. He started to drive. He did not know how to drive and nearly hit a bus before stopping and taking the keys. He put them outside of the car near a pole and fled on foot. The couple was inside of the car with the assailant for about ten minutes.

The question of law is whether the ten total of 15 minutes being held by the defendant was enough to constitute the crime of kidnapping. There was also some discussion about whether the crime was actually a drug possession crime. New York maintains that if the holding of the person against their will is an integral part of the execution of a greater crime, then the crime of kidnapping is absorbed into the other crime and not charged separately. The question rests on a legal term called asportation. Asportation is the removing a person to another locality.

If the asportation involved is not part of the initial crime, but occurs as a subsidiary incident then the crime of kidnapping is valid. If there is no asportation of the victims and the holding of the person is only subsequent to the act of the robbery, then there is no kidnapping. In the case discussed, the robbery had already occurred at the time that the asportation of the victims was affected. However, a Queens Criminal Lawyer said in the landmark Levy case, it was decided that under the kidnapping statute that the detention or asportation of a victim for a relatively short time as an incident to robbery is not enough to prosecute the defendant for the additional kidnapping. So what is considered to be a short time?

The additional question is if it is affected by the Levy-Lombardi rule that the asportation of the victims from their home to a point down the street was part and parcel to the actual robbery or if it was a separate crime altogether. The justices in this case determined that the Levy-Lombardi rule did not apply because it was in fact a completely separate offense. A Westchester Criminal Lawyer said the robbery had already been accomplished when the defendant opted to remove the victim and his wife to a point down the street and away from their homes.

The court recognized that the intent of the Levy-Lombardi rule was intended to prevent ordinary robberies, rapes, and assaults to the more serious crime of kidnapping simply due to the wording of the stature. Stephen Bilkis & Associates with its Queens Criminal Lawyers, have convenient offices throughout New York and Metropolitan area. Our Queens Drug Lawyers can represent you even in complicated issues such as these.

A woman and his partner both filed for child custody petition in Court. The woman was born and raised in Florida where she lived with her mother and father until her parents divorced. She continued to live with her father until she was 22 and got her own apartment. The woman’s partner was born in Puerto Rico and was raised in Bronx. He has been living in New York for the past 10 years. The parties met on line in 2002 and they actually met in person when the woman came with a friend in New York for vacation. A New York Criminal Lawyer said in May 2004, the woman invited the man down to Florida for the weekend and their relationship became intimate. At some point during their relationship, the parties made the decision to have a child together.

In October 2004 the woman learned she was pregnant and that same month, the man took his two-week vacation and went to Florida to be with the woman. He brought his daughter with him and they discussed the possibility of him moving to Florida. While he was there, he looked for a job by posting his resume on a Web site and checking the local newspapers. The father got a couple of calls but when he went to be interviewed with the County school for a job as a locksmith, he was told that he was overqualified for he was making $17 an hour at his job in New York and they were offering only $10 an hour. A Westchester County Criminal Lawyer said that alhough he said he would start at any entry level, he was not offered the job.

At the end of 2004, the woman was terminated from her job as a general claims clerk in Florida for taking more time off than her allotted annual leave would cover. Although the father admitted they had plans to move, after she lost her job, he told her they would live better in New York since he had a stable job and stable home. The man’s mother would provide childcare, and he does not want anyone but family to care for their son. The woman never wanted to move to New York but agreed to do so because she felt that it would be only temporary until they have saved money for a house and move back to Florida. The woman admitted that her partner never gave her an exact time frame but she assumed that it would be within a few years.

In 2005, the woman moved to New York and began living in her partner’s apartment with his seven-year-old daughter. In 2005, she brought her 11-year-old daughter to live with them. In July 2005, their child was born. As the woman was not working, the household was supported entirely by the man’s salary, money from her income tax refund, and the money that her father sent to her. The man worked on weekends to earn overtime pay while the woman was unemployed. The man acknowledged that at the time the woman moved to New York, the plan was to pay up his bills and save money so they could buy a home in Florida. Because of their expenses, they never started a savings account, were unable to put aside money for a house and the plan never materialized. Since the woman gained employment, the man testified he only worked overtime once in a while because he did not need to earn as much money to support them and preferred to spend time with his son, daughter and family.

When the woman started working, the paternal grandmother took care of all the children, as she had done for her other grandchildren. The man’s mother took care of the man’s daughter with his former wife since she was little while both of the child’s parents worked and after the child’s father obtained custody. The woman and her partner have an indefatigable and infinite resource in their child’s grandmother who comes to their home at 6:30 A.M. and leaves at 7:00 P.M. during the school year as well as the summer recess.

The woman has been in New York since 2005 and other than an older half-sister who lives in Massachusetts, she has no family in New York. The woman and her sister are not close as they did not grow up together and they met for the first time when the woman was 17. She does not have any friends in New York and besides her partner and her child she has no one here to turn to for emotional support. The man acknowledged the woman’s friends were in Florida but said for reasons he did not know, she didn't stay in contact with them. After she came to New York and became homesick, the man portrayed her as sad and withdrawn. The stress of being pregnant and later trying to find a job caused the woman to become withdrawn. Over time, the relationship faded.

The man offered to introduce the woman to people and his family even offered to take her out but she did not want to. When asked about her relationship with the man’s family, she admitted that she felt accepted, was never criticized by them and was welcomed into the family when she came to New York. She agreed the man’s family invited her and her daughter to attend family gatherings, holiday celebrations, birthday parties and remarks that although she gets along with everybody, she generally just keep it to herself by just going to work and coming home. She explained that she does not seem to have adopted them as a surrogate family.

Other than going to work, the woman does not have any outside interests or hobbies nor does she participate in any recreational activities or classes. She also never used the Internet to look up free or low cost activities for herself and the children because she does not know her way around New York. The woman admitted she would ask her partner to watch the baby if she wanted to go out and was sure her partner would not refuse to watch the baby but she never asked him since she did not actually have the opportunity to go out.

In contrast to the lonely and isolated life she leads in New York, all of the woman’s relatives reside in Florida—each of her parents and stepfather, two uncles, an aunt, a grandmother, first cousins and their children. According to both parties, the woman speaks to members of her family on the telephone everyday particularly her mother, stepfather and father. Although the woman professes to have a close family, none of her relatives have ever come to see her in New York. Only once did one of her best friends come to see her in New York. When the man was visiting her in Florida in October 2004 she never took him to meet her family. According to him, the only time they visited the woman’s home was on the day they decided to leave.

Because the woman is homesick, she wants to leave New York with her child and return to Florida to be with her family where she would live for free with her mother and stepfather. The home is located on one acre of land that is fenced in and has a big backyard, which her apartment in New York does not have, where her son could play. The woman expects to find employment in Tampa which would be a 30-minute drive. Once she gets a job, childcare would be provided to her without cost by her stepfather who is retired and her mother who works at night.

In addition to being reunited with her family, the woman’s other reasons for wanting to move to Florida are to have a better environment to raise the child in, to have the support of her family, to get a better paying job and advancement in a company as opposed to the job she has now, to be able to go at night to career advancement programs and to be able to afford a three-bedroom apartment. She claimed to have found such an apartment for a monthly rent of $750. In contrast to the figure, the apartment she and her partner live in presently costs $1,165 per month, which they presently divide. Because the woman does not know where anything is in Brooklyn and in Florida, she would have her own vehicle. The woman believes there are more recreational opportunities for her and her children and she would be able to take them more places in Florida. When asked if she planned to look for a job in Florida, the mother replied that she had job offers already but on cross-examination she admitted that she actually had only offers of interviews which she was not able to go to while residing in New York.

The woman testified that her wish to return to Florida was absolutely not motivated by a desire to deprive her partner of meaningful access to the child. She said that when she and her partner broke up, she just felt that the only place she could go is home. She denied starting up a new relationship with someone in Florida and she acknowledged that if she was allowed to have the child and move to Florida, it would make it difficult for her partner to have access. She expressed her willingness to permit her partner to have significant visitation with the child by giving him a large chunk of time to spend with him including holidays and summers. She said she would be very flexible and allow him to spend as much time as he can. She volunteered to pay the cost of her plane ticket and half of the baby's to bring the child to New York for visitation. She would not oppose her partner calling the child every day to talk on the telephone and she would provide a video cam for her partner and child to communicate visually with each other over the Internet.

Having made a thorough examination and inquiry into the facts and circumstances of the case and into the surroundings, conditions and capacities of the persons involved in the proceeding, and having given serious consideration to the various factors at issue in this custody/relocation request, based on the best interests of the child, the court finds that the father proved that relocation should be denied. The court finds there is a sound and substantial basis in the record to grant joint custody of the child to both parties, with physical residence to the mother and regular and frequent contact between the father and the child. In addition to day and overnight visitation, the father may speak to the child by telephone at reasonable times with reasonable frequency.

The Court must also consider the effect of domestic violence upon the best interests of the child if a party makes a sworn allegation that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party and such allegations are proven by a preponderance of the evidence.

The present custodial arrangement, the child's wishes and the existence of domestic violence are not at issue. The evidence shows that the respective home environments, the needs of the child, each parent's past performance and relative fitness, each parent's ability to guide and provide for the child's intellectual and emotional development, and each parent's financial status and ability to provide for the child, the parents are relatively equal.

Based on the child's chronological age and developmental stage, the parties should establish a visitation schedule for the father that will not create separations of more than two or three days. Overnight visitation should be included in the schedule the parties create. The parties should develop a plan in which they share or alternate holidays and have the child during their respective vacations. Each parent shall provide the other with a current address and telephone number and will notify each other within 72 hours of any changes to the information. Each parent will immediately notify the other regarding any emergency involving the child. Neither party may remove the child from the jurisdiction of the court without the written permission of the other party. Neither party with custody of the child may relocate beyond a 25-mile radius of where they presently reside without the written consent of the other party.

When couples decide to break apart due to a lot of reasons, their children’s sake should not be jeopardized. It is unusual for couples to agree on something once they consider to get separated. If you are in these kinds of situation, or have been the victim of assault, sex crimes or other domestic violence matter, make sure to discuss your options on domestic violence related cases with the New York Domestic Violence Lawyers. You may also request to be represented by a NY Criminal Attorney at Stephen Bilkis and Associates for your crime-related lawsuits.

A man was charged with the offense of harassment in the second degree. Subsequently, the court issued an order of protection directing the man to stay away from the complainant and refrain from harassing, intimidating, threatening her, or committing any acts of domestic violence. After that, a misdemeanor charge of criminal contempt in the second degree was commenced against the man alleging a violation of the order of protection. Consequently, the man initiated a matrimonial action against the complainant.

A New York Criminal Lawyer said the court having been assigned to the related matrimonial action, determined that it would promote the administration of justice to transfer to the Integrated Domestic Violence (IDV) part the charges pending against the man in the district court and by the order the district court, the matters were transferred to the IDV Part.

The man now moves for an order to dismiss the district court cases for lack of subject matter of authority. The man alleges that criminal procedure law mandates the dismissal of the cases transferred from the district court. The man's motion is determined. A Westchester County Criminal Lawyer said the discussion of the man’s contentions begins with an assessment of the legal authority of the courts.

Based on records, the procedure law grants the superior courts, Supreme Court and County Court, trial authority of all offenses which includes the exclusive trial jurisdiction of felonies, the trial jurisdiction of misdemeanors concurrent with that of the local criminal courts, the trial jurisdiction of petty offenses, but only when such an offense is charged in an indictment which also charges a crime.

Moreover, it is noted that the chief administrative judge controls the practice and procedure of the courts. The chief administrative judge is specifically authorized to create special categories of legal actions and proceedings and may authorize the transfer of any action or proceeding and any matter relating to an action or proceeding from one judge to another in accordance with the needs of the court. The rules and regulations of the chief administrative judge have the force and effect of law.

Consequently, pursuant to the delegated authority, the chief administrative judge established an Integrated Domestic Violence (IDV) Part in the county with the specific authority to transfer cases pending in a local criminal court to itself. Hence, the chief administrative judge has established a procedure by which the Supreme Court may transfer cases to itself as considered by article of the constitution.

The county's new IDV Part is a response to the need for a single court to judge all the matters which might bring a family into the court system when the underlying issue is domestic cruelty. A goal of the new IDV part is to promote informed decision-making as well as proficient case management. If the procedural limitations set forth and were read as precluding, the IDV courts from transferring to themselves misdemeanors and petty offenses pending in the local courts, the objectives of the IDV courts established in different counties would be frustrated.

Although any provision of the criminal procedure law which has the effect of limiting the Supreme Court's broad control is arguably unlawful, it is well settled that issues of constitutionality should not be reached unnecessarily. For that reason, given that the chief administrative judge created the IDV Part under authority granted by the legislature and that the Supreme Court possesses the constitutional control to accomplish the objectives of the IDV Part, it is concluded that the procedural provisions of the procedure law which limit a superior court's trial jurisdiction over misdemeanors and petty offenses should not be read as applying to the IDV Part. The court decided with the foregoing reasons and the motion to dismiss is denied.

The scope of law is like a huge range of medical science. Its connections and complications always matter in every aspect. If you get involved in any matter regarding domestic cruelty, sex crimes, or child endangerment seek for assistance from the NY Domestic Violence Lawyers so they can provide you with sufficient know-how of your case. If you or any of your family members experience any illegal or unlawful action against other people, call and inquire from the NY Criminal Lawyers at Stephen Bilkis & Associates and feel protected.

The accused defendant is charged with assaulting his former girlfriend in the presence of their three children. The trial testimony established that during the assault, the victim attempted to call 911 for police assistance (using a land-line telephone) and she made a very brief initial contact, but was then immediately thwarted by defendant, who bound the victim's wrists with the telephone cord and then slammed the telephone on the victim's hands/fingers as she tried again to dial 911. At some point, however, during the incident the abused victim was able to complete a 911 call using the same telephone.

A New York Criminal Lawyer said the jury acquitted defendant of assault in the third degree but convicted him of attempted assault in the third degree, three counts of endangering the welfare of a child and criminal mischief in the fourth degree; the last one is the subject of defendant's instant motion.
The primordial issue in is whether or not the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief in the fourth degree.

The statute requires that defendant intentionally disable or remove telephonic equipment while the complaining witness was attempting to call 911, in an effort to seek emergency assistance from the police during an alleged domestic violence assault upon her.

According to Commentaries, as well as the legislative history, the Legislature added subdivision four to the criminal mischief in the fourth degree statute in 2008 in order to address the troubling incidents in which a telephone or other communication equipment was disabled or removed by the perpetrator of domestic violence or elder abuse while the victim attempted to obtain emergency assistance. A Judge astutely states that: "Given the purpose of the legislation, using the criminal mischief statute as the template for this crime was not the best choice." He notes that, unlike the other subdivisions of New York's criminal mischief statute, subdivision four does not require that the telephonic equipment be damaged but rather it limits the proscribed conduct to the disabling or removal of the equipment, which can be done with or without damage to that equipment. The Judge further notes that the Governor, in approving the legislation in question, stated: "Although this is a laudable step, an abuser can keep a victim from making or completing a call by means other than disabling or removing telephone equipment. For example, if the abuser physically restrains the victim from using the telephone, or simply hangs up the telephone without damaging the equipment, that is an equally blameworthy and harmful act, and should be subject to the same punishment."

A Westchester Criminal Lawyer said nonetheless, the way subdivision four is presently drafted, defendant's chilling actions in the herein case neither resulted in the removal nor the disabling of the victim's telephone. Although numerous situations can be envisioned in which the statute can be violated (e.g., cutting the cord, removing cellular phone batteries, breaking the phone or just removing it from the victim's access, to name a few) the intentional act of binding the victim's hands disabled the victim herself but did not disable the telephone itself, which remained in working order so that the victim was eventually able to summon the police for help with the same equipment. Furthermore, slamming the victim's hands with the telephone did not disable the telephone either. What defendant did in this case was temporarily impede the victim's successful use of the functioning telephone. However, until and unless subdivision four is amended by the Legislature to cover general hindering conduct, the Court is constrained to hold that defendant's repugnant conduct does not constitute criminal mischief in the fourth degree under Penal Law.

Consequently, defendant's application to set aside the criminal mischief guilty verdict is granted and that count is dismissed. The court finds that the trial evidence did not satisfy the statute in question.

Several causes of action may arise from cases of domestic violence, inlcluding sex crimes, battery, and endangering the welfare of a child. To know more, consult for free with Stephen Bilkis & Associates and talk to our New York Domestic Violence Lawyers or our New York Criminal Lawyers.

Sometimes, the stories that create law are so horrendous that they speak directly to our hearts. It is at that time that you realize how important the law is. It is also when you realize how important another person’s job can be to the lives of others. In many cases, overworked and underpaid civil servants lose sight of how important their calling is. When that happens, they can drop the ball and cut corners. Cut corners always lead to a bad ending.

In New York, the job of the Clinton County Department of Social Services encompasses the assessment of homes to determine if children are deprived or neglected. A New York Criminal Lawyer said the primary goal of the social worker is to work with the parents to keep the child in their natural born home, if at all possible. Sometimes, it is not possible. Sometimes, the social worker does not keep the paperwork as meticulously as it should be kept. Sometimes, it is not possible for the social worker to predict that the parents who are not beating their children or leaving them without food might be the biggest risk to the children in their care.

On March 31, 2010, a set of twins was born to a young couple in Clinton County, New York. One was a boy named Zachary and the other, his twin sister, Zoe. On July 26, 2010, the New York State Central Registry received a complaint that the twins were being abused or mistreated. The department sent a social worker to the home and discovered that the couple engaged in domestic violence in the direct presence of the twins. There was no information recorded about how this information was received, and no documentation of any steps taken to council the parents. The documentation states that the caseworker recommended that the couple engage in mental health counseling and substance abuse treatment. However, there is no documentation about why these steps were recommended. There is no documentation of any mental health problems or substance abuse associated with the report.

On August 31, 2010, the social services report states that caseworkers attempted to gain entry into the home of the couple and the twins. It states that after knocking repeatedly on the doors and windows, they obtained entry by force with the assistance of the New York State Police. The report does not explain why force was deemed necessary or what information the social workers had to determine that the children may have been in distress. What they found upon entry was that the parents were sleeping upstairs. The twins were awake and downstairs. Zoe was unattended and propped on a sofa. Zachary was in a swing. A Westchester Criminal Lawyer said the report states that the parents’ were informed that this was inadequate supervision and demonstrated a flaw in their parental judgment. The social worker advised that the infants were at risk of physical harm. There was no further information recorded in reference to this incident or the actions that were taken to ensure that the children would be better cared for. Following this incident, the social services department noted that the mother was recommended to attend traumatic brain injury counseling. There is no reason given as to why this recommendation was made. In fact, there is no exact date given that would determine when the assessment was made. There was no evidence that any counseling or assessments had been completed.

On September 26, 2010, the New York State Central Registry was called again to the home in reference to child abuse or maltreatment of the twins. Upon their arrival, they discovered that Zachary had been left unattended downstairs, propped in the corner of an overstuffed chair at 2:30 that morning with a bottle of water propped up for him. At 9:00 a.m. when the parents woke up and checked on him, he was unresponsive and later determined to be dead. The cause of death was positional asphyxia. Twenty four days after Zachary died, the social services department filed a petition claiming that as a result of the parents’ flawed parental judgment, Zoe should be regarded as neglected and removed from their care.

According to the State of New York, before social services can remove a child from the care of their parents, they must show that they made reasonable efforts to keep the family united. The supervisor in charge of the case workers later testified before the courts that caseworkers went out on three separate occasions after July 26, 2010. As a result of those home visits, they recommended that the couple attend parenting class and other preventive services. There were no exact dates recorded of those visits and no evidence that either parent ever attended any of the parenting classes. The supervisor reported in court that caseworkers had seen severe deficits in parenting and had addressed those I the home visits. She stated that the recommendations involved counseling about bottle propping, safe sleeping, safe positioning of infants, and age appropriate developmental milestones. When questioned by the judge, the supervisor testified that she could not specify when the recommendations were made, only that they were made on at least August 31, 2010.

The supervisor testified that after Zachary died on September 26, 2010, the caseworkers had developed a child care plan for the safety of Zoe. The supervisor indicated that the voluntary child care plan that the parents agreed on involved Zoe going to live with a friend of the family. This never happened and Zoe remained in the care of her parents. The supervisor claimed that on October 17, 2010 the Department met with the parents and again recommended that they engage in parenting classes and undergo a parenting assessment. She claimed that preventive services were again discussed. The supervisor claimed that caseworkers returned to the apartment on October 18, 2010 and made additional recommendations for services including mental health screening, substance abuse treatment, traumatic brain injury assessment, parenting assessment, parenting classes and preventive services. The supervisor indicated that they made contact with friends and relatives concerning the welfare of Zoe. The supervisor stated that the parents refused preventive services and would not cooperate with the recommendations. The court noticed that social services did not file any actions in court against either parent for failing to comply with the recommendations until the case that was filed on October 20, 2010 requesting the removal of Zoe from the home for her safety. There was no documentation of any services offered to the parents relating to domestic violence which was the one documented incident that was made.

The judge was disappointed with the lack of documentation that was present in this case. The transcript of the case states that he stated that the law does not create a presumption that the department of Social Services made a reasonable effort to eliminate the need for placement of Zoe. Unfortunately, the burden of proof on the issue of removing Zoe for her safety is on social services who must establish that reasonable efforts were made. The judge stated that in this case, assuming that the allegations in the petition are true and accepting that the testimony of the supervisor who signed the petition is credible, then they failed to meet their burden of proof for two reasons. First, they failed to show that recommended services were tailored to address the problems in that home. Second, assuming that removal was not required earlier to prevent the death of Zachary, the department should have filed an Article 10 petition demanding that the parents comply with services that were tailored to their needs. Based on the testimony given, the court could not determine that any services recommended were necessary. There was no evidence that the neglect was caused by anyone abusing substances, mental illness or that either parent had suffered from a traumatic brain injury. The court chastised the department for not taking the steps that would have protected Zachary. The judge stated that just providing the parents with a list of services did not meet the requirement of reasonable efforts.

Zachary’s death was unnecessary. The inability of the Department of Social Services to remove Zoe to a safe place is unconscionable. However, if the information provided by the Supervisor is not correct, then it is possible that the department of social services is just as much at fault for Zachary’s death as the parents. Criminal Attorneys evaluating this case would first notice that the department had ample opportunity to notice that these parents did not know how to care for infants. If the wife was battered, there are services that could have eliminated the problems in the home before Zachary died. Whether you have been charged with domestic violence, sex crimes or a theft charge, Stephen Bilkis & Associates can represent you. We have convenient offices throughout New York and the Metropolitan area. If you know anyone who is dealing with spousal abuse and needs help, think about the effects on the children. Was that mother too afraid to leave the husband and go downstairs and care for the children? There is no way to know for sure. Suggest that they consult with a NY Domestic Violence Lawyer.

Domestic Violence situations are difficult for everyone who is involved in handling them. Family dynamics can be extremely volatile. When domestic violence occurs, there are many people involved. Family Violence Laws encompass past or current spouses; children or step-children, parents and children, foster parents and foster children, siblings, and anyone who has ever lived or is living in the same residence. This is a broad definition of the relationships that are included in the definition of the domestic violence statutes. Domestic violence laws are created not just to deal with crimes that have already occurred; they are expected to intervene to prevent future assaults from happening. However, whenever a law is created that is expected to prevent future offenses before they have occurred, abuses to that law often follow. Many people are arrested in domestic violence situations who did not need to be arrested. Many are arrested who do need to be arrested, but still deserve a fair hearing in a court of law.

A New York Criminal Lawyer said that often police officers are called upon to enter a home and restrain one or more of the parties involved in the altercation. When this happens, it can be a dangerous situation for the police officers. In April of 2006, a New York City police officer responded to a domestic violence call in Albany County. During the course of that call, the officer had to struggle with and restrain a male subject. The officer in question and his partner ended up against a table which collapsed under the weight of the three people. The subject had pushed one of the officers onto the table before the officer in question was able to hand cuff him. The officer sustained a debilitating injury to his right shoulder. In July of 2007, he applied to the New York State and Local Police and Fire Retirement System to obtain accidental injury retirement benefits. The Hearing officer determined that this officer was not able to obtain these benefits because the injury could not be considered an accidental injury because it occurred in the normal course of performing his ordinary employment duties.

The officer argued that the collapse of the table was not an expected ordinary course of his employment duties. The state did not agree and refused his petition. The state maintains that responding to domestic violence calls and restraining unruly participants is a normal course of a police officer’s duties. If that officer in catastrophically injured in the course of those duties, the state does not feel that they should be responsible. A Westchester County Criminal Lawyer said the Officer appealed this decision. The State Court of Appeals upheld the verdict.

This type of situation is becoming all too common. Officers are expected to put their lives and bodies in danger to protect the citizens of this country. Yet when they are injured, the departments are not standing behind them. Recent changes in the employment laws in several states are permitting police departments to fire injured officers rather than ensure that they are taken care of for their sacrifice. It will not be long in this type of environment before young prospective officers refuse to take jobs in law enforcement. Why would anyone risk their livelihood and health to protect others knowing that when they get hurt, they will lose everything. Injured officers are losing their jobs, houses, and lives without the support of the very citizens whom they risk everything to protect. One has only to remember the events of 911 to acknowledge the risks that these people take every day. A profession that has always been more of a calling than a job, has now become too much of a risk to the officer’s ability to care for their families.

Stephen Bilkis & Associates have attorneys who can help. Because there are convenient offices throughout New York and the Metropolitan area, it is easy to locate one of these attorneys close to you. Whether you are the police officer who is injured and needs representation to recover what you have earned, or the suspect arrested for domestic violence. Whether you have been charged with domestic violence, sex crimes, or a theft crimes, we have legal counsel that can assist you.

A wife and her husband filed their individual action for the child custody of their twin son. The twins were in the Dominican Republic and it is undisputed that the father obtained a default order of custody there in 2002.

A New York Criminal Lawyer said a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, in accordance to an agreement signed before the assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.

The mother left the Dominican Republic in December 1999, leaving the children with her mother and remarrying in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents. The maternal grandmother, who had physical custody of the children at the time, was named as offender in the matter.

In a forensic report submitted to the Dominican District Court, the evaluator concluded that he should have custody since the mother is both physically and emotionally absent, and that the other family ties, according to the father, are not the most adequate for the children's emotional or intellectual development. The father figure would be of vital importance, as such, the court suggest beginning individual and family therapy to address some of the previously reported issues.

In the midst of the Dominican judicial proceeding, the mother temporarily ceded custody of their sons to the father, in a document known as a friendly agreement, signed before the law guardian. The custody dispute thus came to a halt. The friendly agreement states that the care and custody of the children will be with the father given that the mother knows the address and phone number of the home and when she decides to come, she may have her children without any problems and abiding by school days. A Westchester County Criminal Lawyer said the agreement also states that the wife’s family may visit and telephone her twins and that if the twins are granted a green card, they may travel with her. She must also be informed of all the happenings of her children and they may visit their maternal grandmother during vacations. The agreement also requires the father to notify his wife if he decides to travel so she may keep closer contact with them and that they both keep an amicable relationship and respect each other's private lives.

In February 2002, the father reactivated the Dominican custody proceeding. In his request for a hearing he alleged that the amicable agreement between the parties is not being adhered to. The nature of the violation that prompted the father's action was not specified. By that time, however, the mother apparently lived in the United States and had regular, though intermittent, contact with the boys.

Proof of service by mail to an address not specified in the part of the Dominican court record before the court was submitted to the Dominican court. A Brooklyn Criminal Lawyer said the mother did not appear for the custody proceeding. In a decision, the District Court found the mother in default for nonappearance and awarded full custody to the father. Noting that the children had now been with their father for over a year, the court declined to move them again, citing the need for stability and security in the future. The law guardian in the proceeding took the position that custody should be awarded to the father, noting that the mother ceded custody of said children by means of an amicable agreement signed, and urged adherence to the agreement.

The mother, who asserts that she learned of the renewed custody proceeding only when she appeared in the Dominican Republic for a visit with the children, filed an appeal and an inquiry was held in that court. In a decision, the Appellate Court affirmed the grant of custody to the father.

Two weeks after the Dominican appellate decision, the father was arrested for threatening to kill the mother. He was charged with two counts of aggravated harassment in the second degree and related lesser offenses. He asserted to the Criminal Justice Agency, which interviews criminal offenders prior to arraignment for the purpose of advising the court on bail. He asserted that he had been self-employed, full time as an entrepreneur for the past two years. He gave his address and he represented that he had lived alone at that address during the prior year but he gave a different address to the arresting officer. At the arraignment, a full order of protection was issued in favor of the mother. Based in part on the father's representations of community ties, he was released on his own recognizance and remains at liberty.

Almost immediately upon release, the father brought a petition for writ of habeas corpus, alleging that the mother removed the children from the Dominican Republic in contravention of the final order of custody issued by the Family Court in Santo Domingo and affirmed on appeal. A law guardian was assigned to represent the children, and the matter was made returnable for the following day, in the Integrated Domestic Violence (IDV) Court.

In response to the writ of habeas corpus, the mother appeared in the IDV Court with the children. Given the allegations of domestic violence and the lack of official, translated court documents from the Dominican proceeding, the children were allowed to remain with their mother pending further inquiry. The Dominican court documents were then sent for official translation.

On December 4, 2002, the mother filed a petition for custody with the County Family Court. In that petition she alleged that, after she fled without the children to the United States in December 1999 to escape domestic violence, her husband took their children from her mother's home without her permission and obtained a default order of custody from a court in the Dominican Republic. She also filed a family offense petition which again alleges that her husband had threatened her life on the day after he filed the writ of habeas corpus and that he had displayed a gun, threatening to shoot her and the children.

The parties again appeared in the IDV Court and the law guardian interviewed the children, and reported an extensive history of domestic violence in the family. The court assumed temporary emergency jurisdiction of the proceedings, in accordance to Domestic Relations Law, and stayed enforcement of the Dominican custody decree. The children were again allowed to remain with the mother while a pending investigation is being made by the Administration for Children's Services.

In a report to the court, an ACS child protective services worker recounted a history of severe domestic violence during the parties' marriage in the Dominican Republic. The mother had medical records corroborating her claim of injuries at the hands of the father, and stated that the Dominican court had issued an order of protection in her favor.

The court assumes jurisdiction to modify the Dominican Republic custody order. As noted under Domestic Relations Law, modification does not necessarily mean a change in custody, only that the court's order, whatever it may be, will replace that of the Dominican court. Any measures requested by the parties, in accordance to Domestic Relations Law to ease the difficulties of litigating a matter with history in two far-flung jurisdictions, will be readily entertained by the court and, when appropriate, granted. The court staff will assist in any way possible to implement the procedures.

When marriage falls apart, the children always suffer the most. Separation in couples are often associated with violence and sometimes, even crime. When your partner committed any form of domestic violence against you or any member of your family, feel free to contact the office of Stephen Bilkis and Associates to consult any of the New York Domestic Violence Attorneys. If things have gone out of hand, a NY Criminal Lawyer can provide you with a sound legal advice.

On December 6, 2007, Pasqual Reyes was convicted of one count each of second degree burglary and endangering the welfare of a child as well as four counts of third degree sexual abuse. At trial, the jury sent the judge a note questioning how the age of the victim impacted intent with regard to the burglary charge. The court essentially stated that it would advise the jury that the age of the victim was irrelevant. Mr. Reyes’ criminal defense attorney objected and asked the court to reread its original instruction. Defense argued that age of the victim was a factor in determining intent to commit burglary. The court reaffirmed its stance and delivered a more specific instruction to the jury. The jury found Mr. Reyes guilty of the above-mentioned charges and his defense attorney appealed to the Supreme Court Appellate Division, First Department.

According to a New York Criminal Lawyer, the appellate court was asked to consider whether the court should have reread the original instruction as requested by defense counsel. Defense claimed that the revised instruction the trial judge provided was incorrect and prejudicially misleading. With regard to the defense’s argument, the court held that it was appropriate for the trial judge to have delivered more specific instructions to the jury, rather than the readback of the charge that was originally requested since the jury clearly did not understand the information given to them initially.
Defense counsel also argued that the third degree sexual abuse charge did not satisfy the intent element of the burglary charge. The appellate court again reiterated that the trial judge charged the jury correctly in stating that if they believed that Mr. Reyes intentionally entered the building in order to have sexual contact with a minor then the victim’s actual age is irrelevant. The court also cited New York law, which holds that a person is responsible for the age of any individual with whom they have sexual contact, whether they know the other person’s age or the person represents their age as being different from what it actually is.

A Westchester County Criminal Lawyer explained that in New York, a person is guilty of third degree sexual abuse when he or she has sexual contact with another person without their consent. A sexual abuse victim is legally incapable of consenting if they are less than 17 years of age. A person is guilty of endangering the welfare of a child if he or she knowingly acts in a way that is likely to cause physical, mental or moral harm to someone under 17 years of age. The prosecutor established that the victim was 14 years old at the time of the alleged sexual acts and Mr. Reyes was 32 years old.

With regards to the burglary charge, under New York law someone is guilty of second degree burglary if he or she knowingly enters a building with the intent to commit a crime.

The appellate court held that the trial court was correct in charging the jury that all the prosecution had to prove was that Mr. Reyes entered the building with the intent to have sexual contact with his victim, not that the victim was under 17 or that he knew her actual age. The court likened their reasoning to that used in cases where a defendant is charged with an attempted crime, rather than the completed act. As such, the appellate panel concurred in their opinion to uphold Mr. Reyes’ conviction on all counts.

Although Mr. Reyes’ criminal defense attorney attempted to challenge the court’s ruling, he was unsuccessful in proving his claims. The issues raised by the defense on appeal were contradictory in nature to the objections originally brought at trial, which lead the appellate court to uphold the jury’s verdict.

Hiring an experienced New York criminal defense lawyer is the first step in defending your rights when you have been charged with sex crimes. If you or someone you love has been arrested for rape, sexual abuse, sodomy or other sex acts involving a minor, you shouldn’t hesitate to retain experienced legal counsel immediately. The law firm of Stephen Bilkis and Associates is available to assist criminal defendants in fighting sex crimes charges. Call 1-800-NY-NY-LAW today to speak with a member of our expert legal team or visit one of our New York area offices to discuss your case in person. Don’t face the judge and jury alone. Call Stephen Bilkis and Associates today to get the help you need to protect your rights.

James Taylor was 21 when he broke into a New Rochelle home on May 2, 1975. Assisted by three other men, Taylor entered the home of a suspected drug dealer with the intention of stealing money from the residents. Asleep in the home were the alleged drug dealer’s wife and three daughters, who were aged two, five and seven. According to a New York Criminal Lawyer, the four men, who were armed and wearing masks, demanded money from the wife and threatened to kill the children when she stated she had none. After she repeated her claim that there was no money to steal, the men threatened to kidnap the youngest daughter and hold her for ransom.

One of the men took the girls’ mother into a bathroom just off the master bedroom and closed the door. While holding a gun to her head he told her he would kill her if she didn’t reveal where they hid their money. She was then tied, bound and locked in a closet. When she escaped, the men were gone, along with her two-year-old daughter. She called police, who arrived on the scene. An officer noticed a blue Datsun in the area, which was occupied by Taylor, another man and a little girl. Police attempted to stop the vehicle, which lead to a high-speed chase. Finally, the car collided with a light pole, allowing police to rescue the child and apprehend Mr. Taylor and the other man.

At a non-jury trial, Mr. Taylor was convicted of first degree kidnapping, first degree robbery, criminal possession of a weapon in the third degree and first degree burglary. He was sentenced to 20 years to life. In November 1995, Mr. Taylor was paroled and as a condition of his release, required to register as a Level Three sex offender. At a redetermination hearing held in 2005, a Westchester County Court found that the Sex Offender Registration Act was unconstitutional in Mr. Taylor’s case and that he was not subject to its requirements. In April 2007, the court’s decision was reversed on appeal and a new hearing requested. The case was then forwarded to the Westchester County Supreme Court.

On April 22, 2008, Mr. Taylor was served with a new risk assessment document by the prosecution. In May 2008, Mr. Taylor filed a motion to dismiss the proceeding on the grounds that the Sex Offender Registration Act (SORA) was unconstitutional and that being forced to register as a sex offender would be a violation of his rights. The court denied the motion in August 2008 and a new classification hearing was held in February 2009. At that time, the prosecution recommended a Level Three classification and Mr. Taylor’s criminal defense attorney again objected on the grounds that he never committed any sexual abuse or other sex crimes.
In considering his argument, the courted noted that in People v. Knox, the Court of Appeals found that requiring someone to register as a sex offender for committing a crime requiring registration is not a constitutional violation even when there is no evidence to suggest that a sex crime occurred. The Westchester County Supreme Court then considered the risk assessment used to classify sex offenders, which is based on a points system. In Mr. Taylor’s case, he received 30 points based on the victim’s age and 20 points for the fact that he was previously unknown to her. The court noted that 50 points was more than sufficient to classify Mr. Taylor as a Level One sex offender.

The court then determined that 30 points should be assessed because Mr. Taylor and the other robbers were armed at the time the kidnapping occurred. Mr. Taylor’s defense attorney then questioned the mother’s testimony, arguing that it was unclear to her whether his client actually had a gun in his possession. Upon reviewing the grand jury minutes, the court found that this claim was without merit and that the additional 30 points were justified.

Next, the court was asked to consider whether 15 points should be awarded for Mr. Taylor’s prior criminal history. In November 1971, he was adjudicated as a youthful offender after pleading guilty to a non-violent felony. The court held that under state guidelines, juvenile crimes and youthful offender adjudications held equal weight in determining risk. Accordingly, another 15 points was assessed against Mr. Taylor.

The court then had to determine whether 15 points should be added for Mr. Taylor’s prior history of drug and alcohol abuse. In the early 1970s, he attended multiple drug and alcohol treatment programs, including a methadone maintenance program. In 1974, drug treatment was lifted as a condition of his probation. Mr. Taylor claimed that no points should be awarded since he was not using drugs or alcohol at the time the robbery occurred. After considering Mr. Taylor’s prior treatment record and his statements regarding his current lack of drug or alcohol use, the court found that no points were merited in this category.

According to a Westchester County Criminal Lawyer, the prosecution also requested that 10 points should be given based on evidence that Mr. Taylor did not accept full responsibility for his criminal actions. Mr. Taylor challenged this claim, stating that he never denied committing the robbery or kidnapping. He also asserted that he acknowledged his guilt before a judge in March 2005. The court found that the prosecution’s arguments were unmerited and that Mr. Taylor had made sufficient efforts to accept responsibility for his crimes.

Finally, the court had to consider whether 10 points should be added based on Mr. Taylor’s behavior while incarcerated and after his release. The prosecution provided evidence of multiple violations that occurred while he was in prison, including five Tier II violations. Mr. Taylor argued that he never had any Tier III violations and that the infractions that occurred did not involve violence or sexual acts. He also argued that since the Parole Board granted his release at his first parole hearing, this should serve as evidence of a lack of any behavioral problems. The court agreed with Mr. Taylor’s arguments and found no evidence which would merit the awarding of additional points in this category.

In total, Mr. Taylor received 95 points, which would qualify him as a Level Two offender. The prosecution sought to increase this to Level Three while Mr. Taylor sought to reduce it to Level One. Specifically, he argues that he never committed any crime that involved inappropriate sexual contact with a minor and that since his release he has made every attempt to live within the confines of the law. In sum, Mr. Taylor claims that he is no longer a threat to anyone and that a lower classification is appropriate.

After reviewing the claims of both parties, the court held that Mr. Taylor’s classification should be downgraded to a Level One offender. The court based its decision on the facts of the case and on the fact that his behavior since being paroled did not demonstrate any potential risk to society.

Mr. Taylor’s New York legal counsel continued to work diligently on his behalf long after his sentence was complete. Without his help, Mr. Taylor’s classification as a sex offender may not have been downgraded to a more appropriate level.

In cases involving sex offenses, it’s important to have an experienced criminal defense lawyer on your side. The law firm of Stephen Bilkis and Associates is committed to aggressively defending the rights of clients who’ve been charged with rape, sodomy, sexual abuse and other sex offenses.

If you or a loved one has been arrested for a sex crime, you need to call 1-800-NY-NY-LAW to discuss your case. Help is also available by visiting one of our New York area offices. Don’t let a conviction for a sex crime ruin your life. Get the experienced legal representation you need to protect your rights by calling Stephen Bilkis and Associates today.

Three accident victims were shot after being injured in a car accident in rural southern town, said a New York Criminal Lawyer. The accident occurred at night in the early evening. The victims included the driver and his two young daughters, ages four and seven.

Local police officers at the scene revealed that the victims’ car was rear-ended by an African American male, 21, early Tuesday evening near an intersection. Once he left his car, the African American male walked up to the car with a .22 pistol and began shooting frantically into the victims’ vehicle. The driver was shot three times. The seven year old daughter was shot four times. The youngest daughter was not injured by the gunfire.

According to authorities, the gunshot victims were treated for minor injuries at a local hospital. Their injuries were determined not to be life-threatening. The father was released the next morning, Wednesday, following treatment. No information was available concerning the status of the two daughters or when they were released.

The assailant was arrested and later charged with two criminal counts against his victims. The assailant was charged with using a deadly weapon to assault his victims, intending to kill them; and, using a deadly weapon to inflict serious injury on his victims. More charges could be filed at a later time. The assailant is still in jail at a county jail nearby, close to the crime scene where the accident first occurred. His bail was set by a local judge at $100,000 in the form of a secured bond. The felonious assault charges carry a heavy sentence if convicted on both counts. No details were released by investigators as to whether there were eyewitnesses to the felonious assaults or the initial accident prior to the shootings. The random gun violence in the case was the basis for the intent to kill portion of the charges as discharging his weapon 7 times into the victims’ bodies was evidence enough for such charges to be filed.

According to a Westchester County Criminal Lawyer, the driver who was shot and hospitalized with his daughters was not available for comment following release.

Whether you are found guilty or not, a serious charge such as this can create a multitude of problems in your personal and professional life. Defendants may experience not only serious legal penalties for their offenses, but also problems with employment and obtaining housing. Family relationships can also be irreparably damaged. If you have been charged with a crime it is important to seek skilled legal representation to ensure that your rights are protected at all stages of the legal process.

Continue reading "Accident Victims Shot" »

The Tennessee State Board of Medical Examiners in TN, unanimously voted to reinstate the medical license of a doctor who was recently acquitted of rape charges. The State Board had previously suspended the doctor’s license after the rape charges were filed against him.

Four male patients, all in their twenties, had accused the doctor of performing unnecessary medical procedures during exams in 2008. A New York Criminal Attorney also confirmed that each of these male patients were all exhibiting symptoms of sexually transmitted diseases (STD) and the doctor had performed these procedures on their rectums and genitals.

Throughout the doctor’s rape trial, members of his staff had testified on his behalf stating that the alleged rapes did not occur, nor was there anything improper being done as there was always a staff member in the room with the doctor and his patient during these procedures.

Another TN doctor had also testified that had the doctor not performed the medical procedures that he did on the male patients, that he would have been negligent.

Although the doctor was acquitted and has had his medical license reinstated, this is not his first run-in with the legal system, explained a Westchester County Criminal Lawyer. In the 1990s, his medical license was suspended for one year while he faced similar charges in Pennsylvania. This case occurred while the doctor was working as a resident. One charge was dismissed by the judge and the other case the jury acquitted him.

The doctor patient relationship is very complex. There may be few other instances that anyone would allow someone outside of those they are the most intimate with to not only see the most private parts of their bodies, but also to touch those parts as well. Some folks may be comfortable with that, while others will cringe at the very thought of it. If you experience the least amount of discomfort, you should speak with your physician and if necessary request that a staff member be present during that examination. The discomfort may also be experienced by your physician, who as in this case learned from a past experience and had a staff member present during the more personal exams.

Continue reading "Doctor’s License Reinstated Following Rape Acquittal " »

A Massachusetts, a School Committee member has decided not to seek re-election. The decision seems to have been a year in the making, since many of his colleagues have repeatedly urged the 46-year old man to step down following his arrest last year for DWI.

The incident began on New Year’s Day 2010 following a call to 911 where the caller reported the driver of a pickup truck that was driving erratically, sources explained to a New York Criminal Lawyer.

An off-duty police sergeant was in his personal vehicle after completing his shift and heard the call over the police radio of what was happening. He spotted the pickup, radioed the location to the police dispatcher, and proceeded to follow it. Soon after he would observe the driver of the pickup, drive recklessly and almost hit two joggers. Soon afterward, a police cruiser arrived and stopped the truck. As part of the police’s investigation, they learned that the driver’s blood alcohol concentration (BAC) was 0.25 percent, which is more than three times the Massachusetts legal limit of 0.08 percent.

The school committee member’s attorney and the prosecutor reached an agreement during the man’s arraignment in District Court that “allowed him to admit there were sufficient facts to find him guilty of drunken driving,” a Westchester County Criminal Lawyer was told. Rather than try the case forthwith, the case was continued for one year. This was in large part due to it being his first DWI offense and the court placed him on supervised probation. During his probation, he was eligible for a hardship license that permitted him to drive to and from work.

Although many of the school committee members have stated that his decision to step down from the school board following his DWI arrest was a personal one, many have urged him to step down for the good of the committee, staff, and students of the school district. Some had even inquired as to whether they had any legal recourse to remove the man from the committee, of which they learned that they had no legal options available to remove him. They must therefore wait until after the election that he has stated that his name will not be on the ballot for him to leave.

Whether you are found guilty or innocent, a DWI charge can turn your life upside down. It is important to ensure that you receive quality legal representation to ensure that your rights are protected.

Continue reading "School Board Member in Massachusetts Not Seeking Re-election After DWI Arrest Last Year" »

A recent study produced by a leading medical facility in Scotland finds that chronic pain risk is higher among car accident victims than other members of the population. Researches shared their findings with an New York Criminal Lawyer. Chronic pain is defined in the study as pain on both the lower and upper halves of the body, or on the right or left sides of the body, lasting 90 days or longer.

The new study drew from results of a previous study conducted over a four year period involving subjects who fit the criteria for widespread pain lasting 90 days or longer. The subjects had muscular and skeletal pain symptoms along with psychological distress from constant pain due to car accidents, job injuries, giving birth to children, broken bones, surgeries, and time in a hospital.

12 percent of those studied reported that they had new onsets of widespread pain over a 90 day period. Researchers relayed another findings that were particularly relevant to car crash studies. Eighty-four percent of this specific group representing 12 per cent of the over 2000 subjects in the study had been in vehicle accidents prior to the onset of new pain patterns.

The study is of particular interest to insurance companies who process accident claims involving medical treatment of accident victims. The findings of the study suggest that car accident victims are likely to manifest new pain symptoms after being treated immediately following their accidents. The likelihood of needing additional medical care is higher among auto accident victims than work injury victims experiencing widespread pain over 90 days or longer following their injuries, according to a Westchester County Criminal Lawyer.

The findings also suggest that higher cost injury claims can be sought in advance based on the high likelihood of re-occurring pain following a vehicular accident. These claims can be sought in the form as “actuarial contingencies” at the time of injury settlement by the victim. Victims of an auto accident should consult with their attorney for a legal definition of their rights.

The study was published in a leading medical and rehabilitation journal.

Continue reading "Pain Study Car Crashes Lead to Higher Risk of Chronic Pain" »

A New York Criminal Lawyer was told by immigrant officials that in Wisconsin the state had every county being a part of the immigration enforcement strategy. Federal officials announced to a New York Criminal Lawyer that they have developed an information system that would share details with each country so that people who are accused of criminal charges will be easily identifiable.
The immigration officials told the press that about thirty seven states were on board with this program. It is anticipated that by the year 2013, more states will become a part of this immigrant fingerprinting system so that even if the illegal immigrant moves to another state, their information will still be available.
Wisconsin is one of the states that joined the immigration program on a state and federal level. This means that when fingerprints are taken from an individual who is being charged with a crime, they will be put in custody and their criminal records checked.
Additionally, when someone gets charged with a crime in Suffolk and Westchester Counties, their information can be shared with the FBI, and other criminal records related to the FBI will show up. An immigration official told the NYC Criminal Lawyer that there is a lot of controversy around the subject and the state has to move carefully, but deliberately with this tough topic. A lot of citizens think that the system will only add to the frustration felt by many because innocent people may be affected by this. Officials from the law enforcement division do not agree with this idea.

Continue reading "Immigrant Fingerprinting as indicated " »

The Mississippi Lawmakers told a New York Criminal Lawyer that they are one step closer to reaching the same decision about immigration law that Arizona has implemented and adopted. What this means is that soon Mississippi law enforcement can stop people at traffic stop lights and elsewhere and ask them to show the appropriate immigration documents.
There are many who welcome this idea, but there are a lot of Mississippi residents that loathe the idea and consider it as a form of racism and profiling. According to the state reports, there was a lot of Hispanics that moved into Memphis, Mississippi in 1987. “A lot of these people are non-immigrants and do not have the right to stay in the country, said one Police Office to the New York Criminal Lawyer. A legislative bill is expected in Mississippi to hold every law professional such as the Police to check someone’s status of immigration if suspicious. People will also go through random checks even in places like Staten Island and Westchester County.
One resident of Mississippi is angry about it. She says she is an American and does not think that the Police should ask her of her immigrant status when they don’t ask people who come from Canada the same question.
However, a spokesperson explained that the Senate in Mississippi would get this bill passed. How it will work is that the police can ask for immigration records when they are involve with a traffic stop incident. The Senate wants to stop the threat of immigration and the problems that it causes.

Continue reading "Changes in Mississippi Immigration Law" »

An immigration official from the United States expressed concern to a New York Criminal Lawyer about the application that a CIA exile trainee filed in her jurisdiction. She noticed some red flags when she saw the answers that the exile put in his N400 form. When he was asked about whether or not he was a part of a government overthrow, he answered, “Yes.” When he was asked about his criminal history, he mentioned being imprisoned in Panama for four years.
The immigration official told the New York Criminal Lawyer that the answers to the questions eliminated him from being considered for such a prestigious status. In addition to those answers, it is to be noted that this CIA exile trainee had been arrested in the year 2002 with an accusation that he had plotted against Fidel Castro to assassinate him when he visited the country. However, he got convicted for a charge that was lesser.
The President pardoned his actions in 2004 and this action was thought of as being very controversial. According to the immigration official, these things are raising so many concerns in the judicial system. He was also accused of lying while he was under oath during his 2005 asylum hearing and his 2006 immigration and naturalization hearing.
The immigration official told the New York Criminal Lawyer that there were many confusions and errors during the trial as the defendant and his interpreter went back and forth from English to Spanish during the hearing. The defendant was also accused of not being truthful about how he came to the United States. The case is still ongoing.

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Many Connecticut residents don’t know what to make of the decision of a jury to give the murderer of a Fairfield couple life in prison without parole, rather than the death penalty.
“It’s such a weighty decision.” This comment was made by the owner of the store next to the one where the murders took place. The killer shot both victims several times as he robbed their jewelry store on February 2, 2005.
“I know them very well,” the store owner next door told New York Criminal Lawyers. “They were genteel, sweet, family people. They had an unbelievable graciousness with loving, kind hearts.”
The victims’ children had just recently graduated college and had to endure six years as the trial process dragged on.
One benefit of the life sentence, in the eyes of some, is that it will not be endlessly appealed for years. Connecticut law automatically appeals any death sentence. In Queens and Westchester Counties, the judges are asked to move cases along so that this kind of delay doesn't happen.
The killer is already serving life in prison in New York State for another murder, when he killed a jewelry store owner in Glen Head, New York. This happened less than two months before he murdered the Connecticut couple. He fought against extradition to Connecticut, specifically to avoid the death penalty and lost.
The jury deciding the penalty had to decide whether the aggravating factors of the crime justified the death penalty and whether the mitigating factors made him ineligible for the death penalty. Some argued his troubled background and heroin addiction gave him a lack of control that lead to his criminal acts, while others claimed these were no excuse.
Another store owner was quick to say, “If you kill someone, you deserve to die.”
“It was a horrendous, horrendous crime and I think he deserved a lethal injection.”
A pastor who was a classmate of one of the victims explained to New York Criminal Lawyers, “In essence, the death penalty solves our problem of what to do with offenders… in the same way that he solved his ‘problem’ in that horrible moment: by taking a life. That’s revenge, not justice. Nothing would be set truly right; nothing would be restored by his execution; everyone would wind up in the loser column.”

Continue reading "Fairfield, Connecticut Reacts to Murder Verdict" »

Although this story began in 2005, a N York Criminal Lawyer has learned from sources that the case was solved. It was solved due to the dogged determination of a private investigator, who by following his gut instincts tracked the woman’s assailant across the country.
The story began in February 2005 when a Dade County, FL, utility worker found a woman in the grass at an undeveloped cul-de-sac just outside of Miami, FL. The woman had been dumped and left for dead. Sources said that the utility notified the authorities who determined the woman was still alive and immediately transported her to the nearest medical facility where she would remain unconscious until the next day. Investigators attempted to gain information from the woman so as to ascertain who committed the crimes against her, but due to her inability to speak were able to collect some vague information as she could write it.
The woman was a Ukrainian who was employed with one of the cruise lines out of Miami who had been injured on the job and had been placed in a local hotel room by her employer as she recovered. Since the woman had filed suit against her employer, these details explained to investigators why the only person she could direct investigators that she knew was her attorney. In Westchester and Suffolk Counties this crime could easily result in a murder charge and criminal procedure would ensue.
A New York Criminal Attorney also learned that investigators were able to determine the approximate time and location of the attack on the woman. It had occurred at some point after she had entered an elevator at the hotel. The surveillance cameras showed the woman entering the elevator but did not show her exiting it. They did show, however, a large, black man exiting the elevator with a large piece of baggage that appeared to be very heavy since the man had struggled with the bag as he exited the elevator.
Investigators initially could not locate the man exiting the elevator to question him about anything that he may have seen, nor could they locate any more leads and the case went cold. Due to the woman filing a lawsuit against the hotel for lax security, the hotel hired a private investigator to investigate her claims. The investigator was a former NY police officer and federal DEA agent who soon became intrigued by the mystery of this case.
Over time, the investigator would follow leads that led him from Miami to Colorado, and to the woman’s attacker in Frederick, MD. After further investigation and the comparing of DNA evidence between her attacker and others in various locations, the man’s identity was confirmed. However, it would take his conviction on an unrelated case for the Ukrainian woman and the private investigator to see the man sentenced to 24-years to life, for his attack on a Colorado woman.

Continue reading "Woman Survived Attack in Miami—Mystery Solved" »