New York Criminal Lawyer Blog

A driver from New York appealed when he was convicted of the crimes of vehicular manslaughter in the second degree and two counts of DWI (driving while intoxicated) and the traffic infraction of failure to keep right.

In tne early morning, following an evening of drinking at a bar, the defendant commenced driving his car with one passenger in the front and the victim, who was acutely intoxicated in the back seat. Shortly afterwards, the defendant was involved in a single vehicle accident, in which his car struck a guide rail, crossed the road and went into a ditch. Although the front seat passengers were not seriously injured, the one seated at the back died. A New York Criminal Lawyer said the pathologist who conducted the autopsy concluded the cause of death was Aspiration gastric contents due to Concussion. A jury found the defendant guilty on all four counts. His subsequent sentence included a prison term, a fine and restitution for vehicular manslaughter, one year in jail on each of the driving while intoxicated counts, and a fine for failure to keep right. All the prison terms were concurrent.

Records revealed that the defendant argues that his conviction of vehicular manslaughter in the second degree was not supported by legal sufficient evidence. When analyzing legal sufficiency, the evidence is viewed in the light most favorable to the prosecution and determine whether there is a valid line of reasoning for a rational jury to have found beyond a reasonable doubt each of the essential elements of the crime. Vehicular manslaughter in the second degree is comprised of criminally negligent homicide in which the death is caused by an operator who is driving while intoxicated. The defendant contends that the evidence failed to establish criminal negligence and failed to show that his conduct caused the victim's death.

Criminally negligent homicide involves a failure to perceive a risk of death, and some serious blameworthiness in the conduct that caused it. The risk involved must have been substantial and unjustifiable, and the failure to perceive that risk must have been a gross deviation from reasonable care. There was proof that both the defendant and the victim had been drinking substantial amounts of beer and shots of liquor throughout the evening and early morning hours.

Despite his considerable consumption of alcohol, the defendant, after helping place the victim in his car, began driving. The front seat passenger testified that following the accident, he wanted to get help for the victim, but the defendant told him not to and, instead, instructed him to assist in attempting to get the car out of the ditch. The accident occurred near a house and the occupant of the house awoken at the sound of the accident and stated that they heard the occupants trying to get the car out of the ditch for about half an hour. Several witnesses who came upon the scene more than half an hour after the accident described the defendant as appearing severely intoxicated with slurred speech and difficulty standing. The defendant acknowledged to a police officer at the hospital that he had been drinking and missed a turn because he was going too fast. He submitted to an alco-sensor test that indicated positive for alcohol, and a subsequent blood alcohol test was taken a considerable time after the accident revealed a level of .17%. The evidence adequately supports the jury's determination that the defendant's conduct constituted negligence.

The defendant contends that the victim choked on his own vomit. A Bronx Criminal Lawyer said the pathologist who performed the autopsy testified that the large hematoma on the victim's forehead revealed that he had not choked prior to the accident since such bruising would not have occurred if he is already dead. He further explained that, despite the victim's high blood alcohol level, his gag and cough reflexes would have remained responsive. However, the pathologist added that the victim sustained a concussion in the accident and a concussion made it significantly more likely that the victim was not able to cough and clear his throat from vomit. The evidence adequately established that the victim was alive when he was placed in the defendant's car and the defendant's conduct was a sufficiently direct cause of the victim's death to support the verdict.

The argument that County Court erred, after conducting a hearing, in admitting the results of the horizontal gaze nystagmus test is also unpersuasive. The defendant failed to establish an abuse of discretion or extraordinary circumstances that would merit modification of his sentence.

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The defendant in this case is charged with a DWI and violation of vehicle and traffic laws. A hearing was ordered by the court to determine if the blood test obtained from the defendant had led to the violation of vehicle and traffic laws.

The police officer who arrested the defendant was named the witness in the hearing. There were no witnesses for the side of the defendant. The court heard the testimony of the witness and examined the evidence presented before it.

According to a New York Criminal Lawyer, after the witness had testified, the court has found the witness to be credible since the witness is a veteran police officer. On the day of the arrest, the officer was on his usual patrol when he received a report concerning a vehicle accident. He arrived at the scene and found the two cars involved in the accident. He noted that one car had attained damages on its rear end. The other car had damages at the front. The police officer chose to approach the car with the front damage. The driver of the vehicle was the defendant in this case.

A Staten Island Criminal Lawyer said the officer proceeded to ask the condition of the defendant and inquired about the cause of the accident. According to the defendant, he was driving his car along the road when he hit another car. The police officer noted during that time that the defendant had glassy and bloodshot eyes. The defendant also had slurred speech when he spoke. The officer also noticed that a hint of alcohol seemed to come from the vehicle.
It was during this time that the officer had asked the defendant if he had drank recently. The defendant admitted that he did take alcoholic drinks. When the police officer asked the defendant to step out of the vehicle, the officer noticed that defendant had difficulty maintaining his balance. The officer concluded that the defendant was driving while intoxicated. He arrested the defendant and had him tested at a medical center.

According to his statement, the police officer called the highway patrol to request for the blood kit to be taken to the defendant. He made the call while they were on their way to the hospital. The blood kit was needed to take a sample of the defendant’s blood. A blood sample was needed to detect the presence of alcohol in the bloodstream. An emergency room nurse was requested by the police to take a blood sample from the defendant. The sample was sealed and placed inside the box of the blood kit.

Based on witness testimony and the evidence presented in this case, the court has determined that there were sufficient grounds in which the police officer had acted on the defendant. The court noted that the officer responded to a radio report regarding the accident. It was the police officer’s duty to respond to a road accident and provide assistance if needed. It was also his job to assess the situation including observing the behaviour of the vehicle driver. Since it was the defendant’s car that had the front damage, it was clear that the defendant had caused the accident. The defendant himself admitted to the officer that he had been drinking. This explains the accident since he was driving while intoxicated.

It was also clear to the court that the defendant showed the usual signs of intoxication. This is direct evidence that the defendant had been drinking. Other signs include the difficulty in maintain body coordination and the smell of alcohol on his car. The officer had established probable cause in light of the evidence presented.

The statements given by the defendant including his admission that he was drinking were given in his own free will. Therefore, the court has decided to deny the motion filed by the defendant to suppress the statements. However, the defendant’s motion to suppress the blood sample results was granted due to the unclear identity of the individual who drew the blood sample.

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A man was arrested in November 14, 2007 for driving while intoxicated and his license was revoked. As part of his conviction, his driver’s license was revoked for six months. But because this conviction was the man’s first, he was able to join a rehabilitation program offered by the Department of Motor Vehicles.

A New York Criminal Lawyer said that as part of the rehabilitation program, the man was issued a conditional license. This license imposed restrictions on him: he can only drive to and from work; he can only drive to the rehabilitation program and its related activities; he can only drive to and from school; and he can only drive between 12:00 noon and 3:00 p.m. on Saturdays.

On February 10, 2008, the man was arrested once more for driving while intoxicated. He was arrested at 1:04 p.m. He was with his girlfriend and upon his arrest he told the arresting police officer that he and his girlfriend came from a bar. He was charged for driving while intoxicated and other offenses. Under the indictment, he was charged with aggravated unlicensed operation of a motor vehicle in the first degree.

During the DWI trial, the man asked that the charge of aggravated unlicensed operation of a motor vehicle in the first degree be dismissed. He claims that he was not unlicensed at the time of his second arrest. He did have a license, albeit a conditional one. He argued that he should only be charged with unauthorized operation of a motor vehicle, a misdemeanor that carries with it a penalty of $500 and 15 days’ imprisonment.

A Suffolk County Criminal Lawyer said the People vigorously opposed the motion arguing that the penalty of the charge of aggravated unlicensed operation of a motor vehicle in the first degree is higher and is a more suitable punishment for the man. Because when he went to drive on a public highway, he knew full well that his license had already been revoked. This crime carries with it a higher penalty of 30 days’ imprisonment. After all, he was already convicted of driving while intoxicated and his license was revoked, and then, after he was given a conditional license, he again went and drove his vehicle on the public highway in violation of the conditional license which has also been revoked for driving while intoxicated for the second time. Driving while intoxicated and without a license carries with it a stiff penalty of 180 days’ imprisonment. Driving without a license after the license was revoked for driving while intoxicated carries with it a much higher penalty of up to four years. The People argue that the man’s callous violation of the law cannot be rewarded with a light penalty. Doing so will disregard the State’s policy to curb drunk driving.

The Supreme Court decided to dismiss the graver charge against the defendant of driving with a revoked license and instead found him guilty of the lesser misdemeanor of driving in violation of the conditions of his license.

The Supreme Court decided that the man’s license was revoked after his first conviction for driving while intoxicated but he was issued a new conditional license. His second arrest for driving at a time and for a purpose that is not allowed under the provisions of his conditional license is a mere violation of the terms of his conditional license.

This interpretation of the statute is the most plausible reading of the law as the legislature has amended it. The most recent amendment of the law involved the raising of the fine from $100 to $500 but the prison term of 15 days remained intact.

A conviction for driving while intoxicated carries with it not only a prison term, it also carries with it subsidiary penalties such as a fine and revocation of the convict’s driver’s license.

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In New York City, a man was charged with four counts of manslaughter in the second degree, four counts of vehicular manslaughter in the second degree, two counts of DWI (driving while intoxicated), reckless endangerment in the second degree, driving with a suspended registration and various traffic infractions. A New York DWI Lawyer said that the charges arise out of a single-car collision that resulted in the death of three people, a pregnant woman and her son and the sister of the pregnant woman. Also at issue is whether the son, delivered by cesarean section after the death of the mother, was an additional fatality under the law. The defendant is alleged to have been driving while intoxicated and above the legal speed limit when he ran a red traffic signal and collided with the family crossing the intersection.

Records revealed that the defendant had the opportunity to examine the Grand Jury minutes and claims that the evidence before the Grand Jury is insufficient to support any of the charges of manslaughter in the second degree while conceding the sufficiency of the evidence regarding the charges of vehicular manslaughter involving the deaths of the three victims. The defendant claims, however, that none of the charges were sustained with regards to the son. He argues that he cannot be charged with the death of a child who was never legally alive.

A New York DWI Lawyer said that he also seeks a number of rulings to be disqualified prior to trial. He seeks to exclude the testimony of a lay witness who testified as to the speed at which his vehicle was traveling; the testimony of his alleged drinking prior to the collision; the prosecution from introducing evidence of the name and nature of the bar where he was said to have been drinking; and to exclude the testimony that two empty beer cans were recovered from his vehicle. He also seeks to disqualify the court from introducing evidence of his refusal to submit to a coordination test. In addition, he moves to suppress his statements allegedly made to a Police Captain.

For charges to be sustained, a Nassau County DWI Lawyer said that the court must find that the court have met the burden of establishing a legitimate presumption of criminal conduct. The sufficiency of the Grand Jury presentation is established by determining whether the evidence, viewed in the light most favorable to the court, if unexplained and un-contradicted, would warrant conviction by a jury. As long as the Grand Jury could rationally have drawn the guilty conclusion, the evidence is sufficient. Questions of credibility or weight of the proof are not to be considered by the reviewing court but remain the exclusive domain of the Grand Jury.

The defendant concedes that the Grand Jury heard sufficient evidence to indict him for vehicular manslaughter but contends that it was not presented with evidence sufficient to indict him for manslaughter in the second degree. The court agrees with the defendant's first assessment but rejects his second.

In order to sustain charges for vehicular manslaughter, the court must show that the defendant, acting with felonious negligence, caused the death of another by operating a vehicle while intoxicated. A person acts with felonious negligence when he fails to perceive a substantial and unjustifiable risk and that failure constitutes a gross deviation from the standard. The identical act is elevated to reckless conduct when the person is aware of but consciously disregards the same substantial and unjustifiable risk. Moreover, the conscious disregard of such risk encompasses the risk created by a defendant's voluntary intoxication.

The Grand Jury heard evidence that the defendant was voluntarily and excessively intoxicated, beer cans were recovered from his vehicle, he drove his vehicle significantly above the legal speed limit, and that he disregarded or disobeyed a red traffic signal before crashing without warning into an unsuspecting family crossing the street with the traffic signal. Such conduct on the defendant's part can certainly be characterized as reckless within the meaning of Penal Law and would suffice to establish a legitimate presumption that he engaged in the blameworthy, risk-creating conduct associated with reckless manslaughter.

With regard to the counts of vehicular manslaughter and reckless manslaughter involving the son and his status as a person, the presentation before the Grand Jury met the legal standard for sufficiency. The Grand Jury, presented with opposing expert opinions, was entitled to reject the opinion of the Medical Examiner in favor of the opinions of the treating physicians and an expert in pediatric cardiology. They testified that a fetal heart beat was detected after the mother's death and that the son was delivered by cesarean section, fully formed without a heartbeat. They further testified that the heart, although jump started by medication, was beating on its own for a period of time without artificial stimulation before the son was pronounced dead.

The Grand Jury thus heard sufficient evidence from which to conclude that the son was a person capable of being a victim of a homicide. The Penal Law defines a person who is the victim of a homicide as a human being who has been born and is alive.

The testimony of the son’s sustained heart beat and blood pressure was the defining feature in establishing his identity as a person. Upon separation from his deceased mother, his heart was jump started by outside intervention enabling him to become an independent person for a short period of time. Without any statutory specifications as to when or under what circumstances the heart can be revived or when it must commence beating, the son’s brief life as a person was clearly the product of a live birth.

The defendant's motion to disqualify the lay witnesses from giving opinions about the speed of his vehicle is denied. Such evidence is competent and admissible as long as a proper foundation has been laid. The testimony regarding the defendant's drinking at a topless bar will not be disqualified since it is relevant to establish both the defendant's state of mind and the extent of his intoxication. The testimony that the bar was off limits to police officers will also be permitted as relevant to the defendant's state of mind. However, the name of the bar and the nature of its entertainment shall be excluded as unnecessarily prejudicial.

The testimony that beer cans were found in the vehicle will be admitted because its discovery is relevant to the claim of the defendant's intoxication and to the level of his culpability. The defendant may establish either by cross-examination or through his own testimony that these beer cans does not reflect that he had been drinking while driving.

The defendant's motion in disqualifying the results of the Alco Sensor test is granted. As conceded by the court, the test is not deemed to be reliable evidence of intoxication. However, the motion to exclude the testimony of the defendant's refusal to submit to a field sobriety test for coordination is denied. The Court analogized the refusal to perform field sobriety tests to the refusal to permit a chemical analysis test under Vehicle and Traffic Law. The Court stated that it was constitutionally insignificant that one was statutorily authorized while the other was not. The court reasoned that if evidence is constitutionally permissible, the absence of authorization in a statute does not make it impermissible.

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The defendant was charged with DWI including various traffic violations. A suppression hearing was scheduled to determine if the statements admitted for evidence were allegedly given by the defendant. The hearing will also determine if the breath test results of the defendant will be placed under suppression.

The only witness in the hearing was the police officer who arrested the defendant for driving while intoxicated. The court was tasked to make a decision regarding the motion to suppress by reviewing the facts and the precedents of the case.

According to a New York Crirminal Lawyer, the police officer who arrested the defendant is an experienced female officer who already had several DWI arrests under her belt. On the day of the arrest, the female officer was on her usual patrol when she pulled over the defendant’s car. When the officer approached the car, she asked to see the license and registration. While the defendant produced the needed documents, the officer asked the defendant if he knew why she asked him to pull over. The defendant remarked that he was driving like an asshole.

The police officer asked where the defendant came from and replied that he was at a friend’s house. When the officer had asked if the defendant had been drinking, the defendant gave an affirmative response. During such time, the officer noted that the defendant showed the usual signs of intoxication such as bloodshot and glassy eyes and slurred speech.

An NYC Criminal Lawyer said that the officer judged that the defendant was guilty of DWI and arrested him. The defendant was brought to the precinct. At the precinct, the defendant refused to take the chemical test and breath test. The officer gave the Miranda warnings to which the defendant acknowledged that he understood his rights. When asked if the defendant wanted to talk to his lawyer, he said yes. When asked if he wanted to continue talking to the officer without his lawyer present, he also affirmed. The officer moved on to asked him more questions. In the end, the defendant consented to taking a breath test. The first attempt gave an insufficient sample. By the second attempt, the defendant was positive with alcohol in his body.

According to the provisions of the law, a defendant who has been temporarily detained because he was pulled over is not considered detained for the purposes of Miranda warnings. When a defendant is submitted under a routine stop on the road, the questioning of the police officer should be treated as only investigatory in nature.

In the suppression hearing, the probable cause for the traffic stop and the arrest should be the legal issue being discussed. The police officer’s temporary stop of the defendant was a legal procedure and did not pose an issue of custody. It can be recalled from the statement of the officer that she did not read the Miranda warnings while she was talking to the defendant on the road. The statements of the defendant when he was pulled over were made out of his own free will. He was not forced by the police officer to say anything he didn’t want to say. The court has determined that the statements of the defendant were voluntary and should be allowed as evidence against him.

In the issue regarding the evidence acquired from the tests administered in the precinct, it appears that the defendant’s right to counsel had been violated. According to the law, when the defendant in custody has expressed his intention to have a lawyer present, no further questions should be asked by the investigating officers.

Despite the defendant’s affirmative response when asked if he was comfortable answering more questions from the officer, this does not mean that he is waiving his rights to counsel. The evidence that would prove his guilt was taken because his rights had been violated. Therefore, the court has ruled that such evidence is not admissible in court since it was obtained illegally.

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According to a New York DWI Lawyer, the defendant has filed a motion to deny the request made by the prosecution that he should be sentenced as a felony offender for the first time. The defendant had given a guilty plea for attempting to sell illegal drugs. The defendant was convicted for assault charges which he admitted he was guilty. He was sentenced to a prison term of at least one or one and half years. The maximum sentence is four years. The defendant has already admitted that he was the same defendant who was initially charged for the first felony. The defendant has challenged the conviction made in his second conviction. The defendant contends that he received ineffective counsel from his lawyer.

The defendant presented a memorandum to support his motion. The letter memorandum contained an outline of the defendant’s case. It also includes information that the defendant had informed his lawyer about the facts of his alleged offenses. These offenses were the basis of his current assault conviction.

A New York DWI Lawyer said that the defendant further contends that his previous lawyer failed to present a DWI defense during his previous conviction. The defendant also challenged the prosecution that his guilty plea should be removed from the records since he was denied the effective counsel assistance. To support this statement, the defendant has submitted a letter from that lawyer who affirms the circumstances that are relevant to his guilty plea. The prosecution has opposed the motion of the defendant and filed a motion for the court to sentence him for his second felony conviction. It has been noted by the court that the defendant did not submit to a letter from the previous case’s lawyer that should have explained the circumstances involved.

A Nassau County Criminal Lawyer prosecution has established the preceding conviction. It is now up to the defendant to prove that it has no legal basis. The court has found that the defendant did not submit any document that would explain the circumstances of his guilty plea. The defendant did not provide an explanation as to why there was no affidavit from the counsel.

The testimony of the defendant during the hearing was found to be self-serving. It doesn’t contain an explanation for the defendant’s claims of ineffective counsel. Since there was no explanation provided for the surrounding circumstances, the court will next examine the assertion if his previous conviction had constitutional merit.

To shed light to the case, the court has evaluated the minutes of the defendant’s statements during his guilty plea. However, the court did not find anything relevant to the case. There was no information as to how the prior lawyer will defend his client. The contentions of the defendant were outlined in an unsworn document by the defendant’s current counsel. The memorandum prepared by the current counsel contained statements that are contradictory to the events described by the defendant concerning his assault case.

As the hearing began, the defendant had presented a different version of the events that had transpired. This was entirely different from the events relayed in the memorandum before the hearing. In the contradictory statement, he was involved in a fight with his girlfriend which led to physical blows. The girl sustained physical injuries. In this version of his statement, the defendant claimed that he was only acting out of self-defense and denied being intoxicated. The defendant admitted to drinking before the fight happened.

Due to the differences in statements, the court has found that the defendant’s testimony had no credibility. The defendant also admitted that he did not let his lawyer know that he was intoxicated at the time. He also admitted that he only told his lawyer that he had been drinking and not exactly drunk.

The evidence presented before the court proved that the defendant could not establish his claim of ineffective legal counsel. The previous lawyer’s performance was reasonably effective and showed no prejudice.

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In 1981, a wife was shot and killed at her home by her estranged husband. The defendant husband was charged for murder in the second degree for intentionally causing the death of his wife. At trial, the husband did not deny that he fired the shots which killed his wife; rather, he offered evidence to establish that he did not have the right state of mind to commit intentional murder. Specifically, the husband sought to show that at the time of the shooting he was suffering from hypoglycemia, a condition resulting from his having taken an excessive amount of insulin to control his diabetes, which rendered him, in effect, intoxicated and incapable of forming the requisite intent.

Records revealed that the defendant husband requested to the jury that manslaughter in the second degree and criminal negligence homicide be charged as lesser included offenses of intentional murder. After the County Court denied his request, the husband was found guilty as charged and a term of imprisonment of 25 years to life was imposed. The husband appealed and raised several grounds of error.

Initially, the Penal Law has established a hierarchy of culpable mental states with felonious negligence as the least liable mental state, recklessly as the next highest, and intentionally as the most liable mental state. It is further recognize that the lower mental states are necessarily included in the higher forms of mental liability. A review of the statutory definitions of criminally negligent homicide, reckless manslaughter and intentional murder reveals that these crimes are distinguished only by the degree of their required mental states. Thus, it is impossible to commit the greater crime without concurrently, by the same conduct, committing the lesser crimes. Criminally negligent homicide and reckless manslaughter are, therefore, lesser included offenses of intentional murder.

Accordingly, in determining whether County Court erred in its refusal to charge the lesser included offenses, it is necessary to consider whether a reasonable view of the evidence which were considered favorably to the husband would have permitted the jury to conclude that the husband committed the lesser but not the greater offense. Review of the record concluded that a reasonable view of the evidence favorable to the husband would support a finding that the husband acted recklessly rather than intentionally, and the lesser included offense of reckless manslaughter should have been charged in the alternative to intentional murder.

The record establishes that hypoglycemia is a condition in which the body does not have sufficient sugar to function properly and which can be caused by insulin. There is other evidence that an individual suffering from hypoglycemia could be mistaken for an intoxicated individual. Additionally, the jury could have found from the facts presumed at trial that at the time of the shooting, the defendant, a diabetic, was not following a prescribed course of treatment, had been drinking to excess, had taken an extra dose of insulin to compensate for these transgressions, and was carrying a gun, supposedly for protection. The jury might further have found, consistent with the testimony of the defendant's medical expert, that he was in a hypoglycemic state from his excessive drinking and insulin injections and did not have the requisite intent for intentional murder at the time of the shooting. Drugs have been recognized as a cause of voluntary intoxication and there is no logical reason why insulin should be treated differently, especially in light of the expert testimony that hypoglycemia, also known as insulin reaction, could produce an intoxicated state. Accordingly, the jury has reasonably concluded that the husband did not act intentionally, the liable mental state required for intentional murder.

Furthermore, the facts reasonably support a conclusion that the defendant acted recklessly and, thus, committed reckless manslaughter. One acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that will occur; and when the risk is of such nature and degree constitutes a gross nonconformity from the standard of conduct that a reasonable person would observe in the situation. By not following prescribed medical treatment and by taking extra insulin and drinking excessively at a time when he was carrying a gun, the defendant could be found to have consciously disregarded a substantial and unjustifiable risk of killing another person by using the gun and, thus, to have acted recklessly.

The voluntary intoxication claimed by the defendant is not available to negate the liable mental state. Accordingly, there is a reasonable view of the evidence that the defendant did not act intentionally but acted recklessly and committed reckless manslaughter. A charge on manslaughter in the second degree in the alternative to intentional murder was thus required.
Judgment was reversed, on the law, and matter remitted to the Court of Albany County for a new trial.

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According to a New York DWI Lawyer, a Lounge bar petitioned for the dismissal of charges against them by the State Liquor Authority after they were found guilty of selling alcoholic beverages to a person under the age of 21 years. The bar's liquor license was suspended for 15 days and was imposed a penalty. The person to whom the bar allegedly sold the alcohol was killed in a car accident shortly after driving while intoxicated from the Lounge bar.

A Nassau County Criminal Lawyer said that the record establishes that the Lounge was a topless go-go bar whose entertainment fee was included in the additional cost of each customer's first drink. The Lounge bar's witnesses testified that its doorman admitted the minor after he displayed false identification. However, the police officer who subsequently inventoried his personal effects found a variety of identification documents, but no false ones. Moreover, his two friends testified that the identification was not checked at the door, but that he was admitted while they were excluded based on their respective physical appearances.

A New York DWI Lawyer has not disputed that the minor spent about an hour inside the bar. During that period, when his two friends testified that they approached the door to the Lounge bar and observed him inside drinking from a bottle of beer, the Lounge bar witnesses claimed that he was not served any alcohol. In addition, all of the witnesses agreed that at some point he endeavored to bribe the doorman to admit his two underage friends. According to his friends, while negotiating with the doorman, he was visibly drunk and was holding a bottle of Budweiser beer in his hand. The bribery attempt was reported to the bar manager, who testified noticing the minor who was then intoxicated and signaled the barmaid to stop serving the minor alcoholic beverages. No Lounge bar employee made any effort to drive him out.

At the hearing, the minor person’s two friends, also under the age of 21 at the time of the incident, testified that prior to going to the Lounge bar, they were all drinking in another establishment where, without having their identification checked, they were served with beers. The threesome then drove to the Lounge bar and only the deceased minor, who already appeared intoxicated, was admitted. The two friends, who remained outside, tried to see him whenever the front door opened and, at some point, saw him drinking from what appeared to be a bottle of beer. The two friends could not see the bar from outside the front door and they did not see how he obtained the beer. When he went out of the Lounger bar and returned to the car, he was pretty drunk and was holding a bottle of beer which he threw out the window before the car accident.

After the hearing, the Administrative Law Judge held that the charge had not been sustained by evidence. However, the finding was reversed by the Sate Liquor Authority, which held that the evidence introduced at the hearing sustained the charge. The State Liquor Authority issued the order which suspended the petitioner's liquor license for 15 days and imposed a $1,000 penalty.
The standard to be applied is whether the illegal conduct was open, observable and of such nature that its postponement could, by the exercise of reasonable diligence, have been prevented. According to the credible testimony, the minor person was inside the bar for an hour drinking beer while he was visibly intoxicated, and gave the club's employees reason to question his majority when he unabashedly attempted to bribe the doorman to admit his juvenile companions.

Critical witnesses could have established how the minor obtained the illegal beverage was available but chose not to testify. His friends, who were never admitted to the Lounge bar, had no opportunity to observe him purchasing his beer. Under the unusual circumstances, as in many a criminal conviction, the allegation depends necessarily upon circumstantial evidence which must not be unsound.

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A driver was involved in a one-car accident in Albany County. The car he was driving left the highway and struck a tree. As the result of investigation, officers of the defendant Town Police Department went to the hospital to issue the plaintiff driver his appearance tickets charging him of DWI (driving while intoxicated), operating an unregistered vehicle and driving at a speed not reasonable and prudent. A New York DWI Lawyer said that a blood sample was taken from the plaintiff to determine his blood alcohol content, which later proved to be negative. Consequently, the charges against the driver were dismissed. Thereafter, the driver commenced a legal action against the defendant Town, the police department and the Police Officer for false imprisonment and malicious prosecution. The defendants answered and moved for dismissal of the charges. In opposition to the motions, the driver conceded that his claim for false imprisonment did not lie, but contended that his malicious prosecution claim was viable because the defendants lacked probable cause to initiate the criminal proceeding which was terminated in his favor. The Supreme Court granted the defendants' motions and an appeal proceeded.

A New York DWI Lawyer explained that elements of an action for malicious prosecution are initiation of a proceeding without probable cause. Records show that the defendants submitted their testimony and affidavits of the police officers who were dispatched to the accident scene. The testimony and affidavits claim that the driver was observed to be somewhat incoherent, and that they detected a faint odor of alcohol emanating from him. When they asked the driver whether he had been drinking, the driver responded that he did not drink much. The police officers further alleged that the driver’s automobile had failed to negotiate a curve at the accident site and that the road surface was dry and free of any defects where the vehicle had left the road. Based upon the facts, the police officers asserted that there existed probable cause to issue the appearance tickets in question.

In opposition to the motion, the driver asserted that he had consumed no alcoholic beverages on the day of the accident, a fact confirmed by the results of his blood alcohol analysis, and that the accident resulted when he leaned over to pick up a cigarette that he had dropped. As to his alleged conversation with the police concerning his alcohol consumption, the driver alleged that he had no recollection of events from the time of the collision until he regained consciousness in the hospital two months later. A Nassau County Criminal Lawyer said that it appears that there are questions of fact as to whether probable cause existed for the issuance of the appearance ticket for driving while intoxicated. Notably, the driver’s alleged admission that he had not drunk much on the day of the accident was a matter solely within the knowledge of the moving parties, given the driver's lack of recollection of events following the accident, and should not form the basis for dismissal.

It follows that there is a question of fact concerning the issue of malice. If, on trial, the fact finder discredits the police officers' statements that they detected an odor of alcohol emanating from the driver and that the driver stated that he had not been drinking much, then he would be entitled to a charge that the fact finder might conclude that the felonious proceeding was instituted maliciously.

The Supreme Court agrees that there is a question of fact as to whether the proceedings were terminated in the plaintiff's favor. The defendants presented no evidence that the proceedings were not terminated in his favor and he was not required to come forward with any proof. Nevertheless, the defendants rely on a statement in the plaintiff's affidavit that the appearance tickets were dismissed in the interest of justice. A dismissal in the interest of justice is not sufficient to sustain a cause of action to recover damages for malicious prosecution. Such a dismissal would not have been pursuant to the law since the law refers to misdemeanor complaint and would not include the appearance tickets in question.

Wrongful accusations if not proven otherwise, may harm you and your family. It may also cause your freedom. At Stephen Bilkis and Associates, a team of skilled lawyers can help you triumph over these kind of circumstances. Make a call for free consultation and let our lawyers handle the troubles you have.

A 25-year old mother was indicted and convicted of a drug crime after trial of the sale of cocaine, which is considered a class A-I felony to an undercover police officer. According to sources, in a location known for rampant cocaine possession, the mother sold the undercover officer 214 vials of cocaine for $2,000 and promised to "take care of" him "the next time" he came. At the time of the sale she was 17 years old.

According to a New York Criminal Lawyer, under criminal laws, conviction of a class A-I felony carries a mandatory indeterminate prison sentence, the minimum of which is not less than 15 years and not more than 25 years, the maximum of which is life imprisonment. The trial court, however, determined that in this drug case, imposing even the minimum mandatory sentence of 15 years to life would constitute cruel and unusual punishment. Accordingly, the trial court imposed an indeterminate sentence of eight years to life imprisonment. A divided appellate court affirmed. The judges who the dissented voted to reverse the sentence and remand the case to Supreme Court for resentencing in compliance with the Penal Law's mandatory sentencing provisions for an A-I felony conviction. The State appealed.

On further appeal, the court pointed out that courts have upheld the facial and validity of the mandatory maximum life imprisonment sentence and various mandatory minimum prison sentences as against challenges under the cruel and unusual punishment prohibitions of the State and Federal Constitutions. The court, in many cases, adopted the principle that a sentence may constitute cruel and unusual punishment by being " 'cruelly' excessive, that is, grossly disproportionate to the crime for which it is exacted."

In assessing the proportionality of the mandatory sentences, the courts take into consideration the following factors: (1) the gravity of the offense, primarily in terms of the harm it causes society, but also in comparison with punishments imposed for other crimes in the State of New York as well as with punishments for the same or similar crimes in other jurisdictions; and (2) the character of the offender and the gravity of the threat he or she poses to society.

In this case, the court held that the constitutional prohibitions against cruel and unusual punishments were not transgressed on the record and facts of the case.

The court also examined the extent of the mother's culpability and the threat she poses to society and determined that the accused cannot be considered an "accidental" offender of marijuana posession. The trial court noted that the accused understood well what she was involved in." Here, the sale of 214 vials of cocaine for $2,000 was, at the very least, at a high level of culpability and risk to society. The court further noted that the accused has elected to personally sell a requested significant quantity of drugs at the wholesale level.

Drug addiction is a rampant problem in society and affects everyone. Being involved in a lawsuit arising from this crime is difficult. But whether you are charged with a drug crime, criminal tresspass, domestic violence, or a DWI, it is important to ensure that your rights are protected. Qualified legal counsel from Stephen Bilkis and Associates will stand by you and help see you through your case. Our team can argue your side and make sure that you and your loved ones are compensated.

Stephen Bilkis & Associates has offices throughout the New York Metropolitan. Our team can provide you with advice to guide you through your difficult situations. Without the assistance of an attorney, you may lose your rights which may cost you a significant amount of money.

Stephen Bilkis and Associates will also recommend Substance Abuse Lawyers who will help you.

A man was arrested for DWI after allegedly striking objects and vehicles in a trailer park.

The local 911 office received several calls from trailer park residents about a driver in a white Ford truck striking, fencing, an electrical box, power lines and other vehicles. When officials arrived on the scene, they observed the white truck driving southeast without headlights in a field. When the truck stopped, deputies discovered the driver had abandoned the vehicle.

After searching the area, deputies found the 41 year-old man 300 yards from the abandoned truck. He was hiding in a ditch. The man stumbled out of the ditch mumbling that someone had slipped something in his drink and it was making him act crazy. Officials observed that the man seemed extremely intoxicated and discovered a rifle the man had left behind in the ditch, stated a New York Criminal Lawyer.

The man admitted to having drinks earlier in the evening, but refused to perform field sobriety tests because he stated he would not pass them. According to officials, he had a blood alcohol concentration of 0.239, which is three times the legal limit.

The man, who was driving with a suspended license, was arrested and charged with aggravated DWI, reckless driving, criminal damage and leaving the scene of an accident. No other details regarding the incident or about the man's incarceration or bond are available at this time.

If you or a loved one is facing criminal charges, Stephen Bilkis and Associates can help. We can help you navigate through the complicated process of putting together an effective defense, ensuring the best possible legal outcome. We have offices located throughout New York for your convenience, including locations in Manhattan, Queens, The Bronx, Brooklyn, and Staten Island. We also have locations in Westchester County, and Nassau County and Suffolk County on Long Island. Call us today for a free consultation at 1-800-NY-NY-LAW.

The Maryland State Police Department is encouraging friends to tell on their friends, states a New York Criminal Lawyer. The State Police are encouraging motorists to call in to 911 if they see people driving erratically or dangerously on the roads during the winter months. They believe that residents in the state would rather call and tell on a person who is driving drunk rather than allow that person to hurt someone else.

They started the campaign before the Super Bowl and wanted motorists to look out for fellow motorists who might have had a few too many to drink while watching the game. The campaign was successful and there were more people using designated and sober drivers instead of taking a chance behind the wheel themselves. They want to extend the campaign and have motorists looking out for other potentially drunk motorists all of the time to prevent injury accidents related to alcohol.

The program was created and advertised using grant monies. The push for the safe roads will continue on in to the spring months, because drunk driving is a year-round concern. In previous years, there were severe accidents and the police did not want to have a repeat of those days. They will continue to encourage all residents to get a designated driver, a sober driver or to call the police if they suspect someone is driving drunk on the roads.

Our office can assist you or a friend if you are facing a DWI. The New York Criminal Attorneys are trained to handle any type of court case you are facing. Consult with a New York Criminal Attorney iif you have an upcoming criminal matter to face.

A bus driver in Mount Prospect is counting her lucky stars recently, claims a New York Criminal Lawyer. A judge granted the bus driver 2 ½ years of probation instead of a jail sentence for her crimes in a DWI case. The DWI occurred last March when the driver failed a field sobriety test. Her blood alcohol limit tested to be .226, which is more than three times the legal limit allowed for anyone to be behind the wheel.

The bus driver was driving under the influence as she dropped off approximately 45 students to their houses after school one day. She admitted to drinking two vodka tonic drinks during her lunch hour, before driving the students home from school. The bus driver was then fired from her position as driver. The driver’s supervisor was also fired for failure to report an incident.

There was a call made to the school district that alerted the supervisor that drinking might have been taking place during the lunch hour. The supervisor did not notify police, which the school says violated their policy. According to the New York Criminal Lawyer, the supervisor and the bus driver were fired for their conduct. The bus driver was charged with a DWI, and ordered 2 ½ years of probation, along with 480 hours of community service, attend alcohol counseling and pay a fine to the city. There is no word on if the supervisor faced any charges related to the incident besides losing their job.

Stephen Bilkis and Associates can represent you in a DWI case. Our skilled team of lawyersare trained to handle any criminal matter that you or a friend may face. Call us today for advice and a free consultation. We jhave offices located throughout New York City, including locations in Manhattan, Queens, the Bronx, Brooklyn and Staten Island. We also have locations in Nassau County and Suffolk County on Long Island and Westchester County.

Those not wearing seat belts and driving under the influence of alcohol are now being targeted by police officers of both Iowa and Illinois. They now have more officers in those areas patrolling the streets looking for these violations, according to a New York Criminal Lawyer. Click It or Ticket and You Drink and Drive are two long time campaigns that are now linked together according to the Illinois Department of Transportation.

The extra patrolling being done in Iowa is know as the special Traffic Enforcement Program, or TEP. This will include 2,000 extra seat belt enforcement zones and much more patrolling at night to enforce these laws. This also includes 68 roadside safety checks.

Illinois has had a decline in deadly traffic accidents at a time of the year when numbers are usually on the rise due to increased travel with the holidays. Last years drop in fatalities was the first time since 1921 that there have been less than 1,000 people killed on the road. The state is also on track to be below 1,000 again this year.

Even though the numbers have been on the decline, the DOT is warning drivers to use caution on the road in this holiday season. Dan Wood of the DOT said."It's a time (of year) when we can forget that risky driving behavior can kill. Even one death, as everyone knows, is too many." There was a fatality on Halloween that killed a 40 year old trick-or-treating with her son.

If you have been charged with a DWI, then you need the assistance of Stephen Bilkis and Associates. Call us today for legal guidance and a free consultation. It is important to act promptly, to ensure that your rights are protected throughout your legal proceedings. We have offices located throughout New York City, including offices in Manhattan, Staten Island, Queens, the Bronx, and Brooklyn. We also have locations in Nassau County and Suffolk County on Long Island and Westchester County.

It’s a sad day when the ice cream truck driver in your local neighborhood is arrested for driving under the influence. And, not just driving under the influence, but being nearly three times over the legal threshold, reported the New York Criminal Lawyer.

It’s a very lucky thing that the man was arrested, as he could have harmed others. As it was, the truck driver did almost hit a child and that is why the police were called. When they arrived on the scene, the trucker fell out of his ice cream vehicle and staggered over to the police. When asked what his address was, he gave them the date of his birth instead.

The man was arrested on the spot, indicated a Manhattan Criminal Lawyer, and was charged with DWI and spent some time in jail, sobering up. This case could have turned out a lot worse than it was, considering the man’s blood alcohol content was 0.227. In other words, he was more than just impaired; he was pretty much unable to function, talk, or walk coherently and had no business being behind the wheel of a vehicle. That being said, despite his arrest and time spent in jail, he is entitled to a well thought out defense.

Everyone charged with a criminal offense whether it be a DWI, assault or drug charge, is entitled to a vigorous defense. It is important to contact legal counsel right away if you have been arrested. Do not talk to the police or volunteer any information. Save the discussion of what you were doing for your lawyer.

It’s the law of the land that says those who are charged with a crime must be considered to be innocent, until they are proved guilty. Even in drunk driving cases, there are defenses that may be used to assist the driver to retain their license, have their sentence mitigated or possibly thrown out of court.

The important thing to remember is that even though something may “look” like it’s a crime or that the driver was drunk, there are cases where what you see is “not” what actually happened. Anyone charged with a criminal offense is entitled to have their say in court and the only way that will happen is with the assistance of a qualified legal counsel.

Contact the law offices of Stephen Bilkis and Associates for advice and guidance. We will advise you of your legal options and provide you with a free consultation. We have offices in New York City, including Manhattan, Staten Island, the Bronx, Brooklyn and Queens. We also have locations in Nassau County and Suffolk County on Long Island, as well as Westchester County. Call us today at 1-800-NY-NY-LAW.

A mother was driving drunk in a school zone this last week in front of an elementary school. She was obviously under the influence after being seen crashing into a stop sign and then continuing to get in line at school in order to pick up her daughter from the elementary school according to a school crossing guard.

The Florida Highway Patrol responded to this accident as it was initially called in as a hit and run, explained a New York Criminal Lawyer. The school crossing guard actually recognized the woman and immediately called the school to notify them.

Of course all this happened at about 3:00 as students where being dismissed for the day from school. The Florida Highway Patrol found this lady waiting in line ready to pick up her daughter from the school as they responded to this call. At that time the police took her into custody and tested her blood alcohol level. She was well above the legal limit as she took the breath test. This mother tested at 2 ½ times the legal limit.

The legal limit is set at .08 and this lady had a blood alcohol level of .20. She wasn’t just charged with a DWI but the arrest included the fact that she had committed a hit and run by not stopping after running over the stops sign. This caused a lot of anger and outrage from the other parents waiting in line to pick up their children.

A Stephen Bilkis and Associates can help you if you are being charged with a felony. Stand up for your rights and get help today. We have offices to serve you throughout the New York area, including locations in Manhattan, Queens, Staten Island, the Bronx, and Brooklyn. We also have locations in Nassau County and Suffolk County on Long Island, and Westchester County.

Just when you think you have heard the entire story, new information has been revealed that prior to a well known baseball player's DWI arrest in February; he apparently had some choice words to say to some folks at a local restaurant.

The apparently intoxicated gentleman had stopped into a local restaurant at about 10:30pm when the manager told him that the restaurant was closing. He proceeded on into the restaurant when was informed by the manager again that the restaurant was closing. Was reported to have made repeated comments to the manager that he did not know who he was. A New York Criminal Lawyer was also told that he leaned into the manager’s face and said, "I know all of you, and I will kill all of you and blow this place up," as he patted the side of his shoulder bag.

It was at this point that the manager instructed a bartender to call 911, and the off-duty wildlife officer who had been inside the restaurant speaking with his friend, the manager, stepped out to his vehicle to collect his badge and firearm. It was at this point that the baseball player exited the restaurant and sped away in his vehicle while continuing to shout obscenities at everyone within hearing distance. It was not long afterwards that the police arrived.

About 30-minutes after the incident at the restaurant, the man's vehicle was spotted on the shoulder of the same road as the restaurant with smoke coming from it. When the deputy approached him, the deputy smelled alcohol, and according to the arrest report, the player actually turned up a bottle of scotch and took a drink in front of the deputy. It was at this point of the incident that he was arrested for DWI, and for resisting arrest without violence after he put up a small struggle with deputies.

Neither the baseball team, or his attorney had any comments. As of this writing, his attorneys have entered a plea of not guilty with the court.

Have you or a loved one have had a run-in with the law? If you have been charged with a criminal offense, it is important to speak to legal counsel right away to ensure that your rights are protected. Stephen Bilkis and Associates knows the way around the potential legal quagmire that awaits you, and can assist you in reaching a satisfactory conclusion.

Just when you think you have heard it all, another story comes along that leaves one asking what were they thinking. A New York Criminal Lawyer has learned that a Maryland man was arrested for DWI early Sunday morning. While sadly that is nothing unusual, what makes this a little different is that the suspect backed his truck onto the hood of a police car.

The 26-year old man had reportedly been in an argument with someone at a local bar, when he decided to give chase to the person, he had been arguing with. That chase ended with the man’s truck having pushed the other person’s car into a utility pole. The story gets better. With the man’s judgment heavily impaired due to too much alcohol consumption, and having just been in an adrenaline inducing car chase, and then being involved in an accident, the man took it upon himself to place his vehicle into reverse and back up. The problem with this is that in so doing he backed onto the hood of an unmarked police car that had come upon the accident scene and had attempted to block the driver of the pickup by using his police cruiser as a barricade. The officer’s tactic worked overall, as the police vehicle did stop the truck from leaving the scene. It just was not exactly the way the officer had originally intended.

Luckily, the officer received only minor injuries and was treated and released from the local hospital soon after. The driver of the pickup, however, was not so luck. Although the man was not aware at the time of the presence of the police car beneath his truck, police were able to convince the man to exit his truck where he was then placed under arrest and charged with DWI, reckless driving, negligent driving, and two counts of second-degree assault.

After posting a $10,000 bond, the man was released later Sunday morning. This was most likely, after he had slept off his dreams of monster truck greatness.

If you have been charged with a DWI, it is important to obtain legal counsel as soon as possible. Whether you are found guilty or innocent, a DWI charge can have a lasting impact on your life. If convicted, you could be facing jail time, probation, fines and community service.

Continue reading "DWI Suspect Arrested on Top of Police Cruiser" »

A Texas man drove his vehicle into a parked car and knocked over a power pole, police reported. Officers responded to a call before 2 a.m. The police explained that the the driver ran his vehicle into another car, then spun around and hit the power pole, which fell onto a tree. Only one customer seems to have lost power, according to Texas officials, and a crew was quickly at work to repair the pole.

Officers said that the driver was taken straight to the hospital. His injuries were non life-threatening. While at the hospital, his blood was drawn for a possible DWI charge. As of this writing, the driver was still hospitalized.

Handling these kind of events are just what a New York Criminal Lawyer is for. Everyone who is accused of a crime requires a legal advocate. It is more than just the law – it is the right of everyone in the United States to have legal representation. Still, such representation comes in many forms. Not all legal counsel are equal. Make sure, if you ever have a date in court, you have only the best speaking for your side of the story. Only a qualified criminal lawyer has the tenacity, integrity, and discretion you need when it comes to a criminal trial.

It may come to pass one day that you or a loved one are the subject of criminal allegations, whether it be DUI or just a simple traffic ticket. It could even be something much greater. Any such accusations are always a burden, taking up valuable time and costing money, both of which would be better served taking care of your family. The nature of the charges doesn’t really matter. What matters is what you do about it. What matters is who you have defending you against the prosecutor.

Continue reading "Alleged Drunk Driver Knocks Over Power Pole in Texas" »

Driving is something that many of us take for granted. We are used to being able to get from place to place with ease and on our own schedule, barring any unforeseen traffic jams. Police enforcement of driving under the influence DUI is on the rise, according to a study, and motorists need to be on the lookout for situations where police presence might be heightened, to avoid accidents with police officers who are just trying to keep our roads safe.

Being a police officer requires putting oneself in danger each and every day for the safety of all, and that is something that many motorists overlook, says the authority. Heightened police presence, especially during peak holiday seasons, raises the danger factor. Police who are in pursuit of motorists could be involved in a chase, for example, which puts citizens at risk. The risk of a drunk driver DWI killing someone is greatly reduced once they are caught, but catching them can sometimes turn into a deadly game in itself.

The best course of action, believes the expert, is to play it safe, especially over the holidays. Even something as innocuous as St. Patrick’s Day in New York City and Westchester County and Mardi Gras brings party animals out of the woodwork and unfortunately, often puts them behind the wheel of their vehicle. Extra caution and vigilance is required by all drivers during such peak times, to help keep each other and the officers who risk their lives each and every day.

Continue reading "Motorists face heightened police presence, especially during peak holiday seasons" »

A Rock Singer, Vince Neil is set to go to jail because of his plea deal that he accepted from the Las Vegas prosecution recently. What this means is, that this celebrity rocker will be send to jail for a period of two weeks and then after that he has to undergo a two week house arrest for his DUI arrest in the previous summer.
The media told a New York Criminal Lawyer that Vince Neil was headed for this for a long time because this is not the first time he has had a run in with the law. The celebrity pled guilty and was charged with a misdemeanor for driving while he was intoxicated as he appeared before a Judge in a Las Vegas court room. A publicist for the singer told a New York Criminal Lawyer that the singer has admitted to his wrongdoing and realized that it is not safe for anyone to drive while they are intoxicated.
According to what Police reported, the accused was caught in a traffic stop while he drove his car close to a Las Vegas strip with his wife. Before the accident, it is said that he had told friends that he was sober and wanted to remain that way. He just did not want to drink anymore. In addition to being a singer, the celebrity owns two bars and tattoo shops in Las Vegas. He also is an established author. His attorney came to his defense in court and had his sentence reduced to two weeks instead of the mandatory sentence of six months. In New York and Westchester County, NY Criminal Lawyers are familiar with how to handle cases like Neil's.

Continue reading "Singer facing jail sentence" »