April 24, 2013

Plaintiff Moves for Summary Judgment in DWI Case

The Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment as to the issue of the liability on behalf of the Defendant, The Dizzy Lizard, Inc., and directing an assessment of damages to be determined by a jury.

A New York DWI Lawyer said in this criminal action, the Plaintiff was injured in a motor vehicle accident, while he was a passenger in the automobile operated by the defendant, and owned by the co-defendant. Said accident occurred at approximately 1:45 a.m. when the vehicle collided with a train overpass. On the date of the accident, both parties were each 18 years of age. The defendant was arrested and charged with DWI in violation of Vehicle and Traffic Law § 1192.3. Prior to the subject accident, the Defendant was a patron of a tavern located somewhere in New York. As a result of the injuries sustained, the Plaintiff commenced the underlying action against individual defendants, based upon negligence and against the defendant tavern, predicated upon General Obligations Law§§ 11-100 and 11-101. The Plaintiff s instant application seeking summary judgment as to the liability of the defendant tavern thereafter ensued and is determined as set forth hereinafter.

A New York DWI Lawyer said in support of the within application, a New York Drunk Driving Lawyer said that that the record herein conclusively demonstrates that defendant was intoxicated at the time of the accident and that said intoxication was the direct result of the several hours he spent drinking at the tavern. In so arguing, counsel makes particular reference to the annexed police report, which states that defendant was charged with DWI at the time of the accident. Counsel additionally provides various pleadings attendant to a Federal Court action commenced against the tavern by an Insurance, which issued a series of liquor liability insurance policies to the Defendant. The Insurance Company sought rescission of three such policies based upon the tavern’s alleged misrepresentations in the applications for the insurance coverage. Counsel further points to several building violations, in connection to which tavern plead guilty to reduced charges, as well as to pleadings relating to other prior incidents involving the tavern, but which are not related to the within.

A Nassau County DWI Lawyer said the issue to be resolved in this case is a summary judgment should be ordered by the court based on the foregoing.

The Court ruled that It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish it's claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation.

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. A motion for summary judgment is the procedural equivalent of a trial, and when entertaining such an application, the Court is not to determine matters of credibility, but rather is to confine it's inquiry to determining whether material issues of fact exist.

As noted above, the Plaintiff is alleging theories of liability predicated upon the provisions embodied in General Obligations Law §§ 11-100 and 11-101. The Dram Shop Act, codified in General Obligations Law § 11-101, was promulgated by the legislature to create a private right of action which could be instituted against sellers of alcoholic beverages for injuries occasioned by the sale thereof.
Within the purview of these statutes, liability thereunder will attach upon the unlawful selling, furnishing or assisting in procuring of alcohol. The term unlawful is defined in Alcoholic Beverage Control Law as follows: "No person shall sell, deliver, or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to any person, actually or apparently, under the age of twenty-one years" or to "any visibly intoxicated person" While the Alcohol Beverage Control Law defines the term "unlawful", the provisions therein contained do not create an independent statutory cause of action and such actions are rather the progeny of General Obligations Law" At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker" and rather the drinker was held solely responsible for his or her own actions. Thus, as General Obligations Law are in derogation of common law principles, the statutes must be strictly construed and "be read narrowly and not enlarged beyond [their] borders"

In interpreting the statutory provisions, the Court of Appeals in one case has held that liability under General Obligations Law § § 11-100, "may be imposed only on a person who knowingly caused intoxication by furnishing alcohol to persons known or reasonably believed to be underage" The Court went on to state that "while section 11-101 does not explicitly refer to knowledge, that same requirement must be inferred because the legislative history makes plain that section 11-100 was intended to parallel the Dram Shop Act"

Further, within the particular context of General Obligations Law § 11-101, in order to establish a prima facie case of liability against the tavern, the Plaintiff bears the burden of proffering sufficient evidence that when the bar served alcohol to defendant, it was on notice that he was visibly under the influence thereof. Such evidence is not limited to direct proof in the form of testimonial evidence from an individual who witnessed the alleged intoxicated person at the moment the alcohol was provided, but may include circumstantial evidence to demonstrate the visible intoxication of such individual.
In the instant matter, the Court finds that the Plaintiff has failed to demonstrate his entitlement to judgment as a matter of law. As noted above, the Plaintiff has tendered proof in the form of pleadings attendant to other actions involving the tavern, the police report relevant to the subject accident, as well as limited portions of the depositions of the General Manger of the Defendant bar, and the Plaintiff. However, none of the purported evidence proffered unequivocally resolves the issues relevant herein.

With particular respect to the matter of defendant’s age, the annexed police report, while stating that Mr. Jones was indeed charged with DWI, is not dispositive as to the issue of whether the tavern knew that defendant was underage when he was served alcohol on the premises.

Thus, on the record as currently developed, there clearly exist questions of fact as to whether the tavern knew or reasonably believed defendant to be underage when he was served alcohol at said establishment. Accordingly, an order granting summary judgment as to the issue of the Defendant's liability is inappropriate. As to the issue of defendant’s intoxication, there is absolutely no evidence, direct or circumstantial, proffered by the Plaintiff which establishes that when served alcohol at the tavern, defendant was visibly intoxicated.

Based upon the foregoing, the motion interposed by the Plaintiff, for an order granting summary judgment as to the issue of liability against defendant, the tavern, and setting the matter down for a trial as to the issue of damages is hereby DENIED.

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April 23, 2013

Defendant Claims Rights to Due Process Violated in DWI case

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (2) and (3), and vehicular assault in the second degree, in violation of Penal Law § 120.03 (1). A New York Criminal Lawyer said that, in his pretrial omnibus motion, the defendant moved, inter alia, to suppress the results of a blood alcohol test, which the trial court granted to the extent of conducting a joint Dunaway/Huntley hearing.

A New York DWI Lawyer said that, at that hearing, the People adduced the following evidence. On July 28, 2006, at approximately 4:00 A.M., in the City of Poughkeepsie, the defendant drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer. The Officer who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007. Immediately after the accident, the Patrol Officer observed the defendant, who was still seated in the driver seat of his pickup truck, detected alcohol on his breath, and saw that his eyes were glassy and bloodshot. The defendant told the Patrol Officer that he had consumed one half of a beer and was on his way to a bar when the accident occurred. Because the defendant complained of possible head injuries, no field sobriety test was conducted. The Patrol Officer could not determine at that time whether the defendant was intoxicated. When the ambulance arrived, the defendant exited the truck without assistance and was transported by ambulance to Vassar Brothers Hospital.

A New York DWI Lawyer said the County Deputy Sheriff arrived at the hospital, where the Patrol Officer briefed him on the circumstances of the accident, his observations of the defendant at the scene, and the defendant's statement to him at the scene that he had consumed one half of a beer earlier that night. Approximately 20 minutes later, at 5:04 A.M., the Deputy Sheriff administered a prescreening test called an Alco-Sensor, which indicated the presence of alcohol in the defendant's system. Based upon his observations, training, and experience, the Deputy Sheriff was by then of the opinion that the defendant was under the influence of alcohol. At approximately 6:01 A.M., the Deputy Sheriff placed the defendant under arrest and read him his (DWI) driving while intoxicated warnings, which the defendant indicated he understood.

A Nassau County DWI Lawyer said that, the defendant immediately indicated he would consent to a chemical test, which requires a blood draw, and signed a consent form at 6:04 A.M. At that point, which was approximately two hours after the accident and within minutes of his arrest, the defendant's blood was drawn by a hospital nurse and his blood alcohol content was later determined to be .18%, which is more than twice the legal limit. More than one hour later, the Deputy Sheriff advised the defendant of his Miranda rights, and the defendant, both in writing and orally, indicated he understood those rights and agreed to speak with the Deputy. In response to Deputy Sheriff’s inquiry, the defendant stated that he had consumed a mixed alcoholic drink known as a Long Island iced tea approximately four hours before the accident, and was on his way to a bar when the accident occurred.

The defendant was the sole witness for the defense at the hearing. In his testimony, the defendant stated that he was not advised of his Miranda rights or DWI warnings until a judge, accompanied by police officers and state troopers, arraigned him in his hospital room between 8:00 A.M. and 9:00 A.M. The defendant asserted that it was only at that time that he realized he was under arrest. The defendant further testified that, at the time he signed the consent form for his blood to be drawn, he believed his blood needed to be drawn as part of his medical care, not as part of the criminal investigation.

A New York DWI Lawyer said that, at the conclusion of the hearing, the court denied that branch of the defendant's omnibus motion which was to suppress the results of the blood alcohol content test, finding that the Deputy Sheriff had probable cause to arrest the defendant for driving while intoxicated based on information the Patrol Officer relayed to him, his own observations, and the results of the Alco-Sensor test he had administered to the defendant.

The issue in this case is whether the rebuttable presumption under Penal Law § 120.03 (1) violates the defendant's right to due process.

Penal Law § 120.03 (1) provides that a person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, inter alia, while operating a motor vehicle while impaired or intoxicated and causes that serious physical injury as a result of such intoxication. The statute also provides that proof of such operation and the causation of such serious physical injury raises a rebuttable presumption that the serious injury is the result of such intoxication.
The Court said that, among other arguments, the defendant contends that Penal Law § 120.03 violates the right to due process because of the rebuttable presumption that a person who commits DWI caused the subject accident resulting in serious physical injuries. He further contends that the statute is unconstitutionally vague since it fails to give fair notice to a person of ordinary intelligence of what it forbids and fails to provide clear law-enforcement standards. For the reasons set forth below, we reject the defendant's arguments.

Preliminarily, although the defendant failed to preserve for appellate review his constitutional challenges to Penal Law § 120.30 by not making a timely pretrial written motion to dismiss the indictment on this ground, we reach this issue as a matter of discretion in the interest of justice.
"It is a fundamental requirement of due process that a criminal statute must be stated in terms which are reasonably definite so that a person of ordinary intelligence will know what the law prohibits or commands". The purpose of the requirement is twofold: (1) provide the defendant with "adequate warning of what the law requires so that he may act lawfully," and (2) "prevent arbitrary and discriminatory enforcement by requiring boundaries sufficiently distinct for police, Judges and juries to fairly administer the law"

In 2005, approximately one year before the subject accident, the statutes concerning vehicular assault in the first and second degrees and vehicular manslaughter in the first and second degrees were amended and designated as "Vasean's law," to eliminate criminal negligence as a required element of each of the crimes, and provided that after the People establish that the defendant driver caused serious injury or death, a rebuttable presumption would arise that the serious injury or death was caused by the driver's intoxication, impairment, or use of a drug.

Specifically, as amended, Penal Law § 120.03 provides: "A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle in a manner that causes such serious physical injury to such other person.

"If it is established that the person operating such motor vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such serious physical injury, as required by this section."

The defendant contends that the clause "as a result of such intoxication or impairment," coupled with the rebuttable presumption that the DWI caused the serious physical injuries, renders the statute unconstitutionally vague because an individual who was DWI without causing the subject accident nevertheless falls within the parameters of the statute. The defendant notes that although the person in hypothetical may have been DWI in violation of Vehicle and Traffic Law § 1192, he or she was innocent of causing the accident. Yet, under the statute, a rebuttable presumption would exist that the person who was driving while intoxicated committed vehicular assault in the second degree in violation of Penal Law § 120.03 (1).

However, our reading of the statute does not support the defendant's argument. The statute provides, in pertinent part, that the rebuttable presumption that the defendant's intoxication caused the subject accident arises only "if it is established that the person operating such motor vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug." Thus, if a driver's operation of a vehicle cannot be deemed a proximate cause of the subject accident, then the rebuttable presumption would not arise. We further note that, even if the defendant is correct that the statute would deny due process to hypothetical defendants who may have been DWI in violation of Vehicle and Traffic Law § 1192 but did not cause the accident, we do not reach that issue, as the defendant may not assert a due process challenge contending that the statute is vague as applied to the conduct of others.

In any event, the People's evidence at trial clearly was sufficient to give rise to the rebuttable presumption. The defendant told the Deputy Sheriff that he had consumed a mixed alcoholic drink prior to the accident. Further, approximately two hours after the accident, the defendant's BAC tested at .18%, more than twice the legal limit. Accordingly, the People proved beyond a reasonable doubt that the defendant was per se driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). Additionally, two eyewitnesses, and her passenger, testified that the defendant had a red light as he approached the subject intersection. Neither eyewitness indicated that the defendant slowed down as he approached the intersection. Further, an electrician responsible for maintaining the City's street and traffic lighting, testified that the traffic signals at the subject intersection were fully operational and the system did not indicate any failure alarms, which are automatically generated if two green or two yellow traffic lights simultaneously appeared on both Mill and North Bridge Streets, or if there had been a power dip.. Under the circumstances, the People established beyond a reasonable doubt that the defendant operated a vehicle while intoxicated and that his operation of such vehicle caused serious physical injury to another person.

Accordingly, a rebuttable presumption arose that the defendant's intoxication was the proximate cause of the accident. The verdict demonstrates that the jury rejected the defendant's testimony that he had a yellow traffic light as he entered the intersection and credited the testimony of the Patrol Officer and her passenger. Had the jury accepted such testimony, given the electrician’s testimony that there were no malfunctions of the traffic lights at the intersection; it would have meant that the jury found that the Officer disregarded a red traffic light, thereby rebutting the presumption since the Officer conduct would be deemed an intervening cause of the accident.

Accordingly, the Court held that the judgment is affirmed.

Penal Law § 120.03 (1) provides that proof of operation and the causation of serious physical injury raises a rebuttable presumption that the serious injury is the result of such intoxication. In order to rebut the presumption you will need the representation of a New York Criminal Attorney and New York DWI Attorney at Stephen Bilkis and Associates. Call us for more information.

April 22, 2013

Defendant Moves to Supress Evidence in Vehicular Manslaughter Case

The Facts of the Case:

On around 18 to 19 of October 2007, at around midnight, the defendant went to a nightclub with his girlfriend “A”, a friend of his girlfriend “B”, and another individual “C”. A New York Criminal Lawyer said after drinking alcohol at the nightclub, the defendant and “C” left and went to a nearby parking lot. According to “B”, defendant did not appear intoxicated at that time; that defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant then went into the trunk of his car and searched for something. Thereafter, the defendant began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered B to leave with his girlfriend. B did and drove the defendant's girlfriend home. The defendant and C then entered the defendant's vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant's vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant's vehicle traveled in the wrong direction, from about exit 19 to exit 13, a distance of approximately five miles. According to a witness, the defendant was driving directly at him while changing lanes; that he had to immediately pull his vehicle onto the shoulder to avoid a collision; that the defendant continued driving the wrong way; that he observed the other vehicles on the parkway split apart in order to get away from the defendant; that the defendant was steadily going, not braking.

Another witness, a Police Sergeant, was also driving in the proper direction in the left eastbound lane of the parkway. According to the Sergeant, as he passed exit 14, he observed the defendant's vehicle driving towards him at a high rate of speed which caused him to violently turn his steering wheel to the right to avoid a collision; that the defendant's car came within inches of the Sergeant’s vehicle; that the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant's vehicle, without ever having slowed down, collided with the victim's vehicle, killing the victim instantly and incinerating the victim's vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. The police then arrested defendant, and following his arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. When the defendant was arrested, he was then removed from his vehicle, and the police thereafter began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant's vehicle matched the shell casings found in the parking lot near the nightclub.

On 16 September 2008, the defendant was found guilty and was convicted of murder in the second degree (depraved indifference), vehicular manslaughter in the first degree, aggravated driving while intoxicated or aggravated DWI, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, a drug crime. The defendant then appeals from the said criminal convictions. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

The Ruling of the Court:

First, the court finds that there is nothing from which a jury could reasonably infer that the defendant possessed the mens rea necessary for murder in the second degree or depraved indifference: a tragic combination of both awareness and total disregard for the fact that he was driving at high speed the wrong way down the parkway, which was conduct that placed both the defendant and others traveling eastbound on the parkway at grave risk of death. In effect, to convict the defendant of depraved indifference murder, the jury would have to find that the defendant was suicidal. There is no basis for such a finding. Rather, the evidence indicates that the defendant was highly intoxicated and upset with his girlfriend and/or with having lost something in the parking lot near the nightclub.

Moreover, a Westchester County DWI Lawyer said that even accepting the contention that the defendant's intoxication did not render him incapable of forming the requisite mens rea of depraved indifference, there is nevertheless legally insufficient evidence that the defendant actually possessed such mens rea. Without minimizing the defendant's conduct or the tragic results, the court finds that absent from the evidence adduced at trial is evidence, for example, that the defendant intentionally drove in the wrong direction on the parkway at a high rate of speed or continued on his path once he realized he was driving in the wrong direction on the parkway, conduct which could demonstrate an utter disregard for the value of human life. Instead, the evidence demonstrated that the defendant, by reason of his severe intoxication, acted recklessly by failing to perceive that he was driving the wrong way on the parkway. Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Circumstances evincing a depraved indifference to human life are not established by recklessness coupled only with actions that carry even an inevitable risk of death. Put differently, in general, a defendant who possesses the mens rea of depraved indifference intends to commit the act that results in the death or injury of another person, but is depravedly indifferent to the grave risk of death or injury to others as a consequence of his or her conduct, i.e., intentionally opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway. In other words, focus on the three statutory factors that distinguish depraved indifference murder, like circumstances evincing a depraved indifference to human life, recklessness and a grave risk of death to another person, should make clear that the statute properly applies only to the unusual case. In sum, there is no valid line of reasoning that could support the jury's conclusion that the defendant possessed the mental culpability required for depraved indifference murder.

Second, the conviction on the count of the murder in the second degree or depraved indifference is against the weight of the evidence. While the court has a responsibility to conduct an independent review of the weight of the evidence, the court must nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor. A medical expert was called to testify on the blood alcohol content of .19%, as a result of the test administered an hour after the defendant’s arrest, which would negatively affect an individual's cognitive abilities, meaning, the thought process, the ability to think clearly and respond to questions; the person's psychomotor functions, such as moving muscles and responding to various stimuli, would be negatively affected; the ability to perceive objects in the environment would be negatively affected; and then the ability to respond to those objects would be negatively affected. The expert testified that an intoxicated person's ability to do “divided attention tasks”, such as driving, is most affected by alcohol. Thus, while driving requires equal attention to steering, acceleration, braking, direction signals, and responding to objects in the environment, an intoxicated person may devote all of his or her attention to only one or two of those tasks. Further, an officer who arrived at the scene moments after the crash described the inside of the defendant's car as having an extremely strong odor of alcohol. After the defendant was removed from his vehicle and placed under arrest for driving while intoxicated, the officer described the smell of alcohol coming directly from the defendant. Nonetheless, the People presented no evidence that the defendant intentionally entered the parkway in the wrong direction and/or continued to drive the wrong way after realizing that he was driving against traffic. Indeed, one witness, an off-duty sergeant for the New York City Police Department, testified that he swerved out of his lane to avoid being hit by the defendant's vehicle, and described the defendant's vehicle as staying in the lane closest to the barrier and not reacting to the sergeant's car as it swerved out of the path of the defendant's vehicle. Such eyewitness testimony is consistent with that of the People's expert, who explained that intoxicated persons experience tunnel vision and lack the ability to concentrate on the numerous tasks required to drive. However, while the People presented the testimony of numerous witnesses who saw the defendant's vehicle traveling in the wrong direction on the parkway, none of those witnesses' testimony established that the defendant understood that he was traveling in the wrong direction. While some witnesses attempted to warn the defendant of his mistake by honking their horns, there is no evidence that the defendant heard those warnings or understood that the warnings were intended for him. Nor did the People's collision reconstruction expert provide any testimony indicating that the defendant may have intentionally driven the wrong way down the parkway. In sum, no credible evidence demonstrated that the defendant deliberately drove his vehicle the wrong way with an utter disregard for the value of human life, and thus acted with depraved indifference. In sum, the weight of the evidence does not support a finding that the defendant, acting with depraved indifference, an utter disregard for the value of human life, knowingly drove the wrong way down the parkway. The defendant may have been the instrument of death but there is no evidence that he knowingly acted with utter disregard for the grave risk of death or serious injury he was creating. Rather, the evidence established that the defendant acted recklessly in driving while intoxicated severely, which led to the tragic death of an innocent person. In other words, the People's evidence established that the defendant acted recklessly, but not that he acted with depraved indifference.

Accordingly, the judgment must be modified, the defendant's conviction of second degree murder must be reduced to manslaughter in the second degree, a lesser-included offense of murder in the second degree, vacate the sentence imposed on that count, and remit the matter to the County Court for resentencing on that count.

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April 12, 2013

Court Discusses Leandra's Law

The Facts of the Case:

On 18 November 2009, the State enacted Leandra's Law, roughly one month after the DWI death of an 11-year-old in New York City. It demands, inter alia, that all first-time, misdemeanor DWI offenders install ignition interlock devices in every automobile they own or operate for at least 6 months; barring indigency, that offenders pay for installation and maintenance of the interlocks. However, Leandra's Law exhibits numerous defects which put its constitutionality in question.

Meanwhile, a defendant pled guilty to driving while intoxicated or drunk driving pursuant to the Vehicle and Traffic Law. Following Leandra’s Law, New York's newest anti-DWI measure, the matter is now before the Court for sentencing under it.

The Issues of the Case:

The issues stem from the State's failure to establish determinate ignition interlocking costs. First, there is the question of whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment; whether that issue informs a related New York constitutional concern where the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Second, there is the question of whether the lack of a statutory metric for determining a defendant's ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement; whether requiring defendants to interlock every auto they own or operate is justifiable.

The Ruling of the Court:

As a general rule, lower courts should eschew constitutional questions related to statutes unless absolutely necessary. A New York Criminal Lawyer said those seeking to prove statutes to be unconstitutional must do so beyond a reasonable doubt. However, here, constitutional questions are unavoidable.

As provide for in the amended Vehicle and Traffic Law, it is required that those convicted finance ignition interlock installation and maintenance unless the sentencing court determines they cannot afford to do so. The law classifies the installation and maintenance costs as a criminal fine. Thus, the failure to pay for the interlock may prompt imprisonment. Notwithstanding their status as criminal fines, the interlock costs are ultimately indeterminate. This indeterminacy stems from the intentionally open-ended manner by which the State chose to calculate them. The New York Division of Probation and Correctional Alternatives (DPCA) which is now known as the Office of Probation and Correctional Alternatives (OPCA), a subdivision of the Division of Criminal Justice Services (DCJS, the Department)), following an application and approval process, created a regulatory scheme whereby private companies contracted with the State to provide and maintain interlock services.

A Nassau County Criminal Lawyer said there was a maximum fee/charge schedule with respect to all operators’ costs associated with such devices to which the prices they charge conform to. By reason of the fact that not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers or operators. Instead of having local governments finance them, the Department insisted that the qualified manufacturers, nominally, at least, pay for them. Under the new law, the court, upon determining financial unaffordability to pay the cost of the device, may impose a payment plan with respect to the device or waive the fee. The New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. Thus, DCJS' regulation requires qualified manufacturers, and not local governments or taxpayers to bear such costs. During the application process, manufacturers supply proposed fee structures that must take into consideration and be based upon an anticipated ten percent (10%) waiver of the fees by sentencing courts due to operator unaffordability. The ten percent figure derives from the Department's speculation based upon the experience of other states. The defendants claiming indigency are obliged to seek a payment waiver from the court. To obtain the waiver, they must complete and submit to the court a financial history/status form prepared by the Department designed to aid the court's indigency determination. Curiously, the law supplies no indigency metric to guide the court; nor is the court obliged to use the financial history form in making its determination. Ironically, DPCA developed the form to remedy perceived shortcomings in the statute: as the statutory language does not refer to indigency nor contain other limiting criteria based upon prescribed income levels or guidelines, including federal poverty, food stamps and participation in other government assistance programs, DPCA developed the FDR or Financial Disclosure Report form to provide the judiciary with information to better gauge whether the operator has resources to pay for device installation and maintenance. On 15 July 2010, the Department has approved seven qualified manufacturers, and, via memorandum, has published a list of each provider's prices for services. The listed prices constitute the maximum fees permitted: the prices represented in the matrix are maximum or ceiling prices. However, these costs aren't final, besides setting up the possibility of annual rate increases. Moreover, nothing it prohibits manufacturers from increasing operator prices mid-contract. In a recent information session for New York judges, the Director of DPCA/OPCA explained that the Department retains such pricing power to ensure the ongoing viability of the provider-subsidy scheme for indigent defendants. But, if indeed, even a payment plan is determined unfeasible and it is determined that this person is unable to afford it, then the manufacturers will provide the ignition interlock device and they will do so free of charge because implicit in the cost schedules that they submitted as a condition of becoming a qualified manufacturer, consistent with our regulations, they assumed a 10% unaffordability rate statewide. That was based on the examination of other states. If that exceeds 10% statewide, it was agreed in to allow the manufacturers to renegotiate their agreements. But, it is important for judges to note that there's a limit to what manufacturers will be able to bear before they leave the state. There are two primary issues that affect the viable programs nationwide, monitoring and unaffordability. For this reason, they designed the financial disclosure report form to provide judges with the most accurate information concerning each operator.

Here, the Court holds that the defendant cannot be obliged to pay for any ignition interlock device to be installed on any automobile he or she owns or operates. First, the State has failed to provide adequate notice of the costs related to interlock installation and maintenance. Second, no final, determinate interlock cost list has been properly filed with New York's Secretary of State, as New York's constitution requires. If the State seeks to have interlocks installed in defendant's automobiles, it must find alternative funding sources to do so. Moreover, the court finds that Part 358.8 of Title 9 NYCRR and the Vehicle and Traffic Law § 1198 (4) are unconstitutional to the extent that they require the Court to make indigency determinations without a statutory metric for ascertaining indigency. Thus, the Court will grant no indigency waivers. In addition, the Court finds that the requirement under the Vehicle and Traffic Law that defendant install interlocks in every car he owns or operates is unconstitutionally overbroad and therefore limits the installation requirement to any car a defendant chooses to operate.

In view of the above, the court finds that the defendant must be sentenced to pay a $500 fine and a $395 surcharge-victim fee; his driver's license must be revoked for six months; he must be given a conditional discharge to take and complete successfully a Drinking Driver Program or a drunk driving program authorized by the New York State within one year; for a six month period, he must be prohibited from operating an automobile without an ignition interlock and he must be given ten (10) business days from the issuance of the order to have an ignition interlock installed in any auto he chooses to drive where a twenty (20) day extension of his license may be granted.

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April 11, 2013

Defendant Claims Insufficient Evidence for an Indictment

A man moved for an examination of the stenographic minutes from a grand jury proceeding for the purpose of determining whether the evidence was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the grand jury were sufficient. He also seeks dismissal of the charges on the grounds of insufficiency of the evidence or for other defects in the proceedings.

The man stands charged with driving while intoxicated (DWI), a class E felony. Based on records, the felony status of the crime is based on a predicate conviction for driving a motor vehicle with in the violation of vehicle and traffic law, an unclassified misdemeanor.

The incident occurred one evening where a state officer's attention was drawn to the man's automobile because it was moving slowly. He estimated that the driver of the vehicle was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. The officer followed the vehicle and testified that the man was going about 20 miles per hour in the 30-mile per hour zone. At some point he verified the speed of the vehicle using radar. A New York Criminal Lawyer said the man consistently maintained the same speed up hill and downhill, including a steep hill, until he pulled over at the direction of the officer. He also testified that the man was driving on the right-hand side of the road. The man further testified that he pulled him over solely because of his driving. He also testified in saying that driving ten miles per hour below the limit is considered impeding traffic. The district attorney however did not reprimand the grand jury on the witness in advising on the law.

The officer further testified as to certain field sobriety tests conducted, his observations of the man's condition, the odor of an alcoholic beverage he detected from the man, the man's refusal to submit to a chemical test of his breath, and his admission to having drunk two beers about an hour before the stop. The officer testified that in his opinion, the man was intoxicated.

Consequently, the grand jury raised a number of questions. The district attorney then advised that in the case, there was no video evidence. He also advised that the officer cannot pull someone over without any reason. Based on records, the only possible charge, entitled minimum speed regulations, provides under subdivision was that no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

On the stop issue, the court notes that the conduct as described by the officer, in driving ten miles per hour under the speed limit at night, on the right hand side of the road, with no traffic on the road, would not make out a violation.

A Suffolk County Criminal Lawyer said the district attorney offered into evidence a certificate of conviction from the justice court. The district attorney advised, accurately, that the answer was irrelevant to their decision, but did tell them that it would be up to the judge as to whether a lesser charge should be considered by the jury. Although, it is unclear whether he meant to say DWAI, or meant DWI as a misdemeanor. Yet, it is clear that the grand juror was asking whether they could consider any lesser charge.

Based on records, the criminal procedure law provides that a grand jury proceeding is defective when the integrity thereof is impaired and prejudice to the opponent. In addition, the exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice. The legal test is very precise and very high.

The court explained that since dismissal of an indictment is an extraordinary remedy, it should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury. Flaws, errors or even skewing need not require a dismissal. The court further states that not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. The submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the accusation.

The court also explained that the instruction for more than twelve grand jurors must decide whether the evidence was insufficient to support the DWI charge before they could consider the DWAI charge was improper and assumed the grand jury's function.

Similarly, it is simply inaccurate that the grand jury must have decided to no bill the DWI charge before it could have considered DWAI. The applicable to trial juries, is not applicable in the grand jury. Likewise, it is inaccurate that more than twelve must so decide. The DWAI is a lesser included offense and a reasonable view of the evidence clearly could support a finding of the offense.

Additionally, the grand jury also had the right to consider DWI as a misdemeanor, as it is a lesser charge of DWI as a felony. Since the only evidence establishing the predicate offense was the certificate of conviction, the jury could have chosen to reject the said evidence, and if it found that the opponent had been operating a motor vehicle while intoxicated, he must charge only for the misdemeanor. The latter point brings up for consideration and the manner in which the certificate of conviction was introduced in evidence to establish the predicate.

In the trial, the evidence presented was sufficient to establish that the opponent did have a predicate conviction. It bears reminding, however, that like any evidence before it, the grand jury may accept or reject it. The certificate of conviction is not evidence that establishes the predicate as a matter of law.

Based on records, there is no question raised but the court found that a certificate for a named individual with a particular date of birth is sufficient to establish that the target of the investigation is the same person as identified in the predicate. It is still up to the grand jury to accept or reject the evidence. Moreover, the manner in which the evidence of the predicate was presented to the grand jury suggested the certificate as in fact relating to the opponent. While not making a finding of fact that the prosecutor did so in the case, prosecutors generally should be reminded that in presenting such certificates, they must not offer them as in fact relating to the target of the investigation, as such amounts to testifying before the grand jury.

Therefore, it appears plain to the court that the restriction imposed by the district attorney on the jury, that it must first decide the insufficiency of the evidence as to DWI before it could consider DWAI, was error that prevented the grand jury from evaluating the case as they had a right to do. It requires more than twelve to decide that it compounded the error, as well as being error itself.

Given the errors, the grand jury was denied its right to evaluate and consider all the relevant and reasonable charges and actions available to it. As a result, the indictment is dismissed.

The presence of alcohol in the human system affects the person’s consciousness and coherence. Driving while under the influence of alcohol can cause accident. If you are arrested for such case, you can choose from the Bronx County DUI Lawyer or Bronx County DWI Defense Attorneys. For your more serious offense whether it involves sex crimes, drug possession or theft, you prefer to ask for the legal representation of the Bronx County Criminal Lawyer by calling or visiting Stephen Bilkis and Associates office.

April 8, 2013

Defendant Questions Validity of Breathalyzer Test

On September 15, 1983, a DWI roadblock, indicated by signs, was set up by a uniformed police unit at the westbound 181st Street Bridge. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt. The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. The Police Officer, while asking the defendant how he felt, made several observations. He noticed that the defendant's eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath.

A New York Criminal Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. The Police Officer ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant's performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct Police Officer gave the defendant his Miranda warnings. Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol.

A Long Island Criminal Lawyer said that, the defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution. A hearing on this motion was held on March 8, 1984 and continued on March 12, 1984. The defendant now stands charged with violating VTL 1192(2) and 1192(3). He thus makes the instant motion.

The issues in this case are whether the constitutional rights of motor vehicle drivers are violated by police stops at "Driving While Intoxicated Safety Check" roadblocks; and whether the sobriety test taken by the defendant in the safety zone is illegal; and whether defendant is entitled to the suppression of the results of his breathalyzer test.

The court said that the initial stop of the defendant's car sufficiently restrained his freedom to result in a seizure subject to constitutional limitations. At that time the police officers lacked any indication that a crime was committed or that any criminal activity was under way. Accordingly, the seizure cannot find its justification under either common law principles or the Criminal Procedure Law. Unless the initial stop was reasonable, the subsequent acquisition of observations and test results from the defendant would be suppressible as the derivative results of an illegal seizure.

Reasonableness in this context requires the proper balancing between the privacy interests of the individual and the public interests of the state. The action of the police must be justified at its inception and be a reasonable response to the problem which it addresses. The state's compelling interest in highway safety permits distinctions between the privacy rights of citizens based upon whether or not they are occupants of motor vehicles.

No New York appellate authority has directly passed upon the constitutionality of Driving While Intoxicated (DWI) roadblock stops but ample Federal and State court authority exists regulating various types of motor vehicle stoppages. Brief stops of motorists at permanent checkpoints to enable Federal officers to look for illegal aliens was upheld because it balanced a limited stop at a permanent checkpoint with extensive prior warnings against the exigency of a massive influx of illegal non-citizens. Random stops, arbitrary in nature, to check a driver's license and registration have been held unconstitutional. That same case, however, allowed fixed checkpoints for this purpose. Justice White stated there that: "For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community.’At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.'

Under the right circumstances, the roadblock need not be permanent or have lights or warnings but may occur in isolated areas and be a roving roadblock. Routine "traffic checks" by police officers to determine whether or not a vehicle is being operated in compliance with the Vehicle and Traffic Law is permissible when conducted in a non-arbitrary, nondiscriminatory uniform manner. Thus, police officers, on whim or caprice and without an articulable suspicion or probable cause, may not stop the driver of a single motor vehicle. They may properly stop one or more lanes of traffic temporarily, at a roadblock in a non-arbitrary manner when a discernible need is established.

A routine stop to establish compliance with VTL regulations pertaining to licensing and registration has been sanctioned as a proper exercise of police power. The same authorized minimal intrusion to establish compliance with VTL regulations as to licensing and registration occurs when a DWI stop takes place. In the latter situation the danger to be prevented and the lifesaving aspects to the drivers and other citizenry leave no question as to the needs outweighing the inconvenience and render the intrusion totally reasonable.

Here the state is not following an "end justifying the means" theory but rather a proper exercise of its inherent power to limit in a very minor way the mobility of some of its citizens to save the lives and property of these same citizens and others. Accordingly, the initial stop of the defendant was constitutional and the motion by defendant to dismiss the information on those grounds is denied.
The next issue before this court is the effect of the field sobriety test taken by the defendant in the safety zone. At that point the police officer had gone beyond the minimum threshold of routine questioning. He had instructed the defendant to position his vehicle in an area under police authority. Under all the attendant circumstances, the defendant could reasonably infer that he was in custody, and had indeed been seized within the meaning of the Fourth Amendment.

Placing the driver/defendant in custody triggered certain constitutional requirements. The Miranda case and its progeny are concerned solely with verbal statements made by a defendant in custody. The warnings necessary in the case of a field sobriety test are of a slightly different nature.

The field sobriety test presents a hybrid situation. The defendant is in custody and his taking of the test is the result of an "interrogation." The results of the test are as damning as a verbal admission. The defendant must be warned that anything he says or does may formulate the basis for his arrest or be used against him in a court of law. While the results of the various dexterity tests are, for the most part, conduct and not speech, it is conduct that speaks louder than words.

The officers must also inform the driver/defendant that he may legitimately refuse to submit to the test, and that his refusal will not be admissible against him in a court of law. It follows that where consent was obtained, the People have the heavy burden to prove that it was a voluntary and knowing consent. The police officer, faced with a driver who refuses to take the field sobriety test, must base his determination as to the existence of probable cause to formally arrest the driver upon observations made up to that point. Accordingly, the results of the field sobriety test are to be suppressed, and the motion made by the defendant to that end is granted.

As to the results of the dexterity tests performed at the precinct after the breathalyzer test, these are not suppressed. Any defect arising out of errors at the safety zone is attenuated. There was a clear break in any form of interrogation. Sufficient time had passed and sufficient warnings were given to justify the belief that the defendant had been returned to the status of one who was acting voluntarily after sufficient warning and was not under the undue influence of the police officer's directions.
The final issue before the court is that part of the defendant's motion dealing with suppression of the results of the breathalyzer test.

A breathalyzer machine determines the content of a person's blood alcohol by analyzing the breath of the subject's lower lungs. In simplistic terms, the individual's breath is gathered in the machine and caused to pass through a solution which changes color in proportion to the amount of alcohol passing through it. From the degree of change in color the amount of alcohol which passed through the solution can be calculated, and the results recorded. There is no question that the breathalyzer test is a wholly constitutional method of determining whether there is alcohol in a defendant's system, subsequent to an arrest for driving under the influence of alcohol.

The controlling statute clearly states that "no person shall operate a motor vehicle while he has .10 of one percent or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva " A finding that the accused has a blood alcohol content of .10 per centum or more is per se evidence of guilt. In most cases involving the prosecution of a defendant for driving while intoxicated or impaired, the only tangible evidence offered against him is the result of the breathalyzer test. As such, it can be considered material evidence. Is there a duty to preserve such evidence? It has been held that the purpose of this duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence, rather, it is also to make the trial a search for the truth informed by all relevant material, much of which, because of an imbalance in investigative resources, will be exclusively in the hands of the Government.

The issue of preservation of the breathalyzer ampoules had been a popular subject of litigation as of recent times. In contrast, various courts have determined that although retesting of the original ampoule has not attained wide acceptance in the scientific community (except to discover gross defects--imperfections in the glass ampoule, defective fluid composition), a second sample must be taken at the same time as the original and preserved for the defendant's independent testing.
While the process of preserving a second sample is within the means of the police department, and permits preservation of the sample for at least twelve months, their failure to do so goes more to the weight of the test evidence being offered than to its admissibility and provides no constitutional impediment. In a 1984 case, the Supreme Court of the United States put to rest any residual doubts as the necessity of the People to either preserve the original ampoule or breath sample or to produce and preserve a second ampoule or breathe sample for the defense.

Accordingly, the court held that the results of the breathalyzer test are not suppressed.

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April 7, 2013

Court Discusses Legal Doctrine of Collateral Estoppel

Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on January 18, 1982. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. A Bronx DWI Lawyer said that, in December 2001, the Departmental Disciplinary Committee (Committee) served respondent with a notice and statement of charges alleging 28 counts of professional misconduct against him involving seven separate legal matters. The charges alleged that respondent engaged in a pattern of misconduct including the repeated disregard of court orders and directives; misrepresentations to clients, adversaries and courts; and the repeated neglect of client matters, often resulting in default judgments. By order entered November 28, 2001, this Court appointed a Referee to hear and report on the charges. Respondent filed an answer with affirmative defenses in January 2002.

A New York Criminal Lawyer said that, prior to the hearing, the Committee made a motion before the Referee requesting that the doctrine of collateral estoppel be applied to find respondent guilty of 11 of the 28 counts charged, based upon the findings and decisions issued by four courts. Respondent opposed the motion, and by decision dated November 1, 2002, the Referee granted the collateral estoppel motion on six of the 11 counts requested. Following 23 days of liability hearings on the remaining counts, the Referee issued a February 18, 2003 report sustaining 12 other counts and dismissing 13 counts. Three days of sanction hearings were held, with the Committee recommending disbarment and respondent, citing various mitigating factors, arguing for a public censure. In a final report dated May 5, 2003, the Referee recommended a five-year suspension. A Hearing Panel was convened, and it heard oral argument and accepted written submissions from both parties. In a written determination dated March 2, 2004, the Hearing Panel affirmed the Referee's findings of fact and conclusions of law, except as to count 3, which it disaffirmed, and it further affirmed the Referee's recommended sanction of a five-year suspension.

A Brooklyn Criminal Lawyer said that, the Committee now moves for an order pursuant to 22 NYCRR 603.4 (d), confirming the Referee's findings of fact and conclusions of law, as modified by the Hearing Panel's recommendation, and imposing a sanction suspending respondent from the practice of law for a period not less than five years. A review of the five matters in which charges were sustained follows.

A Bronx DWI Lawyer said that, respondent represented a client in a criminal DWI matter that was scheduled to proceed to trial on January 8, 1999, in Cortlandt Town Court. On that morning, respondent faxed an affirmation of actual engagement to both the clerk of the court and the prosecutor, representing that he was required to appear before the United States Court of Appeals for the Second Circuit on another matter that morning. The case was adjourned to February 5, 1999, at which time respondent reiterated to the Town Justice that it was not his choice that he was unable to appear on the previous date, since he had a lengthy argument before the Second Circuit.
At the Referee's hearing, the evidence established that respondent had not actually appeared before the Second Circuit on January 8th and that the case cited by respondent was neither calendared nor argued on that date. Rather, respondent had made the choice to file an emergency relief application at the Second Circuit's Clerk's office and spent some time speaking to a court attorney in an unsuccessful attempt to meet with a judge. Subparts (c) and (d) of count 26 were sustained by the Referee, who found that respondent made "deceitful representations" in violation of DR 1-102 (a) (4) by faxing the false notice of engagement to the court on January 8, 1999, and by making a false statement to the Town Justice on February 5, 1999 when questioned about the matter. Based on the same conduct, the Referee sustained counts 27 and 28, which alleged that respondent's falsehoods constituted conduct prejudicial to the administration of justice (count 27 [DR 1-102 (a) (5)]) and conduct that adversely reflected on his fitness to practice law (count 28 [DR 1-102 (a) (7)]).
A Bronx Criminal Lawyer said that, the Committee seeks an order confirming the Referee's findings of fact and conclusions of law, as modified by the Hearing Panel's report, and imposing a suspension of not less than five years. Respondent submitted a memorandum of law in opposition, arguing that each of the charges should be disaffirmed and, alternatively, if any are sustained, the sanction should be no worse than a public censure. Respondent also raises significant arguments relating to the Referee's power to invoke the doctrine of collateral estoppel, an issue which requires some discussion.

The issue in this case is whether the referee erred in invoking collateral estoppel.

The court held that the doctrine of collateral estoppel precludes a party from re-litigating `an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point'. The two requirements for its application are: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination.
Respondent does not challenge the invocation of collateral estoppel in attorney disciplinary proceedings generally. Nor could he as the Court of Appeals and numerous appellate courts in this state have upheld the use of collateral estoppel in such proceedings. Respondent's argument is narrower. He contends that the Referee was without power to make a collateral estoppel ruling because it would exceed her order of reference, which was to hear and report. He further asserts that it is bad policy to give referees preclusive power in disciplinary proceedings, since complex collateral estoppel determinations should be left to the court and, from a procedural perspective, such a policy would deprive the court of any opportunity to pass on the merits of the charges in the event of an erroneous collateral estoppel ruling by a referee.

Respondent raised similar arguments before the Referee, who rejected them. The Referee concluded that her authority in legal disciplinary matters is derived from part 605 of the Rules and Procedures of the Departmental Disciplinary Committee of the Appellate Division, First Department, which specifically empower the referee to conduct hearings, make findings of fact and conclusions of law and recommend sanctions it deems appropriate. The rules further authorize a referee to entertain motions, rule on the admissibility of evidence and make determinations as to what, if any, charges are sustained and sanction should be imposed. The Referee also cited two disciplinary cases from this Court in which collateral estoppel was applied by a referee.

The Hearing Panel also rejected respondent's challenge to the Referee's authority, but on different grounds. The Panel found that the Referee erroneously relied on her power under the rules to decide motions and make evidentiary rulings as a basis for authorizing collateral estoppel preclusion by a referee, since "collateral estoppel is not an evidentiary matter," but rather "determines an issue”.
We hold that a referee in a disciplinary proceeding has the power and authority to rule on a collateral estoppel motion. In reaching this conclusion, we rely on the reasoning of both the Referee and Hearing Panel. The Referee correctly concluded that her power is derived from this Court's rules and, contrary to the Hearing Panel's determination, those rules authorize the referee to do more than rule on evidentiary matters, but also to make "Determinations". Indeed, because the rules plainly authorize the referee to decide motions, issue finding of facts and conclusions of law and make "determinations" as to whether charges should be sustained and a sanction imposed, we discern no basis in the rules to deny the referee the power to make a collateral estoppel ruling.

Significantly, under the Court's rules outlining the procedures governing the disciplinary process, every finding, ruling and determination by the referee is subject to review by both the Hearing Panel and by this Court, which has the sole authority to impose discipline. Thus, no danger exists that the referee, rather than the court, will finally determine an issue.

Concluding, as we have, that the referee has the power to make collateral estoppel rulings, even as to default judgments in appropriate cases, we now address the Referee's application of the doctrine to the specific charges. With respect to the RLR matter, we find that collateral estoppel was properly based on the Southern District Grievance Committee's censure order relating to those two matters. We reject respondent's argument that the Committee chose the "wrong procedural format" in seeking collateral estoppel instead of a petition for reciprocal discipline under section 603.3 of this Court's rules. Although that section provides an alternative method of discipline, nothing in the rules limits the Committee to that procedure. Nor has respondent stated any basis for the applicability of the defenses to reciprocal discipline enumerated in section 603.3 (c). Respondent cannot be heard to complain about a lack of notice and opportunity to be heard where he submitted papers in response to the Grievance Committee's order to show cause, requested two extensions to file additional papers, but then never did so.

Respondent offers several arguments in opposition to the Referee and Hearing Panel's recommended five-year suspension, but none is meritorious. His main contention is that a public censure, rather than a suspension, is appropriate where an attorney's misconduct arises from serious psychological problems or traumatic events and the attorney has taken firm steps to resolve the problems.

While respondent has taken affirmative steps to improve his behavior, his attempt to link his misconduct with his condition of depression is far more questionable. We agree with the Referee's finding that the psychiatric testimony was "thin and not very convincing." While respondent introduced expert testimony as to his diagnosis, he offered little, if any, testimony himself as to how his condition affected his work. Nor do any other facts suggest a connection between depression and his multiple instances of misconduct. None of the medical testimony in this record offered any explanation as to how a condition of depression could lead to deceitful behavior and repeated disregard of court orders. In our view, the connection is wholly speculative and should be given little consideration in mitigation.

For its part, the Committee has made a compelling showing that a lengthy suspension is not only warranted, but in fact is the most lenient of sanctions under these circumstances. As found by the Hearing Panel, respondent committed 17 violations of the disciplinary rules over a 12-year period, involving five different matters. He has engaged in a pattern of serious professional misconduct, all the while demonstrating an astonishing insensitivity to his legal and ethical obligations. He has caused material harm to at least two clients, and most assuredly caused untold frustration and inconvenience to his clients, opposing counsel and the courts. Although an argument could be made that the duration and seriousness of respondent's misconduct warrants disbarment under our precedents.

Accordingly, the Committee's motion for an order confirming the findings of fact and conclusions of law of the Referee, as modified by the Hearing Panel, and imposing a suspension of five years, should be granted and respondent suspended from the practice of law for a period of five years.
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April 5, 2013

Defendant Contends Breathalyzer Test was Impropr

On May 6, 1995 at approximately 1:30 AM, a police officer was assigned to a so called DWI checkpoint in Queens County. A New York Criminal Lawyer said that pursuant to the procedures established for this checkpoint, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to an alcohol-sensor field sobriety test. At about 1:30 AM, the accused man entered the checkpoint area and in response to the officer's question indicated that he had been drinking. At this time, the accused exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The accused agreed to submit to an alcohol-sensor test and the results indicated a blood alcohol content of 0.15 of one percent. This test was re-administered to the accused approximately nine minutes later with identical results and he was then arrested and taken to the 114th Precinct where pedigree information in connection with the arrest was taken. While en route to the precinct, the accused asked the officer what was going to happen. The officer told the accused man that he would be given a breathalyzer test and that if his blood alcohol content registered 0.06 of one percent or less, that he would be released; that if he refused to submit to the breathalyzer test that his license would be revoked; that if he took the breathalyzer test and his blood alcohol content registered 0.10 of one percent or greater, that his license would be suspended. A similar exchange of information between the officer and the accused man took place at approximately 4:15 AM, immediately before the accused man took the breathalyzer test. Thereafter, the accused was transported to the Intoxicated Driver Testing Unit at the precinct. It was here that the officer advised the accused of his Miranda rights prior to questioning him from the IDTU questionnaire. Each and every Miranda warning was given and acknowledged by the accused who voluntarily agreed to answer questions.

A Manhattan Criminal Lawyer said that at some point after the IDTU questionnaire was completed by the officer, the accused was asked if he would submit to a breathalyzer test. Once again, the three alternatives described above were stated to the accused by the officer. The accused, without any apparent hesitation or protest, took the breathalyzer test at 4:15 AM. The results showed 0.09 of 1% of alcohol in the blood. The complainant concedes that the breathalyzer examination was administered more than two hours from the accused man’s arrest. The complainant concedes that notice of this statement was never provided to the defense counsel pursuant to CPL (Criminal Procedure Law).

Accordingly, the stop of the accused was proper. The officer request that the accused submit to an alcohol-sensor test was proper in view of the accused man's response to the officer's preliminary inquiry. The alcohol-sensor results provided probable cause to arrest the accused man of DWI.

With respect to the statements attributed to the accused, those memorialized in the IDTU questionnaire were freely and voluntarily made following the full administration and acknowledgement of the Miranda warnings. Accordingly, the statements are admissible. With respect to the statement attributed to the accused while being transported from the precinct to the Central Booking facility, the complainants are precluded from introducing the statement at trial. The statement was not contained with the requisite specificity in the CPL notice and good cause for the failure to do so was not provided.

Whether chemical test results should be admissible at trial when the test was administered after two hours of arrest, was recently addressed by the Court of Appeals. The court apparently held that when an accused expressly and voluntarily consents to submit to a chemical test that the so called two hour rule of Vehicle and Traffic Law is inapplicable. It is unclear whether the holding will be limited to the facts presented (consent to submit to the test within two hours of arrest--administration of the test after two hours of arrest) or whether, as the dissent strongly suggests, this holding will apply to all situations where an individual expressly consents to take a chemical test regardless of when the consent occurs. It appears to me that the majority decision has, in effect, written out of Vehicle and Traffic Law the two hour rule in cases of express consent.

While the decision resolves an issue that has spawned much litigation in the local criminal courts throughout the state in recent years, it invites litigation in areas that arise daily in our courts. In examining the procedures contained in Vehicle and Traffic Law in relation to the current case law, a traditional Fourth Amendment analysis of consent searches/seizures is inapplicable to situations where a chemical test is consented to after two hours of arrest.

It seems clear that the taking of a breath sample, as was done here, is a search within the meaning of the Fourth Amendment. However, in exchange for the privilege of being licensed to drive in this state, every motorist in this state is deemed to have given advance consent to submit to such a search when certain conditions precedents are present. Since the privilege to drive is statutorily created concomitantly with a deemed consent provision, there is no constitutional right for an individual driver in this state where the conditions precedent in Vehicle and Traffic Law are present, to refuse to submit to a police requested chemical test. Accordingly, since a statutory rather than a constitutional right is implicated in this type of case, it is not necessary to establish an express and voluntary consent beyond a reasonable doubt.

It is clear that consent involves a person's knowing choice from all of the factors present in each case. Factors for the court's consideration in determining whether consent was present in relationship of the characteristics of the accused and details of the interrogation, including the age and intelligence of the accused, the administration of the Miranda warnings, the length of the detention, physical threats, abuse or isolation, reliance upon false promises and the manner itself in which the consent occurred, that is, a reluctant, limited consent or a self prompted spontaneous consent.

In the context of VTL breathalyzer cases, there is no obligation to advise an individual of any rights prior to the administration of a breathalyzer test. There is no obligation to inform an individual of any right to refuse to submit to a breathalyzer test. By logical extension through Atkins then, there is no obligation on the part of law enforcement officials to advise a suspect of anything regarding the administration of a breathalyzer test even when the request to submit to a search test occurs beyond two hours of arrest. Thus, it appears to me that a simple request to submit to a breathalyzer test without more, can result in a voluntary consent as long as there is no express or implied coercion by law enforcement officials, no material misrepresentation of fact, to induce the consent and no facts to suggest that any law enforcement officials in securing an individual's consent acted in a manner so fundamentally unfair as to constitute a due process violation as to negate any consent.

I hold that to establish express and voluntary consent the burden is upon the prosecutor to establish consent by clear and positive evidence. Once this burden is shouldered by the complainant, the accused man must bear some burden in negating consent. This can be accomplished either through the cross examination of the complainant's witnesses or the presentation of a defense case. Applying these principles to the facts of this case the complainant has met their burden of establishing the accused man's consent by clear and positive evidence.

Although the accused man’s consent occurred in a custodial environment, the atmosphere was not overbearing on his will. The accused was not handcuffed; the accused actually appears to have initiated conversations with the officer on two to three occasions during this episode. The accused man’s degree of intoxication or impairment was not so extreme as to render him incapable, by virtue of intoxication, from understanding the nature of the events or from forming intent to consent to the administration of the examination. From all of the circumstances presented, there was a voluntary consent to submit to the breathalyzer examination. The results of this test are admissible.

When we agree to submit ourselves to test, we should be prepared for whatever the outcome may be. Tests should help us to find out if there is something wrong with us so we can act on it. However, submitting ourselves to tests should be willful. If you were forcibly submitted to do a DWI related test, consult the Bronx DWI Lawyer to find out your legal options. Stephen Bilkis and Associates can also provide you skilled legal counsel whether you have been charged with sex crimes,drug possession or theft.

April 1, 2013

Court Discusses Excessive Fines Clause in DUI Case

On February 20, 1999, respondent Police Commissioner announced that the City would apply the Property Clerk Forfeiture Law (Administrative Code of City of NY § 14-140) to vehicles operated by individuals arrested for driving while intoxicated (DWI). At 10:30 P.M. on February 21, 1999, police stopped and arrested petitioner for DWI. A New York Criminal Lawyer said that, the arresting officer concluded that petitioner was intoxicated based on the strong smell of alcohol, watery and bloodshot eyes, and coordination tests. A breathalyzer test indicated .11% blood alcohol content, over the .10% intoxication threshold. Officers took petitioner's 1988 Acura for forfeiture. By letter of February 26, 1999, petitioner's attorneys demanded its return.

A Bronx Criminal Lawyer said that, by order to show cause and petition dated March 9, 1999, petitioner commenced this proceeding. Petitioner seeks a final judgment invalidating the City's policy and the taking and retention of his car. On March 19, 1999, Property Clerk commenced a separate action against petitioner for a judgment declaring the vehicle forfeited as the instrumentality of the crime of driving while intoxicated. The criminal action is pending.

A Bronx DWI Lawyer said that, petitioner challenges the City policy as statutorily unauthorized and preempted by State law. Petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough.

A Bronx DWI Defense Lawyer said that, petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car. Civil forfeiture actions for instrumentalities were traditionally brought in rem against the "guilty" property. Petitioner challenges the taking and retention of his car as an unreasonable seizure. Petitioner argues that the police took and kept the car without cause or necessity and without obtaining a warrant before or after the seizure. The seizure was reasonable under three theories: plain view, incident to arrest, and the automobile exception. Petitioner alleges that the new City policy violates the Due Process Clauses of the Federal and State Constitutions because it authorizes the police to take and retain a vehicle without either a pre-seizure or post-seizure hearing.

A Bronx Criminal Lawyer said that the City's forfeiture action appropriately seeks a declaratory judgment, requiring a plenary action against an individual and personal service. The City seeks no relief other than a declaration of rights in the vehicle. The City contends that petitioner is barred from asserting a due process claim. Respondents assert that petitioner should be deemed a member of the McClendon class estopped from attacking the constitutionality of the procedures validated by the consent decrees.

The issue in this case is whether the City's new driving while intoxicated (DWI) vehicle forfeiture policy is constitutional.

The court in deciding the case said that, the Administrative Code of the City of New York § 14-140, adopted under the police powers provision of the Municipal Home Rule Law, defines the status of property by its nexus to crime and declares the City's consequent right to hold it. Administrative Code § 14-140 (b) directs that certain property, including that "suspected of having been used as a means of committing crime or employed in aid or furtherance of crime shall be given into the custody" of the Police Department Property Clerk. The law provides that anyone who used such property shall not be deemed the lawful claimant. The City's forfeiture procedures, codified pursuant to Federal consent decrees permit the Property Clerk to decline to return property if there is "reasonable cause to believe that it was the proceeds or instrumentality of a crime". The Property Clerk then must "cause a civil forfeiture proceeding or other similar civil proceeding to be initiated" either before or within 25 days of a claimant's demand.

Federal and State courts have assumed that the Administrative Code and codified rules form a proper statutory basis for a forfeiture action or proceeding. Thus, a car used to transport a buyer to and from a drug purchase was forfeited, like one used to solicit for prostitution. Just because one can buy contraband or patronize a prostitute without a car does not alter the vehicle's nature as an instrumentality subject to forfeiture. Operation of a motor vehicle is a necessary element of DWI. A drunk drivers automobile is the quintessential instrumentality of a crime the sine qua non without which the crime could not have been committed. It is irrelevant that the vehicle is not needed as evidence or that the District Attorney might not object to petitioner's request for its return. An independently elected prosecutor cannot bind the Property Clerk, a nonparty to the criminal action.
State law does not preempt either the new City policy or the local law which it implements. The State asset forfeiture law does not apply to petitioner, who is not charged with a felony. CPLR 1352 explicitly preserves the availability of other rights and remedies provided by law. Article 13-A does not limit or supersede. Nothing in article 13-A's legislative history indicates that the State intended to occupy the field. New York has a plethora of disparate forfeiture statutes; the Legislature has made no attempt at over-all re-codification or coordination. There is no evidence elsewhere in State law that the local forfeiture law or the new DWI policy violates overriding State policy. The new City policy implements current law; it needs no additional legislative authorization.

The Court said that, petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. No case has deemed forfeiture a criminal sentence if sought in a separate civil action. Cases under the City forfeiture law have been sustained irrespective of the status of the related criminal cases. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough. In one case it was held that forfeitures effected monetary deprivations, triggering the Eighth Amendment Excessive Fines Clause. It did not hold that forfeiture constitutes a sentence or punishment for double jeopardy or separation of powers analysis. Petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car. Civil forfeiture actions for instrumentalities were traditionally brought in rem against the "guilty" property. Jurisdiction was obtained by seizure, attachment or lien because absent or unknown owners could not be personally served. The litigation sought only the property and not a money judgment; in personam jurisdiction was unnecessary.

As regards the issue on search and seizure, the plain view exception permits warrantless seizure of contraband, instrumentalities or evidence found where it is immediately apparent to permissible police observation. If an object is in open view, its observation neither impinges on its owner's privacy nor constitutes a search. "Immediately apparent" does not mean at first glance, but before conclusion of the officer's on-scene inquiry. Petitioner here has not challenged the legality of the stop; he may do so in the pending prosecution. The record shows no reason for presuming the stop to have been improper. Like other pedestrians or motorists, police were able and permitted to observe petitioner driving on a public street. Concluding that he was intoxicated, the police had probable cause to believe that petitioner committed the qualitative, "common-law" count before the breathalyzer test, which confirmed the observations and supported the quantitative count. It was immediately apparent during the stop that the car was the crime's instrumentality subjecting it to seizure.

The automobile exception permits police to stop and search a vehicle if they have probable cause that it contains contraband, instrumentalities or evidence of crime. There is less expectation of privacy in a car than in a home or office; its inherent mobility is an exigent circumstance. If there is probable cause, no warrant is required to search a car for an instrumentality of a crime; logically, no warrant is required to seize a car that is itself an instrumentality. Petitioner's arrest and car seizure were virtually simultaneous, inexorable consequences of the stop. No warrant was required to arrest petitioner or to seize his car; no warrant was needed to validate his arrest and the car's retention. Once an object is permissibly seized as an instrumentality during an arrest, no warrant, pretrial hearing or judicial approval is needed for retention during the criminal action. It cannot be said here, as a matter of law, that the warrantless arrest, seizure or retention is unconstitutional.

The Due Process Clause of the Fourteenth Amendment guarantees that, absent extraordinary circumstances, "Individuals must receive notice and an opportunity to be heard before the Government deprives them of property." A prehearing seizure of an instrumentality for forfeiture comports with due process when "`the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.'" Petitioner urges this court to substitute the Supreme Court's analysis. Because the vehicle is a mobile instrumentality and its seizure was a necessary consequence of the contemporaneous arrest. The seizure satisfies due process under either test.

The seizure serves a significant governmental interest: it permits the Property Clerk to assert jurisdiction in order to conduct forfeiture proceeding. Moreover, immediate seizure of a drunk driver’s automobile upon arrest is necessary because the arrestee is legally and physically incapable of driving. Pre-seizure notice and hearing might prevent police from effecting a forfeiture. A car, like the yacht, is property "that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given." In contrast, the belated land seizure held unconstitutional demanded no immediate action. Unlike the creditors in the other case, who effected the seizure to collect on a debt, the arresting officers are government employees who derive no economic benefit. The seizure is simultaneous with a DWI arrest for which the police must have probable cause. The arresting officer evaluates an offense committed in his or her presence. Indicia of alcohol consumption and objective tests confirming the presence of alcohol minimize the risk of erroneous deprivation. While the City's DWI policy prevents accused drunk drivers from using property before a determination in the criminal action, the City's interest in deterring drunk driving and ensuring enforceability of a subsequent forfeiture order clearly outweighs the private interest affected.
Due process requires a meaningful adversarial proceeding at a meaningful time. Whether the delay between a seizure and the initiation of judicial proceedings violates due process is judged by the standards for determining a constitutional speedy trial violation. The factors include: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Retention prevents the vehicle from being used for repeated illegal activity. An automobile is an integral part of DWI; it poses the threat of being used as an "instrumentality of death" should the crime be repeated. Just as there is a strong public interest in withholding a non-contraband murder weapon from a homicide defendant, there is a strong public interest in withholding a car from a DWI defendant.

Petitioner argues that even if the City procedures do not violate Federal due process, they violate State due process. While the Federal and State Due Process Clauses are similar, our State clause occasionally has been accorded wider scope. Petitioner asserts that State due process is more protective, incorrectly assuming that CPLR article 13-A evinces a policy decision to reject in rem forfeitures. Rather, the breadth of article 13-A relief necessitates in personam jurisdiction. Neither Federal nor State due process requires a pre- or post-seizure evidentiary hearing for seizure and retention of DWI vehicles for forfeiture during pendency of the criminal action.

Petitioner challenges the City forfeiture policy as an excessive fine. New York's Excessive Fines Clause requires the same analysis as the Federal, and provides no greater protection. If a civil forfeiture contains a punitive element, it is deemed a fine under the Eighth Amendment despite its remedial purpose, and must be analyzed for excessiveness. The City DWI forfeiture policy is punitive for Eighth Amendment purposes under Austin: it has an "escape hatch" for innocent owners; it links the forfeited property directly to the charged crime; it lacks specific correlation between the property's value and the crime's social cost. While the forfeiture sought may be deemed a "fine", it is not excessive when analyzed under any of the three tests advanced for measuring excessiveness: proportionality, instrumentality or a mixed instrumentality-proportionality analysis.

Petitioner's vehicle is the instrumentality of a charged crime, inseparable from it, and its prerequisite. Petitioner owns the car and drove it at the time of the alleged offense. The owner's role and his use of the property were temporally and spatially coextensive with the offense charged. DWI is a serious crime, in both sentence and effect. As a first offense it is a misdemeanor, with a maximum sentence of one year in jail, a fine of $1,000 and three years' probation, or a combination, plus loss of driving privileges. For 10 years after conviction, a subsequent offense is a felony, with up to four years possible imprisonment. DWI is indeed "a crime which injures and kills, and is an unparalleled public menace." The "threat posed by drunk drivers" is "empirically irrefutable."

In sum, the City's DWI forfeiture policy does not violate the Excessive Fines Clause, as a matter of law, either facially or as applied to petitioner's vehicle. Petitioner has not met his burden of demonstrating that the City DWI forfeiture policy is unconstitutional, contrary to law or arbitrary and capricious, either on its face or as applied to him. Accordingly it is adjudged that the petition is denied and the proceeding is dismissed.

If you want to question the constitutionality of a DWI City policy, seek the assistance of Bronx DWI Attorney and/or Bronx DWI Defense Attorney at Stephen Bilkis and Associates. Whether you have been charged with sex crimes, drug possession or theft, call us for free legal advice.

March 31, 2013

Court Decides Legality of DUI Checkpoint

Police officers were given instructions by their sergeant to set up a DWI checkpoint on June 10, 1993 at the corner of 20th Street and Avenue C in Manhattan. At that checkpoint, all passing cars were stopped by the police officer manning the checkpoint. Depending on his observations of the driver of the car stopped at the checkpoint, the police officer would ask the driver to pull over to the side of the road so that the driver can be further questioned by the police.

When the defendant driver came up to the checkpoint, a police officer asked him to stop and to roll down his window. The police officer smelled alcohol on the breath of the driver as soon as he rolled down his window. A New York Criminal Lawyer said the police officer asked the driver to pull over to the side of the road. He then asked the man to exit his vehicle. The accused driver then admitted to the police officer that he had been drinking. The police officer then administered the alcohol breathalyzer test on the accused driver and his blood alcohol level registered at .14. When the results of the breathalyzer test came out, the police officer then arrested the man.

At his arraignment, the driver asked for a hearing to determine whether the police officers had probable cause to stop his vehicle; whether or not the checkpoint was not arbitrary; and whether or not the oral admission made by the accused and the breath test result should be suppressed.
The Court held that as to the setting up of the checkpoint, the law requires that the DWI checkpoint be established and operated in accordance with guidelines. The Court held that all that is required is that the DWI roadblock not be set up in an arbitrary fashion. It is also required that the checkpoint should be operated without any discretion on the part of the police officers manning it.

Here in this case, the police officer who manned the checkpoint testified at the hearing that his sergeant did not tell him the reason why the checkpoint was set up at that corner of 20th Street and Avenue C. But as soon as he was ordered to set it up, he did so and he stopped every car that passed by the corner. All cars were stopped. The police officers inquired from all drivers that passed the checkpoint and observed them for signs of driving while under the influence of alcohol. A New York City Criminal Lawyer said there was very minimal intrusion upon the privacy of the drivers as they were only asked to roll down their car windows for the police officers to see if their eyes were bloodshot and to smell if alcohol was on their breath. Other than this, the drivers were not asked any more.

As to the question of probable cause for the arrest of the driver here, the police officer testified that as soon as the driver drove up to the checkpoint, the police officer shined his flashlight on the driver’s window, knocked on it and asked him to roll it down. The police officer also testified that the smell of alcohol was strong enough for him to detect it as soon as the driver rolled down his window. The police officer also testified that the driver was unsteady on his feet when he was asked to exit his vehicle. The fact that clinched the presence of probable cause was the result of the alcohol breath test. The Court ruled that there was probable cause for his arrest.

As to the admission he made to the police officer at the checkpoint there was no proof that his admission was anything other than spontaneous. He was not under arrest at that time and he volunteered the information.

The motion to suppress is denied.

Were you arrested for DWI at a checkpoint? You need a New York DWI lawyer to explain to you what will happen to you. A New York City DWI Lawyer will be able to advice you if you desire to plead guilty and what the consequences of a plea of guilt may have for you. At Stephen Bilkis and Associates, their NYC DWI Lawyers can represent you. In case you wish to assail the legality of your arrest, a NY DWI Lawyer can help you file a motion to suppress or a motion for a hearing to determine probable cause. Whether you have been charged with a DUI, sex crimes or theft, contact Stephen Bilkis and Associates at any of their offices in the New York area.

March 18, 2013

Court Decides if Defendant Has Right to Speedy Trial after Traffic Infraction

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol, a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law (CPL) is denied. While CPL does not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

A New York DWI Lawyer said it is undisputed that fifty-two days between the accused man’s arraignment and the complainant being ready for trial are chargeable to the complainant. The accused argues that the case should be dismissed as more than 30 days have passed since the accused man's arraignment, the time allowed to be ready for trial on a violation.

Criminal Procedure Law establishes that when the accused is not in custody, the complainant must be ready for trial within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months or within 30 days if the offense is a violation.

However, a Nassau County DWI Lawyer said the statute is noticeably silent on the issue of whether a person charged with a traffic infraction has statutory speedy trial rights. The Appellate Term Second Department has twice held that CPL is not applicable to traffic infractions.

Trial courts are divided on this issue. Most trial courts have held that CPL was inapplicable in matters concerning traffic infractions, as CPL only applies to felonies, misdemeanors and violations. However, a contrary view postured by the judge held that CPL applied to traffic infractions since Vehicle and Traffic Law (VTL) stated that traffic infractions shall be deemed misdemeanors and all provisions of law relating to misdemeanors except as herein otherwise expressly provided shall apply except that no jury trial shall be allowed for traffic infractions. Therefore, the court concluded, the prosecution had 60 days, the period for class B misdemeanors, in which to be ready for trial.

Nowhere does VTL state that traffic infractions are to be handled like class B misdemeanors. Similarly, the speedy trial statute only applies to unclassified misdemeanors if the accused faces a term of imprisonment greater than 3 months. No matter how tortured the reasoning, a violation of the Vehicle and Traffic Law is not a misdemeanor. VTL clearly states that a violation of DWAI shall be a traffic infraction and shall be punishable by a fine of not less than $300 or more than $500 and/or up to 15 days in jail.

A New York DWI Lawyer said the Penal Law makes it clear that a traffic infraction is not a violation it is instead a unique non criminal offense. A violation means an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. Accordingly, a traffic infraction cannot conveniently be treated as a violation for procedural or speedy trial reasons as the Legislature has expressly excluded a traffic infraction from the definition of a violation.

January 26, 2013

Court Weighs Plaintiffs Injuries Against Applicable Insurance Law

A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.

A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.

A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant's vehicle without crossing over the double yellow lines into the complainant's lane and instead struck the complainant's stopped vehicle while both vehicles were pretty much right on the line.

Under such circumstances, the presence of the complainant's stopped vehicle on the roadway was not a proximate cause of the impact but merely furnished the conditions for the DWI accident to occur. The accused woman was accordingly solely responsible for the drunk driving accident.

Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a complainant's injury. A Bronx Criminal Lawyer said the Court of Appeals stated that complainant’s proof of injury must be supported by objective medical evidence, such as sworn interpretations of MRI and CT scans. However, MRI and CT scan tests and reports also must also be paired with the doctor's observations during his physical examination of the complainant. Unsworn MRI reports can also constitute competent evidence but only if both sides rely on those reports.

On the other hand, even where there is ample objective proof of the complainant's injury, the Court of Appeals held that certain factors may nonetheless override a complainant's objective medical proof of limitations and permit dismissal of the complainant's complaint. Specifically, the Court of Appeals held that additional contributing factors, such as a gap in treatment, an intervening medical problem, or a preexisting condition, would interrupt the chain of causation between the accident and the claimed injury.

A person bringing a claim for damages for personal injuries under the permanent loss of use of a body organ, member, function or system category, as in this case, must prove that the permanent loss of use is a total loss of use.

The accused woman has provided evidence demonstrating the lack of serious injury, the burden shifts to plaintiffs to present sufficient evidence to defeat the motion. To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial and must make his showing by producing evidentiary proof in admissible form.

In opposition to the accused woman’s motion, the complainant woman provides her own affidavit, an affirmation of her treating neurologist dated October 16, 2007 and an affirmation of her radiologist interpreting the MRI of her left knee taken on June 1, 2006.

The affirmations of the complainant woman’s treating neurologist and radiologist, while containing objective findings of some injury, include no range of motion or other findings so as to suffice in demonstrating a material issue of fact on her alleged significant limitation of use. Moreover, the complainant's proffered explanation for her gap/cessation of treatment — that her no fault benefits had run out — is legally insufficient without additionally demonstrating that her personal financial circumstances precluded further treatment otherwise.

Nor has she created a triable issue of fact regarding the seriousness of her injury during 90 of the first 180 days following the DWI accident. Her deposition testimony read in conjunction with her bill of particulars indicates that she does not claim her injuries prevented her from employment for more than one week post-accident. Her attempt to claim otherwise by submitting an affidavit containing inconsistent allegations is rejected as an attempt to raise a feigned issue of fact. The accused woman’s motion is accordingly granted and the personal injury claims of the complainant woman are dismissed without costs.

Accidents occur due to negligence. When such event occurs, it is not just the physical harm that would affect the victims but they would have to deal with emotional dilemma as well. If you have been charged with a DWI, theft or sex crimes, contact Stephen Bilkis and Associates. Stephen Bilkis and Associates can also provide you with a Bronx DWI Defense Lawyer to fight for you in court.

January 25, 2013

Accused DWI Defendant Claims Police was Coerced to Take Breathalyzer Test

A police officer was called to the scene of a traffic accident involving two vehicles. When the police officer arrived he noticed that one of the drivers who figured in the accident had slurred speech, red and watery eyes and he was unsteady on his feet.

The police officer immediately placed the driver under arrest. In the patrol car, the police officer read to the arrested drunk driver his Miranda rights. A New York DWI Lawyer said as the police officer was driving his car to the precinct to complete the driver’s paperwork, the driver asked the police officer if he was not going to issue him a D.A.T (a Driver’s Appearance Ticket is a ticket issued by the police officer to a person caught violating the Vehicle and Traffic Law and instead of bringing him to the precinct, filing all the paper work for his arrest and bringing him to the court house immediately for his arraignment, the Driver’s Appearance Ticket will order the person to appear before the same arraignment court at a later date).

The police officers told the man that he would issue him a D.A.T. if he agreed to take the breathalyzer test and the coordination test. The police officer also told him that if he refused to take the breathalyzer test and the coordination test, no D.A.T. will be issued to him and he would have to be placed in jail until such time that he can be arraigned.

The man agreed to take the breathalyzer test and the coordination tests so that he wouldn’t have to spend any time in jail and simply appear at the arraignment court on the date appearing in the D.A.T. A New York DWI Lawyer said the police officer arrived at the precinct and by then, an hour had elapsed from the time that he was arrested. The police officer only had one more hour within which to administer the breathalyzer test and the coordination tests on the driver.

The man asked the police officer if he could have one phone call. He said that he wanted to call his family to tell them what happened to him; to tell them to call his lawyer; and to come and pick him up at the precinct. The police refused. He said that he would give him his phone call after the breathalyzer test and the coordination tests were over. The man took the tests. The man’s blood alcohol level was found to be at .10 per cent. He also failed the coordination tests. He was issued a D.A.T. and he appeared for arraignment.

At the arraignment, he filed a motion for preclusion of the breathalyzer test results and of the results of the coordination test. He claims that he was coerced to take the tests by the police when they made the issuance of the D.A.T. depend on his agreement to take the tests. He also claims that his right to an attorney was violated when he was made to take the test before he could call his lawyer whom he wanted to consult about whether he should take the tests.
The Court held that the issuance of the D.A.T. is within the discretion of the police officer. But, in this case, the police officer dangled the D.A.T. as a motivation for the man to agree to take the tests. The man didn’t want to spend time in jail and he was put in a position that he would do anything and consent to anything just to be issued a D.A.T. He was psychologically coerced into taking the tests.

The Court also held that when the driver asked for the chance to call his lawyer and the police officer refused until after he had taken the test, the police officer violated his right to an attorney. A phone call would not have taken over an hour to make. A Nassau County DWI Lawyer said by calling his attorney, the man could have gotten legal advice on whether he should take the breathalyzer and coordination tests.
The Court granted the man’s motion to preclude the results of the breathalyzer tests and the coordination tests.

Were you arrested for drunk driving because you were involved in a motor vehicle accident? You need the advice of a lawyer. A New York City DWI lawyer can advice you as to the possible criminal and civil consequences of the accident as well as of being found to be drunk driving. A New York DWI lawyer can give you advice on whether you should take a breathalyzer test. A NYC DWI lawyer will explain to you the consequences of refusing to take a breathalyzer test. At Stephen Bilkis and Associates, their NY DWI lawyers on staff are willing to advice you and they are also willing to represent you. Come and speak with any of the New York DWI lawyers on the staff of Stephen Bilkis and Associates today,

January 23, 2013

Court Looks at Complex Resentencing Issue for Defendant

Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree and on November 19, 2002 given an indeterminate sentence of imprisonment with a term of 2-6 years. A Bronx Drug Crime Lawyer said that, the People assert that the Defendant engaged in the sale of $350 of cocaine to an undercover police officer on two occasions and that on later date cocaine and drugs paraphernalia were recovered from the apartment where the sales took place. In addition to the instant offense, Defendant was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree and sentenced to time served in 2002, convicted of Invalid Use of a Credit Card with Intent to Defraud and sentenced to time served in 1999 and convicted of Criminal Trespass in the Second Degree and sentenced to four days in jail in 1998.

A New York DWI Lawyer said that, the Defendant was initially released to parole supervision on the instant offense. Parole violation warrants were issued for the Defendant. In these warrants, it was alleged that the Defendant had used cocaine and marijuana, failed to report to his parole officer on multiple occasions, left his approved residence and failed to attend two programs required by the Division of Parole. Defendant was re-incarcerated for a parole violation and continued to be in prison at the time the instant motion was filed. Defendant has been punished for one disciplinary infraction while in prison. That was a Tier 3 infraction on December 26, 2008 for violent conduct; fighting and disorderly conduct for which he received 30 days of keep lock time.

A New York DWI Lawyer said that, while incarcerated, Defendant successfully completed the drug crime treatment program and the Shock Incarceration program. He entered the Alcohol and Substance Abuse Treatment Program ("ASAT") and continues to participate in the program, where he has received a number of positive reviews. He has received training or done work in a number of vocational areas and increased his grade levels in math and reading. Prior to prison, defendant served for eight years in the National Guard. A Bronx Criminal Lawyer said that, defendant moves to be resentenced pursuant to the Drugs Law Reform Act of 2009. That motion is opposed by the People. The People argue that the Defendant is ineligible for resentencing because he is currently incarcerated only by virtue of a parole violation. The Defendant contends that this fact does not bar resentencing.

The issue in this case is whether defendant is entitled to his motion for resentencing.
The Court said that the 2009 DLRA allows certain convicted Class B felony drug crime offenders serving indeterminate sentences imposed prior to January 13, 2005 to be resentenced to new determinate terms under the new determinate sentencing ranges created by the statute. The statute first requires a court to determine whether a defendant is eligible for resentencing. In this case, the parties disagree about whether the Defendant is statutorily eligible for resentencing in one respect.

The 2009 DLRA requires that the Defendant be in the custody of the department of correctional services to be eligible for resentencing. The People argue that because the Defendant is in custody solely by virtue of his own actions in violating parole, he should not benefit by receiving a resentence. In support of this argument, the People rely on a 2008 case and 2009 case decided by the Supreme Court. In the 2008 case, it involved an application for resentencing by two offenders under the 2005 DLRA. In the said case, the Court held that the plain meaning of the 2005 DLRA required that in order to be eligible for resentencing, a defendant could not be eligible for parole within three years of a resentencing application. A Nassau County DWI Lawyer said the People's argument in the instant matter concerns the Court's holding with respect to the second named Defendant. The defendant was originally convicted of a Class A-II felony in 1999, given a 5 year to life indeterminate sentence and subsequently released on parole. Two months after release, in 2002, he again committed a Class A-II felony for which he was sentenced to a 6 year to life term. He moved for resentencing under the 2005 DLRA for his 1999 conviction, since, given the revocation of his parole, he was now more than three years away from parole eligibility. The Court of Appeals acknowledged that he was eligible for resentencing under the literal terms of the statute. They held, however, that he was nevertheless barred from resentencing.

To allow resentencing, the Court held, would create "illogical, if not perverse results". They noted that if defendant had not committed a new crime, he would be ineligible to have his lifetime maximum sentence modified on resentencing, since he would not have been in correctional custody. The Court reasoned that "surely, the Legislature did not intend fresh crimes to trigger resentencing opportunities". The Court therefore held that "once a defendant has been released to parole supervision for a Class A-II drug crime conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction". This Court said that, the 2008 case did not base its holding on any statutory language or legislative history relevant to the 2005 DLRA. Rather, the Court held that its construction of the statute was the most sensible one because it concluded that the Legislature could not possibly have intended a different result. The holding in the 2008 case applied the well-settled rule that a statutory interpretation which is "contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent" regardless of the language of a statute or any evidence that the legislature actually intended the result reached by a court.

The Court said that, an offender who is denied parole and remains incarcerated is automatically eligible for parole within two years. Thus, an offender denied parole that remains incarcerated can never be eligible for resentencing under the 2005 DLRA because only offenders who are more than three years away from parole eligibility qualify for resentencing. As the 2008 case court explained, an offender who is re-incarcerated for a parole violation, as then was, is given a "time assessment", which is a period of time after which the offender will again be eligible for parole. In the said 2008 case, this time assessment was 5 months and 26 days. Defendant was not eligible for resentencing with respect to his initial conviction when he was initially re-incarcerated because his time assessment meant he was not more than three years away from parole eligibility when he returned to prison. He could also never again be eligible for resentencing under the 2005 DLRA with respect to his first conviction because, with respect to that initial conviction, he would be eligible for parole at least every two years.
It is not clear what practical impact the rule has had on the resentencing of Class A-II felony drug crime offenders. That is because of the three year parole eligibility rule. Mills, when contrasted with a rule which would consider resentencing eligibility only with respect to a Defendant's initial conviction, would only affect a Class A-II felony drug offender who violated their parole, was given a time assessment of more than three years and then applied for resentencing. If resentencing eligibility under the 2005 DLRA was judged only with respect to the conviction a defendant applied to be resentenced for, offenders who received time assessments of less than three years would never be eligible for resentencing regardless of the "fresh crimes" rule.
In sum, the 2008 case Court announced a rule which was broader than it might have chosen to adopt given the "fresh crimes" rationale for its decision. The Court also announced a rule which was broader than necessary to deny resentencing the defendant. But the decision also to a large extent covered offenders who were ineligible for resentencing in any event. The more significant practical effect of the 2008 case would occur if its underlying rationales were applied to drug law resentencing enactments which do not include the three year eligibility bar.
The Court said that, there are a number of reasons why the 2008 and the 2009 case rules, in the view of this Court, should not be applied to resentencing motions under the 2009 DLRA. A number of these rationales are based on differences between the 2004, 2005 and 2009 statutes. It is a universal principle in the interpretation of statutes that expressio unius est exclusio alterius. That is, to say, the specific mention of one person or thing implies the exclusion of other persons or thing. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded. Thus, where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned".
The exclusions the Legislature created in the 2009 DLRA distinguish it from the 2004 and 2005 Acts. In the 2004 Act's resentencing provision, applicable to Class A-I felony drug offenders, all offenders were eligible for resentencing, although resentencing ranges varied depending upon an offender's criminal history. The 2005 Act barred offenders currently serving sentences which made them not eligible for "Merit Time" from the law. This broad, general exclusion, however, only dealt with offenders who had concurrent sentences for violent, sexual and similar crimes. The 2009 Act's exclusions are more broadly and specifically drawn. The statute excludes not only offenders serving certain current sentences but a range of offenders with objectionable prior criminal histories including those previously convicted of a violent or non Merit-Time eligible offense. The Legislature understood the 2009 Act's exclusions to be of a different kind and character than had been enacted before.
The plain language of the 2009 DLRA resentencing statute thus does not exclude parole violators. There is no legislative history which suggests that the Legislature intended such a result. The Legislature's itemization of specific exclusions in the Act creates a strong inference that no further exclusions were intended. Moreover the 2009 Act differs in this respect from both the 2004 DLRA and the 2005 DLRA. The natural consequence of the 2009 DLRA's unique sentence lengths and timing requirements is that the statute predictably will include parole violators within its eligibility rules. The 2009 DLRA is a remedial statute which must be liberally construed. An offender who is never released from prison may have engaged in much more egregious, dangerous and blameworthy conduct before and after being convicted of a drug crime than one who is granted parole release and then returned to prison after a violation.
Defendant's circumstances in the instant matter provide another good example of the incongruous results which would arise from applying a statutory resentencing bar under the 2009 DLRA to all offenders in prison for a parole violation. Unlike many defendants applying for resentencing under the 2009 DLRA who have significant felony histories, defendant is a first felony offender. He served in the National Guard for eight years. He has successfully completed numerous prison programs. He has no violent felony history. He has an almost perfect prison disciplinary record (having committed one serious disciplinary infraction). At the time his motion was granted he was enrolled in the Alcohol and Substance Abuse Treatment program where he was receiving favorable reviews. But he has also committed multiple parole violations. "Substantial justice" does not dictate the denial of Defendant's resentencing motion. But neither should a judicially created categorical resentencing eligibility bar. Thus, in view of the foregoing, the Court holds that a defendant who is returned to prison after violating the provisions of his parole is not, by virtue of that fact, barred from resentencing eligibility under the 2009 DLRA. Defendant's motion is granted and the Defendant is offered a new determinate sentence of 3 years in prison followed by 2 years of post-release supervision.
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December 28, 2012

Court Decides Whether Prior DUI Convictions are Allowed as Evidence

The Facts of the Case:

On 11 October 1988, the petitioner was charged in the circuit court with three traffic-related offenses. One of the charges was for DUI (DWI) in violation of the Florida Statutes, to wit: that any person who is convicted of a fourth or subsequent DUI violation is guilty of a felony of the third degree. However, the information filed charging the petitioner made no mention of any specific prior DUI convictions, nor did the state before trial provide the petitioner any details of the alleged prior convictions. At arraignment, petitioner moved to dismiss or to transfer the matter to the county court, contending that because the information did not inform him of what specific prior offenses he allegedly committed, the information did not adequately charge the felony, and therefore the circuit court had no jurisdiction. The circuit court denied the motion. Consequently, the jury found petitioner guilty of DUI. A New York Criminal Lawyer said after denying the petitioner’s renewed motion to dismiss, the court immediately adjudicated petitioner guilty of third-degree felony DUI and sentenced him to four and one-half years' imprisonment. Thereafter, the district court reversed on the ground that the felony prosecution in circuit court was improper because the information merely charged petitioner, in effect, with three misdemeanors. The district court expressed conflict with a prior court ruling which held that the state need not allege the prior DUI convictions in the charging document because of possible prejudice to the accused in the event the prior convictions were brought to the jury's attention.

The Issue of the Case:
The sole issue is whether or not a charging document must specifically allege three or more prior convictions for Driving Under the Influence (DUI) when charging a defendant with felony DUI to confer jurisdiction on the circuit court and to comply with due process of law.

The Ruling of the Court:
Here, the court must make two related inquiries concerning the sufficiency of the information. The court must first determine whether the information unambiguously alleged the commission of a felony, thereby properly invoking the subject matter jurisdiction of the circuit court; and if the circuit court had jurisdiction, the court must then determine whether the information satisfied the petitioner’s right to the protection of due process of law.

On the question of jurisdiction:
As held by the court in a landmark case, an information charging a felony and misdemeanors arising out of the same circumstances is within the exclusive subject matter jurisdiction of the circuit court. However, a Nassau County Criminal Lawyer said the information must unambiguously charge a felony to invoke the circuit court's jurisdiction. Here, the state made clear in the information that it was charging the petitioner with third-degree felony. It was specifically mentioned or stated. Thus, the court finds that the information properly invoked the jurisdiction of the circuit court.

On the sufficiency of the Information:
As a rule, if a defendant charged with felony DUI elects to be tried by a jury, the court shall conduct a jury trial on the elements of the single incident of DUI at issue without allowing the jury to learn of the alleged prior DUI offenses. If the jury returns a guilty verdict as to that single incident of DUI, the trial court shall conduct a separate proceeding without a jury to determine, in accord with general principles of law, whether the defendant had been convicted of DUI on three or more prior occasions. All evidence of the prior DUI convictions must be presented in open court and with full rights of confrontation, cross-examination, and representation by counsel. The trial court must be satisfied that the existence of three or more prior DUI convictions has been proved beyond a reasonable doubt before entering a conviction for felony DUI.

Applying the aforesaid rules of law to the facts in the case at bar, the court is persuaded that the district court found error for the wrong reason. The information charging the petitioner here did satisfy the law's jurisdictional requirements and properly invoked the jurisdiction of the circuit court. Thus, the district court erred in reversing all the convictions on jurisdictional grounds. However, the state failed to give the defendant any notice of the alleged prior DUI convictions it intended to establish to prove felony DUI, and the record also contains insufficient evidence of the existence of any prior DUI convictions to support a felony DUI conviction. Thus, the felony DUI conviction cannot stand. Even so, substantial competent evidence does appear in the record to support a conviction of first-offense DUI, for which petitioner must now be resentenced.
In sum, the court approves the result as to the felony DUI conviction, but quashes the decision in all other respects; the case is remanded with instructions to reinstate the convictions for driving with a suspended license and attaching an unassigned registration license, to enter a conviction of first-offense DUI, and to resentence the petitioner.

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August 22, 2012

Defendant Claims Ineffective Counsel

This is a case being heard in the Supreme Court of Bronx County. The case involves the People of the State of New York versus the defendant.

Defendant’s Case

On or about the 6th of August, 2011, the defendant filed a pro se motion to have his conviction of rape in the first degree, kidnapping in the first degree, and coercion in the first degree from 1977, vacated. A New York DWI Lawyer said the defendant argues that his rights regarding the Confrontation Clause of the Sixth Amendment of the United States Constitution were violated during his trial when the hospital record, including notations made by a resident at the hospital who did not testify, was admitted into evidence.

The defendant also states that his conviction should be vacated on the grounds that his trial counsel was ineffective as they allowed the hospital record to be introduced as evidence.

Case Background

On the 17th of November, 1975, the defendant was indicted on charges of rape, kidnapping, and coercion. The defendant was indicted along with three co-defendants all acting in concert with each other in respect to the charges.

During the trial, a doctor testified on behalf of the People. He was the doctor who treated the young woman complainant in his office and afterwards when she was admitted to Whitestone Hospital. He testified on account of his own examinations of the complainant and to the hospital record of the complainant’s stay. He stated that the hospital record was kept in accordance to the regular course of business. A New York DWI Lawyer said the doctor referred to the record to refresh his memory during testimony. He stated that the record contained notations made by the admitting physician of the hospital,

The trial counsel of the defendant objected to the hospital records being admitted on the grounds that any portion of the record that related to bruising, contusion, or cigarette burns should not be admitted as the trial testimony indicated these injuries were inflicted by a co-conspirator before the defendant become involved in the incident and for that reason this part of the record should not be part of the “acting in concert” charges.

The trial judge overruled the objection and the records were allowed to be submitted into evidence. He issued a limiting instruction to the jury in regard to their consideration for this part of the record.

Court Discussion and Decision

The court has reviewed all of the facts relevant to this case. It was found that the defendant had appealed his conviction and did not raise the issue of hearsay objection during his case for appeal. A Nassau County DWI Lawyer said the appeal case was reviewed in its entirety and after careful consideration including study of similar cases in the state of New York, the court denies the motion to vacate judgment on the basis that the defendant was unable to raise justifiable issues on appeal.

In regard to vacating the conviction on the grounds of ineffective assistance of counsel, it is found that the counsel of the defendant attempted to object to the evidence being submitted at the time of the trial. This motion for vacating the conviction is denied as well. The entire motion of the defendant is dismissed without a hearing.

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August 20, 2012

Defendant Cites 6th & 14th Amendment

Under Massachusetts procedure, a 'two-tier' system is utilized for trial of a variety of criminal charges. The initial trial under this system is in a county district court or the Municipal Court of the City of Boston. No jury is available in these courts, but persons who are convicted in them may obtain a de novo trial, with a jury, in the appropriate superior court by lodging an 'appeal' with that court. At the de novo trial, all issues of law and fact must be determined anew and are not affected by the initial disposition. In effect, the taking of the appeal vacates the district court or Municipal Court judgment, leaving the defendant in the position of defendants in other States which require the prosecution to present its proof before a jury.

A New York DWI Lawyer said in January 1974, appellant was charged with knowing unauthorized use of a motor vehicle, an offense under Mass.Gen.Laws, c. 90 § 24(2)(a). The offense is subject to the two-tier system described above. Prior to trial in the Municipal Court, appellant moved for a jury trial. The motion was denied and the trial before the court resulted in a judgment of guilty. A one-year prison sentence was imposed. Appellant thereupon lodged an appeal in the Superior Court for SuffolkCounty.

Without awaiting proceedings in Superior Court, appellant appealed to the Supreme Judicial Court, seeking to establish that the Sixth and Fourteenth Amendments require that a jury be available in his first trial, whether it be in the Municipal Court or the Superior Court. He also raised speedy trial and double jeopardy contentions as bars to his retrial before a jury.

According to the court, it is clear that appellant can raise his constitutional issues in Superior Court by a motion to dismiss, and can obtain state appellate review of an adverse decision through appeal to the state high court. A New York DWI Lawyer said that the issue might be mooted by his acquittal in Superior Court is, of course, without consequence, since an important purpose of the requirement that the appellant review only final judgments of highest available state courts is to prevent its interference with state proceedings when the underlying dispute may be otherwise resolved.

The Court reiterated that the proceeding in the county court was a distinct suit. It disposed of the charge. The possibility that the appellant might obtain release by a subsequent and distinct proceeding, and one not in the nature of a review of the pending charge, in the same or a different court of the State does not affect the finality of the existing judgment or the fact that this judgment was obtained in the highest state court available to the appellant.

Here the Municipal Court proceeding did not finally dispose of the charge, and the proceeding in Superior Court is not a distinct suit or proceeding. It is instead based on precisely the same complaint as was the Municipal Court trial. In Largent case relied upon by the appellant, the available review on habeas corpus was not based on the record in county court for the reason that habeas review was sharply limited in scope. Similarly, in Bandini Co., cited in Largent, the 'distinct suit' was a proceeding for a writ of prohibition in which the only litigable issue was lower court jurisdiction.

Here, on the contrary, the review is not circumscribed so as to be narrower than normal appellate-type review on the record made in an inferior court, but is instead so broad as to permit de novo relitigation of all aspects of the offense charged, whether they be factual or legal. It is because of the breadth of appellate review, not its narrowness, as in Largent, that the record is not the basis of review in Superior Court. A Nassau County DWI Lawyer said greater identity of proceedings in two different courts would be difficult to imagine, and it would be strange indeed to class the Superior Court trial as a form of 'collateral' review of the Municipal Court judgment in the same sense as habeas corpus is traditionally thought of as a 'collateral attack' on a judgment of conviction.

The appeal is dismissed for want of jurisdiction.

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August 17, 2012

Defendant Moves to Supress Physical Evidence

On January 20, 1984, two police officers were on patrol in a marked police car, when they observed a white, 2-door Pontiac stopped or standing adjacent to a fire hydrant, at the intersection in the Bronx. he police officer who had been operating the patrol car stopped and requested the woman to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. A New York DWI Lawyer said the officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with the patrol car driver proceeding to the passenger side and his fellow officer to the driver's door.

One of the officers asked the woman to produce her operator's license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by the car owner or by the woman. In any event, after the woman was unable to state the name of the owner in response to the officer's inquiry, the police officer, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between the car owner and the woman. He inquired as to the contents of the bag, whereupon the woman picked up the bag, handed it out the window and stated that it's only boxes of envelopes.

According to the police officer, she became confused at that point, and didn't understand him. She complied with the command and handed the bag out the window. The other officer, who was positioned on the sidewalk behind the passenger door, only heard highlights of what had transpired between his fellow officer and the woman.

The officer took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis, the police officer did not testify that he believed the bag to contain a hidden weapon or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two tan stationery-type boxes. When he opened the first, he found hundreds of glassine envelopes and yelled to his fellow officer to watch out because he got something. Although the officer did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them. Actually, New York DWI Lawyer said the envelopes had no powder and were empty. In any event, according to the officer, he heard his fellow officer tell him to look out because the two are going. According to the police officer, it meant that the occupants of the car were to be arrested for drug possession.

After examining the bag's contents, the officer directed the woman to exit the car while he proceeded to search the car owner. As far as the officer was concerned, at that moment, both had been arrested and he was going to make sure that they did not have any weapons. He directed the car owner to place his hands on the dashboard and patted him down upon noticing that the car owner had only one hand. In the car owner's left jacket pocket he found what appeared to be a tin foil, which he felt through the material. It was soft, about an inch and a quarter wide and a half inch thick. Examination of the foil disclosed that it contained two other tin foils, containing a white powder, later discovered to be cocaine. The two occupants were handcuffed and taken to the precinct for a further check to ascertain whether the vehicle had been stolen. During the ride to the stationhouse, the car owner told the officer that if anything was wrong, he would take the heat for the car. A subsequent search of the woman at the precinct revealed her to be in marijuana possession but the record is unclear as to whether any formal charges were filed against her or whether she was prosecuted for crack possession. However, she was issued summonses for being an unlicensed operator (Vehicle and Traffic Law) and for parking next to a fire hydrant (Traffic Regulations of the City of New York).

The car owner, charged with marijuana possession, moved to suppress the physical evidence seized at the time of his arrest. Following a hearing, a Nassau County DWI Lawyer said the suppression court granted the motion, concluding that the seizure of the paper bag, on the front seat of the car, amounted to a warrantless, non-consensual search, in violation of the car owner's Fourth Amendment rights. In so finding, the court cited the conflict in the proof as to whether the officers had requested or demanded that the bag be handed over to them and held that the City of New York had not satisfied their burden of showing that the search was voluntarily consented to. Observing that the occupants were young and without experience in dealing with the police, it was concluded that they may have felt that they were not at liberty to challenge the authority of the officers, who had approached the vehicle on both sides, shining flashlights into the car.

The court also found that no probable cause existed to search the paper bag. It held that, although the inability of the female occupant to produce a driver's license and her unfamiliarity with the name of the owner of the vehicle may have permitted further inquiry, the officers did not have the right to seize and search the occupants at that time.

The officers were justified in approaching to request information since the vehicle was stopped or standing at a fire hydrant, concededly a traffic infraction. The responses furnished by the woman, that she did not have a license and did not know who the owner was, clearly served to heighten the suspicions of the officer. While the circumstances justified the initial stop and the inquiry, there was nothing to render permissible any greater level of intrusion. There were no furtive movements indicating that either occupant was secreting anything. The officers noticed no bulges in their clothing nor was there anything to suggest that there were weapons inside the car. To the extent that the other officer was at all apprehensive, this was alleviated when he took possession of the bag. As noted, the suppression court did not credit the officer's tailored testimony that he feared for his safety. In any event, he acted prematurely and without justification in examining the contents of the bag without conducting any further inquiry of the occupants.

While the facts disclosed in the record support the existence of a right to inquire, there was no probable cause to search the bag. Mere hunch or suspicion on the part of the officer is insufficient for that purpose. While it is argued that the search may be sustained on the basis of the fact that the encounter took place in a high crime, drug-infested neighborhood, a similar claim could be advanced as to countless other communities in our City where there are diverse criminal elements and activities. The existence of crime on our streets, however, does not alone furnish a basis to disregard fundamental constitutional rights and liberties.

However, even if the officer was justified in examining the contents of the bag, it is conceded that it contained empty glassine envelopes, the possession of which is susceptible to a variety of innocent interpretations and is not necessarily indicative of criminal activity. The officer admitted on cross-examination that such envelopes could be used for several lawful purposes, namely, stamp and coin collecting. Where, as here, behavior is equivocal and susceptible to an innocent explanation, it may not furnish probable cause for a warrantless search.

Accordingly, the order which granted the car owner's motion to suppress should be affirmed.
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August 12, 2012

Defendant's Probation is Revoked

The People of the State of New York are the respondents of this case. Steve Hobson is the appellant. The case is being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The defendant is appealing an amended judgment from the County Court of Suffolk County that revoked a sentence of probation that had been previously imposed by the same court.

Case Background

The defendant pleaded guilty to a charge of burglary in the third degree on the 12th of March, 2003. He was sentenced by the County Court to a term of six months in the Suffolk County Correctional Facility. A New York DWI Lawyer said this was to be followed by five years of probation. There were terms set for his probation that included that he report as directed to his probation officer, submit to drug testing, and make reparations in the amount of $1000 plus a 5% surcharge to be paid to the Probation Department of Suffolk County.

On the 29th of March, the County Court held a hearing regarding the allegations that the defendant had violated certain conditions of his probation. At the end of the hearing the County A New York DWI Lawyer said the court found that the defendant was in violation of his probation as he had failed to report to his probation officer on 10 different occasions, did not complete a drug treatment program, and did not pay the required restitution. It was also found that he was using controlled substances.

For the violations of his probation, the County Court revoked his probation sentence and imposed a sentence of imprisonment for the previous conviction of the defendant for burglary in the third degree.

Court Discussion and Decision

The defendant argues that the imposed sentence by the court is excessive and is appealing the decision of the court to revoke his probation.

A hearing was held in regard to the matter of the defendant violating his probation. When the defendant was sentenced for the crime of burglary in the third degree he agreed to certain terms in regard to his probation. These included reporting to his parole officer. It was found that the failed to do this on at least ten occasions. The defendant was instructed to enroll in a drug treatment program, which he also failed to do. He also agreed to random drug tests, which he also failed.

The record establishes that the defendant violated his probation on numerous occasions, has a long criminal history, a long family history. The County Court made the correct decision when they revoked his probation. Furthermore, a Nassau County DWI Lawyer said the new sentence for the crime of burglary in the third degree is within the statutory parameters of the Penal Law in regard to the crime that was committed.

The court is denying the appeal that is made by the defendant in this case. The ruling from the County Court of Suffolk County to revoke the probation sentence is confirmed and the current sentence stands.

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August 8, 2012

Defendant Challenges Indictment

This is a case where the court affirmed that custody of the appellant to a representative of the commonwealth of Massachusetts, pursuant to a warrant issued by the Governor of New Jersey under section 5278, is valid and binding.

Appellant committed a robbery in Massachusetts on or about August 18, 1916, and having, by his own admission, been personally present there and in communication with the alleged co-conspirator at or about that time, and being afterwards found in the state of New Jersey. A New York DWI Lawyer said a hearing for habeas corpus was made to demand for appellant’s apprehension and extradition to Massachusetts.

A copy of the indictment states:

'Commonwealth of Massachusetts, Suffolk, ss:
'At the Superior Court Begun and Holden at the City of Boston, Within and for the County of Suffolk, for the Transaction of Criminal Business, on the First Monday of February, in the Year of our Lord One Thousand Nine Hundred and Nineteen.

'The jurors for the commonwealth of Massachusetts on their oath present that appellants, on the eighteenth day of August in the year of our Lord one thousand nine hundred and sixteen, conspired together to steal the property, moneys, goods and chattels of the Market Trust Company, a banking corporation legally established and existing.'

It is objected that the indictment does not charge appellant with the commission of a crime in Massachusetts; but when it is read in the light of the laws of that commonwealth the difficulty disappears. Revised Laws of Massachusetts, c. 218, § 20, reads thus:

'The time and place of the commission of the crime need not be alleged unless it is an essential element of the crime. A New York DWI Lawyer said the allegation of time in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed before the finding of the indictment, after it became a crime, and within the period of limitations. The name of the county and court in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed within the territorial jurisdiction of the court. All allegations of the indictment shall, unless otherwise stated, be considered to refer to the same time and place.'

The Court stated that were there is any doubt of the sufficiency of the indictment, as a pleading, it would not be open to inquiry on habeas corpus.

It was reiterated by the court that the suggestion that there is neither allegation nor proof of an overt act done by appellant in Massachusetts pursuant to the alleged conspiracy is without weight. A Nassau County DWI Lawyer said by the law of Massachusetts, as by the common law, a conspiracy to commit a crime is itself a criminal offense, although no overt act be done in pursuance of it; such acts, however important as evidence of conspiracy or as matters of aggravation, not being of the essence of the offense, since there is no statute making criminality dependent upon the commission of an overt act.

Appellant being charged by authentic indictment with a criminal offense and having, by his own admission, been personally present there and in communication with the alleged co-conspirator at or about that time, and being afterwards found in the state of New Jersey, there is adequate ground for his return as a fugitive from justice under section 5278, Rev. Stat. U. S., enacted to give effect to article 4, § 2, of the Constitution. Whether in fact he was a fugitive from justice was for the determination of the Governor of New Jersey. The warrant of arrest issued in compliance with the demand of the Governor of Massachusetts shows that he found appellant to be a fugitive; and this conclusion must stand unless clearly overthrown, which appellant has not succeeded in doing. To be regarded as a fugitive from justice it is not necessary that one shall have left the state in which the crime is alleged to have been committed for the very purpose of avoiding prosecution, but simply that, having committed there an act which by the law of the state constitutes a crime, he afterwards has departed from its jurisdiction and when sought to be prosecuted is found within the territory of another state.

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August 8, 2012

Defendant Claims Double Jeopardy

This involves an application for stay pending appeal to the United States Court of Appeals for the First Circuit from an order of the United States District Court for the District of Massachusetts denying applicant’s request for a temporary restraining order. The Court of Appeals likewise denied the petition.

A New York DWI Lawyer said on July 2, 1979, the applicant, allegedly led local police on a high-speed automobile chase through Norfolk and Suffolk Counties. He was finally arrested in Suffolk County and charged with various offenses by the District Attorneys in both counties.

In Norfolk County (Quincy District Court), he was charged with driving so as to endanger, failure to stop for a police officer, failure to slow down for an intersection, and driving at an unreasonable speed. In Suffolk County (West Roxbury District Court), he was also charged with driving so as to endanger and failure to stop for a police officer, and in addition was charged with assault and battery with a motor vehicle.

With the complaints pending in the respective county District Courts, applicant moved in Quincy District Court to consolidate the cases into a single proceeding there pursuant to Rule 37 of the Massachusetts Rules of Criminal Procedure. However, a New York DWI Lawyer said since the Rule requires the written approval of both prosecuting attorneys to effectuate transfer and consolidation, his attempt failed when one of the District Attorneys apparently declined to approve the consolidation. Applicant subsequently moved for consolidation in at least one of the Superior Courts of Norfolk and Suffolk Counties, where his indictment was handed down, but the motion was similarly denied.

Finally, applicant brought his claim before a single justice of the Massachusetts Supreme Judicial Court, contending, inter alia, that failure to consolidate would put him twice in jeopardy for the same offenses, in violation of the Constitution. The justice dismissed it in a four-page memorandum and order for judgment rejecting applicant's argument that the charges in the two counties were for a single offense. He also noted that, even if he had the power to transfer and consolidate the two trials, he would refuse to do so because, in his view, this would be an unwarranted intrusion and interference with the lower courts and prosecutors.

Subsequently, applicant brought an action pursuant to 42 U.S.C. § 1983 in Federal District Court to obtain a declaration that Massachusetts Rule of Criminal Procedure 37(b)(2), giving prosecuting attorneys a veto over transfer and consolidation, violates the Double Jeopardy and Due Process Clauses of the Constitution. He sought a temporary restraining order, a preliminary injunction, and a permanent injunction against the two county District Attorneys to enjoin their criminal prosecutions against him. The District Court entered an order denying a temporary restraining order on the basis that applicant's prayer for relief did not fall within one of the recognized exceptions to the rule announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The Court stated that applicant has not shown any sufficient irreparable harm for the court to consider whether there is a reasonable probability that four Justices would consider the above issue sufficiently meritorious to grant certiorari, should the merits of the case eventually come before the appellate court. A Nassau County DWI Lawyer said neither trial has begun and no jury has been empaneled. Until a jury is empaneled and sworn, or, in a bench trial, until the first witness is sworn, jeopardy does not attach.

Accordingly, the court said that the applicant's constitutional claim is premature. It reminded the applicant, however, that once jeopardy does attach in one of the trials, applicant should be able to make his claim before the second trial judge, at which time the courts can give due consideration to his claim.

We understand how difficult it is when you cannot assert your constitutional rights. That is why our New York Criminal Lawyers from Stephen Bilkis and Associates would stand by you to ensure that justice is properly served. It has offices conveniently situated within New York Metropolitan area, including Corona, New York to reach out to your legal concerns.

August 3, 2012

Defendant Contends Search of Vehicle and Arrest Unlawful

The Facts:
The seizure of evidence from the defendant was an offshoot of a joint investigation undertaken by the DEA and New York State law enforcement authorities. A New York DWI Lawyer said the purpose of the investigation was to identify the members of a drug dealing organization, its suppliers and customers, and to locate stash and distribution locations. The investigation began at least as early as 27 September 1990, when several eavesdropping warrants were issued permitting the authorities to gather information concerning narcotics trafficking being done by a large number of people including man-one and his brother, man-two.

Through the wiretaps, surveillance and a confidential informant, the agent in charge of the operation had established, by 17 January 1991, that the organization used an apartment at the Bronx to store and package heroin for sale; that another place at Walton Avenue was being used to store narcotics and narcotics packaging paraphernalia; and that another place in Wyatt Avenue was being used to discuss their narcotics business. Moreover, the agent was aware that the DEA's wiretaps showed a pattern of conversations that are coded, cryptic and carefully worded. A New York DWI Lawyer said according to the agent, the intercepted conversations contain repeated references to iron and board and for clothes, which he believed to be references to narcotics packaging paraphernalia. Narcotics, as the agent averred, were discussed in terms of food, bottles, cases of beer, and clothes.

Wiretapped telephone calls on 26 December 1990 indicated that man-one and man-two were each told by other members of the drug ring that a new source of supply was available. The next day, 27 December 1990, man-one called the defendant at the defendant's liquor store in Putnam County to arrange a meeting. Subsequent taped conversations and surveillance showed the defendant met with man-one and man-two and discussed with them packages, meetings, and deliveries. The defendant also said he needed to get something from man-one, which the agents interpreted to mean he needed payment for a delivery. Defendant was also seen arriving at a meeting in a grey and black Chevrolet truck.

On 29 January 1991, man-one called the defendant at the home of his girlfriend. The defendant told man-one that he had a bunch and they're fifteen. Then they agreed to speak on 31 January 1991 to set up a time to meet the next day, 1 February 1991. The agent believed that the defendant told man-one he had narcotics (a bunch) for him and man-one could get them at 15 if he did the whole bunch; that the defendant reminded man-one of the last deal, on 16 January 1991, and that the price of that deal was 16.

On 31 January 1991, at 11:25 p.m., man-one called the defendant at the girlfriend’s home. The defendant told man-one he had ten (10) things packed up and man-one could just take the ten (10). They agreed to meet at 11 o'clock the next morning at a site they had already discussed. The site was not specified in the conversation. Also, the defendant told man-one that he needs him to bring something.

On 1 February 1991, the DEA agents put the defendant under surveillance. They followed the defendant from his girlfriend’s home to a bank and then to his liquor store. At the store, they observed him putting a large brown cardboard box into his Blazer. Then they followed him as he drove from Putnam County into the Bronx. The agents stopped him on the Henry Hudson Parkway. There is nothing to show that the agents were in uniform or carried identification or that they showed any identification to the defendant. With machine guns and handguns drawn, the agents forcibly removed the defendant from his vehicle. He was handcuffed and told to lie face down on the ground. Meanwhile, DEA agents searched his truck. They found $70,000 in small denominations of cash and a small amount of marijuana in a brown leather shoulder bag. The shoulder bag also contained personal papers belonging to the defendant and his girlfriend. The papers, the cash, and the marijuana were seized. In the rear of the blazer, the agents found a cardboard box. They opened it and found approximately ten pounds of marijuana packaged in ten separate plastic bags. This was also seized. Finally, one of the agents removed the defendant's wallet from the truck and discovered that it contained a piece of paper with man-two’s telephone number and man-one’s beeper number. The agent made a note of this and then replaced the paper.

The defendant was put into a BMW while still in handcuffs. He was advised of his Miranda rights and told that he was stopped because he matched the description of a person who had just robbed a bank in Westchester County. The People have conceded that this story was a lie; the DEA stopped him because they believed he was carrying drugs in his vehicle.

After the defendant was interrogated, he was told he was not the bank robber, and he was released. He was allowed to get into his truck and leave.

The defendant is charged with criminal possession of more than sixteen ounces of marijuana or marijuana possession, a drug crime.

The defendant moved to suppress the evidence seized and asserts that there was no probable cause to stop the truck and search it and several other theories.

The Ruling:
First, the issue of probable cause to stop and search the truck and to seize the marijuana, currency and papers:

Here, man-one was overheard discussing the quality of narcotics with someone from a grocery store. Before the second meeting, defendant demanded that man-one to bring him something. Then man-one met with another member of his drug operation and picked up a plastic bag. When man-one drove to the location where he was to meet the defendant, he did not simply give him the plastic bag, instead, he directed the defendant to a remote location near the Henry Hudson Parkway.

It seems probable that if the defendant were only arranging to sell wine, such elaborate measures would not be necessary. The agent’s interpretation of the January 29 and 31 conversations between the defendant and man-one was entirely reasonable. These conversations, and the DEA's surveillance on 1 February 1991, when the defendant was seen loading a cardboard box into his truck, gave the agents probable cause to believe that the defendant intended to sell drugs to mna-one and that the drugs would be found in the Blazer. Because no warrant was needed, the presence of probable cause justified the stop of the truck and the search for narcotics. Because the agents did not know what drug was involved, what amount was being delivered or how it was packaged, they could not anticipate where in the truck the drugs were placed. Accordingly, their search of the entire truck and the containers in it was appropriate. Once the agents found narcotics of any kind, it was lawful for them to seize it.
However, with respect to the $70,000 found in the leather bag, the justification to search the truck for narcotics did not give the agents justification to seize everything found in the truck. If a proper warrantless search for specific items discloses other items that immediately appear to be incriminating, judged by the probable cause standard, those items may also be seized.
In the case at bar, there was no probable cause to connect the currency to the drug deal the agents suspected was about to take place or to any other criminal conduct. By their own interpretation of the information upon which they relied, the agents believed the defendant was going to deliver the drugs, not money. Defendant spoke of ten things and said to bring something, whatever he can bring. The explanation of these comments given by the agents was that the buyer needed to pay the defendant. Consequently, the defendant could have been expected to receive money at the delivery, but not to bring large amounts of currency with him. Furthermore, the information upon which the agents relied gave no indication of any other transaction involving the defendant so as to have explained the presence of the money in such a way as to give probable cause to believe the money was evidence of a drug crime. Currency is not contraband or a weapon and possession of money, even large amounts, is not evidence of crime without some connection of the money to criminal activity.

Second, the legality of defendant's arrest:
Here, defendant claims that his arrest was unlawful, and that the search of the truck was, as a consequence, unlawful. This claim is based on the conduct of the agents as they arrested the defendant, including the fabrication of the reason for the arrest.

As a rule, when a warrantless arrest is made, the defendant must be advised of the authority of the arresting officer and the reason for the arrest except when the defendant was arrested in the actual commission of the crime or pursued after an escape.

In the case at bar, the agents deliberately fabricated the notice of their purpose and reason for the defendant's arrest. Any implied notice that might be derived from the circumstances was thereby negated. Whatever the defendant knew about his own activity, that knowledge could not provide an explanation to the defendant of the basis for the detention after the agents told him he was a robbery suspect. Further, there was no effort by the People to bring the agents' conduct within the current exceptions to the notice requirement and they are not considered.

Thus, the defendant's arrest was unlawful under New York Law. The fruits of the unlawful arrest must be suppressed. The Court finds that conversations between defendant and others about the events of 1 February 1991 are the fruits of the unlawful arrest and the tapes and contents of those conversations cannot be used.

Third, the impact of the arrest on the stop, search and seizure of the truck:
Here, defendant claims that the illegality of the arrest makes the stop and search of the truck and the wallet, and the seizure of the drugs unlawful.

As a rule, a valid arrest for a drug crime or any other crime authorizes a warrantless search of a vehicle and of a closed container visible in the passenger compartment of the vehicle which the arrested person is driving when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made or there is reason to believe that a weapon may be discovered or access to means of escape thwarted.
Further, probable cause to arrest a person and probable cause to search a vehicle may be separately justified by the same information obtained before either the arrest or the search. In such circumstances, the search of the vehicle would not be dependent on the legality of the arrest. The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.

In the case at bar, the independent basis for the search of the truck came from the wiretaps of phones other than the defendant's, and the police surveillance of the defendant and his truck. When the police stopped the truck on the Henry Hudson Parkway, and searched it, as already held, they had probable cause to believe that narcotic drugs were in the truck. The illegality of defendant's detention had no effect on the legality of the stop and search of the truck.

Lastly, on the absence of a warrant:
Here, defendant claims that the stop and search of the truck and the seizure of the marijuana were unlawful because they were not conducted with a warrant.

The law is clear that a moving vehicle can be stopped and searched without a warrant as long as there is at least a reasonable suspicion to stop it and a probable cause to search it based on the belief that the vehicle contains contraband, a weapon, or evidence of a crime. No warrant is needed because vehicles are mobile and their users have a reduced expectation of privacy in them.

However, the wiretap evidence alone did not provide sufficient probable cause to obtain a warrant. Because the agents did not have control over the events, they did not know before their observations on the morning of February 1 where the drugs were located, how the drugs would be packaged, how the defendant would get to the location of the sale or where the sale would take place. Although the prior surveillance could provide some suspicion about these things, there was insufficient information for an anticipatory warrant, and it was only the surveillance on February 1 that supplied probable cause to believe that the narcotics were in a specific place, the truck.

Thus, no warrant could be obtained just before the truck began to move, a point in time too late to apply for a warrant.

Here, defendant also claims that a warrant should have been obtained for a search of the container.

Under the rules, the right to search the truck without a warrant includes any closed container found inside the truck that might contain the subject of the search.

In the case at bar, probable cause did not focus on any particular container in the car because the agents did not know what kind of drug was involved until the search was conducted.

Although they observed the defendant carrying a large brown box to the car, there was no probable cause to believe that whatever defendant was carrying would be placed only in the box or in the box at all because they did not know what substance was involved.

Thus, a search of the entire car and all containers without a warrant must be made.
In sum, the currency, the information from the papers, and the discussions of the 1 February 1991 events are suppressed; only the marijuana is admissible.

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August 2, 2012

Court Finds Warrant Inappropriate

In 2003, the Village of Westbury in New York created a question of law that is bound to have effects across the state. A New York DWI Lawyer said the situation was born of a problem with an illegal boarding house. The laws of the villages in the state of New York vary according to the different locations, but most of them have zoning restrictions that prevent multiple families from living in homes that are designated by code as being single family dwellings. Homes are given certificates of occupancy when they are built. These certificates of occupancy label the home as either multiple family or single family dwellings. More than one family is not permitted to live in a home that is designated as a single family dwelling.

In this case, a code enforcement officer obtained a search warrant for a house that was located in the Village of Westbury. He based his probable cause for obtaining the warrant on the fact that numerous cars belonging to numerous different families were parked at the location. There were separate entrances to what appeared to be a basement apartment. Three confidential informants came forward and informed him that the owners of the house were charging undocumented workers large sums of money to live in the home. The garbage collector testified that the garbage that was generated from the house was three or four times the average amount of trash that he collects at other houses in the area. The water and electric bills also indicated that more people than the norm were living in the house. With this huge amount of probable cause behind him, the code enforcement officer applied for a warrant. His warrant detailed that he was seeking evidence that more than one family was living in the home in violation of the housing code of the village. The warrant limited the evidence to be removed in that only pictures and videos of the residence would be permitted to be removed from the residence.

The warrant was executed in the early morning hours at about six in the morning. The warrant had specifically stated that because it was a code enforcement administrative warrant and not one of criminal origin, it would not be appropriate to execute the warrant before six in the morning or after nine o’clock at night. The warrant was executed right at the stroke of six. A New York DWI Lawyer that increased the possibility that the officers executing the warrant would encounter a violent incident. When dealing with a situation of forced entry into a person’s home, violence is always a possibility. That possibility of violent reception increases when a person is groggy from sleep and unable to process the situation as quickly as they would if they were not roused from sleep. In this situation, the officers did not encounter violence, but they did run the names and personal identification of the occupants in an attempt to locate individuals who had warrants out against them. They also photographed the occupants of the house, some of these people were only partially clothed because they had been taken from their beds.

The court decided that it was inappropriate for the warrant to have been served that early in the morning. They also determined that it was inappropriate for the officers involved in the search warrant execution to have photographed the occupants of the house. The scope of the warrant was for evidence that there was more than one family living in the single family dwelling. The argument that the people themselves proved that is not necessary. A Nassau County DWI Lawyer said the pictures of the individually locked bedrooms, additional bathrooms, kitchens and other plumbing were all sufficient to have proven the case. This case brought questions about the legality of administrative search warrants to the notice of the public.

At Stephen Bilkis & Associates with its housing lawyers there are convenient offices throughout New York State and Metropolitan area. Our immigration attorneys can provide you with advice to guide you through difficult situations. Hiring a criminal Lawyer can prevent you from losing precious time with your family.

July 31, 2012

Court Discusses 8th Amendment

The Facts:

Defendant is charged with two counts of criminal sale of a controlled substance in the third degree, in violation of § 220.39(1) of the Penal Law, committed on 18 October 1973, and two counts of criminal possession of a controlled substance in the third degree, in violation of § 220.16(1) of the Penal Law, committed on 23 October 1973. A New York DWI Lawyer said the narcotic drug involved in each instance was heroin; heroin sale and heroin possession.

Under the revised drug laws which became effective on 1 September 1973, each of the crimes charged is classified as an A--III felony, punishable by an indeterminate term of imprisonment, the minimum period of which, for a first offender, is from one to eight and one-third years, and the maximum of which is life imprisonment.

Defendant brought on an omnibus motion earlier in the action seeking varied relief; he demanded dismissal of the indictment on constitutional grounds. Defendant has assailed the validity of §§ 65.00(1)(b), 220.16(1) and 220.39(1) of the Penal Law and § 220.10(6)(a) of the Criminal Procedure Law, as those sections apply to him, upon the grounds that they do violence to his due process and equal protection rights and that they are inconsistent with the prohibition against cruel and unusual punishment under the Federal and New York Constitutions. In the briefs for defendant and on oral argument, the claims were broadened to include a facial attack on the sections.

The Ruling:
In addressing the task of passing upon the constitutionality of those areas of New York's drug laws which were enacted in 1973 and which are challenged here, it is logical that defendant's contention regarding the invalidity of §§ 220.16(1) and 220.39(1) of the Penal Law be examined first.

Here, a New York DWI Lawyer said the gist of defendant's cruel and unusual punishment claim is that the penalty which has been legislatively imposed and must be judicially imposed, if there is a conviction, is too harsh for the alleged crimes. He contends that when, in 1973, the Legislature, in an effort to come to grips with the threat which the drug problem admittedly poses to society, incorporated such nonviolent sale and possession offenses, involving, as at bar, narcotic drugs in any quantity, regardless of the amount or value thereof, within the Class A felony scheme, and ranked them, insofar as mandatory maximum life imprisonment is concerned, with the most serious crimes known under New York Law, i.e., murder, attempted murder of a police officer, first degree kidnapping, and arson in the first degree, it exceeded its constitutional limitations and imposed a punishment which is excessive and disproportionate to the seriousness of the offenses to which it applies.

It is well settled that the Eighth Amendment's guarantee against cruel and unusual punishments is made applicable against the States through the due process clause of the Fourteenth Amendment of the United State Constitution. Moreover, since adoption of the Federal Constitution, similar proscriptions have been written into virtually every State Constitution, our own in 1846.

A Nassau County DWI Lawyer said in a concurring opinion in the case of Furman v. Georgia, one Justice of the court spoke of the interrelated principles, which, when applied in combination, provide a means by which a court can determine whether a challenged punishment comports with the concept of human dignity which is the core of the Eighth Amendment. Formulating a cumulative test, he stated that if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.
The court is of the view that, when subjected to the aforsaid test, sections 220.16(1) and 220.39(1) of the Penal Law and the penalty provisions which go with them pass Eighth Amendment muster.
Firstly, the maximum sentence of life imprisonment which defendant will be confronted with, if convicted, is neither inherently severe nor excessive as to violate the Eighth Amendment. Defendant concedes this. Nor is an indeterminate sentence inconsistent with the cruel and unusual punishments clause of that amendment. Such a sentence affords an offender the opportunity to minimize his term of imprisonment by rehabilitating himself to the point that the parole board, in the exercise of discretion, permits him to serve a part of that term outside of the prison walls. In this regard, the fact that an offender sentenced under the penalty provisions attacked here must serve the minimum term imposed, before release on parole becomes a possibility, does not give rise to a valid Eighth Amendment claim.
Secondly, the indeterminate sentence of imprisonment prescribed by statute for the A--III felonies of which defendant stands accused may not be said to have been imposed arbitrarily by the Legislature within the meaning of the constitutional prohibition which comes into play here. For years, the evils of drug abuse and narcotics traffic have occasioned the grave concern of government. The 1973 revision of the drug laws mirrors many of society's current concerns and attitudes about the problems inherent in and created by drug abuse. Frustration with the seeming intractibility of the drug problem is reflected in the hard line approach taken by the Legislature to the classification of drug crimes and to tougher and more restrictive sentencing options upon conviction. The very drug crime classification and sentencing provisions which defendant so stridently objects to reflect no more than a legislative awareness that earlier and less stringent measures had failed to deter illicit drug traffic and the heinous crimes that it spawns. The mere fact that, in beefing up the penalties for violation of the narcotics laws, the Legislature allowed more lenient sentences for offenses deemed by some to represent a greater evil, does not convert the penalties under fire in this case into cruel and inhuman punishments. That for other offenses, which may be considered by most, if not all, of a more grievous character, fewer punishments have been inflicted, does not make this sentence cruel. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one. The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for a State's determination.
Thirdly, the indeterminate sentence with its lifetime maximum for the drug sale and drug possession or heroin possession offenses with which defendant is charged cannot be fairly said to be unacceptable to modern, law-abiding society. In these populistic days, it would be difficult to find a better barometer of public sentiment than the elected Legislature which enacted the protested provisions. The current attitude of the public in this respect is perhaps best expressed by the words spoken by a Justice of New York County in sentencing a convicted narcotics violator under the former law: “Nothing is more destructive to a community's well-being than widespread drug abuse. More young people in the city die from drug abuse than from any other single cause. Hard drugs are indeed a cancer to the community. Society has mounted a massive effort to blot out this destructive evil.”
And lastly, the penalties prescribed are not so grossly disproportionate to the crimes charged as to shock the sense of justice. The court is not dealing with nonviolent offenses here. Realistically, we deal with but one phase of a large scale, well entrenched criminal activity that springs from human greed and preys on man's weakness, one that turns buyers into sellers, makes addicts out of newborn infants and sets addicts to mugging, thievery, prostitution, robbery and murder to support an insatiable appetite. The punishment fits the crime.
Next, defendant also challenges the constitutionality of § 65.00(1)(b) of the Penal Law. Effectively, this area of the statute provides for the sentencing of an offender to lifetime probation upon conviction for the A--III felonies of drug possession or sale (Penal Law §§ 220.16 or 220.39). This provision is intended as a bargaining lever, and was carried over from the former Penal Law and calculated to get small fry drug dealers or addicts to cooperate in the apprehension and conviction of the bigger traffickers. Defendant's principal criticism of this section is that it transfers an undue amount of the power of punishment to the District Attorney. The court is of the opinion that this attack fails to raise a justiciable constitutional issue.
It is, in the long run, the prosecutor who must take the initiative in recommending the allowance of probation for an informant. But who in the criminal justice system is in a better position, in the first instance, to come forward with an opinion as to the usefulness and reliability of a potential informer? It’s certainly not the judiciary but the official charged with the duty to detect, prosecute and convict those who violate the law.
The claim here amounts to no more than a baseless onslaught against prosecutorial discretion. Of course, any discretionary power may be abused, and unlawful discrimination in the exercise of a prosecutor's power would violate the equal protection guarantee of the Constitution. However, defendant makes no such claim of discrimination. Notably, in a dictum in an opinion in the case of People v. Davis, the New York Court of Appeals seemed to see salutary possibilities in the exercise of the particular discretionary prosecutorial power which defendant abhors. Besides, under the terms of the section under scrutiny, the final decision as to the propriety of lifetime probation rests with the judicial arm.
Finally, defendant's final constitutional protest is leveled at an asserted disparity in plea bargaining rights accorded under certain provisions of the Procedure on Criminal Law. Initially, the attack is aimed at § 220.10(6)(a) of the CPL and the language of that section and subdivision which forecloses an indicted defendant of the right to plead guilty to any lesser offense than a Class A felony where the indictment charges one of the class A felonies defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony.
There is no question that, in enacting § 220.10 of the CPL and its companion sections, 220.20 and 220.60, the Legislature has recognized plea negotiation as an acceptable method of disposing of criminal charges. The passage of these sections represents a prior legislative determination of the propriety and efficacy of this practice. However, there is nothing in the Federal or New York Constitutions which prevents the Legislature from reasonably restricting the right of any class of defendants to plead to reduced criminal charges. Nor is there any constitutional bar to the Legislature's enactment of criminal laws which treat different classes of accused offenders in different ways insofar as the right to negotiate pleas to lesser crimes is concerned. The only condition which the Equal Protection clause of the Fourteenth Amendment exacts is that the distinction between classes must rest upon criteria fairly and substantially related to the object of the legislation. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
Here, the proscription against guilty pleas to offenses below the A felony grade, where the indictment charges an A-III drug crime, rationally promotes the legitimate desire of the Legislature to deter drug abuse and traffic. Thus, the differentiation of which defendant complains with regard to plea bargaining under § 220.10(6)(a) of the CPL does not offend the Equal Protection clause.
Section 180.50 does, of course, permits an inferior court judge, with the consent of the prosecutor, to reduce or convert a felony complaint to one charging a non-felony offense. Nonetheless, such section is not a plea bargaining statute. It is nothing more than a safety-valve, so to speak, designed to take care of the instance where the charge of any felony is unwarranted. Thus, defendant's complaint boils down to nothing more than a renewed attack upon prosecutorial discretion. Absent an assertion of unlawful discrimination or abuse in the exercise of the prosecutor's power, there is no justiciable constitutional issue in such a claim.
In sum, the second branch of defendant's omnibus motion is denied in its entirety.
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July 29, 2012

Court Grants Order to Show Cause

The case involves the petitioner, U.S. Bancorp Equipment Finance, Inc. The respondents in the matter are Abraham A. Rubashkin, Joseph Rubashkin, Rivka Rubashkin, Rosie Sandman, Gutol Leiter, Hilgar Limited, 452-53rd Street Reality Company, A.A. Rubashkin & Sons Inc. 410 East 17th Street, LLC, 404 Realty Associates, LLC, and John Doe’s numbered one through ten.

The case is being heard in the Supreme Court of the State of New York located in Kings County. Judge Arthur M. Schack is hearing the case.

Case Background

A New York DWI Lawyer said the respondent Rubashkin is the only shareholder in a corporation named Agriprocessors, Inc. The company owned a meat processing plant that is located in Postville, Iowa. The company has a long history, with recent chapters turning a bit dark.

Part of the Rubashkin Lubavitch Hasidic family moved from Brooklyn to Postville in 1987. The firm then became the largest processor of glatt kosher beef, which is the strictest kosher beef standard. The company produces both kosher and non kosher beef, lamb, veal, chicken and turkey products under brands including Iowa Best Beef, Rubashkin’s, and Aaron’s Best.

From April through December in 2004, Agriprocessors entered into several lease agreements with U.S. Bancorp for a variety of meat processing equipment. On the 20th of May, 2004, Rubashkin delivered a personal guaranty to U.S. Bancorp. The guaranty stated that Rubashkin would unconditionally and absolutely make all payments and performance obligations of Agriprocessors as specified by the lease.

On the 12th of May, 2008, the Postville facility of Agriprocessors was raided by agents from the Federal Immigration and Customs Enforcement office. The company was charged with violations of child labor law and violations in relation to hours worked and wages.

On the fourth of November, 2008, Agriprocessors filed a voluntary petition in the United States Bankruptcy Court for the Eastern District of New York for relief from the fines they have been charged by the state of Iowa for their violations.

As a result of this, Agriprocessors failed to make payments on their lease to U.S. Bancorp and defaulted on the terms of the lease. A New York DWI Lawyer said in the first of December U.S. Bancorp sent a written demand to the company for payment of the money that they owed. Rubashkin failed to make payment. U.S. Bancorp filed a complaint with the United States District Court for the Eastern District Court in the matter.

Current Matter

The petitioner, U.S. Bancorp has moved by order to show cause to hold in contempt the respondents in the matter for failure to comply with subpoenas that were issued to them. A Nassau County DWI Lawyer said they also move to obtain leave to receive Rubashkin’s assets and void as fraudulent the lease with the respondents.

Court Decision

After careful review of the facts of the case the court orders that the order to show cause by the petitioner is granted. The respondents will turn over their assets to the petitioner of the matter. The petitioner is granted the attorney’s fees as well as the turnover of all sums and property from the respondents.

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July 28, 2012

Court Discusses Forfeiture of Property Used to Commit a Crime

The Facts:

A special proceeding has been instituted to declare a forfeiture of respondent's 1987 Volkswagen which was seized during the course of his arrest on a drug possession charge.
The arresting officer claims that he observed respondent arriving in his vehicle at a known drug location, then he saw him exit the vehicle and enter an abandoned building where he purchased a white glassine envelope alleged to contain heroin. A New York DWI Lawyer said after returning to the vehicle and driving away, respondent was apprehended and placed under arrest and his vehicle seized.

Respondent confirms the arresting officer's version of the events and states that the location of the drug purchase was four blocks from his home; that respondent is enrolled in a drug rehabilitation program and is a traveling salesperson, using his car regularly to call on clients.
Respondent was charged with criminal possession of a controlled substance in the seventh degree but pleaded guilty to the reduced charge of disorderly conduct, a criminal law violation.

The Issues:

The prime issue is what nexus must exist between the property seized as a means of committing crime or employed in aid or furtherance of crime and the crime it allegedly aided in order to subject the property to forfeiture.

The Ruling:

The Code provides for forfeiture of any property that has been used as a means of committing crime or employed in aid or in furtherance of crime. In light of respondent's claim that he made the purchase four blocks from his home and that the car was merely the method of locomotion, the question before the court is how substantial a nexus need be shown between the acts constituting the alleged crime and the use of the vehicle.

A New York DWI Lawyer said in the absence of case law discussing the issue, instruction is sought from cases decided under statutes employing similar language or covering similar subject matter.

First, the Code makes it unlawful to move undocumented aliens within the United States by means of transportation or otherwise, in furtherance of such violation of law. In the case of United States v. Moreno, the defendant was transporting alien workers from one job site to another as part of the ordinary and required course of his employment as company foreman. Noting that the statute is silent as to the specific circumstances that must exist before an act of transporting an undocumented alien is in furtherance of such violation of law, the court held that there must be a direct or substantial relationship between that transportation and its furtherance of the alien's presence in the United States, and that the foreman's transportation of the aliens was too attenuated to come within the boundaries of the statute. A Nassau County DWI Lawyer said that while the court in Moreno referred to the rule of strict construction for penal statutes, as well as to a public policy basis for its interpretation, the basis for the decision was the need to ascribe meaning to the “in furtherance" language of the statute.

Second, Public Health Law provides for the seizure and forfeiture of vehicles, vessels or aircraft unlawfully used to conceal, convey or transport controlled substances. In addition, forfeiture is authorized if a vehicle is used to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase or sale of any controlled substance.
The pertinent differences between the PHL and the Code provisions are as follows: while forfeiture pursuant to the Code may be for use of property in connection with any crime (felony or misdemeanor, drug-related or otherwise), under the PHL it is authorized only if used in connection with acts or conduct which would constitute a drug-related felony; the Code provision applies to the unlawful use of property, while the PHL is restricted to seizure of any vehicle, vessel or aircraft; the Code contains no express provision authorizing forfeiture of vehicles used to transport the contraband, while the PHL is replete with such terms (transport, carry, convey, possess); with respect to property that is neither contraband nor proceeds of a crime, the Code authorizes forfeiture only if it has been used as a means of committing crime or employed in aid or furtherance of crime, while the PHL authorizes forfeiture of vehicles used to facilitate the illegal activity as well as for transportation of the contraband.
In the case of Henry v. Castagnaro, the court was faced with determining the meaning of facilitate under the above section of the PHL. Observing its similarity to the Federal Transportation Act in providing for forfeiture of any vehicle used or intended to be used to facilitate the transportation or sale of a controlled substance, the court applied the federal rule that to be forfeited, a vehicle must have some substantial connection to, or be instrumental in, the commission of the underlying criminal activity which the statute seeks to prevent.
In contrast, the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 subjects to forfeiture all conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of controlled substances. The use of the words "in any manner" in that statute, and the absence of the "substantial connection" language found in the legislative history of the complementary provision (forfeiture actions against money or other things of value negotiated in exchange for drugs, added in 1978), demonstrate a congressional intent to have the statute apply to a more extensive range of activity.
In the case at bar, respondent was not a seller; he was not using the vehicle for escape, lookout, or concealment; and, he did not drive to a prearranged location at some distance where the use of the vehicle made the crime any easier to commit. Here, the vehicle's connection to the underlying drug crime is too weak. Petitioner has failed to demonstrate a sufficient nexus between the alleged crime and the use of the vehicle. Thus, it is not entitled to retain the automobile, and respondent is entitled to its return.
In sum, the forfeiture is denied.
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July 27, 2012

Defendant Questions Charges of Alcotest

The People of the State of New York are the plaintiffs in the case. The defendant is Leonard DiBari. The case is being heard in Westchester County, Justice City of the Town of North Castle. Judge Elyse Lazansky is overseeing the case.

The defendant, Leonard DiBari, is charged with driving while ability impaired by alcohol. During the course of the non-jury trial and pretrial hearings the defense has objected the prosecution’s use of simulator solution certificates and certified calibration records.

Case Background

During the pretrial and nonjury trial the prosecution has presented documentation related to the “alcotest,” which is a breath instrument that is used to test the blood alcohol level. This particular test was used to test the defendant when he was arrested and charged with driving while ability is impaired by alcohol (DWAI).

The defense challenges these records being admitted to the court. The basis for the argument being made by the defense is that admitting these records without testimony from the analyst who created the records is in violation of the confrontation clause of the United States Constitution or the Crawford/Melendez-
Diaz rule.

The Court has reserved the decision about the records pending the completion of the People of the State of New York’s case. Both parties were given the opportunity to submit legal documentation to support their position.

Court Discussion and Decision

After reviewing the arguments that have been made by the defendant and the plaintiff, the court is granting permission for the calibration records to be submitted in the case. These records do not violate the Crawford/Melendez-Diaz rule.

It was found by Crawford that the United States Constitution guarantees that a criminal defendant has the right to be confronted with the witnesses that are against them. When this is practically applied it prevents out of court statement from being presented in a case that are testimonial, unless the defendant has been given the opportunity to cross examine the witness.

The records in question in this particular case have been admitted in similar cases that involve drunken driving (DWI) charges for years. When these records are properly authenticated through the New York State business records, they are considered to be evidence. The majority of New York courts find that these documents are non testimonial in nature, which makes them admissible without live testimony.

Both the plaintiffs and defendant have offered different cases to support their cause. However, after carefully reviewing the information the court is refusing to extend the Crawford and Melendez-Diaz argument. The business records that are being challenged in this case are similar to business records that have been admissible in a number of different cases that are very similar to this one. The test that is in question in these documents provides evidence in the case against the defendant. The documents are not considered to be testimonial in nature and there is no need for cross examination of the test.

For these reasons the court finds that the simulator solution and calibration certificates for breath test instruments can be submitted by the prosecution in the case against the defendant. The motion made by the defendant for dismissal of these documents is denied. All parties will appear before the court at a later date for further proceedings regarding this case.

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July 27, 2012

Court Discusses Search and Seizure in Traffic Stop

The plaintiff in the case is the People of the State of New York. The defendant in the case is Craig W. Dixon. The case is being heard in the District Court of Suffolk County, First District. Judge Howard M. Bergson is hearing the case.

The defendant, Craig W. Dixon has been charged with driving while intoxicated (DWI), refusing to submit to a field sobriety test, and failing to maintain a line. A Dunaway, Huntley, and refusal hearing has been held in the matter to determine the evidence found against the defendant that will be admissible in trial.

Case Facts

The only witness in the case was Officer Gerrits, who has worked as a police officer in the Suffolk County Police Department for 14 years. He was on duty on the 22nd of September, 2006, when he responded to a radio call at 5:50 a.m. The call was made anonymously from the Arkies Bakers. The caller stated that a possibly intoxicated male was driving a gray Ford with the license plate number AIJ-2301.

The officer went to the area where the call came from and when he arrived in the area, he saw a gray Ford SUV with the same license plate number that had been given. He watched the vehicle leave the parking lot and go north on Route 111.

Officer Gerrits followed the car as he believed it was the vehicle that the caller had phoned in. He followed the car for about two and a half miles and notices that it went over the double yellow line twice. When the vehicle crossed the lines a third time, Officer Gerrits put on his lights and pulled the vehicle over.

Officer Gerrits approached the vehicle and asked for the driver’s license and registration. The officer noticed a smell of alcohol as the defendant was retrieving the documents. He asked the driver if he had been drinking and the defendant stated that he had not. The officer noted that the defendant’s eyes were glassy and bloodshot. The officer asked the defendant to step out of the car. Officer Gerrits states that the defendant was unsteady on his feet and had to lean against the car for support. He asked the defendant to perform a field sobriety test, but the defendant stated that he didn’t want to.

Officer Gerrits determined that the defendant was intoxicated and placed him under arrest. He took him to the patrol car and asked the defendant for his social security number. The defendant replied that he needed a lawyer. The officer did not question the defendant any further and took him to the precinct.

The officer processed the defendant and read him the chemical test request. The defendant refused the chemical test and signed the document and writing the word refuse in the correct location.

Court Decision

A traffic stop allows a limited seizure of any person who is in the vehicle. This seizure must be justified. In this case, the officer had probable cause to believe that the defendant had been consuming alcohol. The evidence that has been obtained in the case against the defendant from the arrest is admissible in court. The evidence showing the defendant refusing to submit to the field sobriety test and the chemical test may be admitted as well.

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July 26, 2012

Court Decides if Evidence was Improperly Obtained

The Facts:

A customer service agent for an airline at Los Angeles International Airport became suspicious of two cartons delivered to the terminal. The cartons had been left for shipment to New York's Kennedy Airport, consigned to a certain individual, care of defendant. Acting under tariff regulations, the agent slit the larger of the two cartons and observed what, from his previous experience, he believed to be marijuana. A New York DWI Lawyer said the Los Angeles police were notified who, without a search warrant, inspected the contents and confirmed the agent’s discovery. One of the cartons was emptied of its contents, refilled with sand, and both cartons were sent on their way. At 11:30 P.M. that evening, one of the officers involved telephoned a detective of the New York City police who has been a member of its Narcotics Bureau for 12 years. According to the detective, the officer told him that the marijuana was on its way to Kennedy Airport, that they have already got some out and that the airline employee found it.

The following morning, the detective went to the Kennedy Airport with knowledge of the defendant's name, the air flight number, arrival time, and air bill number. At 7:00 A.M., the two described cartons arrived. They were marked with the names of the recipient, care of defendant. A New York DWI Lawyer said the detective went close to the shelved cartons and detected a strong odor of marijuana. He did not open the cartons but kept them under surveillance.

At about 11:00 P.M that evening, defendant appeared at the airline terminal and approached the detective who was attired with the airline uniform. Upon stating that he wished to claim certain packages, the detective directed him to the freight agent. Defendant then identified himself and signed the air bill while the detective accompanied him. From a distance, defendant apparently picked out the appropriate packages. The detective, while assisting the defendant, then carried one of the cartons, containing the sand, to the parking lot when he was intercepted by a companion of the defendant who insisted upon carrying the carton the rest of the way to an automobile. The detective surrendered the carton and waited for both men to reach their car. He then arrested both men, seized the two cartons, and made further searches with the assistance of two Federal agents. A search of defendant produced a paper with the shipping details and a check made out to defendant and indorsed by him to the sender of the shipment, the consignor. The search of the car disclosed small quantities of marijuana.

The possession of small quantities or the marijuana possession, the subject of the second count of the indictment for drug possession in the second degree, is no longer relevant since both defendants and his companion, were acquitted on that charge.

The defendant moved to suppress the seizure of the marijuana found in the vehicle used but was denied.

Defendant was convicted of the drug crime of possession of a dangerous drug in the first degree arising from his receipt of 46 pounds of packaged marijuana at the Kennedy International Airport. His co-defendant was acquitted of all charges.

The Issues:

The primordial issue is whether or not the marijuana seized following defendant's arrest should have been suppressed because some information leading to the arrest was improperly obtained by the California police officers in another prosecution. A Nassau County DWI Lawyer said another important issue is whether or not defendant's marijuana possession is sufficient to infer his knowledgeable possession.

The Ruling:

Here, when the detective placed the cartons under surveillance and subsequently arrested defendant, he undoubtedly relied on all the information the police officer gave him. Nonetheless, he would have similarly responded if only the customer service agent’s information had been transmitted. The detective, in either event, would have intercepted the cartons at the airport the following morning. An outward inspection of the marijuana carton with its telltale odor associated, by experience, with marijuana would have prompted surveillance and justified the ensuing arrest. No arrest warrant was necessary since the customer service agent’s information and the odor of marijuana gave the detective probable cause to believe that a crime was being committed in his presence. The arrest was based on probable cause and the police were entitled to seize the contraband known to them to be such, and continuously within their observation.
As a rule, independent untainted evidence establishing probable cause for police conduct will sustain the arrest or seizure even if there has been antecedent illegal conduct by the police. Indeed, when, as in this case, the untainted information would have inevitably resulted in the New York surveillance, and then the arrest and seizure, the rule with its exception is more than satisfied.
New York police should not be handicapped by police illegality in another jurisdiction which is not necessarily responsible for the present prosecution, that is, is not an essential ingredient to the New York prosecution. Moreover, in the absence of collusion between the police of the two jurisdictions, the exclusion of the otherwise properly obtained New York evidence serves no legitimate purpose.
Moreover, res judicata, as distinguished from other procedural bars to the relitigation of crimes or particular issues, is not applicable to criminal prosecutions in quite the same way as that body of doctrine is applicable to civil cases. On any view, neither direct nor collateral estoppel is established by the records of the case. Identity of the prosecuting party is an indispensable precondition to the invocation of either kind of estoppel. There is equally absent an identity of issues, also required for estoppel. Indeed, the suppression court in New York assumed the illegality of the California search, but the question in this case turned on the effect which that illegality would have, if any, on the subsequent New York police conduct. That, of course, was never before the California court.
Furthermore, the drug crime of possession of a dangerous drug requires a physical or constructive possession with actual knowledge of the nature of the possessed substance. Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred. Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises. This is an elemental inference based on common experience and all but universal probabilities. Thus, it is an ancient rule of inference or rebuttable presumption of fact that the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including, when material, knowledgeable possession. In the case of contraband, its possession is a crime per se, and hence the inference of guilt, that is, knowledgeable possession, is as strong as is the case, for instance, with stolen goods.
In the case at bar, the probabilities justifying the inference of knowledge are unusually impressive. The marijuana was in defendant's hands when he accepted delivery. This is sufficient to permit the inference of knowledge subject to rebuttal by countervailing proof but there was much more in the case. The consignment was made in care of defendant. It is significant that defendant had on his person a check indorsed over as payable to the consignor. Defendant accepted delivery on the consignment which together with the check established that the transaction was one of which he had full awareness. Defendant claimed the packages as his before he was near enough to read or identify their markings. It could not be one of those rare instances where one may receive and accept a package unanticipated from an unknown sender.
For a residual issue, defendant requested a charge of the misdemeanor of criminal drug possession in the fourth degree, a crime which does not require any particular minimum quantity of the drug. Interestingly, defendant had previously and successfully moved to have the fourth count of the indictment, criminal possession in the fourth degree, dismissed. Possession in the first degree depended on the quantity of the drug involved. The weight of the contraband in the carton was not contradicted. Also, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. There was no basis in any of the evidence could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity.
Henceforth, the order of conviction is affirmed. The New York surveillance and arrest did not depend necessarily in whole or in part on the purportedly illegal California police search. The motion to suppress was properly denied. There was independent and untainted cause, an airline employee's information, for the California police to advise the New York police whose independent confirmatory observations resulted in defendant's arrest. The proof of defendant's physical possession, by consignment, delivery and acceptance, was warrant for the jury to infer his knowledge.
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July 26, 2012

Defendant Charged with DWI in Boating Incident

Suffolk DWI 5

The plaintiffs in this case are the People of the State of New York. The defendant of the case is George P. Briggs. The case is being heard in the Nassau County District Court, First District, and Criminal Court.

The defendant was tried without a jury for an accusation of boating while intoxicated (DWI), which is in violation of Navigation Law section 49. There were numerous questions that were brought up during this case, which makes a written response necessary.

Case Facts

The information that has been provided to the court alleges that the defendant was boating while intoxicated on the 24th of September, 1989 at around 6:30 am. The incident took place in the waters located off of Centre Island located in the Town of Oyster Bay, which is in Nassau County.

On the day before the alleged incident took place at around 11 a.m., Captain Robert Arata was out in his commercial towing vessel in Northport Bay. He saw a Mainship that was 40 feet in length. The engines of the boat were running and the skipper of the boat made no request for help. Captain Arata went on his way.

Not long after, Chief Brooks from the Ashroken Police Departmetn responded to a call about a large ship that was aground on the Ashroken Beach. When Chief Brooks arrived at the location he saw a boat named Collen II beached. He went to the vessel and boarded it with permission. He saw the defendant with a drink in his hand and a counter nearby that held four or five liquor bottles. At least one of the bottles was empty. The defendant informed the chief that he was drinking vodka.

The Chief recommended that the defendant put down his anchor so the boat would not go further on shore. He radioed the marina to help. Within ten to fifteen minutes of boarding the ship Chief Brooks left. At around 3 p.m. he received another call for a tow, it was for the Colleen II. When he arrived the boat was aground and had floated over the bow anchor. The defendant was trying to untie the stern anchor. When the stern anchor was untied the defendant could not hold on to it and it was lost.

Captain Arata arrived to help and once he and his crew had finished he boarded the ship for payment. He states that while he was aboard the ship he saw the defendant fill a glass with vodka and orange juice and proceed to drink from it. The defendant then left the area with his engines running.

The next call from the Colleen II was just before 4 a.m. There was a flare coming from the ship. Officer Groblewski went aboard the ship and told the defendant that his anchor was not deployed. The officer states that there was a strong smell of alcohol on the ship. The defendant continued to randomly fire flares from the deck of the ship.

Case Discussion

When reviewing the facts of the case there is no proof that the defendant actually drove the boat while under the influence of alcohol. It is possible that his boat drifted from the first point where it was found to the second point located in Connecticut. For this reason, the court finds the defendant not guilty of the charges.

Stephen Bilkis & Associates offers free consultations to those in need of legal advice, whether you have been charged with a DWI, DWAI, or drug possession. Our offices are located throughout the city of New York for your convenience. You may call any of our offices to set up an appointment at any time.

July 26, 2012

Police Officer Receives Criminal Charges

This is a case of appeal being heard in the Second Department, Appellate Division of the Supreme Court of the state of New York. The appellant in the matter is Charles O. Sharkey. The respondents in the matter are the Police Department of the town of South Hampton, et al.

The petitioner is appealing a decision that was made by the Supreme Court of Suffolk County on the 18th of December, 1989. The Suffolk County Supreme Court dismissed the case, which was a review of a determination that was made by the Police Department in the town of South Hampton. The Police Department had terminated the petitioner’s employment after he pleads guilty to the misdemeanor charge of driving while intoxicated.

Case Background and Discussion

Charles O. Sharkey, the petitioner, was a police officer for the Town of South Hampton. While he was not on duty Sharkey was involved in an automobile accident. The accident took place on the 16th of August, 1987. The record for the case does not reveal anything about the accident except that one person died and another was seriously injured.

Sharkey was indicted for the accident and charged with second degree vehicular assault, second degree vehicular manslaughter, criminally negligent homicide, and two counts of driving while intoxicated (DWI). The defendant pled guilty to one misdemeanor count of driving while intoxicated and this satisfied the indictment.

The Patrolmen’s Benevolent Association is the union that represented the petitioner in the case. The Town of South Hampton demanded arbitration to determine whether or not the petitioner could be discharged from his position as a police officer. Based upon the plea of guilty the town terminated his employment based on the Public Officer’s Law section 30. The petitioner challenged this decision in an instant CPLR article 78 proceeding. The town’s determination was upheld.

In case law it is typically provided that if the crime in question relates to the duties of the office held, the crime violates the oath of office. The reason for this is that it gives the public the confidence to trust the moral integrity of police officers.

However, in this particular case the officer was off duty at the time of the accident. The court declines to hold that the crime committed establishes conduct that is intimately related to his official duties as a police officer. The records for the instant case fail to disclose the nature of the officer’s duties or explain any of the circumstances that surrounded the accident. It was found that the accident could not have been avoided by the petitioner and there was not enough evidence to take away his license.

Court Decision

After reviewing the case the court orders that the judgment to dismiss the case is reversed with costs. The petition is granted and the respondents will reinstate the petitioner’s employment. The matter will be sent back to the Supreme Court of Suffolk County for calculation of the back pay and interest that the petitioner is owed and for an entry of the appropriate judgment in the matter.

One of the judges hearing the case dissents from this determination and feels that the officer did violate the officer’s oath to office.

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July 25, 2012

Defendant Charged with Second DWI

This case deals with the Plaintiff/Claiming Authority, Christine Malafi, who is the County Attorney for Suffolk County. The defendants in the matter are Edward J. Radwinsky and the Ford Motor Credit Company. The case is being heard in the Supreme Court of the State of New York that is located in Suffolk County.

Case Background

On the 19th of December, 2004, the defendant was arrested for operating the subject Ford while he was intoxicated (DWI). He was driving in the eastbound lane of the service road on the Long Island Expressway in the city of Hauppauge, New York. The defendant was given a breathalyzer test after being taken into custody. The breathalyzer showed that his blood alcohol level was 0.19%, which is above the legal limit. This resulted in the defendant being arrested for operating a motor vehicle while intoxicated.

Before this particular arrest the defendant had been charged with another driving under the influence of alcohol arrest on the 16th of May, 1988. This previous arrest resulted in the vehicle of the defendant being seized at the time of the December 2004 incident. This is in accordance with New York state laws. A hearing was held on the fourth of January, 2005 and the plaintiff was directed to keep the vehicle until a forfeiture proceeding was held.

The plaintiff has issued an instant application in regard to the forfeit of the vehicle. The plaintiff argues that there are no triable issues of fact in this case. There was probable cause for the defendant’s arrest in the December incident. Retaining the vehicle was necessary in regard to law and for that reason the plaintiff is entitled to the judgment in their favor. The plaintiff also argues that the defendant has now been charged with two DWI offenses and for this reason the vehicle should be removed from the plaintiff as a way to protect innocent motorists on the highway.

The defendant has filed a cross motion for a summary judgment that would return his vehicle to him. The defendant states that using the prior conviction from 1988 is in violation of his right to due process. The defendant also argues that the motion for summary judgment made by the plaintiff is premature as discovery in the case is not yet completed.

Case Discussion and Decision

The court has reviewed the facts of the case. The defendant is on his second offense for driving under the influence of alcohol. The first offense occurred in 1988 and he was charged. The second offense called for his vehicle to be taken.

After careful review the court is ruling in favor of the plaintiff. The vehicle, a 1997 Ford, is given to the plaintiff and claiming authority, Christine Malafi, County Attorney for Suffolk County. The vehicle will be turned over to the plaintiff and disposed of in accordance with provisions in Suffolk County Code, chapter 270, article IV.

The cross motion that has been made by the defendant is denied. The vehicle will not be returned to the defendant and the summary judgment in his favor is denied.

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July 24, 2012

Defendant Contends Miranda Rights Were Violated

This case is being heard in the First District Court of Suffolk County. The plaintiff in the case is the People of the State of New York. The defendant of the case is Jose R. Rivas. Judge M. Filiberto is overseeing the proceeding.

There has been a combined Probable Cause, Huntley, and Refusal Hearing in this matter. The Court has found the following facts in the case.

Case Facts

A New York DWI Lawyer said on the 23rd of February, 2009 at around 2 a.m. Police officers Decio and Squiccirini were on patrol in the area of Commercial Boulevard located in Brentwood, New York. Officer Decio was behind an automobile that went through a stop sign without stopping or attempting to slow down in any manner. He pulled the car over.

Officer Decio approached the vehicle and asked the driver to turn the car off. He asked the defendant if he spoke English and was informed that he did. Officer Decio asked the driver if he knew that he had just went through a stop sign and the driver stated that the had not seen it. The driver of the car was asked for his license and was identified to be the defendant Jose Rivas.

When speaking to Rivas, Officer Decio smelled alcohol, but could not determine whether it was from the vehicle or the defendant’s breath. A New York DWI Lawyer said he asked Rivas to step out of the car and observed that he had bloodshot eyes, slurred speech, and that his breath smelled of alcohol. Officer Decio had Rivas perform a standard field sobriety test. He explained twice how to perform the HGN test, but Rivas did not comply. He then had him perform the one legged stand test and Rivas fell forward during it. Rivas also only completed three of the required heel toe steps. The officer then conducted a breathalyzer test and the BAC of Rivas was 0.16%.

The officer placed the man under arrest and took him to the precinct. At the precinct the officer requested to take a chemical test. The defendant did not ask for the warnings to be repeated in Spanish or for the officer to read the request more slowly. He refused the chemical test in writing. Officer Decio had a Spanish speaking officer read the rights to the defendant again as a courtesy.

Court Conclusion

Officer Decio had reasonable suspicion to pull the defendant over for driving through the stop sign as a violation of the law. When he asked the defendant to turn of the engine in English the defendant complied and did not indicate in any way that he did not understand English.

At the precinct the defendant was read his rights and asked if he understood them. He was told in both English and Spanish the repercussions for not complying with the chemical test. A Nassau County DWI Lawyer said the defendant seemed to fully understand English throughout the entire ordeal.

The court finds no evidence to support that the Miranda rights of the defendant were violated. A new court date will be set for the trial of the defendant.

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July 23, 2012

Defendant Ordered to Turn Over Assets

The case involves the petitioner, U.S. Bancorp Equipment Finance, Inc. The respondents in the matter are Abraham A. Rubashkin, Joseph Rubashkin, Rivka Rubashkin, Rosie Sandman, Gutol Leiter, Hilgar Limited, 452-53rd Street Reality Company, A.A. Rubashkin & Sons Inc. 410 East 17th Street, LLC, 404 Realty Associates, LLC, and John Doe’s numbered one through ten.

The case is being heard in the Supreme Court of the State of New York located in Kings County. Judge Arthur M. Schack is hearing the case.

Case Background

The respondent Rubashkin is the only shareholder in a corporation named Agriprocessors, Inc. The company owned a meat processing plant that is located in Postville, Iowa. The company has a long history, with recent chapters turning a bit dark.

Part of the Rubashkin Lubavitch Hasidic family moved from Brooklyn to Postville in 1987. The firm then became the largest processor of glatt kosher beef, which is the strictest kosher beef standard. A New York DWI Lawyer said the company produces both kosher and non kosher beef, lamb, veal, chicken and turkey products under brands including Iowa Best Beef, Rubashkin’s, and Aaron’s Best.

From April through December in 2004, Agriprocessors entered into several lease agreements with U.S. Bancorp for a variety of meat processing equipment. On the 20th of May, 2004, Rubashkin delivered a personal guaranty to U.S. Bancorp. The guaranty stated that Rubashkin would unconditionally and absolutely make all payments and performance obligations of Agriprocessors as specified by the lease.

On the 12th of May, 2008, the Postville facility of Agriprocessors was raided by agents from the Federal Immigration and Customs Enforcement office. The company was charged with violations of child labor law and violations in relation to hours worked and wages.

On the fourth of November, 2008, Agriprocessors filed a voluntary petition in the United States Bankruptcy Court for the Eastern District of New York for relief from the fines they have been charged by the state of Iowa for their violations.

As a result of this, Agriprocessors failed to make payments on their lease to U.S. Bancorp and defaulted on the terms of the lease. A New York DWI Lawyer said on the first of December U.S. Bancorp sent a written demand to the company for payment of the money that they owed. Rubashkin failed to make payment. U.S. Bancorp filed a complaint with the United States District Court for the Eastern District Court in the matter.

Current Matter

The petitioner, U.S. Bancorp has moved by order to show cause to hold in contempt the respondents in the matter for failure to comply with subpoenas that were issued to them. They also move to obtain leave to receive Rubashkin’s assets and void as fraudulent the lease with the respondents.

Court Decision

After careful review of the facts of the case the court orders that the order to show cause by the petitioner is granted. A Nassau County DWI Lawyer said the respondents will turn over their assets to the petitioner of the matter. The petitioner is granted the attorney’s fees as well as the turnover of all sums and property from the respondents.

At Stephen Bilkis & Associates we offer free consultations for those that would like legal advice in a matter. You may contact one of our New York City offices to set up an appointment to come in and discuss your case. We will help you determine your legal rights in the matter and show you what your best course of action would be.

July 18, 2012

Defendant Contends He Had No Knowledge his Actions Were Illegal

Bilingual detectives are an advantage to any police department. The problems that they solve cross boundaries that have existed for many years. However, problems can also arise that are exclusive to a bilingual undercover investigation. A New York DWI Lawyer said one such case occurred in 1983, when a bilingual detective named Ramos worked for the New York City Police Department. He had been a detective for more than fifteen years at the time of this particular trial. He was assigned to work on the Drug Enforcement Administration Task Force. The objective of this task force was to apprehend persons who were primarily dealers of drugs at a level that is above the street level dealer who does hand to hand sales for five or ten dollars each. The goal was to apprehend the dealers who supply the street level dealer.

On July 16, 1981, Ramos contacted a dealer and told him that he wanted to purchase a large amount of drugs. Ramos had been assigned to a particular area and had worked for months to infiltrate the drug scene in that area. The street level dealer told Ramos that he had a contact that could supply the cocaine that Ramos had indicated that he was interested in purchasing. A A New York DWI Lawyer said the street level dealer contacted Ramos and with him present, called the upper level dealer. Ramos testified at trial that he told Ramos that the street level dealer had informed him that Ramos was a reliable person and that he had the product that Ramos wanted to purchase.

Several attempts to meet past by because one or the other was not able to make the meeting. When a meeting was finally arranged, the upper level dealer explained to Ramos in Spanish that he would be meeting him and gave him a description of his clothing and the type of vehicle that he would be in. Ramos advised him that he would be driving a red truck. When the meeting occurred, an Hispanic man approached Ramos and Ramos invited him to sit in the truck to talk. Ramos had a back up officer with him for the meeting. The two discussed an on-going criminal relationship of purchasing large amounts of cocaine. The upper level dealer advised him that he would be able to purchase one pound of cocaine for $29,000. However, he stated that he would first have to purchase a smaller amount so that he could see that Ramos was not an undercover police officer. The smaller purchase was made and the two made arrangements to meet the following day to conduct the larger purchase.

The following day, August 26, 1981, Ramos contacted the upper level dealer to confirm the sale. The dealer advised him that he would have to contact his supplier and would call him back. When he did not call back at the appointed time, Ramos called him back. The dealer advised that they could meet at nine that night at the Essex Restaurant in Queens to complete the sale. However, a couple of hours before the sale, the dealer contacted Ramos and told him that he would only be able to supply him with two ounces, again to ensure that he was not a police officer before they would supply him with a larger amount.

Ramos completed the deal with the dealer for the smaller amount and then arrested him. When the case went to trial, the defense claimed that their client was only delivering an unknown package for the lower level dealer because he had gone with his family to a ball game. A Nassau County DWI Lawyer said he stated that he was unaware of the contents of the package until the police officers advised him. The jury did not think that this defense was credible and in less than two hours returned the guilty verdict.

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July 16, 2012

Defendant Claims No Probable Cause for Arrest

The plaintiff in this case is Julius Bailey. The defendants in the matter are the Suffolk County Police Department and the Suffolk County Legal Department. The case is being heard in the District Court of Suffolk County in the state of New York. Judge C. Stephen Hackeling is overhearing the case.

A New York Criminal Lawyer said the plaintiff is seeking to recover $1,492 for damages sustained to his vehicle while it was in the custody of the defendant, the County. The County has placed an application through the court to have the complaint against them dismissed. This application has been deferred and will be decided along with the small claims action of the case.

Case Facts

On the sixth of September, 2009 the plaintiff was sleeping in his vehicle that was parked near the intersection of Round Swamp Road and Old Country Road in Melville, New York. A police officer from Suffolk County arrested the plaintiff for the suspicion of driving while under the influence of alcohol (DWI).

The officer issued a breathalyzer at the scene and it came back as 0.0%. The plaintiff was given another breathalyzer at the precinct with the same result. The officer questioned the accuracy of the breathalyzer and issued a report stating that the plaintiff failed to comply with the breathalyzer test.

The plaintiff had his driver’s license revoked pending a refusal hearing with the New York Department of Motor Vehicles. A Long Island Criminal Lawyer said the plaintiff’s car was impounded by the defendant, the Suffolk County Police Department. The plaintiff states that he requested a blood test to confirm that he was not under the influence of alcohol and this was refused. The defendant does not concede this point, but does not challenge it either.

The police officer did not appear in court for the DMV refusal hearing and the plaintiff’s license was reinstated. The plaintiff then requested a hearing for his vehicle’s return. During the hearing the two parties could not reach an agreement as the County insisted that the vehicle be installed with an alcohol ignition disconnect device and the plaintiff refused.

The hearing officer ordered that the vehicle be returned to the plaintiff as there was no probable cause provided by the defendant for the arrest of the plaintiff and the impound of the vehicle. The plaintiff was directed to pay the storage and towing costs of the vehicle.

The plaintiff signed a general release form and picked up his vehicle at the impound lot. The plaintiff states that his car had been damaged while it was under the care of the county. The plaintiff filed a detailed claim with the claims office of the police department. After almost two months the claim had not been forwarded to the risk/management department for insurance policy review. The clerk in charge of forwarding the claim admits that it was never taken care of.

Court Decision

The plaintiff has offered receipts for the repairs that were necessary for his vehicle after picking it up from the impound lot. After reviewing the facts of the case the court finds in favor of the plaintiff and orders the defendant to pay a total of $948.09. This sum is achieved by reviewing the actual repair costs that the county can be held liable for. The plaintiff could have been entitled to recovery of the storage and towing costs as well, but this was not requested.

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July 15, 2012

Attorney Defendant Suspended for DWI

This matter deals with the respondent, Philip S. Lapenta, who is an attorney. The petitioner in the matters is the Grievance Committee fro the Tenth Judicial District. The case is being heard in the Supreme Court of the State of New York, Second Department, Appellate Division.

Case Background

A New York Criminal Lawyer said the respondent was admitted to the bar on the 21st of February, 1973. On the 19th of March, 2008, the Tenth Judicial District Grievance Committee served the respondent with a verified petition that contained four charges of misconduct.

A preliminary conference and hearing were held in regard to the charges. During this conference the Special Referee sustained all four of the charges that were made against the respondent. The Tenth Judicial District Grievance Committee has not moved to confirm the report made by the Special Referee and to impose a discipline that is just and proper according to the court.

The respondent has submitted letters in mitigation and affidavits in response to the motion to confirm the report. He urges the court to allow him to continue his legal practice without interruption.

Charges

The first charge that is made against the respondent is that he was found guilty of conduct that reflects adversely on his trustworthiness and honesty as a lawyer, which is in violation of the Code of Professional Responsibility.

On the 8th of September, 2005, the respondent was arrested for driving while intoxicated. A Bronx Criminal Lawyer said he pleaded guilty to these charges on the 4th of November, 2005. He was sentenced to three years of probation with narcotic and alcohol conditions. This included that he complete the drinking driver program through the state of New York Department of Motor Vehicles. His license was taken away for six months and he was fined $500.

The second charge against the defendant comes from a second arrest that occurred on the 20th of February, 2006, when he was driving while intoxicated again (DWI). For this crime he was sentenced to sixty days in a Stop DWI Program. He could not apply for driving privileges without permission from the probation office or the court.

The third and fourth charges against the respondent are the same, each accusing the defendant of being found guilty of conduct that reflects adversely on his trustworthiness and honesty as a lawyer, which is in violation of the Code of Professional Responsibility.


Court Discussion and Decision

In regard to the discipline that should be invoked, the defendant has requested that the court consider the fact that no one was hurt in any of the incidents and no accident had occurred. After he was arrested the respondent voluntarily stopped practicing law and is continuing treatment on a voluntary basis. He complies with the medications he is given and states that his performance as an attorney has not been affected by alcohol.

After reviewing the facts of the case the court affirms the report made by the Special Referee. The respondent will be suspended from practicing law for a time period of six months. He has leave to apply for reinstatement of his license a month before the expiration of the six month time frame. This is contingent upon prove that he has not been in violation of the terms of his probation and that he has enrolled in the Lawyers Assistance Program.

Stephen Bilkis & Associates offers free consultations for those in need of legal advice, whether it is for sex crimes, fraud or drug posssession. We have offices located conveniently throughout the city of New York. You may call us at any time to set up an appointment to meet with one of our expert litigators.

July 15, 2012

Defendant Refuses Chemical Test

The People of the State of New York are the plaintiffs in this case. The defendant in the case is Patricio R. Herrera. The case is being heard in the Suffolk County District Court. Judge Salvatore A. Alamia is presiding over the case.

A New York DWI Lawyer said the defendant in this case has been charged with driving while intoxicated and failing to maintain a lane. A Dunaway, Mapp, Huntley, and Refusal hearing has been held in the case to determine which evidence in the case will be admissible during trial. The plaintiff and the defendant have been given time to submit written closing statements. Both sides have provided these statements to the court.

Case Facts

Officer Weinerman has been a police officer with the Suffolk County Police Department since 1998 and has made approximately 200 arrests in his career, with around 100 of those being arrests for driving while intoxicated.

On the evening of December 24th, 2007, Officer Weinerman was on duty from 3 p.m. to 11 p.m. At approximately 9 p.m. he received a radio dispatch that stated a 911 call had been made that reported a silver Lincoln Town car that was swerving out of its lane on the Long Island Expressway in the east bound lane.

Officer Weinerman positioned his police car on the Expressway just east of the location of the reports. Within a short time he saw a vehicle that matched the description. A New York DWI Lawyer said the vehicle was traveling east on the Expressway near exit 59 located in the town of Brookhaven, located in Suffolk County. The officer watched the vehicle and saw it swerve over the right lane and onto the shoulder of the road.

Officer Weinerman pulled the vehicle over and approached the car and spoke with the driver, who is identified as the defendant. The defendant produced his license and officer Weinerman noticed the smell of alcohol coming from his breath. He also noticed that the driver’s eyes were glassy and bloodshot. Officer Weinerman asked the defendant to step out of the car and noticed that he was unsteady on his feet as he did so. The officer asked the defendant what he had been drinking and the defendant stated “wine.” Officer Weinerman asked him how much wine he had consumed and the defendant stated two or three, I am not sure.

The officer tried to conduct a field sobriety test, but the defendant could not follow the directions. The officer then administered a breathalyzer test and the result was a BAC of 0.14%. Officer Weinerman placed the defendant under arrest and transported him to the Fourth Precinct located in Hauppauge.

At the precinct the officer requested the defendant take a chemical test, but the defendant refused. The defendant wrote refuse in the space provided on the form, but did not sign his name on the form.

Court Discussion and Decision

It is determined that the statements made by the defendant about having wine to drink were made during a permissible investigation being made by the officer. These statements are permissible in the trial.

In regard to the admission of the refusal of the chemical test the court finds that the defendant was not given enough information about the consequences of refusing the test. A Nassau County DWI Lawyer said the defendant is a Spanish speaking individual and the court does not feel that he fully understood his rights. For this reason this evidence will not be submitted as evidence.

For any legal questions you may have contact Stephen Bilkis & Associates. Our offices are located conveniently throughout New York City. You may call any time to set up a free consultation.

July 15, 2012

Court Finds Probable Cause for DWI Stop

The plaintiff in this case is the People of the State of New York. The defendant of the case is John McAleavey. The case is being heard in the Trial Term Part VI of the Suffolk County Court. Judge Stuart Namm is presiding over the case.

The defendant has been charged with two counts of operating a vehicle while under the influence of alcohol (DWI).

Case Facts

On the fourth of September, 1985, at around seven in the evening, police officer Meyers was driving south on the William Floyd Parkway located in Shirley, New York. He approached the intersection at Parkview Drive and intended to turn left. It was at this time that he noticed a car, a 1963 Dodge, that was going around 40 mph and traveling north on the William Floyd Parkway.

Officer Meyers came to a stop at the intersection and watched as the 1963 Dodge make a very sudden and erratic turn on to the left side of Parkview Drive. Officer Meyers followed the Dodge as it continued to travel on the left side of the road. The dodge slowed to a speed of 10 mph. There were no other cars in the area and there were no cars parked along Parkview drive. Meyers turned on the lights of his police car and the dodge pulled into the right hand lane and came to a stop.

Officer Meyers approached the car and observed there was only one person in the vehicle. He requested the license, registration, and insurance card from the driver of the vehicle. Officer Meyers asked the defendant where he was going. The driver informed him that he had just dropped his son off and was going home.

Officer Meyers leaned in closer to the defendant and smelled alcohol on his breath. He also noticed that the driver’s eyes were glassy and bloodshot. He asked the defendant to step out of the vehicle and then requested that he perform several field sobriety tests. The defendant was unable to recite the alphabet or balance on one foot. The defendant was staggering and had to lean against the car for support. Officer Meyers also noted that the defendant’s face was reddish in color.

Officer Meyers took the defendant to the precinct and read him his Miranda rights. The defendant responded that he did not understand what the officer was talking about.

Case Discussion and Conclusion

Police Officer Meyers witnessed the defendant making an erratic turn in the road and driving on the wrong side of the road. This behavior gave officer Meyers the right to pull over the vehicle. Officer Meyers is experienced in conducting field sobriety tests and determining whether or not a person is under the influence of alcohol. After conducting these tests it was concluded that the defendant was under the influence of alcohol and the arrest was made.

The court concludes that the arrest of the defendant was lawful as there was probable cause indicated for the arrest. Additionally, the statements that were made by the defendant to officer Meyers about where he was going will be admitted in evidence in the trial. The statements that were made by the defendant in regard to his Miranda rights will not be admitted in trial.

Located throughout the city of New York, the offices of Stephen Bilkis & Associates are convenient for anyone in the area. If you would like to discuss your legal rights with a lawyer, whether you have been charged with a DWAI, cocaine possession or theft, contact one of our offices to set up an appointment for a free consultation.

July 15, 2012

Court Determines Double Jeopardy Doesnt Apply in this Matter

The plaintiff’s of the case are the People of the State of New York. Kendrick Roopnarine is the defendant of the case. The District Court of Nassau County is where the case is being heard, with Judge Kenneth L. Gartner overseeing the proceeding.

The defendant of the case, Kendrick Roopnarine has been charged with two counts of driving while intoxicated (DWI) as well as three traffic infractions that were committed at the same place during the same time. All of the charges were calendared to be heard in the Nassau County Court. An administrative error resulted in the traffic infractions also being calendared in the Traffic and Parking Violations Agency of Nassau County. The defendant has plea-bargained with the Traffic and Parking Violations agency for a resolution regarding the traffic violations. He is now seeking to have the criminal charges of the case dismissed on the grounds of double jeopardy.

Defendant Argument

The defendant has moved to have the driving while intoxicated charges made against him dismissed. He argues that the noncriminal charges that were made against him have already been dismissed and because of this the criminal charges of the DWI are banned from prosecution as it would violate the double jeopardy clauses.

Court Discussion and Decision

When looking at the facts of this case it is quite clear that the traditional rules of double jeopardy are not applicable in the matter. The 5th amendment rights are not implicated in this particular case because the offenses being charged are not the same. Leaving the scene of an accident and driving under the influence of alcohol do not require the same evidence to prove guilt of each offense.

New York statutory laws are a bit broader, stating that a person cannot be prosecuted for two offenses that are based on the same criminal transaction or act. However, there are exemptions to these statutory laws that explain that if the two acts are substantially different the person may be tried for both or all offenses.

In this particular case the defendant had the right to request that the noncriminal charges being heard in the Traffic and Parking Violations Agency of Nassau County be dismissed or transferred. This would have prevented the defendant from being subjected to separate prosecutions for the same charges. Instead, the defendant went directly from his arraignment in district court to the Traffic and Violations Agency, fully aware that there had been an administrative error.

The principles of double jeopardy would apply to any attempt that was made to retry him on the three traffic infractions that have already been pleaded out in the Traffic and Parking Violations Agency. However, the other charges have not been dealt with.

Ironically, the defendant relies on the fact that all of the five charges were pending in district court. This shows that he willingly chose to have his case heard in two different forums. For this reason, the defendant’s motion to have the charges for driving while intoxicated dismissed is denied. The matter that was dealt with in the Traffic and Parking Violations Agency are not under the jurisdiction of this court and the defendant is not seeking relief from them, so the court will not address the issue.

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July 14, 2012

Defendant Makes Voluntary Confession

Suffolk DWI 15

The plaintiff in this case is the People of the State of New York. The defendant in the case is David A. Behling. The case is being heard in the First District of the District Court of Suffolk County. Judge Salvatore A. Alamia is presiding over the case.

The defendant in this case is being charged with driving while intoxicated, aggravated driving while intoxicated (DWI)http://www.newyorkcriminallawyer24-7.com/lawyer-attorney-1732535.html, and driving while intoxicated per se. A Dunaway, Mapp, and Huntley hearing has been held in the matter to determine which evidence that has been found against the defendant will be admissible in court. The evidence in question includes statement made by the defendant. The plaintiff and the defendant were given the opportunity to submit a written closing statement to the court. The court has received the closing statement from the defendant. The people failed to submit a closing statement and have therefore waived this right.

Case Facts

Officer Connors was the sole witness in the case and testified on behalf of the plaintiff. Officer Connors is a police officer for the Suffolk County Police Department. He has been employed with the department for the past 13 years and worked as a police officer for the New York State Police Department for five years before that.

Officer Connors was working on the 20th of March in 2007. During his shift he was called to 10 East Maple Street in Central Slip, New York for a domestic incident. The victim reported that her boyfriend, David Behling had violated a protection order.

While sitting in the patrol car in front of the home and filling out paperwork in regard to the incident, Officer Connors noticed a car turn onto the block behind them. The street was very narrow and there were cars parked on both sides. The car was going very slowly. The partner of Officer Connors turned the spotlight on the driver of the vehicle. Officer Connors recognized the driver as David Behling because he had arrested him a week and a half before for a similar offense. The officers followed the defendant with the intent to arrest him for violation of the protection order.

They followed him for a couple of blocks and the defendant did not make any traffic infractions during this time. They pulled him over a few blocks away on Lowell Street. When they turned on the lights the defendant pulled over immediately, jumped out of his car and ran to the back of the car and started yelling at the officers.

Officer Connors noticed that the defendant’s speech was slurred. However, a field sobriety test was not conducted as the defendant was showing an increasingly irate demeanor. The defendant was handcuffed and taken to the precinct. During questioning the defendant stated that he understood his rights as they were being explained. The defendant admitted that he had been drinking alcoholic beverages and when asked what kind he replied a few Heinekens.

Court Decision

It is found that the responses made while in the precinct by the defendant were in no way forced and were given voluntarily. For this reason they will be submitted into evidence at trial. The defendant consented to the blood chemical test, so this evidence will not be suppressed. There is no other evidence that was found as a result of the search and seizure.

Stephen Bilkis & Associates offers free consultations in all of their New York City offices. If you are in need of legal advice for a dwi, DWAI, or drug possession, simply call one of the offices to set up an appointment at your convenience. We are happy to help you determine your legal rights in any matter.

July 13, 2012

Defendant Contests Alcotest Records Being Admitted

The People of the State of New York are the plaintiffs in the case. The defendant is Leonard DiBari. The case is being heard in Westchester County, Justice City of the Town of North Castle. Judge Elyse Lazansky is overseeing the case.

A New York DWI Lawyer said the defendant, Leonard DiBari, is charged with driving while ability impaired by alcohol. During the course of the non-jury trial and pretrial hearings the defense has objected the prosecution’s use of simulator solution certificates and certified calibration records.

Case Background

During the pretrial and nonjury trial the prosecution has presented documentation related to the “alcotest,” which is a breath instrument that is used to test the blood alcohol level. This particular test was used to test the defendant when he was arrested and charged with driving while ability is impaired by alcohol.

The defense challenges these records being admitted to the court. A New York DWI Lawyer said the basis for the argument being made by the defense is that admitting these records without testimony from the analyst who created the records is in violation of the confrontation clause of the United States Constitution or the Crawford/Melendez-
Diaz rule.

The Court has reserved the decision about the records pending the completion of the People of the State of New York’s case. Both parties were given the opportunity to submit legal documentation to support their position.

Court Discussion and Decision

After reviewing the arguments that have been made by the defendant and the plaintiff, the court is granting permission for the calibration records to be submitted in the case. These records do not violate the Crawford/Melendez-Diaz rule.

It was found by Crawford that the United States Constitution guarantees that a criminal defendant has the right to be confronted with the witnesses that are against them. When this is practically applied it prevents out of court statement from being presented in a case that are testimonial, unless the defendant has been given the opportunity to cross examine the witness.

The records in question in this particular case have been admitted in similar cases that involve drunken driving charges for years. A Nassau County DWI Lawyer said when these records are properly authenticated through the New York State business records, they are considered to be evidence. The majority of New York courts find that these documents are non testimonial in nature, which makes them admissible without live testimony.

Both the plaintiffs and defendant have offered different cases to support their cause. However, after carefully reviewing the information the court is refusing to extend the Crawford and Melendez-Diaz argument. The business records that are being challenged in this case are similar to business records that have been admissible in a number of different cases that are very similar to this one. The test that is in question in these documents provides evidence in the case against the defendant. The documents are not considered to be testimonial in nature and there is no need for cross examination of the test.

For these reasons the court finds that the simulator solution and calibration certificates for breath test instruments can be submitted by the prosecution in the case against the defendant. The motion made by the defendant for dismissal of these documents is denied. All parties will appear before the court at a later date for further proceedings regarding this case.

With offices located throughout the metropolitan area of Manhattan, Stephen Bilkis & Associates can help you with any legal problem you may have. Simply call one of our offices and set up an appointment for a free consultation. Our team of expert litigators will be happy to discuss your legal rights with you.

July 13, 2012

Admission Inadmissible Prior to Miranda Rights Being Read

The People of the State of New York are the plaintiffs in this case. The defendant in the matter is Mary G. Moran. The case is being heard in the District Court of Suffolk County, First District. Judge Salvatore A. Alamia is presiding over the hearing.

The defendant has been charged with driving while intoxicated (DWI), speeding, and failing to maintain a lane. A Dunaway, Huntley and refusal hearing has been held in the case to determine which evidence will be submitted in the trial. The evidence in question includes statements that were allegedly made by the defendant and the refusal of submitting to a breathalyzer test by the defendant.

Case Facts

Officer Michael D. Messina is the sole witness at the hearing. He is a police officer for the Suffolk County Police Department. He has been an officer with the department for two years.

During the incident in question, Officer Messina was working a 9 p.m. to 7 a.m. shift. The date of the incident was the 29th of December, 2006. At around three in the morning officer Messina was driving east on Route 25 in North Babylon, in Suffolk County. He noticed a purple Dodge driving in front of him. The dodge made a very wide left turn onto Coram-Mt. Sinai Road. The vehicle crossed the white line that marked the shoulder of the road and almost hit the curb. After turning the car accelerated to around 62 miles per hour. The speed limit for the road was 30 miles per hour.

Officer Messina followed the vehicle for about a minute and stayed about 50 to 100 feet behind it. He saw that the vehicle was not staying in its lane, swerved into the right shoulder of the road, and almost hit the curb. At this point he put on his lights and pulled the vehicle over.

He went up to the driver of the vehicle and asked for her license and registration. She gave him the documents and he noticed that her eyes were watery and bloodshot. He also smelled alcohol on her breath. He asked her if she had been drinking and she said no. He asked her to step outside of the vehicle. When the defendant was exiting the vehicle he noticed that she was unsteady on her feet and had to hold onto the car twice.

Officer Messina conducted a field sobriety test on the defendant. The defendant was also given a breathalyzer test and her BAC was found to be at 0.12.

Officer Messina asked her once again if she had been drinking. She stated that she had two Long Island Ice Teas and the last one she had finished a half an hour before.

At the precinct the defendant was read the alcohol/drug influence report. She read the form and refused the chemical test.

Court Decision

The court finds that the officer had probable cause to pull the vehicle over. The officer had reason to believe the defendant had been drinking and for this reason all evidence from the stop and arrest is admissible in court.

The defendant’s admission of having two drinks is not admissible as it was asked before her Miranda rights were read. All of the statements made by the defendant after her rights were read and while at the precinct will be admissible.

For a free legal consultation contact Stephen Bilkis & Associates, whether you have been charged with drug possession, theft or sex crimes. Our offices are located conveniently throughout New York City. You may call us at any time to set up an appointment to discuss your legal matter.

July 12, 2012

Defendant Asks for the Return of his Vehicle

This case deals with the Plaintiff/Claiming Authority, Christine Malafi, who is the County Attorney for Suffolk County. The defendants in the matter are Edward J. Radwinsky and the Ford Motor Credit Company. The case is being heard in the Supreme Court of the State of New York that is located in Suffolk County.

Case Background

A New York DWI Lawyer said on the 19th of December, 2004, the defendant was arrested for operating the subject Ford while he was intoxicated. He was driving in the eastbound lane of the service road on the Long Island Expressway in the city of Hauppauge, New York. The defendant was given a breathalyzer test after being taken into custody. The breathalyzer showed that his blood alcohol level was 0.19%, which is above the legal limit. This resulted in the defendant being arrested for operating a motor vehicle while intoxicated.

Before this particular arrest the defendant had been charged with another driving under the influence of alcohol arrest on the 16th of May, 1988. This previous arrest resulted in the vehicle of the defendant being seized at the time of the December 2004 incident. This is in accordance with New York state laws. A hearing was held on the fourth of January, 2005 and the plaintiff was directed to keep the vehicle until a forfeiture proceeding was held.

The plaintiff has issued an instant application in regard to the forfeit of the vehicle. A New York DWI Lawyer said the plaintiff argues that there are no triable issues of fact in this case. There was probable cause for the defendant’s arrest in the December incident. Retaining the vehicle was necessary in regard to law and for that reason the plaintiff is entitled to the judgment in their favor. The plaintiff also argues that the defendant has now been charged with two DWI offenses and for this reason the vehicle should be removed from the plaintiff as a way to protect innocent motorists on the highway.

The defendant has filed a cross motion for a summary judgment that would return his vehicle to him. The defendant states that using the prior conviction from 1988 is in violation of his right to due process. A Nassau County DWI Lawyer said the defendant also argues that the motion for summary judgment made by the plaintiff is premature as discovery in the case is not yet completed.

Case Discussion and Decision

The court has reviewed the facts of the case. The defendant is on his second offense for driving under the influence of alcohol. The first offense occurred in 1988 and he was charged. The second offense called for his vehicle to be taken.

After careful review the court is ruling in favor of the plaintiff. The vehicle, a 1997 Ford, is given to the plaintiff and claiming authority, Christine Malafi, County Attorney for Suffolk County. The vehicle will be turned over to the plaintiff and disposed of in accordance with provisions in Suffolk County Code, chapter 270, article IV.

The cross motion that has been made by the defendant is denied. The vehicle will not be returned to the defendant and the summary judgment in his favor is denied.

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July 12, 2012

Defendant Contests Car Being Taken During DWI Arrest

The plaintiff in this matter is Christine Malafi, who is County Attorney for Suffolk County in the state of New York. The defendants in the matter are Zachary G. Moisan and a 1967 Chevy that has the VIN number 125177G120642. The case is being heard in the Supreme Court of the state of New York located in Suffolk County. Judge Arthur G. Pitts is hearing the case.

This case involves a civil forfeiture proceeding. The plaintiff and claiming authority in the matter, Christine Malafi, the Suffolk County Attorney, seeks a forfeiture of a 1967 Chevy that is owned by the defendant, Zachary G. Moisan.

Case Facts

The defendant, Zachary G. Moisan, was arrested on the 23rd of June, 2006 for driving under the influence of alcohol (DWI). He was transported to Huntington Hospital at the time of his arrest and submitted to a blood test. His blood alcohol level was determined to be at 0.19%.

Prior to this arrest, the defendant had been convicted of driving while under the influence of alcohol on the 11th of January, 1984. He was convicted of driving while intoxicated at this time.

Based upon the arrest in June of 2006 and his prior conviction in January of 1984, his car was taken pursuant to Chapter 270, Article IV, of Suffolk County Code. On the 26th of October, 2006, the defendant pled guilty to driving while intoxicated and was sentenced to sixty days in jail.

Court Discussion and Determination

Chapter 270 of the Suffolk County Code states that any property that precedes an offense shall be taken by any peace officer acting in regard to his/her specific duties. It also states that a police officer may seize the property if there is probable cause to believe that an offense has occurred. The property is considered forfeited if this occurs.

The agency that seizes the property must notify the titled owner of the property. This includes any registrants that are on file with the New York State Department of Motor Vehicles. The notification will inform the owner of the property that there will be a hearing in regard to the matter that will be held in front of a neutral Magistrate.

The neutral Magistrate will review all of the documents of the case that support the arrest of the individual as well as any testimony that is provided. The neutral Magistrate will then determine if the seizing agency has made a full burden of proof in the matter.

The defendant was notified to appear before the court in regard to the matter on the third of July, 2006. He failed to make an appearance. As a result of his failure to appear, the neutral Magistrate, Harry E. Seidell determined that Suffolk County was entitled to keep the vehicle in their possession.

After carefully reviewing the facts of the case the court has determined that the plaintiff and claiming authority, Christine Malafi, the County Attorney for Suffolk County will be granted the right to obtain a forfeiture of the vehicle from the defendant. The motion for summary judgment as made by the defendant is denied.

If you need any type of legal advice, whether it is for sex crimes, drug possession or theft, contact Stephen Bilkis & Associates. Our offices are located conveniently throughout the metropolitan area of Manhattan. We offer free consultations to anyone that needs legal advice. Simply contact one of our offices to set up an appointment and we will help you determine the best course of action for your particular case.

July 11, 2012

Defendant Contends Miranda Rights Were Violated

This case is being heard in the First District Court of Suffolk County. The plaintiff in the case is the People of the State of New York. The defendant of the case is Jose R. Rivas. Judge M. Filiberto is overseeing the proceeding.

There has been a combined Probable Cause, Huntley, and Refusal Hearing in this matter. The Court has found the following facts in the case.

Case Facts

On the 23rd of February, 2009 at around 2 a.m. Police officers Decio and Squiccirini were on patrol in the area of Commercial Boulevard located in Brentwood, New York. A New York Criminal Lawyer said officer Decio was behind an automobile that went through a stop sign without stopping or attempting to slow down in any manner. He pulled the car over.

A New York Criminal Lawyer said officer Decio approached the vehicle and asked the driver to turn the car off. He asked the defendant if he spoke English and was informed that he did. Officer Decio asked the driver if he knew that he had just went through a stop sign and the driver stated that the had not seen it. A New York Criminal Lawyer said the driver of the car was asked for his license and was identified to be the defendant Jose Rivas.

When speaking to Rivas, Officer Decio smelled alcohol, but could not determine whether it was from the vehicle or the defendant’s breath. He asked Rivas to step out of the car and observed that he had bloodshot eyes, slurred speech, and that his breath smelled of alcohol. Officer Decio had Rivas perform a standard field sobriety test. He explained twice how to perform the HGN test, but Rivas did not comply. He then had him perform the one legged stand test and Rivas fell forward during it. Rivas also only completed three of the required heel toe steps. The officer then conducted a breathalyzer test and the BAC of Rivas was 0.16% (DWI).

The officer placed the man under arrest and took him to the precinct. At the precinct the officer requested to take a chemical test. The defendant did not ask for the warnings to be repeated in Spanish or for the officer to read the request more slowly. A Queens Criminal Lawyer said he refused the chemical test in writing. Officer Decio had a Spanish speaking officer read the rights to the defendant again as a courtesy.

Court Conclusion

Officer Decio had reasonable suspicion to pull the defendant over for driving through the stop sign as a violation of the law. When he asked the defendant to turn of the engine in English the defendant complied and did not indicate in any way that he did not understand English.

At the precinct the defendant was read his rights and asked if he understood them. He was told in both English and Spanish the repercussions for not complying with the chemical test. The defendant seemed to fully understand English throughout the entire ordeal.

The court finds no evidence to support that the Miranda rights of the defendant were violated. A New York Sex Crimes Lawyer said a new court date will be set for the trial of the defendant.

Stephen Bilkis & Associates have law offices located throughout New York City. We offer free legal consultations to anyone in the area that is in need of legal advice. You may call one of our offices to set up an appointment for a time that is convenient for you. We will help you determine what your rights are legally and what steps that you should take to protect them.

July 11, 2012

Court Discusses Rehabilitation Program for Defendant

The appellant in this matter is the State of New York. The respondent of the case is John VanDuyn Southworth. Southworth is responding both for himself and as the executor of the estate of Alice Keegan Southworth, deceased. The case is being heard in the Fourth Department, Appellate Division of the Supreme Court of the State of New York.

The case before the court involves an issue involving an experimental driver’s rehabilitation program that was established by the Commissioner of Motor Vehicles. The question before the court is whether the state of New York can be held liable for issuing an interim driver’s license to a person that has a record of alcohol related driving violations.

Case Background

The respondents, John Southworth and his wife Alice Southworth were involved in a serious motor vehicle accident. The accident left Mr. Southworth with serious injuries and Ms. Southworth was killed. The collision happened on Route 175 near Syracuse on the 31st of August, 1973. Uldis Baumanis was driving in the eastbound lane and crossed over to the westbound lane and collided with the Southworth’s vehicle. Baumanis was driving on an interim license that had been given to him two days earlier.

As a result of the accident Mr. Baumanis was convicted of driving while intoxicated (DWI) and criminally negligent homicide.

It is claimed that the state is liable for the injuries sustained by Mr. Southworth and the death of his wife. The reason for this claim is that the state is deemed negligent in the establishment and operation of the Onondaga County DWI Counter Attack Program. It is further claimed that by issuing the interim license to Mr. Baumanis, was negligent. It is stated that Mr. Baumanis was not a proper candidate for the program or the issue of this license.

The trial court found that the state of New York was negligent in the matter and that this negligence caused the injuries to Mr. Southworth and the death of Mrs. Southworth. This finding is being appealed by the State of New York.

Court Discussion and Decision

The charge as it stands states that the state should have known about the prior convictions of Mr. Baumanis simply by the nature of the program in question. Mr. Baumanis received a conviction two days before the issuance of the interim license. However, there was no way for the employees of the Onondaga program to know about this. The employees of the Onondaga program were simply complying with the procedures that were set forth by the program.

It is felt that the procedures of the program are defective. Additional procedural steps for handling cases such as the one of Mr. Baumanis need to be put in place. However, the program has been set up to help deter individuals from driving while intoxicated and offers a rehabilitation program to help individuals earn their licenses back.

While the accident that occurred was unfortunate, the establishment of the program by the state was not negligent in nature. For this reason the court will reverse the previous order that was made during the trial court proceeding. The claims against the defendants will be dismissed.

Stephen Bilkis & Associates offers free consultations for individuals who are in need of legal advice whether you have been charged with possession of stolen property, a gun crime or theft. Our offices are located conveniently throughout the city of New York. You may call or stop by any of our offices to make an appointment for a consultation. We are happy to discuss your legal rights with you and determine the best course of action for your case.

July 11, 2012

Court Decides Case Where Defendant is Police Officer

This is a case of appeal being heard in the Second Department, Appellate Division of the Supreme Court of the state of New York. The appellant in the matter is Charles O. Sharkey. The respondents in the matter are the Police Department of the town of South Hampton, et al.

The petitioner is appealing a decision that was made by the Supreme Court of Suffolk County on the 18th of December, 1989. The Suffolk County Supreme Court dismissed the case, which was a review of a determination that was made by the Police Department in the town of South Hampton. The Police Department had terminated the petitioner’s employment after he pleads guilty to the misdemeanor charge of driving while intoxicated (DWI).

Case Background and Discussion

Charles O. Sharkey, the petitioner, was a police officer for the Town of South Hampton. While he was not on duty Sharkey was involved in an automobile accident. The accident took place on the 16th of August, 1987. The record for the case does not reveal anything about the accident except that one person died and another was seriously injured.

Sharkey was indicted for the accident and charged with second degree vehicular assault, second degree vehicular manslaughter, criminally negligent homicide, and two counts of driving while intoxicated. The defendant pled guilty to one misdemeanor count of driving while intoxicated and this satisfied the indictment.

The Patrolmen’s Benevolent Association is the union that represented the petitioner in the case. The Town of South Hampton demanded arbitration to determine whether or not the petitioner could be discharged from his position as a police officer. Based upon the plea of guilty the town terminated his employment based on the Public Officer’s Law section 30. The petitioner challenged this decision in an instant CPLR article 78 proceeding. The town’s determination was upheld.

In case law it is typically provided that if the crime in question relates to the duties of the office held, the crime violates the oath of office. The reason for this is that it gives the public the confidence to trust the moral integrity of police officers.

However, in this particular case the officer was off duty at the time of the accident. The court declines to hold that the crime committed establishes conduct that is intimately related to his official duties as a police officer. The records for the instant case fail to disclose the nature of the officer’s duties or explain any of the circumstances that surrounded the accident. It was found that the accident could not have been avoided by the petitioner and there was not enough evidence to take away his license.

Court Decision

After reviewing the case the court orders that the judgment to dismiss the case is reversed with costs. The petition is granted and the respondents will reinstate the petitioner’s employment. The matter will be sent back to the Supreme Court of Suffolk County for calculation of the back pay and interest that the petitioner is owed and for an entry of the appropriate judgment in the matter.

One of the judges hearing the case dissents from this determination and feels that the officer did violate the officer’s oath to office.

If you would like legal advice on an issue that you are having contact Stephen Bilkis & Associates, whether you have been charged with DWI, petit larceny or forgery. Our offices are located throughout New York City for your convenience. You may call us at any time to set up an appointment for a free consultation. We will be happy to discuss your legal rights with you and help you determine the best course of action in your case.

July 9, 2012

Parole Board Decides Whether to Grant Discretionary Parole Release

Petitioner GAROFOLO, an inmate in the care and custody of the New York State Department of Correction Services since 1977, is currently incarcerated at Clinton Correctional Facility, Dannemora, New York. He was convicted in 1977 of a sex crime of Rape in the First Degree, Sodomy in the First Degree and Burglary in the Second Degree for his attack on an estranged girlfriend. For these crimes petitioner GAROFOLO received indeterminate concurrent sentences of zero to 25 years each on the rape and sodomy charges and zero to 15 years on the burglary charge. Also, in 1977, New York DWI Lawyer said he was convicted of two counts of Murder in the Second Degree for his killing of Catherine Wilkinson with a police baton. Petitioner GAROFOLO dumped the victim's body in a wooded area in Suffolk County, near a bar he went to with his victim. For the murder convictions he was sentenced to 25 years to life on each murder count, to be served concurrently with the sex crime of rape, sodomy and burglary sentences.

A New York Criminal Lawyer said that, petitioner GAROFOLO had his initial Parole Board Release interview, which was his earliest possible release date. At that time, he was denied discretionary parole release. Then, he had three subsequent parole release interviews and was denied parole at each interview. GAROFOLO, after parole denial, perfected and filed an administrative appeal which was ultimately denied. After exhausting his administrative remedies he appealed his parole denial by commencing a petition. Petitioner seeks an order, pursuant to Article 78 of the CPLR, vacating the July 6, 2008 decision of the New York State Board of Parole (PAROLE BOARD) denying him parole and granting him either immediate release on parole or a de novo parole hearing. Respondent FELIX ROSA (ROSA), Chairman of the BOARD OF PAROLE, opposes the petition and seeks its dismissal.

Petitioner GAROFOLO contends that he was wrongfully denied a discretionary parole release by respondent PAROLE BOARD. The basis of the instant petition is that respondent PAROLE BOARD acted unlawfully because: the term of Parole Commissioner Jennifer Arena, one of the three Parole Commissioners at the July 8, 2008 hearing, had expired; certain comments of Parole Commissioner James B. Ferguson during petitioner's hearing demonstrated reliance on matters not within the purview of the PAROLE BOARD; and, the PAROLE BOARD'S denial of parole release was based solely on petitioner's underlying criminal offenses to the exclusion of all other statutorily mandated factors of consideration, which, pursuant to Matter of Russo v New York State Board of Parole is "irrationality bordering on impropriety."

ROSA and the PAROLE BOARD assert that the denial of parole to petitioner GAROFOLO was lawful, arguing that: Commissioner Arena could continue to serve as a holdover commissioner; and, the PAROLE BOARD's determination not to release petitioner GAROFOLO was lawful and should not be set aside.

The issue in this case is whether the Parole Board acted within the law in its denial of the discretionary parole release of petitioner GAROFOLO.

The Court in deciding the case said that, after a review of the record and interview, the panel of the PAROLE BOARD has determined that if released at this time, there is a reasonable probability that petitioner would not live and remain at liberty without again violating the law, and his release would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law. A New York DWI Lawyer said the decision of the PAROLE BOARD was based on the following factors: Your instant offenses, murder in the second degree, two counts, rape first degree, sodomy first degree and burglary second degree, in which you beat to death your teenage girlfriend because she was begging you not to rape her. In a prior offense you broke down the door of your victim and then repeatedly raped and then sodomized her. Note is made of your extensive educational accomplishments, your remorse, impressive disciplinary record and all other required statutory factors. Despite the pleas and cries of your victims, you continued with your horrific crime showing them no mercy. Your brutal offenses have deprived a young teenager of her life and her family has been forever impacted by your heinous crime. Your rape victim has had her life forever scarred. Parole is denied.

The instant petition claims, that contrary to the conclusions reached by the parole board, the record reveals that the petitioner, now fifty-two years old and have spent some thirty-three years behind bars, is obviously a completely different person then when he was first incarcerated, and indications point to someone who is now ready, willing and able to rejoin society as a productive member. However, the Court said that, petitioner has failed to show that the decision of the PAROLE BOARD is arbitrary, capricious, an abuse of discretion or "irrationality bordering on impropriety."

Petitioner GAROFOLO argues that the presence of "holdover" New York State Parole Commissioner Jennifer Arena, whose term of office had expired prior to petitioner's July 8, 2008 parole hearing, tainted the hearing decision. However, Public Officer's Law § 5 states: Every officer, except a judicial officer, a notary public, a commissioner of deeds, and an officer whose terms is fixed by the state constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen until his successor shall be chosen and qualified.

Thus, the Court held that, petitioner's argument that the PAROLE BOARD or its Commissioners proceeded in excess of its authority or without jurisdiction is wholly without merit. Further, pursuant to Executive Law § 259-b (4), "members of the state board of parole shall not hold any other public office." Therefore, a Parole Commissioner, who by statute cannot hold office as a judicial officer, or a notary public, or a commissioner of deeds, and is not an officer whose term is fixed by the state constitution, may holdover until a successor takes office. While members of the PAROLE BOARD are not judicial officers, they possess functions which are considered quasi-judicial in nature. It does not necessarily follow that Parole Commissioners are judicial officers. Further, neutrally positioned government officials performing quasi-judicial functions do not attain the status of judicial officers. Thus, Commissioner Arena's authority to serve as a Parole Commissioner after the expiration of her term appropriately falls within the statutory holdover provision of Public Officer's Law § 5. Moreover, the Court held that, petitioner's claim that Commissioner Arena's holdover status created a conflict of interest and tainted the PAROLE BOARD's decision is unavailing for lack of any evidentiary support from the record. It is purely speculative and fails as a matter of law.

The standard for judicial review in an Article 78 proceeding is to scrutinize the record and determine whether the decision of the administrative agency is supported by substantial evidence and not arbitrary and capricious. A Nassau County DWI Lawyer said if the reviewing court finds that the agency determination has a rational basis, supported by substantial evidence, such determination must be sustained. It is axiomatic that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.

Article 12-B of the Executive Law details the authority and duties of the New York State Division of Parole and PAROLE BOARD. Executive Law § 259-i, "Procedures for the conduct of the work of the state board of parole," describes, in § 259-i (2) (c) (A), the standards to be considered by the Parole Board in determining if an inmate should be released on parole: Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services . . . (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated. Notwithstanding the provisions of this section, in making the parole release decision for persons whose minimum period of imprisonment was not fixed pursuant to the provisions of subdivision one of this section (inmates like petitioner GAROFALO), in addition to the factors listed in this paragraph the board shall consider the factors listed in paragraph (a) of subdivision one of this section.

The Court held that, the above-mentioned Executive lists the guidelines to be considered by the Parole Board and shall include (i) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest and prior to confinement; and (ii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement. Further, § 259-i (1) (a) states that "the notification of the Parole Board's determination and of any subsequent determinations and of the reasons therefore shall be furnished in writing to the sentenced person and to the person in charge of the institution as soon as practicable. Such reasons shall be given in detail and not in conclusory terms."

The subject parole hearing minutes demonstrates that the PAROLE BOARD considered the necessary statutory factors in weighing whether to grant discretionary parole release to petitioner GAROFOLO. The PAROLE BOARD discussed with petitioner: his upbringing and family history; the violent nature of the underlying crimes; why he committed his crimes, any mitigating factors, his remorse and his rehabilitative efforts; his support network if released; his educational attainments while incarcerated; his participation in sex offender programs and substance abuse counseling; his disciplinary record; his plans if released for living arrangements and work; and, any matter he thought should be brought to the attention of the PAROLE BOARD. Petitioner GAROFOLO, in support of his request for relief, notes that an inmate's exemplary conduct during his or her imprisonment may be considered as a relevant factor during his parole hearing.

In view of the foregoing, petitioner GAROFOLO's claim that he should be released because of his successful efforts at rehabilitation does not pass muster in the face of the statutory framework. Successful rehabilitation effort is but one of the many factors to be considered by the PAROLE BOARD in determining if an inmate is granted discretionary parole release.

Further, petitioner's GAROFOLO's denial of parole release due to the severity of his crimes is within the sound discretion of the PAROLE BOARD. The Board's determination that the petitioner's positive achievements were outweighed by the serious and repetitive nature of her crimes was within its sound discretion and is not subject to judicial review. Similarly, the Boards based its determination upon the extraordinarily serious and vicious nature of the crimes for which the petitioner was incarcerated, which is sufficient ground to deny parole release.

Therefore, the grounds for parole denial stated by the PAROLE BOARD at petitioner's hearing are sufficient to support the PAROLE BOARD's denial of parole to petitioner GAROFOLO. Petitioner GAROFOLO has failed to demonstrate to the Court that the decision of the PAROLE BOARD is arbitrary, capricious, an abuse of discretion or "irrationality bordering on impropriety." Accordingly, Court denied the instant petition.

If you have been convicted of a sex crime such as rape and have served the minimum years your sentence, you need the advice of a New York Rape Attorney. Stephen Bilkis and Associate’s New York Criminal Attorneys can represent you, and inform you whether you’re eligible for parole.

July 8, 2012

Court Allows Use of Expert Witness to Establish False Confession was Made

Queens Rape 16

The People of the State of New York are the respondents of the case. The appellant of the case is Khemwattie Bedessie. The case is being heard in the Court of Appeals in the State of New York.

The appellant, Khemwattie Bedessie has asked for the time to consider the testimony from an expert based on the issue of reliability of the confession. A New York DWI Lawyer said in certain cases expert testimony for false confessions are admitted, the expert in this particular case did not offer a testimony that was relevant to the defendant or this particular interrogation. As a result of this the trial judge did not abuse the discretion to hold a Frye hearing in the matter to determine whether the expert that offered testimonies was offering information that is generally accepted within the science community.

Case Background

The appellant, Khemwattie Bedessie worked at Veda’s Learning World as a Teacher’s Assistant. She is accused of sexually abusing a four year old boy who was left in her care. Specifically, she is accused of placing the child’s hand on her partially exposed breast and touching his penis on three separate occasions. The incidents occurred from January 2, 2006 through February 11, 2006. During the last incident the defendant is accused of placing the child’s penis into her vagina.

The suspicion of abuse came about on the 19th of February, 2006. The child had been sick and was recovering. He developed a rash in his rectal area. His mother bathed him that evening and he kept complaining about the itching. His mother asked him if anyone had touched him in his private areas. She had asked him this before and he had always said no. However, this night he responded yes. He told her that Ms. Anita (his name for the defendant) went up and down on his “pee-pee.” He told his mother not to tell anyone because it was a secret.

The child’s mother took her son to the doctor the following day. She took him to the emergency room and told the nurse what her son had told her about his teacher. The nurse asked the boy about the incident that occurred at school. He told her that his teacher had touched his “pishy” to her “pishy.” Pishy is the word the boy used to describe his penis.

The physician was called in as well as a social worker. A New York DWI Lawyer said the boy and his mother were taken to the Queens Child Advocacy Center. They discussed the situation with Detective Ivan Bourbon. Detective Bourbon was in charge of the investigation for the case.

The detective called the defendant in for questioning. During the interview the defendant told the detective that about several occasions where she would play with the boy’s penis and masturbate at the same time. The defendant was arrested after this oral confession.

On the day before the trial was set to begin the defense requested permission to submit testimony from Dr. Richard J. Ofshe, an expert in the field of false confessions. This application was denied.

Court Discussion and Decision

In this particular case the defense wishes to use an expert witness to establish that the defendant made a false confession. A Nassau County DWI Lawyer said it was determined that the expert witness was not needed in the case. The court affirms this decision. However, one of the judges dissents this decision and states that the case does have evidence that is unreliable and the expert witness should be allowed. However, the court has affirmed the decision.

If you need any type of legal advice contact the law offices of Stephen Bilkis & Associates. We will be happy to discuss your case with you during a free consultation. Our offices are located throughout New York City for your convenience.

July 7, 2012

Defendant Contends Error in Trial

Judges Peter B. Skelos, J.P., Ruth C. Balkin, Joseph Covello, and Sandra L. Sgroi, JJ are overseeing this case that is being heard in the Second Judicial Department, Appellate Division of the Supreme Court of the State of New York.

The People of the State of New York are the respondents in the case. The appellant in the case is Luis Gomez. The People are represented by Sharon Y. Brodt and John M. Castellano from the District Attorney’s office of Kew Gardens, New York. The appellant is represented by Rober DiDio from Kew Gardens.

A New York DWI Lawyer said the defendant is appealing a judgment that was made by the Queens County Supreme Court on the 11th of January, 2008. The judgment found the defendant guilty of rape and course of sexual conduct against a child both in the second degree, first degree sexual abuse, and endangering the welfare of a child.

Case Background

The defendant was accused of engaging in sexual misconduct with his common law wife’s younger sister. The incidents occurred in between November of 1998 through May of 1999. The child was nine years old at the time the incidents occurred.

Additionally the defendant was charged with raping a child during the time frame of November through December of 2002. The incidents were not reported by the child until 2006. The child revealed the facts of the abuse to her mother at this time.

The defendant denied all of the accusations made by the victim. He stated that the child was mad at him for sending her away from Florida, where she had been living with them, to live with her mother in New York.

The defendant was convicted of rape in the second degree, sexual abuse in the first degree, course of sexual conduct against a child, and endangering the welfare of a child.

Case Discussion and Decision

The defendant is arguing on appeal that the Supreme Court committed an error that is reversible when they did not allow him to present two witnesses. A New York DWI Lawyer said the witnesses were a couple who resided in North Carolina. The husband was an old family friend according to the child.

The defense stated that the couple would have provided an account of taking the child from Florida to New York in which the child told the husband that the abuse did not occur. A Nassau County DWI Lawyer said the child also told the couple that she did not want to move to New York and wished to stay in Florida with her sister and the defendant.

This account is in contrast with the testimony given by the child where she denied making these statements to the witnesses. The child stated that the conversation with the witnesses was only about how she was doing and how school was.

The Court precluded these witnesses based on the fact that the testimony would have been collateral.

After reviewing the facts of the case we find that this basis for refusing the testimony of the witnesses was made in error. For this reason the court finds in favor of the defendant. The judgment will be reversed and sent back to the Queens County Supreme Court for a new trial in the matter to be conducted.

Do you need legal advice? Do you have a legal question? Contact Stephen Bilkis & Associates for answers to your legal questions. We offer free consultations in all of our offices located in New York City. You may call at any time to set up an appointment with one of our lawyers in order to discuss your legal issue and determine what your rights are in the matter.

July 6, 2012

Defendant Claims Right to a Speedy Trial was Violated

This is a case of appeal being heard in the First Judicial Department, Appellate Division of the Supreme Court of the State of New York. The People of the State of New York are the respondents. The defendant and appellant of the case is Clarence Williams who is also known under the name Fletcher Anderson Worrell.

A New York DWI Lawyer said the defendant is appealing a judgment that was made in the Supreme Court of New York County that convicted him of robbery in the first degree and rape in the first degree. The issue in front of the court is whether or not the statutory and constitutional rights of the defendant for a speedy trial were violated. The additional issue in this case is whether there should have been an inquiry of the jurors as to whether they had read anything in the newspaper about the trial before it began.


Case Background

This case involves a rape and a robbery that took place in 1973 in Manhattan. The defendant has a history of being arrested under several different names. One example is in August of 1972 he was arrested for possessing burglar’s tools and gave the name of Anderson Worrell. When he was arrested for rape in 1973 he gave the name Clarence Williams. At the time of the arrest for rape he stated that he did not have a criminal history.

While he was awaiting trial in this particular case the defendant was arrested for an attempted murder and rape that took place on the 18th of July in 1974 in Queens. He again gave his name as Anderson Worrell. The defendant was tried in this case as Clarence Williams in November of 1974. A mistrial was declared as the jury could not reach a verdict.

The defendant was tried as Anderson Worrell in Queens County and convicted of attempted murder and rape. He was sentenced to 10 years in prison. This verdict was eventually reversed and the defendant was returned to New York County for a warrant from the case from 1978. He claims that his right to a speedy trial was impaired.

Court Discussion and Decision

In the motion for speedy trial the defendant states that he was committed to St. Elizabeth’s Hospital in Washington D.C. from the years 1978 through 1981. However, a New York DWI Lawyer said the hospital records show that there was no one in there care under the name that was provided.

There is DNA evidence to show that between the years 1987 through 1991 the defendant committed 9 rapes and committed 2 more rapes in New Jersey in 1993.

The defendant argues that his right to a speedy trial was denied. However, the reason that he was not given a speedy trial was that the People were unable to find him.

His other argument is that an inquiry of the jurors before his trial. During his trial the defense requested a camera inquiry for the jurors to determine whether or not they had read the article that was written about the case in the New York Times. The Court denied this request.

After reviewing all of the facts of the case the judgment made by the Supreme Court during the trial and sentencing has been amended and the court affirms the judgment. A Nassau County DWI Lawyer said the sentence of the defendant is consecutive terms of 8 and 1/3 years to 25 years followed by 7 to 21 years.

If you are in need of legal advice of any kind contact the law offices of Stephen Bilkis & Associates. Our team will be happy to discuss all of your legal options with you. Our offices are located conveniently throughout New York City and you may call us at any time to set up a free consultation.

July 4, 2012

Defendant Contends Secretary of Judge was Bribed

This case is being heard in the Appellate Division of the Supreme Court of the State of New York, First Department. The matter involves the attorneys Seymour S. Detsky and Herbert S. Kassner, who are also the respondents in the case. The petitioners in the case are Michael A. Gentile and Jeremiah B. McKenna.

The petitioners of this case, Michael A. Gentile and Jeremiah B. McKenna were directed to act as counsel and investigate the existence of unethical and improper practices engaged in by the respondent attorneys. The improper practices include representing sexually oriented enterprises.

A New York DWI Lawyer said the petitioners have moved to confirm the order that was made by Referee Frank J. McNabb that recommends charges that were made against Herbert S. Kassner are dismissed. It is also recommended that respondent Seymour S. Detsky should be disbarred. This report was referred to the court by a Notice of Motion made by the petitioner and dated the 30th of December, 1982.

The respondent Detsky has made a cross motion for an order that disaffirms the report made by the referee and dismisses the petition. In addition, he wishes to be granted oral arguments in the chambers of the Appellate Division.

Case Background

Respondent Kassner has been in practice since the 21st of December, 1955. Respondent Detsky entered into practice on the fourth of March, 1946. During the time that the charges take place the two attorneys were in practice together as the law firm Kassner & Detsky. Their offices were located in the First Judicial Department.

The petition as began against the respondents on the 9th of May, 1980. There are three charges within the petition.

The first charge involves a violation of the Code of Professional Reliability. It is alleged that the respondents accepted a weekly retainer for $125 a week from Michael Foglio and Peter Johns who owned and operated a massage parlor. A New York DWI Lawyer said that in return for this retainer the respondents were to represent both Foglio, Johns, and any of their employees/prostitutes if any of them were arrested for prostitution or for permitting prostitution.

The second charge states that the respondents counseled Johns and his new business partner Murray Cohen in how their employees could solicit customers without being arrested by plainclothes police officers.

The third charge states that the respondents solicited and received a bribe to pay the law secretary of a judge in order to make sure that there was a favorable outcome in a criminal case.

Case Discussion and Decision

Frank J. McNabb was appointed as the referee for this particular case. He found that all three of the charges against Detsky were proven. There is overwhelming evidence supplied for the third charge of taking a bribe to pay a judge’s secretary. The respondent Detsky admitted to an undercover police officer that he had taken a bribe for $1000 to pay the secretary.

We find that all of the charges of Detsky are held true and the application for oral argument of the report is denied.

In regard to the respondent Kassner, the referee feels that all charges should be dismissed. A Nassau County Sex Crimes Lawyer said there is no evidence to support that Kassner knew anything about the dealings from charges one and two and that he had nothing to do with the bribe from charge three.

The court agrees with the referee in this matter and all complaints against Kassner are dismissed.

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July 3, 2012

Court Looks at Whether Agreement Between the Parties is Enforceable

This case involves the plaintiff Laura J. Donnell and the defendant Conrad Y. Stogel. The case is being heard during the IA term in the Queens County Supreme Court. The plaintiff is represented by David Grais from the law offices of Grais & Richards. The defendant is represented by William J. Davis from the law offices of Schulman, Berlin & Davis. Justice Edwin Kassoff is overseeing the case.

The action before the court is dealing with a contract that both the parties entered on 1982 when they stopped living together. The defendant has made a motion for the complaint from the plaintiff to be dismissed.

Case Background

The plaintiff, Laura J. Donnell married and separated from her husband in 1978. After she left her husband she went to live with the defendant, Conrad Y. Stogel. She was still married at the time. Her divorce was not finalized until November of 1980.

The plaintiff and the defendant lived together from 1978 through January of 1982. When their relationship ended, the two individuals signed a contract that was written by the defendant after he had consulted with an attorney.

A New York DWI Lawyer said that the contract stated that the couple had been living together for the past four years as a man and wife. During this period the plaintiff helped the defendant establish his business career. She worked without a salary during this time and helped create Markon Footwear. The contract provided the plaintiff with a salary for the next three years. The salary was set at $35,000 and was to be paid in monthly payments from January of 1982 through December of 1984. In addition, the contract provided an additional $35,000 per year from the first year that the company saw profitability.

The stipulation set in the contract was that the plaintiff was not allowed to marry during this time. If she were to get married she would stop receiving payments.

The plaintiff has only received $12,000 from the defendant. She is now suing him fro the remaining amount that she is owed under the contract. She states that this amount is a total of $192,500. A New York DWI Lawyer said this is the original contract amount of $87,500 plus a bonus of $35,000 per year for the three profitable years of the business. She acknowledges the fact that she is only entitled to the money owed to her up to the time of her marriage, which occurred in June of 1984.

Court Discussion and Conclusion

The defendant has made the argument that the contract is void as it was primarily made as an agreement to commit adultery, which is not legal in the state of New York.

The plaintiff states that the contract was made as a way for her to receive payment for the work that she did for the company. This work includes negotiating contracts, designing the logo for the corporation, and entertaining clients.

After reviewing the case, the issue is whether or not the contract is enforceable under the law. This case seems to be a first of its kind as the agreement was reached at the end of a relationship and there are other issues involved in regard to the relationship between the plaintiff and defendant. A Nassau County DWI Lawyer said separating the personal and business relationship in this situation is nearly impossible.

After careful review the court finds that this contract is neither severable nor enforceable.

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July 2, 2012

Defendant Alleges He Was Not Informed About Deportation

This case involves the People of the State of New York against the defendant, Hopeton Gooden. The case is being heard in the Supreme Court of the State of New York located in Bronx County. The defendant of the case has moved to vacate his judgment of conviction.

Case Background

On the 15th of May in 1975 a judgment against the defendant was entered that convicted him of robbery in the third degree. The defendant was then sentenced to a maximum imprisonment of four years.

On the second of June, 1987, the United States Department of Justice Immigration and Naturalization Service issued a warrant for the arrest of the defendant as an illegal alien in the country. The defendant is subject to deportation by this order. This order is a result of his conviction of robbery in 1975.

The defendant has now moved to have the judgment of conviction in the case vacated on the grounds that his Sixth and Fourteenth constitutional rights were violated. He states that his counsel did not inform him of the possibility of immigration consequences should he enter a plea of guilty in the case. He also states that his counsel failed to file an appeal notice on his behalf. He also states that the trial court did not inform him of the elements of the crime that he committed or find out if he understood the violation and agreement at the time.

The defendant is originally from the country of Jamaica. He was admitted to the United States as a permanent resident in 1969. On the 11th of October, in 1994, an immigration judge determined that the defendant is deportable based on his conviction of a crime that involved moral turpitude. The defendant requested a waiver and the waiver was denied. The defendant appealed in April of 1996 and the Board for Immigration Appeals remanded his case for further proceedings. The court ordered that the defendant be deported on the 11th of December in 2091. He was sent to Jamaica on the 24th of February, 2005.

The defendant returned to the United States unlawfully in November of 2007. He was charged on an indictment of being in possession of fire arms (gun crime), being an illegal alien in the country, and the intent of distributing marijuana in the United States. He was convicted of these crimes and sentenced by a jury to 27 years, 3 months, in prison.

Case Discussion and Determination

The main argument that is made by the defendant is that he was not properly informed about the possibility of deportation for his actions in the first case involving theft. However, the court has carefully reviewed all of the facts that are involved in this complicated case. It is found that the defendant did receive adequate information and assistance during his sentencing proceedings. The defense informed him of his rights to appeal and he was provided with information about the time limitations of appeals in regard to his particular case.

For these reasons, the court is denying the motion made by the defendant to vacate the judgment of his case. This is denied in all aspects of his particular case.

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July 1, 2012

Defense Claims a Reduction in Sentence is Merited

The respondent in this matter are the People of the State of New York. The People of the State of New York are represented by the office of Patrick Henry, District Attorney in Riverhead. Michael Blakey is their counsel. The appellant of the case is Alan M. Buckmaster. He is being represented by Alan Schneier from Valley Stream. The case is being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York.

This is a case for appeal initiated by the defendant in regard to a judgment that was issued by the County Court of Suffolk County. Judge Rohl issued the judgment being appealed. The judgment convicted the defendant of criminal sale of a controlled substance in the second degree. The defendant pled guilty to this crime.

Case Background

The defendant was indicted for selling and possessing a controlled substance in the first degree. These charges are class A-I felonies. A New York DWI Lawyer said these charges were made after the defendant sold almost 9 ounces of cocaine to an undercover officer on the 23rd of July, in 1986.

During the trial the defendant was given the option to plead guilty to the charges of criminal sale of a controlled substance in the second degree. This is considered an A-II felony. In return for the guilty plea the defendant was promised a term of imprisonment for five years to life. This sentence has been imposed.

Case Discussion and Decision

The defendant has raised two constitutional challenges in regard to his sentencing. He states that the sentencing statute that mandates a maximum life sentence for people that are convicted of class A New York DWI Lawyer said felony drug charges is in violation of the constitution. We find that this accusation is without merit. The mandatory maximum life sentence is not considered to be a grossly disproportionate sentence in terms of the crime that was committed. This means that the claim made by the defendant that the punishment for the crime is cruel and unusual is not valid.

The other claim that is made by the defendant is that the mandatory maximum sentence is an illegal deprivation of judicial discretion is also found to be without merit. It has been established that the Legislature is given a large amount of power in connection with prescribing both minimum and maximum sentences. A Nassau County DWI Lawyer said that while the maximum sentence in a case such as this is life, the legislation is given the power to institute a minimum sentence of anywhere from three to eight and a third years.

After carefully reviewing the case for appeal made by the defendant, the court is upholding the initial ruling made in the case. The facts of the case do not warrant any type of reduction in his sentencing as a matter of the interest of justice. The defendant pled guilty to the charges and agreed to the terms of the sentencing at the time he made this plea. This was in his benefit and he cannot argue the case any longer. The appeal is dismissed.

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June 30, 2012

Court Discusses Ability to Consent

The complainant, a 19-year-old woman, reported to the town police that she had been raped and sodomized at gunpoint on a deserted beach near her home. The complainant testified that at about nine that evening she had received a phone call from a friend, telling her that he was in trouble and asking her to meet him at a nearby market in half an hour. Twenty minutes later, the same person called back and changed the meeting place. The complainant arrived at the agreed-upon place, shut off the car engine and waited. A New York DWI Lawyer said she saw a man approach her car and she unlocked the door to let him in. Only then did she realize that the person who had approached and entered the car was not the friend she had come to meet. According to the complainant, he pointed a gun at her, directed her to the nearby beach, and once they were there, raped and sodomized her.

The complainant arrived home around 11:00 P.M., woke her mother and told her about the attack. Her mother then called the police. Sometime between 11:30 P.M. and midnight, the police arrived at the complainant's house. At that time, the complainant told the police she did not know who her attacker was. She was taken to the police station where she described the events leading up to the attack and again repeated that she did not know who her attacker was. At the conclusion of the interview, the complainant was asked to step into a private room to remove the clothes that she had been wearing at the time of the attack so that they could be examined for forensic evidence. While she was alone with her mother, the complainant told her that her male friend had been her attacker. The time was approximately 1:15 A.M. The complainant had known her friend for years, and she later testified that she happened to see him the night before the attack at a local convenience store.

Her mother summoned one of the detectives and the complainant repeated that the accused friend had been the person who attacked her. The complainant said that she was sure that it had been her friend because she had had ample opportunity to see his face during the incident. The complainant subsequently identified her friend as her attacker in two separate lineups. A New York DWI Lawyer said he was arrested and was indicted by the Grand Jury on one count of rape in the first degree, two counts of sodomy in the first degree and one count of sexual abuse in the first degree.

The woman’s accused friend’s first trial ended without the jury being able to reach a verdict. At his second trial, the Judge permitted an instructor at the City University with experience in counseling sexual assault victims, to testify about rape trauma syndrome. The prosecutor introduced the testimony for two separate purposes. First, the instructor’s testimony on the specifics of rape trauma syndrome explained why the complainant woman might have been unwilling during the first few hours after the attack to name the accused friend as her attacker when she had known her friend prior to the incident. Second, the instructor’s testimony that it was common for a rape victim to appear quiet and controlled following an attack, responded to evidence that the complainant woman had appeared calm after the attack and tended to rebut the inference that because she was not excited and upset after the attack, it had not been a rape. At the close of the second trial, the accused friend was convicted of two counts of sodomy in the first degree and one count of attempted rape in the first degree and was sentenced to an indeterminate term of 7 to 21 years on the two sodomy convictions and 5 to 15 years on the attempted rape conviction.

On July 7, 1986, the accused friend approached an 11-year-old complainant, who was playing with her friends in the City of Rochester. A Nassau County DWI Lawyer said the complainant child testified that the accused friend told her to come to him and when she did not, he grabbed her by the arm and pulled her down the street.

According to the complainant child, the accused friend took her into a neighborhood garage where he sexually assaulted her. The complainant returned to her grandmother's house, where she was living at the time. The next morning, she told her grandmother about the incident and the police were contacted. The accused friend was arrested and charged with three counts involving forcible compulsion--rape in the first degree, sodomy in the first degree and sexual abuse in the first degree--and four counts that were based solely on the age of the victim--rape in the second degree, sodomy in the second degree, sexual abuse in the second degree and endangering the welfare of a child.

At trial, the complainant child testified that the accused had raped and sodomized her. In addition, she and her grandmother both testified about the complainant child's behavior following the attack. Their testimony revealed that the complainant child had been suffering from nightmares, had been waking up in the middle of the night in a cold sweat, had been afraid to return to school in the fall, had become generally more fearful and had been running and staying away from home. Following the introduction of this evidence, the prosecution sought to introduce expert testimony about the symptoms associated with rape trauma syndrome.

Clearly, the prosecution, in an effort to establish that forcible sexual contact had in fact occurred, wanted to introduce this evidence to show that the complainant child was demonstrating behavior that was consistent with patterns of response exhibited by rape victims. The prosecutor does not appear to have introduced this evidence to counter the inference that the complainant child consented to the incident, since the 11-year-old complainant is legally incapable of consent. The evidence was not offered to explain behavior exhibited by the victim that the jury might not understand; instead, it was offered to show that the behavior that the complainant child had exhibited after the incident was consistent with a set of symptoms commonly associated with women who had been forcibly attacked. The clear implication of such testimony would be that because the complainant child exhibited the symptoms, it was more likely than not that she had been forcibly raped.

The Judge permitted an obstetrician-gynecologist on the faculty of the University of Rochester who has special training in treating victims of sexual assault, to testify as to the symptoms commonly associated with rape trauma syndrome. After the expert had described rape trauma syndrome, he testified hypothetically that the kind of symptoms demonstrated by the complainant child were consistent with a diagnosis of rape trauma syndrome. At the close of the trial, the accused was acquitted of all forcible counts and was convicted on the four statutory counts. He was sentenced to indeterminate terms of 3 1/2 to 7 years on the rape and sodomy convictions and to definite one-year terms on the convictions of sexual abuse in the second degree and endangering the welfare of a child.

As noted, the complaining woman had initially told the police that she could not identify her attacker. Approximately two hours after she first told her mother that she had been raped and sodomized, she told her mother that she knew her friend had done it. The complainant woman had known her accused friend for years and had seen him the night before the assault. Under the circumstances present, expert testimony explaining that a rape victim who knows her attacker is more fearful of disclosing his name to the police and is in fact less likely to report the rape at all was relevant to explain why the complainant woman may have been initially unwilling to report that the accused had been the person who attacked her. Behavior is not within the ordinary understanding of the jury and testimony explaining the behavior assists the jury in determining what effect to give to the complainant's initial failure to identify the accused. The evidence provides a possible explanation for the complainant’s behavior that is consistent with her claim that she was raped. As such, it is relevant.

Rape trauma syndrome evidence was also introduced in response to evidence that revealed the complainant child had not seemed upset following the attack. The reaction of a rape victim in the hours following her attack is not something within the common understanding of the average lay juror. Indeed, the defense would clearly want the jury to infer that because the victim was not upset following the attack, she must not have been raped. The inference runs contrary to the studies cited earlier, which suggest that half of all women who have been forcibly raped are controlled and subdued following the attack. Thus, the evidence is relevant to dispel misconceptions that the jurors might possess regarding the ordinary responses of rape victims in the first hours after their attack. The evidence of rape trauma syndrome, when admitted for purpose, is unduly prejudicial.

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June 29, 2012

Court Discusses Concept of Equal Protection

The Facts:

Sometime in 1978, defendant and his wife got married. In October of that year, shortly after the birth of their son, defendant began to beat his wife.
In early 1980, the wife brought a proceeding in the Family Court in Erie County seeking protection from the defendant.

On 30 April 1980, a temporary order of protection was issued to the wife by the Family Court. The defendant was ordered to move out and remain away from the family home, and stay away from his wife. A New York DWI Lawyer said the order provided that the defendant could visit with his son once each weekend.

On 21 March 1981, defendant who was then living in a motel did not visit his son. On 24 March 1981, he called his wife to ask if he could visit his son on that day. The wife would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up the wife and their son and the four of them drove to defendant's motel. When they arrived at the motel, the friend left. As soon as only the defendant, his wife, and their son were alone in the motel room, defendant attacked the wife, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the defendant forced his wife to tell their son to watch what the defendant was doing to her. The defendant allowed his wife and their son to leave shortly after the incident.

The wife, after going to her parents' home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant.
On 15 July 1981, the defendant was indicted for rape in the first degree and sodomy in the first degree; that defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in the presence of their 2 1/2 year old son; criminal law violations.

Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. A New York DWI Lawyer said the defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because of the Family Court order.

The defendant was then convicted of rape in the first degree and sodomy in the first degree and the conviction was affirmed by the Appellate Division.

The defendant appeals said judgment.

Defendant asserts that: the temporary order of protection is not the type of order which enables a court to treat him and his wife as "not married" and that thus he is within the marital exemption; defendant next asserts, assuming that because of the Family Court order he is treated just as any unmarried male would be, that he cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes are unconstitutional and that it is a violation of the equal protection clause since only men, and not women, can be prosecuted under it.

The Ruling:

The Penal Law provides, in relevant part, that a male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion. Female, for purposes of the rape statute, is defined as any female person who is not married to the actor. Further, a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person by forcible compulsion. Deviate sexual intercourse is defined as sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva. Thus, due to the "not married" language in the definitions of "female" and "deviate sexual intercourse", there is a "marital exemption" for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be "not married" if at the time of the sexual assault they are living apart pursuant to a valid and effective: order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or a decree or judgment of separation, or a written agreement of separation.

Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of "not married" to include those cases where the husband and wife were living apart pursuant to either a court order which by its terms or in its effect requires such living apart or a decree, judgment, or written agreement of separation. The court agrees with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations. The legislative memorandum submitted with the original version of the 1978 amendment, after referring to the situations brought within the scope of "not married", stated: In each of the alternatives set forth in this bill, there must be documentary evidence of a settled and mutual intention to dissolve the marital relationship, or a court determination that the spouses should, for the well-being of one or both, live apart. Although the language of the amendment was subsequently changed to the form in which it was enacted, this legislative memorandum was submitted with the final version of the bill. In addition to this clear statement of legislative intent, the plain language of the statute indicates that an order of protection is within the meaning of an order which by its terms or in its effect requires apart. This language would be virtually meaningless if it did not encompass an order of protection, as the statute separately provides for the other obvious situation where a court order would require spouses to live apart, i.e., where there is a decree or judgment of separation.

Thus, the defendant was properly found to have been statutorily "not married" to his wife at the time of the rape.

The defendant's constitutional challenges to the rape and sodomy statutes are premised on his being considered "not married" to his wife and are the same challenges as could be made by any unmarried male convicted under these statutes. The defendant's claim is that both statutes violate equal protection because they are underinclusive classifications which burden him, but not others similarly situated. A litigant has standing to raise this claim even though he does not contend that under no circumstances could the burden of the statute be imposed upon him. This rule of standing applies as well to a defendant in a criminal prosecution who, while conceding that it is within the power of a State to make criminal the behavior covered by a statute, asserts that the statute he is prosecuted under violates equal protection because it burdens him but not others.

Thus, defendant's constitutional claims are properly before the court.

Equal protection Issue; Marital Exemption:

Presently, over 40 States still retain some form of marital exemption for rape. While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals. Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon some ground of difference that rationally explains the different treatment.

The court finds that there is no rational basis for distinguishing between marital rape and non-marital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny.

Thus, the court declares the marital exemption for rape in the New York statute to be unconstitutional. Marital rape is no different than any other rape. In fact, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than any other rape.

Equal Protection Issue; Exemption for Females:

Under the Penal Law only males can be convicted of rape in the first degree. Insofar as the rape statute applies to acts of sexual intercourse, which, as defined in the Penal Law can only occur between a male and a female, it is true that a female cannot physically rape a female and that therefore there is no denial of equal protection when punishing only males for forcibly engaging in sexual intercourse with females. The equal protection issue, however, stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males.

Rape statutes historically applied only to conduct by males against females, largely because the purpose behind the proscriptions was to protect the chastity of women and their property value to their fathers or husbands. New York's rape statute has always protected only females, and has applied only to males. Presently New York is one of only 10 jurisdictions that do not have a gender-neutral statute for forcible rape.

A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective. This test applies whether the statute discriminates against males or against females. A Nassau County DWI Lawyer said the People bear the burden of showing both the existence of an important objective and the substantial relationship between the discrimination in the statute and that objective. This burden is not met in the present case, and therefore the gender exemption also renders the statute unconstitutional.

The very fact that a statute proscribes "forcible compulsion" shows that its overriding purpose is to protect a woman from an unwanted, forcible, and often violent sexual intrusion into her body. Thus, due to the different purposes behind forcible rape laws and "statutory" (consensual) rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former, and the People cannot meet their burden here by simply stating that only females can become pregnant. Moreover, discrimination cannot be justified for the reason that a female rape victim faces the probability of medical, sociological, and psychological problems unique to her gender. Further, the argument that a gender-neutral law for forcible rape is unnecessary, and that therefore the present law is constitutional, because a woman either cannot actually rape a man or such attacks, if possible, are extremely rare, is bereft of merit. Such a disparity would not make it permissible for the State to punish only men who commit, for example, robbery.

To meet their burden of showing that a gender-based law is substantially related to an important governmental objective the People must set forth an exceedingly persuasive justification for the classification, which requires, among other things, a showing that the gender-based law serves the governmental objective better than would a gender-neutral law. The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons "benefitted" by the gender exemption are females who forcibly rape males. As the Supreme Court has stated, gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.

Thus, the court finds that the subject section of the Penal Law violates equal protection because it exempts females from criminal liability for forcible rape.

In conclusion:

Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally underinclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly. The unconstitutionality of one part of a criminal statute does not necessarily render the entire statute void.

Now, the herein court’s task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness. The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute.
Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today. Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate the exemptions and thereby preserve the statutes.

Thus, the court chooses the remedy of striking the marital exemption and the gender exemption of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree.

However, the statutes under which the defendant was convicted are not being struck down. Henceforth, his conviction is affirmed.

The court’s decision does not create a crime but enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and creating a hiatus would have. Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute.

The defendant cannot claim that the decision to retain the rape and sodomy statutes, and thereby affirm his conviction, denies him due process of the law. The due process clause of the Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State. Defendant did not come within any of the exemptions which we have stricken, and, thus, his conduct was covered by the statutes as they existed at the time of his attack on his wife. It cannot be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on the court’s remedy by the notice requirements of the due process clause, and the prohibition against ex post facto.

Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to the decision. To reverse the defendant's conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. If the court were to reverse, no person arrested for forcible rape or sodomy prior to the date of the herein decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have their convictions vacated. As the equal protection clause does not require us to reach such a result, the court declines to do so.

Therefore, the order of the Appellate Division is affirmed.

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June 28, 2012

Rape Trauma Syndrome Discussed by Appellate Court

The Facts:

On 10 September 1988, the victim, a married college professor, was driving from her home to a family wedding when, at about 7:30 P.M., she was stopped on the Northway by defendant, then a uniformed State Trooper. At defendant's request, she gave him her license and registration. Defendant told her she was driving erratically and had failed to signal a lane change properly. He instructed her to leave her car, walk a straight line, and then enter the passenger seat of the patrol car, where he told her she could be in serious trouble, including DWI charges, and would have to blow in his face as a sobriety test. While she was doing this a second time, at defendant's behest, he put his mouth on hers, began fondling her, and told her he was going to make it or do it with her, but first had to go to State Police barracks for a condom. The victim followed defendant to the barracks in her own car, though he retained her license and registration. She testified that she remained terrified throughout this entire period believing that, with defendant armed, any escape attempt in an unfamiliar area would be futile and even fatal.

At the barracks, defendant placed the victim in the police car, instructing her to remain there while he went inside. She testified that she was still frozen with fear, not knowing whether defendant had friends in the barracks who knew what he was doing. On his return, they drove off while the victim, believing it vital to her safety, engaged defendant in conversation. When they reached a secluded area, defendant, still armed, sexually attacked her. He thereafter returned with her to the barracks and allowed her to proceed to her destination, where she explained to the wedding guests that she was late because of a car trouble. On her return home, after being unable to eat or sleep for two days, and overcoming her fear that defendant would harm her, the victim contacted a local rape crisis center, which ultimately led to a report to the State Police, an investigation, and defendant's arrest.

As a result, defendant was convicted of rape, sodomy, sexual abuse (sex crimes), coercion, false imprisonment and official misconduct.

Defendant appeals said decision and alleged two errors: the first relating to a pretrial ruling that would have permitted the People to cross-examine defendant regarding two other pending charges and the second relating to expert testimony regarding rape trauma syndrome.

A divided Appellate Division overturned defendant's conviction on the first issue and a Justice of that court granted leave to appeal.

The Issue:

Whether or not the trial court erred in its pretrial ruling that would have allowed the People to cross-examine defendant (if he testified in his own defense) regarding two other criminal charges that were pending against him.

The Ruling:

The court affirms the Appellate Division’s ruling.

On the issue of the Pretrial Ruling Regarding Other Pending Charges:
Defendant was indicted for official misconduct and criminal impersonation while awaiting trial. Those later charges arose out of defendant's efforts, after he had been suspended from the force, to obtain the victim's records from the Department of Motor Vehicles (DMV) by representing that he was a State Trooper investigating a crime in which she was a defendant.
Before trial on the rape charges commenced, the People advised defendant that, if he testified, they would cross-examine him about specified prior criminal and immoral acts affecting his credibility. On defendant's pretrial motion addressed to the permissible scope of cross-examination regarding those acts, the trial court precluded the People's cross-examination regarding complaints by other women that defendant, as a State Trooper, had for no reason pulled them over and engaged in inappropriate behavior. Additionally, the court limited the People's inquiry into two areas involving claims of assault by defendant's wife and mistress. As to the DMV incident, however, the trial court concluded that if defendant testified, he would be deemed to have waived his privilege against self-incrimination and exposed to cross-examination. Ultimately, defendant would not testify.

The Appellate Division determined that the trial court's ruling was erroneous, reversed the conviction, and ordered a new trial. The court observed that permitting cross-examination of a defendant regarding other pending unrelated charges, for credibility purposes only, unduly compromised defendant's right to testify in the case on trial and jeopardized the corresponding right not to incriminate himself as to the other charges. The Appellate Division further concluded that the People's attempt to invest the evidence with independent relevance aside from credibility did not bear up under scrutiny. The herein court agrees with both conclusions.
Defendants who take the stand, like other witnesses, place their credibility in issue, and, thus, may be cross-examined on past criminal or immoral acts affecting credibility. Recognizing the importance of a defendant's informed choice whether or not to testify, the court held that a defendant is entitled to a pretrial ruling on the scope of permissible cross-examination as to such prior misconduct. A ruling, which balances the probative value of the evidence against the risk of unfair prejudice, is largely, if not completely, a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, and generally no further review by the Court is warranted. While per se rules in this area are eschewed, where defendant's misconduct is another pending criminal charge, a more categorical approach is appropriate because of the constitutional protections against self-incrimination. Cross-examination on an unrelated pending criminal charge, solely for the purpose of impeaching defendant's credibility, is impermissible. As the court held in one of its rulings: Allowing a defendant-witness' credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant's right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.

Here, at its “Sandoval” hearing, the People urged that cross-examination regarding defendant's alleged unlawful attempt to obtain complainant's driving records was appropriate because it went directly to the issue of defendant's credibility. The court unambiguously held in a similar case that a defendant-witness does not generally and automatically waive the privilege against self-incrimination as to pending collateral criminal charges. The authority of the previous ruling decided nearly two years before trial, the People should therefore have been denied permission to cross-examine defendant on those charges.

Moreover, the Appellate Division majority also correctly rejected the People's alternative claim that the DMV incident was related to the rape charges, as evincing a consciousness of guilt. The court need not reach the question whether consciousness of guilt could ever be a sufficient nexus to permit cross-examination under the applicable prior ruling because the pending charges do not evidence defendant's consciousness of guilt.

Certain post crime conduct is indicative of a consciousness of guilt, and hence of guilt itself. In another case involving evidence of flight noted that such evidence betrayed an awareness of guilt. Consciousness of guilt evidence has consistently been viewed as weak because the connection between the conduct and a guilty mind often is tenuous. Even innocent persons, fearing wrongful conviction, may flee or lie to extricate themselves from situations that look damning. However, the issue here is not sufficiency but admissibility of evidence. Even equivocal consciousness-of-guilt evidence may be admissible so long as it is relevant, meaning, that it has a tendency to establish the fact sought to be proved; that defendant was aware of guilt.

The court agrees with the Appellate Division that defendant's conduct at the DMV did not reach the threshold for admissibility as consciousness of guilt. The People contend that defendant's attempt to secure the victim's driving records was a natural step in an effort to harass or intimidate her. This argument overlooks the absence of any evidence, the crucial "next step", that defendant actually intended to coerce the witness. Such a conclusion would not be a reasonable inference from the attempt to obtain driving records but would be pure speculation. Indeed, it is a common part of the defense process to investigate the background of adverse witnesses for potential impeachment material. Such efforts alone would generally not constitute a consciousness of guilt. However, the People claim that the method defendant used to obtain the information, misrepresentations and false statements, is analogous to the false statements and alibis that have been admitted as consciousness of guilt. Defendant's misrepresentations to the DMV clerk that he was an active State Trooper investigating the victim are not the sort of false statements about a crime that would be admissible as consciousness of guilt. No valid inference could be drawn from the deceptions that defendant was manifesting an awareness of guilt on the rape charges. The court fails to see the asserted analogy between defendant's conduct and tampering with or fabrication of evidence.

Henceforth, the Appellate Division is correct in its finding that the trial court committed reversible error necessitating a new trial in its pretrial ruling.

On the issue of Rape Trauma Syndrome Expert Testimony:
The People's final witness on its case-in-chief was a doctor, an expert on rape trauma syndrome.

Here, the Appellate Division found no error in this examination, concluding that the purpose of the testimony was a permissible one: to explain behavior on the part of the victim that might seem unusual to a lay jury unfamiliar with the patterns of response exhibited by rape victims.
The court notes the herein case is somewhat different than that ruling relied upon by the Appellate Division and certain arguments defendant advances about that difference may have relevance to the retrial.

In the instant case, a large part of the expert evidence concerned the victim's behavior as the sexual attack unfolded, rather than after it. The expert opined that the hypothetical woman, and women generally, when threatened by an armed authority figure would submit, without resistance, to the sexual attack described, as a means of self-preservation. Thus, defendant correctly notes that the first two hypotheticals were not concerned with the rape trauma syndrome evidence as described, which related to post-rape behavior. While this portion of the doctor’s testimony is not precisely the type of testimony discussed in the applied court ruling does not mean that such evidence would necessarily be inadmissible. It is sufficiently distinct from the kind of evidence the court has considered in the applied court ruling, however, the court’s holding in that case does not govern its admissibility here. Assuming such expert evidence is again offered, and the objection lodged, the court should determine at retrial whether the expert's opinion has the requisite scientific foundation. Even where that foundation is established, expert evidence is not in all instances admissible. While proper to help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror, expert opinion is inadmissible when introduced merely to prove that a sexual assault took place, or bolster a witness' credibility. In such instances, the potential value of the evidence is outweighed by the possibility of undue prejudice to the defendant or interference with the province of the jury.

Therefore, should similar expert testimony be proffered at a retrial of the herein case, and objection voiced, the trial court would be called upon to make two determinations not previously made: first, whether the evidence has the requisite scientific basis, and second, whether its potential value outweighs the possibility of undue prejudice to defendant or interference with the jury's province to determine credibility. In that these determinations are fact-intensive, and the outcome may vary with the scope and form of actual questioning, at this juncture the court merely identifies the issues, which, contrary to the observation of the Appellate Division, were not addressed in the applied court ruling.

In conclusion, defendant's conviction is reversed and a new trial is proper.

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June 28, 2012

Defendant Brings an Appeal for Incest Charges

The accused was indicted for rape, assault and incest. The complainant is his thirty-six year old half-sister. The court dismissed the first count of the indictment charging rape by force, and the jury found the accused guilty of the remaining count of rape under the Penal Law, assault and incest.

A New York DWI Lawyer said he accused moved for an order arresting the judgment of conviction and setting aside the verdict of guilt as to the rape and incest on the ground that it was contrary to law and against the weight of the evidence. No effort is made to disturb the verdict of guilty of the simple assault.

The accused contends that the jury, by finding him guilty of simple assault only, negated any intent on his part to commit a rape. He also contends that the crime of incest could not arise from the gluttonous act, upon which the jury based its finding, the essence of such crime being an act of intercourse arising from the mutual consent of relatives within the prescribed line of consanguinity set forth in the Penal Law.

Since it is well established that when the accused has conceded the court's jurisdiction by proceeding to trial, judgment after conviction may be arrested only for defects in the indictment the motion will be treated as an application for a new trial pursuant to the Code of Criminal Procedure.

There was ample evidence to support the jury's finding that the accused was guilty of rape. The complainant testified to a state of facts from which the jury, if it believed her, could find beyond a reasonable doubt that her resistance was prevented by fear of immediate and great bodily harm which she had reasonable ground to believe would be inflicted on her.

The evidence presented by the State showed that on the day in question a series of events took place in the bedroom of the complainant, starting with a physical assault upon her which did not involve any attempt or apparent intent to have intercourse with her. A New York DWI Lawyer said after a lapse of time during which the complainant and the accused were engaged in what the complainant testified was an effort upon her part to reason with the accused in order to prevent further injury to her person and to reconcile their differences, an act of intercourse took place.

Since the first event was accompanied by a threat to kill the complainant under conditions which portrayed the accused as frothing at the mouth and raving like a madman, the jury could well have decided, and undoubtedly did decide, that while the accused during the first stage or phase of the events lacked any intention to commit a rape, such actions nonetheless instilled in the complainant a reasonable fear of immediate and great bodily harm which she continuously harbored until and during the time of the accused man's successful efforts to engage her in sexual abuse. In short, in the state of the evidence produced upon the trial, there was no inconsistency in the verdicts of first degree rape and simple assault as distinguished from felonious assault.

On the count alleging incest, the jury was instructed, in substance, that the gravamen of the offense was an act of intercourse with a relative within the prescribed line of consanguinity. The jury was further instructed that if rape was to be the basis for a finding of incest, corroboration of the testimony of the complainant was necessary and that if mutual consent to an act of sexual intercourse was to be the basis for such a finding, there would also have to be corroborative evidence tending to connect the accused with the commission of the crime, since under such circumstances the half- sister would be an accomplice. A New York DWI Lawyer while there was no exception to the charge and it is not directly challenged, or is it even the subject of comment by the accused, its accuracy is nonetheless involved in the accused man’s contention that the jury's verdict is contrary to law because an incestuous act presupposes mutual consent.

The contention that where the crime proved was also rape, the accused could not be charged with incest, was raised at a later date. While the court held that the evidence did not sustain the charge of rape, there is implicit in the court's decision at least a tacit acquiescence in the contention for it held that the point could not be raised for the first time on appeal, the case having been tried and submitted to the jury upon the theory of incest.

While the court may be reluctant to depart from the law laid down in prior decisions of the court which are directly in favor of a later ruling which can be arrived at only by implication, the implications of the later decisions can be so irresistible that they become self-evident. If, therefore, there may be incest arising from proof of a statutory rape with a relative within the prescribed line of consanguinity, there may be incest arising from proof of first degree rape with such a relative. There is consent in neither. There is force, either actual or implied in law in both. The jury was, therefore, justified in returning a verdict of guilt as to both rape and incest and the charge was proper. The motion is denied.

Family members are supposed to make each other feel secure, but if you feel otherwise towards a family member, feel free to call the office of Stephen Bilkis and Associates and discuss your legal options with a New York Sex Crime Lawyer together with a NY Criminal Attorney.

June 27, 2012

Attorneys Argue Issue of Consent

The Facts:
On 21 May 2008, as amended on 28 May 2008, defendant was convicted by the Supreme Court, Bronx County of rape in the third degree, a criminal law violation. He was sentenced as a second felony offender to a term of 2 to 4 years.

The Ruling:
Defendant, who was indicted for numerous crimes including forcible rape, was only convicted under a count of the indictment charging third-degree rape pursuant to Penal Law. A New York DWI Lawyer said as part of the Sexual Assault Reform Act, the Legislature established a theory of rape in which the victim's lack of consent is by reason of some factor other than incapacity to consent. Lack of consent for purposes of this crime occurs where the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.

Here, the verdict was based on legally sufficient evidence and was not against the weight of the evidence. The jury's mixed verdict does not warrant a different conclusion. The victim testified that she repeatedly told defendant that she wanted to leave and that she was crying the whole time. Thus, her words and actions clearly expressed an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that she was not consenting, particularly when viewed in light of defendant's own actions throughout this encounter, which began when defendant forced her to his apartment. The victim's requests to leave were clear expressions of her unwillingness to engage in sexual activity.

Under the law, third-degree rape also has several unusual procedural aspects. A New York DWI Lawyer said the statute specifically provides that this type of third-degree rape is not a lesser included offense of any other crime, including first-degree rape. However, such offense may be submitted as a lesser included offense of the applicable first degree offense when there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater offense and both parties consent to its submission.

Although defendant opposed submission of the third-degree rape count on which he was convicted at trial, (as well as other third-degree counts of which he was acquitted), he did so only on the ground that the evidence did not support the third-degree counts. Hence, he did not preserve his present claim that even though it was a separate, preexisting count of the indictment, the court was still obligated to obtain his consent before submitting the third-degree count of which he was convicted, and the court declines to review this claim in the interest of justice. As an alternative holding, the court also rejects it on the merits. A Nassau County DWI Lawyer said the court did not submit the third-degree count as a lesser included offense of the first-degree count, but as a separate count of the indictment, a situation not addressed by law. Furthermore, this separate count was not a lesser included offense of the first-degree rape count, but was instead a non-inclusory concurrent count. As noted, the statute expressly declares that this type of third-degree rape is not a lesser included offense of forcible rape. Moreover, even without this legislative declaration, the court notes that although forcible compulsion generally implies that the victim did not consent, a person could commit forcible first-degree rape without necessarily committing the particular type of third-degree rape criminalized under Penal Law. For example, a person might demand sexual intercourse while making a death threat, causing the terrified victim to submit immediately, without ever doing or saying anything to express lack of consent, as required by Penal Law.

Prior to summations, although the court indicated that it would not allow defense counsel to argue that the victim had consented, counsel ultimately was able to make this point by repeatedly telling the jury that the victim was not telling the whole story, that the defendant's actions were inconsistent with those of a rapist, and that the victim was not forced to do anything. Hence, any error in the court's pre-summation ruling was harmless. Since defendant did not argue that he was constitutionally entitled to make the proposed argument, he did not preserve his constitutional claims, and the court declines to review his claims in the interest of justice. Alternatively, the court also rejects those claims on the merits, and finds the alleged error to be harmless in any event.

New York Criminal Attorneys are available to assist you at Stephen Bilkis & Associates. We provide free legal consultations to those who need it. Call us and converse with our New York Arrest Attorneys, New York Rape Attorneys, etc. Consult with us. Know your legal rights and the remedies available.

June 26, 2012

Defendnt Claims Jury Was Prejudiced Against Him

A female civilian employee at a correctional facility was walking down a hallway reserved for civilian employees only. Suddenly a man came up behind her and put his hand over her mouth. The woman struggled to free herself and asked the man what he wanted. He did not reply. He then slammed the woman down and she lay on her belly on the floor. The man pushed a sock or towel in to her mouth but the woman struggled and the sock/towel fell out and she screamed.

A New York DWI Lawyer said the man put the sock/towel in her mouth again and pushed it into her throat. All the time, the man was behind the woman so she did not see his face. He straddled the woman and started tying her hands together. The woman struggled again and managed to free her hands. She bit the man but the man overpowered her when he grabbed her hair and managed to pin her down once more.

Unknown to the woman, the man who was tying her up had already ejaculated in his pants even before he could pull the woman’s clothes off. His semen was found on the sock/towel which was shoved into the woman’s mouth. It was on the back of the woman’s shirt and on the inmate’s prison clothes.

A male co-employee of the woman heard her scream and went to look for her. A New York DWI Lawyer said he saw the man straddling his co-worker who was lying prone on the floor and the man was tying up his co-worker with strips of white cloth. The man ran toward the male employee and the male employee tripped the inmate. They engaged in a brawl and the male employee had his head bashed against the wall.

The inmate went running out toward the yard as the male employee sounded the alarm. The guards in the yard asked the inmate what he was doing in the yard and he couldn’t explain himself coherently. He was profusely sweating, he was panting and when the male employee came out to the yard accompanied by the guards, he identified the inmate as the one he saw tying up the hands of the civilian employee.

The sock/towel, the strips of cloth and the tape were all gathered and compared to the sock/towel, strips of cloth and tape which were all found in the one-man cell occupied by the inmate.

The female employee suffered bruises and abrasions all over face and arms. The male employee suffered a concussion. The District Attorney filed charges for attempted rape in the first degree, assault in the second degree.

During his trial, the inmate refused to be represented by a lawyer. He represented himself. The inmate was in the correction facility serving a prison sentence of 25- 50 years for conviction on two counts of rape in 1996, sodomy, robbery and burglary. During the trial, the inmate asked that he not be shackled. The judge agreed but the judge insisted that he wear leg irons. The court offered to put a curtain around the desk for the defense so that the jury will not see that he was wearing leg irons but the court reasoned that the inmate will not be able to go near the judge for sidebars without the jury seeing the he was in leg irons so the court did not put curtains around the table for the defense.

The trial proceeded without any comment or objection of the accused and the jury saw the leg irons wore by the accused.

During the cross-examination by the inmate of the female employee, he asked the female employee if he ever groped her private parts. The female employee said he did not. The inmate also asked her if the inmate tried to insert anything in her private parts and the female victim answered in the negative.

The inmate also cross-examined the doctors who testified as to the injuries sustained by the male and the female employees if the injuries were serious enough to have likely caused their death and the doctor testified that the injuries were not serious enough to cause death.
The jury convicted the inmate on all the charges of attempted rape, assault with intent to rape. The inmate appealed his conviction to the Appellate Division on the ground that the trial court judged seriously erred when he allowed him to appear before the jury in leg irons. He claimed that this prejudiced the jury against him. The Appellate Division upheld the conviction for assault with intent to rape but reversed the conviction for attempted rape. The Appellate Division however granted the People the right to appeal from its reversal of the attempted rape conviction.

On appeal to the New York Supreme Court, the Court held that ordinarily, an accused should not be allowed to appear in court before a jury while shackled because the accused has a right to be presumed innocent. A Nassau County DWI Lawyer said if the jury sees him in shackles, the jury may be influenced to think that he is guilty even before they hear the evidence against him; or the jury will be prejudiced to think him predisposed to guilt because he is in shackles.
The Court also held that this rule has exceptions as when the accused has been convicted of other crimes and is serving a sentence for violent crimes and now stands charged anew with crimes committed during the service of his prison sentence. There is also an exception when the court feels that the security of persons in the courtroom is best served by keeping the accused in shackles. The Court held that these two exceptions were present in the case and the trial court would have been correct in ruling to keep the accused in shackles but the Court also emphasized that the trial court erred only when it failed to make a written ruling of his findings and his decisions to keep the accused in leg irons during the trial.

The Court also held that while the trial court committed error, the error may be harmless if the Prosecution can prove that the shackling of the accused did not prejudice the jury against him.
The Court held that in this case, the evidence of the inmate’s guilt was overwhelming that the jury would have found him guilty even if were or were not in leg irons during the trial.

Moreover, the Court opined that the jury understood from the facts of the case that the accused was an inmate of a jail and would have concluded that he was in leg irons more for preventing his escape than it was because he was guilty or capable of violence.

The Court also ruled that the reversal by the Appellate Division of the attempted rape conviction was error. There was sufficient evidence that had the male employee not interrupted the inmate, he would have succeeded in raping the female employee. The Court cited the evidence: the inmate came prepared with a sock/towel and strips of cloth and tape to restrain the female employee. The inmate was seen several times in the corridor loitering: he was obviously waiting for the female employee. He also already ejaculated even before he could undress or penetrate her. His semen was found in the back of the female employee’s shirt and on the inmate’s prison uniform. From these pieces of evidence, the intent to rape can be inferred. Thus, it is not unreasonable to also infer and conclude that the assault was not only with intent to rape, the inmate attempted to rape the female employee and would have succeeded if he had not been interrupted by the male employee.

The Court upheld the conviction of the accused for the assault with intent to rape and reversed the Appellate Court’s order reversing his conviction for attempted rape. The case is remanded for sentencing.

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June 25, 2012

Defendant Say He Cannot Be Indicted on Uncorroborated Testimony

The fifteen year old alleged kid victim related that on July 13, the accused approached him in back of a store and started to talk to him about different things, such as drugs and pinball machines. The accused reached into his pocket for some old coins. He accused the kid of having stolen the coins. He made the kid believe that he did a telephone call to a man pretending audibly that the man on the telephone owns a store and was missing the coins which the kid possessed. The accused borrowed money from the witness; bought a bottle of wine and walked with the kid to the river. A New York DWI Lawyer said he accused man forced the complainant kid to drink some of the wine, after which he removed the kid's clothes and reciprocal oral sodomy took place, as well as other forms of deviate sexual intercourse. The kid participated under fear of bodily harm, remembering stories of kids being killed down by the river. Following the experience, they walked away from the river and the kid succeeded in running away from the accused man. He arrived at a gas station and wanted to call his home or the police, but was unsuccessful because of lack of money. He then walked home and reported his experience to his Grandmother and Father and then to the police.

The gas station owner testified that the alleged kid victim came running to his gas station and asked to borrow a dime to call the police. The kid told the witness of having been attacked down by the river. The kid appeared to be shook up, nervous and he wasn't crying. He pointed out a man in a white shirt and dark pants who he said had just attacked him, but the witness stated that he would not be able to identify him.

A gas station employee was the last witness to testify. A New York DWI Lawyer said he was employed by the store in which the alleged victim and the accused man appeared and the telephone call was made concerning the old coins. He confirmed what the kid, the alleged victim, had previously told the Grand Jury with respect to the accused man's audible conversation with a man concerning missing coins. After the phone call, they walked out of an entrance way that leads into an alley and the boy seemed to be arguing he didn't do it, and he kept his hand on the shoulder and pushed him out the back entrance.

The accused man, by indictment, has been accused committing two criminal acts, the crime of sexual abuse and the crime of sodomy. The said criminal acts are described in separate sections of Article 130, entitled Sex Offenses, of the Revised Penal Law. The indictment accuses the accused man of violating the penal law. The section provides that a person is guilty of sexual abuse when he subjects another person to sexual contact by forcible compulsion. The second count of the indictment accuses the accused man of violating the law which provides that a person is guilty of sodomy when being 21 years old or more, he engages in deviate sexual intercourse with a person less than 17 years old.

The accused man has moved for a dismissal of the indictment on the ground that there was no sufficient evidence presented before the Grand Jury to sustain it. He cites that the Revised Penal Law, being a part of the aforementioned Article 130, which provides, in substance, that no person shall be convicted of any offense defined in said Article solely on the uncorroborated testimony of the alleged victim. As stated above, both criminal acts are contained within the said Article 130 and accordingly are subject to the application of said law requiring corroboration of the alleged victim's testimony. The insufficiency of the indictment, the accused man maintains, is found in the lack of evidence before the Grand Jury corroborating the testimony of the alleged victim. He reasons and argues that if a person cannot be convicted of the crimes without such corroboration, then an indictment must not stand against him which was found without corroboration which satisfies the requirement spelled out in so many words.

The presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary. The isolated issue is whether the Grand Jury Minutes disclose evidence sufficient to corroborate the testimony of the alleged victim and thereby satisfy the requirement of corroboration. A Nassau County DWI Lawyer said a review of the Minutes of the Grand Jury pertinent to the issue is obviously a demanding requirement.

The Code of Criminal Procedure provides that the grand jury ought to find an indictment when all the evidence before them, taken together, is such as in their judgment would, if unexplained or un-contradicted, warrant a conviction by the trial jury. The evidence before the Grand Jury, in order to sustain an indictment, must be sufficient to convict the accused man, otherwise, the accused should not be put to trial, and the indictment should be dismissed.

Kids are more prone to being taken advantaged off because they trust everyone around them. When kids’ trusts are broken, it would create a negative effect in their personality. The NY Sex Crime Lawyers and the New York Criminal Attorneys from Stephen Bilkis and Associates can help kids to defend themselves from those who offended them and to make sure that such things would not happen again.

June 24, 2012

Court Discusses How an Individual Under Age 17 is Unable to Give Consent

The man is charged with the offense of rape in the first degree and incest. However, the man moved his legal action for certain relief, discovery and inspection as well as dismissal of the accusatory instrument.

The man alleged that the provisions of penal law are unconstitutional and therefore the first count of the instant charge is defective and the motion to dismiss is proper.

A New York DWI Lawyer said the man based his argument on the constitutional guarantees of equal protection of the laws and due process of law under the applicable constitutional provisions. The two pronged attack states first that the statute is gender based and the format of that law therefore penalizes males because of their sex, while females similarly situated are not affected. It also denies to young male potential victims the protection it affords to young women, all without reasonable cause. Moreover, the counsel of the man further asserts that the law distinction in the instant case is based upon archaic notions and sexual stereotypes and cannot survive rational analysis.

The man consequently argues that since by its language considered a person incapable of consent if under 17 years of age. The court apparently does not find any violation of man's right to due process under either federal or state constitutional guarantees. Indeed, under the alleged factual allegations, the rape victim is a female, 10 years of age, and the law is well within one of the stated purposes of the penal law. A New York DWI Lawyer said if the legislature, in its wisdom can provide for the legal incapacity of persons under 16 to be criminally responsible for adult crimes they may commit, they are surely justified in protecting certain persons from sexual abuse on a similar rationale. The man's motion to dismiss the indictment as legally defective on this ground is denied.

The man’s argument about the clause of denial of equal protection in the constitutional sense has been previously met on the same issue by the same. For the reasons exhaustively and briefly stated that the court denies the man's motion to dismiss the instant charges as being defective and holds that the classification inherent in the rape law is a rational and reasonable distinction by the legislature and such statute is not unconstitutional. The court is not disposed to disregard the physiological reality in favor of man's cavalier assumption that such a proscription is archaic and grounded in sexual stereotypes.

The man’s counsel’s assertion that at the age of ten, the average female is proportionally larger, stronger and more mature than the average male, however, the penal law does not legislate against a 10 year old boy raping a 10 year old girl. A Nassau County DWI Lawyer said the 10 year old boy would not be criminally responsible for his actions. Based on records, the first stage of rape reached by the decree would be the 16 year old male having sexual intercourse with, in the facts of the case, a 10 year old girl. The court suggests that the man’s counsel may search high and low and will not find any such voluminous authority which would show that the average 10 year old female would be larger, stronger and more mature than an average 16 year old male.

Evidently, such a sanction becomes even more rationally necessary as the age difference varies. Another allegation in the in the charges of incest and the court consequently can only assume that man is much older than 17 if he has a 10 year old daughter. Throughout, the penal law makes a viable sociological recognition of social and sexual realities based upon the respective ages of the parties.

Younger people nowadays engage in sex and this is why they also involved themselves with sex related crimes. Some people with mental illness commit crime because of their condition but sometimes they intentionally commit unlawful actions and used them as an alibi. If you want to help your loved one with their problems regarding the crime they committed, you can ask the NYC Criminal Lawyers or NYC Sex Crime Lawyers at Stephen Bilkis and Associates to represent them with their lawsuits.

June 23, 2012

Court Discusses Rape Trauma Syndrome

A 19-year old woman received a phone call from a male friend who told her that he was very upset and wanted to talk to her in person. The 19-year old borrowed her mother’s car and went to the parking lot where she agreed to meet her friend.

As she was waiting in her car which was parked, a man approached her car. Thinking that the man was her friend Paul, she unlocked the doors of her car. The man came into the car and held her at gunpoint. The woman recognized the man as a man who lived in their neighborhood whom she saw everyday and whom she knew by name.

A New York DWI Lawyer said he then told her to drive to a beach. When they got there, he sodomized her two times and attempted to rape her. This sexual assault lasted for three quarters of an hour. The man then told her to drive back to the parking lot.

The 19-year old went home, woke her mother up and told her of the sexual attack. She said she was afraid for her life. The mother called the police and the police arrived shortly. By the time the police got to their house, the woman was sobbing and she was hysterical. She was able to describe her assailant to the police.

The police officer who responded drove the mother and the 19-year old to the police station. On their way to the police station, the police officer took the 19-year old and her mother to the exact same spot where she parked and the police officer was able to elicit from the woman the license plate she remembered that the man’s car had. A New York DWI Lawyer said the police officer tried to retrace the route that the woman drove to get to the beach when she was ordered by the man to drive at gunpoint.

At the police station, the woman was interviewed and her interview was recorded by the police. She told them how phone calls lured her from her house and how the man held her at gunpoint and made her drive. She gave details of the rape although the details were not in chronological order. She repeated some details, she remembered some details more clearly than other details; she was highly emotional as she was recounting the events. The police officer asked the girl if she knew her attacker and she said she did not know him. The police officer then turned off the tape recorder.

The police directed the woman to a changing room and asked her to remove her clothes so that her clothes can be used as evidence. After she finished changing, her mother asked her if she could remember any more details that could help the police and the woman just blurted out the name of the guy and she said after blurting his name that it was that guy who raped her.

The police then took the woman and her mother to the hospital where a nurse assisted her. A Nassau County DWI Lawyer said the nurse testified that the 19 year old was distraught, pale, disheveled, and she stammered when she spoke.

The defendant was arrested later. He was identified by the 19 year old in a line-up as the man who raped her. The charged with sodomy and attempted rape but the first trial concluded when the jury was hung.

The defendant asked that the case not be tried in criminal court but in the Supreme Court of the county instead because of the obvious bias and prejudice against him. He also asked that the district attorney be disqualified and a special prosecutor be assigned to prosecute his case. He also asked that the police officer be reprimanded for having destroyed the tape recording of the interview of the 19 year old immediately after the rape.

During the second trial, the People presented a psychiatrist who testified as an expert witness. She gave an explanation as to why the 19-year old failed to state the name of the man who raped her and only remembered his name hours after the rape had occurred.
The expert witness testified that most rape victims suffer from rape trauma syndrome. She testified that rape trauma syndrome comes in two phases: the first stage is the acute stage which comes immediately after the attack. This lasts for a few weeks. The second phase is also called the reorganization phase where the raped woman is recovering from the rape and she is attempting to move on with her normal life.

The psychiatrist also testified that there are three patterns of reaction to a rape which is typical of raped women: first a woman undergoes a behavioral stage where she may either be hysterical or unusually calm and quiet; the second reaction is when the woman experiences real physical pain and physical symptoms such as burning and itching while urinating, stomach upset, nervous palpitations and restlessness. The third reaction is the psychological stage where the woman is gripped by specific fear of the rapist coming back to rape her again if she brings a complaint against him.

She also testified that the 19 year old rape victim’s immediate recollection of what happened during the rape that had just occurred may be disorganized because of the emotional upheaval and anxiety she feels.

The People presented the expert testimony to explain to the jury why the woman could not at first recall the name of the man who raped her. The defendant opposed the admission of the expert testimony into evidence. The accused contended that the expert’s testimony propped up the victim’s faulty and incredulous testimony.

The question before the Court is whether or not the expert testimony as to the rape trauma syndrome was correctly admitted into evidence.

The Court in upholding the trial court’s order admitting the expert testimony into evidence held that expert testimony may be admitted in the sound discretion of the court if the testimony can clarify issues for the jury which require professional or technical knowledge that the jury (made up of average men and women) cannot have in their daily experience.

The Court held also that not all rape victims react the same way as the expert testified: the shame guilt or fear of each rape victim is unique. Because each rape victim has a unique reaction to rape, the experts have investigated these reactions scientifically. The jury would not be able to understand the prevalent reactions of rape victims as they may not have come across rape victims in the ordinary course of their experience.

The Court also held that the expert merely testified as to what the common reactions of victims of rape have and she also explained that in her opinion, the 19 year old woman here suffered from the rape trauma syndrome. The presentation by the prosecution of an expert did not prejudice the jury against the accused. The accused was given the opportunity to cross-examine the expert presented by the prosecution and the accused was also free to call in his own experts who can give an opinion that the 19 year old was not suffering from rape trauma syndrome.

The conviction of the accused was upheld.

Are you accused of rape? You need a New York Criminal Lawyer to help you defend yourself. A New York City Criminal Lawyer can help you present evidence that can prove your innocence. A NYC Criminal attorney can also present evidence that raises reasonable doubt. Call Stephen Bilkis and Associates today, come and speak with any of their NY Criminal attorneys at any of their offices in the New York area,

June 22, 2012

Defendant Convicted of Conspriracy Brings Appeal

There is no secret to the fact that the federal government has many different organizations that are created with the intent of preserving the nation’s laws and integrity. One of the groups that were tasked with taking action against subversive groups was created in 1912 under the name of the Radical Bureau. A New York DWI Lawyer said the group changed names numerous times over the following years; in 1915, it was called the Neutrality Squad; in 1923, it was the Radical Squad; In 1931, it was the Bureau of Criminal Alien Investigation. By the time that 1945 rolled around, it was the Public Relations Squad. However, in 1946 the name was changed again, and it became the Bureau of Special Services and Investigations. By 1955, the name was the Bureau of Special Services, often referred to as the BOSS agency. During the 1950’s, the focus of BOSS was to investigated communists, by the 1960’s the agency had given up most of the Communist detection had shifted to the FBI leaving BOSS with little to do.

The 1960’s saw an increase in domestic terrorism groups that served as a shot of life for the BOSS agency. However, in 1969, BOSS would be busy with many different organizations especially the domestic terrorists within the American black community. One case that BOSS was integral in putting together involved a case that was called the Panther 21 and was the longest running case in American history. In that case, one of the defendants claimed that the evidence against him was obtained by illegal actions and as such, must be excluded from the courts. A New York DWI Lawyer said the evidence contained tangible property that he contends was the proceeds of an unlawful search and seizure. He states that the search warrant which was the validity for the forcible entry into his home on July 5, 1973 and the seizure of the property that was used as evidence against him should be suppressed as fruit of the poisonous tree under the Exclusionary Rule.

The case involved the infiltration of a subversive group by several undercover police operatives and the case was in trial from May 1971 to July 1973. In April of 1969, this case was called the Panther 21. The defendant was indicted for having an overall plan to harass and destroy the elements of society that the group thought of as the power structure. This defendant was jailed for over two years until his trial where he was acquitted. Even if he had been freed, he would have not gotten credit for this time in jail pending trial. The trial of this case lasted more than two years and ended in all suspects being acquitted. The jury in this case only deliberated for two hours before reaching their decision.

The defendant in this appeal was convicted in 1965 on conspiracy charges. It was this conspiracy charge that elevated the grade of the weapons charge in the case appealed from a misdemeanor to felony charges. It also raised the grade of the conspiracy charge from class B to class A on two of the three charges. The defendant was arrested as part of a deep cover operation where an undercover police detective was sent to infiltrate subversive groups on the lower East Side of New York run by BOSS. He rented an apartment and began to acquaint himself with the criminal element in the area. A Nassau County DWI Lawyer said during the time that this investigation was in place, the laws changed with regard to government infiltration of civilian groups. When the case went to court, the agents were questioned about the investigation and the techniques that were used to conduct the operation. ince there was not a particular crime or criminal activity that was being investigated, it was determined that the operation was directed at the group rather than the illegal activity. The defendant was acquitted of all charges.


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June 19, 2012

Defendant Claims Charges Unconstitutional

A man was arrested and charged with illegal heroin possession and illegal possession of hypodermic needle and syringe. Even before the man was brought for arraignment, he already filed a motion to dismiss the information on the ground that the laws punished the misdemeanor offense of illegal possession of hypodermic needle and syringe is unconstitutional. He also moved to dismiss the information charging him with illegal heroin possession on the ground that this crime is a misdemeanor and the law defining it as a crime is unconstitutional.

A New York DWI Lawyer said the man claimed that the statute violates his right to due process of law because he is deprived of the right to be presumed innocent. He claims that the statute makes it a criminal act to possess a hypodermic needle and syringe. He claims that the statute is arbitrary and unreasonable and the passage of the law is an abuse of the police power of the State.

The man based his motion for dismissal of the illegal heroin possession charge on two cases decided by the Supreme Court of New York. The man alleged that the facts of those two decided cases and his case are similar. He points particularly to the case of People v. Hicks and People v. Baker where the Court dismissed the indictment because only a trace of heroin was found on a cotton wad that was found on the person of the accused in those two cases. The man claims that these two charges against him should also be dismissed because along with the hypodermic needle and hypodermic syringe, a wad of cotton was also found and seized on his person and the wad of cotton only had a trace of heroin on it. Therefore, these charges should be dismissed.

The only question in this case before the Supreme Court is whether or not the charges should be dismissed for being unconstitutional and because a prior case with similar facts was dismissed by the Court.

On the issue of the similarity between the facts of this case with the facts in the cases of People v. Hicks and People v. Baker, the Court held that the motion to dismiss was prematurely filed as the facts of this case have not yet been proved. A New York DWI Lawyer said that the accused here has just been charged. He has not yet been arraigned and trial has not yet been conducted. No facts have as yet been proven so it is impossible for the Court to determine if the facts are similar.

On the issue of unconstitutionality of the law that punishes the misdemeanor of illegal possession of syringe and hypodermic needle, the Court held that not all possession of hypodermic needle and syringes are punished under the statute. Only the possession of hypodermic needle and syringes which are for the intent of injecting illegal or regulated drugs is punished.

The Court traced the history of the increasing drug problems in New York which necessitated the enactment of strict and sweeping laws that aimed to curtail the rising drug addiction.

The Court relayed how the legislature noted with alarm that the number of drug-related arrests rose dramatically by leaps and bounds in the years 1954 , 1955, 1956 and 1957. The legislature also noted that drug addiction spurred on an increase in the commission of crimes such as larceny, robbery, theft and even murder.

To stop the epidemic of drug addiction, the legislature had to enact very strict laws that punished a person who has in his possession a hypodermic needle or syringe for the specific purpose of injecting prohibited or regulated drugs. A diabetic who carries with him a hypodermic needle and syringe for the purpose of injecting himself with insulin will not be punished under this statute. In fact, the possession of a hypodermic needle or syringe with a legitimate physician’s prescription is exempt from prosecution. A Nassau County DWI Lawyer said the operative phrase that renders the possession of a hypodermic needle or syringe illegal is that the possession of such paraphernalia is for the purpose of injecting drugs.

The Court denied the motions to dismiss and remanded the cases for arraignment and trial.
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June 18, 2012

Defendant Claims Prior Felony Should Not Be Counted

The Facts:

On 10 November 1952, appellant pleaded guilty of attempted violation of section 1751 of the Penal Law as a felony; a violation of the Public Health Law with respect to narcotic drugs; a drug crime. A New York DWI Lawyer was presented therein that the appellant had been found guilty of three previous felony convictions; that he had violated sections 173 and 174 of title 21 of the United States Code which also deals with narcotic drugs. Appellant admitted his identity and the three previous convictions which occurred in 1938, 1947 and 1948, all in the United States District Court for the Southern District of New York.

Thereafter, appellant was sentenced as a third felony offender to a term of not less than 15 years to life.

Sometime In August of 1958, appellant petitioned for a writ of habeas corpus seeking his release from confinement on the ground that the acts upon which the three previous convictions were based would not have been felonies if committed in the herein State and, therefore, he should have been sentenced as a first felony offender.

The writ was dismissed and appellant was remanded to the custody of the Warden of Sing Sing Prison.

Appellant appeals the aforesaid decision.

The Issue:

The issue here is whether any of the three Federal convictions were for acts which would have been felonious if committed in the herein State so as to sentence appellant as a third felony offender.

The Ruling:

It is well established that in order to sentence a defendant as a multiple offender, it must appear that defendant's previous convictions in the foreign jurisdiction would have been felonies if committed in the herein State.

It is clear from the US Code and the Penal Law that at the time of the aforementioned convictions, the only crime mentioned in section 174 of title 21, which is a felony under the New York law, is that of a sale. Consequently, a New York DWI Lawyer said the crimes of receiving, concealing or facilitating the transportation of a narcotic drug were all misdemeanors under the then applicable New York statute.

Appellant contends that in each of the three convictions he could have been convicted for violating any of the other provisions of section 174 even if there was no sale charged and, therefore, his conviction would have been for a crime which would not have been a felony in New York.

Here, the 1938 indictment in its first count charged that appellant and another on 26 May 1938 did conceal, sell and facilitate the transportation of a certain quantity of narcotic drugs. The second count charged the same violation on a different day and a different quantity of drugs, and the third count charged that appellant committed the crime of conspiracy to sell. Appellant was convicted of the crimes of selling, concealing and facilitating the transportation, concealment and sale of a narcotic drug, and of conspiracy to sell. Appellant was sentenced to serve two years imprisonment on each of the three counts, execution of which sentence was suspended. Thereafter, the probation under the conspiracy count was revoked.

In view of the suspended executions of the sentence as to the two counts, such conviction may not be counted as a prior felony conviction for sentencing as a third felony offender.

It must be noted that the 1947 conviction resulted from a one-count indictment charging the same violation as above, committed on 27 November 1946. Nevertheless, appellant here was convicted on his plea of guilty to the crime of selling heroin and was sentenced to imprisonment for one year. A Nassau County DWI Lawyer said that while execution of the sentence was also suspended, probation was ordered and thereafter revoked for violation thereof. This 1947 conviction was therefore felonious in view of appellant's plea of guilty to the crime of selling heroin, a felony under the New York law.

On another note, the 1948 conviction resulted from a three-count indictment, two counts of which charged the same violation as above, committed on two different days, involving two different quantities of drugs, and the third charged all of the above excepting selling. Appellant was convicted on his plea of guilty to the crime of sale and possession and was sentenced on each count to a term of one year.

As a result, the only remaining question is whether appellant's plea of guilty to sale and possession under the 1948 indictment falls within the rule that, in order to determine the crime of which a defendant was convicted in the foreign jurisdiction, the statute upon which the indictment was based must be examined, and that inoperative and immaterial allegations in the indictment must be disregarded.

Possession was not a felony in New York at the time of the indictment. The indictment would have been sufficient if it merely charged drug possession in criminal law. Since appellant could have been convicted for the crime of possession even without the allegation of sale, the recital as to the sale was immaterial and inoperative and could have been disregarded as surplusage. The doubt that existed as to whether the conviction was for a sale or for possession should be resolved in favor of appellant.

Thus, under the circumstances, the 1948 conviction may not be counted as a prior felony for sentencing purposes. Appellant is entitled to be sentenced as a second felony offender. The order is reversed, without costs, writ sustained, and appellant remanded to the County Court of Kings County for resentence as a second felony offender.

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June 17, 2012

Court Decides Alleged Violation of 4th Amendment Rights

In these unrelated appeals, each accused challenges the denial of suppression of vials, crack cocaine possession and other physical evidence on the ground that his Fourth Amendment right to be free from unreasonable searches and seizures was violated by the warrantless police search of his car. In both cases, accused parties were travelling in a car pulled over by a police officer for a traffic violation. In each case, upon the officer's approach to the accused parties’ car, the officer observed through the car windows an open bag containing vials and caps. A New York DWI Lawyer said trained and experienced in drug detection, the police officers recognized the vials as the type used to package crack cocaine for street transactions. For the reasons that follow, in both cases the lower courts properly found probable cause for the officers to believe the accused were using drug paraphernalia, thereby justifying the searches of the automobiles and the accused parties’ consequent arrests. Another man was subsequently indicted for criminal possession of a controlled substance and criminally using drug paraphernalia.

The screeching tires of a cream colored Audi turning onto Broadway at a high rate of speed, forcing three pedestrians to jump out of the crosswalk, caught the attention of two uniformed police officers sitting in their marked police car. The officers followed the Audi south on Broadway, turning on their siren and flashing lights as the distance between the Audi and the police car narrowed. After the Audi turned right onto West 125th Street and passed a stop sign, the officers pulled the car over. A New York DWI Lawyer said when the officers parked their patrol car behind the Audi, and approached the car from opposite sides. The accused man was seated in the front passenger seat. The officer who was standing outside the car near the accused man observed an open shopping bag filled with vials and yellow caps standing upright on the floor behind the accused man. The officer signaled his partner, who was standing on the driver's side, and gestured to the bag, alerting his partner to the contents he observed. One of the officers then asked the three men in the car if the vials belonged to them and each denied ownership. Nor could any of the individuals tell the officers what the vials were used for. The officers subsequently arrested the three individuals for criminally using drug paraphernalia, and issued summonses to the driver for failing to yield to pedestrians at a crosswalk and to yield at a stop sign.

A backup team of two officers arrived as the arresting officers were securing the car's passengers while checking for weapons. The shopping bag was then removed from the car and upon examination yielded eight sealed, clear plastic bags, containing a total of 200 empty vials separately packaged from 200 matching yellow caps, a bread crumb container and a carton of instant cocoa powder. The bread crumb container proved to have a false bottom, which revealed a bag of crack cocaine. The accused man volunteered that he came to buy the cocaine for someone else and his two companions had nothing to do with the cocaine possession.

All three individuals were transported to the precinct, where Miranda warnings were administered. The accused man indicated that he understood his rights and agreed to answer questions. A Nassau County DWI Lawyer said he admitted that he bought the crack on 140th Street for $2,800 and had purchased drugs in that neighborhood twice before but denied he sold crack. He maintained his present purchase was on behalf of someone else and stated that a vial would sell for $40 in Pennsylvania.

Following a suppression hearing, the trial court found, under the totality of the circumstances, that there was probable cause to believe there was contraband in the car, justifying the arrest of the car's occupants and search of the vehicle. Therefore, the trial court denied the accused man’s motion to suppress.

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May 31, 2012

Court Discusses Risk Levels of Sex Offenders

The Facts:

On 5 March 1993, defendant was arrested, and charged with Rape in the First Degree, Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of child-one, a ten-year old who stated that defendant had removed her clothing, spread her legs, and placed his penis inside her vagina. He later gave her five dollars to keep secret what had happened. The Sex Abuse charge was dismissed upon a technical error in the Grand Jury presentation.

Defendant was also charged in the same indictment with endangering the welfare of child-two, a 15-year old, photographed by defendant, both with her consent and surreptitiously, in her underwear following her refusal of defendant's requests for sexual contact. A New York DWI Lawyer said there was no admission to the accusation although the minutes of the child’s Grand Jury testimony and one of the photographs submitted by the District Attorney do provide the necessary clear and convincing evidence that such incident took place.

On 6 April 1994, defendant pled guilty to Attempted Rape in the First Degree with respect to the allegations concerning child-one.

Notably, defendant is 58 years old and a live-in friend of child-one’s grandmother with whom both child-one and child-two also resided; A New York DWI Lawyer said the defendant admitted he had had sex with child-one and knew that she was under eleven.

On 18 April 1994, defendant was sentenced to one and a half to four and a half years of incarceration. Defendant was released from prison on 1 March 1996.

Defendant is a convicted sex offender pursuant to Correction Law having pled guilty on 6 April 1994 to one count of Attempted Rape in the First Degree, a lesser-included crime of Count I of the Indictment charging Rape in the First Degree, commonly known as statutory rape. All other charges in the Indictment (one count of Sexual Abuse in the First Degree and 2 counts of Endangering the Welfare of a Minor) are also based upon the age of the victim. There are no allegations of forcible compulsion per se. A Nassau County DWI Lawyer said the defendant has challenged his proposed "moderate" risk level designation under the Sex Offender Registration Act as not consistent with the facts of his case and his due process rights.

On 12 May 1997, defendant appeared in response to notice and was appointed counsel. Challenging his recommended assessment at risk level 2, pursuant to Correction Law, on 25 August 1997, defendant requested a hearing. A full hearing was held on 17 December 1997.
At the hearing, the State offered the Risk Assessment Instrument for defendant, the testimony of a Board-member who prepared the Assessment Instrument, the Case Summary provided to the Court and, from the District Attorney, the Grand Jury minutes containing the testimony of the alleged second victim together with photocopies of some photographs, and defendant's allocution of 6 April 1994, in which he acknowledged he had sex with child-one knowing that she was under eleven. Defendant submitted the Board's Risk Assessment Guidelines in effect at the time of defendant's evaluation, dated January 1996 (since amended), the Case Summary and attached Probation Pre-Sentence Report and Defendant's Case History from the Division of Criminal Justice Services which was also used in his Board evaluation and which erroneously listed rape charges with forcible compulsion for the crimes at issue.

Pursuant to the mandate of Correction Law, the Board developed a Risk Assessment Instrument ("Instrument") attributing points to be allocated to the various statutory factors in determining the risk of recidivism posed by any particular offender. For defendant, the Instrument presented at the hearing allocates a total of eighty-five points as follows: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate intercourse, or aggravated sexual abuse (not statutory rape); 20 points for two victims; and 30 points for a victim who is under 10 years of age. Defendant had no criminal history and received no additional points for Past Offense Behavior or Release Environment. No points were added under Factor 14, Supervision Following Release, because, at the time, defendant was to be supervised by a parole officer with expertise in handling sex offenders. Release without supervision warrants the addition of 15 points. Since defendant is no longer under supervision, the District Attorney has suggested that 15 points should be added to defendant's recommended risk factor score of 85. His Board-recommended Presumptive Risk Level is 2, moderate. There is no indication on the Instrument suggesting override or departure from the level recommended based upon the numerical scoring. Scores between 0 and 70 points indicate low risk, 75 to 105 points represent moderate risk, and 110 to 130 points is high risk.

Defendant takes issue with the allocation of ten points for forcible compulsion, noting that the charges were based exclusively on the age of the victim and contain no allegations of force. He also challenges the allocation of 20 points for two victims, noting that only the charge of Endangering the Welfare of a Minor relates to a separate victim, for which there was no admission or conviction. Defendant contends, moreover, that this crime is not one of those listed in the statute as a sex offense and should not, therefore, be considered in determining his risk level. Were Defendant to succeed in his arguments, he would become a level one offender according to the Board's scheme of assessment.

The Ruling:

New York's Sex Offender Registration Act, Correction Law, defines a sexually violent offense as a conviction of or a conviction for an attempt to commit any of the provisions of various sections of the penal law. A sexually violent predator is a person convicted of a sexually violent offense, or a sex offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct.

Given defendant's conviction for an attempt to violate Penal Law, he clearly is defined by statute as a sexually violent predator. Such characterization does not, however, alone require the presumption that defendant poses the highest risk of recidivism. Section 168-n of the Act directs that the sentencing court first determine whether the defendant is a sex offender or a sexually violent predator and then determine the level of notification. The Board's Guidelines also interpret the Act to require an individualized evaluation of risk.

It is the public notification provisions that distinguish the various risk levels since all sex offenders must register annually for ten years unless relieved of this obligation by the court. As a sexually violent predator, defendant is also required to verify his address quarterly, not as a function of his risk level designation, but based upon the nature of his conviction. The statute provides that the court may relieve a sexually violent predator of the duty to verify quarterly if it finds that the person no longer suffers from a mental abnormality that would make him likely to engage in a predatory sexual violent offense. Such language suggests intent to make the presence of a mental abnormality a necessary element of the sexually violent predator designation. The New York statute does not, however, so provide, but, unlike the Federal Act, defines such predator in the disjunctive: an offender convicted of a designated crime or an offender who suffers from a mental abnormality. There is no indication in the record before the Court in either the Instrument or the Pre-Sentence Investigation Report that defendant ever suffered from a diagnosed mental abnormality. In light of the language of Section 168-a, however, the defendant will be required to verify his address with authorities quarterly. He will also be listed in the sexually violent predator directory as provided in Section 168-q.

Turning to the evaluation of the level of risk of recidivism posed by defendant, the Court finds defendant's arguments to be well-founded.

Defendant argues that ten points were improperly added to his risk score for forcible compulsion when no allegations of force are contained in the charges and the defendant did not in any way acknowledge the use of force.

The Pre-Sentence Investigation Report indicates that as early as April, 1994, neither complainant nor her mother could be reached and no victim's statement is contained in the record. The only description of the rape is apparently derived from court or District Attorney Files. The Pre-Sentence Investigation Report indicates: the defendant told child-one, age 10, to lie down; the defendant then took off the complaining witness' clothes, opened up her legs and placed his penis inside her vagina; the defendant gave the child money not to tell anyone.

There is no mention of threats or violence of any kind. Although an inference of physical trauma necessarily caused by the penetration of a ten-year-old girl by a 58-year-old man can be made, there is no evidence of injury. Factor 5, "Age of Victim," which allocates thirty points for a victim age ten or less, would appear to cover this circumstance.

Penal Law does not require proof of force but merely that the victim is less than eleven years old. Although there are cases which suggest that differences in age and size between perpetrator and victim may be sufficient to constitute the force necessary to prove forcible compulsion where the charges are brought under Penal Law, those cases are distinguished by the presence of testimony of some physical act of actual restraint and, more importantly for the purpose of the issue at bar, the charges alleged the actual use of force and were not, as here, premised exclusively on the age of the victim.

Moreover, the Guidelines, which were devised by the Board and govern their evaluation, expressly state: Points should not be assessed for a factor, e.g., the use of a dangerous instrument, unless there is clear and convincing evidence of the existence of that factor.

Defendant also argues that the addition of twenty points for two victims was erroneous in light of his admission to only the one count involving child-one. Again referencing the Guidelines, the Board itself acknowledges: The fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred.

According to the amended Guidelines the Board is not limited to the crime of conviction. It is also reasonable in light of the purpose of the evaluation to protect vulnerable populations from serious predators, provided, there is clear and convincing evidence that such additional crimes were in fact committed by the offender. The argument that the Board would consider evidence of other crimes in making its risk assessment even where an admission had been made, as here, to only one crime, is consistent with the amended Guidelines established by the Board.

On the argument that information in the presentence investigation report is considered to be clear and convincing evidence, given the speculative source of the information contained in that report, the Court does not agree that the hearsay description of untried and unadmitted allegations should be so credited. There was no sufficient evidence before the Board to support its addition of twenty points for two victims. However, the District Attorney has supplied to the Court the Grand Jury testimony of the second complainant and has also provided copies of the photographs alleged to have been taken by defendant. Such evidence is clear and convincing proof that between August 1 and August 31 of 1992, defendant took photographs of child-two in her underwear. Child-two further testified that, prior to the photographs being taken, defendant had told me to have sexual contact with him, but I said no. While it appears that no such contact ever took place with respect to fifteen-year-old child-two, defendant's persistence in ultimately securing the desired gratification from her younger sister makes his overtures to child-two relevant in assessing his risk. It is noted, moreover, that, although present at the hearing, defendant did not deny the charges concerning child-two.

On the argument that the alleged transgression with respect to child-two resulted in a charge of only the misdemeanor crime of Endangering the Welfare of a Child under Penal Law, which is not one of the sex offenses, the complainant in that charge may not be considered a second victim for purposes of risk assessment, is unfounded.

The Board is determined to treat endangering the welfare of a child as if it were a sex crime since it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted.

Of course, such rationale, while certainly reasonable, does not answer defendant's argument that he did not admit the allegations respecting child-two and should not be penalized based on a mere allegation. The Board's use of a prior adjudication of the crime of Endangering the Welfare of a Child under Factor 9 of criminal history is not the same as using a non-adjudicated accusation as an element in determining the number of victims in the current offense. However, there is clear and convincing evidence in the sworn testimony of complainant before the Grand Jury that defendant engaged in sexual misconduct toward her which has not been denied by defendant. Since the additional points will not result in any penalty to defendant and that the purpose of the Act is to assist law enforcement in a regulatory context only, evidence of sexual misconduct toward a second victim was properly considered in determining defendant's risk to the community. As noted in the Guidelines: The existence of multiple victims is indicative of compulsive behavior, and is therefore a significant factor in assessing the offender's risk of re-offense and dangerousness. Twenty points were properly assessed for two victims.

Lastly, the District Attorney suggests that fifteen additional points should be added to defendant's risk score because he is no longer supervised by a parole officer with special expertise in dealing with sex offenders as he was at the time of his release. Defendant was released to parole on 1 March 1996, having served at least the minimum of a sentence of one and a half to four and a half years imposed on 18 April 1994. On 3 September 1997, he completed his sentence and is therefore no longer within the jurisdiction of the Division of Parole. To grant the District Attorney's application now, two and a half years after his release, solely because his sentence has been concluded, would be arbitrary and irrational and inconsistent with the purposes of the Act. The District Attorney's argument here is equally applicable to every convicted offender and, if accepted, would require the eventual assessment of fifteen additional points to every offender who has completed his sentence, regardless of the risk he actually poses. There is no authority for such assessment in the Act or the Guidelines. Factor 14 provides: Supervision is clearly intended to apply only to the immediate circumstances at the time of release from incarceration when the offender reenters the community. The request to assess fifteen points for lack of supervision is denied.

Using the scoring set forth in the Risk Assessment Instrument, including twenty points for two victims and disallowing ten points for forcible compulsion, defendant's presumptive risk level is moderate based upon a modified score of 75. This is the threshold score for Level 2 risk.

Here, defendant is now 62 years of age and was steadily employed in New York City for over thirty years as a jewelry polisher. He has no prior criminal history and has admitted his crime and participated in a six-week sex offender program. While his living situation is somewhat unstable in that he has resided in various men's shelters since his release, according to the Probation Report, he has a daughter who resides in the Bronx. The crime he committed against child-one was truly egregious, but it was a crime of opportunity in that defendant was residing with her in her grandmother's home and neither sought her out for victimization, nor was he a stranger to her. Defendant suffers from poor eyesight and a heart condition and is supported by disability benefits. He appears to pose little risk of re-offense in the community at large. As a sexually violent predator, he will be listed in the sexually violent predator subdirectory and required to verify his address quarterly and, as an adjudicated sex offender, his name may be accessed by the public through the “900” telephone number.

Under the circumstances, the Court finds that a deviation from the presumptive risk level is warranted and defendant is properly classified as a Level 1, low risk offender.

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May 30, 2012

Court Weighs Possibility of Taking DNA Samples

A man is charged with menacing in the third degree, sexual misconduct, sexual abuse in the third degree and harassment in the second degree. The opponent moves for an order to permit the taking of DNA samples from the man's cheek cells for the purpose of testing and analysis.

The opponent alleges that the charges stem from an incident which the man and the complainant went to the man's home. When both of them were inside the house, the opponent asserts that the man turned the complainant around and penetrated the complainant from the back with the man's penis. A New York DWI Lawyer said that the opponent also asserts that the complainant's attempts to stop the man resulted in a struggle where she sustained a laceration on her chin.

A New York DWI Lawyer said that the opponent claims that upon contacting the police, the complainant was treated and at the hospital a rape kit was prepared and taken to the office of the chief medical examiner for DNA results. The opponent asserts that the DNA results revealed that dried secretions were found on the left breast.

Consequently, the opponent seek an order to permit the taking of DNA from the man's cheek cells by use of all necessary force to obtain the samples by officers of the department of corrections, the county’s district attorney's office and the police department.

The man opposes the opponent's motion on the ground that it is untimely. The man further argues that the opponent was required to serve and file their motion within forty-five days of arraignment. The man’s argument was respectively arraigned on the felony complaint and on the instant information. The man claims that the opponent did not serve and file the instant motion until nine (9) months after his arraignment.

Consequently, a Nassau County DWI Lawyer said the man recognizes that law allows late filing of motions but argues that the opponent offer no basis to apply the law's exception. The man asserts that the evidence of the alleged crime was collected the next day after the commission and a rape kit was taken to the testing laboratory. The man contends that the DNA report was found in the rape kit and a comparison could be done upon submission of the man's DNA.

The man further asserts that within the discovery by stipulation paperwork submitted by the opponent is indicated that at the time of his arrest the man consented to a DNA oral swab and concludes that a swab was taken.

The man further argues that the opponent have not set forth sufficient grounds to allow oral swabs to be taken from the man. The man asserts that the taking of oral swabs would violate his fourth and fifth amendment rights, among his other federal and state constitutional rights, even if the motion had been timely made. The man alleges that the opponent's motion would create an unnecessarily lengthy delay in the case and it should be denied in its entirety.

The man submits that the opponent's proposed order is improper and overly broad. The order to the man to maintain, prematurely request a force order when no basis has been established that demonstrates the man's unwillingness to cooperate with a court order. The order also authorizes court officers, detectives and other employees from the police department and employees from the medical examiner's office to take oral swab samples. The man argues that no basis has been set forth to authorize the opponents to take the man's DNA samples
As a result, the court finds the opponent’s motion for an order to permit the taking of DNA samples from the man's cheek cells for the purpose of testing and analysis is appropriately denied.

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May 29, 2012

sex crimes

The Facts:

A police officer allegedly observed the defendant remain in or wander about a public place for twenty minutes, during which defendant repeatedly beckoned to passers-by and stopped two passers-by, engaging in conversation with said passers-by; stop only male passers-by and defendant did not beckon to or converse with female passers-by who passed by during the same period; standing in the middle of the road while beckoning to motorists. A New York DWI Lawyer said the defendant is a 16-year old with no criminal history.

Thereafter, defendant is charged with the offense of loitering for the purpose of prostitution. The charge is a non-criminal violation punishable by no more than fifteen days in jail. When she appeared before the court in the arraignment part she was also the subject of a warrant that had issued out of Family Court.

At defendant's arraignment, the court addressed sua sponte whether it should dismiss the prosecution both as an exercise of interests-of-justice power and in light of the recently enacted Safe Harbour for Exploited Children Act (the "Safe Harbour Act") which the court read to express the intent of the Legislature that 16- and 17-year-olds who are charged with prostitution offenses should be referred to a Family Court rather than prosecuted criminally.

The People requested an opportunity to address the proposed dismissal in writing, even though the court noted that the legislative sponsors of the Safe Harbour Act believed that the mere pendency of criminal charges against these children was itself harmful; that arresting, prosecuting and incarcerating victimized youth serves to re-traumatize them and to increase their feelings of low self-esteem and that it only makes the process of recovery more difficult.

Appropriate services for sexually exploited youth do not exist in the juvenile justice system and both federal and international law recognize that sexually exploited youth are the victims of crime and should be treated as such. Therefore, sexually exploited youth should not be prosecuted under the Penal Law for acts of prostitution. Instead services should be created to meet the needs of these youth outside of the justice system. Sexually exploited youth deserve the protection and services of the Family Court through processes in place for persons in need of supervision, including diversion, crisis intervention, counseling, and emergency and long term housing services.

Ultimately, the court afforded the People and the defense an opportunity to respond to the proposed dismissal, not only in fairness to the People but also to assure that any decision the court makes would be based on a consideration of all appropriate arguments.

The Ruling:

The People submitted to the proposed dismissal. Thus, the prosecution should be dismissed in the interests of justice.

A court may dismiss a prosecution on its own motion. A review of the factors relevant to such a dismissal is informed by recent legislative enactments that reveal an understanding that the victim of a prostitution offense may be the prostitute herself. In fact, if the prostitute or, as here, alleged would-be prostitute, is 16- or 17-years-old, the Legislature defines her as a “sexually exploited child” who may obtain child welfare services for sexually exploited children.

The Legislature passed the Safe Harbour Act, among other things, to make the Family Court's services available to sexually exploited children up to the age of 18. It amended the definition of a "person in need of supervision" ("PINS"), with regard to whom a Family Court proceeding may be originated, to include a child under 18 charged with prostitution or loitering for the purpose of prostitution. As a Family Court judge has observed, the Safe Harbour Act expresses a preference that children who have been sexually exploited be spared criminal prosecution in favor of receiving rehabilitative services.

The Safe Harbour Act came into effect against the backdrop of the federal Victims of Trafficking and Violence Protection Act of 2000 which defined the crimes of forced labor and sex trafficking, provided support for trafficking victims, and established a system for monitoring worldwide anti-trafficking efforts. Under federal law, if a 16- or 17-year-old has been induced to be a prostitute, she is considered to be a victim of a severe form of trafficking in persons. In 2000, Congress also provided avenues of immigration relief for children under 18 who are victims of a severe form of trafficking, i.e., prostitution, through "T" and "U" visas.
The Safe Harbour Act added to the protections put in place by New York's Anti-Human Trafficking Act of 2006 which created the new offense of sex trafficking. In passing this act, New York joined 29 states and the federal government in an effort not only to prosecute the traffickers but also to provide these unique victims with the social services they need to break the ties with their traffickers and the opportunity to live healthy and productive lives.

Moreover, the Criminal Procedure Law was amended to provide that a victim of sex trafficking may seek vacatur of judgments of conviction for loitering and prostitution. As a result, courts have vacated convictions of individuals who had engaged in prostitution as a result of their having been trafficking victims.

The Safe Harbour Act did not amend the Penal Law and provide a defense of infancy to a 16- or 17-year-old charged with a prostitution offense. Yet a Penal Law prosecution of such an individual, whom the Legislature elsewhere defines as a "sexually exploited child," whom the legislative materials reviewed depict as vulnerable and likely already known to Family Court, and who may qualify as a "victim" under both federal and state anti-trafficking laws and therefore for vacatur of any conviction here, is inconsistent with the ameliorative intent of the Safe Harbour Act and other statutes.

The Safe Harbour Act specifically addresses the conduct charged here and provides for its non-punitive, non-criminal adjudication in Family Court. The other recently enacted state and federal laws previously mentioned would strongly suggest that criminal prosecution of a 16- or 17-year-old for a prostitution offense is inappropriate, and that the right response of law enforcement would be to bring the child before Family Court.

The court need not need to rule that the prosecution is barred under the Safe Harbour Act, because interests-of-justice authority allows and encourages the court to achieve the same result; dismissal, on the narrower grounds present in the case.

The factors set forth in CPL 170.40 clearly demonstrate that the prosecution of the defendant would constitute injustice.

First, the seriousness and circumstances of the offense alleged are as minimally serious as can be. The charged offense, Penal Law 240.37, is a violation, which is not even a crime under the Penal Law's classification scheme. The circumstances of the offense are likewise minimally serious: the defendant is alleged to have engaged in the proscribed conduct, loitering in the middle of the street, for a total of twenty minutes and to have stopped two passers-by to engage them in conversation.

Second, the extent of harm caused by the offense is likewise minimal. Although the court recognizes that prostitution may negatively impact all participants as well as the neighborhoods where it occurs, the harm of the violation charged here is minimal. More importantly, the harm to defendant's own physical and mental welfare from the alleged conduct is greater than any other societal harm.

Third, the court assumes that evidence of guilt is strong. Further, the court is not aware of any misconduct in the investigation, arrest and prosecution of defendant. To the contrary, the District Attorney is prosecuting the case with a focus on rehabilitative, rather than punitive, concerns. But even so, a New York DWI Lawyer said the absence of these factors does not dissuade the court from the conclusion that dismissal is appropriate.

Fourth, the history, character and condition of defendant as revealed in the records are a 16-year-old who has no prior involvement with the criminal justice system, who has lived her entire life with her grandmother in New York City, who has completed the 11th grade, and who attends school.

Fifth, the court finds that there would be little purpose in imposing a sentence on defendant and that the effect of any sentence would do more harm than good. A Nassau County DWI Lawyer said the sentencing options in Criminal Court are limited. The likely sentence in a case such as this would not involve jail. Even if the sentence were a conditional discharge with required attendance at a counseling program, the court sees no purpose in imposing such a sentence when the options available in Family Court are likely superior because of the statutory mandate of considering the child's best interests. On the other hand, the effect of a conviction in this case would be seriously and inappropriately detrimental to the defendant. If convicted and sentenced, she would have a record, albeit for a non-criminal offense. Such a record, unlike that for a conviction of virtually any other violation, would not be subject to sealing pursuant to the general sealing statute. And, as a result of another legal anomaly that arises from the definition of “youth" in the Criminal Procedure Law, a conviction of this offense would not be subject to replacement by youthful offender adjudication and sealing under the youthful offender law. By contrast, any other adolescent with no prior record would be entitled to have her first misdemeanor conviction replaced by a youthful offender finding, even though a misdemeanor is a more serious offense than the one charged here. Indeed, an adolescent convicted of a felony may be eligible to have her first felony conviction replaced by youthful offender adjudication, leaving that adolescent with no public record of conviction. In sum, defendant here may have a life-long record of conviction of a stigmatizing offense, when other adolescents whose cases were resolved in more unfavorable circumstances or adults similarly situated would not suffer that same detriment.

Sixth, the court believes that dismissal will not impact the safety or welfare of the community. Although prostitution may have negative collateral effects on the community, attributing such effects to the alleged conduct of this particular defendant would surely be an exaggeration. Maintaining a prosecution against an alleged teen prostitute might give law enforcement a tool with which to fight trafficking but it is doubtful whether any public interest in this regard cannot equally be achieved if this case were handled in Family rather than in Criminal Court. That is, the venue of the adjudication should not preclude a District Attorney from investigating the allegation that a teenager has been prostituted. More importantly, the court finds it hard to justify refusing to dismiss the case against a teenager only so that prosecutors might prove that she is the victim of the crime with which she is charged.

Seventh, the court believes that the public's confidence in the criminal justice system will be enhanced by a dismissal in the case at bar. The criminal justice system is not always the best venue for addressing societal problems. Here, the alleged offense which is not a crime involves someone who, according to the Penal Law, is barely an adult, and who, according to the Social Services Law, is a "sexually exploited child." Under the circumstances, the purposes of the Penal Law, which include providing an appropriate public response to particular offenses, favor an exercise of the criminal justice system's mercy-dispensing power to dismiss the prosecution. As a result of a dismissal here, the public will be confident that the laws are not inflexible or unduly harsh and that they do not operate in isolation of a growing awareness that, in the appropriate case, the lessened culpability of a 16-year-old vis-á-vis an adult, as well as the recognition that she is exploited if not also victimized, may require that the allegations against her be addressed outside criminal court.

Henceforward, the matter is dismissed; sealing is stayed 30 days to allow the People an opportunity to seek Family Court adjudication of the matter and to seek leave to appeal.
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May 27, 2012

Court Discusses Use of Defendant's Prior Acts Presented at Trial

Drug crimes are a problem in every city in the United States, but courts do not usually expect to find them on their own back doorsteps. A New York DWI Lawyer said in the case of the Supreme Court of Bronx County in 1972, they did not expect to find the drug problem on the very steps of the courthouse. However, that is exactly what transpired in September of 1972. An undercover narcotics team was working a case involving a drug ring that was operating out of Franz Segal Park just around the corner from the Bronx County Supreme Court building. The narcotics undercover team made three different purchases of narcotics from the dealer on September 8, 11, and 12.

The undercover officer would meet with the dealer in Franz Park, make the purchase, and then return to the team with the cocaine. The narcotic would be tested to ensure that it was cocaine. The undercover officer was wearing a wire so that the transaction was tape recorded. However, there was no video at the time that was effective in the field. Following the third purchase, the defendant was arrested for trafficking in narcotics. In his trial, he testified that he was not a drug dealer and that he had never sold anyone any drugs. The undercover team had to testify that they had not witnessed the transactions and had only seen the undercover officer leave with the money and come back with the cocaine.

Interestingly, at trial the prosecutor questioned the officer extensively about the purchases that he made from the defendant in Franz Park. He went in to great detail to show that the time and place of the transaction for which the defendant was charged was identical to the time and place in which he had previously been arrested for dealing drugs. A New York DWI Lawyer said the problem with this line of questioning was that according to the law, prior offenses can only be brought up in trial to show the credibility of the witness. A prosecutor may not use questioning on previous acts to show a propensity to commit the crime that the defendant is on trial. That policy is set forth in People v. Schwartzman, Supra, 24 N.Y.2d p. 247, 299 N.Y.S. 2d p. 822, 247 N.E.2d p. 645. The crimes for which the prosecutor was referring were the two prior drug deals that were under indictment, yet not adjudicated by the time of the trial in question.

The defendant was convicted and appealed his conviction based on the impropriety of the prosecutor to bring up the prior acts with the clear intent of using them to prejudice the jury. The Supreme Court evaluated the case and agreed with the defendant. While it is acceptable to use prior acts to test the defendant’s credibility, it was clearly not the case in this trial. The fact that the prosecutor use such specific questions as to establish that the time of day and location of the sales were not only similar, but were in fact the exact same, could serve no other purpose than to prejudice the jury. The fact that the other two cases had not even been adjudicated made the situation even worse. He was being assumed guilty of two prior offenses that he had not even been found guilty of committing at the time of the present trial.

It is the intent of the American judicial system to ensure that each defendant is considered innocent until proven guilty. A Nassau County DWI Lawyer said it is for that reason that prior acts are not presented at trial. It is not appropriate to use the propensity of a person to commit similar crimes to make the inference that he must be guilty of a different one. Each person and each crime must be tried on its own merit without prejudice. The case was overturned and a new trial was ordered.

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May 26, 2012

Court Discusses Discrimination Based on Sexual Orientation

This is a case involving an application for Gena M. Daniels to change her name to Gena M. Zaks. The petitioner is being represented by Yetta G. Kurland from New York City. The case is being heard by Judge Paul G. Feinman.

Petition

The petitioner, Gena M. Daniels, is seeking to changer her name pursuant to the Civil Rights Law, article 6. She wishes to change her last name to that of her same – sex life partner.

Case Discussion

A New York DWI Lawyer said the partner of the petitioner has given consent to the application for the name change to occur. This consent was performed before a notary public. Under common law a person may assume any name as long as it is not a fraudulent act or interferes with the rights of other people. The Civil Rights Law under article 6 allows for a formal procedure to occur for a name change and provides that the process be fast, definite, and recorded. Additionally, the right to change your name under Article 6 is given to both children and adults. Children must petition through a parent or a guardian. The petition for a name change must include the name, date, and place of birth, age, and residence of the person who is seeking a name change along with the name he/she wishes to change their name to. Additionally, a person must provide information of whether they have ever been convicted of a crime, if they have ever declared bankruptcy, and if there are any actions or judgments against them. A birth certificate or equivalent must be provided with the application.

Often times, parental and marital status is associated with access to several privileges, rights, and benefits in our society and published cases of name changes tend to focus on whether or not the change will confuse or cause conflict with the parental or marital status of a person.

This decisional issue in the matter of the law typically reflects relationships of unmarried individuals including unwed mothers that change their child’s surname to that of the man with which they live or for a woman that wants to change her name to her lover’s that she is not free to marry.

For this particular petition, there are no children involved. A New York DWI Lawyer said the petition concerns a grown adult who wishes to change her last name to that of her life partner of the same sex. Her life partner has consented to this name change. For this reason, the court only needs to consider the factors of potential fraud, misrepresentation, or interference with another individual’s life.

A recent name change case in New Jersey was denied on the basis that by allowing the individual to assume the last name of her same sex partner was the same as approving of gay marriage as it would be assumed that the couple was married.

In the state of New York, discrimination on the basis of sexual orientation is outlawed. A Nassau County DWI Lawyer said for these reasons, in this case the court feels that public policy considerations are appropriate and granting the name change would be consistent with public policy.

Court Decision

The court sees no reason for the name change to be denied and for that reason is granting the petition in favor of the petitioner and the name change is granted and recorded.

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May 25, 2012

Defendant Charged with Sexual Assault

This is a case of the People of the State of New York versus the defendant Carlos Hairston. The case is being heard in the Kings County Supreme Court.

Indictment

A New York DWI Lawyer said the defendant in this case is being charged with rape in the first degree, predatory sexual assault, as well as other charges.

The indictment states that the on the second of May, 2011, the defendant forced witness M.B. to have oral sex on him and have anal sex with him. A New York DWI Lawyer said on the fourteenth of May, 2011, the defendant is accused of forcibly touching the breasts of witness A.H. with both his mouth and his hands. He also forced this victim to perform oral sex on him and to have vaginal intercourse with him.

After reviewing the minutes from the Grand Jury, the People have dismissed the predatory sexual assault charges of the indictment. The defendant has now moved to have counts 12 through 15 of the indictment dismissed.

Arguments

The defendant states that the rest of the counts of predatory sexual assault do not properly state a crime or offense cannot be amended legally, and the use of the predatory sexual assault statute is in violation of the defendants due process rights.

The People maintain that using the predatory sexual assault statute is correct in this case and that the counts numbered 12 through 15 have been properly charged and presented to the Grand Jury. The People state that the counts were properly worded in the document provided to the Grand Jury.

Court Opinion

The predatory sexual assault laws under the Penal Law states that a person is considered guilty of predatory sexual assault if they commit a crime of rape, criminal sexual assault, aggravated sexual abuse, or a course of sexual conduct against a child in the first degree.

The defendant states that the People have failed to state an offense or crime in the counts being questioned. The argument is the same for all four counts in question and for this reason one example of the indictment will be discussed.

Count 12 of the indictment states that the defendant committed the crime of rape in the first degree by contact of his penis to the mouth of plaintiff M.B.

When reading the Penal law above, it is easy to see that it states that if the crime of rape is committed the person is guilty of predatory sexual assault. The People have shown sufficient evidence to support the claims of rape in the first degree against both M.B. and A.H. in this case. A Nassau County DWI Lawyer said the evidence shows facts and the sequence of events in each of the four counts of predatory sexual assault that the defendant has moved to have dismissed.

After reviewing the information that has been provided to the Court involving this case, it is found that the counts 12 through 15 of the indictment adequately state an offense or crime. Additionally, this finding rules the second contention of the defendant that the counts cannot be mended illegally moot. For these reasons the court finds that there were no procedural errors or flaws in the indictment that was provided by the People to the Grand Jury. The motion to dismiss made by the defendant is denied based on these findings.

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May 21, 2012

Defendant Claims an Abuse of Discretion

One early morning two men wearing ski masks robbed a store. One of them carried a handgun and wore latex gloves and the other was armed with a black shotgun. The robbery happened at around 4:30 A.M., which was half an hour before the store was scheduled to open. A New York DWI Lawyer said the two men came from behind a dumpster at the rear of the store and confronted the two male employees, one unloading a delivery truck and the other taking out the trash. The two employees were directed into the rear of the store and told to lie down in the storeroom. The man with a handgun demanded the cash from the employees and kept watch over them. The other man with the handgun moved to the front of the store where he encountered a female employee, whom he repeatedly punched in the face and then dragged by her hair to the store safe. The man then demanded the female employee to open the store safe. The two men fled with approximately $1,800.

During the investigation, police revealed evidence which led them to conclude the identity of the two men who robbed the store. The first man was charged with multi-count criminal charges. After a jury trial, the man was found guilty of robbery in the first degree, attempted robbery in the first degree, robbery in the second degree, attempted robbery in the second degree and conspiracy in the fourth degree. He was sentenced to an aggregate prison term of 14 years with five years of post release supervision. The man then filed for an appeal.

The man initially argues that the decision was against the weight of the evidence because of a different decision would not have been unreasonable. A New York DWI Lawyer said that based on records, the evidence included the fact that the man had previously worked at the store and bragged to some of his friends that robbing the store would be easy. The female employee, who had worked with the man at the store, testified that when the man in the rear of the store called to the front, the voice sounded like the man.

Further, the evidence indicated that the two men were familiar with the store's opening procedures, layout and theft prevention techniques. One of the male employees on the day of the incident described the shotgun used which matched the description of a shotgun recently purchased by the man and discovered in his bedroom when police performed a search warrant. The latex gloves were found in the man's car and another man, who was a friend of the robber, testified that the man admitted in participating in the robbery.

The accused man asserts that the Supreme Court made a mistake in not submitting to the jury the issue of whether his statement to police was voluntary. A Nassau County DWI Lawyer said the man adduces trial evidence and otherwise contends that the statement was involuntarily made and the court must submit such issue to the jury. However, the evidence at trial was not sufficient to raise a factual argument regarding the voluntariness of the accused man's statements and the Supreme Court properly ruled not to submit the felony issue to the jury.

Based on record, the appellate division further notes that the part of the accused man’s strategy in attempting to show his cooperation and lack of culpability included urging to the jury that he had voluntarily gone to the police station and freely made a statement.

Consequently, the court finds neither an abuse of discretion nor extraordinary situation warranting a reduction of the man's sentence for the criminal act. The remaining arguments have been considered and found useless.

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May 16, 2012

Defendant Brings Motion to Set Aside Consecutive Sentences

A man was charged for attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree. The charges were an incident which happened one evening at the corner of an avenue. A New York DWI Lawyer said the complainant together with another friend was approached by the man with his two companions. The discussion among them about the recent theft of the bicycle escalated into a heated argument at which the man told the complainant to mind his own business. The complainant hit the man once, whereupon the man took his gun out of his trench coat’s pocket, pointed it at the complainant’s face and fired. The complainant turned his head away from the shot and the bullet entered his left temple, lodging outside the brain case, where it remains. As the complainant ran from the scene seeking transportation to the hospital, the man held onto the gun and also left the area.

After a non-jury trial, the man was convicted of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced to consecutive indeterminate terms of imprisonment of two to six years and one year eight months to five years. However, the man moves to set aside the sentence on the grounds that consecutive sentences were unauthorized and illegally imposed.

Consequently, the man was acquitted of the charges of attempted murder, assault and criminal use of a firearm but was found guilty of the lesser-included crimes of assault in the second degree causing physical injury to the complainant and criminal possession of a weapon in the third degree having the gun in his coat pocket when he arrived at the scene and when he left the scene.

The man contends that his consecutive sentences must be leaved because the law mandates concurrent sentences for the assault and weapon possession convictions. A New York DWI Lawyer said the district attorney then concedes error and agrees with the man's contention that the consecutive sentences should be vacated, but urges the court to resentence the man to concurrent terms of 2 1/3 to 7 years, the maximum for a class D felony. The concession, as well as the man's argument, is rejected.

Based on records, the criminal possession of a weapon in the third degree includes that an individual knows that he is in possession of a loaded handgun. Further, the assault in the second degree includes an intent to cause physical injury, causes such injury and by means use of a deadly weapon. In addition, the penal law provides that sentences must run concurrently with each other where the underlying offenses were committed such as through a single act or through an act at which in itself constituted one of the offenses and also was a material element of the other.

The possession of the gun and assaulting the victim were not two crimes committed through a single act. The assault, occurring in an entirely separate factual scenario and with distinct, briefly overlapped the continuing crime of unlawful possession of a loaded gun. Since it was distinct in fact, spatially and temporally, it is distinct in law.

Consequently, apart from the technical distinctions posed that it is bad policy to give a free ride to a man who has been unlawfully carrying around a loaded concealed handgun, the crime was completed long before the victim was shot in the head. Indeed, a Nassau County DWI Lawyer said the two crimes are entirely distinct and severable. The assault could easily have been committed without concomitantly committing the crime by use of a licensed handgun or by a police officer.

As a result, the court finds the man’s motion to set aside the consecutive sentences and resentence him to concurrent sentences is denied.

There are times that a simple conversation can lead to argument causing worst situation. Whenever you get involved in a crime either you become the victim or the accused, ask help from the NY Criminal Lawyer. If you’ve been involved in possession of a weapon and you want assistance to lighten your conviction, call the NY Possession of a Weapon Lawyer at Stephen Bilkis and Associates.

May 15, 2012

Defendants Argue Search and Seizure Unlawful

The manager of a gas station was sitting in between the two gas pumps on the night of August 10, 1977. As he was sitting there, two men came to the station on foot asking him if he fixed tires at the gas station. The manager looked at the two men and something about them made him nervous. He talked with the men but he activated the transmitter in his pants pocket. The transmitter in his pocket set off a silent alarm in the sales office and the alarm dialed the number of the police station and played a pre-recorded message that the gas station was being robbed.

In the meantime, after the man activated the transmitter, his suspicions were confirmed for the two men announced that they were holding up the gas station. A Nassau County DWI Lawyer said they threatened to blow up the manager’s head off, telling him that they had a gun. They emptied the manager’s pockets and took $35. They also took the transmitter. They asked him what it was for but the manager didn’t answer. Again the armed men threatened to blow the manager’s head off.

They took him inside the sales office and they emptied the cash register of all the money. Then they took off on foot toward Taft Avenue. About six minutes after the manager had triggered the transmitter alarm, a cop came driving up. He had heard from the radio dispatch that a robber was in progress at the gas station and he responded as he was near.

When the officer approached on his patrol vehicle, the manager ran toward him, wildly waving his arms and yelled for him to pursue the robbers as they went toward Taft Avenue. The officer did not even stop his vehicle but proceeded toward the direction indicated by the manager.
As the police officer gave chase, another police officer arrived at the gas station and asked for the details of the incident from the manager. He relayed on the radio that the robbers said that they had a gun. He also relayed over the radio the description of the robbers.

While the details of the incident were being ascertained by the second police officer, the first police officer came upon a vehicle on the road. He saw no other vehicles and he saw no other pedestrians on the street. He turned on his flashing lights and sounded his horn as he tailed the vehicle. A New York DWI Lawyer said the vehicle did not slow down and it did not pull over. The police officer then blared his sirens but still the car did not pull over immediately. The car stopped after crossing two intersections.

The police officer held his shotgun and approached the vehicle on the driver’s side. He saw two men in the vehicle. He pointed the shotgun at them and ordered them to put their hands on the dashboard where he can see them. He then radioed for the exact description of the robbers. When he heard it, he saw that the description matched the two men. He then radioed for assistance. He told the two men that they were under arrest for robbery at the gas station. He gave them the Miranda warnings and ordered them to stay in the car.

When the other patrol cars arrived, the other police officers removed the two men from the vehicle. They handcuffed them and frisked them. They were not found in possession of a gun. The police officers searched the vehicle and still they found that the robbers were not in possession of a gun.
Later that night, the two men were brought to the police station and they were made to stand in a lineup. The manager of the gas station identified the two men arrested by the police officer.
After being identified, the men confessed to the crime and gave a statement to the police. They were charged with robbery. The two men confessed to the crime but they appealed their conviction. They asked that the money found in their possession by suppressed as having been obtained by the police under a warrantless search and seizure. They also asked that their statements confessing to the crime be suppressed.

On appeal the two robbers claim that when the police officer stopped them on the road, he had no reason to suspect them of having committed any crime. They also contend that their detention at gunpoint was unlawful. All the proceedings after that was also unlawful and so they should be acquitted.

The only issue on appeal is whether or not the stop and the subsequent arrest were lawful.
The Court held that when the police officer came upon the men in their vehicle, he already had probable cause. A crime of robbery at gunpoint was reported. The victim of the robbery told the police officers the general direction of the robbers’ escape.

The Court also held that the police officer had every right to draw his shotgun at the two men because it was night, he was alone and he had been given the initial report that the robbers were armed with a gun. He had a reasonable right to protect himself.

He did not immediately arrest the robbers as he had no probable cause yet. He asked for their description first to see if they matched. When the identification matched, it was only then that the police officer had probable cause to effect the arrest. But he could not immediately handcuff or frisk the two men as he was all alone. He waited for back-up.

A New York DWI Lawyer said the stop and the arrest were lawful. The constitutional rights of the robbers are not a protection against all searches and seizures. Their constitutional right is to be protected from unreasonable searches and seizures. The police officer The police officer had a right to defend himself even as he responds to the call of his duty. His use of the shotgun was for his protection in case the robbers were indeed armed and dangerous.

The subsequent lineup was also lawful and the statement was made voluntarily. The convictions must be upheld.

Sometimes, it is not necessary to actually have a gun to commit a robbery. Were you wondering if the lack of an actual gun can be a defense in robbery? Call Stephen Bilkis and Associates today, ask to speak to any of their NYC Gun Crime attorneys. Their New York City Gun Crime lawyers can help answer your questions. Their NY Gun Crime lawyers can represent you. Their New York Gun Crime attorneys can argue your case. Go to any of the offices of Stephen Bilkis today and begin your defense.

May 14, 2012

Court Decides if Property Owner can be Held Liable for Crime

On 17 April 2006, the victim, age 17, was in a backyard located at Farmers Boulevard, Hollis, New York visiting with his friend. Defendant was the owner of the premises.

At approximately 1:50 p.m., while the victim and his friend were working on a car in the backyard, the victim was fatally shot by a gunman who approached them. A New York DWI Lawyer said when the police arrived on the scene, the victim was still conscious and told the police that he was shot by someone who came up and shot him from the adjoining yard.

Thereafter, the victim was taken to Mary Immaculate Hospital where he was operated for his gunshot wound. However, at 8:26 a.m. the next morning, he died, never regaining consciousness.

The mother of the victim was appointed to be the administratrix of the estate.
Meanwhile, someone, who was not the shooter, was arrested on the day the victim was shot for possession of a weapon which was kept in the residence.

On 25 September 2006, five months later, the police arrested another person and charged him with the murder of the victim.

A New York DWI Lawyer said that on 18 April 2008, the mother, individually, and on behalf of the estate of the victim, filed a summons and complaint against the owner of the property where the victim was shot and against her daughter, as an owner or operator of the property, seeking monetary damages for negligence.

The complaint asserts one cause of action for negligence; that the decedent’s (victim’s) death or the gun crime resulted from the negligence of the defendants in their ownership and/or operation of the premises; that as a proximate result of defendants' acts of negligence, plaintiff has suffered damages in the amount estimated to be at least one million dollars ($1,000,000).

The complaint also requests for punitive damages.

On 22 September 2009, a verified bill of particulars was submitted and the plaintiffs claim that the property owner was negligent in the ownership of her premises in that she allowed and permitted non-residents to remain in the subject premises; she had knowledge of drug and criminal/unlawful activity or drug crimes which was occurring on her premises prior to and on 17 April 2006 and failed to take any measures to prevent unauthorized persons from residing therein; she permitted illegal criminal activity to occur at the premises and she failed to take any reasonable action to prevent the circumstances leading to the shooting death of the victim. A Nassau County DWI Lawyer said the plaintiff claims that the victim was an innocent bystander and that the assailant actually intended to shoot the victim’s friend.

Issues were joined. Defendant now moves for an order granting summary judgment on the issue of liability and dismissing the complaint against her.

Are defendants liable?

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure of the moving party to make such a prima facie showing requires denial of the motion regardless of the insufficiency of the opposing papers. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact.

On another note, a property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others. This duty includes protecting parties on the property from foreseeable criminal conduct by a third person. This duty arises when there is an ability and opportunity to control such conduct, and is reasonably aware of the necessity for such control.

A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor.
Here, upon review and consideration, the court finds that the defendant established, prima facie, that the conduct of the shooter was not foreseeable. The deposition testimony and police reports submitted by the defendant are not sufficient to establish the foreseeability of the shooting.

The courts have held that third-party criminal conduct is considered foreseeable as a matter of law where it is reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location.

Whether the prior criminal activity occurring within the subject premises provides sufficient evidence to establish that it is reasonably foreseeable that the tenants are at risk of harm depends on a variety of factors, including the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.
Here, it is clear that even if the daughter’s testimony regarding drug sales, which was all based upon hearsay, was true, loitering by transients and people who didn't belong in the house as well as suspected drug sales are insufficient to make the shooting a foreseeable event or to have put the owner on notice that there was a possibility of a violent shooting. There is no proof in the record as to the reason for the shooting but only newspaper speculations that it was the result of a drug deal that has gone bad.

Further, despite the allegations of drug dealing from the house, the shooting by an assailant who fired from an adjoining property was an unforeseeable and unexpected event which could not have been anticipated based on the level of criminal activity which was alleged at the house. The defendant had no reason to anticipate a possible shooting incident at the house. This event was not reasonably predictable as there were no prior occurrences of the same or similar criminal activity at the location. There was insufficient testimony of a history of physical violence or assaultive behavior other than one incident of a speculative assault on Johnson.
Moreover, the victim stated at the scene that he had been shot by an assailant (shooter) who was standing on an adjoining property. The fact that the assailant was not on the defendant's property at the time of the shooting also demonstrates that the defendant did not have the ability nor the opportunity to control the spontaneous and unexpected criminal act of the shooter or an awareness of the need to do so.

Thus, defendant established prima facie, that she had no duty to protect against the unforeseeable and unexpected shooting from the adjoining yard.

In opposition to the defendants' prima facie demonstration of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the unexpected shooting through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged.

Further, the police complaint reports submitted by the plaintiffs with respect to a complaints at 103-11 Farmers Boulevard for criminal mischief dated 5 January 2002, a complaint for child abandonment dated 27 March 2003, a complaint for a US Army issued handgun with ammunition found on the premises dated 7 August 2007 and a complaint for a violation of an order of protection dated 2 October 2002 are insufficient to have put defendants on notice or to raise a question of fact as to whether defendants should have anticipated a risk of harm from an act of violence or taken precautionary measures to protect against such an act or whether the owner knew or should have known of the probability of conduct on the part of a third party which was likely to endanger the safety of those lawfully on the premises.

Accordingly, the defendant's motion for summary judgment is granted and the plaintiffs' complaint against both defendants is dismissed; the branch of the motion for an order dismissing the plaintiffs' claim for punitive damages is denied as academic.

The responsibilities of property owners do not only involve mere property rights but include the safety of all individuals who stay at the premises. However, not all injuries that occur within the premises equate to negligence on the part of the property owner to justify liability just like the abovementioned case. To know more, contact Stephen Bilkis & Associates and converse with our NY Criminal Attorneys or our NY Possession of a Weapon Attorneys.

May 12, 2012

Court Discusses Territorial Jurisdiction

In 1993, the New York State Drug Enforcement Task Force began investigating a narcotics-trafficking ring centered at a Queens County garage known as W & G Auto Repair, which was operated by another individual. Surveillance and wiretaps revealed evidence of an interstate scheme by which cocaine was secreted in hidden automobile compartments and driven from San Francisco to New York. Defendant was the West Coast partner of the New York garage operator together with another person. A New York DWI Lawyer said another man oversaw transportation of the drugs cross-country. Defendant and his cohorts employed other individuals to drive, store and protect the drugs and equipment.

Between 13 April and 17 April of 1994, the task force intercepted a series of telephone calls defendant had with the other operators and the person in charged with the transportation about a planned shipment of cocaine from San Francisco to Queens County. The drugs were slow in arriving due to an overheated car. Task force members tried to intercept the delivery in Queens on April 17, but arrived too late at the exchange location, believed to be a McDonald's at 204th Street and Northern Boulevard. That night, the New York Operator called defendant and told him that the transport of at least 65 kilograms of cocaine was a success.

Based on a series of calls intercepted between 13 May and 19 May 1994, the task force learned of plans to use three cars (white, blue and green) to transport cocaine from San Francisco to New York. Defendant was in New York City for four days, from May 13 to May 16, meeting with his cohorts. During his stay, he made telephone calls to his California subordinates. He gave detailed instructions to them on preparing the cocaine for shipment to New York City via automobile, and planned to pay the travel expenses of a driver.

After returning to California, defendant continued his preparations. On May 17, he told the garage operator that he would put 21 kilograms of cocaine in the white car for an employee to pick up. A New York DWI Lawyer said that the defendant later reassured the operator that he would dress up the girls (prepare the cocaine) for delivery to New York. The operator told him to "fill up the space" in the blue and green cars.

On 19 May, task force members stopped the aforesaid employee just outside the San Francisco airport; after a brief search of his white Mazda, no drugs were located and he was sent on his way. He parked in the airport garage and entered the terminal, and upon his return to the car, the task force team intervened, finding 21 kilograms of cocaine in hidden compartments in the panels of the car's rear doors. Later that evening, task force members stopped a blue Volvo which had been left at a suburban San Francisco shopping center by another one of defendant's employee. At the time of the stop, another employee was driving the Volvo. Thirty kilograms of cocaine were found in a hidden trap behind the dashboard. Following these setbacks, defendant and the garage operator spoke by telephone and made plans to move their drug inventory to a new location.

The task force learned that the cohorts stored a large amount of cocaine in a "stash house" in Daly City, outside San Francisco. On the night of 15 June 1994, police recovered 23 kilograms of cocaine and more than $433,000 from the stash house. A Nassau County DWI Lawyer said that apparently, defendant and an underling entered the garage at the stash house while task force agents were inside; defendant later told the garage operator that he saw some strange people in the house and left. Defendant said that he doubted whether the people he had seen in the house were police. The other operator angrily told defendant that he had 48 hours to get him "that material." The garage operator told defendant to "load up" a car with drugs bound for New York as soon as possible.

In September 1994, defendant was arrested in California; the garage operator and the other conspirators were also arrested.

On 15 October 1994, defendant, and the others were charged in a special narcotics indictment with second degree conspiracy. Defendant and the two other New York operators were also charged, acting in concert, with three counts of first degree criminal possession of a controlled substance for the separate quantities of drugs seized in California.

Defendant was convicted of three counts of first degree criminal possession of a controlled substance or cocaine possession or a drug crime in violation of the criminal law, as well as one count of conspiracy in the second degree, and was sentenced as a second felony offender to an aggregate term of 35 years to life.

Defendant's cohorts in the conspiracy were also convicted as charged.

The Appellate Division affirmed defendant's convictions, concluding that territorial jurisdiction over the possessory offenses had been established in that defendant's telephone conversations with his New York-based accomplices were deemed New York conduct sufficient to establish an element of the offense.

The issue here is whether the prosecution for first degree criminal possession of a controlled substance and conspiracy was rightly exercised by the New York Court.

Did New York have territorial jurisdiction over the possession offenses regardless of the fact that the cocaine was seized in California which is also the defendant’s residence?

At common law, it was settled that jurisdiction over a felony offense was vested only in the state where the felony was completed. While long accepting this principle as a jurisprudential underpinning, courts have nevertheless recognized its substitution by statutes that have broadened the scope of territorial jurisdiction. Our statute has codified the general principle that, for New York to exercise criminal jurisdiction, some alleged conduct or a consequence of that conduct must have occurred in the state.

Plainly, jurisdiction over an offense exists based on a conspiracy occurring in New York to commit that offense. Further, jurisdiction exists only for those defendants whose criminal acts in furtherance of the conspiracy occurred in New York.

Here, the question is whether there was evidence of defendant's conduct in New York sufficient to establish his conspiracy to commit first degree criminal possession of a controlled substance. The court concludes that there was.

Moreover, with respect to possessory crimes, the Legislature has defined criminal possession in terms of dominion and control, and that unlawful possession is a continuing offense.
Two facts make a clear case for jurisdiction to prosecute defendant under the law: first, defendant was physically present in New York for some of the conspiratorial conduct on which jurisdiction is predicated; and second, the drugs in question were to be shipped to New York. Defendant flew to New York in May, and while in this state, he made out-of-state phone calls to underlings, met with New York cohorts and conspired to transport cocaine here.

To note, while defendant was present in the New York state, both physically and by telephone, defendant conspired with his accomplices and engaged in overt acts in furtherance of their possession of significant quantities of cocaine and their plan to transport the cocaine to New York.

Compelling evidence of a conspiracy tied defendant to each of the three possession counts.
By reason of the conclusion that jurisdiction is predicated on a conspiracy in New York to possess cocaine, the herein court need not consider whether jurisdiction might also be established under CPL or any other theory. Courts are bound by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal.

Moreover, at trial, defendant never alleged any constitutional violation, federal or state, concerning his prosecution by New York. Defendant never moved for a trial order of dismissal on the ground that the People failed to prove jurisdiction, and rejected the court's offer to place the interrogatories before the jury. Rather, defendant relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt.
Further, the ruling cited by defendant does not find application herein. The applicable law is not the same.

Finally, in the coast-to-coast drug trafficking operation, defendant conspired in New York with his New York cohorts to bring cocaine to New York affording a basis for the assertion of jurisdiction under our statutory scheme to prosecute him, jointly with his coconspirators, here.
Defendant's contention that his trial attorney was ineffective lacks merit.

Accordingly, the order is affirmed.

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May 11, 2012

Defendant Charged with Possession of a Controlled Substance

The Court of Appeals held that a conviction of criminal sale of a controlled substance premised upon an offering for sale theory must be supported by evidence of a bona fide offer to sell, which means that the evidence must show that the accused had both the intent and the ability to proceed with the sale. The accused assert that the evidence supporting the conviction was insufficient because no drugs were recovered by the police upon their arrest. A New York DWI Lawyer said they also claim that the court erred in failing to specifically instruct the jury that it could convict the accused only if it found that they had both the intent and ability to proceed with the sale.

The case originates from community complaints received by the New York City Police Department regarding drug crime and narcotics sales in Manhattan. A New York DWI Lawyer said in response, an undercover buy-and-bust operation was organized for the afternoon of April 24, 1998, in which undercover officer would attempt to purchase drugs at the location, a location where he had previously purchased crack and guilty of cocaine possession.

On that day, the undercover approached a group of individuals using the street term for crack, asked where he could get some. The accused the undercover what he was looking for and the undercover responded. The accused told the undercover he only had $10 per bag and the undercover ordered two dimes.

The accused told the undercover to walk with him, which he did. He then asked the undercover if he was a police officer, a confidential informant, an FBI agent or a drug enforcement agent. The officer denied being any. After the exchange, the accused told the undercover to wait. The accused approached a white Mustang, which was in front of them, and began talking to a man who became a co-accused of the accused. The co-accused was seated in the driver's seat. While the conversation was taking place, a third man exited from the passenger seat of the car and approached the undercover to look him over.

After the accused finished speaking to the co-accused, the accused returned to the undercover and directed him to speak to the man in the vehicle. The undercover asked the co-accused for two dimes. Expecting to receive two dimes, the undercover handed the co-accused a $20.00 of prerecorded buy money.

Instead of turning over the crack, the co-accused held out a crack pipe and told the officer to smoke crack from the pipe. The undercover observed that in the pipe there was a small rock, off-white in color, which, from his experience, appeared to be crack. In accordance with the policy of the Police Department covering the situation, the undercover refused the request. The co-accused inside the car said that the undercover will get his crack as soon as he takes a hit so he knows that he is not a cop. A Nassau County DWI Lawyer said the undercover then told the co-accused to give him the crack that he was purchasing or to give back the $20. The third man returned to the car and conversed with the co-accused who handed something to the third man. The third man exited the car and returned to the undercover, holding out a crack pipe and telling him to take a hit. The undercover again demanded the two dimes of crack or his money, but the third man insisted that he take a hit before he can get his stuff.

A second undercover officer, observing the events from 50 feet away, became concerned for the safety of the undercover because of the length of time it was taking to complete the transaction. Accordingly, the ghost radioed backup officers to move in. Moments later, the backup team arrived at the scene.

Although the co-accused and the third man were arrested almost immediately, the accused had begun walking away from the location just before the backup team arrived. The ghost, however, kept the accused under constant surveillance, except for a few brief moments when the accused turned the corner. As a result of a transmission radioed by the ghost, the accused was arrested a few blocks away. Immediately after securing the arrest location, the officers conducted a search. They were unable to locate the crack pipe, the prerecorded buy money, or any drugs.

Based upon the factual scenario, the accused parties were each indicted, and subsequently tried, for criminal sale of a controlled substance. At the trial, the jury sought a conviction premised upon an offering for sale theory, asserting that, since accused men made a bona fide offer to sell crack cocaine, the elements of the drug crime charged had been established.
After both the jury and the defense rested, the accused parties moved for a trial order of dismissal, alleging that, since no drugs were recovered by the police, a conviction of criminal sale of a controlled substance in the third degree could not be sustained. The Supreme Court denied the motion.

Abusing the use of controlled substance only causes us troubles and problems. The government through the help of different government and private agencies is doing the best way possible to alleviate drug crime related incidents. If you find yourself in the middle of drug crime actions, be sure to consult the New York Drug Crime Attorneys of Stephen Bilkis and Associates. Criminal lawsuits would require you to hire a NY Criminal Lawyer to represent you in court.

May 10, 2012

Court Decides if it Will Accept Independent Evidence

Police officers were assigned to conduct surveillance of an apartment in Brooklyn on suspicion of sale and possession of heroin. The police observed the apartment from 11 am to 1:30 pm of October 22, 1971 before one occupant (the first man) of the apartment came out. Forty-five minutes after that a second man knocked on the apartment door and spoke with the man who opened the door. A New York DWI Lawyer said the second man entered the apartment. An hour later, the second man came out of the apartment accompanied by the owner of the apartment.. The police arrested these two men.

When the police were approaching the apartment, the man who first left the apartment came back. The police arrested him as he got off the elevator. The police knocked at the door and a fourth man answered the door. The police entered the apartment and found a woman lying naked on the bed under the blankets.

On the kitchen table, the police found one thousand three hundred plastic sachets. A New York DWI Lawyer said they also found two huge plastic bags with white powder; a big plastic bag contained capsules. They found a scale, three boxes of cellophane, and a box of rubber bands.

The four men and the woman were all herded into the living room and arrested for criminal heroin possession and sale. The owner of the apartment pleaded guilty to the crime and he testified as a witness for the prosecution.

The apartment owner testified that he owned the apartment and that the three men and the lady were all his partners. The first man sold the drugs directly to retail buyers on the street, the second man distributed to other sellers. The third man, the one who answered the door was the office guy. He answered phone calls and took messages. He also kept the records of sales. The lady kept house for the men.

The three men and the lady were all convicted by the jury after a trial and found them guilty of criminal heroin possession and sale. The three men and the lady all appealed their conviction on the ground that they were convicted by the sole testimony of their co-accomplice without any independent corroborative evidence that proves the crime was committed.

The only question before the Court was whether or not the People were able to produce evidence at trial that corroborated the testimony of the owner of the apartment, their co-accused and accomplice.

The Court explained the reason for requiring that independent evidence be presented to corroborate the testimony of a co-accused and accomplice. The Court stated that co-accused may be motivated by ill-will, a desire for revenge, or by a desire to be discharged from prosecution that he might say anything whether true or not. Thus the need for corroborative evidence was mandated by the law.

The Court also opined that the reason for the requirement of corroborative evidence is the rule that no accused may be found guilty only on the basis of his own confession. A Nassau County DWI Lawyer said the Court also held that corroborative evidence is that evidence which connects the defendant with the crime and that which tends to prove that a crime was indeed committed.

Here, the independent corroborative evidence are the plastic sachets, the white powder which turned out to be heroin, the capsules, rubber bands and the weighing scale. The number of plastic envelopes, the volume of heroin and the other drug paraphernalia give rise to the inference that criminal heroin possession and sale were indeed taking place in the apartment.

The heroin and the paraphernalia were all found in the kitchen table of the apartment. This gives rise to the presumption that all the accused who were regularly present in the apartment were indeed engaged in heroin possession and sale. This evidence connects the accused with the crime.

Are you facing charges of heroin possession and sale? You need not fret. You need the advice and assistance of a NYC Drug Lawyer. Contact Stephen Bilkis and Associates for guidance and a free consultation.

May 9, 2012

Attorney Involved in Death of Young Girl

On the night of March 12, 1976, an attorney was at the home of an 18-year-old girlfriend of his. He was known to use heroin. He had offered the girl’s brother some in the past. The girl’s brother later testified in court that on this night, he went to his sister’s room and knocked. She did not answer her door and it was locked. He left and returned later. He again knocked on the bedroom door of his sister. This time the door was opened by the attorney. The brother could see his sister in the bed gasping for air and breathing heavily. The boy asked if she was OK and was advised by the attorney that she was just coming down from some depressants. A New York DWI Lawyer said the attorney told the girl’s brother that she would be OK in the morning. The boy went in to check on her and the attorney grabbed his briefcase and left in a hurried fashion.

The girl passed out and the brother left her in her room because the attorney had said that she would be all right. The attorney went to the home of a different friend and was in an agitated state. He informed the group of friends that was gathered there that he had injected the girl with a small amount of heroin in her buttocks. He said that he panicked when she passed out and ran out of the house. The following morning, the brother found his sister dead.

Several months later, the attorney was arrested in connection with the girl’s death. A New York DWI Lawyer said he was indicted and convicted of manslaughter in the second degree, and criminal injection of a narcotic drug. He had been charged with criminally negligent homicide as well, but he was acquitted on that charge. He filed an appeal. The defendant maintains that the prosecution did not have sufficient evidence to corroborate the information that they had obtained from the civilian witnesses that he had confessed to. He maintains that if the prosecution does not have sufficient evidence to prove the case, then there should be no conviction based solely on statements that he may have made to third parties after the event.

The statute that he referred to in order to bolster his defense is designed to protect a defendant from uncorroborated testimony of an accomplice. An accomplice may create a situation in which they state that the defendant confessed to them when in fact, the defendant did not. They may do this in order to work a deal so that they do not get charged or convicted. They are also known to construct this type of situation if they are trying to shift culpability to a defendant and away from their own involvement. It is also noted that there are times when a person may confess falsely to a crime that they did not even commit. For this reason, the law encourages corroboration from an outside source who is not culpable of any wrong doing.

In the case at hand, however, the confession was made to two different people at the same time who were not involved in the incident at all. The fact that the witnesses cannot be held culpable in the case at all prevents the defense from winning the argument that they would create the false confession to somehow prevent them from some type of prosecution. The night of the confession, the attorney had only referred to the dead girl by her first name which is a common name. There is no way that the witnesses could have known from that information who she was. A Nassau County DWI Lawyer said there was also no reason to believe that if they had been told who she was, that they could have gotten anyone to her in time to make any difference in the outcome. The Supreme Court upholds his conviction.

Stephen Bilkis & Associates has experienced criminal lawyers. They are knowledgeable in defending all criminal cases including negligent homicide or criminal injection of narcotics. They have convenient offices throughout New York and the Metropolitan area.

May 8, 2012

Court Determines Technical Violations of Parole

Defendant sold crack cocaine to an undercover police officer, a drug crime. On the day after the sale, defendant was arrested.

A New York DWI Lawyer said the defendant was charged with the crime of Criminal Sale of a Controlled Substance in the Third Degree.

Defendant pled guilty to the sole count of the indictment and in exchange was promised an indeterminate sentence of five to ten years of incarceration.

Defendant was sentenced as promised at the time of the plea.

On 7 May 2001, defendant was granted parole and was released from the Department of Correctional Services ("DOCS").

On 11 October 2006, the defendant's parole was revoked based upon a 2 August 2005 conviction for the crime of Criminal Possession of a Controlled Substance in the Seventh Degree or cocaine possession or crack possession, as well as several technical violations including: failure to report to his parole officer, failure to enter and complete a required outpatient treatment program, and his absconding from parole for a period of approximately three months. As a consequence thereof, a New York DWI Lawyer said the defendant was returned to custody at the Ulster Correctional Facility.

On 14 March 2007, the defendant was released on parole for the second time.
On 13 June 2007, just three months after he was released on parole, it was again revoked, this time because of his conviction on 22 May 2007 for the crime of Criminal Possession of a Controlled Substance in the Seventh Degree, together with additional technical violations including: failure to report to his parole officer and testing positive for cocaine & heroin. The defendant was returned to custody, this time to the Downstate Correctional Facility.
On 17 January 2008, defendant was granted parole for the third time.

On 19 August 2008, due to another drug related conviction on 6 August 2008 of Criminal Possession of a Controlled Substance in the Seventh Degree in addition to a technical violation regarding his failure to abide by his curfew, the defendant's parole was again revoked and he was returned to custody at the Downstate Correctional Facility.

On 30 December 2008, the defendant was paroled for the fourth time.

On 27 February 2009, defendant was again arrested for the crime of Criminal Possession of a Controlled Substance in the Third Degree. He pled guilty on 15 May 2009 to Criminal Possession of a Controlled Substance in the Seventh Degree.

Thus, on 4 June 2009, based upon the aforesaid most recent conviction and in conjunction with further technical violations including: failure to make scheduled office visits to his parole officer, failure to enter and complete a drug detoxification program, and his changing of his residence without permission, the defendant's parole was revoked for the fourth time on, and he was returned to custody.

While still in custody at the Bare Hill Correctional Facility based upon defendant’s fourth and most current parole violation, he moved for an order resentencing him to a determinate sentence in accordance with Penal Law, pursuant to the 2009 Drug Law Reform Legislation ("DLRA 3") as codified in Criminal Procedure Law. During a conference, the Court was informed that the defendant was, in fact, released from custody on or about 13 February 2010.
Should the defendant be granted an order resentencing him to a determinate sentence?

A Nassau County DWI Lawyer said that the 2009 Drug Law Reform Act provides that "any person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to 13 January 2005, who is serving an indeterminate sentence with a maximum term of more than three years, may, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed sentence."
From the above, it would appear that the defendant is within the class of persons eligible to move for resentencing under "DLRA 3." At the time that he moved for resentencing he was back in the actual custody of "DOCS", based upon his latest parole violation; the crime for which he had originally been convicted (Criminal Sale of a Controlled Substance in the Third Degree) and was committed prior to 13 January 2005; he had been sentenced to an indeterminate sentence (5-10 years) with a maximum term of more than three years; and, he was not disqualified by virtue of any "exclusion offense" (Criminal Procedure Law).
However, the defendant was not "in the custody" of "DOCS" within the meaning of "DLRA 3" when the instant motion was filed and was, therefore, ineligible to move for resentencing pursuant to Criminal Procedure Law. The Court's basis is upon the fact that the defendant had already served his term of imprisonment, having been released to parole on 7 May 2001, and was only then incarcerated by virtue of a fourth parole violation. This very issue concerning the proper interpretation of the term "in custody" has been addressed by appellate courts, including the Court of Appeals, in cases emanating from the Drug Law Reform Act of 2004 (providing an opportunity for resentencing of defendants convicted of A-I drug felonies) and the Drug Law Reform Act of 2005 (providing an opportunity for resentencing of defendants convicted of A-II drug felonies).

Courts have held that based upon the common sense view, the Legislature did not intend "fresh crimes" to trigger resentencing opportunities.

The Court is not aware of any appellate authority on the resentencing/custody issue at bar with respect to "DLRA 3." There have been several trial level courts which have rendered decisions, both reported and unreported, analyzing the rights of incarcerated parole violators to apply for resentencing.

In one case, the Court wrote that "in the 2009 DLRA the Legislature created a long list of offenders who were statutorily ineligible for resentencing because of their previous criminal histories." The Court further opined that "this detailed listing creates a strong inference that the Legislature intended those offenders and not others to be barred from the statute."
The Court does not share a similar opinion regarding the Legislature's intentions.

It is true that the Legislature specifically highlighted those classes of persons who were barred or ineligible for applying for resentencing under "DLRA 3" including certain violent felony offenders, those offenders convicted of merit time ineligible offenses and all second and persistent violent felony offenders. However, the hierarchal placement of the subject language, as contained in the statute, compels the conclusion that, before any consideration to disqualification can be entertained by the court, the potential applicant for resentencing has to first establish strict compliance with the four condition precedents set forth in Criminal Procedure Law, namely: custody; conviction of an Art. 220 Class B felony offense; commission of the offense prior to 13 January 2005; and, an indeterminate sentence with a maximum term of more than three years.

The first so-called condition precedent; namely custody by "DOCS" was present under both "DLRA 1" and "DLRA 2" and has been consistently held by the appellate courts not to be compatible with situations wherein the defendant's "subsequent" custody was the product of a parole violation of the underlying conviction.

Accordingly, the Court finds that defendant is ineligible for resentencing under Criminal Procedure Law. The motion is denied.

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May 7, 2012

Defendants Claim Confessions Read at Trial Unfairly Swayed Jury

On January 10, 1990, two men who were drug dealers met and decided that they were going to have to rob a convenience store owner from India because he owed them $5,000 for a previous drug deal. A New York DWI Lawyer said he had not paid the men and they wanted to make an example of his as well as recoup some of their losses. They went to the store that evening and he was not there. The following day, the two men met with two other men and arranged to get a van and meet at the convenience store that night. One man drove the van and dropped the others off at the store.

There was one other employee in the store that night. He was also from India. He saw the discussions that were taking place between the storeowner and the two men who were at the store, but claims that he did not take any notice. He had gone to work at the convenience store for less pay than he had been making as a cab driver before taking the job. There was some speculation as to his involvement in the drug business that was going through the convenience store. The store was to close at around three in the morning. At closing time, the employee counted out the store’s receipts for the day and gave them to the owner. It was about $2,500 in cash. The two men accompanied the storeowner and the employee out of the store. In front of the store, the owner and employee pulled down the security shutters and locked the building.

It was then that the employee said that the men pointed a gun at the storeowner and the other man put a gun into the employee’s side and told them to get into the storeowner’s car. They were taken to an isolated area where the man in the front passenger seat shot the storeowner in the head. The van pulled up and the men got out of the car with the employee. They left the storeowner slumped over his steering wheel presumably dead. The employee was taken back to his home and told that if he told anyone about what he had seen, he would be killed. The other men left the van abandoned and got into a different vehicle and everyone was dropped off at their homes.

The following day, the two men met with another man with whom they had been planning a drug deal. They did not know that this man was an employee of the Drug Enforcement Administration. The DEA agent was making a drug deal arrangement with the men when one of them commented that he had not gotten any sleep the previous night because they had killed an Indian man for not paying his debt to them. A New York DWI Lawyer said the men asked the DEA agent if he could arrange for silencers for the guns that they had used to kill the Indian man. He told them that he could if they would bring the guns to him to be fitted for the silencers. The men left and the DEA agent contacted the Queens Homicide Unit to report the information about the homicide. He was advised that an Indian male had been found dead in it car in the manner that had been described.

The DEA agent met with the men again and taped a conversation with them in reference to the two guns that they had brought to be fitted with silencers. The DEA agent commented to the men that he did not think that the guns they brought him could fire, let alone kill anyone. The men stated on tape that the guns were the ones that had been used to kill the Indian storekeeper. Shortly after that meeting, the men were arrested. Five men in all were arrested, including the store employee.

During the trial, two of the men testified at the trials of the others. Statements had been taken from the other two men. They did not testify at trial. Each man was tried separately. A Nassau County DWI Lawyer said the court was concerned that the trials would be tainted by the statements of the men because they each claimed that one of the others had committed the actual homicide. The court ruled that the statements be redacted to remove all of the names of the suspects and replace them with innocuous pronouns. All of the men were convicted with the exception of one who was acquitted. The men appealed their convictions.

They appealed based on the assumption that the confessions were not sufficiently redacted by adding the pronouns. They stated that the statements unduly prejudiced the jury against them and that it prevented them from obtaining a fair trial. The defendants stated that the confessions that were read at trial inferentially incriminated the defendants who did not confess to the crime. The Supreme Court agreed and overturned the convictions of the two defendants who did not confess. The two who confessed were not harmed by the reading of the confessions in the view of the Justices. The defendant who was acquitted was not harmed and did not request any recourse from the court.

Cases that involve several defendants create special problems for prosecutors. They must balance the rights of the offenders who have not confessed with the rights of the prosecution to reveal the confessions of the ones who were involved in the crime who do confess. This can be tricky and most often leads to failures in the adequacy that the goal is accomplished. It is this type of failure that can only be recognized by an attorney. The rights that are protected in a court of law go beyond the rights of defendants that have committed horrible crimes such as this one. The rights that are being protected in these courtrooms are the rights of every American citizen. If a prosecutor or police officer is allowed to win a case with improper actions this time, the next case may be an innocent person. It may even be you. Every time that a defense attorney uncovers an impropriety in the courtroom process, they have won a small victory for civil rights in this country. Sometimes, it can be difficult for a community to recognize that the defense attorney is the person who protects the civil rights of all people. When a defense attorney requires that the prosecutor present a case that is well-formed and established on good evidence that is fair and impartially presented, that attorney is ensuring that innocent people are not subjected to improper behavior on the streets of their town every day. Civil rights are the foundation of American life. Liberty is more precious than any currency there is. It is critical that people not lose sight of the fact that it is better for ten guilty men to go free than it is for one innocent man to be sent to prison. That sentiment is just as true now as it was when it was first made.

Stephen Bilkis & Associates has a group of experienced Queens Criminal Lawyers. They have convenient offices throughout New York and the Metropolitan area. A Queens Drug lawyer is the best choice for your defense.

May 5, 2012

Court Looks at Possible Illegal Search

A police officer was on patrol one evening when he received a call regarding a disturbance at a certain street. He was advised that an occupant of a tan Honda Accord, with the license plate no., was holding a gun out of the window; a possible gun crime. However, no description was given regarding the occupants of the vehicle.

A New York DWI Lawyer said he aforesaid street was a known gang and drug location where a gang known as the "MS-13" displayed their "tags", symbols on buildings at that location. The police officer on patrol had previously responded to the same street and was familiar with the area.

The police officer responded to the call and upon arrival at the street he observed four to five individuals next to the tan Honda Accord with the same license plate as reported, some of whom were wearing the blue bandana gang colors of "MS-13", who were believed to be the occupants of the vehicle.

Thereafter, the officer approached the individuals with back-up and asked if anyone owned the tan Honda Accord. A New York DWI Lawyer said when one of the individuals at the scene responded that they were the owner of the tan Honda Accord, the officer proceeded to put everyone up against the wall and performed a "pat-down" for safety and felt a gravity knife in the defendant's pocket, leading to the defendant's arrest.

Defendant is charged with one (1) count of Penal Law; criminal possession of a weapon in the fourth degree, a class A misdemeanor.

Upon stipulation of both parties, the Court conducted a Dunaway/Mapp hearing.
The police officer was called upon to testify. The defendant did not call any witnesses. It must be noted that the aforesaid police officer’s credibility is without question. He is currently a fourteen (14) year veteran with the Nassau County Police Department and prior to that time he served six (6) years with the New York City Police Department. He had training in both the New York City Police Academy and the Nassau County Police Academy and has assisted in approximately fifty (50) arrests for dangerous weapons.
Issue: Is the gravity knife admissible in evidence?

As with most police-citizen street encounters, the Court must weigh the reasonableness of the governments interest in trying to provide a safe and crime free society against the encroachment involved with respect to an individual's Fourth Amendment rights to privacy and security.

A Nassau County DWI Lawyer said in an an effort to balance these, sometimes competing interests, the Court of Appeals in one case provided four-tiered analytical framework, that escalates, as attendant factors increase in weight and competence of permissible police intrusion that does not run afoul of the Fourth Amendment, which are: Level One of permissible police intrusion occurs where the police request information from an individual when there is some objective credible reason for that interference not necessarily indicative of criminal activity; Level Two of permissible police intrusion of an individual occurs when there is a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure; Level Three of permissible police intrusion occurs where the police have a reasonable suspicion that a particular person has committed or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person and if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed" he may frisk the detainee; Level Four, a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence.

Simply put, the four levels of permissible police activity start with Level One, the least intrusive, and gradually escalate depending on the circumstances to Level Four, the most intrusive.
Here, the police officer arrived at the location and saw the vehicle as described by the call. Thereupon, he had a founded suspicion that criminal activity was afoot and therefore engaged in a Level Two inquiry by simply asking the individuals standing next to the vehicle in question "who owned the car". When one of the men in the group of four to five responded it was their car, the officer was justified in performing a pat-down of the defendants for the officers safety based upon the fact that the radio transmission he received a few minutes earlier indicate one of the occupants of the car had a gun. Therefore, under a Level Three inquiry, the police were justified in performing a "pat-down" of the defendant. In addition to the foregoing, the Court is also mindful that the police officer testified that such particular location was known as a gang/drug location and he also observed the MS-13 gang symbols on the buildings as he approached the individuals.

While a gang affiliation or a high crime area does not, by itself, provide a basis to justify a stop-and-frisk, a police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality; neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality; there is not any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message.
When the police officer was performing his "pat-down" of the defendant he felt a gravity knife which he recognized from his training and twenty (20) years of experience as a police officer and therefore the Level Three encounter was elevated to a Level Four encounter whereupon the defendant was arrested.

A similar case is brought to the attention of the court. The arresting officer received a radio transmission regarding a knife-point robbery at an Exxon station involving three black males. Approximately fifteen (15) minutes after receiving the transmission, the officer observed, in the vicinity of the scene of the crime, three black males, two of whom wore clothing matching the description furnished in the transmission. When the officer called out to the defendant and his companions, requesting them to stop, they changed direction and increased their pace. The officer then ordered the suspects to stop. The court finds that the defendant's initial detention was supported by reasonable suspicion founded on articulable facts. Moreover, once the officer observed a bulge in the defendant's pocket, he is justified in conducting a limited pat-down search to ascertain whether the defendant was armed with a weapon. Probable cause to arrest the defendant existed upon the discovery of a knife in his pocket. Accordingly, the officer was entitled to effectuate a warrantless arrest since he possessed reasonable cause to believe that defendant was one of the perpetrators of the robbery.

In conclusion, it would be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety. Considering the totality of the circumstances, including the radio call and the information acquired by observation at the scene, there was an ample measure of reasonable suspicion necessary to justify the limited intrusion which produced the gravity knife.

Accordingly, the gravity knife is admissible in evidence.

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May 4, 2012

Defendants Convicted of Violation of the Hobbs Act

The United States of America is the plaintiff and the appellee in this case. The defendants and appellants of the case are John Franklin Roper and Dr. Luther Lewis Ashley, Jr. The case is being heard in the fifth circuit of the United States Court of Appeals.

Criminal Case and Appeal

A New York DWI Lawyer said this is a criminal appeal as the defendants were convicted of violations of the Hobbs Act on four counts. The indictment charged Loren Ralph Fossum, Ashley, and Roper of extorting over three hundred thousand dollars from Eastern Airlines.

The United States government states that when Ashley and Fossum were visiting Atlanta at the end of March and beginning of April in 1976 they wrote and sent a letter to Eastern Airlines. The letter was sent to the airlines through a taxi and stated that there was a bomb planted at a terminal or Eastern Airlines in a southeastern airport. The letter also stated that if the airlines were to place three hundred thousand dollars in a suitcase marked “Timothy Swinton” and put in on a flight from Atlanta to Greenville, South Carolina, they would notify the airline in time to find the bomb and prevent it from going off.

Eastern Airlines contacted the FBI. The airline proceeded to fill the suitcase with forms and one hundred dollar bill that was marked. A New York DWI Lawyer said they placed the bag on the specified flight. The FBI failed to intercept Roper and he was able to pick up the bag at the airport.

A day later Fossum went to the FBI office located in Greenville and implicated both Roper and Ashley. On the third of April all three men were arrested. Fossum went on to testify against the other two with a grant of immunity. Both of the other men, Ashley and Roper, were convicted on four counts.

Ashley’s Case

Ashley makes the argument that he was not allowed by the trial judge to impeach the principal witness of the government, Fossum, based on the fact that Fossum had previously been convicted of shoplifting. Ashley states that the crime of shoplifting shows dishonesty and moral turpitude. In addition, Ashley states that there was possible inference in the presentence reporting as there is not any confidential information provided about Ashley.

We have made the decision to remand for the determination and resentencing for this particular case is granted.

Roper

Roper first states that his arrest was improper. He goes on to state that the evidence that was taken when he was arrested was not admissible during his trial. A Nassau County DWI Lawyer said he states that there was no probable cause for his arrest. He also states that if there was probable cause, the police officers who made his arrest did not have the knowledge of the probable cause.

In establishing probable cause in this case, Fossum’s testimony is relied upon. He gave information about where they were to meet and details about the scam that only someone that was on the inside could have known. He gave a description of Roper as well as a description of the Jeep that was driven by Roper. This information is enough to establish probable cause.

After reviewing the case, we find that the conviction of Roper is correct and we affirm the previous conviction.

Legal situations can become quite stressful, especially if you do not talk to the right lawyer. At Stephen Bilkis & Associates we offer free consultations to help you through any difficult legal matter. You may contact one of our offices located in the City of New York to set up your appointment at any time.

May 3, 2012

Defendant Appeals for Sentencing Reduction

The plaintiff and appellee in the case is the United States of America. The defendant and appellant of the case is Felicia Monique Dunn. The case is being heard in the fifth circuit of the United States Court of Appeals.

Appeal

A New York DWI Lawyer said Felicia Monique Dunn is appealing her sentence for possessing cocaine with the objective to distribute. She also was charged with aiding and abetting cocaine. Her reason for appeal is that there were two shoplifting convictions that were used to add to her sentence. Under guidelines for sentencing she states that a lower enhancement is necessary as both the offenses occurred at different stores located in the same mall during roughly the same time frame and were heard in the same court with the same pleas and sentences that were concurrent.

Original Case

In a plea agreement, Felicia Dunn made a plea of guilty to possessing of cocaine and the intent to dispense cocaine. A New York DWI Lawyer said the report submitted for presentencing recommended the offense level of 25 after a reduction of three levels. Eleven criminal points were added, resulting in a category V criminal history level. This resulted in a sentencing of 100 to 125 months in prison.

Felicia Dunn argued the presentencing report, stating that she should receive a two point level reduction in regard to the shop lifting cases. She was given four criminal history points based on the offenses of shop lifting. She stated that she should have only received two points for these offenses because they happened on the same day and they are “related” cases and under the guidelines for sentencing should only result in two points.

Shoplifting Case Facts

On the 17th of March in 1994, Felicia Dunn was arrested for shoplifting. This occurred in the Post Oak Mall located in College Station. The store that accused her of shoplifting was the Limited, a clothing store. An investigation that followed found that there were three other stores that she had taken items from. However, only the Limited as well as one other store pressed charges against her. A Nassau County DWI Lawyer said she was charged on two separate counts of shoplifting, with two separate complaints, and two cause numbers that were sequential. She received sentencing for both of the crimes on the same day. The sentences were identical and ran concurrently.

Case Discussion

When sentencing for the present case was granted, the district court provided a two level reduction for her minor role in the offenses. However, Dunn stated that she should receive two more points in the deduction based on the relation of the shop lifting incidents. The district court overruled Dunn’s objections, stating that there was another case where a person committed burglaries in two buildings that were adjoined and it was considered separate offenses and this is no different.


Court Decision

In the sentencing guidelines it is clearly stated that each separate offense should be counted as such. However, if prior sentences are imposed in cases that are related, then the case should only be treated as a single sentence when used for the purpose of assigning points for criminal history. For this reason, we find in favor of the appellant and we vacate the original order and sentencing and remand the previous court to resentence in this case.


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May 2, 2012

Defendant Claims Sentencing was Disporportionate to the Crime

This is a case of Ewing versus California. The case is being heard in the Second Appellate district in the Court of Appeals in California. The original case was argued on the fifth of November in 2002 and the decision was made on the fifth of March in 2003.

Case Discussion and History

A New York DWI Lawyer said California is one of the states that have initiated a three strikes rule. Under this law it is stated that if an person is convicted of a felony and has been convicted of two vicious or serious felonies in the past, an indeterminate life term in prison will be given. The defendant will be eligible for parole on a date that is relevant to the minimum term of the case. In this particular case the parole date is set at 25 years.

The petitioner of the case, Ewing, was on parole and during this time frame he was convicted of a felony grand theft. Ewing stole three golf clubs that were valued at approximately $400 a piece. Based on the requirements of the three strikes law, the prosecutor alleged that Ewing had been convicted of four previous felony charges and because of this should received a conviction of 25 years to life. A New York DWI Lawyer said at the time the court refused to use discretion in reducing the charges of the stolen golf clubs to a misdemeanor, under a state law that would allow the court to do so.

When appealed in the State Court of Appeal, the verdict was affirmed. The court refused the claim of the appellant that stated his sentencing was disproportionate to the crimes committed. The court reasoned that the purpose of the three strikes law was to deter repeat offenders and this was at work in this particular case. The Supreme Court denied any review of the case.

Judges Reasoning in the Case

Justice Kennedy, Justice O’Connor, and the Chief Justice have all concluded that the sentencing that Ewing received was appropriate and there was no violation of the Eighth Amendment in the case. It is found that the Eighth Amendment is narrowly proportionate and only applies to sentences that are noncapital offences.

Additionally, the states that have enacted three strike laws have made a deliberate choice in policy when dealing with repeat offenders. The laws are in place to deal with criminals that repeatedly engage in violent and serious criminal activities and who have shown that no matter which conventional punishment is given, they are unwilling to change their behaviors. Although these laws are somewhat new, the courts typically will stand with the state legislatures on issues such as this that are of such importance.

While Ewing claims that the punishment is not proportionate for the crime he committed, it stands to reason that the offense should not be taken lightly. This particular offense cannot be defined as a “wobbler” as defined by the state. A Nassau County DWI Lawyer said the crime was considerable and unless is defined as a misdemeanor by the court, will be considered a felony and this court is unwilling to redefine this.

While in other states the maximum sentencing for a case such as this would be lower, we find that the sentencing is not excessive in this case in the state of California. The previous judgment and sentencing in the case are affirmed.

Stephen Bilkis & Associates can help you through any legal trouble you may find yourself in. If you are unsure what your next step should be, you may contact one of our offices to set up your free consultation. We have offices conveniently located throughout the city of New York.

April 30, 2012

Court Decides if DWI Offender Should be Denied Gun License

The right to bear arms in this country is a vital part of our country’s history. In recent years, the right to bear arms, has been more limited than at any other time in the history of this nation. In order to bear arms in New York, a person must apply for a license. The laws that control the eligibility requirements for obtaining a pistol license are unusually broad. The pistol-licensing officer has tremendous discretion when it comes to approving permits. Penal Law § 400.009(1) states that the pistol licensing officer has the right to deny any application for any good cause.

A New York DWI Lawyer said there have been several appeals based on decisions of pistol licensing officers to deny the right to bear arms in the state of New York. No one wants to have people with mental problems, or serious criminals running around with firearms. So where is the line drawn? Florida’s stand your ground law is being criticized in the news because of the recent shooting involving a neighborhood watch representative who was armed when he encountered a teen in a hoody this year. The teen did not survive the encounter. There were no witnesses to the shooting. The neighborhood watch representative stated that the teen attacked him and he was in fear that he was going to sustain serious bodily harm. Following the police investigation and community outcry, the neighborhood watch representative was arrested. If the neighborhood watch representative had not been armed, the situation would have been different. Whether that means that the neighborhood watch representative would have been injured by the teen is unknown. There have been many situations where people who have exercised their right to bear arms, have had to justify their choices. Ultimately, if a person has to defend their lives in the face of a threat, they are glad to have a gun with them.

In one case from New York in 2011, a man appealed the judgment of the pistol licensing officer who denied his request for a pistol license. He stated that there was no reason for the license to be denied. A New York DWI Lawyer said the pistol licensing officer determined that the man had been arrested three times for DWI and had one conviction for DUI. One of the arrests for DUI occurred while his pistol license was in review. In this case, it is fairly obvious that this man did not exercise good common sense when it came to his actions. Does this mean that he should not be allowed to carry a pistol? It would probably be a bad idea.

Because this man appears to have a problem with maintaining sobriety, he would most likely not be a good candidate to carry a pistol. Anyone who is intoxicated, does not have the mental acuity to be able to manage a firearm. Guns and alcohol do not mix. The appeals court determined that the pistol licensing officer was correct. He decided that three DWI charges made this person a high risk option for a weapons permit.

When it comes to deciding who should and who should not be allowed to have a pistol license, it is important that guidelines be set. Currently, a finite number of people are entrusted with deciding how much of a risk each person is who files a pistol license request. A Nassau County DWI Lawyer said although, the law does not specifically spell out the guidelines involved, it can be agreed that a person with an alcohol or drug problem is not a good choice. However, even with these arrests, this man filed an appeal attempting to get the decision overturned.

At Stephen Bilkis & Associates the ability to have a Criminal Lawyer who has convenient offices throughout New York and Metropolitan area is available. Do not your rights after a DUI arrest. Our NY DUI Lawyer/Lawyers can provide you with advice to guide you through difficult situations. Without an New York DWI Lawyer, you could lose your rights and your freedom.

April 27, 2012

Defendant Contends Eyewitness Testimony is Incorrect

Cases that involve drug crimes often include violence. In some cases, this violence is more severe than others are. Few people will not admit that the violence of a criminal exploit is directly relative to the amount of money that the criminal stands to gain. A New York DWI Lawyer said in drug crimes, a criminal often stands to profit huge amounts of money. It doesn’t take much imagination to see the correlation between the modern prohibition against drugs and the historical prohibition against alcohol. Both have caused huge spikes in crime rates and violence. Whenever there is a market for a substance, someone will supply it. If that substance is illegal, the price to obtain it is higher because the supplier is shouldering substantial risk. This is nothing new. John Hancock was a convicted tea smuggler. During the civil war, many privateers smuggled products into the south through the blockades of the ports. Smugglers are nothing new. They are simply privateers who are attempting to increase their income at the expense of people who are willing to pay an inflated price for an illegal substance.

With drugs that are highly addictive, the smuggler or supplier’s income is virtually secure. A New York DWI Lawyer said it is in their best monetary interest to peddle an addictive substance to ensure that the customer will continue to come back and purchase more. In the 1980s, the ability to smuggle drugs into this country was incredible. There were famous drug lords in Bolivia and other areas of South America and Mexico. These men were ruthless and their drug cartels became their family businesses. Few were better known than the Escobar’s.

On January 26, 1985, a woman was standing outside of the ladies’ room in the Extasis bar in Queens County, New York. The music was loud, and she thought she heard firecrackers going off inside of the mens’ room. As she stood in the cramped hallway, she saw a man open the mens’ room door with one hand while holding a handgun in his other. While she watched, she saw him fire two more shots into the mens’ room. The man ran out of the bar. The woman looked into the bathroom and saw the body of another man on the floor bleeding from gunshot wounds. It was later determined that he had been involved with drug trafficking with the Escobar family.

Detectives began an investigation into the homicide from the bar. By March 6, 1985, they had enough probable cause to get a warrant for the arrest of Luis Escobar. They waited for Escobar on a street in Queens County. When the officers approached him, he dropped the duffel bag that he was carrying and ran back into the building. A Nassau County DWI Lawyer said that after a foot chase that ended in Escobar’s arrest inside of an apartment that he was known to frequent, officers discovered a large amount of drug paraphernalia. They also found the book keeping ledgers for the Escobar cartel detailing each of the drug transactions made and the amount of money that was paid.

Outside of the apartment, officers recovered the duffel bag and found that inside was more than one million dollars in cash. The cash was divided into neat bundles and labeled according to the purchaser and payment made. The money and notes matched notations in the book keeping ledgers. When the detectives reviewed the book keeping ledgers, they discovered that the victim had owed the Escobar around $137,500 for the purchase of cocaine. Cocaine is known to be a highly addictive drug favored by South American drug cartels.

The evidence was growing. Luis Escobar was indicted for murder, drug trafficking, and other felony crimes. The following items were admitted into evidence at the trial: One million dollars + in cash, ledgers, paraphernalia, and other evidence. This evidence was used to prove that Escobar knew and conducted business with the homicide victim from the bar.

The defense team rallied. They challenged the eyewitness from the bar’s identification of Escobar. They claimed that since he was wearing a disguise at the time that he was in the bar, she could not possibly identify him as the man who she saw shoot the victim. They further claimed that the eyewitness could not possibly have seen Escobar shoot the victim because there was a friend of Escobar’s who testified differently. He testified that Escobar was not at the bathroom at all, but was instead at a table in the bar with him when the shooting happened. He also testified that he had seen one man exit the bathroom after the shooting and that it was not Escobar. On March 10, 1986, the Supreme Court of Queens County found Luis Escobar guilty of murder in the second degree and criminal possession of a weapon in the second degree.

Luis Escobar appealed his conviction on the grounds that he could not be found guilty beyond a reasonable doubt. This contention was based on his interpretation that the eyewitness testimony was impossible and that the eyewitness could not be considered an eyewitness because she never saw a shot enter the body of the victim. The Supreme Court found that this concept was not believable. They maintained that what the victim saw was clear and strong. The fact that a man stood in the doorway of the bathroom and fired a gun in the direction of the interior of the bathroom and the victim, who was the only person in the bathroom when rescuers arrived, was shot with a gun. The justices find that it is a logical progression, that the person firing the gun from the doorway shot the dead man in the bathroom. They determined that she did not have to see the actual bullet enter his body, to believe that she saw the person commit the murder, and that the person who fired the gun was Escobar. They further determined that the credibility of the witness was for the jury to determine and that the jury determined that her testimony was credible.

The defense team also felt that the evidence of the cash, ledgers and loan amount to the victim was not appropriate and was exculpatory to the murder case. They felt that it was a completely separate crime on a separate date which should have been tried separately. The Court disagreed. Since, the loan to the victim was $137,500. It showed that there was a reason for the loan in that the victim was involved in a drug trafficking enterprise with Luis Escobar. The evidence, therefore, served a dual purpose to establish a motive and to provide the evidence to support the drug trafficking offense.

The Justices hearing the appeal found that the evidence was properly admitted. They found that it was not admitted for the simple act of proving that Escobar was a criminal, but rather to show a motive for the crime of murder. The additional benefit that it proved the drug crime was just icing on the cake. The justices found that Escobar’s remaining contentions about his trial not being fair are without merit and the verdict of guilty is upheld.

At Stephen Bilkis & Associates Queens Criminal Lawyers, have convenient offices throughout New York and the Metropolitan area. Your freedom is our concern. Our Queens Drug Lawyer can provide you with advice to guide you through difficult situations.


April 27, 2012

Court Discusses Miranda Warning at DWI Stop

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.

April 24, 2012

Court Discusses Sick Leave Policy in Light of Domestic Violence Allegations

On 1 June 2000, petitioner was hired by the New York City Department of Correction, subject to a two-year probation period. She is the mother of two pre-teenage children and a victim of abuse by their father, a crack and alcohol abuser with a criminal history.

A New York DWI Lawyer said on November 2000, petitioner moved out with her children and went to live with a relative in the Bronx. Things did not work out and she was ejected from that apartment on 22 March 2002. She requested vacation time to find a home and was granted leave through 4 April 2002.

On 5 April 2002, petitioner, who was still homeless, asked the Department's Health Management Division (HMD) for further time off to continue her search for a place to live. HMD put her on immediate sick leave due to stress, confiscated her identification, and directed her to obtain a new one which reflected she was psychologically unfit to carry a firearm. At that same meeting, HMD demanded that petitioner provide them with an address. When petitioner told them she was homeless and lacked an address, she was told she could not work at the Department without one. A New York DWI Lawyer said faced with that threat even after she had explained her homelessness, she gave her husband's address.

HMD conducted a visit to petitioner at her husband's address in April 2002. When she was not found there, they required her to appear at HMD the following day to explain her unauthorized absence from home. Informed of these events by her mother-in-law, petitioner appeared at HMD and at their request wrote a report explaining her circumstances and homelessness.

Nonetheless, HMD made four subsequent visits to the husband's residence in April and May 2002 expecting to find petitioner there. Petitioner remained homeless, sleeping variously in her car, hotels, shelters or friends' homes. Petitioner did return to her husband's home on 27 April 2002, and again on 10 May 2002 but both times he assaulted her and she had to seek police intervention and leave again.

On 14 May 2002, petitioner finally obtained a stable residence upon her admission to a domestic violence shelter, Safe Horizon. According to petitioner, Safe Horizon does not allow its residents to divulge their exact address to anyone who does not sign a confidentiality agreement; so when she called HMD to apprise them of her new address, she gave them the shelter's office address as the place to contact her. When HMD's monitor attempted to visit petitioner at the shelter, she was told by staff that petitioner's residence would not be disclosed unless she signed a confidentiality agreement, which she did not do.

On 22 May 2002, the day after the aforesaid visit, petitioner went to the hospital for surgery and returned to the shelter on May 25, having been told by her doctor to stay out of work for six weeks due to the surgery. HMD approved the leave and scheduled petitioner to return to work on 3 July 2002. After another abortive visit on June 3, HMD signed the Safe Horizon confidentiality agreement on 7 June 2002, at which time petitioner was told to return to HMD on June 21. It is unclear whether any further visits to the shelter were made after that point.

On 21 June 2002, petitioner went to her appointment at HMD. She was given a termination letter backdated to 17 June 2002 without explanation and her shield and identification were taken. Pursuing an unemployment claim, petitioner learned she was fired for being away from her residence while on sick leave on 3 June 2002.

Petitioner instituted the instant proceeding seeking to annul respondent’s decision to terminate her employment, be reinstated and receive back pay.

The petition is grounded in an untested provision of the New York City Human Rights Law which bars employers from discriminating against victims of domestic violence.

Petitioner contends that her termination was illegal because it was solely based on the fact that, as a victim of domestic violence, she was unreachable while on sick leave due to HMD's failure to sign the confidentiality agreement prior to the June 3 visit.

Respondents' position is that petitioner was a probationary employee and as such was dismissible without cause, and at any rate cause existed even without the sick leave violations.
Was there an illegal dismissal?

The policy at issue is the Department's sick leave policy for members of the uniformed correction force. If reporting sick from somewhere other than their own residence, the same information must be provided for the location from where the employee is reporting sick.
The sick leave policy requires all employees who are on sick leave to remain in their "residence or place of confinement" at all times except when receiving medical treatment, obtaining prescribed medicines or "where contractually permitted". In addition, HMD may grant time out of residence for therapeutically beneficial reasons. HMD may also schedule appointments for a variety of reasons. If an appointment is missed, the person on sick leave must contact HMD's scheduling unit within one hour of the missed appointment to reschedule it. Whenever the employee is to be absent from the place of confinement, the employee must advise HMD of all particulars upon both departure and return.

Feigning illness to evade work is forbidden, and if suspected must be investigated and reported by institution or division heads. Noncompliance with the policy may result in disciplinary charges or payroll deductions, depending upon the circumstances.

Although under the sick leave policy only institution or division heads bear the responsibility for investigating suspected sick leave abuse, and HMD is specifically granted only the power to dispatch medical professionals to the employee's home to evaluate his medical condition, it appears to be HMD's practice to itself police sick leave abuse by sending monitors to a sick person's home for surprise visits.

On the other hand, the impact of domestic violence in the workplace has received increased attention in recent years. Lethal results have ensued from employers' deaf ears to a victim's pleas for time off work or for protection from the abuser.

The ability to hold on to a job is one of a victim's most valuable weapons in the war for survival, since gainful employment is the key to independence from the batterer.

A batterer causing the victim's job loss can incite financial despair when the victim realizes that she cannot provide for herself or her children without the batterer's assistance. Moreover, with each firing it becomes more difficult for victims to obtain new jobs. They are labeled as problematic employees while no effort is made to hold the abusers responsible.

Neither is the domestic violence victim's employer in for a picnic. Domestic violence leads to absenteeism, increased health care costs, higher turnover, lower productivity, and a greater risk that a violent incident will occur at the workplace, especially when law prohibits discrimination for lost time. Hence, it is of mutual advantage to work together to end the threat of violence.
In 2001, based on public policy considerations, the New York City Council enacted an amendment to the City's Human Rights Law to prevent employers from discriminating against victims of domestic violence. The stated purpose of this amendment was to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers by "enabling victims of domestic violence to speak with their employers without fear of reprisal, about a domestic violence incident or about possible steps that will enhance their ability to perform their job without causing undue hardship to the employer.

To note, a Nassau County DWI Lawyer said a probationary employee can be dismissed without a hearing and without a statement of reasons in the absence of any demonstration that dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law. Judicial review of such a determination is limited to an inquiry as to whether the termination was made in bad faith. The burden of raising and proving such bad faith is on the employee and the mere assertion of bad faith without the presentation of evidence demonstrating it does not satisfy the employee's burden.

Where bad faith is alleged, the scope of judicial review is broader.

The broad discretion enjoyed by those who are empowered to discharge probationary employees is not unbridled, but is, as a matter of law and public policy, contingent upon good faith. We take, as an axiom, that the burden of raising and proving bad faith rests upon petitioner's shoulders. Nonetheless, the Administrative Code imposes on the employer "the burden of proving undue hardship" to its business whenever it refuses to reasonably accommodate the special needs of a domestic violence victim.

It is clear that petitioner falls under the statutory definition of a "victim of domestic violence".
The dispositive issue is whether the Department's sick leave policy or its implementation with respect to petitioner and those similarly situated is impermissibly discriminatory.

Respondents have produced evidence that petitioner's job performance, especially in the first year, was not exemplary. She had excessive tardiness and absenteeism (perhaps a by-product of the domestic violence) and had an altercation with a coworker.

Clearly, had they chosen to fire her at that point, they would have been totally within their rights. However, they did not do so. They kept her on and it was only when she was living in a shelter for abused women with an apparent unverifiable address that they terminated her employment. Although, in an appropriate case, related chronic absenteeism may be found to prevent an employee from reasonably performing the duties of the job, the inquiry must focus on petitioner's status as of the time of actual termination and not earlier.

Respondents may not have intentionally acted in bad faith, as petitioner contends, but they did act in contravention of Local Law No. 1 in that they failed to make reasonable accommodations for petitioner's status as a homeless victim of domestic violence. The end result, petitioner's loss of a job at the point when she was finally getting her living situation under control, is exactly the kind of fallout that Local Law No. 1 was enacted to prevent. Fortunately, the law recognizes that the forms and guises of discriminatory conduct do not always fall neatly into readily identifiable packages and affords relief so long as the victim can establish that the conduct occurred under circumstances which give rise to an inference of unlawful discrimination.
Accordingly, the court finds the petitioner illegally dismissed and orders a reinstatement and back pay.

Domestic Violence can affect a person in many ways. The victims don’t just suffer from the physical pain but more on the emotional pain that they find it hard to get back up and go on living their lives. Sometimes these victims find it hard to function and work. Thus, laws have been implemented to help and if these laws were violated, contact Stephen BIlkis & Associates. Consult with our New York Domestic Violence Lawyers or New York Criminal Lawyers for free and know your legal options. Our legal teams have the experience, education and skill to help you win your case.

April 23, 2012

City Sues Street Gang

The Queens Plaza area is located at the foot of the Queensboro Bridge. A New York DWI Lawyer said it is one of the major entranceways to Queens and indeed to the rest of Long Island. In addition to being a conduit for the vehicular traffic to and from Manhattan over the bridge, the area is a major hub for public transportation, where all three subway lines serving the City meet and have stations. Several urban gangs had commandeered a residential neighborhood for their drug crime, taking over the streets, lawns and homes, making murder, attempted murder, drive-by shootings, assault and battery, vandalism, arson, and theft.

The City sues 21 named offenders, each of whom is described as a member or affiliate of a criminal street gang. It is alleged that the offenders, individually and collectively, have created and maintained an ongoing street prostitution operation which has overwhelmed the Queens Plaza area. It is alleged that the female offenders are prostitutes, and that the male offenders are the pimps who set up, control, and profit from their prostitution activities. It is further alleged that between the hours of 11:00 P.M. and 7:00 A.M. the activities are so intense, widespread, and pervasive within the Queens Plaza neighborhood as to have essentially taken it over, in that they slow vehicular traffic, block sidewalks, impede pedestrian traffic and entrance to the Queens Plaza subway station, and interfere with the operation of local businesses. It is alleged that the offenders' activities lead to the routine solicitation of passersby for prostitution, to violent criminal acts related to the interaction of gang members with competing criminal elements, to the littering of the public streets with used condoms, to public urination, and to noise. It is alleged that the abovementioned activities constitutes a public nuisance which requires the court's intervention. A New York DWI Lawyer said it is further alleged that all the activities is created by the offenders on behalf of, and for the financial benefit and support of, the gang. It is also alleged that none of the offenders reside or work in the Queens Plaza area other than as part of the prostitution operation.

The complaint is against the named individuals only. No claim is made against the gang as a group, or against any individual as offenders. No explanation is offered as to why those particular individuals were chosen for the action, and none was offered at the hearing or in the post-hearing memoranda.

The complaint alleges that continued and escalated law enforcement activities in the subject neighborhood have failed to date, to abate permanently the public nuisance created and maintained by offenders.

The affidavits of police officers in support of the application provide a number of supporting allegations beyond those specified by the complaint. It is alleged in those affidavits that the street prostitution activities lead to numerous other crimes, such as robbery, which go largely unreported.

It is alleged that the gang had established a thriving prostitution business in the East New York section of Brooklyn. Due to certain incidents with rival operators, described as a spate of violence against them by rival pimps, the gang moved their operation, literally overnight, to the Queens Plaza area. A Nassau County DWI Lawyer said that the gang has allegedly laid a territorial claim to the Queens Plaza area, which it advertises by means of graffiti tags.
The allegation of the complaint as to the inability of the police to stop the criminal activity is fleshed out in the affidavits by allegations that the female offenders are hardened recidivists, who have already been arrested numerous times for prostitution activities and returned to them. It is claimed that the arrests are of little enforcement value for criminal law, since they are routinely disposed of through plea bargaining to a disorderly conduct charge and the imposition of a modest fine and release. The male offenders, the pimps, have allegedly escaped arrest because while they brazenly appear in the street and in a local donut shop, they are never seen taking money from the prostitutes, and a prostitute would be risking her life to testify against them.

In response to the situation, the City seeks numerous forms of injunctive relief against the named individuals. Of particular interest, and the focus of the City's application, is the first demand for relief. The City seeks, nothing less than the civil banishment of the named individuals from the Queens Plaza area on particular hours. While the literal terms of the item only prohibit the offenders from appearing in public view, there can be no doubt that the offenders would be completely unable to comply unless they stayed out of the area entirely. If they were to be seen walking on the streets or driving to the Queensboro Bridge, or even taking the subway to Manhattan, they would be subject to a contempt proceeding.

Laws are made to protect everyone, regardless of one’s status in the community. The aim of Queens Criminal Lawyers from Stephen Bilkis and Associates is to protect every victim of crime who seeks justice. All Queens Drug Attorney’s objective is to defend every person caught in a drug crime related lawsuit.

April 22, 2012

Woman Claims DWI Stop Was Not Lawful

Many issues of law are important to cases of driving under the influence of alcohol or drugs. In some cases, these lines can be blurred. However, when it comes to what rights an officer has to stop a vehicle, the law has stated that an officer only needs to have articulable reasonable suspicion that a crime is afoot. However, to make an arrest, an officer must have probable cause to believe that a crime has been committed and that the person under suspicion was involved in the commission of that crime in one way or another. A New York DWI Lawyer said that sometimes, a person may attempt to have their case reviewed by the court in order to suppress some or all of the evidence against them. When this happens, it is clear that often it involves the legality of the traffic stop itself.

If the legality is not in place, the traffic stop is not legal. If the traffic stop is not legal then everything after that stop is not admissible. This is an example of the exclusionary rule. Any evidence that is obtained as the result of an illegal search or seizure is considered fruit of the poisonous tree. It is not admissible in a court of law. Therefore, if a defendant can prove that the traffic stop was illegal, then everything after that stop cannot be used against them in a court of law.

A New York DWI Lawyer said that in one case, which occurred in the Bronx, a woman was stopped after a police officer observed her executing a left turn without using her turn signal. The officer pulled in behind her and observed that she was talking on her cell phone as she executed a U-turn to return in her previous direction. The officer turned on his emergency equipment and executed a stop of her car. When he approached her car, he noticed a strong odor of an alcoholic beverage from about her person. He asked her if she would submit to field sobriety tests and she agreed. After the officer noted that she had not passed the horizontal gaze nystagmus test, the walk and turn, and the one leg stand, he asked her if she would take a portable Alco sensor test. She agreed, and tested positive for alcohol. A Queens County DWI Lawyer said she was arrested and transported the precinct for a breath test.

The defendant later filed a motion to suppress all evidence obtained as a result of the traffic stop. She maintained that the traffic stop was not legal because she did not believe that the police officer had probable cause to stop her vehicle. She maintained that in some situations, a person is not required to use a turn signal. Therefore, if it was not illegal for her to refrain from using a turn signal, then the traffic stop was not legal and all of the evidence obtained after that stop was not admissible.

The court disagreed. A Nassau County DWI Lawyer said they maintain that there is a statutory requirement in New York that a person use a proper turn signal whenever they execute a turn. The fact that the officer was in a location that was legally binding for him to be at, and that he observed the woman break the law, the traffic stop is legal. The officer observed the woman executing a turn without a signal. That is the probable cause to stop the vehicle. He further observed her talking on her cellular telephone while driving which is also illegal in New York. With both of these traffic violations observed by the police officer, there is no doubt that the officer had probable cause to execute the stop.

The defense motion to suppress the evidence obtained following the traffic stop was denied. The further motion to suppress any statements made by the defendant to the officer was also denied. Stephen Bilkis & Associates has NY Criminal Lawyers who can defend anyone arrested of a crime in New York. They have convenient offices throughout New York and the Metropolitan area. Do not lose your driving privileges. Our New York DUI Lawyers can go to court with anyone charged with DUI. Without an NY DUI Lawyer, you could lose your driver’s license and your freedom.

April 21, 2012

DWI Defendant Claims Breathlyzer Machine was Inaccurate

Driving under the influence of alcohol or drugs has been a hot political topic for the past decade. The results of the political impact is that more laws and tougher laws have been enacted that are aimed at reducing DUI incidents. The problem is that whenever more laws are created, more people fall into the category. Twenty years ago, DUI cases were straightforward. The tests that the officers used in the field tested long term memory and coordination that were clearly indicative of impairment. Since, lower acceptable levels of blood alcohol have been established; the old tests were unable to detect this lower level. The reason is that the lower level is a point below what used to be considered impaired. Because of this, new field sobriety tests had to be created. The current tests are designed for failure, not for actually testing impairment.

The political atmosphere has created other problems as well. Government grants for DUI police units mean that police departments get money for catching more DUI drivers. A New York DWI Lawyer said it is no longer in the officer’s best interest to determine if the person is impaired or not. It is in the officer’s best interest to make an arrest, no matter how low the person’s blood alcohol content is.

Some states, like Florida, have made the penalty for first time DUI so harsh that refusing the test is a better option. In order for a person to fail a breath test, there are several things that can happen: The person can be actually over the legal limit of .08 for people over the age of 21 years; the machine can be faulty, as 80% of the Florida machines were determined to be in 2007; the officer can determine that the person is intentionally attempting to defeat the machine by not blowing fully into it; the person can put something, like gum, into their mouths after being instructed not to; or the person can pretend to blow into the machine while not expelling any air. It is also possible that the person speaks a language other than English and does not understand the instructions that are given to him.

That was the case on March 27, 2004 at around six in the morning when two police officers noticed that a vehicle had one tail light that was not functioning and windows that were tinted too dark. A New York DWI Lawyer said the officers stopped the vehicle and asked the driver to step out of the car. They noticed an odor of an alcoholic beverage about the person and placed him under arrest for DUI. They did not appear to have conducted any field sobriety tests of the subject, mainly because he spoke Spanish and there was a communication barrier.

The man was transported to the precinct where he was shown a video tape in Spanish which detailed his rights and asked if he would submit to an alcohol test of his breath. He indicated that he would. At that point, the machine was turned off and the officer demonstrated how to blow in to the machine. The officer only gave a short puff of air into the machine to demonstrate. The intoxilizer 5000 machine requires that the person blow long and hard for about four seconds. The purpose is to obtain a sample of deep lung air and not just mouth alcohol.

The defendant approached the machine as instructed and gave a short puff of air into the machine. The officer said, “Mas.” Then the officer stated in English, “More blowing.” The defendant again went to the machine and blew into it. The entire interaction was recorded on video tape. In spite of the fact that there were four officers present, none spoke Spanish. The recording clearly shows that the defendant was confused and did not know what to do. He returned numerous times to the machine and blew in to it. Each time that he blew the officer yelled the same two phrases at him. At times, the frustration level on both sides was clearly obvious. The recording demonstrated that the defendant was actually blowing into the machine as his breath was audible on the recording. He was visibly confused by the fact that the machine was not registering his attempts to blow in to it. The more times that he tried and failed, the more upset he became. He demonstrated that he was becoming emotionally distraught by the situation. He began to plead with the other officers to help him. He indicated that he was ill by fluttering his hand over his chest. The officers in the background remained silent. Only the one officer in the recording spoke to him and he just kept repeating the same thing. The man was getting upset since the officer in his frustration was yelling the same phrases at him that were not describing what he was expected to do. The second part of the Spanish video was shown to the defendant. This part tells the suspect that if they refuse to take the test that their license will be suspended or revoked. The defendant again returned to the machine as instructed. He again blew in to the machine. Again, the sample was not long enough for the machine to register it. The officer was screaming, “Mas” at him. The man was distraught. Finally, the officer declared that the man was deliberately refusing to take the test and wrote the incident up as a refusal. The man was transported to the jail.

In New York, it is incumbent upon the state to prove that the warnings about license suspension and revocation are clearly given and that the person deliberately refuses the test in order for the refusal to stand on its own in court. A Nassau County DWI Lawyer said when this case got to court, it was determined that the police officers had in fact given the warnings clearly and in a legible fashion. They also determined that the defendant had understood the warnings clearly. However, they determined that the state had not been able to prove that the man had deliberately refused to take the test. The video recording of the test clearly demonstrated that the man was attempting to take the test. He just did not know how he was supposed to take the test. Because of this, the court determined that the refusal could not be used in court against the defendant.

The prosecutor appealed this verdict and stated that the state had met their burden to prove that the man was deliberately refusing to take the test. The court disagreed. The court determined that on the contrary, it was obvious that this defendant was genuinely attempting to take the test. The fact that he was not doing it correctly was the fault of the officer who failed to demonstrate the length of time that the man was expected to blow in to the machine. The court upheld the verdict that the refusal could not be allowed in court.

At Stephen Bilkis & Associates NY Criminal Lawyers, we have convenient offices throughout New York and the Metropolitan area. Do not lose your driving privileges. Our New York DUI Lawyers can provide you with advice to guide you through difficult situations. Without an NY DUI Lawyer, you could lose your driver’s license or your freedom.

April 20, 2012

Defendant Charged with Class E Felonies based on Prior Misdemeanor Charge

Ono June 21, 2007, a man was apprehended and subsequently charged with driving while intoxicated per se and common law driving while intoxicated. These two charges in the indictment are class E felonies which are predicated on a previous misdemeanor conviction for driving while intoxicated in 2001.

After arraignment, a New York DWI Lawyer said the man asked the court to reduce the felony driving while intoxicated charges to misdemeanors. He claims that in 2001 when he was convicted of those two misdemeanors, his constitutional right to counsel and his right to remain silent was violated.

From the records it was established that on August 25, 2001, the man was arrested in Saranac Lake and he was charged with misdemeanor crime of driving while intoxicated. He was taken to the police station and there he learned that he was also being arrested for assault on a domestic violence charge.

A New York DWI Lawyer said the man was held at the village police station and in the early morning of August 26, 2001, he was brought before the justice court. He appeared before the judge and he was not told that he had the right to an attorney, that if he did not have one or could not afford one, one will be provided for him. He was not aware that he had the right to remain silent and that anything he said can be used against him. He did not know that he had a right to a trial. He could not recall if he was ever apprised of those rights.

The man said that he had not gotten any sleep and that he was still reeling from the effects of stupor from his drinking the night before. He did not understand the proceedings. All he recalls was that he was asked if he wanted to plead guilty to the charges against him and he did so that he could get out of jail, pay a fine and go home.

The records show that the man pleaded guilty and he was ordered to pay a fine of $300.00 for the assault charge and $500.00 for the misdemeanor drinking while intoxicated charge. A Nassau County DWI Lawyer said he was also placed on three years’ probation on the DWI charge.

The criminal court noted that although the village clerk of Saranac Lake certified that the man pleaded guilty to those charges, the village clerk also certified that the docket and the court records of his arrest, his arraignment and all proceedings relevant to his 2001 conviction for assault and for DWI were all unavailable or missing. The justice of the peace of the village had also passed away.

Since there is no evidence that the 2001 conviction was based on a knowing and intelligent waiver of the man’s right to counsel, right to remain silent and his right to counsel, the 2001 convictions cannot be made a basis to convert these 2008 charges for misdemeanor into class E felonies.

The People objected to the order of the criminal court reducing the criminal charges of Class E felonies to criminal misdemeanor felonies.

On appeal to the Supreme Court, there is only one question: whether or not the criminal court erred in reducing the charges from Class E felonies to misdemeanors.

The Supreme Court held that since the misdemeanor conviction in 2001 was obtained while the man was not represented by a lawyer and there is no evidence that he had waived his right to be represented by a lawyer, that misdemeanor conviction cannot be made the basis to enhance a subsequent charge for driving while intoxicated misdemeanor to a felony.

There must be a showing from the court records that the 2001 conviction stemmed from a knowing, voluntary and intelligent waiver of the right to counsel. The village justice court should have conducted a searching inquiry regarding the man’s understanding of the proceedings. He should have been informed that although he can represent himself, he runs the danger of getting himself convicted if he represents himself. When the village justice of the peace saw that the man was being charged with driving while intoxicated, he should have been informed that he can avail of the defense of intoxication.

Absent any information that he had intelligently and knowingly waived his right to counsel and his right to a trial, then his convictions in 2001 cannot be made the basis for the charge of Class E felony in 2008. The felony charge was properly reduced to misdemeanor charges for driving while intoxicated.

A New York City DWI Lawyer will advise you that since you were arrested on a DWI charge, you ought not plead guilty to the misdemeanor charge without the presence and advice of counsel. An experienced lawyer will also advice you that if you do decide to plead guilty to a misdemeanor DWI charge, it can be made the basis for a felony DWI charge in the future. At Stephen Bilkis and Associates, attorneys are ready and willing to advice and assist you as you face a misdemeanor DWI charge. Speak to any of the lawyers from Stephen Bilkis and Associates today and make sure you understand the consequences of a plea of guilt to a misdemeanor DWI charge.

April 19, 2012

Defendant Claims Officer did Not Have Probable Cause in DWI Arrest

A police officer was patrolling along Route 404 on January 12, 2005 at 2am. He saw a car going very fast and it was heading toward him. The police officer’s radar unit registered the approaching vehicle to be going at 55 miles per hour when the speed limit in the area was only 40 miles per hour.

A New York DWI Lawyer said the police officer made a u-turn and followed the speeding vehicle. The car turned right on Shoecraft Road and took another left turn into the parking lot of a drugstore. The car did not immediately park. It took a while before the car came to a stop. The officer took out his gun and pointed it toward the direction of the man whom he ordered to get out of the vehicle.

The police officer patted him down to check for weapons. When he was sure that the man had no weapons on him, he put his gun back in its holster. It was then that he noticed the smell of alcohol on the man’s breath, his red bloodshot eyes and his slurred speech.

The man volunteered that he drank a couple of beers after he had taken Sudafed. The officer then conducted field sobriety tests. He asked the man to recite the alphabet from “C” to “V.” The man just repeated the two letters. The police officer asked him to do it again. This time, the man recited the entire alphabet.

The officer then asked the man to do the walk and turn test. A New York DWI Lawyer said the man was unable to stay on the straight yellow line; he was not able to walk heel to toe; he raised his arms for balance and he turned the wrong way.

The officer then asked the man to perform the one leg stand test. The man was unable to keep his leg off the ground for more than 30 seconds. He swayed and hopped on both his feet.
The officer concluded that the man had failed the three field sobriety tests and arrested the man. He brought him to the police station where a breath test could be administered.
A police officer was assigned as a breath test operator. The result of the breath test indicated that the man had .15% blood alcohol content. The man was charged with speeding, driving while intoxicated per se and common law driving while intoxicated.

The arraignment of the man was held in abeyance as a probable cause hearing was conducted. The Court found that the police officer had probable cause in stopping his car and probable cause for conducting field sobriety tests on him; and probable cause for placing him under arrest for driving while intoxicated.

During the trial, the arresting police officer testified. The police officer who administered the breath control test was also presented. A Nassau County DWI Lawyer said both the lawyer for the defense and the district attorney stipulated as to the police officer’s certification as a breath test operator. During his direct examination the District Attorney asked the police breath test operator to identify the steps he had taken to check whether the breath control test device was functioning normally. The police breath control operator then enumerated the items on his checklist and submitted certifications attesting to the weekly calibration and analysis of the solution used in the breath control test. The District Attorney then asked that the certifications be marked as business records. The man’s lawyer did not object but reserved his right to cross-examine the police breath control test operator.

On cross-examination by the man’s lawyer, the police breath test operator testified that he was not present or involved in the preparation of the certifications he identified and submitted to the court. At that time the man’s lawyer objected to the admission of the certifications into evidence on the ground that their admission would deprive his client of his right to confront he witnesses against him.

The only question before the Court was whether the admission of the certifications would violate the man’s right to confront the witnesses against him. The Court held that the certifications were non-testimonial. That is to say, the certifications do not give testimony as to any fact in issue in the case. The certifications are mere business records entered into in the regular course of business. The breath test device was calibrated and checked each week and the person who checked it issued a certification as to the conducting of the calibration.

The person who issued the certification did not exercise judgment or discretion. The certifications did not express any opinion or make any conclusion. It is part of business records as it only contains the results of a well recognized test and mentions an objective finding.

The Court held that the certifications as to the weekly calibration were not sworn to or affirmed; they were not prepared exclusively for litigation purposes; they were not created directly to become evidence against a specific individual and they do not address facts in controversy that may be subject to interpretation or explanation.

The Court ruled that these were admissible as business records made in the regular course of business of a government agency.

At Stephen Bilkis and Associates, their New York City DWI lawyers will advise you that driving beyond the speed limit raises a reasonable suspicion in a police officer’s mind that you may be driving while intoxicated. A lawyer will also tell you that when a police officer smells alcohol son your breath and see your bloodshot eyes, the police officer has probable cause to conduct field sobriety tests. A qualified attorney will also tell you that if you fail a field sobriety test, you will be arrested for DWI. Call Stephen Bilkis and Associates today, ask to speak with any of their NY DWI attorneys. They are willing and available to assist you.

April 16, 2012

Court Rules Because of Proceedural Error, DWI Defendant gets New Trial

Two police officers saw a car moving erratically. When they stopped the car, the lady driver refused to exit her car. A New York DWI Lawyer said the police officers heard the woman’s slurred speech and smelled alcohol on her breath and concluded that she was very intoxicated.

The police officers also saw that aside from the lady driver, there was an adult passenger with her and an 11-month old child in a car seat. The police officer called Social Services to take custody of the 11-month old child.

A New York DWI Lawyer they then arrested the lady driver and brought her to the station. They asked her if she wanted to take the breathalyzer test but she refused. The arresting officers told her the consequences of not taking the breathalyzer test: that her refusal will be entered into the record and will be used as evidence against her. But she still refused.

The employee of Social Services observed the lady driver all the time that she was at the police station and came to the conclusion that the lady driver was intoxicated. The lady driver was charged with driving while intoxicated.

At trial, the City Court Judge did not instruct the jury that if they cannot find evidence to convict the lady driver of driving while intoxicated, then they can find her guilty of the lesser offense of driving with ability impaired. A Nassau County DWI Lawyer the lady driver was convicted by the jury of driving while intoxicated. The trial judge ruled that there is no reasonable view of the evidence that warrants a finding that the lady driver should be convicted of driving with ability impaired instead of driving while intoxicated.

On appeal, the County Judge saw that the charge of driving with ability impaired was a lesser included offense of driving while intoxicated. He also opined that the record should be viewed in the light most favorable to the accused lady driver and she should have instead been found guilty of the lesser included offense if there is evidence to warrant such a finding. But he affirmed the trial judge’s action and found that he acted within his discretion.

The only question before the Supreme Court is whether or not the trial judge and the county judge abused their discretion when they both found that there is no view of the record that can support a finding that the lady driver was guilty only of driving with ability impaired instead of finding that she was guilty of driving while intoxicated.

The Court found that the trial judge substituted this view of the law for that of the jury and thus gravely abused his discretion. The Court opined that the trial judge’s ruling was based on an old law that a conviction for driving with ability impaired requires evidence of a breathalyzer or blood test. The rule now is that driving with ability impaired is a lesser included offense in driving while intoxicated because it is impossible to commit the crime of driving while intoxicated and not drive with one’s ability impaired.

The lawyer for the lady driver requested the trial judge to submit to the jury the instruction that they should find the lady driver guilty of the lesser included offense since this is more favorable to the accused. With the lawyer’s request, the submission became mandatory. The trial judge had no discretion in the matter anymore: it was not up to him to decide if he should submit the request to the jury. He had to submit it to the jury. Since he did not, he gravely abused his discretion and he substituted his discretion for the jury. For this reason, the lady driver is entitled to a new trial.

At Stephen Bilkis and Associates, their New York City DWI lawyers will tell you that if you are arrested for driving while intoxicated, you must take a breathalyzer test or your refusal will be entered into the record and it will be used as evidence against you. New York DWI lawyers will also tell you that a charge for driving while intoxicated will also include a lesser included offense of driving with ability impaired. Call Stephen Bilkis and Associates today at any of their offices in the New York area. Ask to speak to any of their New York DWI lawyers and ask their opinion on the legal consequences of pleading guilty to the lesser included offense of driving with ability impaired. Ask the opinion of any of their NYC DWI lawyers on how you can ask the jury to convict you, if the evidence so warrants, of a lesser included offense. Ask them if this will be more favorable to you. The New York City DWI attorneys are willing and available to assist you.

April 15, 2012

Defendant Alleges Inadequate Miranda Warning for DWI Arrest

There are many issues involved in any driving under the influence case that goes to court. Among them is the importance of delivering the refusal warnings correctly. If the refusal warnings are not given correctly, the evidence of the refusal cannot be used in court. This can create a situation that prevents the officers from being able to make an adequate case for DUI. In New York, the officers often use a videotaped warning for persons who are suspected of DUI who speak Spanish. Normally, this is an effective way to ensure that people who do not speak English are able to understand the warnings as well as the repercussions of a refusal.

A New York DWI Lawyer said however, problems can arise when a suspect does not behave in a predictable manner. In one case, which occurred in New York on January 14, 1998, Vice-officers were engaged in a prostitution sting. It was set up near East 242nd Street and White Plains Road in the Bronx. The defendant, who only spoke Spanish, was arrested when he drove up to an undercover police officer and offered her $20 for a sexual act. She notified her back up officers. When the arresting officer stopped the defendant, he approached the driver, who was the defendant. He noticed that the defendant exuded a strong odor of an alcoholic beverage from about his person, his eyes were blood-shot and glassy, and his speech was slurred. The arresting officer asked the defendant to exit the vehicle. When he attempted to exit the vehicle, he fell out of it face first. He was transported to the precinct where he was shown the Spanish language implied consent warnings. After the first section that ends with the question of whether the defendant would submit to the test, the tape was stopped. The defendant responded in a non-committal manner. He was rambling and uttering nonsense. After several attempts to get a sensible answer out of the defendant, the officer gave up and turned off the video tape of both the Spanish warnings, and the entire arrest.

When the refusal case was taken to court, one of the first problems was that the warnings were not completed. A New York DWI Lawyer said the second part of the tape that explains the repercussions of refusal was never played for the defendant. his failure effectively established that he had not been given the warnings correctly. That meant that the jury, in court, could not view any portion of the video of his arrest that concerned his refusal to take the test.

The state countered this by making a request to redact the tape to remove any portion that reflected his refusal and only use section that would show the jury what his demeanor was at the time of his arrest. The judge ordered a review of this redacted tape, before presentation in court. The state prepared it, and the judge accepted it. The defendant also requested that this tape be kept from the jury because he was not given his Miranda rights. However, the requirement for Miranda warnings is that the person be under arrest and being questioned.

After reviewing the tape, the judge found that after being arrested, the officer did ask the defendant a question. A Nassau County Criminal Lawyer said that since he did not Mirandize the subject at any time, it raised the question about the admissibility of the tape itself. However, the court determined that the partial refusal warning that the defendant was given did not at any time constitute an interrogation. The question that was asked, if the subject understood his rights, is not considered questioning under the law. That means that although the defendant was in custody, he was not entitled to Miranda warnings because he was not being questioned about his crimes. The tape was allowed in court.

Stephen Bilkis & Associates has NY Criminal Lawyers, in convenient offices throughout New York and the Metropolitan area. Do not lose your driving privileges. Our New York DUI Lawyers can defend anyone charged with DUI. Without an NY DUI Lawyer, you could lose your driver’s license or your freedom.

April 14, 2012

Defendant Claims Car Seized Unlawfully

In matters of law it is important to have an attorney. Most people who do not have a law degree are unfamiliar with all of the limitations that are placed in reference to legal actions. In New York, the state can seize any motor vehicle that is involved in the commission of a crime. That means that the state of New York can seize the vehicles of people who are charged with driving under the influence of alcohol or drugs. However, there are certain limitations. A New York DWI Lawyer said the owner of the vehicle must be notified within 25 days of the date of a DUI arrest. The property clerk of the police department has fifteen days beyond the last day of the 25 day limitation to commence forfeiture action. If the property clerk does not meet these deadlines, then the defendant may move to dismiss the forfeiture action and reclaim his or her property.

DUI cases are loaded with intricacies of law that can make or break the case that the state attempts to make. The reason that there are time limits on the paperwork process for forfeiture of property is obvious. The problem here is that the state can initiate this process even before the driver has been determined guilty of a crime or not guilty.

In one case that occurred on June 17, 2007 when a man’s BMW B23i was impounded as an instrument of a crime. The officers seized the vehicle after the defendant was arrested and charged with several statutory offenses and traffic law violations. A New York DWI Lawyer said the defendant was charged with several offenses, one of which was DUI. On July 21, 2009, the man made a demand for his vehicle to be returned to him. The property clerk refused and advised the man that his request was invalid because he did not submit a release from the District Attorney. In September of 2009, the property clerk filed a summons and obtained a complaint number to begin the process of seizure of the vehicle. On December 3, 2009, the property clerk mailed a summons and proof of service with the court on December 7, 2009. On December 17, 2009 the service was deemed completed.

A Queens Criminal Lawyer said the defendant filed a motion to set aside the forfeiture because notice was not provided in a timely fashion. Because the property clerk had not sent notice of the intent to seize the vehicle until three months after the vehicle was seized, the defense argued that the seizure was not legal and that the vehicle had to be returned to him.

After reviewing the arguments of the state and the defense, the court determined that the property clerk had not filed the paperwork within the time limit. A Nassau County Criminal Lawyer said the property clerk should have served the paperwork within the twenty-five day required window. The property clerk would have then had fifteen additional days to complete the service and take action to retain the vehicle. The fact that it was not done within this required time frame, means that the action is in fact illegal. The request of the defense to overturn the forfeiture of the car and to restore it to its owner is overturned. The request for dismissal of the forfeiture warrant is dismissed and the vehicle will be returned to the owner.

Whenever a seizure of property is made by the state, there are many specific guidelines that must be adhered to. If the state fails to meet their burdens within the prescribed time frames, the property must be returned to the rightful owner. At Stephen Bilkis & Associates one can find NY Criminal Lawyers who will defend anyone arrested of a crime in New York. We have convenient offices throughout New York and the Metropolitan area. There is no reason to risk your driving privileges. A New York DUI Lawyer can represent you in court against charges of DUI. Without an NY DUI Lawyer, you can lose your driver’s license and your freedom.

April 13, 2012

DWI Defendandant Stood Up By Legal Counsel in Court

A man was charged with Aggravated DWI, DWI and Driving While Ability Impaired by Alcohol. The criminal complaint alleges that the accused man operated a motor vehicle in an intoxicated condition and in a later blood alcohol test was found to have a level of alcohol in his blood. After arraignment, the case was adjourned for the retention of private counsel and a counsel appeared as the accused man’s attorney for the first time. A New York DWI Lawyer said the accused man has apparently been at liberty after posting bail throughout the proceedings. The Jury and the man’s counsel both estimates that the trial of the matter, when it eventually occurs, should take no more than two days.

The case was adjourned for hearing and trial. The Record of Court Action notes that the complainant was ready on that date but that the accused was not and needed a copy of the police videotape which the complainant were directed to provide. The case was adjourned for hearing and trial to another date. A New York DWI Lawyer said on the rescheduled date, the Record of Court Action indicates that the complainant were ready. The accused man’s counsel submitted an affirmation asking for an adjournment for medical reasons. According to the complainant, however, the Assistant District Attorney informed the Court on that date that she had spoken to the accused man’s counsel and he had informed her that he would not be available for eight weeks due to his congested trial schedule.

According to the complainant, the counsel indicated that he was still not ready to proceed for medical reasons and asked that the case be adjourned for the second time to another date. The Record of Court Action notes that the complainants were also not ready on that date and contains a question by the Court as to whether the man's counsel had a medical issue. The complainant submitted a Certificate of Readiness. A Nassau County Criminal Lawyer said the case was adjourned for the third time to another date and the Record of Court Action does not indicate why a hearing and trial did not occur on that date. The defense counsel asserts that the complainants were not ready on that date. The defense counsel submitted an affirmation saying that he was engaged in trial on another matter and requesting an adjournment for the fourth time to another date. The case was adjourned to and the complainants indicated that they were not ready on that date.

On July 9, according to the Record of Court Action and the complainant's affirmation, both parties announced their readiness for hearing and trial but a part was not available. The case was adjourned for the fifth time and on that date the Record of Court Action indicates that the complainants were ready but that the defense counsel was engaged in trial on another matter. The case was adjourned a lot more times until a presiding judge over the case ordered the complainant to speak with the defense counsel and said he was to be in court and ready or he will be relieved.

On July 7 the case was heard in Jury Part 1 where a judge was presiding. According to the transcript of the proceedings on that date, when the case was called, the defense counsel was not present and had not submitted an affirmation of engagement. The complainant recounted the history of delays in the case and asked the Court to relieve the defense counsel as the accused man’s counsel. The Court asked that the accused inform his defense counsel that he was required to be present and ready for trial on the following Monday and said that the Court would call the defense counsel and provide him with the same direction. The Court said that it was possible that the defense counsel might be held in contempt if he did not appear on that date. The judge noted that the defense counsel had been required to appear at 9:30 A.M. and that it was ten minutes before 11:00 A.M. The judge penned that the defense has no defense attorney, no affidavit of engagement. The defense attorney's firm called to say that the defense attorney was engaged in Queens. The court informed the accused that he should let his attorney know the court is ordering him to be present and ready for trial.

The complainant asserts that the defense counsel appears late in the afternoon and the defense counsel is not on trial or engaged for the remainder of the week. The court directs the defense counsel to proceed to trial the following day and the defense counsel is directed to proceed to hearing.

The transcript on that date reflects the delays and contains an extensive colloquy between the Court, the defense counsel and the Assistant District Attorney. The transcript indicates that the Court was about to adjourn at the end of the day but waited for the defense counsel to arrive.
Among all of the interests which have been negatively impacted by the delays of the case, however, the interest of the people of the city is one interest, in the Court's view, that is most significant. The father, of course, is presumed innocent. It is worth noting, in fact, that according to his criminal history record he has never been convicted of a crime. He has also faithfully attended the proceedings, even on numerous dates when her nanny has been absent. The accusation in the case, however, is that he registered blood alcohol after being apprehended operating a motor vehicle while intoxicated. The accused man stands accused of operating a motor vehicle in a condition where, if the charges against him are true, he placed the safety of anyone who might have randomly happened onto his path on that day in jeopardy.

The Court fully acknowledges that the defense counsel has other pending felony cases that are more serious than the accused man’s case. But the case of the accused is also important. If the accused man is not guilty of the DWI charges, then he has unfortunately stood accused of a crime he did not commit for what is now years longer than he should have. But if he is guilty, the criminal justice system has been prevented from imposing an appropriate sanction for what is now approaching 3 years. Both of these possible results are unacceptable.
To the extent the justice system seeks to prevent serious crimes from recurring (and in the Court's view, operating a motor vehicle at three times the legal blood alcohol limit for intoxication on the streets is a serious matter) it has been prevented thus far from having its most important effects in the case. The justice system has been unable to punish, deter, rehabilitate or capacitate the accused man. If he is indeed guilty of the crime it is not primarily the court system, the prosecution or the accused man whose interests have been compromised. It is the people of the city.

The defense counsel has every right to build a busy law practice. His clients have every right to retain him. But those interests are not limitless. They do not trump the combined interests of the court system in operating with some modicum of efficiency; the interests of the district attorney's office in having the opportunity to fairly present their cases and the interests of the residents of people in having a justice system which protects them. As the Court of Appeals explained, the efficient administration of the criminal justice system is a critical concern to society as a whole.

For all of the above reasons, the complainant’s motion is granted and the defense counsel is relieved as the accused man’s counsel. The Court talked to the accused on the record about the next steps regarding his representation and anticipates that a determination about who will represent him can be finalized on the next adjourned date.
Legal action takes so much of one’s time, energy and resources. Several factors contribute to the delay of lawsuits and these could cause inconvenience to both parties. A NY Criminal Attorney can help you solve your crime related cases in court. In addition, a NY DWI Lawyer from Stephen Bilkis and Associates can help faster in making your life worry free from legal actions.

April 12, 2012

DWI Defendant Contends Roadblock was Illegal

A county sheriff established a roadblock with the purpose of screening drivers to identify persons driving under the influence of alcohol. At the aforementioned time and place, every car passing the roadblock location was stopped by the uniformed sheriff in order to make observations of the drivers to determine if they were driving while intoxicated.

Consequently, a New York DWI Lawyer said that one of the deputy sheriff stopped a vehicle. The uniformed sheriff stood in the middle of the road and signaled the driver to stop his vehicle. The man stopped his vehicle in a normal manner. The sheriff walked over to the driver's side of the vehicle, and shined his light into the vehicle. The sheriff observed that the man's eyes to be bloodshot. The man, without being asked, rolled down his window and spoke to the deputy sheriff who then noticed the odor of alcoholic beverages coming from the man's breath.

As a result of the deputy's observation of bloodshot eyes, and the odor of alcohol upon the man's breath, he asked the man to exit the car and come over to the side of the road for further investigation. All of the cars which passed the roadblock on that event were observed and the entire operators of all of the motor vehicles were asked with questions in the same manner as everyone else. After the man exited his car, the deputy sheriff observed the man's speech to be slightly slurred, and again detected an odor of alcohol upon the man's breath, and concluded that the man's ability to drive a vehicle might be impaired.

The man was asked whether he had been drinking and responded yes. A New York DWI Lawyer said that when he asked what he was drinking, he responded that it was a beer. When he asked how much he was drinking, he responded seven beers at his working place and four beers at the bar. The man was thereafter placed under arrest and charged with DWI.

Based on records, on a previous case settled by the superior court in its decision held that a particular roadblock was illegal and violative against the operator’s rights. However, the court indicated that under the proper situation roadblocks, even for the avowed purpose of detecting intoxicated drivers, could meet the legal restrictions and be valid. The court set forth certain criteria for a valid roadblock. A Nassau County Criminal Lawyer said he criteria includes that the inconvenience to the motorist be minimized, that the selection procedure not be random, that the safety of the motorist be assured, that the roadblock be systematic in nature and that the roadblock be established pursuant to a pre-arranged plan of law enforcement agency, established by supervisory personnel.

The court is aware of the fact that drunk drivers are a hazard to the driving public as well as to the pedestrian traffic. In addition, the highly mobile and visible nature of automobiles has traditionally resulted in an individual's lesser expectation of privacy while driving an automobile than in one's home or other constitutionally protected areas. The deaths and serious injuries caused by intoxicated drivers have resulted in the performance of stricter laws regarding the apprehension and punishment of a drunk driver.

Conclusively, the testimony before the court indicates that the roadblock was set up in accordance to a plan authorized by supervisory personnel of the sheriff's department of the county with the specific aim of detecting intoxicated drivers at a specific location during a specific time period.

A Queens Criminal Lawyer said the court consequently concludes that upon the facts presented, the criteria established for the abovementioned roadblock is protective of every individual's constitutional rights. The man's motion to dismiss the charge against him is denied by the court.

It is important that in every action we make, we must take full responsibility. We must be committed to driving responsibly because there are lives that might be lost or persons who might get hurt. If you want to be represented by the New York DWI Lawyers, feel free to call the office of Stephen Bilkis and Associates. If you are the one who got hurt because of other people’s negligence, ask guidance from the New York DUI Lawyers.

March 7, 2012

Defendant Contests Calibration of Breathlyzer in DWI Case

The accused man is charged of driving while ability is impaired by alcohol. During the course of his DWI consolidated pre-trial hearings and non-jury trial, the accused team objected to the complainant's admission of the certified calibration records and simulator solution certificates. An NY Criminal Lawyer said that the challenged documents relate to the breath test instrument used to test the accused man’s blood alcohol level at the time of his arrest. The accused counsel’s challenge was made on the grounds that admission of such business records without the testimony of the analyst who created them violates the law. The Court reserved the decision on the application while completion of the case is pending, at which time the Court granted both parties the opportunity to submit summary of law in support of their respective positions. The Court has considered the several submissions by the counsel in concluding that the certified calibration records are admissible and do not violate the law.

A NewYork Criminal Lawyer said that based on records, the law held that since the Constitution guarantees a criminal accused the right to be confronted with the witnesses against him, the practical application of the law prohibits the introduction of out-of-court statements which are testimonial in nature, unless the accused had an opportunity to cross-examine the person who made the statements.

Records similar to the challenged documents have been admitted routinely for years in State DUI cases if properly authenticated under the State business records in exception to the hearsay rule. Most courts examining the issue in light of the law still held the records to be non-testimonial and therefore admissible without live testimony in accordance to the proper authentication. Addressing the business records hearsay exception, the Court of Appeals also cautioned against the categorical elimination of business records as a basic misreading of the law. A thorough analysis declined to adopt a bright line rule admitting business records without testimony, as facts and context are essential and the question of validity of the testimony requires consideration of multiple factors, not all of equal importance in every case.

The Supreme Court held that admission of analysis certificates of certain types of scientific tests violates the law if admitted in place of a live testimony with no opportunity for cross-examination by an accused. Writing for the majority, it was reasoned that when a report is prepared with a reasonable expectation that it will later be used at trial, and lay down facts that may become helpful to the complainant, which are sought to be proved at the trial, it must be considered testimonial and therefore cannot be admitted as a business record. The Court explicitly exempted the calibration reports and simulator solution samples from the reach of the ruling. It also acknowledged a legitimate concern of the complainants who are faced with potentially higher costs and overburdened staff but insisted that the rule will not be as burdensome as many fear.

The calibration and simulator solution records were prepared not in anticipation of the complainant of the particular accused but as relating to the regular maintenance of the particular Alcotest machine and chemical samples. Specific limitation recognizes that it would be a reduction to the illogical to require live testimony from every witness who has laid hands on a case. Underlying records of breath test instruments are non-substantial from the direct fact of the accused man’s intoxication and guilt of the charge. His blood alcohol level at the time of his arrest was not proven or even shown.

The arresting officer is a certified State Police breath test operator who actually conducted the blood alcohol test used at trial to prove the ultimate issue. He testified thoroughly as to the procedures and safeguards he conducted prior to, during and after the test of the accused man’s breath. He collected, analyzed and testified to the actual evidence contained in the Alcotest report of the accused man’s blood alcohol level. The proper operation and functioning of the machine was part of his testimony based on his training and experience. The ministerial reports admitted as business records were merely background to, and confirmed by his testimony. He laid the proper foundation to admit the documents as business records. The rights guaranteed to the accused have not been violated.

The Court holds that calibration and simulator solution certificates of breath test instruments are non-testimonial and specifically exempted and their admission based on the appropriate business record foundation did not violate the law. The accused man’s motion for a Trial Order of Dismissal is denied.

When you decide to be behind the wheel knowing that you are not perfectly sober is such an irresponsible act because doing so would certainly harm other people and get you into a criminal case. If you have been charged with sex crimes, a theft charge or DWI, call Stephen Bilkis and Associates.

March 6, 2012

Court Rules Where DWI Offender Refuses Chemical Test

A traffic officer responded to a radio run of an automobile accident at Roosevelt Avenue and Queens Boulevard. When he arrived at the scene, the accused was standing beside an automobile which had been involved in the car accident. The traffic officer testified that the accused had bloodshot eyes, was unsteady on his feet and had the odor of alcohol on his breath. A witness to the accident told the traffic officer that he had seen the accused driving the car. There was no testimony that any other person was observed to be in or around the automobile.

A New York Criminal Lawyer said the accused spoke Spanish and apparently understood little or no English. The traffic officer obtained a driver's license and other documents bearing the accused man’s name but he was unable to recall whether the documents were given to him by the accused or if they were discovered in the automobile. The accused was placed under arrest and was taken to into the precinct.

A police officer testified that he was called to the precinct to conduct an Intoxicated Driver's Exam on the accused. In the presence of the traffic officer and the police officer, the accused was shown a Spanish language videotape intended to apprise him of the charges against him and to inform him of the repercussions of refusing to submit to a chemical test analysis or breathalyzer test. The Spanish language tape was translated for the Court by the court interpreter. Such is the only interpretation before the Court as neither the jury nor the accused called an expert witness to translate the videotape.

The Court adopted the translation of the Spanish language video. It stated that if the accused refuse the chemical exam or whatever part, his license will be immediately suspended or revoked or he will lose his privileges even though he will be found guilty or not of the accusation because he has been arrested. It also stated that the accused should submit to the chemical exam or whatever part thereafter. It can be introduced as proof against him in a trial, process or hearing of the result of his arrest. A Long Island Criminal Lawyer said the accused was asked if he wants to submit to the chemical analysis in order to determine if he there is presence or absence of alcohol or drug in his blood stream and he responded not to take the test.

The accused testified that at the time of his arrest he was coming from a disco where he had imbibed five or six beers. He further testified however that he was not driving on the day of the accident and in fact he does not know how to drive. In addition he states that although he has resided in the U.S. for two years, he does not come into contact with English speaking persons and speaks absolutely no English. The accused testified that he was not even shown the Spanish language videotape and that no request was made of him to take the breathalyzer exam.

The accused contends that there was no probable cause for his arrest because he was not driving the automobile. As such, he argues that the evidence of his refusal must be suppressed as fruit of the poisonous tree. It is well settled that in passing on whether there was probable cause for an arrest, the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than that a crime has not taken place and that the one arrested is the person responsible for.

The accused further contends that the Spanish language videotape did not warn him in clear and unambiguous language which made him refused to submit to the test. The jury contends that the video shown to the accused and adequately apprised him of his rights and of the repercussions of his refusal.

Based upon the testimony of the traffic officers and the police officer, the court finds that the accused was shown the video. The law provides that evidence of a refusal to submit to a chemical test by a person suspected of DWI is admissible at a trial, proceeding or hearing only upon a showing that the person was given sufficient warning, in clear and unambiguous language which resulted of such refusal and that the person persisted in the refusal. A person arrested for violating the law must be informed that if he refuses to submit to a chemical test, his license is immediately suspended and subsequently revoked regardless of the ultimate disposition of the criminal charges.

Contrary to the jury's assertion, the accused need not make a showing that he was confused or that he found the tape to be ambiguous. In fact, such a showing would not be a sufficient basis for suppression where the jury meets the burden of showing the tape to be clear and unequivocal. The translation given to the Court at the suppression hearing was provided by the court interpreter. The jury failed to present an expert who could have testified that, in his opinion, the language used in the tape was clear and unequivocal. Thus, the court can only base its conclusion on the rendition given by the court interpreter.

Several parts of the English translation of the Spanish language tape are confusing and unclear and do not meet the requirements of Vehicle and Traffic Law. While the vehicle and traffic law clearly states that a person arrested for such violation must be informed that his refusal to take the chemical test will result in his license being immediately suspended and subsequently revoked. The Spanish translation indicates that his license will be immediately suspended or revoked or the driving privileges will be lost. This is clearly not the same. Nor did the Spanish warning clearly apprised the accused of the fact that his refusal to take the exam can be used against him at a trial or hearing resulting from the arrest. It is unclear whether that portion of the warnings regarding the use at trial refers to the result of such test if it is taken, or to the refusal, if it is not taken.

As such, the court finds that the warnings given in the Spanish language tape are not sufficient and are not in clear and unequivocal language. The accused further contends that the jury has not met their burden of showing that the accused was persistent in his refusal.

The dictionary defines persistence as to continue steadfastly or often annoyingly, especially in spite of opposition. The language barrier prevented the officers from engaging in any further communications with the accused. There was therefore no opportunity for the accused to continue steadfastly to refuse to take the chemical exam. The simple mention of the no word by the accused does meets the persistence standard of the traffic law.

The requirement will never be satisfied when the accused is merely shown a videotape and cannot engage in conversation with the officer administering its exam. Unless the state assigns Spanish speaking officers to the Highway Divisions or shows a series of tapes to DWI accused persons, the jury will never be able to meet the persistency requirement with regard to the accused.

The Court believes it would be less burdensome upon the State while fair to the accused to require the jury to prove that the warnings were clear and unequivocal, that the accused indicated he understood the warnings and that he refused to submit to the test. However, the Court is bound by the persistency requirement and such burden was not met. The accused person’s motion to suppress the refusal is granted.

Wrongful arrest for a DWI, sex crimes charge, or a theft charge, might be the hardest thing to experience. Contact Stephen Bilkis and Associates for advice and guidance.

March 6, 2012

Court Decides Use of Breathalyzer Under Business Records Exception

Initially, the court held that records reflecting the calibration of breath test machine and analysis of breath test simulator solution used in DWI cases were non-testimonial hearsay and admissible over confrontation clause objection under business records exception. The certifications to be submitted for the calibration or maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument are either testimonial or non-testimonial in nature. When proven to be testimonial then the complainant must bring in the analyst. If it is non-testimonial, the complainant may lay the basis for introduction of the records.

Testimonial statements are material such as affidavits, custodial examinations, extrajudicial statements, depositions, prior confession, prior testimony that the accused was unable to cross-examine, similar pretrial statements, formalized testimonial materials and statements that were made under circumstances that the complainant would reasonably expect to be used in the later trial.

A New York Criminal Lawyer said the Supreme Court deliberately left for another day any effort to spell out a comprehensive definition of testimonial. The Court does say that when a non-testimonial hearsay is at issue, it is wholly consistent with the design to afford the states flexibility in their development of hearsay law. The Supreme Court's analysis of testimony excludes some hearsay exceptions, such as business and official records. To hold otherwise would require numerous additional witnesses without any apparent gains in the truth-seeking process. After all, cross-examination is a tool to flesh out the truth, not an empty procedure.

One State Law allows a lab chemist to test materials for drugs and to send in a sworn statement as to the identification of the drug and its weight. The sworn statements were submitted as legitimate evidence of what was asserted. A New York Law would not allow this. The chemist is necessary as a witness to establish what he analyzed. The court limits extrajudicial statements to formalize testimonial materials such as affidavits, depositions, prior testimony or confessions.

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because they have been created for the administration of an entity's affairs and not testimonial. A Manhattan Criminal Lawyer said the court specifically states that it does not hold anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample or accuracy of the testing, must appear in person as part of the complainant’s case. Additionally, the documents prepared in the regular course of equipment for maintenance may well qualify as non-testimonial records.

The Court is aware of recent Court DWI rulings with regard to the challenge of Alcotest results and not bound by it and finds its rationale to decide not in accordance with most State Court’s findings that calibration reports are not testimonials and qualify as admissible business records. In addition, even business records devised primarily for litigation receive business record protection so long as they have a secondary business purpose. Therefore, the court will not hold that the calibration and simulator solution records cannot be considered as typical business records. The breathalyzer machine can be used not only for legal action purposes such as criminal cases but it can also be beneficial for non-legal intentions. If an accused person who takes the breathalyzer test blows a reading of .06% or below within two hours after the arrest, it is legitimate evidence that he is not intoxicated. Maintaining it has a minimum a dual purpose.

Accordingly, the certifications for the calibration and maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument will be allowed to be admitted at trial pending a proper foundational basis being established.
When the Court makes its conclusion, one party will surely rejoice leaving the other party grieving. Whether you have been charged with a DWI, sex crimes or a theft crime, make an appointment with Stephen Bilkis and Associates.

March 6, 2012

Defedant Contends Illegal Stop in DWI Case

A police officer and his partner were on routine patrol at one of the intersections in Queens County. The officers noticed the woman driving a grey Cadillac passed through a steady red light. The other officer pulled the vehicle over and as he approached, the woman rolled down her window. As the officer requested the woman's license and registration, he noticed that she had bloodshot, watery eyes, and also detected the strong smell of alcohol on the woman’s breath. The officer further observed that the woman seemed disoriented and unaware of her surroundings. The officer requested the woman to step out of the vehicle, at which he also noticed that the woman was unsteady on her feet. The officer placed the woman under arrest. As the officer was escorting the woman to the squad car, she became very loud and argumentative towards the officer.

According to a New York Criminal Lawyer, the woman was brought to the Precinct Intoxicated Drivers Testing Unit (I.D.T.U.) for the purposes of performing chemical testing. The woman was immediately brought to the basement of the precinct where the breathalyzer testing is performed. Present at the testing site were the arresting officer, his partner and two other officers of the precinct. At no time were Miranda warnings given to the woman by the arresting officer.

The officer of the precinct confirmed that he was the officer responsible for administering the breathalyzer test to the woman. The officer also alleged that he has six years of experience with the I.D.T.U., and has conducted six hundred of such tests at a rate of approximately thirty per month.

The test as administered was videotaped and the videotaped was offered into evidence and carefully reviewed by the court. The court observed that the quality of the audio portion of the tape is extremely poor, rendering it almost inaudible and of questionable use as evidence. For that reason, the court relies mainly on the visual portion of the tape and the testimony of the officer of the precinct in assessing what happened during the woman's chemical testing. At the beginning, as seen on the tape, the woman permitted the officer when asked to take the breathalyzer. For the reason of her permission, the officer didn’t read full the refusal warnings. However, as the officer attempted to have her blow into the breathalyzer, the woman laughed, carried on in a whimsical manner, and stated that she don’t want to blow and wanted to get her keys to go home. At one point during the efforts to take the test, the woman apparently removed the mouthpiece from the breathalyzer and the officer had to reset the machine. The officer then warned the woman in response to the said conduct and stated that if the woman doesn’t blow into the machine she will lose her license. The woman laughed in response, the officer considered that behavior as a refusal. An NYC Criminal Lawyer said the officer claimed that the full refusal warnings were given to the woman after he deemed her to have refused but were not videotaped.

The court finds that the stop of the woman’s vehicle by the police officer constitutes legally permissible police action. A police officer may approach and stop a vehicle when a reasonable suspicion that a violation of traffic regulations is involved and observed. It is clear that the police action was not the product of simple desire, caprice or idle curiosity, but was performed in response to a traffic infraction personally observed by the arresting officer.

Based on the record, to validate a DWI, the police officer must have had reasonable grounds to effectuate the arrest. Reasonable grounds for an arrest for driving while under the influence of alcohol may be established through the police officer's observations of the accused person’s condition and/or utilizing the screening or field sobriety tests.

The court finds that based upon the officer’s personal observations of the woman, the officer had probable reason to effectuate the arrest. The officer observed her to have classic signs of intoxication such as bloodshot and watery eyes, strong smell of alcohol on her breath, her appearance of disoriented and was unsteady on her feet. For those reasons, the woman’s motion to suppress her refusal based upon a lack of credible reason is denied.

Legal charges against us or any family member is very difficult to cope with whether the charge involves sex crimes, a drug offense of a DWI. However, seeking legal assistance is a way to face those dilemmas. If you’ve been arrested for driving while intoxicated violation, call Stephen Bilkis and Associates for advice and guidance.

March 5, 2012

DWI Defendant Contests Driver's License Suspension

The first accused is charged with misdemeanor information with Vehicle and Traffic Law and the second accused is charged in separate misdemeanor information with Vehicle and Traffic Law. The issues raised by the defense counsel are identical in each case.

A New York Criminal Lawyer said that in each case, the accused is alleged to have had operated a motor vehicle while having a blood alcohol level in excess of .10 of 1%. In each case, the accused man’s driver's license was suspended at arraignment because of the blood alcohol content. The defense counsel contends that the suspension procedure constitutes a penalty the accused moves for orders to dismiss each docket on double jeopardy grounds.

In a recent Law Journal article, it is evident that Vehicle and Traffic Law has been attacked on constitutional and due process grounds throughout the state with the majority of decisions holding the statute constitutionally infirm.

One of the major attacks provides that the suspension procedure at arraignment does not provide the accused with a meaningful opportunity to be heard thereby violating his due process rights. Another issue raised is that since the length of prosecutions for Vehicle and Traffic Law offenses varies throughout the state, the length of the license suspension will vary as well and all accused though similarly situated are not treated equally. Accordingly, the mandated suspension procedure violates equal protection of law. Furthermore, the mandatory suspension of a driver's license constitutes a penalty, thus, to continue the prosecution where a penalty has already been imposed violates the double jeopardy protection. Finally, it is claimed in the attack that the suspension of a driver's license is an administrative or executive act. Thus, for courts to engage in a judicial suspension procedure of a driver's license is violation of the principles of separation of powers.

From the reported decisions in New York on the issue, it appears that in jurisdictions where Vehicle and Traffic Law has been attacked successfully by the defense counsel, the underlying violation on which the prosecution was commenced was either simplified traffic information or uniform traffic information. It is noteworthy since the critical documents by definition contain no factual allegations. The practice differs significantly from the practice in the Criminal Court of the City. It is the practice of the District Attorney's Office to file a certified chemical test analysis showing the accused person’s blood alcohol content at arraignment and such report is available in the vast majority of Vehicle and Traffic Law prosecutions. The cases where a challenge has been interposed by the defense have involved a chemical test administered after two hours of the accused person’s arrest.

The primary issue is whether the mandatory suspension required by Vehicle and Traffic Law is remedial or punitive in nature. A Brooklyn Criminal Lawyer explained that if remedial, then there is no double jeopardy violation, if punitive, there is. A central theme emerges from the cases when the suspension of a driver's license for DWI and DUI is designated to promote highway safety and to protect the public at large from injury. It is remedial in nature and not punitive. Accordingly, there is no double jeopardy to a Vehicle and Traffic Law prosecution where the accused person’s driver's license was suspended at arraignment.

The right of the Judiciary to suspend and revoke an individual's privilege to drive has been recognized for at least the last quarter century. Vehicle and Traffic Law creates no more of a judicial meddling, if any can be found, into the jurisdiction of the executive branch of the government that has existed for at least a period of time. For all the reasons stated, the statute is constitutional. Accordingly, the motion for orders dismissing each violation is denied.
Each person has varied tolerance on taking pain, problems, medications and even alcoholic beverages. It is the reason why medicine dosages are given based on one’s weight an age. For a DWI, sex cimes charge of theft charge, contact Stephen Bilkis and Associates for advice and guidance.

March 5, 2012

Defendant Refuses to Take Chemical Test

A man was arrested and was charged of Patronizing a Prostitute and Operating a Motor Vehicle While under the Influence of Alcohol or DUI which is also a misdemeanor. The accused man refused to submit to a chemical test and upon arraignment and his license was duly suspended. The accused moved for an order overturning any statements he made and any evidence of his refusal. A New York Criminal Lawyer said the hearing was ordered and was conducted before the Court. At the outset of the hearing, the specific nature of the accused man’s application was clarified. The accused moved on two grounds to overturn the evidence of the statements he made on videotape at the time he was given refusal warnings. The accused man asserted that he was arrested without credible cause and that his videotaped statements should be overturned as the fruit of his illegal arrest and its outcome. He also asserted that the same videotaped statements should also be overturned as evidence of a refusal to consent to a chemical test that was made only after inadequate refusal warnings were given.

At the hearing, the complainant presented the testimonies of the arresting officer and a police officer together with a videotape of the accused while the accused presented no evidence. The arresting officer's testimony showed that shortly after midnight of the arrest date, the accused drove his car onto the set of an undercover police prostitution operation. A New York Criminal Lawyer said the accused approached a female undercover officer who was posing as a prostitute and offered to pay her twenty dollars in return for a sex act. The undercover officer communicated to other police officers by pre-arranged signal that an offer had been made and the other officers moved in and stopped the accused within a few seconds after his offer. A police officer approached the accused who was still seated in the driver's seat of his car with the car engine still running. The police officer conferred briefly by a walkie-talkie with the undercover officer who confirmed that the accused had offered her money for sex. The accused smelled strongly of alcohol and appeared to be very intoxicated in that his eyes were bloodshot and he was swaying and babbling. The police officer asked the accused to step out of his car and when the car door opened the accused fell face first into the street and had to be pulled to his feet by the police. A preliminary field test was administered and the accused man’s blood alcohol content measured a great apparent evidence of intoxication. The accused was arrested for the crimes of Patronizing a Prostitute and DWI and was taken to a police station. The police did not read the accused of his Miranda rights at any subsequent time.

The police attempted to give the accused his refusal warnings and the procedure was videotaped. The accused speaks Spanish and accordingly, the police officers properly decided to give the accused his refusal warnings in Spanish. The police had a pre-recorded videotape of a woman delivering refusal warnings in Spanish on hand. The accused was videotaped as he stood side by side with the police officer and another arresting officer and watched the Spanish language videotape version of the refusal warnings being played on a television set. The room was arranged in such a way that when a viewer watches the videotape of the accused, it is not apparent that the accused is looking at a television set or where the off-screen woman's voice delivering the refusal warnings in Spanish is coming from.

The accused responded to the pre-recorded Spanish language refusal warning by making a series of remarks that were not directly responsive to the question whether or not he would consent to the chemical test. The accused asserts that it is the first time he has gotten drunk and that everyone gets drunk at Christmas time. He exclaims with considerable enthusiasm that the woman in the pre-recorded Spanish language videotape is pretty. The accused grows increasingly difficult to understand by muttering that he is becoming crazy and nervous.

The Vehicle and Traffic Law provides that evidence of the accused man’s refusal to submit to a chemical test shall be admissible at the accused man’s trial on the criminal charge of DWI, but only upon a showing by the complainant that the accused persisted in refusing to take the test after being given sufficient warning in clear and unequivocal language.

At the conclusion of the combined Refusal hearing in the case, the Court issued an oral decision indicating that the accused man’s motion would be denied unless he could point to persuasive authority leading to a different conclusion and it can be found that the accused had not been given complete refusal warnings. During the oral argument at the conclusion of the hearing, the complainant properly conceded that the accused had not been given any Miranda warnings and had not been given adequate refusal warnings. The complainant properly conceded that the evidence of the accused man’s refusal could not be presented to the jury at trial. However the complainant did argue that they should be permitted to introduce into evidence at trial a redacted version of the videotape made by the accused at the police station at the time when the inadequate refusal warnings were given. Specifically, the complainant proposed that the passages of the videotape in which the accused was given partial refusal warnings and refused to take the chemical test would be eliminated, but that the other remaining passages would be admitted into evidence before the jury in order to show the accused man’s condition and appearance close to the time of his arrest. The Court directed the complainant to submit a videotape redacted in the form proposed by the complainant. The Court further directed the parties to submit legal memoranda on the issue whether any portion of the accused man’s videotaped statements should be admitted into evidence at trial notwithstanding the fact that the accused was given inadequate refusal warnings.

The accused is right to raise the concern because it is obvious that the videotape has been redacted, the jury may speculate as to what has been deleted from the tape. However there is no good reason to doubt that an appropriate limiting instruction can be fashioned to meet the concern. In addition, it should be noted that as a technical matter the redacted video is very choppy because of the many edits made. It gives undue emphasis to the fact that certain material has been deleted. The Court therefore requests, but does not direct, that the complainant do whatever is possible as a mechanical matter to smooth out the redacted videotape so that the edits are not quite so jarring. Accordingly, the Court finds that the complainant may present the redacted videotape as evidence at trial against evidence of a refusal.

The Court concludes that even though no Miranda warnings were given, the redacted videotape may be played for the jury at trial without violating the accused man’s right against self-incrimination. The Court also finds that the accused man’s statements in the case were not the product of interrogation against self-incrimination.

Accordingly, the Court finds that the partial refusal warning that was given to the accused did not constitute interrogation and that the redacted videotape may therefore be admitted in evidence at trial without violating the accused man’s right against self-incrimination. For all the reasons stated, the Court holds that the complainant may not introduce at trial any evidence of the accused man’s refusal to take the chemical test, but the complainant may introduce into evidence at trial the videotape of the accused in the redacted form they have proposed. The Assistant District Attorney and the defense counsel are directed to alert the trial judge at the outset of the trial to the need for jury instructions in accordance with the opinion as to the limited use of the videotape and for the reasons why it has been redacted.

If you are arrested for unlawfully operating a motor vehicle, sex crimes or drug possession, you must have an attorney on your side to assist you on what to do. Call Stephen Bilkis and Associates today.

February 29, 2012

Probable Cause Questioned in DWI Case

The defendant was charged with violation of traffic laws because he was driving while under the influence of alcohol. The court conducted a hearing to determine if the defendant’s three separate statements have any legal implication.

In this DWI case, there are three different statements being deliberated. In the first statement of the defendant, she had said that she had a fight with a male friend since she was too intoxicated to driver her vehicle. The statement also indicated that she had 2 drinks. The second statement was allegedly given by the defendant after she was arrested by the police. In that second statement, she claimed that she only took one drink at her friend’s house and was heading to another destination. The third statement said that the defendant had three drinks and was about to go to her friend’s house.

A New York Criminal Lawyer said that the three statements are obviously in conflict with one another. The only witness to this case was the police officer who arrested the defendant. According to the officer’s statement, he and his partner were patrolling their usual route. The officers received a radio call and proceeded to respond to a dispute between drivers on the road. They went to the location of the dispute. When the police officers had arrived at the scene, the lead officer noticed the three people who seemed to be arguing. The woman, who was also the driver of the vehicle, was identified as the defendant.

The police officer was informed by one of the men who was with the woman defendant had been driving along when he noticed the woman and her friend having an argument. The man stopped his car to break it up.

After hearing the man, the police officer proceeded to ask the defendant what happened. The defendant told the police officer that they were arguing because she was too intoxicated to drive the car. When the officer had asked the defendant where she came from, the defendant had replied that she had been drinking. While the defendant was talking, the police officer noticed that she was slurring her speech and had bloodshot eyes. These were considered signs of intoxication. The officer also noted an alcoholic smell coming from the defendant.
After detecting the smell of alcohol, the officer had the defendant take the sobriety tests to determine if she was really intoxicated. The breath test results showed that she was intoxicated. The officer did not make her walk in a straight line since the defendant was wearing very high heels.

The officer arrested the defendant and brought her to the precinct for further questioning. An NY Criminal Lawyer said that while the police officer had the defendant at the back of the car, he proceeded to read the Miranda warnings in her presence. During the entire ride to the precinct, the police officer noted that the defendant had made a different version of her statement. At the precinct, the police officer also heard the defendant make another statement that was different from the previous ones.

Based on the provisions of the law, the police officer had probable cause in arresting the defendant. The officer had suspected the defendant to be driving while intoxicated. The court has found that the officer acted in the proper manner when he approached the defendant’s car and inquired on the incident. Before the defendant’s arrest, the court also finds that the questions asked by the police officer were only investigatory in nature. It can be recalled that the officer first asked about the reason of the dispute. Regarding the statements made by the defendant prior to her arrest, the court has found that those statements were made by the defendant out of her own free will. Therefore, such statements are admissible in court. However, there was no direct evidence that the defendant had been driving while she was intoxicated since the officers found her car parked along the side of the road. The motion of the defendant to suppress the statements is granted.

DWI lawsuits are not as simple as you think. If you are charged with DWI, sex crimes or a theft crime a qualified lawyer is all you need as you prepare your defense. Contact Stephen Bilkis & Associates for advice and a free consultation.

February 29, 2012

Court Rules on Evidence Submitted in DWI Case

The defendant faces charges of DWI or driving while intoxicated. The defendant is also charged with violating traffic laws. According to the arresting officer, the defendant failed to maintain driving within the correct lane. A hearing was held in court to determine if the evidence against the defendant had been illegally obtained. The court was tasked to decide on the validity of the evidence in court. The alleged evidence includes the statements made by the defendant and his refusal to take a chemical test.

The witness on this case was the police officer who had arrested the defendant. The police officer had 20 years’ worth of experience working in law enforcement. Through the years, the officer had made several arrests involving drinking while intoxicated charges.

A New York Criminal Lawyer said that according to the statement of the police officer, he was patrolling the highway during the night when he came across the defendant’s car. The officer observed that the driver of the car was driving at a high speed. The police officer followed the car in order to get closer. As the driver of the car made the turn, the police officer noted that he ran past two stop signs and went over the yellow lines.

It was during this time that the police officer turned on his emergency lights and pursued the vehicle to a complete stop. When the car pulled over by the side of the road, the officer approached the car and talked to the driver. The officer asked for his license and registration. The driver who was also the defendant in this case, had difficulty retrieving the needed documents. The police officer also noted the smell of alcohol inside the car.

The police officer proceeded to ask the defendant if he had been drinking. The defendant replied that he had a few drinks. An NYC Criminal Lawyer said that while the defendant was talking, the police officer noted that the driver showed signs of intoxication such as slurred speech and glassy eyes. After noting the observation, the police officer told the defendant to get out of the car and walk to the back of his car. This was actually a test on the part of the defendant if he could walk in a straight line. The officer further noted that the defendant was unsteady while walking. The officer had the defendant undergo sobriety tests.

The defendant failed all of the tests. The police officer decided that the defendant was guilty of DWI and brought him to the precinct. The officer again detected traces of alcohol on the defendant. At the precinct, the officer asked the defendant if he wanted to undergo a chemical test. It was during this time that the defendant spoke and asked to talk to a lawyer. He will not answer any more questions if unless he speaks to his lawyer.

According to the provisions of the law, a traffic stop is considered constitutional when there is legal basis for its occurrence. In the case of the police officer, he witnessed the defendant violate many traffic laws including speeding, running past stop signs and going over the yellow lines. The traffic violations provided the officer the legal basis to pursue and stop the vehicle.

The probable cause to proving the charge of DWI is left on the police officer. In this case, he had probable cause since the defendant demonstrated the classic signs of intoxication which led him to violate said traffic laws. The court has noted the observations of the police officer regarding the smell of alcohol and the results of the sobriety tests administered on the defendant. It has also been noted that the defendant admitted that he was drinking.

The court has decided that the earlier evidence regarding the defendant’s refusal to take the chemical test is not admissible since it was unclear whether the defendant had insisted on his refusal to take the test.

If you are charged with DWI, a sex crimes charge or a theft charge, you don’t have to bear the legal burden any longer. A skilled lawyer will be there for you in preparation for your case.Contact Stephen Bilkis and Associates for advice and a free consultation.

February 28, 2012

Court Decides DWI Case Where Weapons Were Involved

The respondent in this case had a license to carry firearms. The same license was suspended by order of the court. All guns owned by the respondent were to be turned over to the sheriff’s department pending the hearing of the case. The permit to carry firearms was reinstated after the proceeding of a DWI charge.

The court was tasked to determine the circumstances leading to the arrest of the respondent. According to the witness who was also the arresting officer, he arrived at the house of the respondent as back up. The officer had responded to a call made on the emergency hotline involving a dispute between a husband and wife. When the officer spoke to the husband and also the respondent in this case, the respondent said that it was his wife’s fault. The respondent claimed that his wife assaulted him. He did not do anything to his wife. The officer noted the behaviour of the respondent as uncooperative. The respondent kept on telling the officer to get out of the house.

A New York Criminal Lawyer said that the officer also noted that respondent showed signs of intoxication. The officer arrested the respondent for his disorderly behaviour. During the investigation of the police regarding the dispute, the respondent kept on harassing his wife and the officers present. Upon arrest, the respondent was brought to the court to be arraigned. The respondent continued to be in an unruly mood while inside the premises of the court. The charge at this point was changed to obstruction. At the request of the respondent’s wife, the court granted an order of protection. The officer imposed the order by seizing the guns of the respondent.

After the serving of the order of protection, the obstruction charge was withdrawn. The respondent was presented with the condition that the order of protection will be dropped if he will surrender his license to carry firearms. The respondent is arguing in this case that his permit was already surrendered as ordered by the court.

When the court deputy arrived at the house of the respondent, he noted that the respondent was intoxicated since he had slurred speech and glass eyes. He also spoke obscene words in front of the deputy. The deputy explained that he responded to a domestic dispute call and was there to enforce the order of protection. The respondent was then arrested for violating the order of protection. Another officer arrived at the scene and noted the bruises and scratches on the respondent’s wife.

Based on the facts presented in the case, a Long Island Criminal Lawyer said that the provisions of the law state that a gun permit may be revoked if the owner is unfit to own a gun. The court has declared the respondent to be unfit. The proof required to revoke the license must be substantial evidence. The court has the responsibility to protect the public from the threat of unfit gun holders. If the gun owner is declared unfit therefore the guns may be considered dangerous under his possession.

The respondent has been found by the court to have credibility issues due to his intoxication and domestic disputes. The respondent had violated the order of protection and proceeded to hurt his wife anyway. The revoked license was determined by the court to have substantial evidence. The court also ordered that any guns taken due to a decision of a former case must be surrendered and transferred to another person who was fit to carry a gun permit.

The respondent was ordered by the court to arrange the transfer or sale of the guns to another individual with a permit. An appeal may be made on this decision.

If you are facing a DWI charge, sex crimes charge or domestic violence offense, you don’t have to worry. Hire the services Stephen Bilkis and Associates to help you prepare on your case.

February 28, 2012

Court Decides Probable Cause for DWI Arrest

The defendant in this case was charged with DWI and violation of traffic laws. Upon receiving all statements of the parties involved, the court has scheduled a hearing to determine if the statements made by the defendant should be admissible as evidence.

According to the case files, the defendant gave an initial statement to the police regarding the circumstances of his traffic violations. The defendant first drank four beers before moving on to another place to take two more beers. The defendant then proceeded to drive home. He got out of his car sometime later and walked home instead. The defendant further told the police that he was driving his car home when he the police car approaching. It was during that time that he got out of the car and ran away to walk home.

A New York Criminal Lawyer said he police officer was named the only witness in this case. According to his statement, he and his partner were on their usual patrol but they were not in uniform. The police officer was driving an unmarked car. While patrolling, they received a radio call that a suspicious-looking car was parked along the side of the road. The police officer then proceeded to the direction of the reported vehicle.

The location of the parked car was in front of the driveway of a private residence. According to the owner of the house, she noticed a car parked on her driveway and did not know its owner. She told the police officers that she did not see anyone get out of the car or when it parked on her driveway. She knew nothing about why the car was there.

Using his investigation skills, the police officer felt the hood of the car and discovered that it was still warm. This means that the car was left recently and the driver must still be near. The police officer also noted that the car was locked with the keys still inside. The officer checked the plate number of the vehicle and made a call to check on its owner. The officer found out that the car belonged to a woman.

The police officer noted in his statement that there was no crime being committed under the circumstances. A Manhattan Criminal Lawyer said that the officers left the scene and drove around the neighbourhood to look for any signs of the driver. The officer further indicated in his statement that he was looking for someone who was on foot and stop to ask a few questions.

While driving along further, the officer noticed a man inside a memorial park who was jogging around in circles. The officer observed that the park was about a few minutes away from the location of the car. The officer stopped the car to call the man over. The man here was later known as the defendant. When the defendant came over, the officer asked for identification. At that moment, the officer noted that the man smelled of alcohol and had trouble maintaining his balance. The officer could see that he also had glassy eyes and talked in a slurred way. The officer found the defendant to be in a cordial manner. The defendant was asked to perform sobriety tests. Since all tests show that the defendant was positive with alcohol, the officer brought him in and charged with DWI.

According to the provisions of the law, the police may have the authority to stop anyone who was suspected for committing a crime. The stop is justified if the police can prove their suspicions right. In this case, there was no traffic stop since the defendant was found on the street.

Based on the information presented, the court has determined that the court did not find probable cause in the arrest made by the police. There was no reason for the police to stop the defendant since he was not committing a crime. The motion to suppress is granted in favor of the defendant.

The next time you are charged with DWI, sex crimes or a theft crime, you don’t need to worry about the lawsuit. An skilled lawyer will assist you in planning your next legal action. Call Stephen Bilkis and Associates today.

February 27, 2012

Defendant Appeals DWI Charge for Lack of Sufficient Evidence

The defendant has filed an appeal for his conviction. The court found the defendant guilty of DWI. He was also found guilty of violating traffic rules and regulations. The defendant reportedly failed to stick to the right side of the road while driving and went over a hazard marking.

The court finds the defendant guilty of the DWI after he went off the rural road while driving and as a result, his car hit the telephone pole. The defendant allegedly left the scene without reporting the incident to authorities. After his trial by jury, the court sentenced him to 1 to 3 years of imprisonment. The defendant has filed a motion for appeal.

A New York Criminal Lawyer said that the defendant asserted in his appeal that the proof of his intoxication while driving should be declared as legally insufficient. According to his statement, the defendant claimed that he did not become intoxicated until after his accident involving the telephone pole.

A witness gave a statement and said that he came upon the staggering defendant standing on the middle of the road. The witness saw that he was talking to his mobile phone. The witness came upon him and remarked that the defendant had been drinking. The defendant replied that he only started drinking after he crashed the telephone pole. The witness further testified that the defendant had slurring speech and looked dazed and confused.

The state trooper who arrived at the scene searched the defendant’s car and found a half empty vodka bottle. However, the defendant had fled from the scene. Later on, another state trooper came by the house of the defendant. A New York City Criminal Lawyer said the trooper had observed that the defendant had glassy eyes, slurred speech and had difficulty in body coordination. The trooper also detected the smell of alcohol on the defendant.

When the defendant was tested several times for sobriety, he failed repeatedly. During the time of the accident, the jury has noted that the weather was clear and dry. It was also noted that there was only one slight bend on the road near the crash site.

During the investigation of the trooper, the defendant told him that the he had one or two beers at the party that he attended before he drove off for home. The defendant then claimed that he did was not intoxicated until after arriving home. According to his statement, the defendant drank a few more beers and emptied half a bottle of whiskey before the state trooper arrived on his doorstep. The defendant further told the trooper that he was staggering in the middle of the road because of the dizziness he felt from the impact of the airbag in his car.

Based from the evidence presented, the court finds the case in favor of the people. The jury also concluded that the defendant drove off the side of the road and hit the telephone pole because he was intoxicated.

Regarding the matter of the defendant’s appeal that the court did not comply with a statute involving the substitution of a juror while on trial. According to the statute, when there are changes made among the jurors, the court must put into writing the changes made and have the defendant sign the document. This should be done in the presence of open court. However, the defendant contends that he was not given anything to sign during the proceedings. In this case, the court granted the request of the defendant to substitute a current juror for another one. Despite consent provided by the defendant and his counsel, the appeals court has found that the county court had not followed the procedure of having the defendant sign a written consent in open court. This violates the constitutional right of the defendant by jury composed of 12 members.

The appeals court therefore finds the issue to be a constitutional matter and requires judgment to be reversed. The case will be tried again in county court.

If you are involved in a DWI case, sex crimes charge, or theft charge, you need to have the competent services of a skilled lawyer. No matter what type of charge against you, our legal team is always ready to represent you if you go to trial. Stephen Bilkis & Associates will gladly arrange a meeting for you.

February 27, 2012

Court Rules on DWI of Underage Driver

Two state police troopers were parked at a corner when a red pick-up truck sped past the intersection. The radar in the police trooper’s patrol car registered that the vehicle was going at a speed of 65 miles per hour in a 45 miles per hour zone. The police troopers then followed the red pick-up truck and while they were right behind the red pick-up truck, the police radar was still tracking the speed of the red pick-up truck.

A New York Criminal Lawyer said that then the red pick-up truck parked into the parking lot outside a bar, the police officers got out of their patrol car and asked the driver for his license and registration. They noted that the driver was only 20 years old. The officers noticed the strong smell of alcohol on the driver and his red, watery and glassy eyes. One of the officers asked the driver if he had been drinking that night and the driver said he had been drinking beer. He also stated that he knew that he should not have been drinking that night.

At this point the officers asked the driver to take sobriety tests at the parking lot. The driver was staggering and swaying when asked to stand still. He failed to follow with his eyes a pen that the officer moved in front of him. The driver succeeded in walking heel to toe in a straight line for about nine steps. But the driver could not keep his leg up to stand on just one leg without staggering or swaying. He could not recite the letters of the alphabet correctly and stopped midway. He was not given a breath analyzer test. After this, the state troopers then placed the driver under arrest for DWI.

A Nassau County Criminal Lawyer said that during the trial, the State Trooper who made the arrest testified that he had finished 80 hours of coursework at the police academy on recognizing sobriety or intoxication in drivers. He had made about 75 arrests of drunk drivers during his tour of service and has been present during the arrest of about 100 more drunk drivers.

The driver, during the trial, asked the court to suppress all the testimonial evidence against him as they were obtained illegally. He contends that he was arrested without cause.

The Court rejected the argument of the driver. The Court noted that the State Troopers had enough probable cause to stop the driver of the red pick-up: they had witnessed him speeding; his breath reeked of alcohol; his eyes were bloodshot, glassy and watery. And they noticed that the driver was unsteady on his feet. The driver was only 20 years old at the time of his arrest and should not even be admitted to a bar. He was violating the law at the time of his arrest.

The Court explained that probable cause exists when the police officer had a reasonable belief that a crime was being committed. Speeding is a crime which was sufficient probable cause for the state troopers to stop the driver. When they looked at his license and registration, the police officers were able to determine that he as committing crime: he was drinking even though he was only a minor (under 21 years old). The driver was also chatty: he admitted that he had been drinking beer and that he knew that he shouldn’t be drinking.

All the evidence from the testimony of the state troopers, including their recollection as to the failure of the driver during the field sobriety tests is all admissible as these were obtained legally. The state troopers had probable cause to stop the red pick-up truck. When they asked for the license and registration, the driver smelled of alcohol and had red, watery and bloodshot eyes. They also saw that he was only 20 years old. They had probable cause to subject him to the field sobriety tests. When he failed the sobriety tests, the state troopers had probable cause to arrest him for driving while intoxicated. The evidence obtained during the stop, the evidence of the sobriety tests and the admissions of the driver are all admissible into evidence.

If you have been charged with a DWI, sex crimes, or a theft charge, call Stephen Bilkis and Associates and ask to confer with a lawyer who can explain to you what the charges mean. Our office can help you during your custodial investigation; he can assist you at trial and present evidence as well as ague your case in your behalf.

February 24, 2012

Host of Party Charged as a Result of DWI

A father organized a graduation party for his 18 year old son who graduated from high school. He decided to hold the party on June 16, 1983 at a club and he agreed to have an open bar where beer will be served to the guests from a keg with a tap. The father agreed to be charged for each keg of beer consumed. Food will also be served at the party and the father will be charged per plate served. The father decided that the party should start from 12 noon until 6:00 p.m. as an open house for his son’s adult relatives; but the party beginning at 6:30 will be for his son’s friends at school.

A New York DWI Lawyer commented that the party was such fun, beer flowed abundantly. At around 6:30 p.m. a classmate of the party host’s son who was around 19 years old arrived and had two beers. He stayed at the party until midnight drinking freely but not eating anything at all. The beer was available on a self-serve basis. When the club closed at midnight, the classmate gave some of his friends and school mates a ride at the back of his pick-up truck. Half an hour after leaving the party, the pick-up truck skidded off the road and turned over. A friend of his who was sitting in the back of the pick-up truck with his girlfriend died as a result of the accident.

The classmate pleaded guilty to vehicular homicide and to driving while intoxicated. A New York DWI Lawyer said thttp://criminaldefense.1800nynylaw.com/lawyer-attorney-1398152.htmlhe parent of the high school graduate who hosted the party also pleaded guilty to the charge of unlawfully dealing with a child (by giving alcohol to a minor.)

The parents of the dead minor sued the classmate who drove while intoxicated but they also sued the parent who hosted the party and the club where the party was held. The parents of the dead boy claim that the drunk student and the student who died were both minors, both were under 19 years of age at the time of the accident and the parent who hosted the party and the club owner were both liable under the Dram Shop Act.

The parent who hosted the party and the club owner both filed motions for summary judgment asking for the dismissal of the complaint against them.

The Supreme Court opined that the actionable wrong is the drinking of the alcohol and not the furnishing of the alcohol since it was the drinking of the alcohol that was the immediate cause of the injury.

But in this case, a Nassau County DWI Lawyer said there is a law that prohibits selling or giving liquor or any alcoholic beverage to a child who is less than nineteen years old. Evidence was produced that both the parent who hosted the party and the club owner knowingly served and gave away alcohol to high school students whom they knew to be under 19 years of age.
The penal statute renders liable any person who sells or gives any alcoholic beverages to minors under 19. And there has been numerous cases decided that the person who sells or gives alcohol to a minor may be liable for the injuries sustained by the minor who received and imbibed the alcohol sold or given to him. The law was designed to protect minors from the injurious effects of imbibing the alcohol. But then, the injurious effects are not limited to the minor who imbibed the alcohol but also to others who may be injured when the intoxicated minor drives.

In a long line of cases, the Supreme Court has consistently held that party hosts are not liable for injuries resulting from the acts of able-bodied persons who drink at a party. But then, the Supreme Court reasoned that minors are not able-bodied. They are children whose bodies are immature and whose judgment may be more readily impaired by alcohol.

The parent who hosted the party and the owner of the club who kept on bringing out full kegs of beer for the high school students whom they knew to be under the age of 19 acted in total disregard for the law. Since they were acting contrary to law, they could be found to be acting negligently. This is an issue of fact that must be tried.

It is for this reason that the motion for summary judgment was correctly denied by the lower court. The Court upheld the denial of the motion for summary judgment.

You may be thinking of hosting a party or open house for your kids and their friends. You may be held criminally liable for giving alcohol to minors and you may also be found civilly liable for damages for it if any of the high school kids gets injured or causes injury to others if any of them drive while intoxicated. Do your best to shield yourself: get a lawyer who knows the defenses to present in your behalf. At Stephen Bilkis and Associates, our legal team is ready to assist you.

February 24, 2012

Court Rules on DWI Case

A police officer had just gone off-duty and had changed from his police uniform to civilian clothes. He got into his car and was driving home. When he reached an intersection with a stop light, he stopped and waited for the light to turn green before he turned left. As he was turning left, a big SUV came at high speed and ran the red light. A New York DWI Lawyer said that the officer had to stop and turn sharply to avoid being blind-sided by the SUV that ran through the red light.
The officer then followed the SUV as it ran two more stoplights. At one of the stoplights, there were people crossing the street who had to jump out of the way so as not to be hit by the SUV. The SUV stopped a few blocks later in front of an auto body shop. The officer got out of his car and talked to the driver of the SUV. He showed the driver his shield and asked for the driver’s license and registration but the driver refused. The off-duty officer smelled a strong odor of alcohol on the driver. The officer then told the driver to remain in his car.

The driver did not heed the officer’s instructions. He got out of his car as did all of his passengers. They began chanting that the officer could not arrest them because he was off-duty. So the off-duty officer called the 45th Precinct to send officers to arrest the driver.
When the driver was brought to the 45th Precinct, the arresting officer assigned to do the paperwork for his arrest (not the same officer who was nearly run over by the driver’s SUV) noted a strong alcohol smell on him. The driver who was arrested was verbally abusing the officers in the precinct. A New York DWI Lawyer said he had to be handcuffed to a railing to keep him from hurting himself. But he was still flailing about and kicking his legs, screaming and cursing at the police officers in the precinct. The arresting officer tried to calm down the driver but he was unsuccessful so he handcuffed the driver’s other hand to the railing as well.

The driver was then taken to the room where he would take an Intoxylizer examination. There was a camera in the room and the driver was recorded from the time he was arrested after midnight until 6:00 a.m. the next day.

The driver clearly stated that he wanted for his lawyer to be present. The officer then asked him if he had the name of his lawyer and the driver gave the police officer the name of his lawyer. The officer told the man that he would call his lawyer if the driver had the lawyer’s number. The driver then said that he did not have his lawyer’s number memorized. As the driver tried to explain, the officer interrupted him. The police officer said to the driver that his right to an attorney is not an absolute right. Then the officer asked the driver if he wanted to take the Intoxylizer test. When the driver said that he did not want to take the test, the police officer warned him that his refusal to take the test will be noted into evidence and be used against him. The driver still refused to take the test.

Two hours later, the officer removed the driver’s handcuffs and walked him around the room and then informed him that he was under arrest for driving while intoxicated. Then the officer asked him again if he wanted to take the Intoxylizer test and the driver still refused. The officer warned the driver that his license will be suspended immediately and the evidence of his refusal to take the test will be used as evidence against him. After this, the driver asked for his lawyer again.
While the tape was recording, the officer asked the driver to take coordination tests and the driver took them. The officer then read the driver his Miranda rights and the driver answered that he understood his rights. The officer then asked the driver if he wanted to answer some questions and the man said that he did not want to answer any questions.

A Nassau County DWI Lawyer said that after this the driver was put in a holding cell just a short distance away from the desk where the officer was writing out his report of the arrest. The driver kept yelling and cursing at the officer who periodically told him to calm down and keep quiet so he can finish his paperwork and get the driver out of there. This happened about six times throughout the whole night. The officer kept telling him to calm down. Finally the driver audibly said that he had only four shots of Hennessy that night.

At trial, the driver asked that the evidence his refusal to take the Intoxylizer test be suppressed. He also asked that his admission that he had four shots of Hennessy be suppressed as well. He reasoned that when he asked for a lawyer and he was not given one, his rights under custodial investigation were violated and all evidence obtained during that custodial investigation without his lawyer should be suppressed as they were obtained in violation of his rights.

The Court began by stating that the off-duty officer who tailed the driver after he was nearly blindsided at a stoplight had probable cause to follow the SUV and to stop its driver and place him under arrest. The officer personally witnessed the driver violate traffic rules and endanger the lives of pedestrians and motorists. When the off-duty officer talked to the driver, he noticed the strong smell of alcohol on the driver’s breath. Since there was probable cause for the driver to be arrested, the evidence obtained is not the fruit of an illegal arrest.

The evidence of the driver’s refusal to submit to a breath analyzer however cannot be admitted into evidence against the driver. It was clear from the recording that the driver kept asking for the police to contact his lawyer but the police would not. While it is true that the driver did not have an absolute right to have his lawyer present with him in the precinct to advise him whether he should take the test or not, when the driver asked for them to contact his lawyer, they should have at least tried to find his lawyer. The police even talked the defendant out of wanting to consult with a lawyer of his choice. Even if the test had to be performed within two hours of his arrest, the police could have contacted the driver’s lawyer and they could have consulted by telephone. That way, the driver’s choice to take the test or not would have been an informed choice. For this reason, the Court ruled that the driver’s refusal to take the breath analyzer test cannot be used against him.

Lastly, the Court discussed whether the driver’s outburst, telling the officer that he had only had four shots of Hennessy, should also be suppressed. From the video-taped proceedings in the precinct, it is clear that the driver was not under custodial investigation when he made the outburst. The officer was not asking the driver any questions. The police officer had repeatedly tried to calm down the verbally abusive driver by telling him to stop talking so that he can finish the paperwork and get him out of the holding cell faster. The police officer tried to do this about six times during the night. The driver went on and on yelling and screaming protesting his arrest stating that he did not have much to drink and should not have been arrested. So finally the police officer got fed up with the verbal harangue he had been receiving from the driver and told him that he did not care how much he had drunk that night, but he had to calm down so he can finish the paper work. It was at this time that the driver so audible said that he had only had four shots of Hennessy.

His declaration was clearly spontaneous and unprovoked. The officer never asked him a question as to how much he had had to drink that night. The officer was, in fact, telling the driver repeatedly to calm down and to stop talking and to stop yelling. This outburst of the driver, although it was an admission, was never forced or wheedled out of him: he himself made that declaration. Thus, the Court ruled that evidence of the driver’s outburst admitting that he had had four shots of Hennessy is admissible into evidence against him.

Do you know what you should do if you were stopped by a police officer and subjected to a sobriety test? You should call a New York DWI lawyer. At Stephen Bilkis and Associates, they have trained attorneys who are ready to assist you and be with you in the precinct if you have been arrested for driving while intoxicated. Call Stephen Bilkis and Associates and ask to speak to a trained lawyer today.

February 22, 2012

Court Resolves Custody Issue Surrounding DWI Arrest

According to a New York DWI Lawyer, an alcoholic father appealed that the court should grant him full custody of his child without any visitation rights to the mother. The mother was granted sole legal and physical custody with visitation to the father. The couple had been before the Family Court on numerous occasions in the course of which the father's alcohol dependency had been a factor in visitation. He had previously been ordered to successfully complete alcohol treatment before unsupervised visitation would be allowed and was prohibited from consuming alcohol for 24 hours prior to or during visitation.

A few months after the order was entered, another series of proceedings were commenced between the couple after the mother refused to turn the child over for visitation one afternoon because the father showed up visibly intoxicated. The incident prompted the father to file violation and modification of custody petitions. The mother, in turn, filed a modification petition alleging that the father was once again consuming alcohol on a regular basis and seeking, among other relief, to suspend visitation pending successful alcohol treatment and a family offense petition, alleging that the father made repeated threats to remove the child from the state. In her modification petition, the mother also noted that the father had recently been arrested on another alcohol-related offense.

A New York DWI Lawyer said that based on records, the Family Court dismissed the father's petitions for failure of proof and modified the prior order by directing him to undergo alcohol treatment and permitting supervised visitation on the condition of his active engagement in such treatment. It also denied a motion for a new trial.

The father argues that Family Court's finding that he was intoxicated on the afternoon in question was not in accord with the evidence. The determination of the Family Court, which observed and heard the testimony of all witnesses, is entitled to great respect and will not be disturbed unless it lacks a sound and substantial basis in the record. The mother's undisputed testimony established that she denied the father visitation on the afternoon in question out of concern for the child's safety. According to the mother, when the father arrived, he almost fell over while getting out of his car, smelled of alcohol and admitted that he had been drinking. He then refused to take a breathalyzer test when the two proceeded to a local police station in an attempt to resolve the dispute. While a bartender testified that she served the father only one nonalcoholic beer an hour or two before this scheduled exchange, the court found that his testimony did not establish that he had not been drinking prior to his encounter with the mother. Under the circumstances,a Nassau County DWI Lawyer said, the record fully supports the court's determination that a sufficient change in circumstances, namely, the father's resumption of drinking, warranted a modification of the prior order and that such modification was in the child's best interest.

The father also argues that the Judge became an unsworn witness against him thus mandating her disqualification but the court was not persuaded. The Judge was intimately familiar with the issues plaguing the couple, particularly the father's demonstrated need for alcohol treatment, since she presided over all prior Family Court proceedings. At the initial appearance, the Judge denied the father's request to reinstate visitation, but noted that she would reconsider the application in the event he availed himself of treatment, which, she noted, he had successfully completed in the past.

The Judge also informed counsel that she recently arraigned the father, in her capacity as a local town judge, following his felony DWI arrest and stated her observations of him in the course of that matter. In denying the father's subsequent request for disqualification based on her involvement in the criminal matter, the Judge stated that she could impartially and fairly preside over the instant proceedings despite the same.

While the father argues that it was improper for the Court to draw an adverse inference against him for refusing to comply with an interim order directing a complete substance abuse evaluation, there is no indication in the record that the court in fact drew a negative inference against the father for any reason or that the court imposed any type of sanction for his refusal to comply with the order. Thus, the argument is without merit.

Couple dispute may possibly be the hardest case to handle for a child is always caught in between. No parent would want to entrust his child in the hands of an intoxicated person. If you are in this kind of situation, the lawyers of Stephen Bilkis & Associates can help you win your case.

February 22, 2012

Defendant Convicted of Manslaughter in DWI Case

This is a pending motion of a man’s appeal to dismiss the charges against him. He seeks to dismiss the first count of accusation, murder in the second degree, the second count which is manslaughter in the second degree and all other counts of charges against him.

Based on the record, on the night of the incident, the man was operating his motor vehicle in an eastbound direction. It crossed the center line into the westbound lane of traffic then he collided with a westbound vehicle driven by a woman. As a result of the collision, a man seating on the front seat of the woman’s vehicle died. The grand jury returned a seven-count felony, charging the man with murder in the second degree, manslaughter in the second degree, vehicular manslaughter in the second degree, criminal negligence homicide, two counts of misdemeanor, DWI and failure to keep right. Under the facts presented here, the distinction between the two types of homicides takes place in the context of a driving while intoxicated fatality case.

The analysis results from the man’s motion requesting that the court review the grand jury’s minutes of the proceedings to determine if the evidence presented was legally sufficient to sustain an indictment for depraved indifference murder and manslaughter in the second degree.
The court allowed to an in-camera review of the grand jury’s minutes of the proceedings. Subsequently, the motion for the release of the minutes is denied. The grand jury was properly represented and received all appropriate legal instructions.

The court agrees with the Court of Appeals for the simple reason that it is difficult to conceive of many actions resulting in an unintentional murder which should be classified at the same level as intentional murder.

The court first rules that the factors and the evidence presented to the grand jury are sufficient to support a finding that the man, by his behavior, recklessly caused the death of another, as defined in the charge of manslaughter in the second degree. The evidence presented to the grand jury was sufficient for the jury to find that the man's actions created a considerable and unjustified risk that another person's death would occur. Consequently, the man's motion to dismiss the second count of the accusation is denied.

Relative to the depraved indifference murder charge, the court finds that the man's alleged actions, tragic and unfortunate as they may be, were not such that would elevate his actions to a level criminal liability equal to that of intentional murder, particularly in light of the Court of Appeals' recent instructions on the topic as to the degree and type of proof needed to support a finding relative to actions that create a severe risk of death, and also after a comparison of the factual elements that have been present in driving while intoxicated fatalities in which a murder in the second degree charge or conviction has been sustained.

Accordingly, the man’s motion with respect to the first count of the accusation charging him with murder in the second degree is granted and the count is hereby dismissed.
The man argues that the balance of the accusation should be dismissed since the court introduced evidence of his prior driving history, which includes a conviction for driving while ability impaired (DWAI) as a traffic infraction. While the actual conviction was not entered into evidence, its existence was made known to the grand jury. However, it does not follow that the charges must be dismissed as result. The grand jury received appropriate limiting instructions regarding the reference to the man's prior driving record.

The man's motion to dismiss counts three through seven of the indictment is denied.
Serious accidents can ruin one’s life. Unfortunately, we’ll never know where and when it can happen. The lawyers at Stephen Bilkis & Associates are group of competent people to provide you or a family member legal advice to guide you through your ordeals. Feel free to call any of our office near you.

February 21, 2012

Court Rules on Vehicuclar Manslaughter Case

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.

The legal team at Stephen Bilkis and Associates can represent you or a family member in facing any lawsuit. Whether you have been charged with sex crimes, a theft, or DWI, give us a call so we can provide you free advice and consultation to better understand your situation. Our offices are located all throughout the NY Metropolitan Area.

February 20, 2012

Witness Testimony Questioned in DWI Case

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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February 20, 2012

Court Rules on License Revocation Issue for DWI o

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.

Conviction for driving while intoxicated is a serious offense that will remain in your permanent record. Whether you have been charged with a DWI, sex crimes or a theft charge, it is important to ensure that your rights are protected. At Stephen Bilkis and Associates, well-trained and capable attorneys are ready to assist in your defense. They will present your case and argue it for you.

February 20, 2012

Court Rules in Vehicular Manslaughter Case

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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February 19, 2012

Court Decides Issue of Probable Cause for DWI Stop

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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February 18, 2012

Court Decides DWI Case

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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February 17, 2012

Court Rules on Diabetic Hypoglycemia Defense Case

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.

Family members should protect each other from any form of harm but when a member does otherwise when they are intoxicated, seeking legal advice is a must. A dedicated team of New York DWI Lawyers at Stephen Bilkis and Associates is always ready to provide you with assistance and sound counseling.

February 17, 2012

Court Rules in Minor DWI Case

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.

Legal disputes over intoxicated drivers often hurt businesses and may cause great amount of money. If you find your company in need of sound advice, feel free to call and consult with legal counsel from Stephen Bilkis and Associates. Our offices are located all throughout the NY Metropolitan Area.

February 16, 2012

Court Rules on DWI matter

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.

February 14, 2012

Courts Rule on Mandatory Sentencing in Drug Case

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.

February 2, 2012

Drunk Driver Wreaks Havoc Through Mobile Home Park

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.


January 31, 2012

Friends Should Not Let Friends Drive Drunk Says Police

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.

January 30, 2012

Bus Driver Gets Probation for DWI

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.

January 29, 2012

Police are getting serious about seat belts an DWIs

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.

January 28, 2012

DWI driver ice cream truck driver nearly hits child

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.

January 28, 2012

Mother is arrested driving drunk in a school zone

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.

January 26, 2012

Baseball Player Threatened to Kill People Before DWI Arrest

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.

January 22, 2012

DWI Suspect Arrested on Top of Police Cruiser

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.

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January 8, 2012

Alleged Drunk Driver Knocks Over Power Pole in Texas

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" »

January 1, 2012

Motorists face heightened police presence, especially during peak holiday seasons

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" »

November 3, 2011

Singer facing jail sentence

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.

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