New York Criminal Lawyer Blog

On June 24, 2003, several families of victims of gun crimes (possession of a weapon) filed a class action suit against seven firearms manufacturers to recover damages as a result of their family members deaths. The concept behind this lawsuit was that the manufacturers of these handgun had created a situation in which it was too easy for a subject to obtain a handgun and use it to assault another person. The court is forced to evaluate who is responsible for illegally possessed handguns. The complaint states that these illegally obtained handguns are a public nuisance because they endanger the health and safety of most of the population. The contention that was made in this complaint was that the manufacturers of these handguns are knowledgeable of the fact that their product is used to commit crimes and that they have chosen to contribute to these crimes by continuing to manufacture, distribute and market handguns to people who they know are likely to use them in an unlawful manner. The complaint maintains that the manufacturers of these handguns are aware that certain types of guns and certain areas where guns are sold, are disproportionately responsible for a large number of crimes in which handguns are used. The complainants seek an order directing the manufacturers of firearms to stop making them in New York state and to stop selling them in New York state which will stop the nuisance that they have created.

A New York Criminal Lawyer said the court evaluated the complaint in the light that it would be improper to penalize one person for the actions of another. Handguns are not the only legally manufactured and sold item that can be used illegally in the hands of a person who intends to commit an illegal act. With that contention, the manufacturers of kitchen knives, hunting knives, hatchets, or machetes could also be forced to stop manufacturing their products because some people use them to perform illegal and violent crimes. The court finds it improper to hold a person who is conducting themselves in accordance with the laws of the State of New York responsible for the actions that a third party. If a person is going to break the law, they will find a tool to use.

A good example of this type of logic is found in a particular well-known motorcycle gang. A Long Island Criminal Lawyer said their weapon of choice for most of their crimes is a claw hammer. Should companies that make claw hammers stop producing them? Is the government in a position to limit the types of people who are allowed to purchase a claw hammer?

In the case at hand, the complainants have lost loved ones to violent crime and violent criminals. It is important to resist the urge to blame the tool rather than the person who intended to use the tool to break the law. The tool is only a tool until the person who welds it with intent either commits good or evil with it. It is the intent of the person that needs to be controlled, not the tool itself. Any tool will do for a person with evil intent. If the government begins regulating what type of person is allowed to purchase handguns, it is not dealing with the actual problem at hand. The problem is the human being who intends to commit an unlawful act. If handguns are not available to that person, they can use just about anything else. It is not reasonable to hold the manufacturer of a legal tool responsible for the illegal intent of a person that they do not even know.

The court determined that the complainants would have to provide more specifics if they expected the court to consider a cause of action for common-law public nuisance. A general complaint that some people intend to misuse the product is not sufficient to cause the court to regulate an already heavily regulated legal enterprise. If the court were to grant this motion to file suit, there would be an overwhelming number of lawsuits for any number of other legal and commercially produced objects that someone may have used to create a public nuisance. The courts would be flooded with frivolous complaints on any number of products that could be used to cause harm to a person. Is the manufacturer of a saw responsible if a person misuses the saw and accidently cuts off one of his fingers? Most people would agree that the saw manufacturer cannot be held responsible for the negligent actions of the person who put his hand into the saw blade with a wanton disregard for the results of this action. How then can the manufacturer of a firearm be held responsible for the wanton disregard that some people use when they handle a firearm?

The courts maintain that a person or commercial entity cannot be guilty of a public nuisance unless they have committed the act themselves. If a person is engaged in a lawful function in a lawful activity, they cannot in good judgment be charged with being a public nuisance. The complainants state in response that they are not alleging that all manufacture of firearms are a public nuisance, only that the design, manufacturing, marketing, and some distribution practices create the circumstances that contribute to the public nuisance of illegal guns. The court admits that some legal enterprises that are regulated by statute and monitored by the state have been held to have contributed to public nuisances because of the manner in which the operate their businesses. They contend that the in those cases, the subject of the lawsuit was in actual control of the manner in which their consumers utilized their product to cause public harm.

If it were possible to show that the product was manufactured in such a way that the design caused a direct injury in the case of the handguns sold, then the complainant might have the necessary elements to request a cause of action. In this case, there is no direct injury that is the result of legal use of firearm. The firearm only becomes a public nuisance when it is used illegally. Further, the source that the complainants used to bolster their theory of sales in certain areas being related to an increase in crime is a flawed theory. The source that was used was the BATF report on gun traces that stated that certain areas are related to illegal gun activity. It does not indicate any illegal activity by licensed dealers. If a dealer is not legally licensed, then refusing to sell a handgun in that area, will not affect them. The purchaser will continue to purchase from the illegal dealer. There are already laws in effect to deal with the illegal actions of people who sell handguns in an illegal fashion. It would not be appropriate to hold the person who manufacturers firearms responsible for the recklessness of a person who purchases the product. If that were the case then all of the hairdryers that have accidently been dropped into bathtubs would open up hairdryer manufacturers to the same type of lawsuit. The case was dismissed.

At Stephen Bilkis & Associates, New York gun crime attorneys can review the circumstances of your firearm complaints. Whether you have been charged with a gun crime, sex crimes, or drug possession, we are here to help. We have convenient offices throughout New York and the Metropolitan area. A New York criminal lawyer can evaluate your case and provide advice for an appropriate defense.

Two police officers in a patrol car received a report over the radio that a fight had just been witnessed and called in at 1411 Grand Concourse. A New York Criminal Lawyer said that the anonymous report stated that one of those who engaged in the fight had a knife. The only descriptions the witness gave about the two persons who were involved in the fight wore a red jacket and a dark jacket with a white stripe.

The two police officers drove to the address given in the report but they saw no one wearing the red jacket and dark jacket with a white stripe. When they got there a call for assistance was broadcast over the car radio. The two police officers responded. As they were heading toward the location of the other police officers who called for back-up, they saw three men. The officers got off their police car and headed for the three men. One of the men saw the two uniformed police officers and started running. The police officers gave chase and as they were chasing down the man, they saw him throw something. They finally caught up with the man and they also found what he threw away: it was a handgun. The police officers arrested him and charged him with criminal possession of a weapon in the third degree.

Even before the arraignment, the accused (the man who ran and threw away a handgun) moved to suppress the gun as evidence. He claims that the gun is not admissible as evidence as it was obtained by the police without probable cause. The police officers’ actions were not justified in chasing the man and in arresting him.

The trial court granted his motion to suppress. The People appeal the order granting the suppression of the gun. The only question before the Court is whether or not the suppression of the gun was proper. Stated another way, the question which the Court had to decide was whether or not the police officers were justified in chasing the man.
The Court affirmed the suppression of the gun.

The Court held that the report was of a fight; the fight involved a knife; and there was no description of those who were involved in the fight except to say that one wore a red jacket and the other a dark jacket. When the police saw the three men, they did not see any of them holding a knife. None of the three men wore a red or a dark jacket. The men were not doing anything suspicious on the street. The three men were not doing anything that could lead the police officers to believe that a crime was being committed. There was nothing that would justify the police officers’ action in approaching the three men.

The law is clear: no one may be stopped by the police unless there are circumstances which would give any ordinary prudent person a reasonable suspicion that the person the police is stopping has committed, is committed, or is about to commit a crime of criminal possession of a weapon.

When the man started running, there was no indication to the police that the man had just committed a crime, was committing a crime or was about to commit the crime of criminal use or criminal possession of a weapon. A Suffolk County Criminal Lawyer said there was no reason for the police to pursue him, to chase him at the time that he started running.

The police may have had reason to ask information of the man in furtherance of their investigation about the knife fight, but they certainly had no reason at the time that the man started running, to chase the man, to stop him and to detain him.

Have you been stopped by the police? Were you arrested and charged with a crime as a result of having been stopped by the police? You need a NYC Criminal Lawyer who will raise the question of the existence of probable cause, whether you have been charged with a gun crime, sex crimes or drug offense. A New York City Criminal Lawyer can ask that any evidence obtained from you be suppressed if there was no probable cause to stop you. At Stephen Bilkis and Associates, New York Criminal attorneys are willing and ready to represent you. Their NY Criminal attorneys can argue in your behalf to make sure that you ventilate all your issues. Call Stephen Bilkis and Associates today.

Facts:

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

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

Parties’ Arguments:

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

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

Ruling:

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

On the Modern Development of Private Security:

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

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

On Miranda Safeguards:

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

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

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

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

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

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

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

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

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

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

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

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

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

On the Pre- Miranda Statements made to the Police:

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

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

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

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

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

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

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

In conclusion:

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

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

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

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

Defendant allegedly fired a handgun at two individuals, who just prior to his firing, had fired a handgun at him causing him serious physical injury; handgun crimes.

Defendant was charged with two counts of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree for.
Subsequently, a New York Criminal Lawyer said the defendant requested that the defense of justification be charged and that the presumption not charged. Both requests were denied.

The defendant argued that the jury should be instructed that the defense of justification could negate the fourth element of the crime of Criminal Possession of a Weapon in the Second Degree, i.e., that the defendant possessed the loaded firearm with the intent to use it unlawfully against another.

The Court of Appeals has made it perfectly clear in in its rulings that the defense of justification is inapplicable to the crime of Criminal Possession of a Weapon in the Second Degree. The court held that justification does not negate a particular element of the crime charged and that because possession of a weapon does not involve the use of physical force, there are no circumstances when justification can be a defense to the crime of criminal possession of a weapon. The rationale was that a person either possesses a weapon lawfully or he does not and he may not avoid a criminal or felony charge by claiming that he possessed the weapon for his protection. Justification may excuse unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it.

There is no doubt that justification is not a defense to the charge but it implies that if a handgun is fired in self-defense, that fact does not counteract the element of the intent to use the handgun unlawfully against another. A Queens Criminal Lawyer said the result would be that a defendant would not be permitted to argue that he did not intend to use the handgun unlawfully even though he responded with deadly physical force to the use of deadly physical force against him.

However, there is another language in the court’s ruling which would indicate to the contrary, viz.: First, intent to use and use of force are not the same, and justification, by the very words of the statute is limited to the latter; Second, it does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting. Whether the People established that defendant possessed the weapon during that period 'with intent to use it unlawfully against another was a question for the jury to determine.

The "continuum" referred to comports with the conclusion in another case decided by the court; the fact that the jury found that the shooting of the victim was justified under the circumstances at that time, by resort to the presumption, did not mean that the defendant lacked the intent to use the handgun unlawfully during the approximately two to three week period prior to the firing of the weapon at the victim.

Here, the indictment in each of the two counts charged the defendant with firing his handgun at a different named individual, so the People were precluded from using the "continuum" theory, and the defendant could properly argue that as to each victim he did not possess the handgun with the intent to use it unlawfully against that particular victim, as he was defending himself. Such claim does not equate with the defense of justification, as the subjective and objective elements mandated by court rulings, are not involved, nor is the duty to retreat relevant. Therefore, although the defense of justification cannot be charged to the jury, this avoidance of criminal liability is still available to the defendant.

On defendant's second argument that the presumption did not apply because the two individuals who were fired upon by the defendant were named in the indictment, although there is no decision directly addressing this issue, all of the cases in which a defendant is charged with assaultive crimes involving a named victim, together with the crime of criminal possession of a weapon in the second degree, have referred to the presumption and by implication sanctioned its use in these situations. A case decided by the court is particularly illustrative, because, there, while reference was made to the presumption, it was also found that the requisite intent to use the weapon unlawfully could be inferred from the circumstances surrounding the shooting. That is the same situation in the herein case.

Henceforth, the refusal to instruct the jury on the defense of justification and the instruction on the statutory presumption were proper.

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

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

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

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

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

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

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

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

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

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

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

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

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On 29 November 2005, defendant entered a plea of not responsible by reason of a mental disease or defect to the crime of Criminal Possession of a Weapon in the Second Degree, and to other related offenses, in violation of criminal laws.

On 23 January 2004, it was alleged that defendant displayed a firearm while threatening to use it against the complainant, the defendant's sister-in-law, and that said actions caused her fear of physical injury.

A commitment order was issued and the defendant was remanded to the care and custody of the State Commissioner of Mental Health. A New York Criminal Lawyer said the defendant was confined in a secure facility.

On 12 October 2006, defendant was found, although mentally ill, to no longer have a dangerous mental disorder. The defendant was subsequently transferred to Creedmoor Psychiatric Center, a non-secure facility. Since the defendant has been in the custody of the Commissioner, several orders of retention have issued. The defendant is currently still a patient, and resident, of Creedmoor.

On 20 May 2010, the Commissioner has filed an application for a subsequent two- year retention order.

Defendant opposes retention and seeks his conditional release; thus, the instant retention hearing.

The ultimate legal issue is whether or not the application of the Commissioner of Mental Health seeking a subsequent two-year retention order of the defendant should be granted.

In an application for retention, a Manhattan Criminal Lawyer says that the law states that the commissioner must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill. Furthermore, the statute states that if the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, it must issue a release order and an order of conditions pursuant to statute’s provision.

Should a defendant be released, the Commissioner's responsibility for, and his supervision over, the defendant would not be terminated. The order only ends the defendant's in-patient status. The defendant would be subject to an order of conditions, which must issue, and which will guarantee that the defendant will be supervised for years to come, unless the time comes, if ever, when the defendant earns the right to absolute discharge. Furthermore, a violation of the order of conditions will subject the defendant to recommitment to the hospital and to the custody of the Commissioner.

The burden of proof for the application for retention is on the State, and it must establish that the defendant has a dangerous mental disorder or is mentally ill, by a preponderance of the evidence. Statutorily, the terms "dangerous mental disorder" and "mentally ill" have different meanings.

A “dangerous mental disorder” means (i)that a defendant currently suffers from a "mental illness" and (ii) that because of such condition he currently constitutes a physical danger to himself or others.

“Mentally ill” means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the state office of mental health, is essential to such defendant's welfare and that his judgment is so impaired that he is unable to understand the need for such care and treatment.

Since the defendant was previously adjudicated non-dangerous, the relevant statute in this case is CPL 330.20[1][d]. The Court must determine if the defendant is mentally ill. The New York State Court of Appeals has held that the term "mentally ill" has three distinguishing characteristics: (1) illness is of a kind that requires inpatient care and treatment, (2) care and treatment of the illness are essential to the defendant's welfare, and (3) because of impaired judgment the defendant does not understand the need for such care and treatment.

During the course of the retention hearing, testimonies from two very competent and very compelling doctors and from the defendant and his wife were presented; together with medical reports, and independent examiner’s report.

Upon careful review, the Court finds that the People have demonstrated by a preponderance of the evidence that continued care and treatment are essential to the physical or psychological welfare of the defendant and that the defendant is unable to understand the need for such care and treatment. Therefore, the Court finds that the People have met their burden of proving that the defendant is mentally ill as that term is defined statutorily.

It is not unreasonable to conclude that the defendant does need care and treatment, in that he suffers from a major depressive disorder, with psychotic features, currently in remission.
To note, the State’s doctor contends that the defendant's disorder is in remission due to his current regimen of medications. Two other doctors appear to agree that the defendant's medications are important to his mental health; that without his medications, the defendant would no longer be in remission.

Furthermore, the evidence demonstrates that the defendant has a significant history of mental illness, dating back many years. Although the defendant himself downplays his suffering, explaining that he never heard voices, just whispers, and that he had benign feelings of low self-worth which caused him to only need to talk to someone professionally who could help him, the truth of the matter is, and defendant would benefit by realizing this, that he does indeed suffer from mental illness, and has for some time. The defendant has had prior suicidal thoughts, has had a prior psychiatric hospitalization, and has had prior feelings of, among other things, paranoia, suspicion, agitation and depression. By receiving his essential treatment, the defendant will hopefully remain, as far as his mental illness is concerned, symptom free. Accordingly, the State has demonstrated this requirement justifying retention.
Although the Court finds that there could be no disagreement between the parties as to the need for the defendant's continued care and treatment, there certainly is a great deal of disagreement between the parties as to whether or not that care requires the defendant to receive inpatient treatment at Creedmoor.

In resolving the aforesaid issue, the Court finds upon review of the evidence that the defendant is using illicit substances. Courts have held that such fact is relevant to the issue of retention. The evidence suggests that substance use while on the medications taken by the defendant interferes with the medications' effectiveness. And if the medications are no longer effective, the defendant therefore would no longer be stable.

If the defendant cannot be trusted to refrain from using illegal substances which interfere with the medications sustaining his mental health while living at Creedmoor, there is no assurance that he will refrain from their use when he is no longer closely supervised.

In addition, the defendant's flagrant disregard for the rules of the hospital also troubles the Court. Clearly, despite what may be an ease of access, illegal substances are not permitted on Creedmoor's grounds. Yet, the defendant is in possession of such substances contrary to the rules. Again, if the defendant is not following the rules of the hospital, why should the Court be assured that he will follow the rules once released? The Court notes the defense's assertion that the infractions by the defendant, such as possession of coffee and cereal are not serious, and the Court should not give them much weight. However, if the defendant, while a resident of Creedmoor, believes that it is up to him to determine which rules to follow and which rules to ignore, the Court finds little assurance that the defendant will follow any rules upon release that will help to maintain his remission.

The Court would also note that it appears that the defendant seems to frequently have an excuse for his actions which get him into trouble. The State doctor testified about the importance of the defendant taking responsibility for his feelings, admitting his drug problem, admitting his mental illness. She explained that the defendant needs to do that so that he may understand his situation and the importance of his taking his medications without illicit substances. The Court finds the testimony to be sound and extremely compelling.

The final factor in determining if retention in this case is warranted is whether, because of impaired judgment, the defendant does not understand the need for care and treatment. The Court finds that to be the case, based on the totality of the circumstances. The defendant's behavior as an in-patient resident of Creedmoor demonstrates a lack of insight into his mental illness. By denying that he even has a mental illness, which again, the defendant suffered from prior to the instant offense, and denying that he has substance abuse issues, the defendant has shown the Court that he does not know or understand that he needs treatment.

Furthermore, by using illegal drugs and alcohol, it is clear that the defendant does not understand the interaction these substances have with his medications and how they can reduce their effectiveness. Such understanding is important to the defendant's safe release into the community, where illegal substances could be more easily obtained.

It must also be noted that this is not one of those cases where a defendant has been denied privileges for so long, is stagnant, and is unable to safely transition into the community, because he was never given the opportunity to try. Here, the defendant had an opportunity for level four privileges and he "blew it". The defendant was at the threshold of release, was granted unescorted furloughs, and lost the privilege because of “dirty urine”. Then, there was the subsequent marijuana possession, a drug crime. These actions demonstrate impaired judgment on the part of the defendant regarding his illness, his treatment, and his ability to be safely released into the community.

Meanwhile, the wife claims that she, as well as her sister, were in fact sexually and physically abused by their father, and when the defendant, her husband, was arrested, out of fear for her father, she lied to the police and the doctors, and insisted that the abuse had not taken place. Thus, the doctors, as well as others in the criminal justice system, concluded that the defendant was delusional. The wife now asks the Court to believe that that is not true, that her husband is not, and was not, delusional.

The wife’s testimony has created a unique aspect to the hearing. It raises questions as to the initial validity of the defendant's "not responsible" plea, and to the doctors' claims that the defendant's beliefs, regarding his wife and sister-in-law having sex with their father, are delusions.

The Court finds that in analyzing this situation, it must not lose focus on the true issue at hand, namely, is the defendant presently mentally ill and in need of retention?

Initially, the Court finds that none of the parties, including the defendant himself, are requesting that the Court vacate the defendant's not responsible plea. They are prepared to stand by that plea. Based upon those representations, as well as upon the presumption of regularity, the Court is not prepared, sua sponte, to vacate the defendant's plea. The Court does not find enough solid evidence to find that the defendant committed a fraud upon the court when he entered his plea. Moreover, the defendant's sister-in-law was not even called as a witness.
However, the Court strongly recommends that all of the parties, including the District Attorney, the hospital, and the defense team, fully investigate the aforesaid matter and convince themselves that a fraud was indeed not committed on the court when the defendant entered his plea. The officers of the court, the attorneys representing each party must honor their professional responsibility to protect the fairness and integrity of the judicial process.

Accordingly, the court rules that defendant is mentally ill and is in need of retention; he is not yet ready for conditional release; however, the retention order is to be for a period of one year only.

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On October 4, 1975 a man and a woman went inside a boutique. The woman tried on dresses but did not buy any. While the woman was trying on dresses, her boyfriend asked the boutique owner if he could use her bathroom. The man observed that there was a big window in the bathroom that faced a back alley.

Three days later, the lovers parked their car in the back alley with the trunk of their car facing the back window of the bathroom. The woman stayed near their car while her boyfriend entered the store and took clothing items and gave them to his girlfriend who stashed the clothes in the trunk.

A police officer on routine patrol passed through on his cruiser down the back alley and saw the woman; he saw clothes being pushed out of the widow, and the woman stashing the clothes in the trunk. He called for back-up and he saw the woman hide behind the car. The police officer approached and talked to the woman and asked her what she was doing. The police officer did not immediately place her under arrest.

Another police officer arrived because of the call for back-up made by the first police officer. He went to cover the store front. At that time, the woman’s boyfriend came out of the front door. The police officer tried to stop the woman’s boyfriend from escaping but the man shot the police officer with the gun he had in his possession (gun crime). The police officer later died.

The lovers were charged with felony murder, that is, that during the commission of a felony, the crime of murder was also committed. During the trial, the woman asked the trial judge to instruct the jury that if the police officer had already arrested the woman then there could be no felony murder as the burglary had already terminated at the time that the police officer was shot. She also moved that the trial judge instruct the jury to find her not guilty of felony murder if they find that she was already in custody of the police at the time that the police officer was shot.

The woman was convicted of felony murder. There was a finding that she willingly participated and fully involved herself in the burglary. She appealed her conviction but the Appellate Division affirmed the conviction finding that the trial court did not commit any error when it refused to instruct the jury as desired by the defendant.

On further appeal to the Supreme Court, the Court held that a felonious homicide is considered a felony murder by operation of law. This happens when the law transfers the malicious intent for the robbery as also malicious intent for the homicide. Applied to the specific facts of this case, the Court held that when the lady shared the felonious venture with her boyfriend who shot someone with the gun in his possession, she will also share in his liability for felony murder especially when it occurred during the felonious act or immediately while her boyfriend was fleeing from the scene.

The question then of whether or not the woman was already arrested at the time that her boyfriend shot the police officer is relevant and necessary to find if the woman really committed felony murder. The trial judge did not commit any error when it refused to instruct the jury as requested by the defendant such that she should be acquitted for the trial court judge did charge jury to find as a fact if the murder of the police officer was in furtherance of the burglary or of the immediate flight. The trial court judge did not decide that the homicide occurred during the course of the burglary as a matter of law. This matter was left for the jury to decide.

Thus, the case was remanded by the Supreme Court to the trial court for a new trial with the specific mandate that the issue of whether or not the killing of the police officer was committed in furtherance of the burglary or in furtherance of flight from the scene of the burglary.
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In just one afternoon of April 7, 2009 a man snatched the purse of an old lady as she was about to enter a store inside a shopping mall. Later that afternoon, that same man walked into a bank. He walked up to the counter and grabbed a teller by her shirt and jacket. He pulled the teller onto the counter and made her give him money. A New York Criminal Lawyer said the teller gave the man the cash that was available to her in the sum of $1464. The man took the money and escaped running from the bank.

Two days later, the man came to a police station in Schoharie County and surrendered. He confessed to the robbery he committed. He was charged with first degree robbery, fourth degree grand larceny for the bank robbery and grand larceny for snatching the old lady’s purse. Because the man had voluntarily surrendered and confessed to the commission of the robbery and the larceny, he was tried without a jury. The trial was only to submit evidence other than the man’s confession that a crime had been committed by the man.

A New York Criminal Lawyer said the man was convicted of the same charges of robbery and grand larceny, He was later sentenced to concurrent prison terms. He was sentenced to serve ten and a half years for robbery and one to four years of grand larceny. But the trial court ordered that the prison sentence for the other grand larceny charge be served consecutive to the other grand larceny sentence. The trial court also ordered the man to pay restitution to the bank of $1500 plus a 5% surcharge. The man appealed his conviction.

In his appeal, he contends that his conviction for robbery in the first degree is not supported by the evidence and, in fact, he should not have been convicted at all. He claims that he should not have been convicted of robbery in the first degree as he did not use a weapon to forcibly take the property of another. He claims that the People failed to prove beyond reasonable doubt that he used a weapon during the robbery.

The indictment was a faithful restatement of the law that he forcibly stole money at the bank and he used or threatened to use a dangerous instrument. A New York Sex Crimes Lawyer said the People rely on a bank security camera and a phone call that the man made to his wife where he told her that he had a letter opener with him. This letter opener is the supposed dangerous instrument.

The only question before the Court is whether or not evidence that the man used or threatened to use a dangerous instrument (the letter opener) is sufficient to convict him of robbery in the first degree which requires the use or threatened use of a dangerous weapon.

The Court ruled in the negative. A dangerous instrument is not the same as a deadly weapon. The elements of the crime of robbery in the first degree are precise: the accused must have used or threatened to use a deadly weapon, not a dangerous instrument when he committed the forcible taking of property.

A New York Drug Possession Lawyer said also, a review of the testimonies of the bank teller from whom he took the bank’s cash deposit in the amount of $1464 and the teller who was in the adjacent counter both agree on one point: that during the robbery, they did not see the man hold a knife or any dangerous weapon in his hands. They also testified that the man never issued any threats, he simply ordered the teller to give him her money.

The Court ruled that the evidence provided by the People is insufficient for a conviction for robbery in the first degree but it is sufficient for a conviction for robbery in the third degree. The Court remanded the case for re-sentencing in accordance with their ruling.

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The village police received a 911 call from a teenager asking for assistance because he thought his mother had died. A police officer was dispatched to the home of the teenager and he arrived at 9:30am. A New York Criminal Lawyer said the teen-aged boy let the police officer in and brought him to his mother’s bedroom where he found the mother lying in a pool of her own blood. After the police officer was sure that the mother had no pulse, the police officer called for the detectives of the police department. The police officer also called the dead woman’s husband at his dental clinic.

Other police officers arrived at 10am. The police detectives arrived at 10.40 am and the medical examiners came at 11:25am. The husband of the dead woman, the dentist came home at 12 noon.

When the dentist arrived the police detective asked him questions. He was asked if he had any guns in the house and the dentist said no. He said he had not fired a gun since 1954 when he was in the armed forces.

At 12:10 pm while the detective was interviewing the dentist, a crime scene investigator arrived and examined the bedroom, the waste basked near the bed and the corpse. He took blood samples from a smear on the bedroom door and from a spot on the rug. When he left at 3pm, he took with him a pillow, a pillow case and the bed sheet from the bed where the dead woman lay. A Queens Criminal Lawyer said the detectives posted a police patrolman on the dentist’s house to be sure that no one enters the bedroom.

When the detectives left, they asked the dentist to proceed to the police station. While there, the detectives asked the dentist if he would consent to undergo a paraffin test to determine if he had recently fired a gun. The teenage son of the dead woman also took the paraffin test. Both the dentist and the teenager tested positive.

The detectives asked the doctor if he was willing to take a lie detector test. The dentist refused. He was also asked if he was willing to undergo a neutron activation test to determine the presence of gunshot residue. The dentist acquiesced.

While the detectives were interviewing the dentist, the medical examiner reported that the bed sheet he took from the crime scene had two bullet holes in it. He also reported that a bullet was found inside the skull of the dead woman.

The detectives asked the dentist if they could test his shoes and clothes for gunshot residue and he gave them his clothes and shoes. While the dentist was changing into other clothes, the police detectives saw him throw something in the waste can. It turned out to be a piece of gauze and a button.

The detectives reduced to writing the statements made by the dentist when he was first interviewed at his house and again when he was interviewed by the detectives at the police headquarters. When the dentist’s lawyer arrived, the detectives read the entire statement to both the dentist and the lawyer. The lawyer confirmed with the dentist whether each question and each answer read to them by the detective was true and the dentist affirmed the truth of his statements.

The dentist was then asked by the detectives if he was willing to sign them. The lawyer advised his client to sign the statement of the first interview at the house but he also advised the dentist not to sign the statement of the second interview at the police headquarters. The dentist refused to answer any more questions and he left the police headquarters with his lawyer.

The Court determined that the dentist was never taken into custody by the police officers or the police detectives; he was not deprived of his freedom of action. It is the court’s finding that the dentist freely and willingly answered the questions and submitted to the tests requested by the police. Thus, the statements he made and the results of the tests conducted on him are all admissible into evidence.

The Court also determined that the arrival and entry of the police officer at the house was legal as it was upon invitation and call of the teenage son of the dead woman. The arrival and entry of the medical examiner and the crime scene investigators were also legal as it was to determine the cause of death of the dead woman. The taking of the pillow, pillow case and bed sheet was also legal as it was to determine the woman’s cause of death. The taking of pictures and blood samples from the smears on the door and floor were also done to aid the medical examiner to determine the cause of death. A Manhattan Criminal Lawyer said the initial entry of the police officer was in response to an emergency situation; the entry of the medical examiner and the crime scene investigator was also in response to an emergency situation which is an exception to the rule that a search and seizure of items must be made in accordance with a search warrant. These pieces of evidence are admissible.

The Court determined that what are inadmissible are all pieces of evidence obtained from the house after 3pm. After 3pm the detectives knew that the woman had died of a gunshot wound to the head. They searched the house no longer to determine the cause of death of the woman for that had already been established. They were there to search the house for the murder weapon. They retrieved and removed all kinds of things from the dentist’s house only because they felt that the things may have a connection with the woman’s death. They had no search warrant to search the house. The dentist did not give his consent for this search. The search was not made contemporaneously with a legal arrest. The items seized were not in plain view. These are inadmissible in evidence.

They returned a few days armed with a search warrant to search the house, the two dental offices and the car of the dentist. The search warrant authorized the search for a .22 pistol or rifle. To execute the search warrant, the police went to the house, the dental offices and the car of the dentist but they did not find any .22 caliber gun. They went back the next day and on the basis of the saw warrants, they searched the house, the dental offices and the car again and seized bloody floor mats but did not find any .22 caliber gun. The Court held that the second search was illegal as it was an exploratory search. When the police officers searched the vehicle for the second time, they also seized the vehicle itself. They also seized a brown leather bag that was in the car even if the search warrants did not specify that they can seize those things. The car was tested for gunshot residue after it was seized. Thus the items seized during the second search have to be suppressed as these were seized without any authority. All evidence obtained from the testing of the car will also be suppressed.

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A patrolman was on patrol one evening when he was ordered to investigate a complaint regarding abandoned automobiles in the vicinity of 24 Max Avenue, Hicksville, New York. A New York Criminal Lawyer the building located at that address contains two factory establishments and an apartment on the first floor.

In the course of the investigation, the patrolman knocked on the front door of the apartment at about 9:15 that evening. In response he heard the voice of a very young child whom he later ascertained to be two years of age. He asked through the door if child’s father or mother is at home. The child answered in the negative. He then again asked whether anyone else was home and again the child replied in the negative. The door was not opened. It was locked. He peered through the curtained window and saw the lights on and a television set in operation. At this point, the police officer made a radio call for assistance from the Juvenile Aid Bureau of the Nassau County Police Department. Following the call, a detective of the Juvenile Aid Bureau along with a Sergeant and another Patrolman, operating a police ambulance, convened at the premises. They all approached the apartment. The Patrolman knocked on the door, and on this occasion, a different young voice answered. The patrolman requested the child to open the door. The door was opened and he was met by a five year old female. Thereafter, the police officer questioned the little girl as to the whereabouts of her parents. She told him that there was no one else in the apartment besides the two children. The officer ascertained at that time that the young girl was five years old, and that the child who first answered his knocking was a little boy two years of age.

In the course of being questioned the young girl admired the service revolver belonging to the patrolman and said, “defendant-man has a gun like that”. The girl then turned around and walked over to a cabinet and said, “See, here it is”. She had picked a loaded .38 caliber Smith & Wesson revolver out of the top drawer and the police officers immediately took the gun from her before anything happened. The police asked her, “Has defendant-man any more guns?”, and she replied, “Yes, he has a lot of guns and he also has pot and speed”. She then went back to the same drawer and picked out a plastic bag which contained marijuana and also gave it to the police officers.

The officers then proceeded to search the apartment for other guns and narcotics. They found another bag containing marijuana and several empty glassine bags, and full glassine bags, which seemed to contain heroin, in the drawer of the cabinet from which the child retrieved the pistol and the first bag of marijuana.

As they proceeded to the apartment which contained a foyer, living room, bedroom and kitchenette, they also found more marijuana in a carved bowl in open view on top of a cabinet which was located on the side of the room opposite the safe. It also contained several glassine bags containing what appeared to be heroin.

At 1:15 A.M., the defendants (defendant-man and defendant-woman) entered the apartment. The police introduced themselves and then the Sergeant Carey asked them if they lived there, and they replied “Yes, we do”.

The defendants were then given their Miranda warnings, were informed that they were under arrest, and handcuffed the defendant-man.

Subsequently, the detective questioned the defendants was asked to open the safe. At first, the defendants refused but the police officers told them that they can get the safe while they get a warrant, thus, they opened it. A large plastic bag containing two pounds of marijuana, as well as several boxes of ammunition, was found in the safe. Bronx Criminal Lawyer under a table in the corner of the room in open view, there was a set of antique scales. They also found an old pepper box antique pistol hanging on the wall. It was stipulated by the People that this antique pistol will not be offered in evidence at the trial. There was no other conversation with the defendant-man.

The children were later found to be of defendant-women’s and that she is not married to defendant-man.

The Juvenile Aid Bureau had taken the two children to Meadowbrook Hospital at about 10 P.M. of the evening of the arrest.

Defendants are charged with the crimes of Criminal Possession of a Dangerous Drug in the Third Degree involving marijuana and hashish under the first count; Criminal Possession of a Dangerous Drug in the Fourth Degree involving cocaine and heroin under the second count (drug possession); Criminal Possession of a Dangerous Drug in the Sixth Degree involving methamphetamine under the third count; and Possession of a Weapon (gun crime), Dangerous Instrument and Appliance as a Misdemeanor involving a pistol loaded with ammunition, under the Fourth Count.

Are all the seized items admissible in evidence?

A search is reasonable if conducted pursuant to a legal search warrant, by consent, or incident to a lawful arrest. The instant case, however, presents a different dimension of the question of when and under what circumstances a police officer may legally enter a private residence.
Where danger, or even the possibility of danger exists, the finely honed rule of probable cause mandated by constitutional considerations, gives way to a rule of practical expediency which is demanded by the exigency of the conditions confronting the policeman.

The preservation of human life has been considered paramount to the constitutional demand of a search warrant as a condition precedent to the invasion of the privacy of a dwelling house.
It is of the greatest significance to this case that the police officer's entry was pursuant to his general obligation to assist people in distress, a purpose often independent of considerations affecting the criminal law. Police are expected and often required to investigate the unquelled crying of babies, sounds and blows in what turn out to be matrimonial disputes, to assist in child deliveries, and to resolve the causes of unusual sounds suggesting harm to persons, animals and property. Their functions are just not confined to criminal law enforcement, a matter frequently of great concern to those seeking to make limited police resources more effective. In this context, it has been suggested that an officer's entry is based neither on consent nor license and that even the refusal of consent may be of no avail.

It must be noted that when the patrolman knocked on the door for the first time and was informed from behind the closed door by the voice of a very young child that neither of his parents, nor anyone else was inside, he was justified in calling for aid. This justification is based on a possibility that the child might have been speaking the truth and was thus subject to injuries and dangers which might have befallen him when so unsupervised and unattended. In an emergency situation, a police officer need not patiently await definite proof of danger or peril. Where the possibility of danger or peril appears to exist, he may act. Under such circumstances, a reasonable possibility of injury to person or property invites the policeman's investigation.

Here, a period of about three to four minutes passed between the time when the patrolman knocked on the door for the first time and was informed by the younger child that nobody was home, and when he knocked again the second time and was admitted by the five year old girl. During this period, he could reasonably assume that this child was alone, or that a person in charge of the child could be disabled and, therefore, unable to respond to his knock on the door.
An unattended child is prone to all manner of injury. Courts have ruled that more care must be exercised towards children than toward persons of mature age. Children of tender years are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter. The duty to avoid doing them an injury increases with their inability to protect themselves and with their childish indiscretion, instincts and impulses.

Leaving one's child alone in the home or even on the streets unguarded, unattended and no provision made for its safety or protection is neglect.

Here, there was indeed more than sufficient justification not only to knock a second time but also to enter and investigate the situation when the five year old child later opened the door.
Following the disclosure of the loaded gun and the marijuana by the five year old child, the policemen went through the various rooms of the apartment, during the course of which, they saw in open view, the antique scales, the carved bowl containing marijuana and what appeared to be heroin, and, hanging on the wall, the antique pepper mill gun. They also found other narcotics in drawers, and when the safe was opened, they found two pounds of marijuana, and some ammunition.

Although the five year old child was legally incapable of giving the police consent to search the apartment for evidence of crime on behalf of the defendants, it is, however, the determination of the court that the loaded pistol and the plastic bag containing marijuana, which were taken from the cabinet, and brought into the view of the police officers by the child, is not the subject of a police search and seizure. These items comprising a weapon and contraband, insofar as the police were concerned, were in open view, and not the fruits of a search. The marijuana, and what appeared to be heroin observed by the police in the carved bowl, was in open view and, therefore, not the subject matter of an illegal search and seizure. It would have been necessary to go into the respective rooms to ascertain if there was anyone else in the apartment or a person in charge of the infants, and, if so, why such person had not responded to the knocking, and whether such person was incapacitated. In so doing, they had the right to seize any item in open view which may be contraband, or the paraphernalia utilized in the use or sale of narcotics, or a weapon.

The foregoing rule of law is based on the humane purposes sought to be effectuated by permitting the policemen to intrude into the privacy of a citizen's home for the latter's aid and protection.

However, when the errand of mercy is completed, the benevolent purpose of the intrusion may not be changed into one for a general exploratory search.

The privilege to enter to render aid does not, of course, justify a search of the premises for some other purpose. An arrest may not be used as a pretext to conduct a general search of one's premises for incriminating evidence, and it has been repeatedly said that where the right to conduct a search is obtained ostensibly for one purpose it may not be used in reality for another.

Thus, the officers in the present case could properly make only that kind of search reasonably necessary to determine whether a person was actually in distress somewhere in the apartment. They could not, for example, ransack the premises or rummage through desk drawers. On the other hand, in the course of conducting a reasonable search they did not have to blind themselves to what was in plain sight simply because it was disconnected with the purpose for which they entered.

The court has held that where the entry and search are proper and there is presently no element of trespass or fraudulent invasion of the rights of the citizen, there is no reason for excluding evidence of crime discovered in the course of the search.

After the children had been removed to a safe place for proper care at about 10 P.M., when the officer took them to Meadowbrook Hospital, the only proper alternatives confronting the police officers were either, (1) to leave the apartment with a police guard outside and obtain a search warrant based on the probable cause based on what the child had shown to them and what they had seen in open view during the investigation, or (2) to await the return of the defendants and perform the permitted search of their persons contemporaneously with their arrest. Such search would, of course, be limited to a search of the arrestee's person and the area within his immediate control, as mandated by the United States Supreme Court rulings, which construed that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

In this warrantless search, when the officers presumed to look into closed and hidden places in all parts of the apartment, they were not only clearly acting outside the scope of the original purpose of the police entry into the apartment, but also indulging in a general search of the entire house in violation of the defendant's constitutional rights under the Fourth Amendment.
In addition, more than three hours elapsed from the time when the mission ended and the children were removed to a place of safety at 10 P.M., and when the defendants returned to the apartment at about 1:15 A.M. A search made over three hours before an arrest is not what is contemplated in law to be a search made contemporaneously with an arrest within the meaning of the rules.

Accordingly, the marijuana and the revolver removed from the cabinet and displayed to the police, the antique scale, the marijuana, and what appeared to be heroin in the carved bowl, which were all in open view, are admissible in evidence; there was a valid warrantless search and seizure.

However, on the other items of marijuana, and what appeared to be heroin, found as the result of opening drawers and the contents of the safe which included about two pounds of marijuana and ammunition, they are not admissible in evidence. When the defendant-woman opened the safe, it was while she was in custody, and under arrest. Such act on her part was not by consent and merely her submission to police authority.

Submission to authority is not consent and one faced with authority has the right to submit and reserve his defense for the Court.

On the question of standing on the part of the defendant-man, it is the court's determination that inasmuch as he resided in the apartment, that he was present in the premises, and that he was charged with, and arrested in the apartment for possessory crimes involving cocaine, heroin, marijuana and a weapon, he has standing to contest the People's right to search and seize such material.

With respect to the Huntley-Miranda aspect of this hearing, the court finds that shortly after the defendants entered the apartment and identified themselves as the persons who resided there, they were in police custody.

The four-fold Miranda warnings were properly stated to the defendants; however, they did not expressly waive their constitutional rights under the Fifth and Sixth Amendments which is a mandated condition precedent for the admissibility of a defendant's statement under Miranda. In fact, they remained silent in this regard.

Consequently, none of the statements made by the defendants in answer to the detective’s interrogation may be used as evidence upon the trial hereof.

Only the words, “we do”, stated by defendants when they identified themselves as the occupants of the apartment as they entered are admissible as being threshold statements made before they were in police custody, and while in the identification process.
With respect to the oral statement made by defendant-man to defendant-woman, they are admissible for the reason that such words were not in response to police interrogation and were merely the spontaneous and volunteered utterances of the defendant-man.

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This is an appeal of a man from his judgment in the Supreme Court convicting him of criminal possession of a weapon in the second and third degree, upon a jury verdict. A New York Criminal Lawyer said the appeal brings up for review the denial of the accused man's motion which was to suppress identification testimony and upon an order the court that reversed the above mentioned decision.

Contrary to the accused man's contention, the pretrial lineup identification was not improperly suggestive. The photographs taken of the lineup reflect that the slight differences in skin tone between the man and the fillers were not so apparent as to orient the viewer toward the man as the offender of the crimes charged. A New York Criminal Lawyer said that based on records, the skin tone is only one of the factors to be considered in deciding reasonable similarity and differences in skin tone alone will not render a lineup improperly suggestive. A the court does not find that the presence of a small tattoo on the side of the man's face rendered the lineup improperly suggestive.

The court found that improper remarks by the prosecutor during summation deprived the man of a fair trial. The prosecutor improperly vouched for a witness and implied that the witness faced retribution from the man when he stated that the witness testified not knowing what the consequence would be for herself and her family. A said that based on records, a prosecutor may not strengthen the credibility of a witness by making himself or herself unsworn witness and supporting his case by his own veracity and position.

The accused man was prejudiced by the prosecutor's inflammatory and unsupported implication that the witness was more credible because she testified despite some unspecified possibility of retribution for doing so. There is no support in the record of any threats to the witness or her family and the prosecutor's comments violated the rule that a prosecutor may not try to express to the jury, by implication, suggestion or speculation, the impression that the man is guilty of other crimes.

Additionally, the prosecutor made improper remarks relating to the man's tattoos. The man introduced evidence that he has tattoos on his arms in order to undermine the credibility of a witness who testified that she saw him at the crime scene holding a gun and wearing a t-shirt, but could not remember whether the man she saw had tattoos on his arms. A New York Drug Possession Lawyer said the man’s tattoos are described with a smoking gun, bullets, and the words gangster life may have posed some self-created prejudice to the man in and of themselves, a risk that the man had to bear by putting them in evidence. However, the prosecutor's summation crossed the bounds of permissible expression. Specifically, it was improper for the prosecutor to state his analogy that if it walks like a duck and looks like a duck then it's a duck. It argues that the violent nature of the man’s tattoos established his identity as a person seen in possession of the gun. Since there was no evidence from any eyewitness that the person seen at the crime scene had tattoos, the only possible purpose of the comments would have been to improperly argue that it was more likely that the man had committed the crime because of his bad character, which the prosecutor constructed for the jury from the violent nature of the man's tattoos.

Under the situation of the case, since it cannot be said that there is no significant probability that the decision would have been different absent the cumulative and damaging effect of those errors then the court cannot consider them harmless.

Because of the danger that we encounter in our everyday life, some of us seek security in bringing with us weapons such as gun. However, unwanted crimes can be committed while in possession of that weapon. If you need legal help for gun-related issues, you may consult a Nassau County Possession of a Weapon Attorney from Stephen Bilkis and Associates. For crime issues brought about by weapon possession, sex crimes or theft, a Nassau County Criminal Attorney can offer enormous legal options that you may consider in contemplating your legal action.

The accused was arrested while driving his car a short distance from the scene of a possession of a weapon crime. After his arrest, the accused made certain statements to police which were used against him at trial. According to the statements, the accused had previously made the acquaintance of an individual and had agreed with the individual to drive two of the individual’s friends to a location where one of them was seeking a job. According to the statements, the accused drove the individual and his two friends to a house in Merrick. There the accused dropped off the individual’s friends. The accused consistently denied any knowledge that the individual and his friends intended to commit a robbery at the location to which he had driven them. However, the accused did state to the police that he had observed that there was a criminal possession of a weapon by one of the men during the drive from Queens to Merrick.

The accused man’s own testimony at trial, as well as the testimony of the individual and his friend largely confirmed the content of the accused man’s post-arrest statement to the police. The accused testified that he had met the individual’s friends on July 18, and had driven them to a friend's house the following evening. The following morning, he agreed to drive the three men to the house in Merrick. He dropped the three men off at that location, but then the individual returned to the car, informing him that his friends were about to rob the people in the house. A New York Criminal Lawyer said the accused testified, consistent with his post-arrest statements that he had not known that a robbery had been planned. However, his testimony was inconsistent with his prior statements to the extent that he testified that he had never told a police officer that he had seen a gun in the car during the trip from Queens.

The individual testified that he had requested that the accused drive him and his two friends to Merrick. According to the individual, no one said anything to the accused concerning the true reason for the trip. The individual testified that after he and the other two men had gotten out of the car upon their arrival in Merrick, he noticed one of his friends take out a gun, at which point he returned to the accused man’s car, informed him of the robbery which was about to occur, and urged the accused to drive away. The individual insisted that the accused knew nothing about the robbery prior to it being committed.

One of the individual’s friend also testified that he never discussed the forthcoming gun crime with the accused. A Long Island Criminal Lawyer said the friend confirmed that the individual returned to the accused man's car as soon as one of them produced a handgun. The individual’s friend’s credibility was impeached with proof that he had made a prior statement to the police that all four men, including the accused had discussed the robbery.

There is legally sufficient evidence of the accused man’s guilt. Considering only the incriminating portions of the accused man’s pretrial statements, the Trial Court could rationally find that the accused had driven three men to a residence in Merrick, and had observed that they were armed with a weapon. There is also evidence from which the Trial Court could infer that the accused waited in his car for the return of the robbers even after he, by his own admission, had learned of their intentions.

Nevertheless, the court concludes that the weight of the evidence does not support the Trial Court's verdict. The accused consistently denied that he knew anything about the robbery until after he had driven the perpetrators to the scene. Even if the court accept as true the accused man’s pretrial statement that, during the trip to Merrick, he observed that his companions made criminal possession of a weapon, and reject his trial testimony to the contrary, the inference that he knew that the gun was to be used in a criminal act does not necessarily follow. The accused man’s claim of innocence is supported by the testimony of two of the actual perpetrators. In their trial testimony, the individual and the accused maintained that they drove off immediately upon the individual’s return to the car. It is noted that the individual and his friend exculpated the accused at their own plea allocutions as well as in their testimony at his trial. Also, the individual's friend’s extra-judicial statement to the effect that the accused was included in discussions concerning the forthcoming robbery was admissible only to impeach the witness's credibility, and may not be considered as evidence in chief.

Sometimes giving a friend a favor or trusting a complete stranger brings us trouble. This is also the reason why people keep away from doing good deeds. If you find yourself accused of gun possession, sex crimes or theft, feel free to call the Nassau County Possession of a Weapon Lawyers at Stephen Bilkis and Associates. When gun possession accusation leads to crime, consult a Nassau County Criminal Attorney.

Two uniformed police officers were checking out an illegally parked car near the corner of 39th Street and 9th Avenue at 3am on June 15, 2005. One of them happened to look up and saw a man running. He was coming from the vicinity of 8th Avenue. When the police officers asked him why he was running, the man wouldn’t say. They stopped him and frisked him but found that he was not in possession of a weapon. When the police officers asked him what was going on, he said he had just been robbed. At that time, a New York Criminal Lawyer said the two police officers heard gunshots from the same area where the man had just come from. They reported over the police radio the gunshots fired.

At around the same time, two other police officers in an unmarked police car were in the vicinity of 8th Avenue when they also heard the gunshots fired. They then saw the white SUV they noticed on the street a while back. The SUV fired its engine and started speeding away. The two police officers followed the speeding SUV. They were tailing it when the SUV came to an abrupt halt because they came across the two other uniformed police officers.

The two uniformed police officers were standing on the street with their guns drawn when they heard the screeching of the tires of SUV and the unmarked police car that appeared to be chasing the SUV. A New York Criminal Lawyer said both the SUV and the unmarked police car were coming from the general direction of the area where the gunshots were fired.

When the SUV came to a stop, the two uniformed police officers approached the car and asked the driver and the person in the passenger side to come out of the car. They reluctantly came out of the car. They also asked the man seated in the back seat to exit the vehicle. The two uniformed police officers made these three men lie down on the ground and handcuffed them.
By this time, the two police officers in the unmarked car had gotten down from their vehicle and looked inside the SUV. The interior lights of the SUV were open and from the passenger door which was wide open, one of the police officers in the unmarked car saw a semi-automatic handgun with a fully loaded magazine next to it. It was in plain view in the middle of the rear bench seat.

The police officer from the unmarked car who saw the gun yelled out to the other police officers that the three suspects were in possession of a weapon. He then closed the rear passenger door of the SUV but did not take the gun. Later when their back-up arrived, the police officer in the unmarked car took the gun and held it up to show all that the gun had already been secured.
The three men were arrested and were taken to the precinct. A New York Drug Possession Lawyer said one of the uniformed police officers read them their Miranda rights and they responded that they understood their rights as these were read to them. They signed the statement sheet next to each right as each right was read to them. During the custodial investigation that followed all the three men admitted that they were in the car where the gun was found.

The three men were charged with criminal possession of a weapon.

On arraignment, all the three men pleaded not guilty and they all moved for the suppression of their statement and the gun. They claim that the police officers who stopped their car on the street had no right to stop them as there was no probable cause to stop them. Therefore, according to the three men, the gun and their statements should be excluded and suppressed as fruits from a poisonous tree, the yield of an illegal stop.

The only question before the Court is whether or not the police had probable cause to stop the defendants’ SUV. For it the police officers had no probable cause for the stop then all that occurred after the stop and all the evidence obtained after the stop must all be suppressed and excluded as evidence illegally obtained.

The Supreme Court ruled to deny the motion of the defendants to suppress the evidence. The Court found that the police officers who stopped the SUV had probable cause to stop the SUV.
Probable cause is a reasonable suspicion that a crime was being committed. A reasonable suspicion exists when there is knowledge of facts that lead an ordinarily reasonable and judicious man to believe that a crime is being committed.

Here, the two uniformed police officers themselves heard shots fired. Prior to this, they had met a man who said he had been robbed at or around the same area where the gunshots came from. They then saw an SUV coming from the same area. This SUV was speeding down the road toward them. They saw that an unmarked police car appeared to be pursuing the SUV. These circumstances led the uniformed police officers to believe that a crime involving possession of a weapon was occurring at that time. This reasonable belief constituted probable cause to stop the SUV.

It follows that since the stop was reasonable, then all the evidence seized during the search after the vehicle was stopped was legal. The gun seized from the SUV is admissible. The arrest was legal. The custodial investigation following the arrest was legal and the statements made by the defendants during the custodial investigation are admissible.

At Stephen Bilkis and Associates, NY Gun Crimes Lawyers can assist you moving for a probable cause hearing. The attorneys at Stephen Bilkis and Associates can help you argue to suppress and exclude any illegally obtained evidence and statements that may be used to prove your guilt in court, whether you are facing a weapons charge, sex crimes or theft charge. Call Stephen Bilkis and Associates today. Speak with any of their New York Gun Crimes Lawyers and assert all possible defenses in your favor. Their New York City Gun Crimes Attorneys are available at any of their offices in the New York area.

The police searched the garage belonging to a man against whom a search warrant had already issued. The police found an automatic pistol which was loaded with eight cartridges. The automatic pistol was wrapped in a paper bag which was hidden in the folds of a sheet of tarpaulin which was owned by the man and which was placed in the garage by the same man.
In the same garage the police found a carbine among the tools and utensils owned by the man. It was not hidden as the loaded automatic pistol was. While searching the attic of the man’s house, the police also found a box containing cartridges similar to those loaded into the automatic pistol. Along with this box of cartridges, they also found an empty box of the same brand and make of cartridges.

All the relatives of the man, when questioned denied ownership of the gun and denied knowledge that it was hidden in the garage. Even the man himself denied the gun crime and knowledge of the gun hidden in his garage among his personal items belonging to him.
The man was charged with felony possession of a pistol. He pleaded not guilty and trial ensued. At the trial, the People presented testimony of one of the police officers who conducted the search that the man at first denied that he had knowledge of the gun and also denied ownership of the same gun. At the police precinct, he contradicted his earlier statement by saying that he didn’t remember hiding the gun in the garage but if the police said that they found the gun in his garage then he must have put it there.

The man was convicted by a jury at the trial court and his conviction was affirmed by the appellate division.

The man appealed his conviction on the ground that criminal possession of a loaded pistol was not proved by the People. He cites the evidence presented at trial that his garage was open, it had no lock. Several people in his house had free access to the garage and anybody could have come in and hidden that loaded pistol amongst his belongings.

He also decries as highly prejudicial, the presentation of the District Attorney of evidence that he was a parole violator. He claims that the District Attorney presented details of his former arrest and details of the events that precipitated his earlier arrest. He also questions the admission into evidence of the tools in his garage as he claims that these are not relevant evidence. He claims that his right to a fair trial because incompetent, immaterial and prejudicial evidence was admitted against him. He asks for a new trial.

The only question before the Supreme Court is whether or not the People established felony possession of a weapon beyond reasonable doubt.

The majority ruled that the criminal possession of a weapon was established beyond reasonable doubt because the loaded pistol was found in a part of a house owned by the man. The gun was found not only in his house but in a garage that was under his control. It didn’t matter that the garage had no lock, it was under his control and the gun was found amongst things belonging to and used by him in the regular course of his life. The man also admitted that if the gun was found in his garage then he must have put it there.

While the majority concedes that the trial court may have made errors in admitting certain pieces of evidence, admission of those pieces of evidence did not affect the result. The criminal possession of a pistol was duly established.

A New York Gun Crime Lawyer will advice you that you need not own the gun for you to be found guilty of possession. They will tell you that it is enough to prove the crime of criminal possession of a gun if the gun is found on your person or among your things over which you exercise control. As conviction for this crime carries with it consequences other than just imprisonment, it will serve you well to be able represented at trial. At Stephen Bilkis and Associates, experienced lawyers are willing to assist in your defense, whether you have been charged with drug possession, a gun crime, or a theft crime.

A man had applied for and was granted target pistol licenses for his two pistols since May 1967. In 2001 the License Division of the NYPD converted all target pistol licensed into Premises Residence Licenses. Accordingly, man’s the pistol license renewal applications were converted into renewal applications for Premises Residence Licenses. On September 10, 2004, the NYPD License Division approved his renewal application and issued him a new Premises Residence License.

A New York Criminal Lawyer said that in June 2006, the NYPD received a notification that the gun licensee was arrested for a domestic dispute. The NYPD confiscated the licensed firearms. When they came to his apartment, they found two rifles in his residence which were not licensed. These were confiscated by the NYPD as well.

The police were called to the home shared by the gun licensee and his wife. The wife testified that she and her husband had a verbal dispute and as a result of their argument, the gun licensee assaulted his wife by punching her and kicking her. The wife also retaliated and assaulted her husband by punching and kicking him as well.

A month later, the gun licensee’s Premises Residence Licenses were suspended pending investigation of the domestic violence incident between the gun licensee and his wife.
TA New York Criminal Lawyer said that two months after the domestic violence incident, a family court in King’s County issued a temporary order of protection was issued against the gun licensee. After the issuance of the temporary order of protection, he and his wife had a loud verbal dispute while inside a restaurant. The gun licensee was arrested for violating the temporary order of protection. This arrest was voided later.

In the meantime, the investigation of the special investigator for the Licensing Division of the NYPD discovered that the gun licensee had not disclosed his prior domestic violence arrests and complaints. He had not reported his arrests or his receipt of orders of protections. He also had a history of possessing long arms in his home without the appropriate licenses. The investigator recommended the suspension of his license but the Licensing Division did not follow the investigator’s recommendation and instead revoked the licenses issued to the gun licensee.

They revoked his license because he violated the terms and conditions of the issuance of the licenses; he failed to notify the Licensing Division that the police had confiscated his unlicensed firearms and his licensed pistols; he failed to notify the Licensing Division that an order of protection had been issued against him; he failed to notify the Licensing Divisio in that he was arrested; he failed to notify them of the domestic violence incidents in the past.

The gun licensee filed a case in court questioning the validity of the revocation of his licenses. He contends that the revocation was arbitrary and capricious.

The only question before the court is to determine whether or not the Licensing Division of the New York Police Department gravely abused its discretion by revoking the gun licenses. The Court must find that the NYPD had a rational basis for the revocation in order to sustain the revocation of the licenses.

First the Court noted that the Licensing Division had a broad discretion to grant or revoke licenses. The courts must respect the decision of the Licensing Division especially when there is an issue of public safety. The only way that the revocation may be assailed is if the revocation was disproportionate to the offenses committed. The circumstances of the revocation must be shown to be shocking to the sense of fairness of the court.
The gun licensee makes much of his good moral character and he claims that his arrest for domestic violence and his arrest for the violation of the temporary order of protection were voided. He has been a licensee for 43 years and he has never been arrested for a gun crime, except for the assault charge relative to the domestic violence dispute he had with his wife.

The Court found that the petition was without merit. The reason for the revocation was not the arrest but the failure of the licensee to notify and inform the Licensing Division of his arrests and of the issuance of an order of protection against him. This is a rational basis. The revocation of his gun licenses is upheld.

A NYC Domestic Violence attorney will inform you that an arrest for domestic violence and a conviction for assault consequent to a domestic violence or sex crimes, incident has consequences beyond the sentencing and the penalty. A NY Domestic Violence lawyer will advise you that licenses that require a spotless criminal record may be revoked as a result of your arrest and conviction. Contact Stephen Bilkis and Associates today. Speak to any of their New York City Domestic Violence attorneys who can explain to you all the implications and consequences of a domestic violence conviction. You may speak to any of their New York Domestic Violence lawyers at any of their offices in the New York area.

A New York Gun Crime Lawyer said a man was charged with robbery for having forcibly stolen money from the complainant's store while wielding a knife. The complainant testified that the man had taken money from both the cash register and a cigar box in which lottery receipts were kept, and had warned her not to tell anyone about the robbery. Testifying in his own behalf, the man admitted that he had stolen money from the cigar box, but denied that he had possessed a knife, stolen money from the register, or threatened the complainant.

Prior to trial, the man made a motion to limit the prosecution's cross-examination regarding his prior criminal convictions. A New York Criminal Lawyer said he had three prior convictions of felonies and misdemeanor. The most recent involved a gun crime with robbery of a delicatessen. Initially, the trial court ruled that if he takes the stand, the Jury would be prohibited from cross-examining him regarding his two earliest convictions, but the Jury would be permitted, without inquiring into the underlying facts of the case, to confront the man with the fact that he had been convicted of robbery. Following jury selection, the court revised its ruling at the man's request to limit the Jury’s inquiry to whether the man had previously been convicted of a felony without specifying that it was robbery.

When the man testified, the prosecutor abided fully with the court's ruling and the man admitted of having previously been convicted of a felony. During the Court examination, however, the defense counsel asked the man, over the Jury’s objection, whether he had pleaded guilty to the prior felony charge. A Nassau Criminal Lawyer said the man responded that he did plead because he was guilty. Immediately thereafter, on the Jury's application and over the defense counsel's objection, the court modified its ruling to permit the prosecutor to examine the man about the facts underlying the prior robbery conviction.

A criminally accused person that chooses to testify, like any other civil or criminal witness, may be questioned in Court regarding prior crimes and bad acts that bear on credibility, veracity or honesty. A Queens Criminal Lawyer explained that to minimize the risk that evidence of prior convictions will be used by the fact finder, not on the issue of credibility, but as proof of the accused party’s propensity to commit the charged crime, the accused may obtain from the court an advance ruling as to whether and to what extent the Court will be permitted to offer such evidence in the event the accused testifies. Such relief, however, is intended as a shield for the accused, not a sword by which to advance the case for the defense.

Thus, it has been held that when an accused testifies that he pleaded guilty in a previous case because he was, in fact, guilty, thereby implying that his failure to plead guilty to the current charges should be taken as proof of his innocence, he opens the door to questions exploring his true motivation for the prior guilty plea. Indeed, testimony of this type could arguably open the door to court examination which would truly refute it.

In accordance with the court's ruling, the prosecutor elicited only that the man had been previously convicted of an unnamed felony. The defense counsel then asked on his Court examination whether the conviction had resulted from a guilty plea, and the man gave the answer that led to the modification of the ruling. Although the fact that the man previously had been convicted of a crime was relevant to his credibility, the fact that the conviction resulted from a guilty plea rather than a jury verdict was not. To the contrary, the only reason for eliciting that the man had pleaded guilty in the prior case was to raise the inference that, when guilty, the accused pleads guilty. That is precisely the inference that the Jury may, in the court's discretion, be permitted to meet with otherwise precluded evidence.

The man was charged with robbery and criminal possession of a weapon relating to the theft of money from a convenience store. At the trial, the man admitted that he took money from a convenience store, but claimed that the larceny was not forcible. The complainant testified that the man threatened and intimidated her and displayed a knife. The jury convicted the man of robbery with a lesser-included offense and acquitted the man of criminal possession of a weapon.

Persons who were previously convicted with crime will have a hard time getting their second chance to fair treatment in the society. To help you prove your innocence to wrong crime accusations, hire a Nassau County Criminal Attorney. If your lawsuit involves possession of deadly weapons, avail of the services of Nassau County Possession of a Weapon Lawyer from Stephen Bilkis and Associates.

A man appealed from a decision of the Supreme Court from convicting him drug possession and criminal sale of a controlled substance in the third degree upon a jury decision, and imposing a sentence. A revised decision of the same court revoked a sentence of probation previously imposed by the same court upon finding that he had violated a condition and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree.

The accused man evidently sold a packet of cocaine to an undercover police officer. The undercover officer called the description of the seller to his backup team however the police were unable to locate the seller at that time. After three days, while observing the area from a rooftop, the undercover officer saw the man walking down the street. He called his backup team, and the man was arrested in a nearby restaurant. The undercover officer subsequently identified the man as the person of cocaine possession and sold him the controlled substance. No drugs or prerecorded buy money were found on the accused man. At the trial, the man's wife testified that he was with her in their apartment the entire evening of the date of the transaction.

On appeal, the accused man contends that the questioning of his alibi witness and comments on summation deprived him of a fair proceeding. During the questioning of the man's wife, the prosecutor deliberately bring forth that the man was involved in a drug treatment program at the time of his arrest. The court erred in permitting such questioning because the testimony would have no other purpose than to show a tendency to commit violation of the criminal law being charged. The information was not relevant to the elements of the drug crime charged or to the man's alibi defense.

The city contends that the witness initially volunteered that the man was involved in the drug treatment program. The record reveals that the witness responded when the prosecutor asked her who, besides the police, had called her about the man's arrest. However, the court overruled an objection by the defense counsel, and the prosecutor then proceeded to press the witness about the nature of the program. The court is not satisfied with her response that the program was for people who need to be rehabilitated. The prosecutor wanted to know the purpose of the rehabilitation. When the witness was apparently hesitant to respond, the prosecutor suggested that she was being guarded all of a sudden questions because she is not prepared to answer. Finally the prosecutor asked if it is a drug program and the witness agreed.

Finally, the prosecutor's summation went well beyond the bounds of fair advocacy by frequently characterizing the alibi witness as untruthful, by suggesting that the man was selling drugs on the night of his arrest, and by suggesting that the alibi was invented after the witness met with defense counsel. The court finds that the collective damaging effect of the prosecutor's improper conduct warrants a new trial.

Consequently, the accused man was found to have violated the conditions of a previously imposed sentence of probation on his conviction for attempted criminal sale of a controlled substance and was resentenced to an indeterminate term of imprisonment. However, since the record is inadequate to determine if the man was found to have violated probation based solely on his conviction under the law which the court have set aside, or based on allegations that he violated other conditions of his probation, the court reverse and remit the matter to the Supreme Court for further proceedings.

Along with the growing and developing technology, there is a problem that destroys the life of our every individual. Controlled substance can bring a lot of trouble to people when it is used the wrong way. If your child needs help for any drug related crime, sex crime or gun possesion charge, ask the Queens Drug Lawyers so they can provide what is essential for you and your family member. If you want utmost representation, you can call the team of Queens Criminal Lawyers at Stephen Bilkis and Associates and assist you with the criminal issues you are involved with.

On May 24, 2011, a Kings County, New York man was arrested during the execution of a search warrant. According to a New York Criminal Lawyer, the search warrant was the result of an undercover investigation that covered more than four months. On 13 separate occasions, undercover police officer’s observed the man in possession of heroin and in possession of cocaine. They also observed him sell heroin and cocaine on these occasions.

The case was referred to the Brooklyn Treatment Court on August 16, 2011. The man had requested to be considered for Judicial Diversion of his case. Judicial Diversion is a program that was designed for certain felony offenders spelled out in Criminal Procedure Law Article 216. It grants the judges authority to decide which nonviolent offenders have committed their offenses as a result of substance abuse or dependence. They are then given the opportunity to avoid a jail sentence by contracting with the state to complete a court monitored treatment program.

Criminal Procedure Law Article 216 defines the eligible offenders for Judicial Diversion as those “charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses listed in CPL § 410.91(4), so long as they do not have a disqualifying condition listed in CPL § 216.00(1).” The District Attorney then decides who among these offenders is eligible. There are to be no violent or Class A felony offenders allowed into the program. The statute does not speak to the inclusion of misdemeanor crimes which are lessor included offenses to the felony charges that an offender has committed.

In this case, the subject was charged with several Class B,C, D and E felonies. He was also charged with several lessor included misdemeanors. The court evaluated this situation and determined the following. They decided that since the statute does not specifically reject the concept that misdemeanor crimes can be committed as the result of an addiction that the addition of a misdemeanor offense does not automatically disqualify an offender from being in the program. In this situation, since the offender was not guilty of any prior violent offenses, he does qualify under the letter of the law.

The Judge, however, determined that he is not a good candidate for the program. The determination was made in part, because the judge felt that the crimes in which he was charged were not appropriate to the essence of the program. The offender in this situation was selling drugs in concert with another party. The court ruled that these are not the acts of a dependent drug user, but rather a businessman making a sale.

Issues of law are constantly changing. A person who is not specifically trained in the law cannot begin to know what all of their rights are without the assistance of a professional. Whether you have been charged a gun crime, forgery or a drug crime, we provide skilled legal counsel. Our lawyers will stand by you and ensure that your rights are protected. Our legal counsel can argue your side and make sure that you and your loved ones are considered. We make sure that you are defended to protect your rights.

Stephen Bilkis & Associates has convenient offices throughout the New York Metropolitan area including other areas of New York.

Brian Thomas was charged with two counts of first degree rape, two counts of first degree sodomy, two counts of first degree sexual abuse and one count of second degree burglary. Specifically, Mr. Thomas was accused of unlawfully entering a dwelling with the intent to commit rape and sodomy and subsequently compelling a female victim to engage in sexual intercourse by force. On April 21, 1988, Mr. Thomas plead guilty to one count of attempted rape in the first degree and received a sentence of 7 ½ to 15 years.

The prosecution filed a motion with the Schoharie County Court to obtain a sample of Mr. Thomas’s blood in order to test it for the AIDS virus. Mr. Thomas’ criminal defense attorney opposed the motion on the grounds that it effectively constituted an unlawful search and seizure under the Fourth Amendment.

On August 14, 1978, Mr. Thomas was convicted in Nassau County Court of first degree attempted rape. He received a maximum sentence of ten years and was released on April 7, 1987.

In the current case, evidence was presented to the Grand Jury which established that Mr. Thomas had repeated sexual contact with the victim and exposed her to his bodily fluids. The victim was subsequently concerned about the possibility that she may have been exposed to the AIDS virus following the forcible rape and sodomy committed by Mr. Thomas.

Section 240.40 of New York Criminal Procedure allows that the court may order a defendant to provide non-testimonial evidence when an indictment is pending, including the taking samples of blood, hair or other bodily fluids or tissue in such a manner that does not involve substantial intrusion or serious risk of physical injury.

The Schoharie County Court noted that the AIDS virus is spread through the transfer of bodily fluids and that a blood analysis can determine whether someone is infected with the virus or not. The court also noted that the instance of AIDS was higher among the state prison population versus the general population.

Under the Fourth Amendment, individuals are protected from unreasonable searches and seizures. However, in Mr. Thomas’ case, the court held that the prosecution’s request for a blood sample was reasonable and allowable within the framework of constitutional law.

On April 18, 1988, the U.S. Senate approved mandatory AIDS testing for individuals convicted of drug and sex crimes. The measure allowed for results to be confidential but for records to be closed to prison wardens and/or the victims of sex crimes, including rape, sodomy and sexual abuse.

Based on the Senate’s decision, the court argued that the victim had a right to know whether Mr. Thomas may have exposed her to the AIDS virus through unlawful sexual contact. Furthermore, the intrusion to Mr. Thomas in collecting a blood sample was viewed as minimal compared to the mental trauma and anxiety suffered by the victim.
The court also noted that if Mr. Thomas tested positive for the AIDS virus, he could be charged with a count of depraved indifference murder.

Subsequently, the court granted the prosecution’s motion to obtain a blood sample from Mr. Thomas and noted that the results should be disclosed to the victim and the New York State Department of Correctional Services, if he tested positive.

Mr. Thomas’ criminal defense attorney acted correctly in objecting to the prosecution’s request in an attempt to protect his client’s rights. While his efforts were ultimately unsuccessful, he made every effort to act as an advocate for Mr. Thomas.

If you or someone you love has been charged with sexual abuse, a gun crime , or a theft crime you will need the help of skilled legal counsel. The law firm of Stephen Bilkis and Associates specializes in assisting individuals who are facing trial. We are committed to aggressively defending your rights and working hard to prove your innocence.

Call 1-800-NY-NY-LAW to speak with one of our criminal defense experts or visit one of our New York area offices to discuss your case in person. Don’t let a conviction for a sex crime ruin your life. Contact Stephen Bilkis and Associates today to get the legal representation you need to fight sexual offense charges.

Police in Nova Scotia have issued an arrest warrant for a 16-year old male they believe to be responsible for at least some of the shots that were fired at a high school this past Monday. The youth is facing multiple charges that include at least eight offenses involving possession of a weapon, and two counts of attempted murder. While Halifax police believe that only two persons, who have not been named thus far, were targeted by the youth, multiple gunshots were fired outside of the high school that the youth does not attend as a student.

Investigators have also learned that the shooting is believed to be a payback for another recent shooting of which a 16-year old was shot on Saturday, a New York Criminal Lawyer was informed. Police have confirmed they are exploring the possibility the two incidents are related.
While it is unusual for police to announce publicly information on a juvenile, a judge has given them five-days to announce his name and photograph publicly due to the nature of the incidents. The fact that the incident involved seemingly indiscriminate violence with a firearm at a school weighed heavily in the judge’s decision, sources. However, if police have not arrested the 16-year old within that five-day time period, the permission to use his name and photograph publicly will expire.

Within hours of the shooting, police had executed a search warrant at a home they believed the youth may be located, sources have confirmed to a Suffolk County Criminal Lawyer. While police did take two women in for questioning, they were released on Tuesday with no charges being filed.

Halifax police are asking that anyone with information regarding the whereabouts of this young man to notify the Halifax Police Dept, and are advising not to approach the youth if he is spotted and to notify the police immediately as he is considered armed and dangerous.

The school where the shooting took place was open on Tuesday morning as usual, only with an increased police presence in order to put students, parents, and teachers at ease. Sources say they will likely be there on Wednesday also.

Serious criminal charges can have a significant impact on your life, whether you are found guilty of the charges or not. If you are found guilty, you could be facing prison time, fines, probation, community service, and the offense will be marked on your permanent criminal record. Even if you are found innocent, these types of charges can affect personal and professional relationships. If you have been charged with a criminal offense, it is important to take prompt action and speak to skilled legal counsel as soon as possible to ensure that your rights are protected.

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In Arizona, the controversy continues surrounding the status of illegal immigrants. Despite recent legislative changes in the treatment of illegal immigrants, little has been solved regarding the treatment of these people who are living in the United States illegally. The United States Border Patrol has enacted new policy which includes sending illegal immigrants back across the border.

The new unofficial policy is to send anyone illegally crossing the United States-Mexico border to be sent back to Mexico instead of being arrested. Local law official say that sending people back to Mexico does little to solve the problem; they report that people tend to make multiple attempts to cross the border if the first attempt is unsuccessful.

There are some accusations that the new policy is politically motivated. The theory is that the change in policy is attempting to keep the number of border arrests down to improve the security statistics. By sending the border crossers back to Mexico, the number of arrests along the border has decreased and politicians are using this statistic to suggest that the US-Mexico border has become more secure.

Local law enforcement does not appreciate the new policy as the lower number of people being arrested may cause an increase in the number of people attempting to cross the border. They suggest that this increase in attempts actual decreases the security of the communities near the border. The lack of consequence for illegal entering the country may promote the idea that there is little or no consequence for breaking federal laws.

While immigration has always been a particularly complex issue in the United States, the new policy further complicates the legal process. The selective arresting of some border crossers while others are simply turned back calls into question the fairness of the process.Many supporters of the bill believe that the undocumented people are involved with the smuugling of a variety of drugs ranging from marijuana to heroin as well as a illegal guns.

Federal officials have officially denied that this is a new official policy; however, many people in the organization have said that they were given these orders. A NY City Criminal Lawyer explains that local law enforcement officials continue to argue against this new policy, whether official or not.

Continue reading "New Illegal Immigrant Policy at the US-Mexico Border" »

An axe-wielding man outside an in-home daycare was shot and killed by three police officers in Prince George’s County, near the District of Colombia, authorities reported.
The incident occurred before 3 p.m. a county police spokesman told a New York Gun Crime Law Firms. Officers were sent to the daycare to address reports of an armed man on the premises.
The man with the axe was involved in a child custody battle and wanted to take his children out of the daycare, the police spokesman explained. The daycare provider had called the mother of the children, he said, and she told the provider to keep the children and not give them to their father.
The provider then called the police said many sources.
When the police arrived, the man with the axe was already gone. He returned, however, and at least one officer was still on the scene.
The next events are still being investigated. According to the police spokesman, the man got out of his vehicle, axe in hand, and approached the three officers.
The police spokesman explained to , “The officers felt threatened and they discharged their firearms.” The man had no motive for robbery or any theft
According to the police spokesman, the man was struck killed by the gunfire and pronounced dead on the scene. No one else was hurt in the incident.
Matters involving family can sometimes go too far, if they are allowed to do so. Before they get to that point, it’s best to have good counsel to talk to, someone who can provide a legal means to proceed, like a Nassau County Gun Crime Firm, before it’s too late.
Every story has two sides and it is the right of everyone to have their side of the story told when it comes to the law. Of course, to have that story told, it’s best to be represented by someone who has a firm knowledge of the law and the tenacity to face prosecutors without fear. That representative should be someone with not only skill, knowledge, and integrity, but the honest wish to see you prevail.

Continue reading "Manshot by gun wielding cops outside daycare near Washington, DC and dead at the scene" »