Assault

Published on: September 5, 2012

Court Orders New Trial

by Stephen Bilkis

Plaintiff commenced this action seeking damages for false arrest, false imprisonment and malicious prosecution, based upon his arrest for assault which later became a murder charge for acts allegedly committed. Plaintiff was incarcerated for 333 days. The charges remained pending for nearly 8 more months after plaintiff was released from custody. A New York Criminal Lawyer said that, all charges were dismissed on the motion of the Bronx County District Attorney. After trial in this action, the jury rendered a verdict in favor of plaintiff, awarding damages to plaintiff in the sum of 2.7 million dollars for false arrest and 7.1 million dollars for malicious prosecution.

A Bronx Criminal Lawyer said that, defendant, the City of New York (City) now moves pursuant to CPLR 2221 and 4404 (a) for an order (1) setting aside the jury’s verdict on liability as a matter of law, or, in the alternative, (2) setting aside the jury’s verdict and ordering a new trial as the jury’s liability verdict is against the weight of the evidence, or, in the alternative, (3) dismissing the malicious prosecution claim for failure to prove proximate cause, or, in the alternative, (4) setting aside the damages verdict and ordering a new trial on damages as the jury award was excessive and contrary to the weight of the evidence, and for other related relief.

Plaintiff opposes the motion. A New York Criminal Lawyer said the City’s renewal of its trial motion to dismiss the complaint for failure to establish a prima facie case or for a directed verdict is denied as the court adheres to its original decision on the record.

Published on: July 26, 2012

Police Officer Receives Criminal Charges

by Stephen Bilkis

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

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

Case Background and Discussion

Published on: July 24, 2012

Court Examines SORA Designation

by Stephen Bilkis

The Facts:

The defendant appeared before the Court for a risk level determination pursuant to the Sex Offender Registration Act. The defendant has a criminal history which dates back to the 1950’s and includes a number of crimes committed in Virginia, viz: Rape in Virginia, in 1955; Felony Cutting with Intent to Maim in Virginia, in 1957; Rape in 1962; and Arson in the Second Degree in New York, in 1985.

First, defendant moved to have the Court declare SORA unconstitutional as applied and use the Static 99 rather than the SORA Risk Assessment Instrument (the “RAI”) to determine his risk for re-offense. He argues that the SORA Risk Assessment Instrument does not measure the risk of re-offense, as it purports to do, but reflects a moral judgment about how blameworthy sexually offending behavior is. He describes the instrument and risk level determinations under SORA as punitive rather than regulatory. For this reason, he alleges, the statute is unconstitutional.

Published on: July 24, 2012

Court Discusses Elements of Asssault

by Stephen Bilkis

This involves a case where the Court of Appeals concluded that defendant acted with intent to prevent an emergency medical technician (EMT) from performing a lawful duty when he caused an EMT to suffer physical injury.

On the day before Christmas 2006 at about 2:20 A.M., two emergency medical technicians were dispatched by ambulance in response to a call for medical assistance for a woman who injured her hand and a man who suffered a bleeding face in a fight. Upon arriving in the location, the EMTs observed about 15 people in the apartment, as well as beer cans and coolers, causing the victim EMT to conclude that there had been “a party of some sorts.” The injured woman complained of pain in her right hand, on which she had placed an ice pack; she told the EMTs that “she had been in a verbal altercation with somebody, and punched a wall with her right hand.” The EMTs did not see and were not directed to or approached by anyone bleeding from the face. After treating the woman, the EMTs left the apartment and head back to the ambulance.

As one of the EMTs was about to climbed into the ambulance, defendant came to him and threw a beer can to the EMT’s head (assault). Defendant hit him in the back of the head, grabbed his sweater collar and threw him to the ground, where he landed face up. Defendant kneeled down on one knee and struck the EMT on his face two or three times with a closed hand. Defendant was charged criminally from the assault. Defendant argued that he could not be convicted with the crime charged since the EMTs were not performing a lawful duty since the EMTs had finished their duty upon which they were called.

Published on: July 11, 2012

Court Decides Case Where Defendant is Police Officer

by Stephen Bilkis

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

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

Case Background and Discussion

Published on: July 8, 2012

Defendant Uses Failure to Report Rape as a Defense

by Stephen Bilkis

Two women were hired, one after the other, as data entry technicians for a company that manufactures, markets and directly ships children’s clothing and accessories. Both women were immigrants from Russia without relatives or connections in the United States. Both complained of sexual harassment, sexual assault and sexual abuse from a high-level manager of the children’s clothing company where they were employed.

The first data entry technician was initially hired in February 2005 on a temporary basis upon a referral from a technical employment agency. She was paid the rate of $15 hourly which was later raised to $20 hourly when she was hired on a permanent basis after two weeks. She worked at the children’s clothing company for only two months before she was forced to resign due to intolerable working conditions at the clothing company.

She claims that on her second day at the job, the manager ran his fingers through her hair. At another time, the manager asked her to stay late and when they were alone, he asked her personal questions as to whether she had a boyfriend and actually asked her to have sex with him.

Published on: July 8, 2012

Defendant Brings Motion to Bring In Expert Testimony

by Stephen Bilkis

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

Case Background

The defendant has been convicted by a jury for the crime of holding a six inch knife to the throat of a girl who was thirteen years old at the time and ripping a chain from around her neck. A the only witness in the crime was the victim. The incident only lasted a few seconds. There was no evidence submitted in the case aside from the victim’s identification of the defendant.

Published on: July 7, 2012

Second Indictment of Defendant Nullifies First Indictment

by Stephen Bilkis

The People of the State of New York are the plaintiffs in this case. The defendant of the case is Gus Franco. The case is being heard in the criminal term of the Queens County Supreme Court in the state of New York.

The defendant has moved to have the instant indictment against him dismissed. The defendant basis his argument on the grounds that there is a legal impediment for the conviction of the crimes that he is being charged with. This motion is necessary at this point in the case as there has been an issue of evidence being re-submitted in the case. The District Attorney is seeking re-submit evidence to a second grand jury and this has resulted in no true bill on all counts of the indictment.

Case History

Published on: July 6, 2012

Defendant Seeks Resentencing

by Stephen Bilkis

This case involves the People of the State of New York versus the defendant Richard DeMarco a/k/a Richard Machado. The case is being heard in the Queens County Court. Judge John F. Scileppi is residing over the case.

The defendant of the case has moved for a writ of error and motions for an order to correct his sentence. He has three separate arguments for this relief.

Defendant’s Arguments

Published on: June 30, 2012

Court Discusses Changes in Law for Rape Charges

by Stephen Bilkis

Prior to 1974, a rape conviction was not able to be obtained on the uncorroborated testimony of the victim. In order to corroborate a testimony, the victim would have to be able to produce an eye witness or some other type of physical evidence. Prior to 1974, there was no such thing as DNA evidence. The ability to obtain a conviction on rape would be almost impossible. There is rarely an eyewitness to testify on behalf of a rape victim.

In fact, in 1967, rape was a misdemeanor offense. Rape in the present day is considered a felony offense. Attitudes have changed dramatically concerning sexual offenses. It seems incomprehensible in the present day that a rape conviction would require an eye witness or other physical evidence in order to get a conviction. However, even in 1967, some prosecutors were aware that the legislature needed to create changes in the laws to make them equitable to societal attitudes of the time. In fact, in one rape case the defendant was charged with assault in the second degree with the intent to rape and assault in the third degree. The defendant testified that he had completed the rape. The reason that he chose to testify to the completed rape was because a completed rape required eye witness testimony or other corroborating evidence. The offense of attempted rape or assault with the intent to rape, did not require the addition of corroborating evidence.

The defendant appealed the conviction because he contended that the prosecution was attempting to circumvent the requirement of corroborating evidence in rape cases by charging a crime that does not require corroboration. The court reviewed the case and determined that the fact that a prosecutor could conceivably circumvent the requirement of corroboration by charging a lesser included offense would result in a sentence that is greater for the lesser offense than it was for the completion of the rape.