New York

Published on: February 24, 2013

Defendant Charged with Assault in Times Square Incident

by Stephen Bilkis

Defendant was indicted on two counts of assault in the second degree, one count of robbery in the third degree, and one count of reckless endangerment in the first degree based on an incident early New Year’s morning 1985 near Times Square.

A New York Criminal Lawyer said it was argued that defendant removed the knapsack from the person of the unconscious woman lying on the sidewalk without the use of force–a grand larceny, not a robbery. Penal Law § 155.30(5) provides:

A person is guilty of grand larceny in the third degree when he steals property and when * * * the property * * * is taken from the person of another.

Published on: February 21, 2013

Court Decides Domestic Violence Charges

by Stephen Bilkis

First Case:

On or about 8 July 2008, a Family Court in Bronx County found that respondent mother permanently neglected her children. The judgment was appealed and the court now affirms said order, without costs.

Here, a New York Criminal Lawyer said the court finds that the neglect findings are supported by clear and convincing evidence that petitioner made diligent efforts to assist a meaningful relationship between respondent mother and her children and that, despite these efforts, respondent mother failed to plan for the children’s future. Petitioner’s efforts included providing numerous referrals to programs tailored to respondent mother’s changing needs and consistently following up with respondent mother on such critical goals as completing a mental health evaluation and domestic violence counseling. Petitioner’s focus on the issues of health and domestic violence was the most appropriate course of action. However, respondent mother still refused to complete these critical components of the service plan. The respondent mother’s her argument that petitioner failed to assist her with such other service plan goals as obtaining suitable housing and a source of income is belied by the records of the case. Evidence was presented that petitioner indeed made referrals in these areas and monitored respondent mother’s changing housing and employment circumstances. It was respondent mother’s own lack of meaningful cooperation with petitioner that hindered her accomplishment of these goals.

Published on: February 21, 2013

Defendant Brings Omnibus Motion to Suppress Identification Testimony

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the County Court, Dutchess County, rendered February 13, 2008, convicting him of grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

A New York Criminal Lawyer said that, the defendant’s conviction arises from two incidents in which he allegedly stole merchandise from a Home Depot store. The defendant was charged with one count of grand larceny in the fourth degree, based, inter alia, on his having taken property with a value of over $1,000 in an “ongoing course of conduct and common plan and scheme.” A Dutchess Grand Larceny Lawyer said that, after a pretrial hearing, the County Court denied that branch of the defendant’s omnibus motion which was to suppress identification testimony. At the hearing, a New York Criminal Lawyer said that the County Court also ruled that if the defendant chose to testify at trial, the prosecutor could impeach him with evidence of the fact of one felony and seven misdemeanor convictions, but could not elicit the specific charges of which the defendant had been convicted, nor the underlying facts leading to the prior convictions.

At trial, the defendant’s nephew testified that he accompanied the defendant to the store on two dates. A New York Drug Possession Lawyer said the nephew testified that on the first date, he and the defendant placed a television on a cart. While the defendant spoke to a store employee his nephew wheeled the cart out of the store, and then the defendant followed. A store cashier testified that she witnessed this occurrence, and she identified the defendant at trial. The cashier also testified that after the defendant left the store, she looked up a price of televisions on a display, since she “recognized the front of the box” of those televisions. The cashier indicated that the sale price of the televisions on the display was $1,999.97. The cashier did not know the model number or name of the television that the defendant allegedly took. The People introduced no further evidence as to the specific type of television that was allegedly taken, nor as to the price of that television. The defendant’s nephew testified that on the second occasion, he and the defendant placed various items of merchandise in a shopping cart, wheeled that cart to a store exit, and placed those items beneath a gap in a fence leading to the parking area. A store “loss prevention investigator” testified to having witnessed those events, and identified the defendant at trial.

Published on: February 21, 2013

Defendant Contends Four Level Enhancement of Sentence Was Incorrect

by Stephen Bilkis

A New York Drug Crime Lawyer said the defendant is appealing a 75 month sentence that was imposed on him when he pled guilty to being a felon in possession of a firearm. The defendant argues on appeal that the district court made an error when they imposed a four level enhancement to his sentencing. He also argues that his counsel was ineffective because they did not object to the investigation reports application and that they failed to show that the possession of a firearm did not meet the requirements for an enhancement.

Case Discussion and Decision

A New York Criminal Lawyer said in this case the court did not err in the calculation of the sentence of the defendant. When calculating a sentence based on the guideline ranges that are provided the court can apply a four level enhancement to the charge if the firearm is possessed and found to be in connection with any other felony offense.

Published on: February 19, 2013

Defendant Contends Confession was Coerced

by Stephen Bilkis

In summary, the accused was arrested for possession of a weapon and when brought to the station he asked the police officer that he would cooperate in bringing additional guns through his wife. A few hours later, he was already suffering from heroin withdrawal that prevented him to being brought to the criminal booking office. A New York Criminal Lawyer said during the course of his detention and while feeling sick due to his withdrawal from drugs, the other investigators questioned and interrogated him for the gun crime, specifically, a shooting incident. The result of which, is that he was asked to sign a waiver and was then charged and subsequently arraigned for the alleged crime of shooting that he committed.

A few days later, the offender was examined by a doctor where he was diagnosed of having heroin withdrawal. An expert in forensic psychiatry testified that the defendant suffered from opioid withdrawal where symptoms usually occur within eight to twelve hours from the last drug intake. The doctor further averred that a person having opioid withdrawal is not in his normal behavior and usually suffer severe physical conditions.

The defendant was charged with the crime for shooting the victim inside his apartment at Brooklyn. The appellant moved to suppress evidence acquired due to his unlawful detention for the charges of criminal possession of weapons and seek to repress his admissions he gave through coercive measures conducted by the police towards him during such detention.

Published on: January 26, 2013

Court Weights Constitutionality of Sentencing for a Felony in the Third Degree

by Stephen Bilkis

The Florida state filed an appeal placing in issue the constitutionality of the provisions of law pertaining to the inclusion of prior convictions in the charging information. This was due to the ruling of the circuit court, wherein the appellees who were charged and found guilty of petit larceny and they have already been previously convicted of such crime twice. A New York Criminal Lawyer said the court granted the motion to dismiss filed by the accused on the ground that such charges were unconstitutional which deprived the defendants’ due process and equal protection of the law. The court granted the motion, thus, the appeal was made by the state.

The issue before the court is the constitutionality of the provision of law where “upon the third or subsequent conviction for petit larceny, the offender shall be guilty of a felony in the third degree.” A New York Criminal Lawyer said this was a distinct substantive offense that can be distinguished from the statute on being considered a criminal habitual offender. Both statutory provisions provide harsher punishments for a repeated offender. As habitual offender, the previous offense shall serve as the basis of an increased penalty while the other law makes the prior offense part of the elements of the present offense charged against the felon, which must be specifically alleged and proved during trial. In the latter case, the jury must provide judgment as to the guilt or innocence of the defendant based on the existence of facts related to prior conviction or convictions and return a verdict as to both.

The court pointed out several cases to sustain the action of the trial judge in submitting before the jury the judgment as to the verdict of the present offense charged and as to the historical fact of prior conviction. Furthermore, a New York Drug Possession Lawyer said the jury is under obligation to come up with specific findings of the facts in said former convictions.

Published on: January 24, 2013

Court Discusses Act of Depraved Indifference in Murder Trial

by Stephen Bilkis

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway. At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words. A Bronx DWI Lawyer said that, the defendant remained at the party for 1 1/2 to 2 hours before leaving in his pickup truck. Despite having previously received offers to sleep over or utilize a designated driver rather than drive after drinking, the defendant chose to get into his pickup truck and drive while intoxicated.

A Bronx DWI Lawyer said that, the defendant was driving the wrong way in the southbound lanes of the Meadowbrook State Parkway, a limousine was proceeding south in the left southbound lane of the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directly towards it just north of the Babylon Turnpike overpass. The limousine was carrying a family, consisting of their two daughters, seven-year-old and five-year-old, and the parents, back home from a wedding. The pickup truck collided head-on with the limousine, apparently having tracked the limousine’s movement, crushing and killing the other passenger, decapitating the seven-year-old passenger in the limousine, and causing severe, and, in some instances, life-threatening, injuries to the remaining passengers in the limousine.

A Bronx Drunk Driving Lawyer said that, the defendant was placed under arrest at the scene, and was later informed of his arrest by the Investigator of the New York State Police. Upon being so advised, the defendant told the police that from the time he had moved to New York from Arkansas the previous October, “everything was going wrong” and “nothing he did was ever enough.” The defendant recounted to the police that he had argued with his ex-girlfriend over the phone, had financial problems, had recently lost his grandmother with whom he had been close, and was very upset, depressed, and in a “self-destructive mode.”

Published on: January 24, 2013

In Consecutive Sentences it Depends on Whether the Acts Were Committed with the Requisite Intent

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Published on: January 23, 2013

Court Looks at Complex Resentencing Issue for Defendant

by Stephen Bilkis

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

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

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

Published on: January 23, 2013

Husband Accused of Lying Under Oath

by Stephen Bilkis

The complainant husband was granted an uncontested divorce from defendant-wife on the ground of constructive abandonment. This cause of action, often referred to as sexual abandonment, is perhaps the ground most widely used in proceedings where both sides agree to the divorce. A New York Criminal Lawyer said that as part of pleading his claim of sexual abandonment, the husband had to swear to the fact that he and his wife did not have sexual relations for over a year. The wife is attempting to use that statement to prevent her husband from seeking to establish that a child born during the course of the marriage, but conceived well after the date on which the parties allegedly stopped having sex, is actually his son.

The husband contends that irrespective of what he stated in the divorce pleadings, the child in question is in fact his child. He moves for an order directing that genetic marker testing be done so as to conclusively determine paternity. Upon such determination, he further seeks a declaration of paternity and the amendment of the divorce judgment to reflect that his son is the child of the marriage.

The wife opposes her husband’s motion in all regards. She points out that her husband, in his verified complaint for divorce, alleged that from August 1, 2006, onward she refused to have sexual relations with him. Thus, based on his own sworn statements, the wife contends that the child, who was not born until March 19, 2008, cannot possibly be his. A New York Criminal Lawyer said the wife further submits that if her husband is taking the position that the child is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. With this regard, the wife cross moved for and order finding that her husband has committed perjury in the second degree.