Articles Posted in Criminal Procedure

In this criminal case, respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Escape in the First Degree, Escape in the Second Degree, and Escape in the Third Degree. The petition alleges that by order of the Family Court, Bronx County, respondent was adjudicated a juvenile delinquent, and placed in the custody of the New York State Division for Youth for a period of up to eighteen months upon the court’s finding that he had committed a felony. In accordance with the Family Court’s order of disposition, the Division for Youth placed the respondent with the Berkshire Farm 2 facility for a period of up to six months.

A Bronx County Criminal lawyer said that the petition further alleges that while respondent was placed with the Division for Youth and in the custody of Berkshire Farm, he was transported to the New York County Family Court by Berkshire Farm staff members, in accordance with a court order, so that he could be present for an initial appearance upon a juvenile delinquency petition, arising out of an incident which occurred in July 1996, where it is alleged that respondent committed acts which would constitute, inter alia, Grand larceny in the Fourth Degree, a class E felony.

According to a supporting deposition of an employee of Berkshire Farm, he and other staff members arrived at the New York County Family Court building in the morning. Shortly after their arrival, respondent requested breakfast and was escorted from the building to a sidewalk vendor who was located in front of the courthouse. Then the employee and the respondent reentered the courthouse and stood side by side as they waited on line to enter the metal detectors.

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Criminal law is an area can be rather complex especially where there are several charges against a person arising out of one event or the alleged acts were committed against the same person or group of persons. This issue arose in the People v Estevez where there was an issue of consolidation versus severance.

In the People v Estevez, the defendant was charged with three crimes occurring on three separate dates at the same location and involving the same complaining witness in a first docket. He was then charged with three counts of criminal contempt in the second degree, a class A misdemeanor for violating an order of protection issued by the court on the first docket and harassment in the first degree, a class B misdemeanor. The People then sought to consolidate the two matters which is a procedure by which the prosecutor or defendant attempts to have two or more separate offenses combined for a single trial. Additionally upon consolidation the prosecution stated that the criminal contempt charge would be reduced to attempted criminal contempt, a class B misdemeanor.

The prosecution sought to consolidation the charges because the alleged facts showed pattern of harassment of same complainant and all charges were same or similar in law. In this case, the three counts of contempt of court flowed from the first charges as such consolidation would be appropriate. The defendant however, opposed motion and asserted that, if consolidation were granted, defendant would be exposed to more than six months imprisonment, which would entitle him to trial by jury. The prosecutor could not act in good faith by reducing several “serious charges” to which defendant would be entitled to jury trial to “petty offenses” and then move to consolidate them for purpose of joint trial in which the potential sentence would be that of “serious offense” that is more than six months of imprisonment may be imposed, while denying defendant right to trial by jury.

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The defendant man charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana moves to dismiss the accusatory instrument on speedy trial grounds alleging that the complainants failed to announce their readiness for trial within the applicable ninety day statutory period mandated by Criminal Procedure Law (CPL). The complainants concede, in their Affirmation in Opposition, that their announcement of readiness for trial was not made until the ninety-first day after the filing of the accusatory instrument. They assert, nonetheless, that their announcement of readiness was timely for reasons, namely that the defendant’s pre-conversion oral request for a copy of the search warrant underlying the defendant’s arrest, is an excludable pre-trial delay as provided in CPL even if the Court would disallow the request for a copy of the search warrant as an excludable pre-trial delay, as the day on which the complainants would have been required to announce their readiness for trial fell on a Sunday, the General Construction Law permits a timely announcement of readiness on the following business day (in the instant case, the ninety-first day which fell on a Monday).

The Court disagrees with both of the complainants’ contentions and, for the reasons that follow, grants the defendant’s motion to dismiss the accusatory instrument on speedy trial grounds. Robbery was not an issue.

The instant motion arises from the following facts and procedural history. The defendant was arrested on the aforementioned charges. The misdemeanor complaint, in relevant part, reads that the deponent entered the premises pursuant to a search warrant issued and observed the defendant standing in a bedroom with a quantity of crack/cocaine possession and a quantity of marijuana on top of a dresser in open view.

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In this Criminal action, petitioner initially filed a petition, alleging a family offense. This petition alleges the respondent committed the acts of aggravated harassment in the second degree, stalking in the first degree and disorderly conduct. The entirety of petitioner’s allegations are that respondent: continues to harass, aggravate, intimidate, frighten and stalk Petitioner. The Petitioner discovered the Respondent hiding behind bushes around her home. She was so frightened that the police notified and she was advised to file this petition. The petitioner obtain a Temporary Order of Protection against the respondent for his negative behavior that was dismissed. The petitioner is afraid of the respondent and fears for her life, she is also concerned for the safety, mental and emotional stability of their child. The Respondent abuses alcohol. The Petitioner requested custody of their child. A weapon was not found.

A Nassau County Criminal attorney said that on the date Petitioner appeared before a Judge of this Court, after arrest, petitioner was granted an ex-parte temporary order of protection against the respondent. The order of protection was a “stay away” while under the influence of illegal drugs, alcohol or other intoxicant. Thereafter, the within motion ensued. While respondent does not cite a theory under which the dismissal should occur, the moving papers seem to allege a failure by petitioner to state a cause of action.

The respondent alleges, in his motion, that the allegations contained in the petitioner’s family offense petition, even if true, do not rise to the level of family offenses. The Family Court Act § 812 defines a family offense, as those acts that would constitute: disorderly conduct,

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A woman is accused in the indictment with four crimes which includes criminal mischief in the fourth degree, as a hate crime, criminal mischief in the fourth degree, making graffiti and possession of graffiti instruments. It is alleged that the woman, a teacher, wrote with a black marker the three unpleasant words on the walls of a female bathroom on the third floor of their school.

The grand jury accuses the woman of the crime of criminal mischief in the fourth degree as a hate crime. It was committed when the woman, having no right to do so nor any reasonable ground to believe she had such right, intentionally selected a girl in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sex orientation of the girl, regardless whether the belief or perception was correct or intentionally committed the act or acts constituting the offense in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation regardless of whether the belief or perception was correct.

The woman argues that the proposed modification would change the theory of the trial because the indictment specifies the girl as the specific person about whose race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation the woman had formed beliefs or perceptions which allegedly motivated the underlying violence and criminal mischief.

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A company provides services as a third party benefits administrator of health benefit plans. The petitioner is the former principal owner and Chief Executive Officer of this company. In July 1995, Respondents purchased said benefit plans company from Petitioner. To ensure an orderly transition, the parties agreed that petitioner was to continue managing it, as CEO, and executed an agreement, pursuant to which petitioner would be paid a salary and incentive bonus based on the increase in the Company’s future earnings. There was a provision in the agreement for arbitration under the Rules of the American Arbitration Association.

A Nassau County Criminal lawyer said that during 1996 and 1997, the parties executed four different amendments to the 1995 Employment Agreement. None of these amendments changed the arbitration provision. Later, petitioner filed a Demand for Arbitration against the company, based on its failure to use diligent efforts to guarantee payment of the Incentive Bonus as required by the Fourth Amendment to the 1995 Employment Agreement. In resolution of this dispute, the parties executed a Settlement Agreement, which provided, among other things, that petitioner would discontinue the arbitration and would execute an Amended and Restated Employment Agreement, which was to amend the 1995 Employment Agreement, and contained a general merger clause.

In compliance with the Settlement Agreement, the parties executed the Amended and Restated Employment Agreement, which included the same arbitration provision of the 1995 Employment Agreement. Thereafter, Nassau County and BPA (represented by petitioner) entered into a contract entrusting BPA with the administration of the employee health benefits plan for Nassau County’s 26,000 workers. The net result of this new contract was to immediately increase petitioner’s incentive bonus to a total of $9 million dollars, payable by the company. No fraud was involved.

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The defendant, charged with two misdemeanor violations of the Vehicle and Traffic Law, appeals from an order of the Nassau County District Court, sitting as a Court of Special Sessions, which denied his application for youthful offender treatment. When the application was made to the District Court, the Presiding Judge ordered that an investigation be made for the purpose of determining the defendant’s eligibility for youthful offender treatment. No examination or investigation was conducted, although ordered, and the court subsequently denied the defendant’s application. An immediate appeal has been taken to this Court, and the sole question presented at this time is whether an immediate right of appeal lies from the refusal by a court of special sessions to grant youthful offender treatment before there has been a criminal judgment of conviction.

The right to an appeal is unknown in common law. It is a creature of statute and does not exist without statutory authority therefor. The sole statutory provisions which may be deemed applicable to the within appeal are contained in sections 749 and 913-r of the Code of Criminal Procedure and in section 251 of the Nassau County District Court Act, Laws 1939, c. 274.

Section 913-r of the Code of Criminal Procedure provides that a defendant adjudged a youthful offender shall be entitled to an appeal in accordance with the provisions of the Code. Section 749 of the Code of Criminal Procedure entitled ‘Review on appeal from minor courts’ states, in part: ‘In counties other than the counties included within the city of New York, a judgment upon conviction, rendered by a court of special sessions in any criminal action or proceedings or special proceeding of a criminal nature may be reviewed by the county court of the county, upon an appeal as prescribed by this title. These two sections clearly indicate that the right to appeal, as contained therein, arises only after there has been an adjudication of guilt.

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The court denies the motion by the plaintiff K, pro se, for an order, inter alia, pursuant to CPLR 3120, directing the defendant, H, an Illinois Corporation, to comply with his Notice to Produce all documents, records and any other information in the possession of said defendant, relating to the identification of the author of the article titled “You’re a Mean One, Mr. K” which appeared in the “Readings” section of the December 2009 edition of the H Magazine.

Further, the court grants in part and denies in part the second motion by defendant, H for an order pursuant to CPLR 3211(a)1 and 7. The court dismisses the plaintiff’s Amended Complaint in its entirety and grants sanctions of costs and attorneys’ fees pursuant to CPLR Rule 8303-a.

This libel action arises out of a column published in the December 2009 issue of H Magazine (the “Column”) that consisted almost entirely of excerpts of a letter and all but two emails that were quoted in full in the criminal complaint filed against the plaintiff herein, K.

In this criminal case, petitioner filed a motion seeking an order granting a preliminary injunction pursuant to CPLR 1333, enjoining the defendant from directly or indirectly effecting or furthering the sale, gift, transfer, pledge or mortgage of money not to exceed $10,000 held by European American Bank and Nassau County Police Property Bureau, and from taking any other action otherwise alienating or encumbering his right, title or interest in that property or any part of it.

Previously, an order to show cause, containing a temporary restraining order (TRO) was granted based on the affidavits of the Assistant District Attorney acting for the claiming authority, the arrest officer, the summons with notice, and the District Court Information charging the defendant with committing violations of sections 220.43, 220.18, 220.41, 220.16, 220.16(12) and 220.16(1) of the Penal Law.

A Nassau County criminal attorney said that defendant was personally served at the Nassau County Correctional Center, East Meadow, New York according an affidavit. Defendant has not appeared in this action.

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A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Robbery was not charged and neither was domestic violence.

The issue in this case is whether the Court should accept for filing the application for leave to appeal filed by the defendant in his criminal indictments.

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