Criminal Procedure

Published on: June 24, 2012

Defendant Contends Elements of Rape Crime Not Met

by Stephen Bilkis

A man filed a motion for him to file a late notice of explanation. The man’s counsel has established good reason for late filing of the notice which is attached to the moving papers. As explained on the counsel’s letter, a New York Criminal Lawyer said the alleged criminal acts occurred more than two years ago and making the notice of explanation was difficult. The state of New York noted on the record that they do not oppose the request and the notice will be deemed timely and is directed to be filed.

The second and third branches of the man’s motion concern the counts one and two of the accusation. The count one charged the man with predatory sexual assault against a child allegedly committed when the man was more than 18 years old at which he allegedly committed rape in the first degree against a female who was less than 13 years old. The count two charges was the same crime on the same legal theory against the same complainant. A New York Criminal Lawyer said the counts three and four charges were a criminal sexual act in the first degree with the same victim on the same dates as alleged in counts one and two. The count five charges endangering the welfare of a child encompassing all of the conduct charged in count one through four inclusive.

The man’s counsel first argues that the court should reduce the charge in counts one and two with rape in the first degree with the rule of lenity. The counsel notes that the elements of predatory sexual assault against a child are identical to those of rape in the first degree as charged. Counsel said based on records, the predatory sexual assault against a child is a class A-II felony with a mandatory minimum sentence of 10 years to life and a maximum of 25 years to life. By contrast, rape in the first degree is a class B felony, with a mandatory determinate sentence having a minimum of five years and a maximum of 25 years, followed by at least five years of post-release supervision. The two crimes also have different plea bargain restrictions with respect to the offense against a child charge. The plea must be at least to a class C violent felony whereas the man may plead guilty to a class D violent felony in satisfaction of a charge of rape in the first degree.

Published on: June 23, 2012

Can the Agent of a Purchaser of Narcotics be Convicted of Drug Sale?

by Stephen Bilkis

This is the case wherein the court reiterated its New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance.

A New York Criminal Lawyer said that an undercover police officer befriended the defendant in various bars. The police officer, disguising as a drug user, thereafter mentioned to the defendant that he was interested to buy ecstacy. The defendant indicated that he might be of assistance in doing so and invited the undercover to call him whenever needed. In the course of their meeting in a bar, the police officer advised the defendant of his intention to buy cocaine or heroin. The defendant estimated the cost of the quantity of approximately four ounces of cocaine which was between three and four thousand dollars.

After some days, the defendant and the police officer proceeded in a bar in Manhattan. The defendant entered the premises alone, presumably to meet the man who was the seller. The defendant reported to the police officer that the price of the narcotics would be $4,000. The police officer paid the amount and the defendant re-entered the bar to give the payment to the seller. The two proceeded to a discotheque where the actual delivery of the drugs took place.

Published on: June 22, 2012

Court Hears Motion To Supress Search Warrant

by Stephen Bilkis

On September 25, 2003, the Associate Village Justice of the Supreme Court, issued a search warrant directed to “any police officer of the County of Nassau.” A New York Criminal Lawyer said the search warrant found that there is probable and reasonable cause for the issuance of the warrant to make a search with the inspector and his agents, between 09/25/03 and 10/02/03 in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises in 335 Princeton Street, Westbury, NewYork. The warrant categorically states that the seizure of the evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises.

The Senior Building Inspector of the Village of Westbury believed that the subject premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of sec. 79-2, sec. 83-6, sec. 112-7, sec. 184-4, sec. 248-6 A and sec. 248-283 of the code of the Village of Westbury and NewYork State Multiple Dwelling Law sec. 30 and sec. 34. A Supervisor in the Department of Public Works testified that the garbage generated from the home was 3 to 4 times the normal amount at every pick up.

Subject to the defendant’s motion to suppress, the parties stipulated to the receipt into evidence of the “return” on the warrant indicating what was seized during the search.

Published on: June 22, 2012

Defendant Seeks to Change His Sex Offender Status

by Stephen Bilkis

In New York, a system of using an offender’s previous crimes to predict his recidivism rates is used. This system classifies sex offenders into degrees. A New York Criminal Lawyer said that certain offenses will cause the offender to be classified as a higher risk to the public if they are released without tighter supervision. In one case, the offender was convicted on July 29, 1982 for attempted rape in the first degree. This offense is considered a class C felony sex offense under Penal Law §§110.00, 110.05 and §130.35. The Sex Offender Registration Act, requires a hearing be held in the Supreme Court to ensure that the designated level of risk that is assigned to an offender is appropriate as it relates to their offenses. In this case, the court took into account, a previous sex offense that had been committed while the offender was still a juvenile.

The offender’s counsel moved to reduce his sex offender status rating because his juvenile record should have remained sealed and not considered as relevant to the current crime. The court did not agree. They admitted that juvenile offenses are deemed vacated after the offender has been adjudicated and served their sentence, however, when it comes to a prior felony sex crime conviction, the court is reticent to not include it. Just because an offender is a juvenile when he commits the offenses that are included in the Sex Crime Registration Act, it does not preclude the court from considering his prior actions when they determine the risk that he poses to commit the same or similar offense again in the future.

The offender’s counsel petitioned the court to provide a presumptive override to the decision based on the use of the juvenile history in determining the offender’s recidivism rate. The court maintained that Risk Assessment Guidelines that were developed by the Board of Examiners of Sex Offenders found that it was appropriate to utilize all information that may be a predictor to the likelihood that the offender will pose a significant risk to the public safety. The risk points that are allocated are based on the facts that are acquired with review of the offender’s criminal history. Failure to include all information that is available on an offender’s criminal history would skew the results of the guidelines.

Published on: June 21, 2012

Potential Juror Misconduct Reviewed In Sex Crimes Case

by Stephen Bilkis

It is difficult to understand the immensity of the responsibility that serving on a jury can be for some people. In this age of electronic information obtainable on the internet and even on a person’s telephone, it can be a daunting task for a juror to follow the instructions provided by the judge and make a determination only on the information that is presented in the courtroom. It is no surprise then when a juror is found guilty of misconduct for investigating a case on their own to attempt to help them make their decisions. As students, we are all taught to research a topic before we can make an informed opinion and not to rely solely on information that is provided by word of mouth. A New York Criminal Lawyer said when assigned to a jury and told that they are not allowed to make an informed decision based on research, many can feel lost and compelled to research the case on their own. This was the case, with one juror who was sitting on a non-sequestered jury, hearing the details of a serial sex crime offender’s case (rape). During the trial, the woman went to dinner with several friends and their acquaintances.

At that dinner, the woman brought up some of the details of the case that she was sitting on the jury for. She stated that the case was about a teen aged defendant who had cut up and raped a woman as part of a gang initiation. She allegedly stated that she had made up her mind about the defendant and his guilt in the situation. However, she stated that she knew she had a duty to deliberate the case with the other jurors before she actually made up her mind. She stated that the jury was a diverse group of people and she would need to hear what everyone had to say about the situation. She was unaware that one of the dinner guests was a defense attorney until later that night when they were walking to the train station. As they were walking, the woman talked to the attorney and found out that she was a defense attorney. The woman asked the attorney what she thought about DNA evidence because she had Googled the defense attorney involved in the case on her computer and discovered that he had a private practice. She asked pointed questions about DNA evidence and if she had ever had an opportunity to represent anyone who had their DNA match a crime several years after the offense had occurred.

The defense attorney informed her that it was not appropriate to discuss the case and that she could not answer the question for her. A Manhttan Criminal Lawyer said that the juror told the attorney that all of the information was in, but that the jury had not received the charge yet. The attorney attempted to change the subject. The following Monday morning, the defense attorney who worked for Legal Aid discussed the situation with her supervisor and her supervisor contacted the defense attorney who was handling the case. It was several days later before the chain of phone calls got to the correct people. By that time, the defendant had been convicted of the crime. As soon as the defense attorney for the defendant learned of the juror’s impropriety, he filed a motion for a mistrial on the case.

Published on: June 20, 2012

Court Discusses Sex Offender Registration Act

by Stephen Bilkis

On January 21, 1996, the Sex Offender Registration Act was created by the legislative body of the New York State legal system. It provided that each offender who commits a sexually related offense, must be registered with the state as a sex offender. A New York Criminal Lawyer said the risk level that is assigned to each offender is based on that offender’s prior criminal history and the chance that the offender will commit the same or similar offence in the future.

When an offender commits a sexually related offense, they are provided with a hearing date where the facts and circumstances surrounding their most recent conviction are compared with any prior convictions. This comparison is designed to look for trends in behavior that could predict the actions of the offender in the future. Since, no one in the justice department, claims to be a fortune teller, there is no truly accurate measure of whether or not, an offender will commit an offense in the future. Bearing this in mind, the courts must look at the actions that this person has taken in the past. Courts have historically been resistant to including previous criminal activities in the measurement of current convictions. Just because a person has offended in this manner in the past does not necessarily mean that the person committed that crime on that date. A Westchester Criminal Lawyer said this contention of law is why it is not admissible for a prosecutor to discuss the offender’s predilection to commit a particular type of offense in court unless they have received prior approval from the court to do so based on a direct link to the offense that is at trial.

That is not the case when discussing the risk for recidivism of a sexually based offender in the legal system. History can show if an offender has an uncontrollable predilection to committing the offense that he is being tried for. For instance, if an offender has committed ten prior rapes, the chances that he will rape again are logically pretty good. However, if a person was convicted of rape under circumstances that were shaky at best, and it is the only offense that is in the person’s criminal history, he is less likely to commit the same or similar offense again. He is certainly less of a risk than the offender with ten like crimes prior to the conviction of his eleventh offense.

Published on: June 19, 2012

Defendant Contends Violation of Drug Reform Act

by Stephen Bilkis

The Facts:

On 21 March 2002, defendant was sentenced in Michigan to a two-year probation following his plea of guilty to attempted home invasion in the first degree under Criminal Law.

A New York Criminal Lawyer said that on 22 August 2003, defendant was charged in Bronx County with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, respectively.

Published on: June 19, 2012

Defendant Claims He Did Not Play an Active Role in Drug Transaction

by Stephen Bilkis

A team of police officers conducted a buy and bust narcotics operation. The undercover officer carried bills which had been photostatted and drove to the location where twelve people were standing near the area. The officer called out from his automobile asking if anyone had dimes. A New York Criminal Lawyer said based on records, the word dimes mean a $10.00 bag of heroin. The man then came over to the auto and asked the officer what he wanted. The officer then replied again the word dimes. Then, another man standing a few feet behind the first man asked the officer if he wanted Santa Claus. The officer being unfamiliar with the term ignored the other man. The officer again told the first man that he wanted dimes. The man asked how many and the officer replied to give him two. The man called over his shoulder the word duayduay and another man then walked to a tree about fifteen feet from the auto. He bent down, reached among the cobblestones at the base of the tree and removed some glassine envelopes. The first man told the officer to give him the money and he must give him one extra dollar. The officer gave the first man a ten, a five and five singles. The man then counted it and demanded the officer for another dollar. The officer gave him a five dollar bill and the man returned four singles. As the other man was returning to the car, another person walked over to the tree and the man yelled at him to get away. The other man then walked to the car and handed the officer the two glassine envelopes. The other man told the officer that he should get out of the area fast because it’s hot. The officer then left the area and made a transmission to his back-up team to arrest the two men. The police then recovered narcotics from the cobblestones at the base of the tree. The other man was found to have twenty dollars as recorded bills in his possession while only a single dollar bill was found on the first man.

The issue brought into the court was the argument whether the first man was an agent of the purchaser and whether the trial court’s charge on the defense of agency was damaging to the first man so as to require reversal of his conviction for criminal sale of a controlled substance in the third degree. A New York Criminal Lawyer said the court then concluded that the first man was not an agent of the purchaser but rather played an active role as seller of the contraband.

As the court admitted the question of the first man’s status in the illegal transaction was a proper question for the jury and one in which they accurately determined that the first man was a seller of drugs. Based on records, it is important to remember that when the undercover officer drove to the prearranged locale, the man was not the only individual on the street, but was part of a group of twelve men. After the undercover officer asked of the congregation if anyone had dimes, the man then voluntarily emerged from the crowd and inquired as to what the officer desired and in what quantity. The second man approached and handed the narcotics directly to the officer. A few minutes later, the first and second man was arrested at which the second man had in his possession the twenty dollars of marked money while the first man was in possession of the additional dollar.

Published on: June 18, 2012

Error Occurs in Collection of Evidence

by Stephen Bilkis

Often, questions arise in the court system that involve how to handle mistakes that happen in the justice system. Among these mistakes can be the mishandling of evidence. A New York Criminal Lawyer said that while losing evidence can be a devastating blow to a prosecution’s case, it is even more so when it in involves a sexual abuse crime. The physical evidence that is collected in a rape kit cannot be replaced if the kit is lost or mishandled. Unfortunately, it happens more often than the departments involved would like to admit. Large city departments have the biggest problem with ensuring that the chain of custody is kept pure.

In one case, that occurred on October 18, 1991, involved a rape. The victim was forced into the apartment and bedroom of an acquaintance where he pulled a gun on her. He forced her to have sexual intercourse with him. She reported the rape to the police in Queens County. The police officers transported her to Queens Hospital Center where she was examined by a doctor and a rape kit was completed. The offender was arrested on November 5, 1991 when he reported to his parole officer.

On January 2, 1992, the defense lawyer made an omnibus motion requesting the information that was recovered from the examination of the rape kit. He was advised that the rape kit evidence would be provided as soon as it was examined. On April 16, 1992,the defense team again requested an opportunity to examine the rape kit and the resulting laboratory analysis. Again, the police evidence unit stated that the results should come in shortly. The results were never given to the defense. After several failed attempts to obtain a copy of the analysis of the evidence, the police evidence unit finally admitted that the rape kit had been misplaced. They stated that after researching the whereabouts of the rape kit, it was discovered that the kit had never been submitted to the police department crime lab for analysis.

Published on: June 18, 2012

Court Determines if Unlawful Surveillnce is a Sex Crime

by Stephen Bilkis

A 55 year old man, after violating a criminal law, has been placed under the Strict and Intensive Supervision and Treatment (SIST) under a sex offender civil management proceeding. Subsequently, the State filed for a petition to revoke the respondent SIST’s placement and requested the court for the respondent to be transferred under a Secure Treatment Facility under Article 10 of the Mental Health Law. The court denied the petition.

A New York Criminal Lawyer said the respondent acknowledged that he was a drug user from 1980 up to 1993. He admitted having marijuana possession and used it during his teenage years. His addiction relating to drug crime led him to commit several offences. In 1994, the court has found him guilty of Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree for entering an apartment of a lady and while holding a knife, placed her hand on his penis. Prior to this incident, he was a known exhibitionist masturbating in public places while his penis was partially exposed to public view. He admitted that he suffered from a Mental Health Abnormality thus the State entered an agreement for him to be placed and monitored under the SIST.

On August 11, 2010, the respondent placed his cellphone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. A New York Criminal Lawyer said the victim upon its discovery threw the cell phone and scuffled with the respondent. In course of the incident, the victim suffered physical injuries. In addition to this incident, a parole officer mandated to supervise him during the program testified that the respondent violated the terms of the agreement by masturbating in a public place. The respondent admitted to masturbating inside the stall of a public restroom and a library.