Criminal Procedure

Published on: June 17, 2012

Defendant Claims Evidence was Illegally Obtained

by Stephen Bilkis

A police officer, a nine-year veteran of the NYPD who has made 500 narcotics-related arrests, investigates drug sales in lower Manhattan. On February 28, 2010, the police officer, together with his detective partner entered the New York City Housing Authority (NYCHA) building in Manhattan to conduct a “vertical” –a floor-by-floor patrol of the premises in order to search for loiterers, drug users, people consuming alcohol and trespassers.

A New York Criminal Lawyer said the Officer testified that, in housing projects, officers may question anyone they encounter to determine whether they are on premises lawfully. Sometimes, at his discretion, he requires residents to provide identification or a key and must prove that they are not trespassers. Likewise, persons claiming to be legitimate visitors must also supply corroboration.

A New York Criminal Lawyer said the police officer testified that he entered the premises at around 6:30 p.m. and observed defendant standing alone in the lobby. Thereafter, he approached the defendant and asked whether he resided in the building. Defendant replied that he was visiting a friend. When defendant did not supply a name and apartment number, the police officer arrested him for trespassing on NYCA premises. The detective searched the defendant and recovered 29 ziplock bags of cocaine from his waistband. The police officer performed a search and found $284 on defendant’s person. Thereafter, defendant was charged with criminal cocaine possession and trespassing.

Published on: June 17, 2012

Defendant Takes Issue of Reclassification of Drug Offense to a Felony

by Stephen Bilkis

A man was charged in an indictment of two counts of criminal heroin possession and sale. The first count was due to drug possession and sale committed on October 19, 1973 and the second count was due to heroin possession and sale committed on October 23, 1973.

On September 1, 1973, the legislature of New York passed a law which classified criminal heroin possession and sale as a A-III felony. Being classified as A-III felony, a conviction would be punishable with an indeterminate prison sentence of a minimum of one to eight years (for first time offenders) and a maximum of life imprisonment.

A New York Criminal Lawyer said the accused here seeks a dismissal of the information and the indictment against him on the grounds that the indictment for criminal heroin sale and possession violates his rights to due process, equal protection, and the right against cruel and unusual punishment.

Published on: June 16, 2012

Rape Defendant Takes Issue With Evidence

by Stephen Bilkis

In January 20, 2002, a woman was living in with her fiancé who was then thirty-nine years old. The woman’s mother and 13 year old sister came over to visit them and they stayed in the same house that the woman shared with her fiancé.

A New York Criminal Lawyer said that while the 13-year old sister was visiting, the fiancé assaulted the 13 year old. He committed sodomy by inserting his male organ into the young child’s anus. The man was charged with sodomy, sexual abuse and endangering the welfare of a child, and other Sex Crimes. He was found guilty by a jury and the trial court sentenced him to a prison term of two to six years.

After he was convicted and sentenced, the man moved to set aside the jury verdict. He claims that his right to a fair trial was violated when the panty of the 13 year old was admitted into evidence even if the panty was recovered by the police thirty-seven days after the date of the commission of the offense. He claims that the panty should not have been admitted into evidence as it was not shown clearly by the prosecution that it had not been contaminated when it stayed in the clothes hamper in the apartment of the child’s sister for thirty-seven days where it could have been wet or degraded. He also claims that the lawyer who defended him was ineffective. A Nassau County Criminal Lawyer said that the claims that his lawyer failed to cross-examine the forensic scientists and experts presented by the prosecution. He claims that his counsel failed to present experts to rebut the claims of the experts presented by the prosecution. He further claims that his conviction should be vacated because the prosecution hid evidence that would have exculpated him.

Published on: June 16, 2012

Sex Crime Includes Sex With a Minor

by Stephen Bilkis

A man was convicted of criminal cocaine sale; and criminal marijuana sale when he sold cocaine and marijuana to an undercover police officer at nine different times and at nine different places.

A New York Criminal Lawyer said because of the sales of controlled substances to undercover police officers, the police had enough bases for a search warrant. When they searched the man’s apartment they found cocaine there. The man pleaded guilty to criminal sale and was sentenced to a prison term of 7 ½ to 15 years. After his conviction and pending his sentencing, the man was still out on bail. He undertook before the Court to appear whenever his presence was required and he also undertook not to be arrested on new charges.

During the time of his conditional release, the man had sex with a thirteen year old girl who was his neighbor’s daughter. He had sex with her in his apartment five different times. The thirteen year old girl got pregnant and the man moved to a different apartment in another building.

Published on: June 15, 2012

Defendant Contends Improper Use of Predatory Rape Statute

by Stephen Bilkis

The Facts:

On 2 May 2011, defendant forcibly compelled complaining witness-one to perform oral sex upon him and then forcibly subjected her to anal intercourse.

On 14 May 2011, defendant forcibly touched the breasts of complaining witness-two with his hands and mouth, forcibly compelled her to perform oral sex upon him and then forcibly subjected her to vaginal intercourse.

Published on: June 2, 2012

Sex Crime Defendant Appeals for Technical Legal Issues

by Stephen Bilkis

The Facts:

On 2 May 2011, defendant forcibly compelled complaining witness-one to perform oral sex upon him and then forcibly subjected her to anal intercourse.

On 14 May 2011, defendant forcibly touched the breasts of complaining witness-two with his hands and mouth, forcibly compelled her to perform oral sex upon him and then forcibly subjected her to vaginal intercourse.

Published on: June 1, 2012

Defendant Charged with Sexual Abuse of Minor

by Stephen Bilkis

In January 20, 2002, a woman was living in with her fiancé who was then thirty-nine years old. The woman’s mother and 13 year old sister came over to visit them and they stayed in the same house that the woman shared with her fiancé.

A New York Criminal Lawyer said that while the 13-year old sister was visiting, the fiancé assaulted the 13 year old. He committed sodomy by inserting his male organ into the young child’s anus (rape). The man was charged with sodomy, sexual abuse and endangering the welfare of a child. He was found guilty by a jury and the trial court sentenced him to a prison term of two to six years.

After he was convicted and sentenced, the man moved to set aside the jury verdict. He claims that his right to a fair trial was violated when the panty of the 13 year old was admitted into evidence even if the panty was recovered by the police thirty-seven days after the date of the commission of the offense. He claims that the panty should not have been admitted into evidence as it was not shown clearly by the prosecution that it had not been contaminated when it stayed in the clothes hamper in the apartment of the child’s sister for thirty-seven days where it could have been wet or degraded. A Long Island Criminal Lawyer said he also claims that the lawyer who defended him was ineffective. He claims that his lawyer failed to cross-examine the forensic scientists and experts presented by the prosecution. He claims that his counsel failed to present experts to rebut the claims of the experts presented by the prosecution. He further claims that his conviction should be vacated because the prosecution hid evidence that would have exculpated him.

Published on: June 1, 2012

Plaintiff Sues Employer for Sexual Offenses

by Stephen Bilkis

The complainants filed an action that alleges forty-six allegations of fact in support of three causes of action. Their first two causes of action claims include sexual assault by the creation of a hostile work environment and the constructive discharge. The third cause of action is for intentional infliction of emotional distress. A New York Criminal Lawyer said all of the complainants seek for a decision without trial on liability on the entire complaint.

The complaint alleges that the complainants were working at the clinic when they discovered that the doctor had installed and used a hidden camera in the only working restroom.

Consequently, a New York Criminal Lawyer said one of the complainant’s asserts thirty-eight allegations of fact in support of five causes of action. The first two causes of action claim consist of sexual assault by the creation of a hostile work environment, for intentional discrimination and constructive discharge. The third cause of action is for violation of the right to privacy. The fourth cause of action is for intentional infliction of emotional distress. The fifth is for tort. The said complainant seeks to have decision without trial on liability on the first, second and fourth reasons of action. She asserts that she was a medical office clerk at the clinic and at some point the doctor placed an air purifier containing a hidden surveillance camera in the employee’s bathroom positioned five feet away from and at the same height of the toilet seat. She further states that she used the bathroom at least twice a day. When she discovered the unlawful surveillance equipment and the placement of the monitor in the doctor’s office, she resigned.

Published on: May 31, 2012

Court Discusses Hearsay in Establishing Criminal History

by Stephen Bilkis

On this proceeding, the court argues on the matter that in what extent can a psychiatrist rely on out-of-court materials, such as pre-sentence reports and department of parole records, in compiling a history of sex offenses committed by a man in order to formulate a psychiatric opinion and whether the man has a mental abnormality as that term is defined in the law.

A man was convicted of attempted rape in the first degree of a 13-year-old victim. The decision of the offense is considered established and may not be arguable. The records from the proceeding are acceptable at trial. In addition, the man’s criminal history includes a number of additional convictions. Previously, the man was convicted with rape in the third degree were the victim was a 15 years old. The underlying facts supported by court felony complaint sworn under oath by victim, grand jury decision, presentence report and certificate of conviction. The man was also convicted with rape and sodomy in the first degree when he engaged in forcible sexual intercourse with his 12-year-old daughter. Moreover, the man was convicted with impairing the morals of a minor when he allegedly fondled the 11-year-old victim. Lastly, the man also convicted with attempted assault when he allegedly fondled the eight-year-old victim.

At trial, the complainant presents the testimony of a licensed social worker who compiled the documents settling forth the man’s criminal history. The woman’s testimony established that she collated the documents from various sources and compiled a report used by the office of mental health colleagues in the proceedings. Afterward, the testimony of the complainant’s expert psychiatrist established that he relied upon the same documents, as well as his interview with the man, in formulating his expert opinion.

Published on: May 31, 2012

Defendant Contends Penal Law Unconstitutional

by Stephen Bilkis

The complainants, a prostitute and a patron seek a judgment declaring sections of the Penal Law unconstitutional. The laws prohibit prostitution and patronizing a prostitute.

A New York Criminal Lawyer said the action was commenced and the opponents, the City Mayor and the City Police Commissioner moved to dismiss on the ground that the prostitute and the patron lacked standing. Another opponent, the County District Attorney moved to dismiss on the same ground and also that the complaint failed to state a cause of action. The complaint was dismissed for failure to state a cause of action with leave to re-plead. The complainants filed an amended complaint and all the opponents moved to dismiss on the same grounds alleged by the District Attorney after the first complaint was filed. The complainants filed a cross motion for summary judgment. Before deciding the motions, the Court determined whether any of the prior rulings are LAW OF THE CASE.

The Law of the Case doctrine is a kind of intro-action res judicata or matter that was already settled and cannot be raised again. Within the framework of a single action, it prevents re-litigation of a point already adjudicated in it.