Criminal Procedure

Published on: April 7, 2013

Court Discusses Legal Doctrine of Collateral Estoppel

by Stephen Bilkis

Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on January 18, 1982. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. A Bronx DWI Lawyer said that, in December 2001, the Departmental Disciplinary Committee (Committee) served respondent with a notice and statement of charges alleging 28 counts of professional misconduct against him involving seven separate legal matters. The charges alleged that respondent engaged in a pattern of misconduct including the repeated disregard of court orders and directives; misrepresentations to clients, adversaries and courts; and the repeated neglect of client matters, often resulting in default judgments. By order entered November 28, 2001, this Court appointed a Referee to hear and report on the charges. Respondent filed an answer with affirmative defenses in January 2002.

A New York Criminal Lawyer said that, prior to the hearing, the Committee made a motion before the Referee requesting that the doctrine of collateral estoppel be applied to find respondent guilty of 11 of the 28 counts charged, based upon the findings and decisions issued by four courts. Respondent opposed the motion, and by decision dated November 1, 2002, the Referee granted the collateral estoppel motion on six of the 11 counts requested. Following 23 days of liability hearings on the remaining counts, the Referee issued a February 18, 2003 report sustaining 12 other counts and dismissing 13 counts. Three days of sanction hearings were held, with the Committee recommending disbarment and respondent, citing various mitigating factors, arguing for a public censure. In a final report dated May 5, 2003, the Referee recommended a five-year suspension. A Hearing Panel was convened, and it heard oral argument and accepted written submissions from both parties. In a written determination dated March 2, 2004, the Hearing Panel affirmed the Referee’s findings of fact and conclusions of law, except as to count 3, which it disaffirmed, and it further affirmed the Referee’s recommended sanction of a five-year suspension.

A Brooklyn Criminal Lawyer said that, the Committee now moves for an order pursuant to 22 NYCRR 603.4 (d), confirming the Referee’s findings of fact and conclusions of law, as modified by the Hearing Panel’s recommendation, and imposing a sanction suspending respondent from the practice of law for a period not less than five years. A review of the five matters in which charges were sustained follows.

Published on: April 6, 2013

Defendants Claim Faulty Search Warrant

by Stephen Bilkis

On September 25, 2003, the Associate Village Justice of this Court signed a search warrant directed to “any police officer of the County of Nassau.” A New York Criminal Lawyer said the search warrant provided: “Proof, by affidavit, having been this day made before me by Senior Building Inspector, Village of Westbury, Public Works, Village of Westbury and Department of Public Works, Village of Westbury that there is probable cause for the issuance of the search warrant, as set forth in the affidavit and Exhibits attached hereto and made a part hereof as if fully set forth herein; you are therefore, commanded to make a search with Senior Building 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 designated and described as 335 Princeton Street, Westbury, New York. “The seizure of the foregoing evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises. This warrant must be executed within 10 days of the date of signing and a return to court 10 days thereafter. “If you find the same or any part thereof you are hereby directed to return and deliver said evidence to the undersigned Justice of the Village Court without unnecessary delay.”

A Bronx Criminal Lawyer said that, the Senior Building Inspector submitted what may be described as an exhaustive affidavit in support of the application. This Court wonders why, in view of the thoroughness of this affidavit and the apparent pre-warrant investigation, that a search and search warrant were needed at all unless the Village is simply trying to test the legal waters in this case to determine whether they may have another tool at their disposal, namely search warrants, that they may use to enforce the Village’s zoning and building code laws. The application for and the execution of a search warrant may in themselves deter the proliferation of illegal housing. The execution of a search warrant is an extremely frightening event for those subject to it. The court questions the need for this warrant because there is no legal requirement that a warrant be obtained in order to take photos of the outside of the premises from a public thoroughfare in front of the home. However, this Court finds that the Village has acted in good faith attempting; for example, to obtain the homeowner’s consent for the search prior to seeking the warrant and no doubt believing that similar actions have been approved and utilized in other villages without challenge.

A Bronx Criminal Lawyer said that, the subject property, 335 Princeton Street, is a two story house within the Incorporated Village of Westbury, New York. As shown on the records of the Department of Buildings of the Village of Westbury it is located on a quiet residential block consisting of one (1) family homes neatly maintained on a tree lined block.

Published on: April 5, 2013

Defendant Contends Breathalyzer Test was Impropr

by Stephen Bilkis

On May 6, 1995 at approximately 1:30 AM, a police officer was assigned to a so called DWI checkpoint in Queens County. A New York Criminal Lawyer said that pursuant to the procedures established for this checkpoint, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to an alcohol-sensor field sobriety test. At about 1:30 AM, the accused man entered the checkpoint area and in response to the officer’s question indicated that he had been drinking. At this time, the accused exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The accused agreed to submit to an alcohol-sensor test and the results indicated a blood alcohol content of 0.15 of one percent. This test was re-administered to the accused approximately nine minutes later with identical results and he was then arrested and taken to the 114th Precinct where pedigree information in connection with the arrest was taken. While en route to the precinct, the accused asked the officer what was going to happen. The officer told the accused man that he would be given a breathalyzer test and that if his blood alcohol content registered 0.06 of one percent or less, that he would be released; that if he refused to submit to the breathalyzer test that his license would be revoked; that if he took the breathalyzer test and his blood alcohol content registered 0.10 of one percent or greater, that his license would be suspended. A similar exchange of information between the officer and the accused man took place at approximately 4:15 AM, immediately before the accused man took the breathalyzer test. Thereafter, the accused was transported to the Intoxicated Driver Testing Unit at the precinct. It was here that the officer advised the accused of his Miranda rights prior to questioning him from the IDTU questionnaire. Each and every Miranda warning was given and acknowledged by the accused who voluntarily agreed to answer questions.

A Manhattan Criminal Lawyer said that at some point after the IDTU questionnaire was completed by the officer, the accused was asked if he would submit to a breathalyzer test. Once again, the three alternatives described above were stated to the accused by the officer. The accused, without any apparent hesitation or protest, took the breathalyzer test at 4:15 AM. The results showed 0.09 of 1% of alcohol in the blood. The complainant concedes that the breathalyzer examination was administered more than two hours from the accused man’s arrest. The complainant concedes that notice of this statement was never provided to the defense counsel pursuant to CPL (Criminal Procedure Law).

Accordingly, the stop of the accused was proper. The officer request that the accused submit to an alcohol-sensor test was proper in view of the accused man’s response to the officer’s preliminary inquiry. The alcohol-sensor results provided probable cause to arrest the accused man of DWI.

Published on: April 4, 2013

Defendants Contend Possession of Firearms Charge

by Stephen Bilkis

Case Contentions

A New York Criminal Lawyer said two of the defendants in this case were convicted for conspiracy and attempt to possess with the intent to distribute marijuana and cocaine and knowing possession of several fire arms in conjunction with drug trafficking offenses. One of the defendants was sentenced to 438 months and the other to 468 months of imprisonment. Both defendants are appealing their convictions.

Each of the defendants contend that count four of the indictment that charged the knowing possession of firearms in furthering a drug trafficking crime was not properly presented to the jury and if it was presented to the jury properly the instructions that were provided to the jury in regard to that charge were in error. One of the defendant’s also contests that the evidence in the case against him was not sufficient, the district court failed to give the jury appropriate instructions, and that his 438 months sentence was erroneous.

Published on: April 3, 2013

Defendant Charged with Drug Possession in Reverse Sting Operation

by Stephen Bilkis

Case Contentions

Two of the defendants in this case were convicted for conspiracy and attempt to possess with the intent to distribute marijuana and cocaine and knowing possession of several fire arms in conjunction with drug trafficking offenses. A New York Criminal Lawyer said one of the defendants was sentenced to 438 months and the other to 468 months of imprisonment. Both defendants are appealing their convictions.

Each of the defendants contend that count four of the indictment that charged the knowing possession of firearms in furthering a drug trafficking crime was not properly presented to the jury and if it was presented to the jury properly the instructions that were provided to the jury in regard to that charge were in error. One of the defendant’s also contests that the evidence in the case against him was not sufficient, the district court failed to give the jury appropriate instructions, and that his 438 months sentence was erroneous.

Published on: April 2, 2013

Defendant Claims There was Insufficient Evidence for Grand Jury Indictment

by Stephen Bilkis

The Facts of the Case:

On 6 November 1992, at approximately 3:13 a.m., two (2) Department of Public Safety Officers at a University observed defendant carrying a dormitory lounge chair on his head as he crossed a bridge on the campus. A New York Criminal Lawyer said that upon being stopped, defendant informed the officers that he had obtained the chair in a Hall, a residence located on the North Campus, and was taking it to the West Campus as a prank, but defendant declined to confirm whether he was a student. He stated that he had no identification on his person and, despite repeated requests he refused to identify himself in any manner. Thereafter, he was informed that he would be referred to the University Judicial Administrator if he was a student, and that if he was not a student, he would be charged with petit larceny in City Court. After approximately 10 minutes of fruitless inquiries, one of the officers expressed impatience with defendant’s uncooperative behavior, at which point defendant stated that he did have identification after all, and began reaching into his pocket. One of the officers stated that he would remove the identification from defendant’s pocket himself and ordered defendant to turn and face the police car. When the officer reached for defendant’s pocket, defendant slapped his hands away. Informed that he was under arrest, defendant bolted from the officers and ran toward the gorge under the bridge. He was pursued by the other officer who caught him by the ankle as he lay on his back on the steep slope. Defendant demanded to be let go, but the officer refused. Defendant then rolled over and dragged her down the side of the gorge until she hit a concrete abutment and smashed her face and broke her teeth. Defendant ultimately escaped.

Consequently, defendant was indicted in the County Court on four counts: three misdemeanors, petit larceny, criminal possession of stolen property in the fifth degree, resisting arrest, and one felony, assault in the second degree. A Brooklyn Criminal Lawyer said the defendant then filed a motion to dismiss the indictment in its entirety which was granted by the court. However, on appeal the Appellate Division reversed the decision, holding that the evidence was sufficient for the Grand Jury to indict on the larceny and possession of stolen property counts, as defendant’s larcenous intent could be inferred from the circumstances and his admissions; and that the evidence before the Grand Jury was sufficient to sustain the charge of resisting arrest, and defendant’s intentional acts in preventing his arrest constituted sufficient evidence of the crime of assault. An appeal thereafter followed.

Published on: April 1, 2013

Court Discusses Excessive Fines Clause in DUI Case

by Stephen Bilkis

On February 20, 1999, respondent Police Commissioner announced that the City would apply the Property Clerk Forfeiture Law (Administrative Code of City of NY § 14-140) to vehicles operated by individuals arrested for driving while intoxicated (DWI). At 10:30 P.M. on February 21, 1999, police stopped and arrested petitioner for DWI. A New York Criminal Lawyer said that, the arresting officer concluded that petitioner was intoxicated based on the strong smell of alcohol, watery and bloodshot eyes, and coordination tests. A breathalyzer test indicated .11% blood alcohol content, over the .10% intoxication threshold. Officers took petitioner’s 1988 Acura for forfeiture. By letter of February 26, 1999, petitioner’s attorneys demanded its return.

A Bronx Criminal Lawyer said that, by order to show cause and petition dated March 9, 1999, petitioner commenced this proceeding. Petitioner seeks a final judgment invalidating the City’s policy and the taking and retention of his car. On March 19, 1999, Property Clerk commenced a separate action against petitioner for a judgment declaring the vehicle forfeited as the instrumentality of the crime of driving while intoxicated. The criminal action is pending.

A Bronx DWI Lawyer said that, petitioner challenges the City policy as statutorily unauthorized and preempted by State law. Petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough.

Published on: March 31, 2013

Court Decides Legality of DUI Checkpoint

by Stephen Bilkis

Police officers were given instructions by their sergeant to set up a DWI checkpoint on June 10, 1993 at the corner of 20th Street and Avenue C in Manhattan. At that checkpoint, all passing cars were stopped by the police officer manning the checkpoint. Depending on his observations of the driver of the car stopped at the checkpoint, the police officer would ask the driver to pull over to the side of the road so that the driver can be further questioned by the police.

When the defendant driver came up to the checkpoint, a police officer asked him to stop and to roll down his window. The police officer smelled alcohol on the breath of the driver as soon as he rolled down his window. A New York Criminal Lawyer said the police officer asked the driver to pull over to the side of the road. He then asked the man to exit his vehicle. The accused driver then admitted to the police officer that he had been drinking. The police officer then administered the alcohol breathalyzer test on the accused driver and his blood alcohol level registered at .14. When the results of the breathalyzer test came out, the police officer then arrested the man.

At his arraignment, the driver asked for a hearing to determine whether the police officers had probable cause to stop his vehicle; whether or not the checkpoint was not arbitrary; and whether or not the oral admission made by the accused and the breath test result should be suppressed.

Published on: March 30, 2013

Assault Charges Arise from Terrible Taxi Accident

by Stephen Bilkis

Defendant is charged with one count of Criminally Negligent Homicide, three counts of Assault in the Second Degree and two counts of Offering a False Instrument for Filing in the First Degree. The charges arise from an accident in a taxicab driven by the Defendant on West Street in the vicinity of West Houston Street in Manhattan in 2006. In the accident, one of the passengers in Defendant’s taxi, either exited or was ejected from the cab and was then struck and killed by a second taxi. Three other passengers in the taxi suffered significant injuries while still in the cab when the vehicle struck a building.

A New York Criminal Lawyer said that, the People allege that the accident was caused by a seizure the Defendant suffered. It is also alleged that the Defendant had a history of seizures and fraudulently failed to disclose this information in applications for a taxi license he filed. Based on this seizure history, his alleged deception in obtaining his taxi license, the fact that he had stopped taking seizure medications at the time of the accident and the fact that a seizure allegedly caused the accident, the People allege that the Defendant caused the passenger’s death with criminal negligence. Criminally Negligent Homicide is a Class E non-violent felony punishable by a maximum indeterminate sentence for a first felony offender, like Defendant here, of 1 1/3 to 4 years in state prison. A Bronx Criminal Lawyer said that, defendant is also charged with three counts of Assault in the Second Degree, a Class D violent felony, for each of the three injured victims who were present in the taxi. Defendant contends that he did not, in fact, suffer a seizure at the time of the accident. He will also apparently contend at trial that he did not, in any respect, act with criminal negligence during the accident and thus cannot be held criminally responsible for the death or injuries which occurred.

A Bronx Defense Lawyer said that, defendant moves to dismiss the three counts of Assault in the Second Degree which are charged in the indictment. The Defendant acknowledges that he would not likely be entitled to dismiss before trial charges which alleged that the Defendant had committed the crime of Assault in the Third Degree with respect to the three injured victims pursuant to Penal Law § 120.00 (3), a Class A misdemeanor, on the facts alleged here. That statute provides that a defendant is guilty of this crime when “with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument”.

Published on: March 29, 2013

Defendant Argues Constructive Possession Charge

by Stephen Bilkis

The defendant is appealing a verdict of guilty to possession of cocaine and possession of marijuana in the amount of less than 20 grams. The defendant was sentenced to 22 months in prison on the cocaine charge and for a year in the county jail on the marijuana charge. She argues on appeal that the state failed to prove that she constructively possessed the marijuana.

Case Background

The defendant was originally charged with possession of cocaine with intent to sell or deliver and possession of marijuana in an amount less than 20 grams. During the trial an officer testified that she made a traffic stop of the car that the defendant was driving. The car contained the defendant and two others. When the car was stopped the male got out of the car and ran and was not apprehended. The officer called for backup.