Criminal Procedure

Published on: April 30, 2012

Court Discusses Plain View Doctrine

by Stephen Bilkis

Computers are playing an ever increasing role in crime and criminal activity. In some cases, case law is still in a state of flux in determining how certain searches are affected by this technology. A New York Criminal Lawyer said the question of novel issues in court are more common because of this. In one such case, the question was raised of whether a warrant authorizing a search of text files that are on a computer for documentary evidence pertaining to one particular crime, authorizes a search of image files on the same computer that contain evidence of a different crime. In cases like this, the question of law relates to the plain view doctrine.

The plain view doctrine states that anything that an officer can see in plain view while he or she is legally in a location, can be seized without a warrant. The suspect can then be charged with whatever crime the item suggests they are involved in. There are many cases that have established the case law referring to the plain view doctrine. Recently, the plain view doctrine has taken on an entirely different arena. The plain view doctrine can now be applied to computer files that are opened pursuant to a search of the computer. In other words, in the old days, the plain view doctrine applied to anything that an officer could see that was physically in plain view. For instance, a New York Criminal Lawyer said if the officer was inside a house relative to a domestic violence call, and observed a marijuana plant growing in the room, he could seize it and charge the person with possession of marijuana. The reason that he could seize it without a warrant is that he was inside the house legally handling a call for service and observed the plant in plain view. Now, most of us do not think about the files in a computer being in plain view, but if you think about them in the following fashion, it can be understood.

If an officer is searching a file cabinet located in a home for child pornography, under a search warrant that entitles him to look for evidence of the crime of child pornography, he is looking through the file cabinet legally. If he then sees a file that references drug crime, he can seize that file and make the appropriate charges, because he was legally in the file cabinet under the search warrant when he observed the additional file in plain view.

Published on: April 29, 2012

Police Officer Killed During Burglary

by Stephen Bilkis

A woman and her partner went into a boutique where they obtained a talked with the owner. While the woman went through the process of trying on several dresses that none of which were purchased, the woman’s partner asked directions going to the bathroom which was located to the rear of the store and which he carefully surveyed for the purpose of accomplishing the upcoming burglary. Three days later at about 2:15 a.m., the woman together with her partner pulled into the rear alleyway behind the boutique and stopped the car with the car trunk facing the rear bathroom window. On the evening before, the man which was the woman’s partner had purchased an ankle holster for a gun he owned. Consequently, while the woman acted as a lookout, the man entered the boutique by the bathroom window and he then brought numerous articles of women’s clothing, including 240 ladies’ blouses, 16 pantsuits and 16 ladies’ coats, into the bathroom and gave these articles to woman through the bathroom window. The woman then placed the articles in the trunk of the car. At that moment, an officer accompanied by another officer, who was on routine patrol duty saw the car in the alley and spotted the open bathroom window to the boutique. The officer’s promptly called for assistance. The officer’s also saw the woman hiding behind the car. The questioning by the officers took from one to three minutes and was limited to inquiry of what she was doing, however no arrest was then made.

A New York Criminal Lawyer said apparently, an officer who had just arrived because of the radio call went to the street to cover the front of the store. Simultaneously, the man broke out the front of the store. The officer, who had not drawn his gun, attempted to stop the man but at that point the man attempted to escape the scene and later shot the officer. The officer then died from the wound inflicted by the man.

The woman now contends that there should be a reversal in the conviction that the court made a mistake in refusing to charge the jury as requested by the woman. An NY Criminal Lawyer said the court stated that they found no error or deficiency in the court’s main charge or its refusal to adopt the specific requests to charge. The woman willingly and voluntarily involved herself, and indeed fully participated in a burglary and by doing that she necessarily accepted all the consequences of the felony murder committed either during the course of the burglary or during the man’s immediate flight from the burglary. Based on records, it cannot be reasonably argued that the officer’s momentary intervention as the man was exiting the boutique and fleeing from the burglary, terminated either the burglary or the man’s immediate flight there from. In previous cases, a unanimous court upheld the felony murder conviction upon facts significantly similar and really identical with the woman’s case.

Published on: April 28, 2012

Court Discusses Reliability of Field Sobriety Tests

by Stephen Bilkis

When a person gets behind the wheel of a car, they are getting behind the wheel of a machine that is heavy enough to kill another person. It is a weapon when used offensively against another. When a person has already proven that they are incapable of using good enough judgment to continue to possess a driver’s license, is found to be driving a vehicle while under the influence, the crime is especially heinous.

However, justice has many steps for a reason. A New York DWI Lawyer said our justice system is an adversarial justice system. The adversarial nature is in place to prevent the mistakes that human beings make. The appeal process is not in place to provide a sounding board for every criminal. A New York DWI Lawyer said there must be a constitutional ground that makes the case worth reviewing once it is past the Superior court level. In one case that involved a habitual violator with a revoked license, a police officer pulled up behind a car that was parked on the side of the road. When the officer approached the vehicle, he noticed that the subject had a strong odor of alcohol about his person and that his eyes were bloodshot and glassy. His speech was slurred and the subject was unsteady on his feet.

Field Sobriety Tests are notoriously questionable. A Nassau County DWI Lawyer said that they are designed for failure, so it is rarely a surprise when a person who has been asked to participate in these tests, does not pass them. In this case, the subject failed two of the three tests, but it is not clear which ones or what the criteria was for the officer to consider the test to be a failure. The defendant maintained that his arrest was illegal because the officer did not see him driving and could not make a determination that his driving was impaired.

Published on: April 28, 2012

Burglary Leads to Death of Police Officer

by Stephen Bilkis

Defendant was convicted of murder in the second degree, burglary in the second degree, grand larceny in the second degree, possession of burglar’s tools, possession of a weapon in the third degree and unlawful possession of noxious materials.

A New York Criminal Lawyer said that the crime started out as a simple burglary but led to the death of a police officer.

The facts dictate that a police car pulled into an alleyway and a police officer shone a flashlight at defendant. She then got up and walked over to the police officer who asked her what she was doing there. She replied that she was looking for her cat. The police then asked for some identification and she presented an address book, but her name was not in it.

Published on: April 28, 2012

Court Rules on Murder Case

by Stephen Bilkis

On 23 March 1975 at about two o’clock in the morning, a murder occurred. It was witnessed solely by a nonparticipant to the crime which led to the defendant’s arrest.

A New York Criminal Lawyer said the eyewitness had planned to arise at 2:00 A.M. of 23 March 1975 and set her alarm clock accordingly. Just before the alarm went off, she heard a noise that sounded like a fire cracker. She got up looked what it was. Thus, she turned off her alarm and walked to her front door. There, she then noticed that an automobile was parked right outside her house, on the north side of the street, facing west. Illumination was provided by a mercury vapor overhead streetlight. The car was parked under the light. The eyewitness viewed the killing from about 80 feet away.

The eyewitness saw the defendant fire a gun three times and run very quickly east on Park Avenue. A few minutes later, after she had dressed, she went out and saw the victim lying dead in the street. She notified the police immediately.

Published on: April 28, 2012

Court Hears Motion to Supress Evidence in Gun Crime

by Stephen Bilkis

An appeal was filed by a man from a judgment convicting him of criminal possession of a weapon as a felony upon a jury verdict and from a judgment of the same court upon his plea of guilty to violation of probation. The appeal also brings up for review the denial of the man’s motion to suppress certain evidence.

A New York Criminal Lawyer said the incident happened at about 11:30 p.m. when a detective was sitting in plain clothes in a parked car observing a bar and an officer was with him. Both of them observed a car with three black males passing by the bar at 5 m.p.h. The car stopped for about 1 to 2 seconds and the three men in the car turned their heads towards the bar. The car then continued down the street at 5–10 m.p.h. After making their observations, the police followed the car. Thereafter, the car stopped at a corner in deference to a stop sign and all three heads again turned to observe a bar near the corner. In half-way down the next block, the officers pulled the car over. As they were stopping, the detective observed that one of the man inside the car bend over in the front seat. The driver came out from the car and stated that he did not have the registration or his license because he had forgotten his wallet. The two other males were also unable to produce identification. The latter two were then asked to get out of the car. The officer began questioning the other man who he observed that the hands were in his pockets. When the officer instructed the man to remove his hands from his pocket, the officer observed a bulge in his right side pants’ pocket. The officer conducted a pat down and the bulge felt like steel. The officer believed that the item was a blade, but when the man removed it from his pocket, it revealed that it was a clip with five .25 caliber bullets. The officer told his co-officer that there was probably gun around. The other officer quickly search for it and found it under the front seat.

The officer was aware when he stopped the car that there had been two gas station stick-ups and several office break-ins in the vicinity. The officer stated that when he observed the behavior of the car and its occupants as it drove by, he felt that a crime was about to be committed. A New York Criminal Lawyer said that on cross-examination the officer stated that he could tell all three looked towards the bar as they drove past it, by observing the backs of their heads. When the gun was found, all three were arrested.

Published on: April 28, 2012

Statements Made by Defendant Used Against Him at Trial

by Stephen Bilkis

The accused was arrested while driving his car a short distance from the scene of a possession of a weapon crime. After his arrest, the accused made certain statements to police which were used against him at trial. According to the statements, the accused had previously made the acquaintance of an individual and had agreed with the individual to drive two of the individual’s friends to a location where one of them was seeking a job. According to the statements, the accused drove the individual and his two friends to a house in Merrick. There the accused dropped off the individual’s friends. The accused consistently denied any knowledge that the individual and his friends intended to commit a robbery at the location to which he had driven them. However, the accused did state to the police that he had observed that there was a criminal possession of a weapon by one of the men during the drive from Queens to Merrick.

The accused man’s own testimony at trial, as well as the testimony of the individual and his friend largely confirmed the content of the accused man’s post-arrest statement to the police. The accused testified that he had met the individual’s friends on July 18, and had driven them to a friend’s house the following evening. The following morning, he agreed to drive the three men to the house in Merrick. He dropped the three men off at that location, but then the individual returned to the car, informing him that his friends were about to rob the people in the house. A New York Criminal Lawyer said the accused testified, consistent with his post-arrest statements that he had not known that a robbery had been planned. However, his testimony was inconsistent with his prior statements to the extent that he testified that he had never told a police officer that he had seen a gun in the car during the trip from Queens.

The individual testified that he had requested that the accused drive him and his two friends to Merrick. According to the individual, no one said anything to the accused concerning the true reason for the trip. The individual testified that after he and the other two men had gotten out of the car upon their arrival in Merrick, he noticed one of his friends take out a gun, at which point he returned to the accused man’s car, informed him of the robbery which was about to occur, and urged the accused to drive away. The individual insisted that the accused knew nothing about the robbery prior to it being committed.

Published on: April 28, 2012

Defendant Moves for Supression of Evidence

by Stephen Bilkis

On March 30, 1985 at approximately 10:00 P.M., the accused and his accomplice entered a supermarket in Island Park and accosted the manager who was in the process of closing the store. A New York Criminal Lawyer said the accused pointed a loaded pistol at the manager, cocked it and told him not to move, give the keys to the safe otherwise his head would be blown out. The two men forced the manager into the office where the safe was located. The accused heard footsteps so he gave the gun to his accomplice and left the accomplice to guard the manager while he investigated the footsteps he heard. On leaving the office, he observed the manager’s wife who had been in the store with her husband. The accused grabbed her and was pushing her toward the office when a loud shot was heard. The accomplice came running out of the office and told the accused that he had shot the manager accidentally, when the gun went off as the manager tried to free himself from a headlock. The accomplice took the keys from the manager’s body and they forced the wife to the rear of the store where they attempted to unlock the doors. Unable to find keys to all the locks they attempted to break them with a bolt cutter and some other tools they found in the store. At this point the night porter, who, unbeknownst to the accused and his accomplice, had been sleeping upstairs, came down and observed them trying to escape. He recognized the accomplice as a former employee of the store and he assumed that they had been accidentally locked in. He advised them that they would have to call a manager to unlock the doors. As the night porter, the accused and the accomplice began walking toward the front of the store, the night porter saw blood and part of the manager’s body through the office door and he realized what had occurred. The accomplice drew a gun and told the night porter that if he said anything they would be back to kill him. The accused threw a shopping cart through the plate glass windows in the front of the supermarket. As the accused and his accomplice ran through the parking lot, they were observed by a cashier who worked in the store. Although she did not recognize the accused, she was able to identify the accomplice.

By talking with the night porter and the cashier, the police learned that the accomplice was one of the perpetrators. They also learned from another store employee that just before closing time, the accomplice was seen in the store talking to his cousin who worked at the supermarket. A New York Criminal Lawyer said the police interviewed the employee who initially stated that he had not seen his cousin since the early afternoon just before he left for work. Eventually he admitted that he had seen the accomplice and the accused after the incident when at their request he had driven them to a motel in Queens. Armed with this information and the assistance of the accused man’s brother-in-law, who was a New York City police officer, the police were able to arrest the accused and his accomplice less than 24 hours after the gun crime.

After their arrest, both the accused and his accomplice agreed to give statements to the police. The accused admitted that it was his idea to rob the supermarket and he described how he enlisted his accomplice’s aid. He also alleged that the supermarket employee had agreed to assist them in the plan by advising them when the store was about to close. He stated that the supermarket employee also consented to meet them after the robbery and hide the gun and any proceeds of the criminal act. A New York Sex Crimes Lawyer said he went on to describe how he and the accomplice attempted to commit the robbery and the resulting death of the manager. The accomplice gave a confession, fully implicating himself in the crime, which was remarkably similar to the accused man’s confession. The police then interviewed again the supermarket employee and he gave a second written statement in which he claimed that he knew that the accused and the accomplice were going to rob the store. He admitted that prior to the robbery he told them that the store would be closing in a few minutes and he conceded that he received and hid the gun after the criminal act.

Published on: April 28, 2012

Court Discusses Temporary Order for Protection

by Stephen Bilkis

Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office.

A New York Criminal Lawyer said that as a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

On 24 June 1988, defendant was arrested and charged with Assault in the Third Degree and with Harassment, on the complaint of his wife; defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. A New York Criminal Lawyer said the alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

Published on: April 28, 2012

Defendants Allege Lack of Jurisdiction in Rape Case

by Stephen Bilkis

Two women were working at a taco restaurant. Two men came in and held up the restaurant. At gunpoint, the two men took the two women employees to their car in the parking lot. They made the women ride in their car. They drove them to a dead end road in the next county and there they raped and sexually abused the two women.

A New York Criminal Lawyer said that even while in the car, while they were still on the road going to the next county, one of the men pointed the gun in his possession at the women and fondled their breasts.

They were charged and convicted of robbery in the first degree, two counts of rape in the first degree, two counts of kidnapping in the second degree and two counts of sexual abuse in the first degree.