Criminal Procedure

Published on: April 25, 2012

Court Rules on Legality of Wiretapping

by Stephen Bilkis

On November 13, 1963, abortion was illegal in the state of New York. However, that does not mean that illegal abortions were not being performed. Abortion was treated like any other crime in New York and the following case describes the criminalization and fear that was attached to such crimes. A New York Criminal Lawyer said on May of 1962, a woman appeared before the Grand Jury of the state of New York and testified that three men were forcing her to be involved in a criminal abortion of the fetus that she carried. With this information in hand, the police set out to arrest the men involved in providing illegal abortions.

They obtained a court order from a Supreme Court judge for a wiretap of the woman’s phone. It was over this wiretap, that the police intercepted several telephone conversations arranging for the woman to pay the men $500 to conduct an illegal abortion. The wiretaps revealed that there was a criminal conspiracy to conduct this felony act in the state of New York. In order for a warrant to be obtained for a wiretap, the police officer must request the order from a judge and be deposed as to the facts of the case that warrant the necessity of such an order. In the present case, the judge also deposed the woman who stated the facts as she had stated them to the police officer. The wiretap was granted. Several months later, off of the record, the woman claimed that she had committed perjury before the grand jury in making the statements that she did. That perjury was subject to making the wiretap and all of the evidence that was obtained through it, illegal.

A few months later, the court sought an extension of the original order based on the same information as the first. The woman stated that on November 13, 1963 she went to 88-24 Merrick Boulevard for the purpose of obtaining an abortion. She stated that one of the three men gave her drugs in order to cause an abortion. A Bronx Criminal Lawyer said when that did not work, she gave the men $500 for the purpose of obtaining a doctor who had agreed to perform the abortion. At the time of the arrest in November, several items of the type used to induce an abortion were seized by the police and placed into evidence.

Published on: April 25, 2012

Appeal Looks at Defendant’s Special Condition of Parole

by Stephen Bilkis

The Supreme Court modified a special condition of a man’s parole. The said condition forbade him from having any contact with his wife without the permission of his parole officer. A New York Criminal Lawyer said the modified order permitted the man to see his wife during non-curfew hours so long as the wife wished to see him.

On recent years, the man was released on parole subject to seventeen special conditions where he agreed to abide by a curfew established by his parole officer and agreed that he will not associate in any way or communicate by any means with his wife without the permission of the parole officer. While denying the man’s application to vacate the curfew and to allow him to live with his wife, the Supreme Court held that although the condition was not itself a violation of the man’s constitutional rights, it was subjective to deny the man’s visitation during non-curfew hours as long as the wife consented to it. In the ruling, the court noted the wife’s desire to see her husband. A New York Criminal Lawyer said the man’s rape conviction occurred before and none of his domestic violence related arrests resulted in convictions. The court finds that the Supreme Court improperly substituted its judgment for that of state division of parole.

Based on records, the imposition of a special condition is discretionary in nature and ordinarily beyond legal review as long as it is made in accordance with law and no positive legal requirement is violated. If the condition is rationally related to the inmate’s past conduct and future chances of recidivism, the Supreme Court has no authority to substitute its own preference for that of the individuals in charge of designing the terms of a man’s parole release. Further, because there is no federal or state constitutional right to be released to parole supervision before serving a full sentence, the state has responsibility to place restrictions on parole release.

Published on: April 25, 2012

Court Decides Divorce in Light of Domestic Violence Allegations

by Stephen Bilkis

A Jewish couple married in August 1973. At that time, the husband was 22 and the wife was 18. A New York Criminal Lawyer said the husband was in dental school and wife chose to keep house until after the husband finished his dental studies. When the husband became a dentist and had established a dental practice, it was the wife who took care of all the details of the practice including the hiring and firing of his employees.

The wife was able to finish four college degrees during the pendency of her marriage and had taken a licensure examination as a social worker. The wife also set up a foundation that aimed to help Jewish women who were victims of domestic violence get a Jewish divorce.

The couple had four children. At the time of the divorce proceeding in 2004, the two older children were already adults and married with children of their own. A New York Criminal Lawyer said the third child was 20 years old but still in college and was dependent upon the support of his parents. The youngest child was 13 years old.

Published on: April 25, 2012

Injured Security Guard Seeks to Make Worker’s Compensation Claim

by Stephen Bilkis

A telecoms company owns the premises leased by an out of possession landlord. The telecoms company contracted a security agency for their security services including the presence of a security guard in the premises. The premises had been a victim of gun crime robbery and homicide. A New York Criminal Lawyer said the assigned security guard was shot in his stomach, inside the premises, by an unknown attacker during a robbery and died of his wounds later that evening. He was employed by the telecom’s parent company. The security guard’s estate sued the landlord and the telecoms company for negligent security and wrongful death, and the security guard’s father sued for loss of his son’s services.

The assailant was forcing a customer and the security guard to the rear of the store with the gun in the back of the customer, when the gun went off grazing the customer and hitting the security guard. He died shortly after arriving at the Hospital.

According to the depositions of the store manager, everyday during closing time, a cashier at the store followed various procedures, which included bringing into the store a coin-operated kiddie rides about 30 minutes prior to closing, and then lowering various gates about 15 minutes prior to closing.

Published on: April 25, 2012

Court Discusses Subject Matter Jurisdiction

by Stephen Bilkis

Defendants in three cases challenge the rules promulgated by the Chief Judge and Chief Administrative Judge that created either the Bronx Criminal Division or Integrated Domestic Violence Part in Supreme Court, which resulted in the transfer of their misdemeanor prosecutions from local criminal courts to Supreme Court for trial. A New York Criminal Lawyer said that although they did not object to the transfer procedure in the trial court, they argued on appeal that Supreme Court lacked subject matter jurisdiction over their trials and that the rules violate the New York Constitution and the Criminal Procedure Law.

The first case:

In January 2007, defendant was charged by misdemeanor information filed in New York City Criminal Court, Kings County, with multiple counts of aggravated harassment in the second degree after he contacted his former paramour by telephone 62 times in one evening and repeatedly threatened her with physical harm. Defendant and the complainant had been involved in multiple prior Family Court cases regarding disputes about their two children. After his arraignment in New York City Criminal Court, the case was transferred to the IDV Part in Kings County Supreme Court where a nonjury trial was conducted. Defendant was convicted of three counts of attempted aggravated harassment in the second degree and sentenced to concurrent terms of one year’s probation. He was also directed to participate in a variety of domestic violence accountability and other programs.

Published on: April 25, 2012

Court Discusses Jurisdiction of the IDV Court

by Stephen Bilkis

On 18 January 2011, defendant was arraigned in Buffalo City Court on one count of harassment in the second degree pursuant to Penal Law alleging an act of domestic violence by the defendant against the complainant.

A New York DWI Lawyer said on 26 January 2011, the People declared their readiness for trial and defendant served motions on the Erie County District Attorney on 1 February 2011. While this Buffalo City Court action was pending, three petitions were simultaneously pending in Erie County Family Court between the defendant, complainant and a third family member concerning the custody of the defendant and complainant’s child. The pendency of these simultaneous criminal and Family Court matters with the underlying issue of domestic violence prompted a screening by the herein Court, the Supreme Court Integrated Domestic Violence (hereinafter IDV) Part, located in Erie County.

Accordingly, the Court determined that a transfer of the family’s cases to the IDV Part was appropriate by finding that said “transfer of the case to the Supreme Court would promote the administration of justice” pursuant to the Rules of the Chief Administrator of the Courts for Integrated Domestic Violence Parts.

Published on: April 25, 2012

Court Looks at Possible Fraud in Domestic Violence Case

by Stephen Bilkis

A woman commenced an action against her former fiancé seeking damages sustained from physical abuse and violence allegedly committed by her fiancé.

A New York Sex Crimes Lawyer said the woman initiated a suit in the district court while her case was pending in the federal court. Her asserting claims are in accordance to the federal violence against women act. The Supreme Court struck down the violence against women act. As a result, the district court dismissed the woman’s claims under the act however the woman commenced an instant action.

Based on records, the congress passed the violence against women act and created a private reason of action for victims of gender-motivated violence against their opponents. Consequently, the Supreme Court struck down the civil resolution provision of the act, holding that the constitution provided no basis for the provision and deferred the suppression of violent crimes and evidence of its victims to the police power resting in the states. A New York Sex Crimes Lawyer said that three months after the decision, the council introduced the victims of gender motivated violence protection act to fill the void left by the Supreme Court’s decision and provided a private right of action for victims of gender-motivated violence against their opponents.

Published on: April 25, 2012

Court Discusses Exclusionary Rule

by Stephen Bilkis

Whenever evidence of a crime is discovered by police during an inventory search of a person’s vehicle, it is subject to scrutiny. Inventory searches are administrative searches. That means that the police department or agency maintains documents in their standard operating procedures manual that indicates that an inventory of an arrested person’s vehicle will be performed incident to that arrest. A New York Drug Crime Lawyer said the reason for inventory searches is that people often make allegations that items are missing from their vehicles. The inventory of the person’s vehicle incident to their arrest is to determine what exactly is in the vehicle. Anything that appears to be valuable needs to be removed and placed into evidence or property so that the person can re-claim their valuables upon getting out of jail. The police department is protected from allegations of theft, and all valuables are protected for the individual.

However, in many cases, illegal items, narcotics, open alcoholic beverage container, stolen credit cards, and other items are located during the inventory of a vehicle. It is at that point that the officer must be able to prove that the search was an administrative search and not a search for contraband. That is why it is important for police officers to have their procedures documented.

A New York Drug Possession Lawyer said that in a case that was decided before the Supreme Court of New York County on November 18, 2009, a defendant who was charged with one count of Criminal Possession of a Weapon in the second degree and with driving under the influence of alcohol. The man was arrested following a traffic stop. The officer stated that he observed a Lexus pulled up to a fire hydrant. There was a white male behind the wheel of the car. When the officer pulled up, the man got out of the car and approached the officer. The officer stated that the man’s eyes were glassy and bloodshot, he exuded a strong odor of an alcoholic beverage from about his person, and he was unsteady on his feet.

Published on: April 24, 2012

Court Discusses Jurisdiction of IDV Courts

by Stephen Bilkis

The Court transferred into the Integrated Domestic Violence (IDV) Part a case alleging criminal contempt of court filed against a woman and a family offense case that the woman filed against the complaining witness. On joint application of the Court and the accused, the Court also transferred a subsequently filed criminal case against the woman into the IDV Part. The Court’s application to consolidate the two cases for trial was granted. The family offense case that the woman filed against the complaining witness was dismissed for lack of proper service on an incapacitated person. The woman moves to send her consolidated cases back to Criminal Court.

A New York Criminal Lawyer said the woman argues that an Indictment or Superior Court Information is needed to allow misdemeanor cases to be prosecuted in the Supreme Court. The State Court of Appeals has recently rejected the argument and has upheld the authority of the IDV Courts to preside over misdemeanor cases such as the cases.

The woman also argues that upon the dismissal of her family offense petition for lack of service, the criminal cases must be transferred back to the Criminal Court. The woman cites no authority for the proposition and the Court is aware of none.

Published on: April 24, 2012

Respondent Violates Order for Protection

by Stephen Bilkis

A New York Criminal Lawyer said that on 15 March 199, petitioner spouse filed a supplemental petition has been, a Family Offense Proceeding, alleging that respondent failed to obey the modified order of protection issued by the court dated 15 November 1993; that respondent on 8 March 1994, upon release from incarceration for prior violation of the order of protection, arrived at petitioner’s residence with police at approximately 1:00 a.m. attempting to gain entry to petitioner’s residence and subsequently on 11 March 1994 that “a car belonging to a friend was towed from petitioner’s driveway, and petitioner thinking the car stolen filed a police report and later learned where the car was towed, and upon inquiring found respondent had filed a complaint and stated to be the owner of the property and claimed that the car was illegally parked and had the car towed where the towing company is demanding payment for towing and storage fees.”

A warrant was issued for respondent’s arrest. Respondent was returned on the warrant on 21 March 1994. In April 1994, a hearing was held and at the conclusion thereof, the court made two findings beyond a reasonable doubt, to wit (1) that on 8 March 1994, respondent willfully violated the final order of protection by attempting to gain entry to petitioner’s residence and (2) that on 11 March 1994, respondent willfully violated the final order of protection by having a vehicle lawfully parked on petitioner’s property towed from that property with false representations by respondent that he was the owner of the property, that the car was unlawfully parked, all to harass and annoy the petitioner. The court’s decision was based on the prior history of family offense activity perpetrated upon petitioner by respondent; the fact that respondent had been committed previously by a court in Nassau County to incarceration for one hundred and eighty days; that respondent apart from that commitment, had been civilly committed by this court for willful violation of the order of protection to incarceration for six months; that respondent upon release from this most recent commitment had almost simultaneously violated the order of protection again on 8 March 1994; that respondent’s behavior indicated an intractable design to continue to annoy and harass petitioner; and considering the welfare not only of petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violation to a term of incarceration of six months for the finding of violation occurring on 8 March 1994 and of four months for the finding of violation occurring on 11 March 1994, to run consecutively.

On 12 April 1994, respondent filed a motion returnable 27 April 1994 seeking re-argument of the dispositional order dated 7 April 1994.