Criminal Procedure

Published on: April 21, 2012

Couple Try to Back Out of Giving Child Up for Adoption

by Stephen Bilkis

A 22-year old black woman became pregnant by her 23-year old boyfriend. At that time, the mother was teaching at a Christian school by day and she was studying at a community college to earn a degree as a medical assistant. Her boyfriend was working for a large retail company but he was working toward a degree in automotive mechanics.

A New York Criminal Lawyer said both the woman and the man lived with their families. The woman had a two-year old daughter who lived with her and the man had a three year old son who lived with his ex-girlfriend but the man enjoys joint custody and regularly paid child support for his son.

While the woman was pregnant, she responded to a personal advertisement in a newspaper placed by a single woman who wanted to adopt a baby. The woman and the pregnant lady spoke to each other over the phone and they met several times. Both the pregnant woman and her boyfriend liked the woman and were willing have their baby adopted by the single woman.

Published on: April 21, 2012

Defendant Charged with Gun Possession

by Stephen Bilkis

On March 11, 2007, two police officers were on motor patrol in an area known for gang activity. At around 11:30 pm, a man walked in front of the police officers’ unmarked car. The man was walking slowly, impeding the smooth flow of traffic on the street. A New York Criminal Lawyer said that as he passed the police officers’ car, one of the police officers noticed a shiny object glinting at the rear right pants pocket of the man who passed by.

As the man was walking slowly, the officer noted that the glinting object appeared to be metallic and it was inside his rear pocket. Only the clip was showing outside and the top part of the object was protruding from the pocket.

The police officer has had the experience of making 50 arrests for weapons possessions and he believed that the glinting object clipped to the man’s pocket was either a gravity knife or a small-caliber handgun.

Published on: April 21, 2012

Court Discusses Jurisdiction of Integrated Domestic Violence Court

by Stephen Bilkis

A man was charged on one count of harassment in the second degree alleging an act of domestic violence against the complainant. Consequently, the man served an action on the district attorney while the court action was pending. The three petitions were concurrently pending in the family court between the man, the complainant and a third family member concerning the custody of the man and complainant’s child. The pending decision of the criminal and family court matters with the underlying issue prompted a screening by the Supreme Court and its integrated domestic violence (IDV) part in the county. After the screening, the court determined that the transfer of the family’s cases to the IDV was appropriate by finding that it would promote the administration of justice.

The man moved for dismissal of the charged on one count of harassment in the second degree alleging an act of domestic cruelty against him and asserts that Supreme Court lacks an essential subject matter authority citing criminal procedure law. A New York Criminal Lawyer said the man also argued that irrelevant offenses charged as a sole count in a legal document may not be tried in the Supreme Court unless the offense is charged in an allegation that also charges a crime. The man further relies on the recent Court of Appeal’s decision that supports his dismissal request.

The man also claims that to understand the provisions of the constitution to grant the transfer of authority to the Supreme Court IDV part and to transfer a sole count of a violation level offense would support an improper use of the court’s resources and gives the court’s unarguable subject matter authority over more serious offenses.

Published on: April 20, 2012

Should Lawyer Involved in Domestic Violence be Suspended?

by Stephen Bilkis

A lawyer was admitted into the practice of law in New York in December 7, 2006 and he has been practicing as a lawyer in New York since that tiime . Sometime in October 4, 2007, he assaulted his live-in girlfriend. He threw her repeatedly onto the floor. He slapped her on the face repeatedly while screaming that she was a slut and a whore. The girlfriend sustained injuries that required a medical attention.

A New York Criminal Lawyer said after he assaulted his girlfriend, he smashed her Cartier watch with a hammer. He took her designer purse and filled it with water. He punctured a painting that belonged to her and he sprayed her couch with water and oil.

He was charged with assault and with criminal destruction of property. He pleaded guilty to the assault and entered a plea bargain agreement where he promised to pay the damage to his girlfriend’s property in the amount of $8,000.00. He was sentenced to ten months imprisonment and he served six months of that sentence in jail. A final order of protection was entered against him.

Published on: April 20, 2012

Court Decides Custody Arrangement in Light of Domestic Violence Incidents

by Stephen Bilkis

A man and a woman lived together and had a child who was born on February 17, 1990. They were married five months later on May 7, 1990. They resided at an apartment on Fifth Avenue. During their stay at the apartment, the woman met and cultivated a friendship with another woman who resided on another floor of the same apartment building.

The friend saw the woman everyday and noticed bruises on her face and arms. She saw her with a split lip. One evening the woman came to her friend’s apartment asking for help. She was bleeding from a cut above her right eye. She was crying and shaking. The friend called the police and after that, the friend went up to the woman’s apartment on the 19th floor to get her baby. The friend recalls that the woman invariably told her that it was her husband who hurt her. She also confided in her that they were fighting all the time.

The woman applied for and was able to obtain a temporary order of protection against her husband from the Criminal court for domestic violence. Six months after the issuance of the order of protection, her husband was arrested for violating the order of protection. He pleaded guilty and was imprisoned for six months. A final order of protection was issued to the wife for a period of three years.

Published on: April 20, 2012

Court Hears Battered Parent Defense

by Stephen Bilkis

A New York Criminal Lawyer says that domestic violence comes in all shapes and sizes. Fifty years ago, domestic violence cases were not recognized. In many cases the victims of domestic violence were ignored. It was a dirty family secret that few people talked about. The victims were ignored. It was not until the late 1980s and into the 1990s that the psychology of domestic violence was finally studied. Now, courts often hear evidence related to the fear associated with being battered in domestic violence. Several syndromes are common place in court rooms today: battered child syndrome, battered wife’s syndrome, and battered women’s syndrome. Crimes against the elderly do not get as much attention. In fact, it has only been in recent years that some states have begun to recognize that the psychological issues associated with being battered are not gender specific. Their wives or their children can batter men. In fact, many states have enacted additional statutes that are designed to protect the elderly from being battered by their children by changing the language of their battering laws to make them non gender specific.

In New York, in 1999, there had never been a case that involved a father being battered by his child. On June 21, 1999, a man who had been arrested for the murder of his adult son, filed a CP: 250.10 notice to the court that he would be offering a battered defense at trial. He requested that his medical expert on the subject be allowed to testify on his behalf. A New York Criminal Lawyer said the District Attorney assigned to the case stated that the state of New York did not recognize a defense of Battered Parent Syndrome. The District Attorney further stated that even if Battered Parent Syndrome did occur, a medical expert would not be necessary because most jurors have the ordinary training and intelligence to evaluate if the person is suffering from that syndrome.

The defense argued that since battered parent syndrome is not normally referred to by the general public, it is necessary to have an expert explain the correlation between battered parent syndrome and other battered syndromes. By showing the jurors that other states have already begun to recognize this condition as non-gender specific, it becomes easier for them to relate to the defendant.

Published on: April 20, 2012

Court Disusses Authority of Housing Court vs. Family Court

by Stephen Bilkis

In New York, there are several different remedies which may be applied in the case of a family dispute. The couple, especially if they are in government housing, may proceed with an illegal lock out complaint to be reinstated to the apartment through the housing authority. However, if a complaint to address these issues has already been filed in Family Court, the Housing Court will generally refer the case back there. Family court has more liberty to pursue different remedies than does Housing Court. In order for a person to get reinstated to an apartment, they must be on the housing authority paperwork as a tenant or co-tenant. A New York Criminal Lawyer said the couple may also pursue a domestic violence case in either Family Court, or Criminal Court, or both. In a case where there are other issues pending in additional courts, Housing Court will generally refer the housing issue to be handled by the other court.

In one case, a man and his wife who lived in a housing authority apartment had a verbal argument one night that was so heated that the police were requested to come to the residence. The wife informed the police that during the argument, her husband had told their children that he was a member of the “Bloods” gang and that women were not to be respected. He told the children that women were supposed to be under the foot of the man. A New York Criminal Lawyer said his wife had a previous order of protection that had been in effect in 1998 and it had barred the husband from the apartment. The police told the man to go out for a walk and cool down. He left the apartment. The police took a police report and left.

The man claims that when he returned, his belongings were out front and the locks to the apartment had been changed so that he could not get back in. The wife claims that she did not put his belongings out, nor did she change the locks. She stated that she obtained an order of protection for herself and the children. That order of protection declares that the husband is barred from the apartment until the hearing of the case in August of 2004. Since there is an order in effect in Family Court that prohibits the husband from going back in to the apartment until after the hearing in August, it is a moot point to have a hearing in Housing Court. Clearly, there is no way that the housing court could overrule the order of Family Court to allow the man to move back in to the apartment before the hearing in August. It is because of this that the petition to allow the man to move back in to the apartment was dismissed.

Published on: April 19, 2012

Court Decides if Medical Records are Hearsay in Domestic Violence Case

by Stephen Bilkis

The police received a 911 call from a woman who claimed to being beaten up by her husband. The police arrived at the scene within one minute of the 911 call and found that a husband was yelling and berating his wife. The man was standing over his wife who was cowered and hiding in between the furniture, hiding her face which appeared freshly bruised. She was crying.

A New York Criminal Lawyer said when the responding police officer asked her what happened, she said that her husband had punched her repeatedly in the head, the face and the back. She appeared to be bleeding from her left ear. She was in pain.

The police officer who responded executed a sworn statement stating the circumstances of his response to the 911 call. He stated that he found the couple in their home with the man standing over his wife who appeared to be in stress. She was crying and seemed to be in fear. When he asked what happened to her, she replied that her husband hit her and beat her up.

Published on: April 19, 2012

Court Discusses the Legal Concept of Asportation

by Stephen Bilkis

On October 23, 1974, a resident of 272 Pennsylvania Avenue , in the County of Kings, stated that he returned home from work at about 12:05 AM. He stated that he parked his car in his parking spot and started to walk towards the side entrance of his building. He stated that as he approached the door, the defendant came out from behind another car and started to follow him. He stated that the defendant threatened him and he began to run. The defendant chased him and put a knife to his throat. He forced the man into the lobby of the building. Once in the lobby, the defendant removed the victim’s ring, watch and money from his wallet. They were in the lobby for about five minutes before the victim’s wife came in. The defendant told the victim that he was going to have to get him out of the situation.

A New York Criminal Lawyer said the defendant then forced the victim and his wife back out to their car by holding the knife to the victim’s chest. He forced them in to the car and drove away with the victim’s wife driving. The defendant told them that he had six or seven children that he could not take care of and that was why he was robbing them. The wife began to cry and he told her to pull over. He started to drive. He did not know how to drive and nearly hit a bus before stopping and taking the keys. He put them outside of the car near a pole and fled on foot. The couple was inside of the car with the assailant for about ten minutes.

The question of law is whether the ten total of 15 minutes being held by the defendant was enough to constitute the crime of kidnapping. There was also some discussion about whether the crime was actually a drug possession crime. New York maintains that if the holding of the person against their will is an integral part of the execution of a greater crime, then the crime of kidnapping is absorbed into the other crime and not charged separately. The question rests on a legal term called asportation. Asportation is the removing a person to another locality.

Published on: April 19, 2012

Court Determines if Probable Cause was Present for a Stop and Search

by Stephen Bilkis

At around 9pm on September 26, 1985, a police officer was on radio motor patrol. As he was driving around the area of the corner of 204th Street and 113th Avenue, the police officer observed two men standing at that corner and one of them handed to the other a plastic bag containing smaller plastic packets. A New York Criminal Lawyer said the plastic packets contained a white powder-like substance. This was not the first time the police officer had seen plastic packets with a powder-like substance in them. He knew from experience that this is the common packaging for angel dust or heroin.

The police officer parked his patrol car and exited it. As he approached the two men, he saw the one who received the plastic bag stuff the bag in his shirt pocket. He also smelled something burning. The police officer had prior experience and instantly recognized the smell of burning heroin.

As the officer approached, the two men walked away. The police officer called out to the man who received the plastic packets. The man turned around and walked back to the officer. At this time, the officer observed that the man walked stiffly as though his legs couldn’t be bent at the knees. He was uncoordinated and walked like a tin man. A New York Criminal Lawyer said his previous experience with heroin addicts signaled to him that the man was exhibiting behavior common to people under the influence of heroin.