Criminal Procedure

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.

Published on: April 19, 2012

Plaintiff Sues Police for not Enforcing Order of Protection

by Stephen Bilkis

On February 13, 1992, a woman pulled up to an area in Nassau County where she saw police officers working a car accident. She got out of her car and screamed for them to help her. She advised them that her husband was in her car with a knife and he was threatening to hurt her. She advised that she had an active order of protection against him. She showed the officers her order and asked them to help. The officers told her that they would take care of him after she left. However, a New York Criminal Lawyer said they failed to arrest her husband for the violation of the order of protection.

The next morning as she prepared to leave for work for the day, she exited her home. Her husband was hiding outside of the residence when she walked out. He attacked her with a machete causing serious bodily harm to her. She contends that if the police officers had done their duty and enforced the order of protection, she would not have been injured because her husband would have been in jail.

She filed a civil suit against the county where the officers worked for personal injury damages. The county maintained that they could only be partially responsible for the injuries that occurred to her because her husband was more culpable than they were. Under New York law, CPLR article 16, a joint tortfeasor’s liability for non-economic losses is proportional upon proof that it is 50% or less culpable for the personal injury. There are exemptions to this rule, domestic violence is not one of them. The court determined that in order to waive this rule, domestic violence would have to be added as one of the exemptions. The court just was not ready to create all new case law that would include domestic violence cases in the exemptions. Prior to this case being appealed, the victim had been awarded $1.5 million dollars by a jury. The County challenged the trial court’s ruling that barred article 16 exemptions from the case. The trial court had determined that there was a domestic violence exemption to article 16 and that apportionment did not apply because the case involved an intentional tort. The appellate division reversed the judgment holding that none of the exemptions applied. The appellate court overturned the verdict and ordered a new trial.

Published on: April 18, 2012

Court Decides of Removal of Children From Home is Appropriate

by Stephen Bilkis

A New York Criminal Lawyer says that New York Statutes relating to the removal of children from their natural parents is clear. The state will do everything possible to keep families together. Often the attempt to reunite natural families does more harm than good. Being a parent is more than bringing a child into the world. It is a big responsibility. It takes maturity and strength of character. People who are addicted to drugs or alcohol do not have the ability to care for children. Their addiction can lead to a hazardous home environment for children. Unfortunately, addicted individuals often lack control over their emotions and actions. This lack of control may lead to domestic violence. A home where the parents are violent toward one another is a home filled with fear. Children are generally unsupervised and often neglected entirely.

A New York Drug Possession Lawyer said that New York authorities will remove the child or children until they feel that it is safe for them to be returned to their parents. The parents are required to attend parenting classes and often drug and alcohol treatment before the children are returned. However, sometimes the children are returned during the classes. In some cases, the parents are unable to resist the pull of their addictions and chose their addictions above the lives of their children. In these cases, the New York Family court Act §1089 details the steps that are required to free the children so that they can be adopted by parents who are capable of caring for them.

In some cases, the children are removed, and reunited numerous times over several years before the state petitions to free the children for adoption. One case of this nature began with the parents of seven young children. A New York Criminal Lawyer said the entire family lived in a one room shelter apartment together. The children, ages nine, eight, four, one ½, and five months, were born to parents who were addicted to drugs and alcohol. The father was a convicted batterer of the mother. For the following ten years, these children were removed and replaced five times. Each time, the parents would claim that they were going to take the classes. They never did. The father was enrolled in counseling for batterers, but he never attended the classes. The parents were drug tested repeatedly. Each time that they were tested, they either failed the tests or the urine samples showed that they were tampered with. Most likely when they switched urine from a child for their own in an attempt to pass the test.

Published on: April 18, 2012

Defendant Argues that Revocation of Gun License is Unfair

by Stephen Bilkis

A man had applied for and was granted target pistol licenses for his two pistols since May 1967. In 2001 the License Division of the NYPD converted all target pistol licensed into Premises Residence Licenses. Accordingly, man’s the pistol license renewal applications were converted into renewal applications for Premises Residence Licenses. On September 10, 2004, the NYPD License Division approved his renewal application and issued him a new Premises Residence License.

A New York Criminal Lawyer said that in June 2006, the NYPD received a notification that the gun licensee was arrested for a domestic dispute. The NYPD confiscated the licensed firearms. When they came to his apartment, they found two rifles in his residence which were not licensed. These were confiscated by the NYPD as well.

The police were called to the home shared by the gun licensee and his wife. The wife testified that she and her husband had a verbal dispute and as a result of their argument, the gun licensee assaulted his wife by punching her and kicking her. The wife also retaliated and assaulted her husband by punching and kicking him as well.

Published on: April 18, 2012

Robbery Defendant Seeks to Have Confession Excluded

by Stephen Bilkis

On November 22, 1965, a Supreme Court judgment was handed down convicting a man of robbery in the third degree. He pleaded guilty and was given a sentence in accordance with the fact that he was a second felony offender. He later appealed on August 9, 1965 requesting that certain evidence should be suppressed. That motion was over ruled.

A New York Criminal Lawyer said on September 30, 1965, he attempted to have his alleged confession excluded and attempted that again on November 22, 1965. Both motions to exclude his confession and to withdraw his guilty plea were reviewed. The motion to exclude his confession was denied, but his motion to withdraw his guilty plea and substitute a plea of not guilty to the indictment was granted and the case was sent to trial. On September 30, 1965, the justices reversed the conviction on the law and then agreed to exclude his confession.

The defendant in question was arrested in the act of attempting to burglarize a closed and locked business at approximately eleven o’clock at night. He was seen standing on the roof of a garage, attempting to gain entry through a closed window. The defendant refused to answer questions at the scene and a search of his person revealed that he was carrying a knife that was partially broken apparently while trying to force open the window. Also on his person, were identification cards and papers that belonged to a pharmacist who had recently been robbed.

Published on: April 18, 2012

Robbery Results in Death of Victim

by Stephen Bilkis

On December 5, 1975, an elderly woman was living alone in her home in forest Hills, New York. A New York Criminal Lawyer said her home was attached to another home on the side of it and she had difficulties getting along with her neighbor. On December 5th , burglars broke in to her home and tied and gagged her as they rummaged through her home and stole her belongings including several fur coats. A piece of cloth was shoved into her mouth to work as a gag. During the robbery or shortly thereafter, the gag that was in her mouth cut off her oxygen supply and she suffocated.

On December 12, police arrested a 58 year-old used furniture store owner in Manhattan. He was not connected to the victim by any obvious means. The police also arrested two employees of the furniture salesman. One was a man with a lengthy criminal record for possession of stolen property and the other was a seventeen year-old female who was also an employee of the shop. The trio was transported to the 106th precinct where they were Mirandized. The seventeen year old girl had a history of drug usage and the police suspected that the events of that night were fueled by the prospect that the crime might be drug related.

However, when the trio was Mirandized, the defendant store owner stated that he understood his rights and that he did not want to make any statements. He did not request an attorney. After four and a half hours, the defendant called the detective to his cell and informed him that the wanted to speak to a District Attorney about a deal in his case. The officer informed him that the District Attorneys had already gone home for the day. The detective asked him if he wanted to tell him anything and the defendant did not respond.

Published on: April 18, 2012

Defendant Claims Officer Testimony Inaddmissible

by Stephen Bilkis

A New York Criminal Lawyer said sometime in 1980, two police officers were sitting in an unmarked police car conducting surveillance of a street corner where there had been reports of crack possession and sale.

The police officers observed a man sell a tinfoil packet to another man. The police officers exited their vehicle and approached the two men. They tried to run but the officers apprehended them. When they were frisked, the officers found 23 other tinfoil packets thought to be crack in the man’s possession. The packets contained the controlled substances of phenycyclidine and methaqualone pills.

A New York Drug Crime Lawyer said the man was arrested and charged for criminal possession of ecstacy, a controlled substance in the fifth and seventh degrees. The man pleaded not guilty to the charge and took the witness stand as a witness in his own behalf. He interposed the defense of mistaken identity and that of frame-up.

Published on: April 18, 2012

Defendant Challenges the Accuracy of Breathalyzer Instrument

by Stephen Bilkis

A New York Criminal Lawyer said on 11 March 2007 at 4:58 A.M., a police officer who was trained to estimate the speed of a moving vehicle observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had “one drink.” The officer administered a series of field sobriety tests, all of which defendant failed. The officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department’s Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of.11 per centum by weight.

Defendant was convicted of driving while intoxicated (DWI) and speeding under the Vehicle and Traffic Law. Defendant appeals the decision with the herein court.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2, 100:1 “conversion” or “partition” ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person’s blood from the quantity of alcohol vapor detected in a breath sample. A New York DWI Lawyer said the defendant did not challenge the instrument’s reliability, but sought to lay the foundation for a jury argument that defendant’s individual ratio might differ so significantly from the mean as to diminish the evidentiary weight to be accorded the test results. The District Court precluded the evidence, apparently on relevancy grounds.

Published on: April 17, 2012

Wife Contends Husband Violated Order for Protection

by Stephen Bilkis

A former wife commenced a Family Court proceeding alleging that her husband argued with her, cursed at her and destroyed her property. The wife also alleged that on prior occasions, her husband had assaulted and threatened her. She requested and received an order of protection from the Family Court that directed her husband shall not assault, menace, harass, recklessly endanger or engage in disorderly conduct toward her. A New York Criminal Lawyer said the wife brought a second petition before the Family Court alleging that her husband violated the temporary order of protection by forcing his way into her home and by menacing her with a knife and by calling her on the phone and by continually threatening to kill her. After the fact-finding hearing, the Family Court found that the wife had met her burden of requisite quantum proof.

After a dispositional hearing, the Family Court placed the husband on one year probation and required him to attend a batterer’s program. The Family Court issued a final three year order of protection after finding the presence of aggravating circumstances under Family Court Act.

While the Family Court case was pending, the husband had been arrested and charged with various crimes. The husband was indicted for burglary, assault, attempted assault, criminal possession of a weapon and criminal contempt, criminal mischief, aggravated harassment all alleged to have occurred on April 1995. The accused party’s motions contend that the Supreme Court prosecutions are barred by constitutional and state statutory double jeopardy protection. The husband contends that the Family Court proceeding against him was a prosecution for the same conduct or offense as charged in the respective indictment against him. Moreover, he contends that the disposition or sentence imposed by the Family Court constituted criminal punishment.