Criminal Procedure

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.

Published on: April 17, 2012

Husband and Wife Both Seek Custody of Children

by Stephen Bilkis

A woman and his partner both filed for child custody petition in Court. The woman was born and raised in Florida where she lived with her mother and father until her parents divorced. She continued to live with her father until she was 22 and got her own apartment. The woman’s partner was born in Puerto Rico and was raised in Bronx. He has been living in New York for the past 10 years. The parties met on line in 2002 and they actually met in person when the woman came with a friend in New York for vacation. A New York Criminal Lawyer said in May 2004, the woman invited the man down to Florida for the weekend and their relationship became intimate. At some point during their relationship, the parties made the decision to have a child together.

In October 2004 the woman learned she was pregnant and that same month, the man took his two-week vacation and went to Florida to be with the woman. He brought his daughter with him and they discussed the possibility of him moving to Florida. While he was there, he looked for a job by posting his resume on a Web site and checking the local newspapers. The father got a couple of calls but when he went to be interviewed with the County school for a job as a locksmith, he was told that he was overqualified for he was making $17 an hour at his job in New York and they were offering only $10 an hour. A Westchester County Criminal Lawyer said that alhough he said he would start at any entry level, he was not offered the job.

At the end of 2004, the woman was terminated from her job as a general claims clerk in Florida for taking more time off than her allotted annual leave would cover. Although the father admitted they had plans to move, after she lost her job, he told her they would live better in New York since he had a stable job and stable home. The man’s mother would provide childcare, and he does not want anyone but family to care for their son. The woman never wanted to move to New York but agreed to do so because she felt that it would be only temporary until they have saved money for a house and move back to Florida. The woman admitted that her partner never gave her an exact time frame but she assumed that it would be within a few years.

Published on: April 16, 2012

Court Claims Jurisdiction in Domestic Violence Matter through IDV Courts

by Stephen Bilkis

A man was charged with the offense of harassment in the second degree. Subsequently, the court issued an order of protection directing the man to stay away from the complainant and refrain from harassing, intimidating, threatening her, or committing any acts of domestic violence. After that, a misdemeanor charge of criminal contempt in the second degree was commenced against the man alleging a violation of the order of protection. Consequently, the man initiated a matrimonial action against the complainant.

A New York Criminal Lawyer said the court having been assigned to the related matrimonial action, determined that it would promote the administration of justice to transfer to the Integrated Domestic Violence (IDV) part the charges pending against the man in the district court and by the order the district court, the matters were transferred to the IDV Part.

The man now moves for an order to dismiss the district court cases for lack of subject matter of authority. The man alleges that criminal procedure law mandates the dismissal of the cases transferred from the district court. The man’s motion is determined. A Westchester County Criminal Lawyer said the discussion of the man’s contentions begins with an assessment of the legal authority of the courts.

Published on: April 16, 2012

Court Determines if Evidence Submitted by Defendant is Inadmissable

by Stephen Bilkis

A husband moved an action against his wife’s lawsuit to take a statement to be offered in court on his behalf by issuance of a request letter. The wife opposes the application of motion.

It started when a wife alleges that she was a victim of domestic violence committed by his husband. However, the husband moves for a letter requesting for information to take the statement of the wife’s sister. The husband argues for his sister-in-law’s granted permission for the recorded telephone conversation between his wife and his sister-in-law at which time his wife made certain admissions. The husband asserts that the recorded conversation contains statement which is necessary for the trial on the issues of custody and domestic violence.

A New York Criminal Lawyer said the husband asserts that a letter is requested because the prospective witness, his wife’s sister, resides in another country and therefore is not within the jurisdiction of the court. The counsel further stated that the wife’s sister is physically unable to travel to testify at the time of trial because she is suffering from a blood clot in her lungs. Further, the counsel neither annexed an affidavit by a person with actual knowledge nor certified medical documentation supporting the counsel’s assertion.

Published on: April 16, 2012

Defendant Contends Evidence from Previous Trial Should Not be Admitted

by Stephen Bilkis

Defendant was charged of the felony of possessing a quantity of a narcotic drug, heroin, or heroin possession, with intent to sell; a drug crime. A New York Criminal Lawyer defendant had pleaded guilty to an attempt to commit the crime charged (criminal law) and, with the court’s consent, had withdrawn such guilty plea and substituted a plea of not guilty. Defendant was then convicted by a jury in Queens County Court.

Although defendant as his own witness at the trial denied his guilt, he does not now dispute that the People’s proof was enough for conviction. However, defendant does press on the herein court the point made by the dissenting Appellate Division Justices that it was injustice and error to lay before the jury as evidence of his guilt his earlier plea of guilty which the court had allowed him to withdraw.

The issue here is whether or not a plea of guilty withdrawn by leave of court is admissible against the defendant on the trial of the issue arising on a substituted plea of not guilty.

Published on: April 15, 2012

Man with History of Domestic Violence Applies for Gun Permit

by Stephen Bilkis

A man applied to the license division of the police department for a premises pistol permit. As required by the application, the man answered numerous questions pertaining to his qualification. The questions include as to whether he had ever been arrested and was an order of protection ever issued against him. The man answered yes to the abovementioned questions. The man also submitted notarized statements describing the circumstances of his two arrests.

The man’s first arrest happened when he was in college. He states that he fraudulently applied for and received unemployment benefits. He pled guilty to petit larceny, paid full compensation and was awarded a certificate of relief from civil disabilities.

A New York Criminal Lawyer said the man’s second arrest occurred at a random traffic checkpoint. When the officers checked his license, the officer discovered that it was suspended in accordance to a family court child support enforcement unit order. The man states that it was an error because he had already appeared before in the family court judge and made all the payments. The man obtained the necessary documentation to verify his claim.

Published on: April 15, 2012

Court Says Evidence is Protected by Common Law Victim-Counselor Privledge

by Stephen Bilkis

A woman charged a man with criminal action of various felonies arising from alleged domestic violence. A non-profit corporation has moved to quash a subpoena issued by the District Attorney to provide the address and telephone number of the complainant of the criminal action. The non-profit corporation asserts that in accordance to the Social Services Law and the regulations promulgated under it, the non-profit corporation is prohibited from releasing to the District Attorney the actual address where the resident is being sheltered. In addition, it argues that the information sought is also shielded by a common-law victim-counselor privilege.

A New York Criminal Lawyer the motion to quash is denied. Section of the Social Services Law states that the street address of any residential program for victims of domestic violence applying for funding pursuant to this article shall be confidential and may be disclosed only to persons designated by rules and regulations of the department. At the same time, section of the State Code of Rules and Regulations provides for the confidentiality of facility addresses as each program must maintain a business mailing address separate and distinct from the actual address where residents are sheltered. When releasing the address of any resident, programs must release only the business address of the program and not the actual address where the resident is being sheltered.

On the other hand, section of the State Code of Rules and Regulations provides for access to confidential information pursuant to an order by a court of competent jurisdiction. The non-profit organization argues that the specific prohibition of the State Code of Rules and Regulation limits the broad disclosure permitted pursuant to a section of the said Code.

Published on: April 15, 2012

Defendant Argues that Search of Vehicle was Illegal

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.

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. A New York Drug Possession Lawyer said he 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 15, 2012

Defendant Alleges Inadequate Miranda Warning for DWI Arrest

by Stephen Bilkis

There are many issues involved in any driving under the influence case that goes to court. Among them is the importance of delivering the refusal warnings correctly. If the refusal warnings are not given correctly, the evidence of the refusal cannot be used in court. This can create a situation that prevents the officers from being able to make an adequate case for DUI. In New York, the officers often use a videotaped warning for persons who are suspected of DUI who speak Spanish. Normally, this is an effective way to ensure that people who do not speak English are able to understand the warnings as well as the repercussions of a refusal.

A New York DWI Lawyer said however, problems can arise when a suspect does not behave in a predictable manner. In one case, which occurred in New York on January 14, 1998, Vice-officers were engaged in a prostitution sting. It was set up near East 242nd Street and White Plains Road in the Bronx. The defendant, who only spoke Spanish, was arrested when he drove up to an undercover police officer and offered her $20 for a sexual act. She notified her back up officers. When the arresting officer stopped the defendant, he approached the driver, who was the defendant. He noticed that the defendant exuded a strong odor of an alcoholic beverage from about his person, his eyes were blood-shot and glassy, and his speech was slurred. The arresting officer asked the defendant to exit the vehicle. When he attempted to exit the vehicle, he fell out of it face first. He was transported to the precinct where he was shown the Spanish language implied consent warnings. After the first section that ends with the question of whether the defendant would submit to the test, the tape was stopped. The defendant responded in a non-committal manner. He was rambling and uttering nonsense. After several attempts to get a sensible answer out of the defendant, the officer gave up and turned off the video tape of both the Spanish warnings, and the entire arrest.

When the refusal case was taken to court, one of the first problems was that the warnings were not completed. A New York DWI Lawyer said the second part of the tape that explains the repercussions of refusal was never played for the defendant. his failure effectively established that he had not been given the warnings correctly. That meant that the jury, in court, could not view any portion of the video of his arrest that concerned his refusal to take the test.

Published on: April 15, 2012

Court Rules on Robbery Case

by Stephen Bilkis

In cases that involve more than one victim, juries, and sometimes judges can become confused and issue verdicts that are not in accordance with the law or with good common sense. A case that was adjudicated in the Supreme Court of Nassau County on September 3, 1975 is one such case. The incident was fairly straight forward. This incident occurred on October 22, 1969 at a jewelry store that was owned and operated by one man.

A New York Criminal Lawyer said he frequently purchased items from other people and sometimes took in items on consignment. On the date of this incident, he had in his safe a diamond ring valued at $12,500 that he had taken in on consignment for another man. While he was in the shop that day, two men came in to the store to look at watches. They left without making a purchase. They had seen the owner go to the back of the store to retrieve a watch to show them from the safe. On his way back out to the front of the store, he failed to shut the safe or re-secure the dividing door that was usually locked between the front of the store and the office where the safe was located.

A while later, the two men returned to the store and produced a .45 caliber gun and ordered the owner to comply. A said the owner fought with the men and was struck on the head during the altercation with a hard object that he could not identify. He fell down near the panic button for his alarm. He pushed the alarm and passed out. When he came back to consciousness, he was handcuffed an in the back of the store. The attackers beat him again. He struggled to get free and he reached for the gun. Somehow the gun was fired and the jeweler was knocked unconscious again.