Criminal Procedure

Published on: April 14, 2012

Defendant Contends Police Did Not Have Reasonable Suspicion for Search

by Stephen Bilkis

A New York Drug Possession Lawyer said an accused man appealed from a summary judgment of the Supreme Court. He was convicted for violating criminal law through committing drug crimes. The accused man was sentenced for his alleged criminal sale of a controlled substance in the third degree, crack possession in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence. A New York Drug Crime Lawyer said after hearing, the appeal brings up for review the denial of that branch of the accused man’s compilation of motion which was to suppress certain physical evidence.

The accused man was observed by the undercover police officers selling crack cocaine to the passengers of a BMW automobile during a drug crime surveillance operation. The BMW was stopped nearby and the passengers were arrested for a vial of crack cocaine possession that was recovered from the floor of the car. When the back-up officers arrived at the scene of the sale to make the arrests, they approached the accused man because he matched the description of the drug seller broadcast over the police radio. A New York Drug Possession Lawyer said as the police officers approached, the accused man fled, dropping a plastic bag containing 100 vials of crack cocaine during the pursuit. On appeal, the accused man argues that the back-up officers did not possess a reasonable suspicion that he had committed a crime, allowing them to detain or pursue him and, therefore, the crack cocaine he discarded during the chase should have been suppressed as the fruit of an unlawful detention. A said the accused man makes the same argument as to the crack cocaine possession that was found on the floor of the BMW automobile.

A Nassau Criminal Lawyer said because the accused man did not move to suppress the crack cocaine found in the BMW automobile, the issue has not been preserved for appellate review. In any event, the accused man failed to articulate the requisite privacy interest to warrant a finding that he had standing to challenge the admission of the evidence and, as the discovery and seizure of the crack cocaine in the BMW occurred prior to the police’s attempted detention of the accused man, it could not have been a fruit of that detention. With regard to the crack cocaine discarded during the flight, the court finds that the hearing court, which saw and heard the witnesses, correctly denied suppression.

Published on: April 14, 2012

Court Discusses Role of Counsel at Grand Jury Proceeding

by Stephen Bilkis

A man indicted for drug crimes such as cocaine possession with intent to sell, denied that he had sold cocaine, but testified to his crack possession of three vials for his own use. A police officer testified that he observed the accused man receive money from an unidentified woman and then drop a vial of crack cocaine, which the woman picked up from the ground. A New York Criminal Lawyer said the officer further testified that he arrested the accused man within five minutes, finding four dollars and crack possession.

The accused man testified that he received the vials from three guys whom he knew. When asked to name the three men, he inquired whether he could speak to his lawyer. He was permitted to do so and replied that the guys are not really involved in what he was accused of. A New York Criminal Lawyer said when the question was repeated, the accused man answered without further consulting his attorney. Presumably in an attempt to establish that the accused man’s cocaine possession with intent to sell, the assistant district attorney asked him how he obtained the money. The man testified that he received welfare, had saved some three hundred dollars while in a program of work release from State prison where he had been until three months beforehand, and also received money from his family. At one point in the accused man’s testimony, the assistant district attorney inquired whether the money he spent to go to movies was welfare money.

A New York Drug Possession Lawyer said the assistant district attorney reviewed the accused man’s prior criminal law violations that include four felony and seven misdemeanor convictions. In detail the convictions include four robberies, one invalid use of a credit card, a fare beat, a trespass, and criminal possession of controlled substances. The assistant district attorney repeatedly emphasized the robbery convictions. The assistant district attorney then asked the accused man to tell the grand jury what happened on the occasion of his arrest for marijuana possession. The accused man explained that he was arrested when he took a bag of marijuana out of his pocket to give to a friend whom he owed money. The assistant district attorney finally asked him to tell the grand jury what he had been arrested for on the occasion in 1990 when he pled guilty to criminal possession of a controlled substance.

Published on: April 14, 2012

Defendant Claims Car Seized Unlawfully

by Stephen Bilkis

In matters of law it is important to have an attorney. Most people who do not have a law degree are unfamiliar with all of the limitations that are placed in reference to legal actions. In New York, the state can seize any motor vehicle that is involved in the commission of a crime. That means that the state of New York can seize the vehicles of people who are charged with driving under the influence of alcohol or drugs. However, there are certain limitations. A New York DWI Lawyer said the owner of the vehicle must be notified within 25 days of the date of a DUI arrest. The property clerk of the police department has fifteen days beyond the last day of the 25 day limitation to commence forfeiture action. If the property clerk does not meet these deadlines, then the defendant may move to dismiss the forfeiture action and reclaim his or her property.

DUI cases are loaded with intricacies of law that can make or break the case that the state attempts to make. The reason that there are time limits on the paperwork process for forfeiture of property is obvious. The problem here is that the state can initiate this process even before the driver has been determined guilty of a crime or not guilty.

In one case that occurred on June 17, 2007 when a man’s BMW B23i was impounded as an instrument of a crime. The officers seized the vehicle after the defendant was arrested and charged with several statutory offenses and traffic law violations. A New York DWI Lawyer said the defendant was charged with several offenses, one of which was DUI. On July 21, 2009, the man made a demand for his vehicle to be returned to him. The property clerk refused and advised the man that his request was invalid because he did not submit a release from the District Attorney. In September of 2009, the property clerk filed a summons and obtained a complaint number to begin the process of seizure of the vehicle. On December 3, 2009, the property clerk mailed a summons and proof of service with the court on December 7, 2009. On December 17, 2009 the service was deemed completed.

Published on: April 13, 2012

DWI Defendandant Stood Up By Legal Counsel in Court

by Stephen Bilkis

A man was charged with Aggravated DWI, DWI and Driving While Ability Impaired by Alcohol. The criminal complaint alleges that the accused man operated a motor vehicle in an intoxicated condition and in a later blood alcohol test was found to have a level of alcohol in his blood. After arraignment, the case was adjourned for the retention of private counsel and a counsel appeared as the accused man’s attorney for the first time. A New York DWI Lawyer said the accused man has apparently been at liberty after posting bail throughout the proceedings. The Jury and the man’s counsel both estimates that the trial of the matter, when it eventually occurs, should take no more than two days.

The case was adjourned for hearing and trial. The Record of Court Action notes that the complainant was ready on that date but that the accused was not and needed a copy of the police videotape which the complainant were directed to provide. The case was adjourned for hearing and trial to another date. A New York DWI Lawyer said on the rescheduled date, the Record of Court Action indicates that the complainant were ready. The accused man’s counsel submitted an affirmation asking for an adjournment for medical reasons. According to the complainant, however, the Assistant District Attorney informed the Court on that date that she had spoken to the accused man’s counsel and he had informed her that he would not be available for eight weeks due to his congested trial schedule.

According to the complainant, the counsel indicated that he was still not ready to proceed for medical reasons and asked that the case be adjourned for the second time to another date. The Record of Court Action notes that the complainants were also not ready on that date and contains a question by the Court as to whether the man’s counsel had a medical issue. The complainant submitted a Certificate of Readiness. A Nassau County Criminal Lawyer said the case was adjourned for the third time to another date and the Record of Court Action does not indicate why a hearing and trial did not occur on that date. The defense counsel asserts that the complainants were not ready on that date. The defense counsel submitted an affirmation saying that he was engaged in trial on another matter and requesting an adjournment for the fourth time to another date. The case was adjourned to and the complainants indicated that they were not ready on that date.

Published on: April 13, 2012

Interesting Case Shows the Evolution of Divorce Law

by Stephen Bilkis

It is amazing just how much domestic law and divorce law has changed over the past 50 years. Prior to 1967, a married couple who wanted to get divorced could only obtain a divorce on the grounds of adultery. If neither spouse committed adultery, the courts of the state would not allow the couple to divorce. In 1967, New York legislature added the additional grounds for divorce under mental cruelty. Section 170 of the Domestic Relations law was amended to state that a divorce may be maintained by a husband or a wife if they were dissolving the marriage on the grounds that they were suffering cruel and inhuman treatment at the hands of the other spouse. A New York Criminal Lawyer said this treatment would have to be so egregious that the conduct endangered the physical or mental well-being of the abused party and made it unsafe or improper for the couple to live together. These were also the grounds for any kind of legal separation.

In 1970, a case came before the courts of New York that dealt with a petition for a divorce. The couple was married in New York in 1957. The husband was 28 years old and the wife was 37. She had a 15-year-old son by a previous marriage. The couple had a daughter, who was ten years old at the time of the trial. The pair had a volatile relationship by any standards with four separations and three reconciliations between 1961 and 1967. Throughout their relationship, they only testified to one act of domestic violence. This incident was the cause for the first separation. In 1961, the husband was in the kitchen of the home with some friends. The daughter began to cry, and the husband told her to be quiet. The wife came in to the kitchen and struck him. She then told him to get out of the house. The husband filed for divorce in 1970 claiming mental anguish. The courts determined that even under the changes in law in 1967 that would allow a divorce for cruel and inhuman treatment, the arguments that this pair had were not serious enough to meet the minimal qualifications to get a divorce. The court stated that the responsibility for managing their differences was not the responsibility of the courts.

Rather, the court pointed out that it was the responsibility of the two married people to learn to get along with each other without relying on the courts to step in and solve their problems. The exact term was that the courts of justice have no cure for the ills that these people bring upon themselves. They must minister unto themselves to solve their differences. This is in stark contrast to the customs of today. Now a couple can divorce for any reason. There are no such stipulations that must be met in order for a divorce to be petitioned. A couple may still obtain a divorce under this type of situation, even if the other party does not want to get a divorce. This change in the law was enacted to protect the victims of domestic violence. An uncontested divorce action is possible without any kind of violence, adultery, or other misdeed.

Published on: April 13, 2012

Court Decides Jurisdiction in Sex Crimes Case

by Stephen Bilkis

Court cases are rarely tried strictly on the facts of the case. In almost every case that comes to trial, the issues that cause a mistrial or cause a conviction usually come down to points of legality. Because trials are investigations into the application of statute upon a set of facts or circumstances, it is critical that a defendant is represented by an attorney. In the case of a domestic violence offense, it is even more important. Domestic violence laws change almost daily. A New York Sex Crimes Lawyer said it is imperative to the proper defense of a case that the legality of the statutes that are applied are reviewed and questioned.

In one particular case that was heard in the Supreme court, appellate Division, Second Department, New York, the justices were called upon to review a domestic violence case in which the defendant was charged with misdemeanor aggravated harassment in the second degree. He was charged with three counts. The case was initiated in Criminal Court, Kings County. By an order dated January 31, 2007, the action was removed from Criminal Court and transferred to the Domestic Violence Part of the Supreme Court in Kings County. A New York Sex Crimes Lawyer said the misdemeanor complaint was converted to an information dated February 7, 2007. A bench trial convicted the defendant of three counts of attempted aggravated harassment in the second degree.

The defendant appealed his conviction. He claimed that the Supreme Court did not have jurisdiction over his case because he was never indicted by a grand jury. He argued that minus a formal indictment, there was no superior court information. He relied on CPL 210.05 to support his contentions.

Published on: April 13, 2012

Court Hears Divorce Case Based on Serious Domestic Violence Allegations

by Stephen Bilkis

The parties were both born in Albania. Plaintiff first moved to the United States on 14 December 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. Plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of the herein divorce action, only returning to Albania for brief vacations over the years (approximately the first six years of the marriage). Plaintiff is 48 years of age and defendant is 36 years of age.

A New York Criminal Lawyer said the court is called upon to determine custody of five (5) minor children and whether defendant is entitled to a five (5) year stay away order of protection against plaintiff. The court has bifurcated the issues of custody, visitation and order of protection.

The matter was tried on an expedited basis given the seriousness of the allegations. Defendant-wife (hereinafter referred to as defendant) against plaintiff-husband (hereinafter referred to as plaintiff) was issued a temporary order of protection in Family Court, Kings County on 4 December 2007, the Family Court petitions were consolidated into the instant divorce action by order of this court dated 2 January 2008. The court has bifurcated the issues of custody and visitation and a final order of protection.

Published on: April 13, 2012

Court Discusses Integrated Domestic Violence Division

by Stephen Bilkis

In January 2004, the Chief Judge of a State promulgated the establishment of Integrated Domestic Violence (IDV) parts in Supreme Court. The rule directed that the specialized part be devoted to hearing and determination, in a single forum, of cases that are simultaneously pending in the courts if one of them is a domestic violence case in a criminal court and the other is a case in Supreme or Family Court that involves a party or witness in the domestic violence case; or if one is a case in criminal court, Family Court or Supreme Court and the other is a case in any other of these courts having a common party or in which a disposition may affect the interests of a party in the first case.

A New York Criminal Lawyer said the intent of the IDV directive was to allow matters involving a single family to be resolved in one court by the same jurist, thereby eliminating fragmented judicial adjudication and relieving the parties of the burden and costs of having multiple actions pending in different courts. In addition to streamlining the litigation process for litigants and providing better access to community services for families, the new IDV parts also increased judicial efficiency by avoiding duplication of effort by multiple courts, reducing scheduling conflicts and avoiding inconsistent outcomes.

Soon after the Chief Judge issued part of the IDV, the Chief Administrative Judge implemented the new rule by adopting part of the Rules of the Chief Administrator of the Courts, which defined those IDV-eligible cases subject to transfer to Supreme Court. A New York Criminal Lawyer said that under the rules, cases that meet the criteria are sent to an IDV part where, within five days, the cases are screened to determine whether transfer will promote the administration of justice. If so, a formal transfer order is issued and the case is retained by the IDV part for disposition. If not, the case is returned to the originating court.

Published on: April 13, 2012

Defendant Objects to Prior Convictions Being Brought in as Evidence

by Stephen Bilkis

A New York Gun Crime Lawyer said a man was charged with robbery for having forcibly stolen money from the complainant’s store while wielding a knife. The complainant testified that the man had taken money from both the cash register and a cigar box in which lottery receipts were kept, and had warned her not to tell anyone about the robbery. Testifying in his own behalf, the man admitted that he had stolen money from the cigar box, but denied that he had possessed a knife, stolen money from the register, or threatened the complainant.

Prior to trial, the man made a motion to limit the prosecution’s cross-examination regarding his prior criminal convictions. A New York Criminal Lawyer said he had three prior convictions of felonies and misdemeanor. The most recent involved a gun crime with robbery of a delicatessen. Initially, the trial court ruled that if he takes the stand, the Jury would be prohibited from cross-examining him regarding his two earliest convictions, but the Jury would be permitted, without inquiring into the underlying facts of the case, to confront the man with the fact that he had been convicted of robbery. Following jury selection, the court revised its ruling at the man’s request to limit the Jury’s inquiry to whether the man had previously been convicted of a felony without specifying that it was robbery.

When the man testified, the prosecutor abided fully with the court’s ruling and the man admitted of having previously been convicted of a felony. During the Court examination, however, the defense counsel asked the man, over the Jury’s objection, whether he had pleaded guilty to the prior felony charge. A Nassau Criminal Lawyer said the man responded that he did plead because he was guilty. Immediately thereafter, on the Jury’s application and over the defense counsel’s objection, the court modified its ruling to permit the prosecutor to examine the man about the facts underlying the prior robbery conviction.

Published on: April 12, 2012

Defendant Contends he is Eligible for Judicial Diversion Program

by Stephen Bilkis

A man was arrested during the execution of a search warrant in his reported residence. The search warrant was based in part upon an undercover police officer’s sworn allegations that on 13 separate occasions the man, while acting in concert with co-accused sold cocaine and heroin. A New York Criminal Lawyer said the accusation charges the man and his companion, with felony conspiracy for cocaine and heroin and conspiring to commit Criminal Sale of Controlled Substance.

The Criminal Procedure Law defines those accused persons who are eligible for Judicial Diversion as ones charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses as long as they do not have a disqualifying condition listed in the law. If the District Attorney consents, a non-eligible accused will be deemed eligible. The list of eligible crimes is specific and does not include every nonviolent felony.

Robbery in the Third Degree and felony DWI, both nonviolent offenses, are not specified eligible crimes. Disqualifying conditions include convictions within the past ten years for felony or a violent felony; those who have a prior second violent felony or persistent felony offender adjudication; and those who are presently charged with certain violent felony offenses. Prior adjudications for disqualifying crimes may also be considered by the court in determining eligibility.